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JCoastal zone Information Center A~STML l(~Ev TE Ocean and Coastal Law Teac hing M ate rialIs Volume I: Ocean Law Thomas J. Schoenbaum, Deborah A. Brian, Michael M. York, Michael D. Calhoun, Sidney Hassell, Jr. > f~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Price: $7.00 Copies are available from: UNC Sea Grant 1235 Burlington Labs NCSU Campus Raleigh, N.C. 27607 OCEAN AND COASTAL LAW TEACHING MATERIALS VOLUME I: OCEAN LAW Principal Investigator Thomas J. Schoenbaum Contributing Authors Deborah A. Brian (Chapter One) Michael M. York (Chapter Two) Michael D. Calhoun (Chapter Three) Sidney Hassell, Jr. (Chapter Four) This work was sponsored by the Office of Sea Grart, NOAA, U. S. Dept. of Commerce under Grant No. 04-6-158-44054, and the State of North Carolina Dept. of Administration. The U. S. Government is authorized to produce and distribute reprints for governmental pur- poses notwithstanding any copyright that may appear hereon. Property of CSC Library SEA GRANT PUBLICATION UNC-SG-77-09 April, 1977 OASTIA ZONE INFORM ATION CENTER 2 A a- ~~~~~~~~~SEP I Al 97 X2 U.S. DEPARTMENT OF COMMERCE NOAA ~2 a< aCOASTAL SERVICES CENTER ~ ~ ~ 2234 SOUTH HOBSON AVENUE CHARLESTON, SC 29405-2413 OCEAN AND COASTAL LAW TEACHING MATERIALS Summary Table of Contents Volume I Chapter One Ocean Space Chapter Two Living Resources of the Oceans Chapter Three Non-Living and Energy Resources of the Oceans Chapter Four Marine Pollution Control Volume II Chapter Five Public and Private Rights in Coastal. Areas Chapter Six Government Developmental and Regulatory Activities in Coastal Areas Chapter Seven Comprehensive Coastal Planning COASTAL ZONE INFORMATION CENTER VOLUME I TABLE OF CONTENTS Chapter One, Ocean Space1 Section 1. Introduction1 Christy, Property Rights in the World Ocean I Section 2. The Territorial Sea 19 A. Definition; Baselines 19 Note from Sec. of State Thomas Jefferson to the British Minister, Mr. H-ammond 19 Convention on the Territorial Sea and the Contiguous Zone 20 Stevenson, International Law and the Ocean 21 Third 'U.N. Conf. on the Law of the Sea, Second Committee, 5th Meeting 22 Department of Defense Press Release, 'U. S. Outlines Position on Limit of Territorial Sea 23 Infoi~mal Single Negotiating Text, Chapter I 24 Fisheries Case (United Kingdom v. Norway) 26 Informal Single Negotiating Text, Chapter VII 38 CAB v. Island Airlines, Inc. 40 Note 1: Passage 51 Note 2: Scientific Research 57 Note 3: Contiguous Zone 58 United States v. Louisiana 59 Snyder v. Motorists Mutual Ins. Co. 63 B. Straits, Bays and Historic Waters 66 Report of U. S. Senate Comm. on Commerce, Territorial Sea and International Straits 66 United Kingdom: Draft Articles on Straits 68 Stevenson, International Law and the Ocean 70 V ~~~~~~CorfU Channel Case 73 Convention on the Territorial Sea and the Contiguous Zone 80 United States v. California 81. United States v. Louisiana 85 United States v. Alaska 90 C. Islands and Archipelagoes 92 Convention on the Territorial Sea and the Contiguous Zone 92 Evenson, Certain Legal Aspects Concerning the Delimitation of Territorial Waters of an Archipelago 93 United States v. Louisiana 95 Section 3. Special Jurisdictional Areas: Economic Zone 98 Presidential Proclamation 2667 98 Geneva Convention on the Continental Shelf 99 United States v. Ray 101. Petroleum Development Ltd. v. Sheikh of Abu Dhabi 107 North Sea Continental Shelf Cases 116 Third U.N. Conf. on the Law of the Sea, Second Committee, Second Session, 16th Meeting 132 Page Report of U.S. Senate Comm. on Commerce, 94th Cong., 1st Sess, The Economic Zone 135 Informal Single Negotiating Text, Chapter III 138 Cadwalader, Freedom for Science in the Oceans 144 Note 1: Pollution Zone 150 Note 2: Fisheries Zone 154 Note 3: Semi-enclosed Seas 156 Note 4: Scientific Research 157 Note 5: Dispute Settlement 163 Note 6: High Seas: Definition and Freedoms Enjoyed 166 Chapter Two. Living Resources of the Oceans 168 Section 1. Introduction: Note 169 The Economics of Fisheries Management: a Note 170 Section 2. Fisheries 1.74 A. International Law 174 The Fisheries Jurisdiction Case: United Kingdom v. Iceland 174 B. U. S. Law 193 The Fisheries Conservation and Management Act, Senate Comm. Committee Report 193 The Fisheries Conservation and Management Act of 1976 197 Notes 220 C. State Law 221 North Carolina General Statutes, Conservation of Fisheries Resources 221 Note 237 Section 3. Mariculture: Note 239 North Carolina General Statutes, Cultivation of Oysters and Clams 241 Section 4. Marine Mammals and Wildlife 247 The Marine Mammal Protection Act of 1972 247 Notes 268 Committee for Humane Legislation v. Richardson 269 Note 278 Fouke Co. v. Mandell 279 Note: The Endangered Species Act of 1973 and Marine Mammals 288 Chapter Three, Non Living and Energy Resources of the Oceans 290 Section 1. Introduction: Note 290 Section 2. Outer Continental Shelf Drilling 290 A. State/Federal Ownership of the Continental Shelf 290 United States v. California 290 Note 1. United States v. Louisiana 299 Note 2. United States v. Texas 300 The Submerged Lands Act of 1953 302 United States v, Louisiana 304 Notes 314 United States v. Maine 314 Note: United States v. Florida 319 Page B. Regulation of OCS Drilling 319 Outercontinental Shelf Lands Act 319 43 C.F.R. 3300 et seq. 323 The National Environmental Policy Act of 1969 327 Notes 329 Gulf Oil Corporation v. Morton 330 Sierra Club v. Morton 334 New York v. Kleppe 338 Notes 343 Section 3. Deepwater Ports 352 Note 352 Convention on the High Seas 353 Convention on the Continental Shelf 353 Convention on the Territorial Sea and The Contiguous Zone 354 Deepwater Port Act of 1974: Joint Committee Report 354 Deepwater Port Act of 1974 355 Draft Articles for a Chapter on the Economic Zone and the Continental Shelf 356 Revised Single Negotiating Text, Art. 44 357 Notes 357 Section 4. Floating Nuclear Power Plants 358 Coastal Effects of Offshore Energy Systems 358 Notes 361 Section 5. Deep Seabed Mining 362 A. Ownership of the Resources 362 United Nations Resolution 2574 362 United Nations Resolution 2749 363 Report on the Deep Seabed Hard Minerals Act, Comm. on Interior and Ins. Affairs 364 Senate Bill 713 368 Notes 372 Address by Secretary of State Henry Kissinger 372 Notes 375 B. Environmental Impact Regulation of Deep Seabed Mining 378 Franle, Environmental Aspects of Deepsea Mining 378 Notes 382 Revised Single.Negotiating Text 383 Section 5. Other Proposed Uses of the Non-Living and Energy Resources of the Ocean 383 A. Energy from the Ocean 383 B. Water Column Mining 385 C. Other Proposals 385 Chapter Four. Marine Pollution Control 386 Section 1. International Law 386 United Nations' Conf. on the Human Environment 387 1958 Convention on the High Seas 387 Allegrone, Marine Oil Pollution 388 International Convention for the Prevention of Pollution from Ships, 1973 390 Convention for the Prevention of Pollution from Land-Based Sources 411 1972 Convention on the Prevention of Marine Pollution by Dumpting 414 -iv- Page Section 2. U. S. Law 417 A. Oil Pollution and Spillage 417 Oil and Hazardous Substance Liability 417 U. S. v. Boyd 420 Apex Oil v. U. S. 424 U. S. v. Le Beouf Bros. Touring Co., Inc. 427 Notes 429 Union Oil v. Oppen 430 Note: Oppen v. Aetna Ins. Co. 441 Problem 441 Askew v. American Waterways Operators 442 Portland Pipe Line Corp. v. Envir. Impr. Com'm. 449 Atlantic Richfield Company v. Evans 456 B. Ocean Dumping 458 Marine Protection, Research and Sanctuaries Act of 1972 458 Test Case on Ocean Dumping: Must Philadelphia Move Toward On-Land Disposal of Sewage Sludge? 464 C. Ocean Outfalls 468 Ocean Outfall: The Answer to Coastal Problems? 468 City of North Miami v. Train 470 FOREWORD This book of materials is a response to the need for a teaching tool showing the interrelationship between the law of the sea and coastal legal problems. It is a reflection of the growing awareness that the contemporary emphasis on new and improved uses of the resources of the oceans will have a profound impact on the character of our coastal areas. Conversely, coastal planning decisions will affect our choices in the development of ocean resources. The immediate stimulus for the compilation of these materials was to provide a ready set of readings for students enrolled in the Ocean and Coastal Law course at the University of North Carolina School of Law. This book is the product of second-and-third-year law students working under my supervision and direction. It is a totally volunteer effort, and its successful completion is due to the high degree of interest and hard work of the students involved. For my part, I have thoroughly enjoyed the association with them both on a professional and a personal level. I want to express my gratitude as well to Dr. B. J. Copeland of the University of North Carolina Sea Grant Program for encouraging this project. Thomas J. Schoenbaum CHAPTER ONE OCEAN SPACE SECTION 1. INTRODUCTION Christy, "Property Rights in the World Ocean" 15 NATURAL RESOURCES JOURNAL 695 (1975) * Reprinted with permission from 15 NATURAL RESOURCES J. 695 (1975), published by the University of New Mexico School of Law, Albuquerque, N.M. 87131 Property rights in the world ocean are undergoing a major transi- lion as the principle of the freedom of the seas comes under increas- ting pressure from economic and political forces. The freedom of the seas means, in essence, that the ocean's resources are exploited under t,,e conditions of common property. This did not produce signif- icantly detrimental consequences until after the Second World War, when demand for ocean resources increased very rapidly. The eco- nomic waste resulting from the common property condition is now very high. But there are, in many instances, considerable difficulties and costs associated with the removal of the conditions of common property, and it is not clear that the benefits are sufficient to cover the costs. But whether or not removal of the common property condition is economically justifiable, the political pressures for acquiring exclusive rights can be considered inexorable. The problem is one of accommodating these pressures while minimizing conflict and economic waste. INTRODUCTION The subject of property rights in the oceans is both timely and Complex. It is timely because the resources of the oceans are in a state of transition from the condition of no one's jurisdiction to that Of someone's jurisdiction. This process of transition is occurring both because of the rapid growth of economic pressures on the seas' re- SOurces and because of the sudden interest in the seas' wealth ex- pressed by a host of newly emerging nation-states. The subject of Ocean property rights is now being addressed by the third United Nations Conference on the Law of the Sea, the third session of which Was held in March and April of this year in Geneva. The complexity of the subject is due not only to the unclear status of jurisdiction but also to the wide variety of ocean resources and Uses that are now requiring the exercise of jurisdiction by some -.,geent, whether that agent be some group within a nation, the nation .tself~ some group of nations, or the world community. For fisheries, *Resources for the Future, Inc. " th,-� ,:Ire special complications deriving from the fugitive nature the resource and the fact that fish do not respect man's bound I, c Because of these complexities it is impossible to deal in 4et~i3f all of the many important problems associated with the aciquitj: sand exercise of property rights in the oceans.' Instead, this pa.k Wvill briefly sketch the background and focus attenti on n few y i the problems believed to be of greatest interest; that is, the proble associated with the transaction costs of acquiring and enforclng;atb factory property rights. FREEDOM OF THE SEAS AND COMMON PROPERTY ' As stated above, the resources of the ocean are going throuig a fundamental transition, from being subject to no one's jurisdiction , becoming subject to someone's jurisdiction. In the former situati6n. property rights do not exist in any meaningful sense; in the latter situation, satisfactory property rights may or may not exist, depend. ing upon how the jurisdiction is exercised. The absence of satisfactory property rights means that thc Itr sources are essentially treated as common property resources.:Bc- cause of the importance of this term for a discussion of property rights it seems useful to specify the significant characteristicsof a common property natural resource. ; .i A. It is a natural resource whose flow of services has economic value. ; :, B. The flow of services is treated as indivisible. A, C. The flow of services can be used by any individual economic unit within a group of economic units. D. There is no agent that controls access within the group-of economic units to the flow of services from the resource.-fi :: At the international level for those resources found beyond-na tional jurisdiction common property resources include fisheriesltbt minerals of the deep sea bed, the use of ocean space for marl tia commerce in areas of congestion (such as the English Channel)[!d the assimilating capacities of the oceans for waste disposal-'le group of economic units is the nation-states of the world co0nrua City. The condition of common property emerges from the prind'* ;of the freedom of the seas which guarantees free and open aCeSIto 0all nations. At the national level treatment of a resource as common prI� Adepends, in part, upon the choice of the government. Fisheri * 1. For an excellent introduction to the literature on the law of the sea in genel Hollick, Marine Policy,-aw and Economics (1970). -2- example, are generally treated as common property in the United States and western Europe, but are not common property in Japan, the Soviet Union, and the Eastern Bloc countries, where access is controlled. Other resources in the United States that are, or have- been, treated as common property include common oil pools, the radio spectrum, air, bodies of water, recreational lands, and wildlife. For some of these, the common property characteristic has been removed by making the flow of services from the resource divisible or by controlling access. It should be noted that in some cases the control of access may be insufficient to prevent the wasteful conse- quences of exploiting a common property resource. Distinctions should be made between the term "common prop- erty" and the terms "public property" and "the commons ""Com- mon property" relates specifically to the conditions governing access to the resource, not to the nature of the owners or of those who exercise jurisdiction or control over the resource. Thus, public prop- erty is sometimes treated as common property and sometimes not. Examples of the former treatment are the many outdoor recreation areas that are publicly owned and freely accessible to all members of the public. Examples of the latter are the National Forest grazing lands and timber lands. These are also publicly owned, but the flow of services is made divisible and access is restricted to individual economic units by leases and other techniques. With regard to the commons the condition of common property was generally removed when the commons were used for pasture. H. Scott Gordon, the first economist to analyze the common property condition in fisheries, pointed out that the commons usually became "istinted."2 Perhaps the most interested similar case is the use of common pasture in the medieval manorial economy. Where the ownership of animals was private but the resource on which they fed was common (and limited), it was necessary to regulate the use of common pas- ture in order to prevent each man from competing and conflicting with his neighbors in an effort to utilize more of the pasture for his own animals. Thus the manor developed its elaborate rules regulating the use of common pasture or "stinting" the common: limitations on the number of animals, hours of pasturing, etc., designed to prevent the abuses of excessive individualistic competition. 3 2. The noun, stint, is defined as "the limited number of cattle, according to kind, 1o6tted to each definite portion into which pasture or common land is divided, ox to each Person entitled to the right of common pasturage." The Oxford Universal Dictionary on Historical Principals (3rd ed. rev. with addenda 1955). 3. Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J. 1. Econ. 135 (No. 2, 1954). -3- The use of the commons for recreational purposes generally. . mains unstinted. Even though it may be limited to a group or con' munity, access by members of the group is still free and open. ' : I Even in primitive societies it is apparent that the common prop. erty condition did not persist when the resources became scary. "Speaking generally, we may say that stable primitive cultures appear to have discovered the dangers of common-property tenure and to have developed measures to protect their resources."4 ; : Distinctions might also be made between the term common prop, erty and the terms res nullius (things unowned) and res commnue., (things owned in common). But as Professor Douglas Johnston his said, "The academic dispute between res nullius and res communes iX now almost-but not quite-silenced. Through the centuries ithag continued to shed light on the legal mind, but failed to providei lasting basis for the settlement of fishery disputes... (The) que tiol whether the seas, or the high seas, are res nullius or res comnmune s i improper; both terms should be rejected, for they merely confuse'i question which is already complicated enough as it is."s Generanlly, the conditiion of common property exists wherejthe esqts (so.ci',. political, o economic) of acq:uiring and en-forcing righlt of property are greater than the benefits that can be obtained. The costs of acquiring and enforcing property rights may be high fMthr wide variety of reasons, including the large spatial extent or flt: fugitive nature of the resource, the desire to maintain freedom b[ use, and objections by those who might be excluded. Benefils of acquiring property rights may be low in situations where the flib of services is abundant relative to the demand, ' As long as the flow of services is. so abundant- that use byl' ne economic unit does not diminish the value of use by others, ihe consequences of maintaining'the common property condition are not particularly damaging. But when� use by one impinges on use by others, inefficiencies will. result. These inefficiencies may be in tile form of physical wastes such as, depletion of a stock of fish or core, gestion of traffic in a narrow strait. Or they may be of an economic character because of the attraction of redundant amounts of capital and labor. Under common property conditions, no individual. usr, can afford to take future returns into account. He has no incentive 'it,, restrain current use for the benefit of future' returns because tlhctcI 4. Id. 134-35. See also B. Malinkowski, Crime and Custom in Savage Society 17 (959k Davidson, Family Hunting Territories in Northwestern North America, Indian Notes tW Monographs 19-22 (No. 46, 1928). 5. D. Johnston, The International Law of Fisheries: A Framework for Pollcy-Ofnlit 'Inquiries 303 (1965). ; ,'? -4- , '<*lurance that he will capture a satisfactory share of the returns. Also, under common property Cow1UiliilS, capital and labor will inev- :t.blY flow in until total costs and revenues, rather than marginal costs and revenues, are equal. For ocean resources these consequences are most clearly demon-, strated in the exploitation of fisheries and marine mammals. Numer- ous stocks throughout the world have been depleted-fished to the point where the annual yield is less than the maximum that can be sustained. In some cases conservation controls have been imposed and have been relatively effective in restoring yields to their max- imum. With only one or two exceptions, however, these controls have not significantly changed the common property condition. Indeed, many of these controls have exacerbated economic waste rather than alleviated it, as illustrated in the following examples. One form of conservation control is that of raising costs (or pre- venting declining costs) by imposing technological inefficiencies on fishing effort. At the turn of the century, when steam power came into general use for fishing vessels, Maryland prohibited dredging oyster beds in the Chesapeake Bay by automotive power. While most other states developed a system of private property rights for oyster farming, Maryland persisted in treating the beds as common prop- erty. As a result, Maryland has the last remaining commercial sailing fleet in the United States. While this archaic harvesting technique is manifestly inefficient and Maryland's oyster catch is ten percent of former yields (for a variety of reasons), it must be admitted that society receives some value from the maintenance of the lovely skip- jacks and bugeyes and the preservation of an independent and indivi- dualistic way of life. A more direct conservation tool is that of limiting total catch. Under this approach, a total quota is announced at the opening of the season and, when the quota is reached, all fishing ceases until the next season. This approach induces each fisherman to build more, larger, and faster vessels in order to get as large a share for himself before the total quota is reached and the season closes. Since all fishermen operate under the same incentive, excessive units of capital and labor are employed, and the season shortens. In 1967 a total quota was imposed on the catch of yellowfin tuna in the regulatory area of'the Inter-American Tropical Tuna Commis- sion. Up until 1967 the total size of the tuna fleets of all countries in the area was fairly steady at about 45,000 tons of capacity. By 1973 capacity had increased about three-fold, to 133,000 tons.6 The size 6. S. Saila and V. Norton, Tuna: Status, Trend, and Alternative Management Arrange- ments40 (1974). -5- of the total quota was also increased, but by less than 100 percnlt, with the result that the season dropped from its usual nine or ten months to about three months. In addition to the inefficiencies manifested by the redundant units of effort, this system has lad global ramifications. At the close of the yellowfin season in Ihe eastern Pacific the vessels move to the Atlantic, where they have placed further pressures on tuna stocks that are already at, or beyond, the point of maximum sustainable yield. It might be noted that in the three major oceans-Atlantic, Pacific, and Indian-skip. jack is the only major species of tuna that has opportunities for further increases in yield. These kinds of controls exacerbate the economic waste that is already present as a result of the common property condition. Vit. tually all economic studies of fully utilized fisheries have demon. strated that there are redundant amounts of capital and labor and that the costs associated with these can be considerable. For ex- ample, it was estimated in the mid-60's that the same amount of salmon (and same gross revenues) could be taken with $50 million less capital and labor than was annually employed at that time.t With a three-fold increase in price and a decline in catch since then, the current amount of redundant capital and labor is likely to be considerably larger. British Columbia, Alaska, and Washington have all adopted con. trols over access to salmon fisheries. Only the British Columbia scheme has been in effect long enough to produce results. In 1968 �the number of vessels that could be licensed to fish for salhnon 'Wais limited. The scheme has been so effective that the value of a lic'cns, has reached levels of $5,000 to $6,000 per ton of vessel. .hus a new entrant with a 25 ton vessel must buy out previous owners ai cost of $125,000 simply for the privilege of fishing. With a few exceptions, the license limitation systems in Alaska aid Washington are the only ones in effect for marine fisheries In ith U.S. While economic waste in other U.S. fisheries is not likely tobe as large as that for salmon, it is still pervasive.' There are no e6l(' 7. 1. Crutchfield and G. Pontecorvo, The Pacific Salmon Fisheries: A Study of ialmtwi Conservation 174 (1969). , . 8.. See Crutchfield and Zellner, Economic Aspects of the Pacific Halibut Ftshey,. I Fishery Industrial Research (No. 1, 1963); E. Lynch, R. Doherty, & G. Di:llleim,N' Groundfish Industries of New England (U.S. Fish and' Wildlife Service Cir, 121, 196); V. Arnold, An Analysis to Determine Optimum Shrimp Fishing Effort by Area (U;S. Burau od Commercial Fisheries Working Paper No. 40, 1970); F. Bell, Estimation, of the Ecoioim* Benefits to Fishermen Vessels and Society From Limited Entry to the Inshore U.S. Nobi ern Lobster Fishery (Bureau of Commercial Fisheries, Working Paper No. 36, 1970), -6- mates for the total amount of economic rents being dissipated in the United States, much less for the world as a whole. It is much more difficult to measure the wastes associated with the use of other common property resources of the oceans. The minerals of the s a bed of the high seas have not yet been commercially exploiteo and are not likely to be exploited under common property conditions unless there is total failure at the United Nations Confer- ence on the Law of the Sea. Wastes from marine pollution, where use of one set of flow of services interferes with another, are present and may be considerable in inshore areas. Congestion of commercial shipping in narrow straits and around headlands produces costs in terms of lost time and increased risk of collision. In sunmmary, it is clear that the common property condition that governs the use of most ocean resources is a source of economic waste. The amount of waste may be quite large for marine fisheries and may be important, though presently immeasurable, for other resources and uses of the seas. These wastes reflect the value that' might be achieved by removing the condition of common property, either directly or indirectly. However, the condition of common property is not removed with- out cost, and the question remains whether the transaction costs of achieving satisfactory property lights by making the flow of services divisible or by controlling access are less than the values that can be gained. THE PRESENT STATUS OF PROPERTY RIGHTS IN THE WORLD OCEAN The principle of the freedom of the seas emerged from the argu- ments presented in the early 1600's when Hugo Grotius defended the fight of the Dutch to navigate the Indian Ocean, which the Portu- guese claimed to be their exclusive territorial waters.9 One of the main arguments made by Grotius and his followers was that the costs and difficulties of acquiring and enforcing exclusive rights in the high eas were greater than the benefits that could be obtained. They argued that the vastness of the seas precluded effective enforcement of rights except over a narrow coastal margin: "imperium terrae finiri u bifinitur armorum potestas" (the dominion of land ends where the power of arms ends).1 o This was assumed to be the limit of a cannon Mlot. It was also argued that the seas' resources were so abundant ;that there was little or no value to exclusive rights: "The extent of 9. C. Fenwick, International Law 292 (1924); Grotius, Mare Liberum (1608); Grotius, 'IDJue Belli ac Pacis (1625). 10. C. van Bynkershock, Questiones Juris Publici (1737) in A. Volkov, Maritime Law l 1969). -7- the ocean is in fact so great that it suffices for any possible use on the part of all peoples for drawing water, for fishing, for sailing."t' The arguments of Grotius and his followers prevailed and "by fihe mid-eighteenth century it was clear that the era of claim to exclusive sovereignty over extensive areas of the sea had passed, and virtually every textwriter who touched upon the subject accepted Grotius' basic premises: the open sea cannot be occupied; it is indivisible, inexhaustible, and productive without the increment of man's labor, it cannot be allotted or appropriated; and there is no moral excum for abandoning the original community of goods."t 2 For more than two centuries the ocean and its resources beyond narrow limits of national jurisdiction have been treated as the coln. mon property of the world community. For most of the ocean's resources over most of this period the consequences have not been excessively damaging. While there was evidence that certain fish stocks in �certain localities were over-fished and depleted and conr flicts over fishing rights broke out from time to time, the fishernmen could often find opportunities further afield. But in the period since the Second World War changes of such great nature have taken plaic that the viability of continued maintenance of the common properly condition for ocean resources is doubtful. The changes have both economic and political characteristics. For fisheries a rapid increase in demand, particularly for fish caught for fish meal, led to a rate of increase in world catch of about six to seven percent per year and to extension of effort worldwide by several countries. In 1969, however, total world catch was lower than it was in 1968. The current projections indicate that the future rate of increase will probably be no more than three percent per ycear and may actually be much lower. Most of the species for which there isai effective demand are already being fully utilized. There are no signifl icant opportunities for cultivation of marine fisheries and increasing the annual yields. While there are a few stocks that can be further developed-in the Indian Ocean and off the coast of Argentina- the amounts that can be caught are not particularly large relative to the total world catch. One possible exception is that of krill-a smal, shrimplike animal-in the Antarctic. But even if this leads to dramatic increases in total world catch, it will do little to reduce the pressures and problems associated with most of the world's 1ishcricb. There are several important consequences arising from the pres. sures of demand on supply. Biological waste has Lecome more ptev. 1 I. C;rotius, De Jure Belli a: Pacis (1625) in D. Johnston, supra ,s,)to 5, t 166, 12. Johnston, supra note 5, at 173. alent and more rapid.'A particular stock of fish may now become depleted within a few seasons of fishing. Economic waste is also becoming more widespread. In addition, several countries, particu- larly the Soviet Union and others in the Eastern Bloc but including some from western Europe and a few developing countries as well, .have' developed far-ranging, technologically efficient fishing fleets that are capable of intensive fishing off the coasts of all countries of the world. Finally, there has been a significant increase in the value of obtaining exclusive rights over fish stocks. Petroleum resources underlying the continental shelf and slope are also attracting increasing attention. There has been a fairly steady advance of oil rigs into deeper and deeper waters, raising the question ,as to where the limits of coastal nation jurisdiction should be drawn. A unique problem of establishment and enforcement of property rights has been created by the recent commercial interest in the manganese nodules that cover vast areas of the sea bed. These nodules, high in content of nickel, copper, cobalt, and manganese, are richest in the deeper waters-15,000 feet and below. Most of the deposits currently being explored for possible exploitation lie in the Pacific Ocean beyond 200 nautical miles from land and, conse- quently, beyond what is likely to be the maximum extent of national jurisdiction. Since commercial exploitation has not yet taken place (though it may be attempted within the next few years), there are still wide differences of opinion as to the likely economic conditions and con- sequences of the ventures. Some maintain that the deposits are so uniform in value over such large areas that exclusive rights are not necessary for the purposes of preventing claim-jumping. Others point out that satisfactory title is necessary in order to acquire financing. In addition; a major area of contention at the United Nations Confer- ence is whether the sea-bed agency should or should not have the right to exploit the resources itself. Changes in political conditions are also affecting the principle of the freedom of the seas and the characteristics of property rights in the world ocean. Some of these lead to demands for minimizing the extent and content of national jurisdiction. In particular, military interests in the U.S. and USSR are anxious to maintain the maximum freedom of transit for military craft. The importance of the ocean to the strategy of nuclear deterrence increased rapidly with the de- velopment of relatively silent, deep-running, and wide-ranging nu- clear submarines. If coastal nations acquire the right to require sub- marines to pass through their waters on the surface, rather than -9- submerged, this would facilitate the tracking of submarines and diminish the value of the ocean's opacity. In this regard, the military is joined by commercial shipping interests. They fear that extension of the rights of nations to impose pollution controls would seriously disrupt the movement of shipping, particularly through narrow straits currently considered intemrna- tional. There is also strong political opposition to maintaining the prin. ciple of the freedom of the seas. While this principle provides all nations with free and equal access to the ocean's wealth, it means, in reality, that the distribution of wealth favors the wealthy. Under the principle the benefits of ocean resources can only be acquired by those who exercise their right of access. Those who do not have the capital or the technology to exercise this right receive few or no direct benefits from use of the ocean and its resources beyond their jurisdiction. The recent emergence of a large number of new nations, virtually all of which fall into the "have-not" category, has produced a major political force that finds the principle of the freedom of the seas wanting: While not all of these nations would be benefited uni- formly by any particular proposal for establishing property rights over ocean resources, they all share in the demand for the abolish- ment of the freedom of the seas as interpreted by the major maritime states, and in demand for a distribution of the seas' wealth more in their favor. These political pressures for change can be considered inexorable, even if the results of the change cannot be anticipated fully. As can be seen, the present status of property rights in the world ocean is one of flux. For many of the ocean's resources, the condli- tions that permitted the maintenance of common property no longer exist. The value of acquiring and enforcing exclusive rights has risen considerably. At the same time, costs and difficulties have fallen. Politically, claims to extended areas of jurisdiction have increasing legitimacy. Economically, the use of aircraft and high powered vessels has reduced the costs of enforcement, although it should be noted that these costs may still be high. A I.TERNATIVE JURISDICTIONAL PATTERNS It is generally agreed that the jurisdiction of nations should not01 extend to the mid-points of the oceans but'should terminate at some uniform limit and that, beyond that limit, the international chatracter of the oceans should remain. There is no general agreement, however, as to where the limit should be drawn, nor, more importantly, is there general agreement as to the authority of a nation within the limit. Most observers feel that there is a general movement toward a 200 nautical mile limit of national jurisdiction. It may be that this limit will be extended to the edge of the continental shelf or of the contin- ental margin in the few cases where these lie beyond 200 nautical :miles. Assuming that the limits are drawn somewhat along these lines, there are then two sets of jurisdictional questions-those deal- ing with the rights governing resource use in the high seas beyond national limits and those dealing with the rights within the coastal margins. These will be treated separately below. Ilgh Seas The manganese nodules of the deep sea-bed represent the only tangible items of wealth in the world that are clearly non-national in liaracter. They thus provide particularly intriguing and difficult gquestions for the determination of the jurisdiction that will govern their use. It would appear that some interests assume that the sea-bed nodules are unowned and therefore "up for grabs" by the first ex- ploiter, whether private entrepreneur or national government. This ;appears to be the view of Deep Sea Ventures, Inc., a subsidiary of Tenneco, which has laid claim to an area in the Pacific that is about the size of Ireland. A more prevalent view is that the nodules should :b considered part of the "common heritage" of mankind-with iome of mankind more equal than others. According to the United 'tations Declaration of Principles adopted in 1970, "the exploration 'of the (deep sea-bed) area and the,exploitation of its resources lould be carried out for the benefit of mankind as a whole, irrespec- jive of the geographical location of States, whether land-rocked or Noastal, and taking into particular consideration the interests and Ri~eds of the developing countries." 3 These alternative definitions find expression in proposals relating o creation of an international sea-bed resources agency. With regard t0 problems of allocating exploitation rights and distributing benefits iust two of the numerous problems raised), there are three major nriations: an enterprise system, a licensing scheme, and unilateral protection of national entrepreneurs. E The enterprise system would give the sea-bed agency authority not !inly to license exploitation ventures but also to undertake exploita- ina itself. This proposal before the United Nations Conference is 13. UNGA Resolution 2749 (XXV). -II- advanced by developing countries for two reasons. First, they feel that this would provide them more direct participation in sea-bed mining than a license system. Second, several developing countries that produce and export the metals contained in the nodules wish to control production from the sea-bed to minimize the impact on tlleir markets. The enterprise system is strenuously opposed by the developed countries that anticipate engaging in sea-bed mining (the United States, Japan, and West Germany, in particular). These countries tend to support a system that would license entrepreneurs on a "first-come, first-served" basis and that would extract some degree of economic rent from the exploiters to be used for the benefit of mankind. The third variant was raised in the ninety-third Congress of the United States as Bill S. 1134 Amendment 946. This Bill, designated an "interim" measure, is designed to provide sufficient protection for U.S. investments so that the necessary capital can be raised. It would reimburse U.S. companies for the value of their investment takerl or impaired by the adoption of an international convention on sea-bed Although the eventual outcome cannot be anticipated, it is possi. ble to raise some speculations about the consequences of the three different approaches. Adoption of a sea-bed mining bill similar to that described above could well lead to failure of the United Nations Conference. Even though this is stated to be an "interiln" measure, its passage would probably be considered a unilateral action by most of the Conference delegations. It might be interpreted as unwilling. ness on the part of the United States to negotiate its interests at tlhe Conference and would probably stimulate a rash of unilateral actions by other countries on the range of issues being considered. The controversy with regard to the enterprise versus llhe licensing system has developed a strong ideological cast. The developing co0in. tries feel that they have a particularly strong interest in deep sea-bed resources. They are aware that, without controls, the benefits will accrue not only to the producers but also, through lower prices, to the consumers of the metals that are produced, and that both pro- ducers and consumers will be primarily the developed countries' They also fear that a licensing system would impeie eventuatl development of the technological capacity to exploit the resources themselves. Even though an enterprise system might reduce Ithe economic rents that can be extracted for their benefit, they arc willing to trade these off for a "piece of the action" and a lnote direct participation in sea-bed mining. . -12- Advocates of the licensing system, on the other hand, fear that the enterprise system would leave them with the risks but not the profits; that it would deprive them of an assured source of scarce materials, leaving them vulnerable to OPEC-type actions by the raw material producing countries; and that it would mean maintenance of high prices for consumers. In resolving this controversy, it would be useful to evaluate the expected benefits of the licensing system and measure these against the costs that might be incurred by antagonizing a large part of the world community. In addition to manganese nodules, there are certain other re- sources that occur behond the 200 mile limit, the most important of which are whales, salmon, and tuna. For some stocks of these species certain forms of property rights of a de facto nature already exist. These are rights of presumed or actual exclusion obtained through the techniques of national quotas and the "doctrine of abstention." The technique of national quotas provides for allocation of shares of the total allowable yield to participating countries. In the case of the whales of the Antarctic, shares were divided on the basis of past records of catch and were distributed to whaling fleets that were then in use. The de facto property rights were sufficiently firm to :pernit a market for the quotas, as indicated by ability of the Japan- ,ese to purchase the quotas of the Dutch and the British by buying their fleets. National quotas are also in effect for a number of other fisheries, several of which fall within 200 miles of shore.' 4 This system, how- ever, can only succeed if there are no new entrants (or in the case of the Northwest Atlantic agreement, if the new entrants do not take up more than the amount reserved for their use). It is thus based on the presumed exclusion of new entrants, even though, under the principle of the freedom of the seas, there is no legal basis for en- forcing exclusion. The "doctrine of abstention" has been applied to certain salmon locks. Where a stock is fully utilized by one or more countries and Where investments are being made in conservation and management, the doctrine requires that other countries should abstain from fishing the stock. The most significant application of this so-called doctrine !s found in the 1952 agreement under which Japan abstains from :aking salmon on the high seas east of the 175�W meridian. Japan's agreement was given in exchange for the U.S. signature on the Peace 14. See Christy, Northwest Atlantic Fisheries Arrangements: A Test of' th Species * , ' proaclh. I Occan Development & Int'l. L.J. (No. 1, 1973). -13- Treaty, and thus it might be said that there was a market of sorts for the resource. As in the case of national quotas, the success of this means of acquiring "property rights" depends upon exclusion of non-sign. tories-an exclusion that is increasingly difficult to maintain as a growing number of countries extend their fishing efforts into far distant waters. At the United Nations conference the United States has proposed separate treatment for salmon and tuna. It has proposed that anadro. mous species, such as salmon, which spawn in fresh water and live in the ocean, be subject to the exclusive control of the host state and that there be no harvesting of the resource on the high seas. Irn essence, the proposal provides that the salmon stock should be the "property" of the country in whose waters it is spawned. This pro posal is opposed by those countries which have an interest in salmon but do not have spawning streams. Separate treatment is also suggested for "highly migratory specicso such as tuna because these species swim inside and outside a 200 milk limit and may cover an entire ocean. It is maintained that satisfac. tory controls cannot be exercised by coastal nations if their jurisdic tion ends at 200 miles and that there must be an international agencyq made up of fishing states and coastal states. In response, it is argued that the coastal nations alone should exercise the necessary control in a contiguous zone that covers the entire range of the stocks., As can be. seen in each of the above cases, attempts are underway to remove the common property condition for the resources of IIK high seas. There are attempts to make the resource or its flow of services divisible and attempts to control access. Since the manganese nodules, being fixed in place, are readily divisible, the common property condition is likely to be removed. Even if the Conference fails to arrive at an agreement for a sea-bed agency, the resources art so vast that they could probably be exploited without specilic excldu sive rights for some time to come. The absence of salisfactory machinery, however, may well have other detrimental effects on ilW world community interest in sea-bed mining. For the whales of the Antarctic, the presumed exclusion of no entrants may continue simply because the resources have brcomc s0 severely depleted that they are not likely to attract newconen. Salmon fisheries are of interest only to a handful of countries inllri northern latitudes. The countries in whose waters the salmon spa~m, are likely to be able to acquire and maintain exclusion of othlershb) the use of sanctions or trade-offs of one kind or another. In somc of -14- these countries, however, the common property condition may remain at the domestic level. For tuna fisheries, however, it is quite possible that the common property condition will persist, both internationally and intra-nation- ally. Vessel construction is growing rapidly in many countries in .response to rising prices. The intentions of these countries are such that agreement on a system of national quotas is unlikely. They would be unwilling to divide up the yields on the basis of present or past records of catch. And the aggregate of their anticipated levels of catch is probably greater than the yields that can be sustained. But ,even if the tuna fishing countries could reach agreement among themselves, it is not likely that the agreements would satisfy the ony countries through whose claimed waters the tuna swim. It is not impossible that failure to reach agreements on national quotas or on controls over access will precipitate collapse of the present con- servation arrangements, so that in addition to over-capitalization, the fisheries will become depleted. Coastal Margin Rights over the resources of the coastal margin are generally treated in two different categories-those governing the exploitation of the sea-bed resources of the continental shelf and those governing all other resources and uses in the superjacent waters. In neither case are the rights uniformly defined, either in extent or in content. For the resources of the sea-bed, the 1 958 Geneva Convention on the Continental Shelf provides coastal states with fully exclusive jurisdiction out to the depth of 200 meters or beyond "to where the depth of the superjacent waters admits of exploitation." There is general agreement that the 200 meter limit is too narrow and that there should be some fixed limit at a greater depth. While several countries have suggested the edge of the continental margin, where the ocean abyss begins, this would be hard to determine in many areas and in other areas would mean a vast extension of rights to ; veral hundred miles. An alternative approach is to fix the limit at a tertain depth, such as 2500 meters. While this might not fully incor- P rate the continental margin in certain regions, it is probably suffi- , ent to govern exploitation for many years to come. With regard to the content of the rights, the United States has Proposed that the coastal state have full control over access in the Iea beyond 200 meters, but that it share any revenues with the atemrnational community. This proposal has not received much aipport except from some of the landlocked countries and is now -15- being reappraised within the U.S. government. The proposal will prob. ably be dropped, and the jurisdiction of coastal states over sea-bcd resources will probably be fully exclusive out to whatever limit is accepted. Above the sea-bed the resources are subject to the regime of the territorial sea and contiguous zone. The territorial sea provides coastal states with fully exclusive jurisdiction over all resources and use of the sea, with the exception that foreign vessels have a right of innocent passage. Currently, claims to the territorial sea range from three to two hundred nautical miles. The concept of the contiguous zone was designed to provide coastal nations with exclusive rights over fisheries to the distance of 12 miles. A more recent concept is that of the economic zone or the palii monial sea. This would cover an extensive area-probably- 200 naut. ical miles-but limit the coastal state's jurisdiction to something less than that of a territorial sea. While there is a trend towards agrec. ment on a 200 mile limit, there are no clear indications of a coni sensus regarding the content of jurisdiction. For fishefies, sorrie countries propose fully exclusive rights under which they tiay; if they wish, permit foreign fishing. Others liave proposed that the coastil state be required to let foreigners fish for stocks that are not fully utilized by its own fishermen. They asserl that the right of the coastal state should be limited to the amouni that it is capable of taking. The use of the capacity criterion would make the flow of services from the resources divisible into national quotas and would provide a degree of control over access. It is, however, an open-ended criterion dependent upon the coastal country's investment in fishing effort. The natural incentive would be to increase capacity in order to in, crease the share of the yield. Thus, it would not provide an effective division of the resources, and the common property wuld rennmain -at least until the coastal natior''had acquired the c.apacity to take the total allowable catch. But even if the capacity criterion is riot adopted and the coastal state can dispose of the fisheries as it wishes, there will still be numerous situations where control over access may be ineffective. These occur where stocks migrate along coastlines and swim through the zones of two or more neighboring countries. In these sit uationls, the common property condition can only be removed, by'joint arrangements between the countries sharing the stocks. The eXteci- sion ol'jurisdiction provides coastal states with authority to coiitrol access by distant water fishing countries but does nt)t remove the necessity for regional agreements among neighboring collntries. -16- An additional dif'licuity lies in enf'orcement ol' controls. While enforcement technology has increased considerably since the clays of G(rotius, costs may still be very high for an area extending to 20[) miles from shore. The amount of cost depends upon the kinds of controls that are imposed, as well as upon the migratory patterns of ile stocks. For example, some controls simply require surveillance by aircrna 't, whereas others may require inspection on board the fish- inig vessel. Enforcement against foreigners in one's owin waters is easier to achieve than enforcement in the waters of a neighboring state. For enforcement to be successful the essential requirement is good faith between parties. If good faith does not exist, it may well ihe that the costs of enforcing controls are greater than the returns that can be achieved. Finally, the task of removing the condition of common property for fisheries has an extremely important intra-national dimension that has been mentioned only briefly. If a country acquires a guaran- Ileed share of the yield from a stock of fish through the national quota approach or acquires the right to control foreign access, it gains the ability to remove the common property condition for its ;own fishermen. Whether or not it takes advantage of that ability depends upon a host of factors that cannot be considered fully ,hllere.' 5 The challenge is particularly urgent within the United States, where many fisheries are economically depressed and marked by average vessels, inefficient regulations, and high management costs. Provision of some form of property rights through license limits, taxes, or fisherman quotas raises rnumerous questions of an eco- nomic, political, and social nature. These questions need considerable attention in order to determine the desirability of access controls and the best means of achieving them. SUMMARY There are two factors involved in the move toward establishment and enforcement of jurisdiction over ocean resources-the economic desirability of creating satisfactory property rights and political pres- wres for redistributing the seas' wealth. With regard to the first factor, it is clear that considerable economic wastes result from the present common property condition. It is not clear, however, whether the costs of acquiring and enforcing some form of satisfac- 'tory property rights are less than the benefits that can be achieved. I 15. See (Christy, Fisheries Goals and Rights of Property, 98 Transactions of the Am. Fish- i Us Soc'y. (No. 2, 1969); Christy, Fisherman Quotas (Law of the Sea Institute, Occasional per No. 1', 1974). -17- This is a particularly difficult calculation to make for many fishery resources, especially those that swim freely across man's boundaries. It is less difficult for the minerals of the sea-bed, but there are ancillary problems that will require a great deal of effort to resolve. Whether or not the calculations indicate that acquisition and enforcement of jurisdiction is desirable, the political pressures are such that attempts to acquire jurisdiction can be considered inexor- able, at least for resources of the coastal maI gin. These pressures are now being expressed at the Third United Nations Conference on the Law of the Sea, which has delegates from almost every nation in tile world. The complexities of the issues, together with the participation of such a large number of countries, make the outcome unclear. The Conference could fall apart if impatience drives an increasing number of countries to take unilateral actions. It could fail if the majority reaches decisions that are unacceptable to the powerful maritime states, such as the United States and the USSR. It could also fail if the decisions reached are so general that they.provide insufficient guides for future management and distribution of the seas' wealth. But the outcome of the Conference will not affect the drive toward extended and enlarged authority of coastal nations over the ocean's resources. Nor will the Conference, even if successful, fully resolve the problems associated with exercise and enforcement of that authority. The transition from the principle of the freedom of the seas to establishment of effective property rights is an extremely difficult one, and steps currently being taken should only be consid- ered the first steps along a torturous path. J * ~~~~~SECTION 2. THE TERRITORIAL SEA. A. Definition; Baselines NOTE FROM SEC. OF STATE THOMAS JEFFERSON TO THE BRITISH MINISTER, MR. HAMMOND, Nov. 8, 1793 I Moore, International Law Digest 702-03(1906) "I'llo lPresidelei (I . lir Iiiitleu Stale'. thiiiikiiil.r fuat. !,:4o re it 4ihill b~e IjijlirN 41e(*jded( to whiat dl.iltc11( fr(411 oil]. 5e115]11or4s Ihe terl-Ito-iall pl-ot (,- t IIf (if thio U litii ,-tatvs shall hile (xeIC-c(i-. it Xvill lie priop)el tol enter, jul1 fl-iellilv eoiiiirellfes awl1 oxpliallatiolls Nvithi the power~- ch flefv ilIlt lro-tl~ il I iII 8 1V1ati(Ill (ot thet sevas oil otur (o~tist andl I lvIvilI(? t IIat I-(Inve I1(, III 4)cc11-'i0l 11,11I1'o, lie t akvIIrl1 FIII i~e-e Iterv fter, finds it I~~~e~~-iII\' Ii o IneallII ille Itt) fix proi'i~oiail .\ onII soile (di.,- tamIj fort( II. 1~4l ofe~lael fllw thi pit-1tiolls. Youi are selli1- 1lilt, that verv 41iff lit4,1 a4~l~i4ld 111(lll ha e v li ll eret(Ifore adlva II(efi IoII t lIIi' -1I II(c. TIII -e I t2l('at('t (sta Lce ItAo NN11 ei ahnt'1 le>Jaetaldi( a1ssentl a1111, III(1I1I hilt oInv boas eIII at 1N aiiv llic giNve. liae bevil thel (Nxehit (d' Ill 1ir Iiiiian Iilt. i-Iliill~aes III ii joN 114s 4 t wenit miilo-. andi till. -l (ilot -tnilce, I helieve-. (lilllied lI aiiv iat ioll Williever.is /0 1 /110'm~/ 1011ff)q (0/ (1 (1114 010 /wI/1. l~sl.,lmll- stakted at olle s a -Ieiie. Sonicl i iltl1114olwialev ditailies ha ve also beenl inlsisted oil anid that sot thre-e s4;( ioa-.1-lis ]la.s somle alltbiority\ ill its favqr. 111I4I (chal-arih.O of (4111- cm4i~. n-lll0k~dble ill (0115idor(l)v parts, 441 it forw ldililliti g I1( ve,-k15 (4' Size to) palss neall tIll Slim-ri'. wouldl viltitit' II? ill i'eaSoll. to) a iIII02 II(4 of lll'Zl(It W(iteinteol 1,1 11(a t ;io 14' I IlN's nait loll whaitever'. h1Worvil12. however, the Il~tillate extenlt of thli-~ for fuitiure (lehiIJ(.1aIt ((I. thji, Pirsidlent (rives, iwlst'ltintiol1l- to 1114. offlevi. actingt lll(d4r.1his ni lii o oll1(dr thlosv e lllrot(41 e ji ltheil~l ;I- l'(5trai1lledI fow III(, pri-flit 1(1 till listaicV ()f o ne 4414 ea~ Icap-Ile oi thoilw ge~~~~~~~Ill. rpIthoTIIijISlia ti hi 1 loo til -ui~'- 'li - Istlo I I;II i I I (ii oppjo~sit 1(4, in- I I i- jsiii'iizesl l)V t rea (ies lJL'tweell Smlille of OW NVII111 wi i WIOIII We~ avli ll'e(41iedteil cI olnhimele allu itlaviipt 14011 :11(1 is a15 little. or less. 111,1111 Is elaijlliedIll alv .iN oif thieill oil tlleIll (NN'l For the j 1111d5v1jtioll of( tile rivers -11101 bav-s o4 tile Ili teit IStalt es thle laws oif thle Several Staltes arel. undlerstoo(d oIll yile l~iailit 1pnovi.101411 and( thleyv are, IIl(AVireI .ll" 1s beitigy lanidlockedh. wit hinill( th b1(4Y o (f the Un~itedi States.- -'9- CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE 516 U.N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639 In force Sept. 10, 1964 2. The drawing of such baselines must not Article 12 The States Parties to this Convention d1. Where the coasts of two States are oppo- eral direction of the coast, and the sea areas site or adjacent to each other neither of the Have agreed as follows: lying within the lines mut be sufficiently site or adjacent to each other, neither of the two States is entitled, failing agreement be- closely linked to the land domain to be subject t e ofitrawae. ~ tween them to the contrary, to extend its terri- P A R T I torial sea beyond the median line every point 3. Baselines shall not be drawn to and of which is equidistant from the nearest points TERRITORIAL SEA from low-tide elevations. unless lighthouses or on the baselines from which the breadth of the similar installations which are permanently territorial seas of each of the two States is SECTION 1. GENERAL above sea level have been built on them. measured. The provisions of this paragraph shall not apply, however, where it is necessary Article 1 4. Where the method of straight baselines Iy reason of historic title or other special cir- is applicable under the provisions of para- elnistances to delimit the territorial seas of the i. The sovereignty of a State extends. be- graph 1, account may be taken, in determin- two States in a way which is at variance with yond its land territory and its internal waters, ing Iartilnlar baselines, of eeonomic interests this provision. to a belt of sea adjacent to its coast. described peculiar to the region concerned the reality as the territorial sea. and tihe importance of which are clearly evi- 2. The line of delimitation between the 2. This sovereignty is exercised subject to Ilded by a long usage. territorial seas of two States lying opposite to the provisions of these articles and to other shall b rules of international law. 5. 'lThe system of straight baselines may marked on large-scale charts ollfficially recog- not he applied by a State in such a manner as nized by the coastal States. to cut off froln the high seas the territorial sea Article 2 of another State. The sovereignty of a coastal State extends 6. The coastal State must clearly indicate to the air space over the territorial sea as well straight baselines on charts, to which due pub- as to its bed and subsoil. licity must be given. SECTION If. LIMITS OF THE TERHITOIIAL SEA lrni'le 5 -. \'i at .rs iim tin hudt tsarrl side of the base- Article3 linec of the trritori:iI -.a forir part of the in- Except where otherwise provided in these ternal w;lats uif be State. articles, the normal baseline for measuring 2. ll(-re ti. t'stlallishlllent of a straight the breadth of the territorial s-ea is the low- baseline ill aleordance with artitle 4. has the water line along the coast as marked on large- effect of enclotsing ;if inlltrnal w;ltrs altr;ea scale charts officially r-eeognized ihy the coastal which Itreviorlsly hail eren onsideritd as part State. of the territorial seia r of t i.- high seas; a right of inntcent passage. a, provided in arli. ~~~~~~~Articl 4 ics 11 t, 2). shalll exist in those wat' rs. Article 4 1. In localities where the coast line is deeply rl 6 indiented and cut into, or if there is a fringe of islands alring the coast in its immediate vi- The l l limit of ilt Irrriorial sea is the cinity, the mnethod of straight baselines join- ; ol v. his Il i; it .aldtarij fr (lllm ing alplropriate points may be employed in lie icarest iiirt of thr e;h-rl u elqill to tile drawing tile rbaseline from whirch the breadth lri;:l!ll of tire territorial sea. of the territorial sea is measured. -20- John R. Stevenson, "INTERNATIONAL LAW AND THE OCEAN" 62 Dep't State Bull, 339, 340-41 B3readth of the Territorial Sea 11 al)~I~rs that, there is widespread support~ for il' 1.y the breadth -of the territorial seia at Tn 1958 the international~~~~~ C1~11ffU In1aitieal miles. However, the extension of-I i of th sean wich resulted coilian XorJwor talk hi 1h &itorial sea to 12 miles would place many of thesea whch reslted n tourlaw ofthe ~i:t saorttinit international straits, which with a conventionis oil the territoritil sea and cofigtig 'iii limit have high seas areas running! oil, zone, the high seas, the'continelital sholf, CVrotif, them, within the territorial sea of the'l and fishing and conservation of living resouro~ 'Fa'4:l state. This would mean that vessels could I of thle high seas.2 However, these convent oreW fill Ntuaverse these straits in innocent passage; I did not resolve the question of the I)relt(Itl of f~ft'iprtheore, there is 'no established right of the' territorial sea or the precise otiter l11imofI-lok1t lisae or icati earpc t lit) continental shelf. With respect to the f1iiiw all straits within'territorial wvaters. In the question at second, unsucaessful, (conference is1rwofnnycuteshsisotasifcor lheld inl 1960, at which a U.S. compromnise, 11.( 0~t`Miafio. The freedom of thle seas would have postal of a 6-mile, territorial sea and all ftdi. fa ir mnore restrict" "eanin indeed if rights tional 6-mile exclusive fishery zone failed( ])Y qt tratverse straits-are not clear and secure. A' one vote to obtain thle necessary two-thii'di ~ipinitic-mt number 'of'nations agree that this rnajority. Th U'nied tts a osqcil')utem requires solution if a 12-mile terrn- dh rrdt he UntradStio ts positon ethatl 3 nt~ial wea is to be accepted. 'is the maximum breadth of the territorial Ai additional problem directly affected by~ ad he niubreadt tof the tradtonlpsiion talot,~mh It hans accepted'a 12-mile exclusive fishore 0n 4. 1,r)(dt~h of the territorial sea is the conduct In view of the overwhelming practice of stah fngtihiiMn'nain o o e but does not recognize coastal state j urisdipfi'oev htmrecnevtino uh ihre over ~sheries beyond That limitadequately j:rotects their interests. Laro->and -~ statein our"ViW, iS oblged rec-mobile high seas fleets can move in on an area, WIl'V1610 t tti urvei'bi to re-seriously .overfish the stocks, and niove on. Whis f-l;e territorial, seas exceeding '3 miles, there cr lc~ng lie uniorm areemet on his fgure.can result in econaipic dislocations in a eblistal ii icit li0n tatdes claifm agemn oiles anther 15gbe- state, or a region .tliereof, which is dependent onl such fisheries I-or its livelihood. We believe NVOIe 4 anld to miles, and about 40 claim 12 tsecomipeures aecotiutdg *4 iiriF xjimo over sthwaters beyodi1 smie sor nificantly to the trend toward expanded uni- 4 jcii~'ictin ovr th watrs byond12 mleslateral jurisdictional claims and that many 114111111V, flishories jurisdiction but in some casesI full tferritorial jurisdiction as far out as,200 ntoswl nitta hs rbesb el F with in conjunction :with agreement on the jlirven this state of affairs, it can readily lie bedho h ort~isa the Presdent ponted ou in hisforeignAs a, result of our 'ibonsiiltations we believe ovil,1I l iegPe ssd n ptoday, that itl is frinthle time is right. fi'the conclusion of a new jiclu insaetornt lto ece international treaty fixing the limitation of the i'rlri'c tt.ieraiona areement be trrtra eache,~Ml~sud poiigfr -li thre breadvth of the territorial sea to head ofT tertilsaa'1'mlsadpoiigfr' tlo~tlcrat o esclatng ntionl clims verfreedom of '6~ansit 'through and over intr- tre thea altn natonl clir ve national straits d.~,pareluflly defined prefer-' ltthe course, of the last 2 years the United, Iential fishing rig'btW.t r coastal states on the Dea(, 1 h~ig seas.W nedtwokcslyihte -; 1tii hs consulted with a, large number of Wayter inatend:s t'o w reourk vioelywst th 1;altk)Iis regarding the desirability of makingk~ aI ayohrntos'wosaeorvesh rcw atemp to chiee wiesprad areemnt these matters at the IU.N. this fall as a matter' -.-i the breadth of the territorial sea and hasofigprrty tmhilte, h price of these discussions in the I!Aee..i THIRD U.N. CONFERENCE ON THE LAW OF THE SEA SECOND COMMITTEE, 5TH MEETING 17 July 1974 Territorial sea (continued) I~regard to the exploration and exploitation of the natural re- [Agenda itemr 2] oulrces or over the resources thelntlsccve within anl area not Mr. CAERO DRG ES (rail) said that th draexceeding 200 miles in breadth. which would be called the i. Mr. CAI.ERO RODRIGUES (Brazil) said that the dra%, patrimonial sea or the exclusive economic/ione. N. s hle under- before the Committee, which provided that the sovereignty ( plod it moni sea o the exlegations that acclted C t. s he aider-cd .toad it. most ol the delegations that accelted that view agreed the coastal State gave it jurisdiction over a belt of sea adjacent that the coastal Slate would have so cl ign rights in the zone to its land territory, were only restating existing international bclween the limits of its territorial sea and the limit of its law. Another principle of international law was that the econmic zone. lowever, other delegations. which were breadth of the territorial sea was established by the coastal willing to accept the concept of the patrimonial sea or the State itself. There was no rule of customary or conventional e xclusive economic zone, clearly wished that belt to be consid- international law which established either the breadth of the crcd a part of the high seas in which the coastal State would territorial sea or a limit beyond which States could not estab- have only certain specified prefera ntial r ights, not as a projec- lish for themselves the breadth of that sea. When the old cus- tion of its sovereignty but as a kind of contractual concession tomary limit of 3 miles had become obsolete and wider limits in a foreign area. had become customary, three international conferences had been unsuccessful in establishintg new limits. 5. Lastly, there were others which considered that the belt of adjacent sea up to 200 miles in breadth was under the jurisdic- 2. When several countries, including his own, had established tion of the coastal State as a consequence of its sovereignty. a 200-mile limit for their territorial sea, they had taken into l:or those delegations there were only two fundamental Zones account three legal considerations: first, a territorial sea was in the oceans, a national sea, extending tip to 200 miles in recognized by international law; secondly, internatiohal law breadth, and an international sea beyond that limit. Most of empo;,'ered the coastal State itself to establish the breadt'h of the countries which held that view called the waters adjacent to its territorial sea; thirdly, international law did not set a max- the shores of the coastal State its territorial sea. The proposal imum limit for the breadth of the territorial sea. The 200-mile submitted by the representative of Ecuador at the previous limit had therefore been established within the framework of meeting (A/CONF.62/C.2/L. 10) was designed to make those existing international law. The extensions had been made with views clear, and the Brazilian delegation therefore supported it. a view to giving effect to the Declaration of Lima adopted in However, the concept of the territorial sea upheld by those 1970,1 which recognized, inter alia, the inherent right of the countries was different from that of the traditional territorial coastal State to "explore, conserve and exploit the natural sea. Some of the countries which claimed a 200-mile limit for resources of the sea adjacent to its coasts and the soil and their territorial sea were willing to recognize freedom of navi- subsoil thereof, likewise of the continental shelf and its subsoil, gation and overflight in that zone; others, of which Brazil was in order to promote the maximum development of its economy one, had liberalized their cpJSept of innocent passage so its to and to raise the level of living of its people". Neither the Decla- ensure that there would be no impediment to the passage of ration of Lima nor the Declaration of Montevideo of 19702 ships and aircraft, a necessity for international navigation, laid down a 200-mile limit as a general criterion. Both stated transport and communications. that the limits must be set in accordance with the geographical, 6. One of the main handicaps with which delegations had to geological and biological conditions of the area and the need deal was the fact that they were trying to work out new con- for a rational utilization of its resources. cepts using a traditional terminology. Although the list of sub- 3. The "legitimate priority" of the interests of the coastal jects and issues before the Conference (see A /CONF.62 /29) States mentioned in the Declaration of Montevideo was now mentioned the territorial sea and the contiguous zone before universally recognized. Few delegations, if any, would deny the I the high seas, and also mentioned the economic zone, it seemed need to spell out in the convention the Conference was to adopt likely that the Conference would end tup by defining only two the rights of the coastal State over an adjacent sea-belt up to broad zones, each under a precise legal regime, the interna- 200 miles in breadth. tional sea and the national sea. For one as for the other an 4. Some delegations held the view that a 12-mile limit and tle adequate set of legal rules had to be established, and even the traditional regime should be accepted. In that belt of sea the traditional freedoms of the seas would have to be subject to coastal State was sovereign and it had only to allow innocent regulation in the international zoiee. the common interest in passage of foreign ships. For the zone beyond the 2-mile limi such activities as navigation, fisheries, the exploitation of min- there were various schools of thought. In the view of some ral resources and the control of pollution would impose delegations, the coastal State would have sovereign rights with mandatory norms of-behaviour on all States exercising any activity in that zone. Without prejudice to the competence of I Docoument A/AC.138128 of 14 August 1970. international bodies, theresidual powers not falling within the 2Document A/AC.138/34 of 30 April 1971. set of norms he had mentioned could be exercised by all States. In the same way, the rights and duties of States in the national maritime zone would have to be spelt out. In his view, it was possible to prescribe norms that would guarantee the legitimate interests of both the coastal State and of third States with regard to navigation, fisheries, the laying of cables and pipe- -22- lines and any other reasonable matter. X. The comprehensive approach that he had outlined might be summarized as follows. First, the convention should define as specifically as possible rights and duties for the whole of the ocean space. Secondly, such rights and duties should be basi- cally different for the two zones, national and international. Thirdly, in a national maritime zone the residual powers should,bc reserved for the coastal State; in the international maritime zone they should belong to all States. The Committee should bend its efforts to framing a specific definition of the rights and duties of each State in each of the two maritime zones. That should be done without attempting to tie the rights and duties to any particular basic position held by delegations. Only after the rights and duties had been defined should an attempt be made to fit them into a general framework, which should encompass as many of the basic positions as possible. The Committee should have in mind Hans Kelsen's distinction between norms of international law, which were statements of mandatory behaviour, and rules' of international law, which were legal concepts used to describe international law.3 If the Conference was to he successful in its task, it should go straight to the heart of the matter and concentrate on drafting a truly normative order for the sea. DEP'T OF DEFENSE PRESS RELEASE 25 February 1970 United States Outlines Position on Limit of Territorial, Sea jypartrnent Statement Tha United States Government has recently Sen discussing the question of the proper limit .or territorials seas with many nations. Wide- srtad disagreement on the proper breadth of :6 territorial sea makes it urgent that the com- nity of nations attempt once again to fix a ait, 'he United States supports the 12-mile. I las the most widely accepted one, but only iFa treaty can be negotiated which will achieve widespread international acceptance and will provide for freedom of navigation through and over international straits. At the same time the United States will attempt to accommodate the interests of coastal states in the fishery re- sources off their coasts. The United States Governmenit hopes this initiative will be successfull. Until that objective is realized, the United States will continue to, adhere to the position that it is not obliged to recognize territorial seas which exceed 3 miles. -23- U.N. Doc. A/CONF. 62/WP. 8/REV.1/PART II 3d Official Records 5, 154-56 (Informal Single Nego tiating Text) Chapter I: The territorial sea and the contiguous zone Article 5 SECTION 1. GlNRALt. : . ;E In the case of islands situated on atolls or of islands having Articler I fringing reefs, the bascline'ifor measuring the breadth of the territorial sea is the seaward low-water line of the reef, as Juridical statu,' of tqhe erritorial sea. of the air space over shown by the appropriate symbol on official charts. the territorial sea and of' it.v bed and subsioll ; ""l. The sovereignty of a coastal State extends beyond its land territory and internal waters, and in the case of an "''1itle 6 a]rchipelagic Slate, its archipelagic waters, over an adjacent ' belt of sea described as the territorial sea. Strariglt ha.velines 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoils. 1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its 3. The sovereignty over the territorial sea is exercised immediate vicinity, the method of straight baselines joining subject to the present Convention and to other rules of appropriate points may be employed in drawing the baseline international law, from which the breadth of the territorial sea is measured, S.CTION 2. LIMITS OF THE 'IFIRRtITORIAI. SEA 2. Where because of the presence of a delta and other Article 2 natural conditions the coastline is highly unstable, the ap. Article 2 propriate points may be selected along the furthest seaward l extent of the low-water line and, notwithstanding subsequent Br0ead1th 9 tile territoried Seel regression of.the low-water line, such baselines shall remain effective until changed by; the/coastaf State in accordance Every State has the right to establish the breadth of its effective ntil changed b coasta ae in aordane territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the present Convention, .. 3. The drawing of such i'aselines must not depart' to any a- ppreciable extent from the general direction. of the coast, and the sea areas lying within tholines must be sufficiently closely Article 3 linked to the lhind domajil"to be subject to the r6gi'me of' internal- waters. ,i Outer limnit of the te,rritorial se a The outer limit of the territorial sea is the line every point of 4. Straight baselines shall not be drawn to and froa which is at a distance from the nearest point of the baseline low-tide elevations, unless lighthouses or similar installations equal to the breadth of the territorial sea. which are permanently above sea level have been built .on them or except in instances where the drawingof baselines to and from Such elevations h's received general international Artickle 4 recognition.: :aIseln' . Where 'the metho::f tralight baselines is applicable under paragraph I acci hun,,tairy be taken, in determining Except where otherwise'pro',ided'in the'present Conven- p.rticular basclines, of ecnic interests peculiar to the tion, the normal baseline fo~r measuring the breadth of the region concerned, the reahity.nd the inportance of which are territorial sea is the low-water line along the coast as marked clearly evienced by a 1g ige. on large-scale charts officially recognized by the coastal - State. ~ ' . , : . , . M -24- � Article 13 6. 'Fhe system of straight baselines may not be applied by ; 13 a State in such a manner as to cut off from the high seas or the C),lrrtij jl ( j( me is frr dterninilg hbselines czclusive economic zone the territorial sea of another State. The coastal State may determine baselines in turn by any of the methods provided for' in the foregoing articles to suit Artiicle 7 different conditions. nllte/ 'l iit'r.s ' I. F.xcept as provided in Chapter VII, waters on the Article 14 I;n(lwal d side of the baseli ne of th tterritorial sea form part of the intIernal waters of the Statce. Delimitation of the ferritirn'il sea between States with opposite or aidjacent coasts 2. Where the establishment of a straight baseline in tcecordance with article 6 htas the effect of enclosing as Where the coasts of two States are opposite or adjacent to internal waters areas which had not previously been con- each other, neither of the two States is entitled, failing sidered assuch, a right of innocent passage as provided in the agreement between them to the contrary, to extend its present C'onverntion shall exist in those waters. territorial sea beyond th&emedian line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two A r~i clc 8 States is measured. This':article does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States rMoutthls 9frim'vers in a way which is at variance with this provision. If a river flows directly into the sea, the baseline shall be a " straight line across the mouth of the river between points on the low-tide line of its banks. Articwle IS Articleh, 10 Charts and lis.ts e ,eographic-al co-ordinates Ports r1. The baselines for .mesurina the breadth of the territo- : ll mtined in .ccbrdance with articles 6, 8 and 9, or For the purpose of delimiting the territorial sea, the ithe limits derived tWhft4m, and the lines of delimitation outermost permanent harbour works which form an integral drawn in'accordanci'with articles II and 14. shall he shown part of the harbour system are regarded as forming part of the on charts of a scale or scals adequate for determining them. coast. Offshore installations and artificial islands shall not be Alternatively, a list of geographical co-ordinates of points, considered as permanent harbour works. . specifying the geodetic datum, may be substituted, 2: The coastal State sh1ll give due publicity to such chart s Artiicl~e 1or lists of geographical co-ordinates and shall deposit a copy of each such chart or list 'with the Secretary-General of the United Nations. Rooadsteds .e :. Roadsteads which are normally used for the loading, unloading, and anchoring of ships, and which would other- wise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea. 'i::Article 12 ' Low-tid(le o/elvations 1. A low-tide elevaion is a naturally formed area 'of land which is surrounded by �and above water. at low tide but submerged at high tide.': Where a low-tide elevation is situated wholly o� partly at a dist'ance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water':, line on that elevation may be used as the baseline for measuring the breadth fd the terr-itorial sea. 2. Where a low-tidb!elevation is wholly situated at a distance exceedihg the$; eadth of the territorial sea from the mainland or an island,: it has no territorial sea of its own. , -25- FISHERIES CASE (UNITED KINGDOM V. NORWAY) /T9517 I.C.J. Rep. 116, 124-33, 138-43 The facts which led the United Kingdom to bring the case before the Court are briefly as follows.' The historical facts laid before the Court establish that as the result of complaints from the King of Denmark and of Norway, at the beginning of the seventeenth century, British fishermen refrained from fishing in Norwegian coastal waters for a long period, from I6I6-I6I8 until i906. In I9O6 a few British fishing vessels appeared off the coasts of Eastern Finnmark. From I9o8 onwards they returned in greater numbers. These were trawlers equipped with improved and power- ful gear. The local population became perturbed, and measures were taken by the Norwegian Government with a view to specifying the limits within which fishing was prohibited to foreigners. The first incident occurred in I9IJ when a British trawler was seized and condemned for having violated these measures. Negotia- tions ensued between the two Governments. These were interrupted by the war in I9I4. From I922 onwards incidents recurred. Further conversations were initiated in' 1924. In 1932, British trawlers, extending the range of their activities, appeared in the sectors off the Norwegian coast west of the North Cape, and the number of warnings and arrests increased. On July 27th, 1933, the United Kingdom Government sent a memorandum to the Norwegian Government complaining that in delimiting the territorial sea the Norwegian authorities had made use bf unjustifiable base-lines. On -July I2th, 1935, a Norwegian Royal Decree was enacted delimiting the Norwegian fisheries zone north of 666 28.8' North latitude. The United Kingdom made urgent representations in Oslo in the course .of which the question of referring the dispute to the Per- manent Court of International Justice was raised. Pending the result of the negotiations, the .Norwegian Government made it known that Norwegian fishery patrol -vessels would deal leniently with foreign vessels fishing a certain distance within the fishing limits, In I948,. since no agreement had been reached, the Norwegian 'Government abandoned its lenient enforcement of the 1935 Degree': !mciaents-imrbtme m-ie'-'aid-'riii-f frieqeni; -A consideirane iumber ofBnti.} trawlers were arrested and condemned. It wi fhen that-the'Inited Kingdom Governrent instituted the .peset proceedings :. .-:.) -: , j' : . . i%., -26- "' The Norwegian Royal Decree of July I2th, I935, concerning the delimitation of the Norwegian fisheries zone sets out in the preamble the considerations on which its provisions are based. In this con- riection it refers to "well-established national titles of right", "the geographical conditions prevailing on the Norwegian coasts", "the safeguard of the vital interests of the inhabitants of the northern- most parts of the country"; it further relies on the Royal Decrees of February 22nd, I8I2, October I6th, I869, January 5th, I88I, and September 9th, I889. The Decree provides that "lines of delimitation towards the high sea of the Norwegian fisheries zone as regards that part of Norway which is situated northward of 66� 28.8' North latitude .... shall run. parallel with straight base-lines drawn between fixed points on the mainland, on islands or rocks, starting from the final point of the. boundary line of the Realm in the easternmost part of the Varangerfjord and going as far as Trxena in the County of Nord- land". An appended schedule indicates the fixed points between which the base-lines are drawn. - The subject of the dispute is clearly indicated under point 8 of the Application instituting proceedings: "The subject of the dispute is the validity or otherwise under international law of the lines of .delimitation of the Norwegian fisheries zone laid down by the Royal :Decree of 1935 for that part of Norway which is situated northward of 660 28.8' North latitude." And further on: " .... the question at issue between the two Governments is whether the lines prescribed by the Royal Decree of 1935 as the base-lines for the delimitation of the fisheries zone have or have not been drawn in accordance with the applicable rules of international law". Although the Decree of July I2th, I935, refers to the Norwegian fisheries zone and does not specifically mention the territorial sea, there can be no doubt that the zone delimited by this Decree is none other than the sea area which Norway considers to be her territorial sea. That is how the Parties argued the question and that is the way in which they submitted it to the Court for decision. The Submissions presented by the Agent of the Norwegian Government correspond to the subject of the dispute as' indicated in the Application. The propositions formulated by the Agent of the United Kingdom Government at the end of his first. speech and revised by him at the end of his oral reply under the heading of "Conclusions" are more complex in character and must be dealt with in detail. :: o~int~s I and z of these' "Conclusions" refer to the extent of Norway's territorial sea. This question is not the subject of the tresent dispute. In fact, the 4-mile limit claimed by Norway was. acknowledged by the United Kingdom in the course of the proceed- . Points i2 and If appear to be real -Submissions which accord �ith'the United Kingdorm's conception of international law as set out under points 3 to I. 'Points 3 to II appear to be a set of propositions which, in the form of definitions, priciples or rules, purport to justify certain conten- tions and do not constitute a precise and direct statement of a claim. The subject of the dispute being quite concrete, the Court cannot entertain the suggestion made by the Agent of the United Kingdom Government at the sittingof October ist, i951, that the Court should deliver a Judgment which for the moment would confine itself to adjudicating on the definitions, principles or rules stated, a sugges- tion which, moreover, was objected to by the Agent of the Norwe- gian Government at the sitting of October 5th, I95I. These are elements which might furnish reasons in support of the Judgment, but cannot constitute the decision. It further follows that even understood in this way, these elements may be taken into account only in so far as they would appear to be relevant for deciding the sole question in dispute, namely, the validity or otherwise under international law of the lines of delimitation laid down by the i935 Decree. -27- Point 14, which seeks to secure a decision of principle concerning Norway's obligation to pay to the United Kingdom compensation in respect of all arrests since September I6th, I948, of British fishing vessels in, waters found to be high seas, need not be considered, since the Parties had agreed to leave this question to subsequent settlement if it should arise. The claim of the United Kingdom Government is founded on what it regards as the general international law applicable to the ! delimitation of the Norwegian fisheries zone. .The Norwegian Government does not deny that there exist rules of international law to which this delimitation must conform. It contends that the propositions formulated by the United Kingdom Government in its "Conclusions" do not possess the character attributed to them by that Government. It further relies on its own system of delimitation which it asserts to be in every respect in conformity with the requirements of international law.: ! The Court will examine' iri turn these various aspects of the claim of the United Kingdom and of the defence of the Norwegian Government, ': ': i '. * .:The coastal zorne' concerned in the dispute is of considerable ,length. It lies north af latitude 66� 28.8' N., that is to. say, north 'of.the Arctic Circle, and' it includes the coast of the mainland of Norway and all the islands, islets, rocks and reefs, known by the Iname of' the "skjaergaatd" (literally, rock rampart), together with all Norwegian internal and territorial waters. The coast of the main- land, which, without taking any account of fjords, bays and minor indentations, is over I,560 kilometres in length, is of a very distinct- ive configuration. Very broken along its whole length, it constantly opens out into indentations often penetrating for great distances inland: the Porsangerfjord, for instance, penetrates 75 sea miles inland. To the west, the land configuration stretches out into the sea: the large and small islands, mountainous in character, the islets, rocks and reefs, some always above water, others emerging only at low tide, are in truth but an extension of the Norwegian mainland. The number of insular formations, large and small, which make up the "skjergaard", is estimated by the Norwegian Govern- ment to be one hundred and twenty thousand. From the southern V extremity of the disputed area to the North Cape, the "skjmergaard" lies along the whole of the coast of the mainland, east of the North Cape, the "skjaergaard" ends, but the coast line continues to be broken by large and deeply indented fjords. Within the "skjargaard", almost every island has its large and its small bays; countless arms of the sea, straits, channels and mere waterways serve as a means of communication for the local lIpopula- tion which inhabits the islands as it does the mainland. The coast of the mainland does not constitute, as it does in practically all other countries, a clear dividing line between land and sea. What matters, what really constitutes the Norwegian coast line, is the outer line of the "skjmergaard". The whole of this region is mountainous. The North Cape, a sheer rock little more than 300 metres high, can be seen from a considerable distance; there are other summits rising to over a thousand metres, so that the Norwegian coast, mainland and "skjaergaard", is visible from far off. Along the coast are situated comparatively shallow banks, verit- * able under-water terraces which constitute fishing grounds where fish are particularly abundant; these grounds were known to Nor- wegian fishermen and exploited by them from time immemorial. Since these banks lay within the range of vision, the most desirable fishing grounds were always located and identified by means of a the method of alignments ("meds"), at points where two lines drawn between points selected on the coast or on islainds intersects 1d. -28- In these barren regions the inhabitants of the coastal zone derive their livelihood essentially from fishing. Such are the realities which must be borne in mind in appraising the validity of the United Kingdom contention that the limits of the Norwegian fisheries zone laid down in the 1935 Decree are contrary to international law. The Parties being in agreement on the figure of 4 miles for the breadth of the territorial sea, the problem which arises is from what base-line this breadth is to be reckoned. The Conclusions of the United Kingdom are explicit on this point: the base-line must be low-water mark on permanently dry land which is a part of Norwe- gian territory, or the proper closing line of Norwegian internal ,waters. The Court has no difficulty in finding that, for the purpose of measuring the breadth of the territorial sea, it is the low-water mark as opposed to the high-water mark, or the mean between the two tides, which has generally been adopted in the practice of States. This criterion is the most favourable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory. The Court notes that the Parties agree as to this criterion, but that they differ as to its application. The Parties also agree that in the case of a low-tide elevation (drying rock) the outer edge at low water of this low-tide elevation may be taken into account as a base-point for calculating the breadth of the territorial sea. The Conclusions of the United Kingdom Government add a condition which is not admitted by Norway, namely, that, in order to be taken into account, a drying rock must be situated within 4 miles of permanently dry land. However, the Court does not consider it necessary to deal with this question, inasmuch as Norway has succeeded in proving, after both Parties had given their interpretation of the charts, that in fact none of the drying rocks used by her as base points is more than 4 miles from permanently dry land. The ('ourt finds itself obliged to decide whether the relevant low- water mark is that of the mainland or of the "skjiergaard". Since the mainland is bordered in its western sector by the "skjaergaard", which constitutes a whole with the mainland, it is the outer line of the "skjaergaard" which must be taken into account in delimiting the belt of Norwegian territorial waters. This solution is dictated by geographic realities. ,Three methods have been contemplated to effectithe application of the low-water mark rule. The simplest would appear to be the method of the trac. parallle, which consists of drawing the outer limit of the belt of territorial waters by following the coast in all its sinuosities. This method mays be applied without difficulty to an ordinary coast, which is not too broken. Where a coast is deeply indented and cut into, as is that of Eastern Finnmark, or where it is bordered by an archipelago such as the "skjargaard" along the western sector of the coast here in question, the base-line becomes independent of the low-water mark, and can only be determined by means of a geometric construction. In such circum-i stances the line of the low-water mark can no longer be put forward as a rule requiring the coast line to be followed in all its sinuosities; nor can one speak of exceptions when contemplating so rugged'a coast in detail. Such a coast, viewed as a whole, calls for the application of a different method. Nor can one characterize as exceptions to the rule the very many derogations which would be necessitated by such a rugged coast. The rule would disappear under the exceptions. -29- It is true that the experts of the Second Sub-Committee of the Second Committee of the 1930 Conference for the codificationi of international law formulated the low-water mark rule somewhat strictly ("following all the sinuosities of the coast"). But they were at the same time obliged to admit many exceptions relating to bays, islands near the coast, groups of islands. In the present case this method of the trace parallele, which was invoked against Norway in the Memorial, was abandoned in the written Reply, and later in the oral argument of the Agent of the United Kingdom Government. Consequently, it is no longer relevant to the case. "On the other hand", it is said in the Reply, the courbe taingente-or, in English, 'envelopes of arcs of circles'-method is the method which the United Kingdom considers to be the correct one". The arcs, of circles method, which is constantly used for deter- mining the position of a point or object at sea, is a new technique in so far as it is a method for delimiting the territorial sea. This technique was proposed by the United States delegation at the I930 Conference for the codification of international law. Its purpose is to secure the application'of the principle that the belt of territorial waters must follow the line of the coast. It is not obligatory by law, as was admitted by Counsel for the United Kingdom Government in his oral reply. In these circumstances, and although certain of the Conclusions of the United Kingdom are founded on the application of the arcs of circles method, the Court considers that it need not deal with these Conclusions in so far as they are based upon this method. The principle that the belt of territorial waters must follow the general direction of the coast makes it possible to fix certain criteria valid for any delimitation of -the territorial sea; these criteria will be elucidated later. The Court will confine itself at this stage to noting that, in order to apply this principle, several States have deemed it necessary to follow the straight base-lines method and that they have not encountered-objections of principle by other States. This method consists of selecting appropriate points on the lQw-water rniark arind drawing straight lines between them. This has been done, not only in the case of well-defined bays, but also in cases of minor curvatures of the coast line where it was solely a question of giving a simpler form to the belt of territorial waters. It has been contended, on behalf of the United Kingdom, that Norway may draw straight lines only across bays. The Court, is unable to share this view. If the belt of territorial waters must follow the outer line of the "skjargaard", and if the method of straight base-: linps must be admitted in certain cases, there is no valid reason to' 'draw them only across bays, as in Eastern Finnmark, and not also' to draw them between islands, islets and rocks, across the sea areas separating them, even when such areas do not fall within the con- ception of a bay. It is sufficient that they should be situated between the island formations of the "skjoergaard", inter Lauces terrarumn. The United Kingdom Government concedes that straight lines, regardless of their length, may be used only subject to the conditions set out in point 5 of its Conclusions, as follows: "Norway is entitled to claim as Norwegian internal waters, on historic grounds, all fjords and sunds which fall within the concep- tion of a bay as defined in international law (see No. (6) below), whether the proper closing line of the indentation is more or less g than ro sea miles long." - -30- A preliminary remark must be made in respect of this point. In the opinion of the United Kingdom Government, Norway is entitled, on historic grounds, to claim as internal waters all fjords and sunds which have the character of a bay. She is also entitled on historic grounds to claim as Norwegian territorial waters all the waters of the fjords and sunds which have the character of legal straits (Conclusions, point 9), and, either as internal or as terri- torial waters, the areas of water lyifg between the island fringe and the mainlandll (point II and second alternative Conclusion 1I). By "historic waters" are usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title. The United Kingdom Government refers to the notion of historic titles both in respect of territorial waters and internal waters, considering such titles, in both cases, as derogations from general international law. In its opinion Norway can justify the claim that these waters are terri- torial or internal on the ground that she has exercised the necessary jurisdiction over them for a long period without opposition from other States, a kind of possessio longi ternporis, with the result that her jurisdiction over t.hese waters must now be recognized although it constitutes a derogation from the rules in force. Norwegian sovereignty over these waters would constitute an exception, historic titles justifying situations which would other. wise be in conflict with; international law.. As has been said, the United Kingdoim Government concedes :that Norway is entitled .t claim as internal waters all the waters of fjords and sunds which fall within the conception of a bay as -defined in international law whether the closing line of the inden- tation is more or less than ten sea miles long. But the United Kingdom Government concedes this only on the basis of historic title; it must therefore be taken that that Government has not abandoned its contention that the ten-mile rule is to be regarded as a rule of international law. In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Conse- quently, the ten-mile rule has not acquired the authority of a general rule of international law. In any event the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast. The Court now comes to the question of the length of the base- lines drawn across the waters lying between the various formations 'of the "skjaergaard". Basing itself on the analogy with the alleged general rule of ten miles relating to bays, the United Kingdom Government still maintains on this point that the length of straight lines must not exceed ten miles. In this connection, the practice of States does not justify the formulation of any general rule of law. The attempts that have been made to subject groups of islands or coastal archipelagoes to conditions analogous to the limitations concerning bays (distance between the islands not exceeding twice the breadth of the terri- torial waters, or ten or twelve sea miles), have not got beyond the stage of proil'sals. Furthermore, apart from any question of limiting the lines to ten miles, it may be that several lines can be envisaged. In such cases the coastal State would seem to be in the best position to appraise the local conditions dictating the selection. Consequently, the Court is unable to share the view of the United Kingdom Government, that "Norway, in the matter of base-lines, now claims recognition of an exceptional system". As will be shown 'later, all that the Court can see therein is the application of general international law to a specific case. -31- :'The Conclusions of the United Kingdom, points 5 and 9 to II, -referfto waters situated between the base-lines and the Norwegian ':ainland. The Court is asked to hold that 'on historic grounds t;iteilwaters belong to 'Norway, but that they- are divided into tw:: categories: territorial and internal waters, in' accordance Vitif two criteria.which the Conclusions regard as well founded iiinfternational law, the waters falling within the conception df i:'ba y being deemed to be internal waters, and those having the c.ixracter of legal straits being deemed to be territorial waters. :'*Aus has been conceded by the United Kingdom, the "skjaer-. "aard" constitutes a whole with the Norwegian mainland; the Wfaters between the base-lines of the belt 'of territorial waters and 'ithe mainland are internal waters. However, according to the argument of the United Kingdom a portion of these waters con- stitutes' territorial waters. These are inter alia the waters followed by the navigational route known as the Indreleia. It is contended that since these waters have this character, certain consequences arise with regard to the determination of the territorial waters at the end of this water-way considered as a maritime strait. 'The Court is bound to observe that the Indreleia is not a strait at all, but rather -a navigational route prepared as such by means of artificial aids to navigation provided by Norway. In these ,.circumstances the Court is unable to accept the view that the Indreleia, for the purposes of the present case, has a status different 'from that of the other waters included in the "skjaergaard". ': Thus the Court, confining itself for the moment to the Con- -:clusions of the United Kingdom, finds that the Norwegian Govern- ment in fixing the base-lines for the delimitation of the Norwegian fisheries zone by the 1935 Decree has not violated international law. * * It, does not at all follow that, in the absence of rules having the technically precise character alleged by the United Kingdom Government, the delimitation undertaken by the Norwegian Government in I935 is not subject to certain principles which make it possible to judge as to its validity under international law. The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that tie'i act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon Jt j.on.al law. "":'.:i this connection, certain basic considerations inherent in the iiatwlre of the territorial sea;,bring to light certain criteria which, th6Ugi not entirely precise, can 'provide courts, with an adequate 'basis ;fr their decisions,; hich 'can be adapted to. the diverse' )faisl'n question,' :' .:mong these considerations, some reference must be made to': ithec0lose dependence of the territorial sea upon the land domain. It is the land which confers upon the coastal State a right to the wafers.off its coasts. It follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation' to practical needs and local requirements, the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast. -32- Another fundamental consideration, of particular importance 'in this case, is the more or less close relationship existing between certain sea areas and the land formations which divide or surround them. The real question raised in the choice of base-lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters. This idea, which is at the basis of the determination of the rules relating to bays, should be liberally applied in the case of a coast, the geographical con- figuration of which 'is as unusual as that of Norway. Finally, there is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain economic interests peculiar to a region, the reality and impdrtance of which are clearly evidenced by a long usage. Norway puts forward the 1935 Decree as the application of a traditional system of delimitation, a system which she claims to be in complete conformity with international law. The Nor- wegian Government has referred in this connection to an historic title, the meaning of which was made clear by Counsel for Norway at the sitting on October i2th, I95I: "The Norwegian Government does not rely upon history to justify exceptional rights, to claim areas of sea which the general law would deny; it invokes history, together with other factors, to justify the way in which it applies the general law." This conception of an historic title is in con- sonance with the Norwegian Government's understanding of the general rules of international law. In its view, these rules of international law take into account the diversity of facts and, therefore, concede that the drawing of base-lines must be adapted to the special conditions obtaining in different regions. In its view, the system of delimitation applied in 1935, a system. characterized by the use of straight lines, does not therefore infringe the general law; it is an adaptation rendered necessary by local conditions. IIn the light of these considerations, and in the absence of con- vincing evidence to the contrary, the Court is bound to hold that the Norwegian authorities applied their system of delimitation con- sistently and uninterruptedly from i869 until the time when the dispute arose. .. From the standpoint of international law, it is now necessary tqo consider whether the application of the Norwegian system encoun- tered any opposition from foreign States. Norway has been in a position to argue without any contra- diction that neither the promulgation of her delimitation Decrees in 1869 and in I889, nor their application, gave rise to any opposition on the part of foreign States. Since, moreover, these Decrees constitute, as has been shown above, the application of a well-defined and uniform system, it is indeed this system itself which would reap the benefit of general toleration, the basis, of an historical consolidation which would make it enforceable as [ against all States. lThe general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of more than sixty years the United Kingdom Government itself in no way contested it. One cannot indeed consider as raising objections the discussions to which the Lord Roberts incident gave rise in I9Ii, for the controversy which arose in this connection related to two questions, that of the four-mile limit, and that of Norwegian sovereignty over the Varangerfjord, both of which were uncon- nected with the position of base-lines. It would appear that it was only in its Memorandum of July 27th, .I933, that the United 'Kingdom made a formal and definite protest on this point. The United Kingdom Government has argued that the Nor-: wegian system of delimitation was not known to it and that the -33- system therefore lacked the notoriety essential to provide the basis of an historic title enforceable against it. The Court is unable to accept this view. As a coastal State on the North Sea, greatly interested in the fisheries in this area, as a maritime Power traditionally concerned with the law of the sea and concerned particularly to defend the freedom of the seas, the United Kingdom could not have been ignorant of the Decree of I869 which had at once provoked a request for explanations by the French Gov- ernment. Nor, knowing of it, could it have been under any misappre- hension as to the significance of its terms, which clearly described it as constituting the application of a system. The same obser- vation applies a fortiori- to the Decree of I889 relating to the delimitation of Romsdal and Nordm6re which must have appeared to the United Kingdom as a reiterated manifestation of the Norwegian practice. Norway's attitude with regard to the North Sea Fisheries (Police) Convention of I882 is a further fact which must at once have attracted the attention of Great Britain. There is scarcely any fisheries convention of greater importance to the coastal States of the North Sea or of greater interest to Great Britain. Norway's refusal to adhere to this Convention clearly raised the question of the delimitation of her maritime domain, especially with regard to bays, the question of their delimitation by means of straight lines of which Norway challenged the maximum length adopted in the Convention. Having regard to the fact that a few years before, the delimitation of Sunnmire by the i869 Decree had been presented as an application of the Norwegian system, one cannot avoid the conclusion that, from that time on, all the elements of the problem of Norwegian coastal waters had been clearly stated. The steps subsequently taken by Great Britain to secure Norway's adherence to the Convention clearly show that she was aware of and interested in the question. The Court notes that in respect of a situation which could only be strengthened with the passage of time, the United Kingdom Government refrained from formulating reservations. The notoriety of the facts, the general toleration of the inter- national community, Great Britain's position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway's enforcement of her system against the United Kingdom. The Court is thus led to conclude that the method of straight lines, established in the Norwegian system, was imposed 'by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a constant and sufficiently long practice,. in -the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law. The question now arises whether the Decree of July iath, '"5, which in its preamble is expressed to be an application of this method, conforms to it in its drawing of the base-lines, or whether, at certain points, it departs from this method to any considerable extent. -34- � The schedule appended to the Decree of July I2th, 1935, indicates the fixed points between which the straight base-lines are drawn. The Court notes that these lines were the result of a careful study initiated by the Norwegian authorities as far back as I9II. The base-lines recommended by the Foreign Affairs Committee of the Storting for the delimitation of the fisheries zone and adopted and made public for the first time by the Decree of July I2th, 1935, are the same as those which the so-called Territorial Waters Boundary Commissions; successively appointed on June 29th, I9II, and July i2th, I912, had drawn in i912 for Finnmark and in 1913 for Nordland and Troms. The Court further notes that the Igr9 and I9I2 Commissions advocated these lines and in so doing constantly referred, as the 1935 Decree itself did, to the traditional system of delimitation adopted by earlier acts and more particularly by the Decrees of 18I2, I869 and i889. In the absence of convincing evidence to the contrary, the Court cannot readily find that the lines adopted in these circumstances by the I935 Decree are not in accordance with the traditional Norwegian system. However, a purely factual difference arose between the Parties concerning the three following base-points: 'No. zi (Vesterfallet i Gaasan), No. 27 (Tokkebaaen) and No. 39 (Nordb6en). This difference is now devoid of object. A telegram dated October Igth, I95I, from the Hydrographic Service of Norway to the Agent of the Norwegian Government, which was commun- icated to the Agent of the United Kingdom Government, has con- firmed that these three points are rocks which are not continuously submerged. Since this assertion has not been further disputed by the United Kingdom Government, it may be considered that the use of these rocks as base-points is in conformity with the traditional Norwegian system. Finally, it has been contended by the United Kingdom Govern- ment that certain, at least, of the base-lines adopted by the Decree are, irrespective of whether or not they conform to the Norwegian system, contrary to the principles stated above by the Court as governing any delimitation of the territorial sea. The Court'will consider whether, from the point of view of these principles, certain of the base-lines which have been criticized in some detail really are without justification. - ' The Norwegian Government admits that the base-lines must be fdrawn in such a way as to respect the general direction of the ,coast and that they must be drawn in a reasonable mannr United Kingdom Government contendsthat certainesoLit follow the general -direcion 'f .the .oast, -or ddo not ?fo6?tf sufficiently, closely-,;or: that they do 'notirespect the nat: 'nection existing'between certain sea areas and the Iand fions separating or surrounding them. For,these reasons, itS.]ed I that the line drawn-'is contrary to the princples which 'goiethe delimitation of the, maritime domain. ".?. The Court observes that these complaints, which assue :a "very general scope in the written proceedings, have subsequity 'been reduced. : . The United Kingdom Government has directed its criticaism ;re ;particularly against two sectors, the delimitation of wlich ihey represented as extreme cases of deviation from the general direction of the coast: the sector of Sverholthavet (between base-points iI and I2) and that of Lopphavet (between base-points 20o- And 21). The Court will deal with the delimitation of these two sectors from this point of view. -35- The base-line between points iI and I2, which is 38.6 sea miles in length, delimits the waters of the Svaerholt lying between Cape Nordkyn and the North Cape. The United Kingdom Government denies that the basin so delimited has the character of a bay. Its argument is founded on a geographical consideration. In its opinion, the calculation of the basin's penetration inland must stop at the tip of the Svamrholt peninsula (Svaerholtklubben). The penetration inland thus obtained being only II.5 sea miles, as against 38.6 miles of breadth at the entrance, it is alleged that the basin in question does not have the character of a bay. The Court is unable to share this view. It considers that the basin in question must be con- templated in the light of all the geographical factors involved. The fact that a peninsula juts out and forms two wide fjords, the Lakse- fjord and the Porsangerfjord, cannot deprive the basin of the character of a bay. It is the distances between the disputed base- line and the most inland point of these fjords, 50 and 75 sea miles respectively, which must be taken into account in appreciating the proportion between the penetration inland and the width at the mouth. The Court concludes that Svaerholthavet has- the character of a bay. The delimitation of the Lopphavet basin has also been criticized by the United Kingdom. As has been pointed out above, its criti- cism of the selection of base point No. 2I may be regarded as i abandoned. The Lopphavet basin constitutes an ,ill-defined geo- !graphic whole. It cannot be regarded as having the character of a bay. It is made up of an extensive area of water dotted with large islands which are separated by inlets that terminate in the various fjords. The base-line has been challenged on the ground that it does not respect the general direction of the coast. It should be observed that, however justified the rule in question may be, lit is devoid of any mathematical precision. In order properly''t1O Oapply the rule, regard must be had for the relation betwee!:xthe deviation complained of and what, according. to the terms.'o:tiei rule, must be regarded as the general direction of the coast4,?' fore, one cannot confine oneself to examining one sectoi :oast alone, except. in a ease of manifest abuse; nor can oneiely on the impression that may be gathered from a large scalerschazt of this sector alone. In the case in point, the divergence between the base-line and the land formations is not such that it is a dLis- tortion of the general direction of the Norwegian coast. ? ^ Even if it were considered that in the sector under review tlie .deviation was too pronounced, it must be pointed out that the Norwegian Government has relied upon an historic title'clearly referable to the waters of Lopphavet, namely, the exclusive privilege to fish and hunt whales granted at the end of the I7th cen- tury to Lt.-Commander Erich Lorch under a number of licendes which show, inter alia, that the water situated in the vicinity of the sunken rock of Gjesbaaen or Gjesboene and the fishing grounds pertaining thereto were regarded as falling exclusively within Norwegian sovereignty. But it may be observed that the fishing grounds here referred to are made up of two banks, one of which, the Indre Gjesboene, is situated between the base-line and the limit reserved for fishing, whereas the other, the Ytre Gjesboene, is situated further to seaward and beyond the fishing limit laid down in the I935 Decree. -36- These ancient concessions tend to confirm the Norwegian Gov- ernment's contention that the fisheries zone reserved before I8I2 was in fact 'much more extensive than the one delimited in I935. It is suggested that it included all fishing banks from which land was visible, the range of vision being, as is recognized by the United Kingdom Government, the principle of delimitation in force at that time. The Court considers that, although it is not always clear to what specific areas they apply, the historical data produced in support of this contention by the Norwegian Govern- ment lend some weight to the idea of the survival of traditional rights reserved to the inhabitants of the Kingdom over fishing grounds included in the I935 delimitation, particularly in the case of Lopphavet. Such rights, founded on the vital needs of the population and attested by very ancient and peaceful usage, may legitimately be taken into account in drawing a line which, moreover, appears to the Court to have been kept within the bounds of what is moderate and reasonable. As to the Vestfjord, after the oral argument, its delimitation no longer presents the importance it had in the early stages of the proceedings. Since the Court has found that the waters of the Indrelcia are internal waters, the waters of the Vestfjord, as indeed the waters of all other Norwegian fjords, can only be regarded as internal waters. In these circumstances, what- ever difference 'may' still exist between the views of the United Kingdom Government and:those of the. Norwegian Governmeintk on: this point, is negligible.:It is reduced to the question wheth!, ithe base-linep Should be drawn:.between points 45.and 46 as;fi'.xi. by the I935 Decree, or whether the line should terminate at'lt Kalsholmen lighthouse on Tenholmerne. The Court consideritai. this question is purely local in character and of secondary import.- ance, and'that its settlement should be left to the coastal State, .'For these reasons, : . ; THE COURT, - ; rejecting all submissions to the contrary, Finds by ten votes to two, . that the method employed for the delimitation of the fisheries zone by the Royal Norwegian Decree of July I2th, 1935, is not contrary to international law; and by eight votes to four, that the base-lines fixed by the said Decree in application of this method are not contrary to international law. -37- U.N. Doe. A/CONF. 62/WP. 8/REV. 1/PART II 3D Official Records 5 (Informal Single NegOtiating Text) ' j 7. If the drawing of stcicbaselines encloses a parlt of the Chapter VII. Archipelagic States J sea which has traditionally been used by an immediately adjiacent neighbouring State fbr direct access and all forms of Article 118 communication, including the laying of submarine cables and pipelines, between two or mqre parts of the territory of such Use of Terms State, the archipelagic State Whall continue to recognize and guarantee such rights of direct access and communication. For the purposes of the present Convention: 8. For the purposes 'of computing the ratio of water Io (au) 'Archipelagic State" means a State constituted land under paragraph 1, land areas may include waters lying wholly by one or more archipelagos and may include other within the fringing reefs of islands and atolls, including that islandds part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying (t) "Archipelago" means a, group of islahnds. including reefs lying on the perimeter of the plateau. parts of islands, inter-connecting waters and other natural featlures which are so closely interrelated that such islands, Artile 120 waters and other natural features form an intrinsic geographi- cal, economic and political entity' or which historically have Measuremeinr orf the breadth o.' rthe trrit'lril sent, the been regarded tas such. contiglous tone, the exclutsive econmicrt zone ranll lth contlinentrl shelf ' Articlte 119 The breadth of the terriiita1rl sea. the contiguous zone, the Arehipelapeic harseliiexs exclusive economic zone an' the contlinental shelf shall he measured from the baselines -drawn in accordance with article I. An archipelagic Stale may draw straight archipelagic 119. baselines joining the outermost points of the outermost � * islands and drying reefs of the archipelago provided that 'Aiwih 121 ; within such baselines are included the main islands and an' :, :, ireau in which the ratio of the alrea of the water to the area of Julridi'aIl sItal.s of arelpkic ,' arers, 'the o air .spe(' the land, including atolls, is between one to one and nine to over archipeltagic watetrsand of tlheir bed tiand subsoil one. ' ' 2. The length of such baselines shall not exceed 80 1. sovereignty nautical miles. except that Lup to one per cent of the total waters enclosed by the baselines, described as archipelagic number of baselines enclosing any archipelago may exceed waters, regardless of their depth or distance from the coast. that length. up to a maximum length of 125 nmiutical miles. 2. This sovereignty extends to the air space over the archipelagic waters, the bed and subsoil thereof, and the 3. The drawing of such baselines shall not depart to any acipeaic wates the bed and susoil thereof, and the appreciable extent from the general configuration of the archipelago. 3, This sovereignty is exercised subject to this Chapter, 4. Such baselines shall not be drawn to and fiom low-tide elevations, unless lighthouses or similar installations which Ar 12 are permanently above sea level have been built on themni or where a low-tide elevation is situated wholly or partly at a 'li , ,(rt distance not exceeding the breadth of the territorial sea fi-om ' : ~~~~~~the nearest island.~ ~Within its archipelagic wafers, the archipelagic State may draw closing lines for the delimitation of internal waters, in .5. The system of such baselines shall not be applied by an accordance with articles B, 9 and 10. archipelagic State in such"ii manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another Stale. 6. The archipelagic State shall clearly indicate such baselines ori charts of a scale or scales adequate for determin- ing them. The archipelagic State shall give due publicity to such charts and shall deposit a copy of each such chart with the Secrelary-General of the United Nations. -38- '.Artie 123 - zv , i 6. An archipelagic State which designates sea lanes under 1 l ~,l Vc: -3 this article may also prescribe traffic separation schemes for I; i. ia: ae n 1't. n tsc, fraditiaafishling rightis land eusfin' the safe passage of ships through narrow channels in such sea , h,:.tnar~ne ,.~ hl.Llanes. 1 7. An archipelagic State may, when circumstances re- i. Withoul prejiudiceti article 121, archipelagic States / quire, after giving due publicity thereto, substitute other sea shall respect c isliing agreements with other States and shall lanes or traffic separation schemes for any sea lanes or traffic reccogniie Ira;liliona;ll fishing rights aind other legitimate ac- ' separation schemes previously designated or prescribed by it. tivitics of [he imcediatefy, adjacent neighbouring States in certain creas falling with[,"archipelagic waters'. The terms ceritaincas oT ~l'aimnlcgiatlj in''archi eligi waters. STheterms i8. Such sea lanes and traffic separation schemes shall n111d Cndiiions of the exeikse of such rights and activities, -. conform to generally accepted international regulations. including the nature. thexMtent and the areas to which they 9. Beforedesignatingorsubstitutingsealanesor prescrib- ; pply. shalll. at the request Of-any of the States concerned, be ingor substituting traffic separation schemes, an archipelagic regulated by bil:teral agreelments between them. Such rights State shall refer proposals to the competent interrational *shall not he transfert ed to or shared with third States or their organization with a view to their adoption. The organization n;tional. may adopt only such sea lanes and traffic separation schemes 2. Archipel~agic Staltes sail respect existfig'isubmarine as may be agreed with the archipelagic State, after which the cables laid by other States and passing through their wateri archipelagic State may designate, prescribe or substitute without making a landfall. Archipelagic States 'shall permit them, - the maintenaince and r eplacement of such cables utpoir receivO i0.' The archipelagic State shall clearly indicate all sea ing due notice of the location of such cables and the intention lanes and traffic separation schemes designated or prescribed to repair or replace them. - . by it on charts to which due publicity shall be given. 4,rtice 124 I. ' Ships in transit shall respect applicable sea lanes and :: ";, ,: . 1 a ' '. ,: traffic separation schemes established in accordance with this Rielht nfhtln oetlt r plssgsht~e . ''. e p s.!rticles-a' 12. Ifan archipelagic State does not designate sea lanes or I. Subject to arlicle 125, ships of all Statesq efijy the right ; air routes, the right of archipelagic sea lanes passage may be of innocent passage through archipelaigic Waters,' in accor- exercised through the routes normally used for international dance with section 3 of Chapter 1. I I navigation. ; 2. 'The archipelagic State may, without discrimination in , Form or in fact am;Iongst foreigh ships, suspend temporarily in' 2 specilied areas of its archipelagic waters the innocent pass'age :' ': ArtiPcl/ 126 e of foreign ships if such suspension is essential for the protection of its seculity. Such suspension shall take effect , Duties ofships andaircrft duclring theirpassagc, thaies oftJhe only after halving bhen duly published. archipelagic State and laws and regulations of theC ar- . cipelagic State relating to archipelagic sea lanes passavie Article 125 Articles 38, 40 and 42 apply mtatris ttnttandis to ar- Righhlt ol'archipelagic sea hulanes passatge. . . chipelagic sea lanes passage. I. An archipelagic State may designate sea lanies and air routes suitable for the:safe, continuous and expeditious ; : passage of foreign ships and aircraft through or .over its ' Article 127 archipelagic waters and the adjacent territorial seal.'' :i&::.' Research anted survey activites 2,. All ships and air craft enjoy the right ofarchipetagi'psea lanes patssage in such sea lanes and air routes. ' -' j'' L i During their passage through archipelagic waters, foreign 3. Archipelagic sea lanes passage is the exercise in ships, including marine research and hydrographic survey accordance with the present Convention of the rights of ships, may not carry out any research or survey activities navigation and overflight in the normal mnode for the purpose without the prior authorization of the archipelagic State. of continuous and expeditious transit between one part of the Article 128 high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. Rigimea o/'l isvlals 4. Such sea lanes and air routes shall traverse the archipelago and the adjacent territorial sea and shall include 1. An island is a naturally formed area of land. st.ir all normal passage routes used as routes for international rounded by water, which is above water at high tide. navigation or overflight through the archipelago. and, within such routes, so fi'l as ships are concerned, all ndimal 2. Except as provided for in paragraph 3, the territoriail navigational channels, provided that duplication of routes of sea, the contiguous zone, the exclusive economic zone in similar convenience between the same entry and exit points the continental shelf of an island are determined in accor shall not be necessarly. dance with the provisions of the present Convention applic.- ble to other land territory. 5. The width of a sea lane shall not be less than . . . nautical miles or . . . per cent of the distance between the 3. Rocks which cannot sustain human habitation ot nearest points on islands bordering the sea lane. economic life of their own shall have no exclusive economlic zone or continental shelf. -39- CAB V. ISLAND AIRLINES, INC. United States District Court, D. Hawaii, 1964 235 F. Supp. 990 On April .24, 7 164 the United States Federal Aviation Act (Act), Island start- Court ofP bals for the Ninth Circuit, ed carrying passengers'! on a qC-4 be- 881 F.2d ,, remanded this case to this tween Honolulu and Kauai, and Honolulu court wS uctions that this court and Maui and Hawaii. should hon te boundary or * bshoundari' eSlyta of theaaii, and When, after notification by the CAB in order properly to present the problem th at it was operating in violation of Se- in the event of subsequent appeal from tion 401(a) (49 U.S.C. � 1371) of the this decision, this court was further in- Act, Island persisted in its flights, the this decision, this court was further in- CAB on May 24,1963, filed this complaint structed to vacate its final decree, make CAB on May 24, 1963, filed this complaint structed to vacate its final decree, make against Island for a- declaratory judg- findings anew, �and enter,a new decree. against Island for a� declaratory judg- findings anew, and enter-la new decree. ment and permanent injunction, claiming The final decree has been vacated. ment and permanent injunction, claiming that Island was an air carrier engaged in Inasmuch as this court in its decision air transportation within the meaning of August 8, 1963, comingled its findings. of 49 U.S.C. � 1301(3), (10) and (21) of fact with.its conclusions of law, in (a) of'the Act,2 i. e., in interstate air this Decision After Remand the court transportation, without the CAB having feels it necessary to and will rewrite (in issued it a certificate to do so. many portions, copy) its decision of The CAB claimed that since each of August 8,1968. the islands between which Island was History of the Case carrying passengers is separated from the others by high seas and open ocean, The defendant, Island Airlines, Inc. (Island), on May 20, 1960, filed an appli-Hawaii's "territorial waters",3 cation with the Public Utilities Coinrnis- it was therefore impossible for Island to sion of the State of Hawaii (PUC) for carry its passengers between the above authorization to fly a cut-rate, "sky-bus" major islands without passing through type of air transportation of passengers air space over a place outside of the beween the various majorislands com State, and therefore such air carriage prbwn the State of Hawaii (State), co- constituted interstate air transportation prising the State of Hawaii (State), which proposed routes included flights within between Honolulu, on the island of Oa~hu, Act. The CAB, therefore, asked that this and the island of Kauai, and betweean court declare it to have exclusive juris- aonolulu and th e islands of Molokai, diction to regulate the proposed air Maui, and Hawaii. The PUC at that transportation of passengers by Island, time decided that it did not have jurisdic- and further asked that Island be per- tion over interisland air transportation manently enjoined from the proposed air until the expiration of the transition transportation of passengers between the above major islands of the State without period between Territorial and State gov- above maor being islands of the State without ernment, viz., August 21, 1961, and dis- first" being issued a certificate of public ernment, viz.', August 21, 1961, and dis- convenience and necessity by the CAB missed the application. under the Act. missed the application. convenience and necessity, by the CAB Another application to the PUC was docketed fn August 21, 1961, and after 2. "(3) 'Air carrier' means any citizen of prolonged hearings, with Aloha Airlines, the United States who undertakes, -Inc. (Aloha) and Hawaiian Airlines, Inc. vhether directly or indirectly or by a (Inc. (Aloha)and Hawaiian intervening, and the Cvil lease or any other arrangement, to en- (Hawaiian) intervening, and the Civil gage in air transportation * * *, Aeronautics Board (CAB) appearing as "(10) 'Air transportation' means inter- amicus, on August 16, 1962, the PUC state, overseas, or foreign air trans- made its order fixing rates for Island portation or the transportation of mail for intrastate transportation of passen- by aircraft." gers by air, between the above major "(21) 'Interstate air transportation', 'overseas air transportation', and 'foreign islands of the State.. Thereafter, in the air transporta tion', respectively, mean spring of 1968, without ever securing a the carriage by nircraft of persons or certificate from the CAB authorizing it property as a common carrier for corn- to engage in air transportation, and with- pensation or hire or the carriage of mail \ out attempting to comply with Section 401(a) (49. U.S.C. � 1371(a)) of the -40- At the time the complaint w"asRiled I opinion. This court, therefore, has had Island was actively flying passengers be- the advantage of the Hawaii Supreme tween Kauai, Oahu, Maui and. Hawaii, Court's analysis of the scope of the Act and in rapid succession, temporary rOy in its application to the problem posed straining orders were asked for by CAB, by the unique geographical makeup of issued, and for various reasons, nowit :the State. material, then dissolved. :: Although Island raised several objec- Appeals from the order of the fPUtc,: tions to this court assuming jurisdiction of August 16, 1962, had be en taken b over this case, as indicated in this court's interveners in that hearing, viz., Ha ruling of June 7, 1963, on Island's motion iwaean and Aloha , and on June 21, r9ed, to dismiss, this court decided that a fed- waiian and Aloha, and on June 21, oral question was properly presented to the Supreme Court of the State of was properly presented to waii in the Matter of the Application of .; this court, inasmuch as no problem is Ipresented other than the determination Island 56Airlines, Inc., 47 haw. 1, t by this court whether Island is carrying P.2d 536, held in essence that, absent I the problem of carrying passengers"in on air transportation in violation of Sec- interstate commerce within thei tion 401(a) of the Act. of United States v. Capital Tranosit lf.P6. The problem concerns the rights of a 325 U.S. 357, 65 S.Ct. 1176, 89' Ed:: federal regulatory agency charged with 1663 (1945), air transportationioio pis 'il the statutory responsibility, by virtue of sengers between the major islanxtdb f*>' 2 � 1007 of the Act, for the regulation of State constituted intrastate, rathet' t t.i interstate air transportation, claiming interstate air commerce within tht +coP& :'+- that an air carrier is transporting pas- of the Act, and therefore CAB ,juxdlc:�" sengers in Hawaii in interstate air trans- tion does not exclude PUC juridctinl i portation under the Act, in violation of over such intrastate flights. " ,!ij i � 401(a). This court, therefore, has The Supreme Court of Hawaii djurisdiction over the subject matter un- The Supreme Court of Hawai, didinot ''Mi i set forth all of the factors whichit ronr 28 U.S.C. � 14. sidered in arriving at the abovv 4io1chiu ,'; This court on August 8, 1963 ruled in sions, but promised a supplemental pin favor of CAB and issued a permanent in- ion later. :' 'junction against Island operating in the Final hearing and argument oiPl s manner above indicated without first be- complaint in this court was held on July ing issued a certificate of public conveni- 15, 1963. After the matter w~asi submits 'rq ;ence and necessity by the CAB. ted, on July 22, 1963, the Supre1i0gOiut ;; Island perfected an appeal to the Ninth of Hawaii in the same Matter. tl he Circuit Court of Appeals which, after Application of Island Airlines, JInc,4 47 hearing, remanded the case tothis court, Haw. 87, 384 P.2d 536 filed its S'ppl[ ;is above indicated. Following remand, mental Opinio~n to its AJune 1,.963 d 'Aloha and Hawaiian were permitted to " '"�5.*'!Ji,{' ^ intervene as parties plaintiff. The State by aircraft,' in commerce. btweef i,j A d Hawaii petitioned for leave to inter- spectively- in' a' . : t vene as a party defendant, then, before "(a) a place in any State of t~lthe't:&'U !. ' States, or the pistrict of Co0 itn * .' i, hearing, withdrew its petition and asked a place in any other State of' the.' Uatd " '>t for and was granted leave to appear as States, or the District of ,.Colubi' ; Imicus only. or between p laces i the sae ' 8tate Ot l:,:, i the Urited dStates through the .rs',C ' Island Airlines, Inc. V, Civil Aeronnutics over any plaee outside thereof;rbe oa F.220 th ir. 4). tween places in the same Territory" o, ' ' . . possessio .of the United States ori '.' ;e , IL Exhibit 2-Distances between the closest District of Columbia;" [Emphasis swd-- '; points of land in the respective islands. ed]. 'a KATJUAI TO OAHU-'62.9 nnutical miles OAHU TO MOLOIKAI-722 nautical miles 3. Hawaii State' Admissions Act� (t Z73 MOLOKAITO 4AUI-,.5 nautical miles Stat, 4) Public Law 86-8, 86th6 CmOg., A. . ' -41- The evidence and argument presented 'Thle Supreme Court Of Hawaii in ita' before this court thereafter, was almost July 22, 1963 Supplemental Opinion, entirely confined to "the root of the prob- supra, determined that the words "over letm * * * [viz.] where is the bound- any place" as used, in the Act refer ary or boundaries of the State of Ha- to a "place" which itasel has boundaries, wai ? " 4 not international waters which are a "no Findings of Fact and Conclu ions of Law man's land" outside the boundaries of .any place, and demanded that in order As Exhibit C shows, the major islands any place, and demanded that i n order for 'those words of theAct to have any making up the State of Hawaii are sepa- application, the air transportation must rated from each other by the waters pass through air space over another state of the North Pacific Ocean, and the dis- or'a foreign country ., tances between the islands of Kauai and .' Oahu, Oahu and Molokai, Molokai and With all deference to that august body, Maui, and Maui and Hawaii, over the , this court cannot agree that air transpor- channels in between, vary from the short- tation over the high seas outside of the est: Molokai-Maui, 7.5 nautical miles, to territorial limits of a state is not air the longest: Kauai-Oahu, 62.9 nautical transportation over a place outside of miles.5 Because of these distances, com- that state. "The 'declhation of what bined with the complete absence of pro- constitutes navigable air space is an ex- tective land masses lying anywhere near ercise of the same sour of power, the the islands on the northeast side of the interstate commerceclandse, as that under island chain, and, except for the islands Which Congress ha long declared in of Lanai and Kahoolawe, an equal ab- maiy acts what EoplSt? ttes navigable or sence of any land masses on the south- non-navigable watV' .iThe public right west side of the chain, there is nothing of flight in the navigbk# air space owes to break up the great swells of the North its source to the saimn'?j4stitutional basis Pacific waves which, unimpeded, roll up- which, under declsie:6:Of the Supreme on the shores and sweep through the Court, has given risie`'t a public ease- channels between the islands. ment of navigation': i: ' the navigable waters' of the United States, regardless Under the definition of "high seas"' set of the Uoites States, regardless forth in United States v. Rodgers, 150 of the ownership ofi" e adjacent or subn U.S. 249, 14 S.Ct. 109, 37 L.Ed. 1071 jacentsoil." HR.leINiB72,69thCong. (1893), the term applies to open, unen- 1st Ses., p. 10. A closed, large bodies of water extending beyond one's vision (and included the Great Lakes as being bodies of water to which the term "high seas" was applica- ble). In U. S. v. Grush, 26 Fed.Cas. 48 (C.C.Mass.1829), the term "high seas" in its usual sense expresses "the open, uninclosed ocean, or that portion of the sea, which is without the fauces tersae on the sea coast," (at 51), in contra is- tinction to that which is surrounded or enclosed between' narrow headlands or promontories.6 MAUI TO 1HAWAI--25.4 nautical miles LANAI TO MOLOKAI-8 nautical miles LANAI TO MAUI-7.65 nautical miles 6. The Convention On The High Seas, rati- fled by the President of the United States on March 24, 19061, and entering into force September 30, 1962, in codifying the -42- From, the inception of the Civil Aero- "Aviation matters nautics Board, it has interpreted the "Hawaii presents a unique situation Civil Aeronautics Act and the Federal with respect to the impact of state- Aviation Act as applicable to transporta- hood on the Federal regulation of air tion between places in the same State transportation between the main where said transportation also involved islands. This is because of the geo- passage through air space over the high graphical structure of the Territory, seas. Wilmington Catalina Air v. Grand- the land areas being separated by father Certificate, i CAA 431. substantial expanses of ocean which A three-judge district court of the are not included in the territorial Ninth Circuit in United Air Lines, Inc. v. limits of Hawaii. Hence, most, if Public Utilities Commission of Cal., 109 not all, of the interisland air trans- F.Supp. 13, reversed on other grounds, portation passes through airspace 346 U.S. 402, 74 S.Ct. 51, 98 L.Ed. 140 not a part of the Territory. Under (1953), passed upon the application of the provisions of the Federal Avia- the definition of air transportation in tion Act of 1958 and other applicable the Civil Aeronautics Act of 1938 (the Federal legislation, the Civil Aero- Act of 1958 is identical in this respect), nautics Board exercises economic in determining whether or not United regulatory jurisdiction over carriers flights from Los Angeles to Oatalina Is- engaged in interstate air transport- land, both of which were places within tion, which is defined to include not the State of California, over the Catalina only transportation between a place Channel, constituted interstate air trans- in a State and a place in any other portation under the Act. The court said: State, but also transportation be- tween places in the same State "The recoid here shows, by stipu- through the airspace over any place lation, that there is a distance of outside thereof. Consequently, with about 30 miles between the shore line the admission of Hawaii as a State, of the United States and the Santa Catalina Island. We have no di- interisland air transportation will remain subject to the economic con- culty in finding, and so find that a trols provided by the Federal Avia- trols provided by the Federal Avia- substantial portion of these 30 tion Act including other applicable .r miles lies over the high seas and is Federal legislation, because that not within the State of California. Hence it follows that air transporta- tr ansportation, or most of it, while tion through the air space thereover be tween places in the same State. is over a place outside of..the.State will pass through airspace outside the State. In the other States, air of Califorpia." [Emphasis adde] ; transportation of this kind passing 109 F.Supp.i at'16.7 109 FSupp' at 16through airspace outside the State That interisland flights in the State is of slight volume in comparison were expected to fall within the scope and with air transportation merely be- control of the Act was clearly stated to tween places in the same State. the Subcommittee of the Committee on l Interior and Insular Affairs of the Unit- ed States Senate, as is shown by Sena te Committee Report No. 80, 86th Congress: -43- opening, where the opening exceeds The determination of the meaning of ten miles in width, at the first point the term "territorial waters" forces this therein where the width does not court to turn to the National and inter- exceed ten miles." national interpretation of the term. The exceed ten miles]." criteria which governed the delimitation "February 12, 1952. Reference is made of the territorial waters of the United to your [Department of Justice] letter States was cleary set forth in leter'; of January 22, 1952, inquiring whether, from the Depg'rtment of State to X ,t,. in the light of the decision of the Inter- Department of Justice elks the subjlectiX' yti national Court of Justice in the Fish- of territorial waters. "November suk' i eries Case (United Kingdom v. Norway) 1951. Reference is made to your: in date of December 18, 1951 * * * partme'nt of Justice] letter dated 0l. "The Department noted the hold- tober 30, 1951, requesting a statement Xi ing of the Court that the Norwegian from the Department of State in regard : Government in fixing the base lines to the position of the United Stated cAi for the delimitation of Norwegian * * X.. ' .: fisheries by applying the straight * . 'WE *. * 'the '~ . 'id v"' '~ wbase lines method had not violated i"(e)%' ~":~['~[::' Wtainternational law, especially in view "(e) With respect to the meas. of the peculiar geography of the urement of territorial waters when :.; : Norwegian coast and of the consoli, islands or groups of islands Norwegian coast and of the consoli- dation of this method by a constant lie off the coast, the Uiited State .":'8si took the position at the Conference and sufficiently long practice." 17 [Conference for the Codification of . J: ' The term "territorial waters" is nor- International Law held at The mally used to describe both water areas Hague in 30 that eah that comprise the inland waters and the Hague in 1930] that * each .;.~11 island , * * was.to besurround- - territorial sea. Inland or internal wa- ed by its own belt of territorial wa-. :, , ters include all bodies of water within ters measured [from the low water i' the land territory and true bays, as mark along the coast, seaward for a ~.~ well as the area between high-water distance of one marine league, or,,: 4t mark and low-water mark. The common distane . * i; legal feature of all inland waters is the ~~~~three nautical miles] *complete sovereignty which a nation ex- (f)* * * [W]ith respect too a '' I straitf, * [W]h r ithbrespect astora be ' ercises over them, i. e., the same'as it strait, whether it be a strait be . As exercises over its land territory. The tween the mainland and offshore i1s-h '' sovereignty includes the right of exclu- lands or 'between two mainlands :- ,. sion of foreign vessels ; * * * the United States. took the . .. .: position * * * that if a strait 'Seaward of the %inland waters is the connected two seas having the char; I marginal sea, also called the territorial acter of high seas, and both entranc- ' sea and the 3-mile limit. This forms es did not exceed six nautical miles: . part of the marginal territory of the in width, all of the waters of the: *:j coastal nation, but foreign merchantmen strait should be considered terrie-r and perhaps foreign-warships in time of torial waters of the coastal state. i peace, have the right of-innocent passage In the case of openings wider than "; through them. The enjoyment of this six miles, the belt of territorial wa- 16. See Slowz *, . See hlowitz,' Shotr !ind Sea Bound- ters should be measured in the ordi. ,. aries, Vol. I, Aprncrl l,.pp. 354-356. nary way [see (e) supra] * * rT]he waters of a strait were not 17. S.alowitz, supra not.1 at 367. to be regarded as inland waters, 1S. Shalowitz, supran ot;ol, pp. 22 et seq. even if both belts of territorial wa- SeG also testimoni o I. T. YUFn, Asst. Legal Adviser ini the IT. S.,Dept. oE ters and both shores belonged to the Stnte, U. S. delegfte t6ithe 10.58, 1060 same state * * . With respect to a strait which is merely a channel of communication to an inland sea, * * * the rules regarding bays should be applied [i. e., if the bays were no more than ten miles wide, the base line of territorial waters is a straight line drawn across the: -44- right may be subject to special regula- west by Kahoolawe's Kaka Point and tions laid down by the coastal state for Hawaii's Keahole Point. (See Ex. C)t' the protection of navigation and for the The above areas then are the "historic execution of laws relating to customs, waters" which certainly Island, and im- quarantine, etc. This privilege, never- pliedly State, claim as the historic waters theless, leaves the general principle of of Hawaii. sovereignty intact, and within the 3-mile It is instantly apparent that any such limits the jurisdiction delimitation of the boundaries of Hawaii state is as exclusive as its jurisdiction would in effect expropriate to Hawaii over the land itself. Seaward of the over the land itself. Seaward of the large areas of water, normally falling territorial waters lie the high seas, i. e., within the international concept of high within the international concept of high the open sea (but in the context of the seas, thus cutting down the sea area over Submerged Land Cases, infra, "open which the doctrine of frcedom of the sea" refers to all the water arhigh seas" could apply.20 "This country, ward of the inland waters).18 throughout its existence has stood for As indicated above, Kamehameha freedom of the seas, a principle whose III's Act of 1846 can only be construed breach has precipitated war among na- as a claim that the interisland channels tions. The country's adoption of the were closed, i. e., inland, waters of the three-mile belt is by no means incompati- Kingdom. The neutrality proclamation ble with its traditional insistence upon of 1854 purported to implement this freedom of the sea, at least so long as claim that they were internal waters by the national Government's power to ex- declaring all seizures made within the ercise control consistently with whatever channels an invasion of the jurisdiction international undertakings or commit- of the Kingdom, and unlawful. :: - ments it may see fit to assume in the The only way in which the exten't of national interest is unencumbered." f such internal waters could be measured The historic waters", concept consti- would be that which was urged by Island tutes an exception to the general rules in oral argument, i. e., by virtue of' of international law governing the de- straight base lines running' from heAd-. limitation of the. maritime domain of a lands on each side of the channel. - For' state.22 Therefore, the title to "historic r *example, the Kauai channel would"be waters" is generally considered in the bounded on the east by isKaha nature of a prescriptive right, i. e., by virtue of "acquistive prescription". Point and Oahu's Kahuku Poinit, and on ' the west by Kauai's Makahuena Point i9. ITland argued thCat 'straight base lines and Oahu's Barbers Point. The Molokai should run completely around the eastern Channel would presumably be bounded perimeter ofx the Hawaiian arcllipelago on the east by Oahu's :Mokapu ..Point from island he8dlarid to island headland ~ann on the western Pe~i1imeter should run and Molokai's Ilio Points' jand' on:;.:h/i straight from Nithnu's Kawaihoa Point west by Oahu's Koko Head and Molokai, to Hawaii's Ka Lae,:tha Including with- Laau Point., The breadth of Aienuihaa, hin its boundaries all of the open ocean be- Channel would b Le fantastic: i S't wbound-;: tween "the cord of the bow and the,lbow Channel would be fantastc:'s, boui- itself," hut not even :amelhlneiha III aries on the .east being M..aui's Kauiki ever made any such grandiose claim, and Head and Hawaii's Halaula, and on the, a similar type of claim put forth by .' d ,, . ............. ~:, thi./ b ~:~ii.~ '. ~,i .California was rejected ii United States Geneva eConferences on 'the' Law of tthe? v. California, 332 U.S,V I, 67 S.,t. 1658, Sea, Tr. pp. 140-146; Report of the- :; 91 L.Ed. 1889 (1947),i(s .this court has ternational Law Commission 'tS he Gaen-: said before), eral Assembly of the United Nationtos, 20. "Definition of the' igh6 seas, Article 1956, Yearbook of the International awm 2. Commission 1905, Vol. It, eommentary "1. Timhe term 'high seas' means nil 4o9the Articles of the taw of tlie Sea,, parts of the sea tbhat: re not included Part I,. Territorial Sea, p. in. ,:::. n the territorial sea * or in waters of a State. / -45- The position of the United Kingdom in ereignty claimed must be effectively ex- the Norwegian Fisheries case, United ercised; the intent of the state must be Kingdom v. Norway, was that a state expressed by deed and not merely by can only establish title to areas of sea proclamations, e. g., keeping foreign which do not come within the general ships or foreign fishermen away from rules of territorial or inland waters, on the area, or taking action against them. the basis of a prescriptive title.23 Nor. 2. The acts must have notoriety which way's position in the same case was "the is normal for acts of the state.2? usage on which an historic title is based must be peaceful and continuous, Continuous usage of long stand- and consequently * * * the reaction ing of the maritime area was demanded of foreign States constitutes an element' even in 1894 (Institute of International Law of 1894). Established usage gen- to be taken into account in an appre- Law of 1894). Established usage gen- ~ciation~of such title * q* *. erally recognized bythe nations, was the ciation of such title criteria get up by the International Law At least three factors must be Association of 1926. Since an historic taken into consideration in. determining title to a maritime area must be based whether a state has acquired an historic on the active exercise of sovereignty title to a maritime area. These factors over the area by the state claiming it, are 1, the exercise of authority over the the activities from which the required area by the state claiming the historic usage must emerge was consequently a right; 2, a continuity of this exercise repeated or continued activity of that of authority; and 3, the attitude of same state. Passage of time is there- foreign states. The authority which a fore essential; i. e,, the state must have state must continuously exercise over a kept up its exercise of sovereignty over maritime area in order to be able to the area for a considerable time.20 claim it validly as "historic waters" is s s s sovereignty, i. e., it must beclaimed claimed that certain areas off the Nor- as a part of its national domain. .mAbc as a part of its national apprdomailnof.the I wegian coast (one of them demanding a sent international approval of the claim, "baseline" boundary running over the the activities carried on by the state in "baseline' b oundary runn ing over the the area in question must be something were reserved for the exclusive f ishing far more objective than simply and sole- of her nationals. The United King ly internal verbalization, i. e., local leg- dom claimed those areas were "high # islation or proclamation: 1. The sov- seas" The historic pattern of exercise "2. Waters within the baseline of tbe of sovereignty showed that prior to the territorial sea are considered "'internal 17th Century there had been disputes waters'." ,: between British and N6rwdgian fisher- (Report of the International Law.Com- mission to the General Assembly of the areas, and as a result of Nor- United Nations, Document A/3159,.Year-: way's complaints,' the' .British did not book of the International Law Commis- fish in those areas for 300 years. Be- sion 19563, Vol, :, p. 259.) ; A ginning in 1906, however, British vessels 21. United States v. California, sliptrnote:, again appeared, with :resulting frequent 19, 382 U.. at p. 35, 67 S.Ct. l58 at, "incidents" and much intergovernmental p. 1666, 91 L.Ed. 1889. . : p?. 1666, 91 j.Ed. .89. Aaction, with British trawlers being ar- 22. United Nations Secretariat, Memoran-. :: : dum on '"I-istoric Bays", (A/Conf; 13/;"' 28. "Juridfial rdgime of )tstorio nwaters, p. 18-20). . ; inoluding h8istorlo bas'i6 prepared! by the ,~ ~ . - ,Secretariat, Uaited Nations, Yelarbook of 23. International Court. of 3ustlcee,' Plead- the Internatonal Law Cozmission roo the International Law Codmission 1062, ings, Oral Arguments, Documents;r Fish- Vol. I, pp. 13-18. eries Case, Vol. II, p. 302. . 26. Ibid., p. 1 :, 24. Ibid., Vol. III, pp. 461-462. i:' 23. Ibd., p . . 15 . 27. International Court Api'~fstice Yearbook 1951-52, p. 78. ,, -46- rested and condemned by Norway. The [] As indicated above, upon annex- Tnternational Court of Justice found that ation the United Statee was ceded all the same were "historic waters" of Nor- rights of the nation of Hawaii. That wanvA.7 nation's claim of jurisdiction over the interisland channels had never ripened The burden of proving the open and notorious use of the area in question into a prescriptive historical right to rests on the state claiming that its "his- the waters.,. Thereafter, e ited torical waters" possess a character in- States never made; any claim, either consistent with the principle of the free- locally, natonally r internationally, dom of the high seas. Since the his- hat the hannel, toric element is the basis for validating /claimedby the United States as "histor- what is an exception to the general rule waters of of freedom of the seas and therefore wa ... �h .ty � intrinsically invalid, the burden of proof ' To the cOntrari' consistent with its is thus logically and emphatically placed international polic '.:of freedom of the upon the claimant state.2"" - seas aid' the threeq-ile limit of terri- torial waters ?~,ih i a, ll of the hearings When the claim of the Kingdom of toal waters in th hearings Hawaii is measured in the light of the before Congrests .the. various depart- above rules of international law, it in-that stantly becomes obvious that the nation the channel, waterS, beyond the three- of Hawaii ceded and turned over to the mile limit, were "highseas". Before the United States no valid claim of sover- Subcommittee on Territories and Insular eignty over the interisland channels. Affairs of 'the 86thi Congress, 1st Ses- As indicated heretofore, the first and sion, 1959, then considering the Hawaii only steps to set up the interisland Statehood bill, S. 50, Mr. Franklin M. channels as historic waters were mani- Stone, General Counsel of the CAB, stat- fested in the years 1846 to 1854, i.e., ed: the Acts, Resolutions and Proclamations, "To the extent that :ie channels and supra. There was, however, never any waters between the islands compris- external manifestation of the verbal '. ing 'the land area "o the State of claim of sovereignty over the channels. Hawaii are not defined or considered Actually, the Kingdom had no means of to be a part of the State of Hawaii, enforcing any such claim as set forth the Board would also continue to in the Neutrality Proclamation of 1854: exercise regulatory jurisdiction over During its entire history, the Kingdom air transportation between the is- had only one warship, the SS Kaimiloa, lands by virtue'of the definition of an ex-steamer of 170 tons, refitted into interstate air' trarisiortation, since a "man-of-war", which, in 1877, made the carrer would b traveling be- * made~ ~tween points witbin the same State, but one inglorious and disastrous voy- age-to Samoa.29 Further, Kalakqua's .' Louisiana, 863 tU.S. 1 , 80 S.Ct. 1877 Proclamation of Neutrality negat- '961, 994, 4 L.d.2d 11025 (1960): "More ed Kamehameha III's claims of sover- important for the purposes of this case are the Circumstance_,.that the three- eignty over the waters.30 :re the Cirimi ce a. ,nade al exIresI league provision was made au express 28 . Sra note 28,Vol . 1,. , ' part of the Treaty of QGuadalupc-nidalgo, 28. Supra note 23, Vol. I, p. 566; Vol. II, that such boundary war reaffirmed five pp. 645-6 . years later in the (adsden Treaty of De- 29. Alexander, History of the Later Years, cember 30, 1853 ln d subseqluently in a of the Hawaiian Monarchy and Revolu longline of internation-aconventions, tni tion of 1893, (1896) pp. 17-19. �in 4 that it has never), been repudiated." ( '; Footnotes omitted.).. 30. Of. Supreme 0nourt's comments on Tx ., as' claims to the' submerged lands for 31. nited Stntes v. California 332 U.S. three leagues from shore in United StatOs 19, 33-85, 67 .Ct. 1658, 16, 91 L.Ed. -47- but through the airspace outside / power16t deermine-how far this thereof.u" t a c : o * country will claim territorial rights thereof." :';:in the marginal sea as against oth- At the same time and occasion, Mr. Ted' er nations. Any such determina- Stevens, Assistant to the Secretary -of tion is, of course, binding on the the Interior, in a statement to Senator States. * * [There is no Henry M. Jackson of Washington, clear. question of Congress' power to fix ly indicated that the term "territorial state land and water boundaries as waters" within the provision of the a domestic matter. Such a bound- Statehood Act was to include "all waters ary, fully effective as between Na- seaward to a line 3 geographical miles tion and State, undoubtedly circum- distant from the coastline," i. e.,; the, scribes the extent of navigable in- line of ordinary low water along the land waters and underlying lands coast, and as stated in the Committee owned by the State under the Pol- report which accompanied the Statehood lard rule." (Pollard's Lessee v. bill: Hagan, (44 U.S. 212)' 8 How. 212, 11 "Hawaii presents a unique situatio`;i L.Ed. 565.) with respect to the impact of state.j ySA study pif the above case and other hood on the Federal regulation of; authorities 32'clearly shows that the term air transportation between the main" "territorial waters" has a uniformly well islands. This is because of the geor understood meaning and application, viz., graphical structure of the Territory, A thise term includes 1, the water area corn- the land areas being separated ofi prising both inland waters (rivers, lakes substantial expanses of ocean which and true bays, etc.) and 2, the waters are not included in the territorial extending seaward three 'nautical miles from the coast line, i. e., the line of S.Rept. 80 (to Accompany S. 50),: 86th ordinary low water, (ofttime called the Cong., 1st Sess., (Emphasis supplied.)" "territorial sea"). Seaward of that I As our Supreme Court said in three-mile 'territorial sea lie the high United States v. Louisiana, 363 U.S. !, seas. The Submerged Lands Act (1953) confirms titles to the States in the sub- 19635, 80 S.Ct. 961, 981, 4 L.Ed.d 102merged lands off their coasts for a dis- 0"The powr to admit The w Staesiet rg tance of three geographical miles from "The power to admit new States re- the coast line. Section.. 5(i) of the sides in Congress. The President,/ Iauaii Statehood Act reads: on the other hand, is the constitu- ra, Submerged. Lads tional representative of the United The Submerged Lands Act of States in its dealings with foreign 1963 * * * and theAOuter Con- nations. From the former springs tinental Shelf Lands Act of 1953 the power to establish state bound-, *S * shall be applicable to the aries; from the latter comes the State of Hawaii,'and the said State 1889 (1947): "That the political'21:- ' 32. See also alwit , pp. 22-24. :~, I. cies of this nation both claim and exercise broad dominion and control over our 33. e Unted Stat, 32 three-mile marginal belt is now a set 33. See Un Ste. . 332 tied fact. * * * And tbis assertion U.S. 804, 68 b.rt. 20Ld . Sd. 329 of national dominion over the three-mile Submerged Lands 4ctt a Stt. 29) belt is binding upon this Court. * *Department of* 'tite Bu11etin of "Not only .has acquisition, as it were, June 29, 1959, Pubiteatlon 9, Measure- of the three-mile belt, been accomplished ment of the United Otat - Torritorial by the national Government, but protee- Sea tion and Control of it has been and is a See also, Shore and SX3undlrios, function of national external sovereignty. supra note 16, p. 228,i.on9t46: "When , * * * This counttry, throughout its ex- 4awail was admitted pa &',i pstate, its X istence has stood for freedom of the sea boundaries did o de l t sas, " p. 1004) ater areas between the islands but seas, **." (Supra p-48. 1004) -48- shall have the same rights a's do sea or air, it could have done so. Never- existing States thereunder." 3 theless, that Congress chose not to 'so provide-even in the face of the state- Thus, when Congress granted state- ments of Mr. Ted Stevens and Senator hood to Hawaii, it said: Jackson on this specific problem (su- "The State of Hawaii shall consist pra p. 1006) -did not thereby demote of all the islands together with their "unique Hawaii" into a second-class appurtenant reefs and territorial state, nor did it put Hawaii upon a dif- waters, included in the Territory of ferent footing than that of all other Hawaii on the date of the enact- states of the Union insofar as its control ment of this Act * * I*."3 - over interisland, overseas flights was And thereby the boundaries of Hawaii curtailed. Its curtailment is simply a were fixed at three nautical miles :from matter of degree, not of substance.3? the line of ordinary low water surround- Apart from the aboe finding, every ing each and every one of the islands time a flight is made by Island over the composing the State of Hawaii. Beyond Federal airways between Oahu and that "3-mile" boundary line around each Kauai, Island must flyover the high island lie the high seas which roll un- seasmany sea leagues from either shore seas many sea leagues from either shore. checked through the channels between the islands. Neither those intervening The heavy air traffic around the Hono- seas nor the floors thereof are ,within lulu airport definitely prevents "direct" the boundaries of Hawaii. flights between the Honolulu Airport and ' ! i': '~: ' Kauaii and on Kauai-Oahu flights, all The above finding gives to Ha- planes must fly in the' Federal airways waii jurisdiction over the surrounding on an east-west coure'--V2, VI2, VI5 ocean waters no greater nor less than (Exhibit 1)-to thi; ,places marked that given to every other state of the "Breakers" or 'Orchid", respectively, Union bordering upon the sea.' Neither some 25 and 40 nautical miles west of the Hawaii State Admissions Actm nor the. nearest place 'on Oahu, and some this decision takes away any: internal 50 nautical miles southwest from Kauai, rights of Hawaii to control its intrastate places which are clearly outside of any commerce. The CAB would have no rational boundary claims of the State of control over purely intrastate flights be- Hawaii and over the high seas. tween Hilo, Kona and Kamuela on the IFurther, when flying ibetween Honolu- Island of Hawaii, or between Kaanapali, u Maui and Hawaii s shown on Ex- Kahului. and Hana onized the Island of hibit 1, upon the often-ndcessary flights Maui. Congress recognized that tHawasii made under instrument flight rules (I.F. was unique in that it was a state corm- as shown on xhibIts A, A, AS, posed entirely of islands.. If Congress ,), n had wanted to leave to the State corn- 36 OCf. Lord v. Steamship Co., supra; Wil- plete control over interisland passage by mington Catalina Ait v. Grandfather Cer- a belt ' .) i . . .tificate, supra; United Air Lines, Inc. only a 3-mile belt around each sand, v,. Public Utilities Commission of Cal., leaving areas of high seas .between- iost Upra.. of them. S.Rept. 80, 86th ong;, 1st 37. 'It has been stipulated that Islall, dur- BS~~~~~~~ess. 4 (1959)." 'a-~ ing the month of June 1968B on scheduled See, e. g,, G. Etzel Pearoy, HaWsai'~ .: See, e. 6, G. Etzel Pearcy, Hawaiis flights carrying ,passengers for hIire as a Territorial Sea, 11 The :Professional,. cmmon carr.ier batwoef the Is , common carrier betwen :the Islands, op- Geographer, No. 6, Nov. 1959, in which, pert on eer rwys V peratiag on Federal :4riays V6 V13, the author in describing the territorial: and V12, passed over the Sweet on, seas of the State of Hawail'assumesa : se' ~seas of the State of H~vvaf' asmes Halibut, Rainbow, Parsllse, Orehid, and a three-mile belt of territorial waters for . Breaers intersections. i a each island. ., ' "each1 isa n d:. 38. Island offered testimony to sihow that 34. Hawaii State Admissions Act,!"ouprd the Federal airways shown on Exlhibit note 3. ' ' ' I 'note 3. . . 'I 1 were subject to change andl thllt Is- 35. Supra note 3. land could apply for aad might secure -49- and A4, Island has37 and muat airway V6 to "Sweet Pea", which fi "u 9 nautical miles north of Maui, ani: "Halibut", which is over 20"t . miles northeast of Maui, and ore ': nautical miles from Hawaii, or on ait~.... V16 to "Rainbow", which is o',Wi ".i nautical miles east of Maui and over' ~! nautical miles north of Hawaii, al , which places are over the wide 'p Pacific and admitted' by Island i A.dz far beyond any boundaries that .d..-" possibly be claimed for the Stat A. ::. Hawaii.38 -. Unquestionably then, whet":l; Island flies over the channels or outsie: of them, it is compelled to fly its'!ipie sengers over places outside the State�' boundaries in order to fulfill its obhIk .' tions as an air carrier between tile ,i lands. It therefore follows that Isluand!.i scheduled interisland flights carrying! persons or property are in interstate ai't K commerce between a place in Hawaii to', another place in Hawaii, through ait. space over places outside thereof, within the scope of the definition of interstate air transportation in the Act (49 U.S,',' C.A. � 1301(21) (a)), and the CAB har jurisdiction and control over the flights'. of any such air carrier (and Island is such an air carrier). Such a carrier * may not, therefore, carry on such.flight. between the islands making up the State of Hawaii without having first received a Federal certificate from the CAB under ' gection 401 of the Act (49 U.S.C.A. � 1371). -50- Notes 1. Passage. Compare the -provisions of the CONVENTION ON THE TERRITORIAL. SEA AND THE CONTIGUOUS ZONE, 516 U.N.T.S. 205, 15 U.S.T. 16o6, T.I.A.S. No. 5639, with the expanded pro- visions relating to passage through the territorial sea * ~found in the Informal Single Negotiating Text of the Third Law of the Sea Conference. GENEVA CONVENTION: SECTION III. RIGHT OF INNOCENT PASSAGE Sub-section A. Rules Applicable to All Ships Article 14 1. Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea. 2. Passage means navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters. 3. Passage includes stopping and anchoring, but only in so far as the same are incident to ordinary navigation or are rendered necessary by force majeure or by distress. 4. Passage is innocent so long as it is not pre~~u- dicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law. 5. Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the terri- torial sea. 6. Submarines are required to navigate on the sur- face and to show their flag. Article 15 1. The coastal State must not hamper innocent passage through the territorial sea. 2. The coastal State is required to give appropriate publicity to any dangers to navigation, of which it has knowledge, within its territorial sea. Article 16 1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not inno- cent. 2. In the case of' ships proceeding to internal waters, the coastal State shall also have the right to take the necessary steps to prevent any breach of' the conditions to which admission of' those ships to those waters is subject. 3. Subject to *the provisions of' paragraph 4, the coastal State may, without discrimination amongst foreign ships, suspend temporarily in specified areas of its terri- torial sea the innocent passage of foreign ships if such suspension is essential for the protection of' its security. Such suspension shall take effect only after having been duly published. 4. There shall be no suspension of' the innocent pass- age of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State. Article 17 Foreign ships exercising the right of' innocent passage shall comply with the laws and regulations enacted by the coastal State in conformity with these articles and other rules of international law and, in particular, with such laws and regulations relating to transport and navigation. Sub-section B. Rules Applicable to Merchant Ships Article 18 1. No charge may be levied upon foreign ships by reason only of their passage through the territorial sea. 2. Charges may be levied upon a foreign ship passing through the territorial sea as payment only for specific services rendered to the ship. These charges shall be levied without discrimination. Sub-section D. Rules Applicable to Warships Article 23 If any warship does not comply with the regulations of' the coastal State concerning passage through the territor- -52- ial sea and disregards any request for compliance which is made to it, the coastal State may require the warship to leave the territorial sea. U.N. DJoe. A/CONF. 62/ WP- 8/ REV.l/ PART II (Informal Single Negmtiating Text): SUI3ECTW A. LII.-.S PPI CAI~~l~ 0 AlSI-i(b) Any exercise or pracrice with weapons Of any kind; (C.) Any act aimed aV oilectinlg information to the pi-ci. A Article 16 udice of the defence or je~urily of' the coastal State: sight of iam?(Ci~~~~t security of the coastal ,Stitet Subject to the present Convention. shisoalSae, (q) The lanhig otakingonbadf ' whether coastal or land-locked, enjoy the right of innocent aircraft; passage throuhtetrioil' fTh anhmg anlp'g or taking on board of ,fny military, device-, Arucle 17 ~~~~~~~~~ The rrmharkini ~b j~hing of any comrnuodit~, currency oi- person Conrr tthcustomns, fiscal, imlmigr& Meganing~ of#'paSVae tiori or sanitary regula n oftecastal State; I. Passage meanis navigation through the territorial sea (h?) Any act of wilfu an01riuspoltion, contrary to the for the purpose of:'rsn oneto; (at) Traversing that sea without .entering interp1all waters or (i) Any fishing activ~s calling at a roadstead or port facility out'side internal waters; (j The carrying 4ut of'rese'arch or survey activities: or internal~ ~ ~ ~ ~~ ~~4 wtsoracl tsuha() Any act aimed at' ijerfering with aniy systems til (b) Procedn tooC o commnunication or a~py otb~'t fac.ilities or installations ol' thi roadstead or port facility. . coastal State;, 2. Passage shall be contiuoU n xeiiu.Hw n ote cIv ty o having a direct bearing Fij ever, passage includes stopping and anchoring, but only in so 'passage.~~ r ~~~far as the same are incidental to ordinary navigation or are psae rendered necessary by fin-ce majeure or distress or for the purpose of redringassistance to persoS hp ra ati danger or distress. ..f A rticIe Is Inthe tcrritorial se~b inner, and other urinerwuta Meaning qinofjalcenfl pei-irmigil vehicles arne requiredt n te: onl the surface and t hn their flag. - 1. Passage is inn ocent so long as it isnot prejudicial to the peace, good order or security of the coastal State. Stich passage shall take place in confor"mity With the present Convention and with other rules of !international law. 2. Passage of a oreg shi shll. be considered to be prejudicial tothe peace, good order or security of the coastal State, if in the territorial sea it engages in any of the following activities: . (it) Any threat, or use of foC, gis h oeeg territorial integrity or political independence of tile co~astal State. or-in any othqr mantner in violation of the principles or international law embodied in the Charter of the United Nations. -53- ~~Artx~ilee 20~ ~3. In the designation of sea lanes and the prescription of traffic separation schemes under this article the coastal Stale .Lalln'v ctndl rielaltions o!flle coasl( Sta r'elatin tl shall take into account: innloceI I).s'.sage (a) The recommendations 'of competent internatlional organizations; I. The coastal State may make laws and regulations, ii conforrmity with the provisions of the present Conventionamll (b) Any channels customarily used for international other rules of international law, relating to innocent passaige navigation; through the territorial sea, in respect of all or any of he (e) The special characteristics of particular ships and following: channels; and (it) The safety of navigation auld the .egulation of marliei (d) The density of traffic. 4. The coastal State shall clearly indicate such sea hlanes (h) T'he protection of navigational aids and facilities and and traffic separation schemes in charts to which due other I'lcilities or installations; publicity shall be given. (c) The protection of cables and pipelines; ,, , 1' (d) The conservation of the living resources of the se; ' ' ,' Article 22 (e) The prevention of infiringement of the fisheries reguili lions of the coastal State; Foreign nuclear-pbolwered ships and ship.s carrying, miclear i'} he preservation of the environmeht of the coustll or other inherenly dandgeroils or ox.ious suhsvtamnve State and the prevention of pollution thereof; Foreign nuclear-powered ships and ships carrying nuclear (x) Marine scientific research and hydrographic surveys: or other inherently dangerous or :noxious substances shall, (h) T'he prevention of infringement of the customs, fiscal, when exercising the right of innocent passage through the immiglration. or sanitary regulations of the coastal State territorial sea, carry documents and observe special pre. cautionary measures established for such ships by interna- 2 Such laws and regulations shall not apply to or Oaftcl tional agreements, the design. construction, manning or equipment of forcipl: ships or matters regulated by generally accepted internation :;l. rtles unless specifically authorized by such rules. A rtikle 2$ 3. Ihe coastal State shall give due publicity to all such laws and regulations. Duties of thle C'eoaifal S'tate 4. Foreign ships exercising the right of innocent passage I. The coastal State shall not hamper the innocent through the territorial sea shall comply with all such laws and passage of foreign ships through the territorial sea except in regulations and all generally accepted international regula- accordance with the present Convgntion. I n particular, in the tions relating to the prevention of collisions at sea. application of the present Convention or of any laws or regulations made under the present Convention, the coastal State shall not: Article 21 (a) Impose requirements on foreign ships which have the practical effect of denying or ij . ng the right of innocent Sea lanes and traic . separation seCemes passage; or� , 'K '�i& :. �' in the territorial sea (h) Disc'liminate in fornii ftai against the ships of any State or against ships carrying cargoes to, from or on behalf of I. "T'he coastal State may, where necessary having regard any State. , to the safety of navigation, require foreign ships exercising 2. The coastal State shall give appropriate publicity to the right of innocent passage through its territorial sea to use to navigation ofwhich it has knowledge, within such sea hlanes and traffic separation schemes as it may its territorial sea, designate or prescribe for the regulation of the passage of ships. � 2, In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes. -54- Article 24 non-compliance by a warship or other governmentl lhts Riht.v of protection of the coastal State operated for non-commercial purposes with the Iaus a,i, regulations of the coastal State concerning passage thitugh I. The coastal State may take the necessary steps in its the territorial sea or with the provisions of the prica territorial sea to prevent passage which is not innocent. Convention or other rules of international law. 2. In the case of ships proceeding to internal waters or a ": call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to / Jt/ntreX iiS t nrcial ,oe 1 internal waters or such a call is subject. 3. The coastal State may, without discrimination amongst With such exceptions as are contained in subsection .\ ind foreign ships, suspend temporarily in specified areas of its in articles 29and 30, nothingin the present Convenlioliatlc�r, territorial sea the innocent passage of foreign ships if such the immunities of warships, and other government ,hirp suspension is essential for the protection of its security. Such operated for non-commercial purposes. suspension shall take effect only after having been duly published. A rtile 25 Charges bwhicht may be levied upon foreignt ships 1. No charge may be levied upon foreign ships by reason only of their passage through the territorial sea. 2, Charges may be levied upon a foreign ship passing through the territorial sea as payment only for'specific services rendered to the ship. These charges shall be levied without discrimination. SUBSECrTION C, RULES APPI.ICABI E TO WARSHIPS AND OrTH ER GOVERNMENT SHIPS OPERATED FOR NbN-COMMERCIAI. PURPOSES A r/ic'le 28 Dtfinition o' Iarships For the purposes of the present Convention, "warship" bieans a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the .Government of the State and whose name appears in the .appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline. Article 29 Non-observanice by war'.hip. o)' the lawls and regutlalions ofl the coastal State If any warship does not comply with the laws and regula- tions of the coastal State concerning passage through the territorial sea and disregards any request for compliance which is made to it, the coastal State may require it to leave the territorial sea immediately. Article 30 PResponsibility of the flag State for damage e(au.sed by ea warship or other governmllent ships operated for nlont- o immercial purposes The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the -55- Chapter VI: Right of access of land-locked States to and from the sea and freedom of transit , Article 109 ' Use of termns I. For the purposes of the present Convention: (at) "Land-locked State" means a State which has no sea- coast; (b) "Transit State" means a State, with or without a seacoast, situated between a land-locked State and the sea through whose territory "traffic in transit" passes; (c) "Traffic in transit" means transit of persons, baggage, goods and means of transport across the territory of one or more transit States, when the passage across such territory, with or without trans-shipment, warehousing, breaking bulk or change in the mode of transport, is only a portion of a complete journey which begins or terminates within the territory of the land-locked State; / (d) "Mean'sof transport" means . r (i) Railway rolling stock, sea, lake and river craft and road vehicles; (ii) Where local conditions so require, porters and pack animals. 2. Land-locked States and transit States may, by agree- ment between them, include as means of transport pipelines and gas lines and means oftransport other than those i'cluded in paragraph 1. Article 110 Right of access to atndfjrno the sea aindfi'eedom of rtralsit I. Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in the present Convention including those relating to the freedom of the high seas and the principle of the common heritage of mankind. To this end, land-locked States shall enjoy freedom of transit through the territories of, transit States by all means of transport. 2. The terms and conditions for exercising freedom of transit shall be agreed between the land-locked'States and the transit States concerned through bilateral, subregional or regional agreement, in accordance with the present Convention. 3. Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures to ensure that the rights provided for in this Chapter for land-locked States shall in no way infringe their legitimate interests. Article I 1 Exclusion of cpplication o'f the mnost-fi oltrm'ed-natiion cllarts. Provisions of the present Convention, as well as special agreements which regulate the exercise of the right of access to and from the sea, establishing rights and facilities on account of the special geographical position of land-locked States, are excluded from the application of the most- favoured-nation clause. -56- 2. Scientific Research. THE CASE OF EDISTO AND EASTWIND, 57 Dep't State Bull. 362 (1967) On August 16 the United States Coast Guard Under these circumstances, the United Stflttii announced that the 209-foot Coast Guard ice- considered it advisable to cancel the propo d breakers Edisto and Eastwind planned an 8,000- circumnavigation. The Edi'to has now Ibr, mile circumnavigation of the Arctic Ocean, ordered to proceed directly to Baffin Bay, and conducting scientific research enroute. Their the Eastwind was ordered to remain in the arM itinerary called for them to travel north of the of the Kara and Barents Seasi for about a raont}, Soviet islands of Novaya Zemlya, Severnaya to conduct further oceanographic researll. Zemlya, and the New Siberian Islands. i On August 30 our Embassy in Moscow sent The planned course was entirely on the high a note strongly protesting the Soviet positioll. seas and, therefore, the voyage did not require The note pointed out that Soviet law cannot any previous clearance with Soviet authorities. have the effect of changing the status of inter. Nevertheless, the Soviet Government was offi- national waters and the rights of foreign sAi[l cially informed of these plans just prior to the with respect to them. These rights are set fornh public announcement. clearly in the Convention on the Territorial ,S However, heavy ice conditions made it im- and the Contiguous Zone of April 29, 19587 t,; possible for the vessels to proceed north of which the Soviet Union is a party. Sovernaya Zemlya. On August o24 our Embassy There is right of innocent passage for all in Moscow notified the Soviet, Ministry of For- ships through straits used for international eign Affairs of this situation and stated it would navigation between two parts of the highl sai. be necessary for the two vessels to pass through whether or not, as in the case of the Villkitikv Vilkitsky Straits south of Severnaya Zemlya in Straits, they are described by the Soviet ULni;,i order to complete their journey. as being overlapped by territorial wvatersm, ail In response the Soviet Ministry of Foreign there is an unlimited right of navigation on Ih0 Affairs made a statement to our Embassy that high seas of straits comprising both high se~l the straits constituted Soviet territorial waters. and territorial waters. Clearly, the Soviet Goyv On August 28, as a result of a routine message ernment, by denying to U.S. vessels their right, from the icebreakers to the Soviet Ministry of under international la*' has acted to frustnlt4 the Maritime Fleet, the Soviet Ministry of For- a useful scientific endeavor and thus to deprive, eign Affairs reaffirmed its declaration of August the international scientific community of IV, 24 and made it clear that the Soviet Govern- search data of considerable significance. ment would claim that passage of the ships through the Vilkitsky Straits would be a viola- tion of Soviet frontiers. -57- 3. Contiguous Zone (a) CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE, 516 U.N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639, in force September 10, 1964. Article 24 1. In a zone of the high seas contiguous to its terri- torial sea, the coastal State may exercise the control nec- essary to , (a) Prevent infringement of its customs, fiscal, im- migration or sanitary regulations within its territory or territorial sea; (b) Punish infringement of the above regulations com- mitted within its territory or territorial sea. 2. The contiguous zone may not extend beyond twelve miles from the baseline from which the territorial sea is measured. 3. Where the coasts of two States are opposite or ad- jacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured. (b) Informal Single Negotiating Text, U.N. DoC. A/ CONF. 62/ wp. 8/ REV. 1/ PART IIs Article 32 2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. -58- UNITED STATES V. LOUISIANA United States Supreme Court, 1969 394 U.S. 11, 35-47 II. APPLICATION OF THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE. Many issues divide the parties concerning the appli- cation of the provisions of the Convention on the Territorial Sea and the Contiguous Zone to the Loui- siana coast. Some of these issues, which involve simply interpretation of the Convention, we have been able to decide on the basis of the materials now before us. Others, however, are primarily factual questions involving the construction and application of the Con- vention's provisions with respect to particularized geo- graphical configurations. Several of these factual dis- putes cannot be properly resolved without evidentiary hearings, and as to others we think it would be wise at all events in this technical and unfamiliar area to have the benefit, preliminarily, of the judgment of a detached referee. Accordingly, we have decided to refer to a Special Master the task of resolving in the first instance several of the particularized disputes over the precise boundary between the submerged Gulf lands belonging to the United States and those belonging to Louisiana. 1. Dredged channels. A recurring question in the application of the Convention to the Louisiana coast is whether dredged channels in the Gulf leading to inland harbors comprise inland waters. In support of its contention that dredged channels, as such, are inland waters, Louisiana relies principally on Article 8 of the Convention: "For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast." Incontestably, Louisiana argues, the channels "form an integral part of the harbour system"; that they are "harbour works" as well should also be obvious in light of the enormous cost and effort which the United States has expended in dredging and maintaining them. The United States argues more convincingly, however, that Article 8 applies only to raised structures. The discussions of the Article by the 1958 Geneva Conference and the International Law Commission reveal, that the term "harbour works" connoted "structures" and "instal- lations" which were "part of the land" and which in -59- some sepse enclosed and sheltered the waters within.'2 It is not enough that the dredged channels may be an "integral part of the harbour system"; even raised structures which fit that description, such as lighthouses, are not considered "harbour works" unless they are "con- nected with the coast." Thus, Article 8 provides that "harbour works . . . shall be regarded as forming part of the coast" (emphasis supplied), a description which hardly fits underwater channels. As part of the "coast," the breadth of the territorial sea is measured from the harbor works' low-water lines, attributes not possessed by dredged channels." We must therefore conclude that Article 8 does not establish dredged channels as inland waters. Louisiana also contends that the legislative history of the Submerged Lands Act reveals a clear congressional purpose to include such channels as inland waters. Early versions of the bill contained a definition of the term "inland waters" for the purposes of the Act, and that definition included "channels." The definition was later deleted, but Louisiana contends that the sole purpose of the deletion was to avoid a construction of the definition which would exclude other areas from inland waters." In United States v. California, 381 U. S. 139, 150-160, we reviewed at length the pertinent legislative history and concluded that the only sure inference which could be drawn from the deletion of the definition was that Congress thought the highly tech- nical question should be left to the courts. We remain of that view. Moreover, it is far from clear that the word "channels" in the deleted definition encompassed dredged channels in the open sea. From the context in which the word appears, it is far more likely that the definition referred only to bodies of water bordered by land. 2. The territorial sea of low-tideelevations. Article 11 of the Convention on the Territorial Sea and the Con- tiguous Zone deals with the subject of low-tide elevations: "1. A low-tide elevation is a naturally-formed area of land which is surrounded by and above water at low-tide but submerged at high tide. Where a low- tide elevation is situated wholly or partly at a dis- tance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. "2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no terri- torial sea of its own." -60- The question presented by the application of this pro- vision to the Louisiana coast is whether the territorial sea--or, for purposes of this case, the three-mile grant to Louisiana under the Submerged Lands Act-is to be measured from low-tide elevations which lie within three miles of the baseline across the mouth of a bay but more than three miles from any point on the mainland or an aland _ _ The United States argues that the phrase "at a dis- tapce not exceeding the breadth of the territorial sea from the mainland" does not refer to the territorial sea as a situs. Rather it uses the width of the territorial sea only as a measurement of distance-a circumlocution made necessary by the failure of the 1958 Geneva Con- ference to agree upon a uniform width. And that distance-three miles in this case--is to be measured from the "mainland," a term which does not comprise baselines across bodies of water but is limited to the low-water mark on dry land. Louisiana, on the other hand, interprets the Article as covering all low-tide ele- vations situated anywhere within the territorial sea. And the drawing of baselines across the mouths of bays is an integral step in the determination of the area of the territorial sea. Moreover, Louisiana argues, the term "mainland" does include inland waters. The theory of the Convention, it is argueld, reflects a long-standing prin- ciple of international law---that bays and other inland waters are practically assimilated to the dry land and treated for all legal purposes as if they were a part of it. The parties agree that Article 11 on its face is not wholly dispositive of the issue, and that the language does not preclude either construction. Each party, therefore,' relies onf the origins of the Artiele anld the statemlets of its drafters. When the provision *was first proposeAd to the Internatiolnal Law Commission in 1952, it read as follows: "Elevations of the sea bed situated within the territorial sea, though only above water at low tide, are taken. Illto conslaeration tor the determmatlon of the base line of the territorial sea." (Emphasis supplied.) After several amendmuhents to the rapporteur's draft, the Commission in 1954 adopted a version with sub- staltially the same meaning: "Drying rocks and shoals which are wholly or partly within the territorial sea may be taken as points of departure for delimiting the territorial sea." (Emphasis supplied.) As the discussion made clear, both drafts of the Article covered all low-tide elevations within the territorial sea, however measured. Moreover, the provision was thought to embody long-standing principles of inter- national law. -61- The draft encountered a serious objection, however, which led to its further amendment by the International Law Commission. If every low-tide elevation "within the territorial sea" was to have a territorial sea of its own,, then "a country like Holland might extend its territorial sea very considerably by advancing from one shoal to another, claiming that a shoal situated within the' territorial sea of another shoal had itself a- territorial sea." To avoid this undue extension of the territorial sea, the' final draft of the Commission was revised to read as follows: "Drying rock and.drying shoals which are wholly or partly within the territorial sea, as measured from the mainland or an island, may be taken as points of departure for measuring the extension of the. territorial sea." (Emphasis supplied.) It is clear that under the International Law Commis- sion version of Article'l11, the "territorial sea, as meas- ured from the mainland" included those portions which extended from baselines enclosing baysils The sole pur- pose of the amendment to the initial proposals-was to indicate that "drying rocks and drying shoals could only be used once as points of departure for extending the terri- torial sea and that the process could not be repeated by leapfrogging, as it'!' were, from one rock or shoal to another." The United States contends that by 6hamging 'the lan- guage of the International Law Commission draft to its present form in 'the'Convention, the Geneva Conference intended also to- change its meaning. Precisely the opposite conclusion, however, flows from anr inspection of thle history of the Convention. The amendment was advanced by the United States; yet its explanation for the proposal contained not the slightest indication that any change in the basic meaning of the.-Article, was in tenlld."' Surely there would have been some dis- cussion of the reference to the territorial sea as a measure of distance rather than as a situs had it been the purpose of the Upited States or the Cpnference to alter so sig- nificantly the meaning of prior drafts and the existing international consensus. Instead, the expert to .the Secretariat of the Conference explained "that all the proposals on article 11 corresponded entirely to the ihtentions of the International Law Commission." We therefore conclude that low-tide elevations situated in the territorial sea as measured from bay-ciosing lines are part of the coastline from which the three-mile grant of the Submerged Lands Act extends. -62- SNYDER V. MOTORISTS MUTUAL INS. CO. Court of Appeals of Ohio, March 17, 1965 2 Ohio App. 2d 19, 206 N.E. 2d 277 which this case was based occurred with- in the continental United States. In this action commenced in the Court .I n thi s action commenced in. t h e Cour t "(3) The court erred in overruling the of Common Pleas of Summit County for motion of the defendant for judgn motion of the defendant for judgment damages blased upon a policy of insur-g and notwithstanding the verdict followings and notwithstanmllng the verdict ance, a judgment was entered on the ver- dict of a jury in favor of the boat owner, Harvey J. Snyder (plaintiff-appellee), and "(4) The court erred in overruling tle against the Motorists Mutual Insurance motion of the defendant for a new trial. Company (defendant-appellant), which "(5) The judgment of the court is conl- company had issued its policy of insur- "() The judgment of the court is con- ance covering damage to the boat and trary to law. loss to the owner occurring "within the The Insurance Company claims that a limits of the continental United States of point in the ocean beyond three nautical America * * *." miles from the coast line is not within The main issue before this court is the continental limits of the United States, The main issue before this court is whether the trial court erred inh charg- as that language is used in the policy uf ing the jury, as a matter of law, that the insurance. loss in damages to the sunken boat oc- In our research of the questions in this curred within the limits of the continental case, we have been unable to find a re- United States of America. ported decision of any reviewing court It ap p e ar s from the evidence that on in the country defining the contract limita- It appears from the evidence that on tion provision before us although the limi tion provision before us, although the limi- March 8, 1960, Snyder was engaged in tation of risk as to place appears in a the sport of fishing from his boat il the nuiber of standard contract forms. Atlantic Ocean off the Florida Keys, when the craft capsized. The geographical point From decided casts in this state of mishap was located as being approxi- mately four nautical miles from the center ral rules governing the intrpretation o eral rules governing the interpretation of of Bahia Honda brilge, and three andinsrance contracts may deduced: six-tenths miles from the nearest shore line, and in a part of the ocean having 1. A contract of marine insurance must a water depth of approximately thirty-one be given a fair and reasonable interpre. feet. tation to cover the risks anticipated by the parties; In the appeal from the judgment against it, the Insurance Company urges the fol- 2. The contract is strictly construed lowing assignments of error, which arel against the insurer and favorable to tle declared to be of a prejudicial characterl insured; and to require a reversal of the judgment:1 3. Where several interpretations art "(1) The court erred in overruling mo-: reasonably possible, that which will favor I the insured will be adopted; tions of the defendant for a directed ver- the insured will be adopted; diet at the close of the plaintiff's evidenc . Ambiguities in the policy will ! 4. Ambiguities in the policy will be re. and at the close of all of the evidence. solved against the insurance company, s, 1 as to give effect to the donminant purpost "(2) The court erred in charging thea o f the ontat an d jury as a matter of law that the loss uponi of the contract; and 5, If an insurance company, in issuing a marine policy, desires to limit or re strict the operation of the general provi. -63- Simns of its contract by limiting its risk occasions may be taken for these here- as to place, it shoull do so in clear and after, fnds it necessary in the meantime illlllista;kable langualgc. to fix provisionally on sonmt. distance for the present government of these questions. From early timed~, it has becn rec- |You are sensible that .very different opin- (gnized that the sovereignty of nations ions and claims have been heretofore ad- bordering the seas does not stop at the vanced on this subject. The greatest dis- dhoreline, but that for some distance it tance to which any respect able asseit extcnds over and under the ocean. Grotius among nations has been at any time given, Ideclared, in "The Law of War and Peace," has been the extent of the human sight, Ilook II, Chapter 3, Sections 13-14, that estimated at upwards of twenty miles, ;nd territorial rights extended over as much the smallest distance, I believe, claimed by Of thle sea as could be defended from the any nation whatever, is the uc tost range shore. of a cannon ball, usually stated at o6n league. Some intermediate distances have A Dutch Judge, Bynkershoek, in his also been insisted on and that' of three .treatise, "De dominio Maris," (1702), sea leagues has some authority in its fa- wlte: "Wherefore on the whole it seems vor * * *." 1 Moore's Digest of In- a blettcr rule that the control of the land tcrnational Law, 702, 703. i',ver the sea) extends as far as cannon will carry; for that is as far as we seem In connection with this letter, it may lie to hlave both command and possession. T observed that Thomas Jefferson; when :tin speaking, however, of my own times, President of the United States, stated to in which we; have these engines of war; John Quincy Adams, in conliection with a illherwise, I should have to say in general claimed act of hostility by a French priva- ,rmis that the control of the land ends teer near Charleston, South Carolina, that llrtre the power of men's weapons ends; "we ought to assume as a principle, that the flir it is this, as we have said, that guar- neutrality of our territory should extend to ';ntees possession." International Law- the gulf stream which was a natural bound- ta;iss and Materials, by William W. Bish- ary." ;bid. ,'ll, Jr., 375. The several observations made above in- In succeeding generations, scholars and dicate the confusion which existed in by- ,riters frequently tended to equate the dis- gone years with respect to sovereignty over tlee of a cannon shot with one league territorial ocean waters bordering the line ,r three nautical miles. (Statute or land of low tide on the sea coasts. HIowever, iiile-5280 feet; international nautical mile 'the needs of nations to exercise jurisdic- --6,076.10333 feet.) tion over the waters along their coasts became increasingly important in the in- On NovembeP 8, 1793, Thomas Jcfferson, terest of self-defense, and the three-mile ;n his capacity as Secretary of State of limit was informally accepted by the Unit- i'ae Ulnited States, wrote the British Min-led States and Great Britain, while other ,Ner as follows: countries claimed wider belts. "The President of the United States, thinking that, before it shall be finally '6ecihecd to what distance from our shore agreement has been reached on a uniform !:nes the territorial protection of the Unit- distance * * *. In the establishment koli States shall be exercised it will be of a rule of international law, two major prhlpcer to enter into friendly conferences principles must he respected: (1) the sov- lnir explanations with the powers chiefly ereignty of the coastal nation, and (2) the '"e!rested in the navigation of the seas freedom of the high seas. The reconcilia- on our coasts, and relying that convenient tion of these two principles has been the -64- stumbling block thus far. Perhaps the one It is comnon knowledge ttlth pen- point of agreement by all nations is that of the titel Stes thl trillg the pit of the United Siates that (hiring the 3 miles is the mininmum breadth, or, stat- years of operation of the Submergcd l.alail ing it differently, 3 miles is tile one dlistance Act, all the Outer Contlilllill Sllc on which there is complete unanimity of Lands Act, the government (if jli( Lnitedl opinion * * *." Shorc and Sea IBound- States has received millions of doll;lrs ifrnm aries, Aaron L. Shalowitz, page 25. Ieascs of sLihni'ged lands heyonsl thi While generally adhering to the doctrine thrc-lnile limit otl the contillltal %l4li of the freedom of the seas beyond the adjacelt to the shore line of the V4nitl three-mile limit, the United States has, oil Stats. numerous occasions, exercised authority be- It thus appears that the pl;ce xllrr yond the limit, in the fields of law en- the o;ltinl accident il the instalt l.sh-ir forcement and national security. Congress occur , al a short distance lovinti has authorized federal officers to board the three-mile limnit, was above tilt c.niti- vessels bound for the United States ports nental shelf of the Unitt St;tes, ald ovi when within four leagues, or four nautical llls which the 83rd Congress of the lit- miles, of the coast for the purpose of de- ed States (Public Law 212, 67 StatC. oat termining the character of the cargo. 1,. 462) (leclared suhject to "[tiht (''lmli Similar laws were enacted to enforce na- tution ande laws alul ciil and politle;l ju tional prohibition. n risdiction of the United States" fol, thi The principle underlying the three-mile purpose of "exploring for, developling, r. limit rule appears to be the attempted cs- mloving, and transporting resources tlwrr- tablishment of a "freedom of the seas" from, to the same extent as if the lluter doctrine, the right of free navigation, anti Continental Shelf were an area of *,xclu- the right of free fishing on the high seas, sive l'edleral jurisdiction located willtill which are recognized by some nations, in- State * * *.' eluding the United States, as rights be- longing to all of the peoples of the world. It is our view that the litlgil;lgc s ee America of the policy limiting the risk as to, plac,; lFnrthermlore, it has beell Americaln p,,l- Ias one occurring "withini tile (Col tillntid icy to establish national dominion over a limits of the United States" is fraltht wilt definite marginal zone (the three-mile lim- so lincil anlUignity that it is beyonl rcn- it) to protect our neutrality against foreign soalile defiition. In the coitext in whids it is employed, it could mean (1) ithill The foregoing statement of government- the three-mile limit; or it conull niral al policy does not define limits of the con- 2) beyond the three-mile limit, aull ovtt tinental United States, any more thal *1o Ihe "continental shelf" (and perilhaps at the various decisions of the Supreme M!lluirous other places unnecessary to cx- Court of the United States in ruling upon ;lnre here). the rights of states, as against the rights of the federal government, to oil and min- T'herefore, first: resolving the am- erals under the waters of the ocean within Iliglious language against the insurance and beyond the three-mile limit; or the ,illriany to give effect to the dominant various laws enacted by the Congress of ;,nrpose of the policy, and, second: adopt- the United States known as the Suinlmerg- :g tmle reasonable interpretation of the ed Lands Act, alll the )Outer Continciltal ';nmtilental shelf" theory which will give Shelf Lands Act. (Itlnder the la.tter Act, 't,'l to the policy; andi, third: strictly the United States claimls the right to oil l,,,struing the policy against tl-le insurer, beneath the continental shelf and beyond ,i1 in favor of the insured; this court the three mile limit.) .rdlerS a judgment of aflirmance. ETvery continent rests on a submari no error committed y te ,lase .hich V'e findl no error committed by the lrirl base which extends seaward from the base which extends seaward from thc 'nrt prejudicial to the rights of the ap- shore. This underwater extension on the nilat, the Motorists Mutael Dnsurance part of the continent above sea level is called the "continental shelf." It has becen ,uy. defined as the submrerged portion of a cou- llJudgmient affirmed. tinent which slopes gently seaward fronm the low water line to a point under the 13RENNEMAN and IIUNSICKER, sea where a substantial break in grale IJ conur. occurs, at which point the bottom slopes steeply until the great ocean depths are reached. The point or line or bpeak dei- fines the edge of the shelf. -65- B. Straits, Bays, and Historic Waters REPORT OF U.S. SENATE COMM. ON COMMERCE 9kt h CONG., IST SESS., THIRD U.N. LAW OF THE,' SEA CONFERENCE 28-29 (comm. Print 1975) TERRITORIAL SEA AND INTERNATIONAL STRAITS The question of the limlits of tile territoriatl seat and transit through ijiternational straits is also being examined by Coiniittee If. Agree- ment on territoritil sea., and straits is of vital importanlce for tbe suc- cess of the Conference. While the majority of Stat~es represented at tile 'Third Law of thle Sea Conference favor adoption of a 12 nautical miles territorial sea, there are some significant complications whichl heave, made, progress on this matter difficult. TA' xtension of territorial limits to 12 miles, would. mean that over 100 straits niow classified as inter- national wvatersr-including the English Chjanneb, the'St'raits of Gibral- t~ar, M~alacca, and. lormautz, to name four of thle niost important-will come under national contbrol. Under a 3-mile territorial sea, those, straits now include high seas. of ~ul overall satisfactory settlement, it would be willing to accept aI 12'-mile territorial sea. However, the U1.S. has Toupled itLs willingneoss to agr'ee to a .12-m-ile territorial seat with recognition of' IIret right of un1imlpeded transit throughl and over straits kiscd foi- international navigo Lion. Without a right of uinimpeded -transiot, it inight be po(,,- s-ible to assert that only'the rightof innoceint pa:,sa-v would apply. Innocent paisqage does not. perrmit submerged tyansit. by submarines or overflight by aircraft.. 1\oreovfer, there is no generally agreed in- ternationlal understanding(L of what passage is "innocent,'" and somes *strait stile.; have interpreted. thle term innocent pas~;agc irlsuch a Way as to consider large petroleum tankers or nuicleai:-powered vessels inherentlv " not-innocent..' Since international Straits, serve as acces's and conniecting points for large areats of tile oceanls, free transit is of vitail sietriteg ,and economic imiportanic.. And because of their speciail Promanune, the potential of conflict from an uncertainl legal regimie, is greath v inereased in straits. Th'le U.S. reeo-nize', tile le-itirniate coii- -eerns of sinlt states and has proposed international safety and, polliu- tioli I-eguilhtiolls. IPosiiion of ira-it State~s.-I'le lposition of the strait States was dearly descri~bed in the draft, articles5 onlinavigation through territorial seas a.n11 international straits, introd ice,(l in 197:3 by ClYprus, Greece, In1donesda, Morocco, Spainl aimd Yedidmi. Th'lese states Avant to maintain tile conceopt of innocenti passage flnd stated in thleir draft propoaIll that mairitimne safety and coastal State security will be served best. "by the reasonable and adequa-te exercise by the (oastal State of its right to regulate navigation throuigh its territorial sea, since the4 purpose of the freguation is not; to prevent or hjamnpr j)iissgeo but to -66- fatcilil liteIit without Causing any adverse effect- to the coastal State." The1( draift, trticles include it number of general articles applying' to aill vC55(eI5, and specific articles for mnerchaint ships, warships, govern- lunejt ships, other than warshlips anld Ships with Special Characterist~ics, such ats nucleair-powered ships, shi ),. carrying nuclear substances "for liny oilier material which maty eid ager~ the coastal State or pollute Seriou sly I he m urine environment'' and ships engaged in researcli of the marinle environment. Under the articles, the coastal State wouldI 1ave tile right1 to regulate, paissage through its terriitoriall seat (whlich includes stralits of 24 nautical miles or narrower) of ships With special ch111aracteristics, which in view of the referrence to) vessels that coul1d serioiisly pollatie the marine, environinent, incluide, tankers. Coastal401 St ates Could also require prior notificationl to or autho~izatioll by, its authtoritiet; for nuclear-p)owered ships, or. ships carryin iTulear wcl1sand submarines would he, required to navigate o)ilnte, suirface aind it) s'iow their flaig. The samne, rules, of prior notificattioni to or aut Juorhiat ion. Im the competent, auithorities of thle coastal State 'Would ailso apply to ail warislips and government ships other thanf warships operate'A for non-comunercial purposes. Wlifle the position takeil by strait, States is inacceptable to incst mmailille countries, the latter dlo agree that ships till([ airciraft in transit. Sh ould complly with gy-ni Orally accepted interna lional regula- tionls, p)10(zEdure" aln practic'es, fil(I they h~ave encouraiged Coastfd Sttsto propose, traffic separationl "clieiies for saf(,ty3 of' Tilvigation in crowdlcd si rails in or(ler to priomnote saife passage of shp.The lnaritilll( Paao l do r0cognlize, tile inlpertanco of fully protecting t~l ru arineo etivi iolin)eu t., but thley want, international regulations, pro- cCedlllres a Id practices for thie preventiom and control of polluttion fiomi ship~s. T)I eyc al so f avor a (leq uate inteorn ation al pr(ovisions. f or crimponsa- tion sh~ould damalige( result despite, thle most rigorous prevention At thio Caracas session there. was., little public movement tfoward conciliat ion on the pairt, of the strait -tate-s, but debat~e was-, less he.ated than I previosoccaions. Agreement on a 12-mile territorilkse was Sio Wides~preadt that there were. virtually no referenccs-, to anly 'other limit in. I lie, public ckbate. Howeover, mtkjor conditions for the accept- anco, of' 12 miles as, a roaximumi limnit werev agreement, onI uimped transit of stig its and acceptance of a 200-mile, exclusive 6(1onom6icl -67- UNITED KINGDOMI DRAFT ARTICLES ON STRAITS U.N. Doc. A/CONF. 62/C.2/L. 3 3 July 1974 CIIA'lTER 111. PASSAGE O) STRAITS USE)D FOR Article . INTFRNAT'IONAL NAVIGATION NATINA NAVIGATIN 1. In conformity with this chapter, a straits Statlc may Artitcle I designate sea lanes and prescribe traffic scplr:ltion scthemes for navigation in the strait where necessary to promote the I. In straits to which this article applies, all ships ad air- safe passage of ships. cralt enjoy the right of transit passage, which shall not be im- 2 A straits State may when circunst;nces reqlirc all peded. after giving due publicity to its decision, substitute other sea 2. Transit passage is the exercise in accordance with the lanes or traffic separation 'schemes [ior any prex iously desig- provisions of this chapter of the freedom of navigation and nated or prescribed by it. overflight solely for the purpose of continuous and expeditious 3. Before designating sea lanes or lrescribilig traflic scluira- transit of the strait between one part of the high seas'and tion schemes, a straits State shall refelr poposals to the cornlle- another part of the high seas or a State bordering the strait. tent international organization and shall designate such sta lanes or prescribe such separation schemes only as approved by 3. This article applies to any straiotherstretchofwater, that organization. whatever its geographical name, which: (a)wishusedforinternationalnavigationamh: 4. The straits State shall clearly indicate all sea lanes and (a) is used for international navigatiow. separation schemes designated or prescribed by it on charts to (h) connects two parts of the high seas. which due publicity shall be given. 4. Transit passage shall apply in a strait only to the extent 5. Ships in transit shall respect applicable sea lanes and that: separation schemes established in accordance with this al ticc. (a) an equally suitable high seas route does not exist through the strait: or Article 4 (h) if the strait is foriled by an island of the coastal State, I. Subject to the provisions of this article, a straits Staell an equally suitable high seas passage does not exist seaward of may make laws aind regulations: the island. (a) in conformity with the provisions of article 3 above; Arlicle 2 (h) giving effect to applicable intcrnational regulations re- i. Ships and aircraft, while exercising the right of transit garding the discharge of oil, oily wastes and other noxious passage shall: substances in the strait. (a) proceed without delay through the strait and shall not 2. Such laws and regulations shall not tliscriminate in lorll engage in any activities ofher than those incident to their or in fact among foreign ships. normal modes of transit; 3. The straits State shall give due publicity to all such laws I(b) refrain from any threat or use of force in violation of the and regulations. Chafter of the United Nations against the territorial integrity 4 Foreign ships exercising the tight of transit pasage shil or political independence of an adjacent straits.State. comply with such laws and regulation. ot the straits State. 2. Ships in transit shall: 5. a ship entied to sovereign inmunity does not coniply (a) comply with generally accepted international regula- with any such laws or regulations and damage to the straits tions, procedures and practices for safety at sea, including the State re'silts, the Hlag State shall in ,accordance with allicle 7 he International Regulations for Preventing Collisions at Sea, of responsible for any such damage caused to the straits St;lat 1972; Artice 5 (h) comply with generally accepted international regala- tions. procedures and practices for the prevention and control User States and straits States shouild by agreement co- of pollution from ships. operate in the establishment and maintenance in a stlait of 3. Aircraft in transit shall: necessary navigation and safety aids or other inilpovCltllets in -(a) observe rules of the air established by the International aid of international navigation or for tile preventiO and coll- Civil Aviation Organization under the Convention on Interna- trol ot pollution from ships. tional Civil Aviation signed at Chicago in 19442 as they apply Artichl 6 to civil aircraft; State aircraft will normtally comply with such safety measures and will at all times operate with due regard A straits State shall not hamper tanrit passg1;Le aild SllgllA for the safetly of navigation: give appropriate publicity to any danger to navigation ot oxcl- fIlight within or over the strait ofl which it h;as knowleICdge. I hl'cw (b) at all times monitor the radio frequency assigned by the sll he no suspw n sion ottransit pf whicta appropriate internationally designated air traffic control au- thority or the appropriate international distress radio fre- quency. -68- Article 7 I. Responsibility for any damage caused to a straits State resulting from acts in contravention of this chapter by any ship or aircraft entitled to sovereign immunity shall be ho ine by the flag State. 2. If a straits State acts in a manner contrary to the provi- sions of this chapter and loss or damage to a foreign ship or aircraft results, the straits State shall compensate the owners of the vessel or aircraft for that loss or damage. Article 8 I. In straits used for international navigation hetween one part of the high seas and another part of the high seas or between one part of the high seas and the territorial sea of a foreign State, other than those straits in which the r&gime of transit passage applies in accordance with article I, the regime of innocent passage in accordance with the provisions of part Ill of chapter 11 shall apply, subject to the provisions of this article. 2. There shall be no suspension of the innocent passage of foreign ships through such straits. 3. The provision of article 3 of this chapter shall apply in such straits. Article 9 Nothing in this chapter shall affect any areas of high seas within a strait. Article 10 The provisions of this chapter shall not aflect obligations under the Charter of the United Nations or under conventiona or other international agreements already in force relating toa particular strait. Article 11 In this chapter "straits State" means any State horderingta strait to which the chapter applies. Article 12 Any dispute concerning the interpretation or application of this chapter shall be settled in accordance with chapter. . . of this Convention. -69- John R. Stevenson, "INTERNATIONAL LAW AND THE OCEAN" 65 Dep't State Bull. 261 (1971) Breadth of Territorial Sea We believe the( right to transit, straits sol rrho first article, presciitad by mny Govermn b e regardedl in law for mhant. It- is in fait:t an woul~l establish a maximum breadth of 12 miles inherent ,id enwparable adilunct of thle five for the territorial sea. Trle )rimfe, distinguishing (loins of navigation and overflight on tile Hill, characteristic of the t e r r it orialseais thatte sa iemselves.,Without slich it right (if trotl charateritic o theterrtoria seais tht th sit these hi41X seas freedoms- wvould lose muinj coastal st~at~e exercises jurisdiction over naviga- of tlermaigi nepnino h er tion land overfliglit subject to at limited right of oftoeiri seaig if an miexpasis tof te teeriz'( ri innocent passage for vessels. We believe agree- oidsat12me stobrcrgz(I11l ruent inust be readied on a narrow territorial z We do not know whether most states that Ill. sea. Wile xr Govenment dhere to th tra-ready claim or recognize territorial seas of more ditional 3-mile limit, it is prepared to take into than 3 mile,, thereby. intendedI to relinquifA account the views of others aind to agree to a teronrgt ftasti motn ne' treaty fixing the maximum breadth of the terrn-naialsrtsoeapdbyertrilsa tornal sea at 12 nautical miles, if there is anofmrthn3ilsNehrhioynrlgi adequate agreement concerning...nternational (*ljesany state to concede Ithate anl extenlsionl straits--to which I Shall refoi rlbay. Ave il% ~ thle 12-mile figure because it represents til'ofterio seas has the same effects upon tlj~ best, probably the only, possibility for reail i-lkotle htraina omntyi tat as it. hats in other coastal qes Ile arneo in g agree~nint. It is apparent that tire oypr~ IYe'ut~o.an os alitrests ise quite dof- whelilning majority of states are prepared to i, 10"tialI' csalitrt s(ntedf cept thied 12-mile, limit. In most cases Nylivivnuhstoiutos bi'oader jurisdictional claimsq have been rnadv, the reasons for those claims were resoirm' Free Transit of International Straits oriented. *We believe that the, real concerns (if- Thea second article we are p)rosciting recog- those iev state that hae claimd hrotd~ j nimc this, dist~inction by providin~g for a right limits for the territorial sea can be ,accounts, el tree t'asit for vessels and aircraft through dtated in the course of tile wvork of this andi tile ", over liteaiolsrisovrapdb other subcommittees. f~~~~~~erritorial seas. 'Coastal states would have the Hlowever, interests in international niaviga Igilt to designate corridors suitable for tran- tion and overflight 'are not adequately accoinrrro. i k r4, hot they would not be oblige d to do so. For dantedl with a 12-mile territorial set, alone. liM I (lir part, we are' prepared to consider whether agreei ng to extend the territorial sea f romi 3 tO vollstal and international interests could he 12 miles, we would place many important staitut 1ioiilitrly reconciled in the case of island na- totally within the territorial sea of ripitri):Ir Nv;r~ hose problems were discussed by the dis- states, thus subjecting movements throughi siich liirgoished Representative of Fiji in his recent straits to the limitations of innocent passaigi. ~anet 'Iho doctrine of innocent pils~ge is not adeqrrate, %Ir. Chairmanl, the United States, believes that 'when ap~plicd to international straits. For exani. "raiets ivider than 6 maile currently have high Inle, Norne states consider "innocence" to lj( zi "i Wirthin them., where states itay exercise fihe subljective crilterion to he left to the discretion frovcloilrs of thle high seas. Iln short, the present of tire coastal state. Some argueo that Pamige all, of international law in virtually -,ll of thle of certain types of vessels is inherently non,. Cltnnjt, of concern is freedoma of thme seas. To hinnocent or thatt inniocence may depend onl liii' a'r'ewdsra neiional agreemnent, we flag, cargo, or destination of a vessel, Under the I nir prepared to give up~ high seas f reedtoms in Territorial Sea Convention, neither aircrift 0100 international strmita-in exchrinrge for a nor submerged submarines have a right, of iroro- 1:n1ited hutitvital right. Subject only to the right cent passage. rif faire transit, territorial waters in interna- 41111:l Stratits1 Would retaki -their na1tioniVl char- -70j ~dlr in each and every respect. The, new right, f ie tlransit would only apply in inJterna- Mr. Chairman, the first two articles Iwe are ,Ial Stalit:, using tle definition that wvas presenting, we believe, would together provide i ,iitl t thle 195s8 ]Law of the Sea Conference; the necessary accommodation of the interna- \i,ll,(l not apply to other territorial or inter- tional and maritime interests in navigation and I \:atejrs. Morqover, the righllt is a narrow overflight that I have outlined. They constitute ,.merlely one of transiting the straits, not basic elements of the oceans policy announced .O 'l,,allhceting an.y other activities. Should a by our President last year.' I trust that the con- . oI ,cnduct any other activities that are in siderations I have discussed explain why my 'a ,'ltiJlI of coastal state laws and regulations, Government would be unable to conceive of a .I lillld 1e exceeding the scope of its right and su "sffuTh law-of-the-sea conference that did .:lltl lbe subject to appropriate enforcement not accommodate the objectives of these articles. ition bul)y the coastal state. We appreciate the fact that many countries W\li(eni we refer to enforcement of coastal attach greater importance to the question of off- .,lws I;tws and regulations, we intend to include shore resource management than they do to hIT:1nlileo traffic safety regulations both for freedom of navigation. We understand the rea- bie. anclsd :airctraft. We wvill, of course, want to sons for this, and it gives us hope that a success- ful law-of-the-sea conference can be achieved aplproach this question cautiously in order to preserve the basic righrt of free transit and through a process of negotiation withl Inutual ]preserve tlhe baslc right of free transit and avoid a situation in which the coastal state has respect for ac other's interests. a legal basis for using safety regulations as a effort t o balance coastal and international inter- effort to balance coastal and internationlal inter- M way of impairing the right of free transit. 'l'llcrs ?>e *ery fow countriests in seabed resources witlhout jeopardizing hllere are very few countries whose vital important navigational interest. tn~tl~! :Illd ,ommunications linlrs .ia not , nss important navigational interests. trade a'ed communications links do not pass e hope that the fact that nit States close to tlhe slhores of otler countries, particu- in interntiol it. coatal ttes fisheries, like those of many developed and tde- were given a legal basis for impairing transit, velopinL countries, comprise botll coastal ald vir*tually every country i'l the world would find distant-water interests will enable 1us to playi a its very depe eu po n the politicnl constructive role in helping tlis subcommittical onomy dependent upon the political to work toward achieving a balance of these goo(l will of some other state by virtue of geog- to wore toward achleving a t alanl of tlast "o ^ . interests acceptable both to coastal acud distant- raphty. sMtoreover, we seriously doubt that any water fishing states. To achieve this result, we coastal state located on a strait or important *.eIieve tile subconmlittee shoul1 avoid t.lhe navigational route would benefit from gaining extremes oh absolute fredom of ishin beyond extremes of absolute freedom of tishing beyomd suchll control over international navigation and 12 miles and of absolute all (xlusive coastal overflight. It would subject itself to strong and state control over fisheries in a fid ione beyoud conflicting domestic and international pressures miles. We atr e particularly coli edl o yollut eg~lrfieulinfi t~he exercise of sueh, control. 12 miles. We are particularly collrlnrce'l alboult regarding the exercise of such control. the implications of the latter J*o* *'the implications of the latter to navigation ,t vWe recogmnize the conern of many states bor- * overfliglht, in view of the hist.orical tendency to dering straits regarding the need to prevent over t, in Vie W of the otcal toll tlincy Ia asselt mole and more tylpes of cfllnirol wvithin pollution. Pollution control problems, however, fixed zolles of special-purpose jurisdictioll are not unique in straits. For example, the same l)robllems pertain in heavily traveled shipping roulltes. The doctrine of innocent passage is not adequate to protect both coastal and maritime interests in international straits. It applies only in territorial seas, and as I have mentioned, it is subject to varying interpretations by differ- ent coastal states. Specific international agreements are required to insure aoi~ropriate protction from the hazards of pollution. I should also point out that agreements specifi- cally relating to particular straits, such as the [1938f6] Montreux Convention [on the Turkish stra'its], would not he affected. -71- TEXTS OF DRAFT ARTICLES ARTICLE I 1. Each State shall have the right, subject to UI, provisions of Article II, to establish tile breadtl of tl, territorial sea within limits of no more than 12 nul;. cal miles, mieasured in accordance with the provisions of the 1958 Geneva Convention on the Territorial PzJ and Contiguous Zone. 2. In instances where the breadth of tile territorial sea of a State is less than 12 nautical miles, such Sall may establish a fisheries zone contiguous to its terri torial sea provided, however, that the total brealdtll ,l the territorial sea and fisheries zone shall not exw,4vl 12 nautical miles. Such State may exercise within wsl~i, a zone the same rights In respect to fisheries as it hai in its territorial sea. ARTICLE II 1. In straits used for international navigation HI tween one part of the high seas and another IPart ot the high seas- or the territorial sea of a foreign StatP, all ships and aircraft in transit shall enjoy the sauns, freedom of navigation and overflight, for the IpurlDas of transit through and over such straits, as they hlvlv,. on the high seas. Coastal States may designatt clr- ridors suitable for transit by all ships and airerafi through and over such straits. In the case of slrali. where particular channels of navigation are tel tomarily employed by ships in transit, the corrildrs, so far as ships are concerned, shall include shll channels. 2. The provisions of this Article shall not affect cln ventions or other international agreements already in force specifically relating to particular straits. -72- CORFU CHANNEL CASE .194.97 I.C.J. Rep. 4, 29-36 One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu. Having regar(l to these various considerations, the Court has arrived at the conclusion that the North Corfu Channel should he consildere(l as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace. On the other hand, it is a fact that the two coastal States did not maintain normal relations, that Greece had made territorial claims precisely with regard to a part of Albanian territory bor- dering on the Channel, that Greece had declared that she considered herself technically in a state of war with Albania, and that Albania, invoking the danger of Greek incursions, had considered it neces- sary to take certain measures of vigilance in this region. The Court is of opinion that Albania, in view of these exceptional circumstances, would have been justified in issuing regulations in respect of the passage of warships through the Strait,.but not in prohibiting such passage or in subjecting it to the requirement of special authorization. For these reasons the Court is unable to accept the Albanian contention that the Government of the United Kingdom has violated Albanian sovereiantv bv sending the warships through the Strait without having obtained the previous authorization of the Albanian Goverimient. In these circumstances, it is unnecessary to consider the more general question, much debated by the Parties, whether States under international law have a right to send warships in time of peace through territorial waters not included in a strait. The Albanian Government has further contended that the sovereignty of Albania was violated because the passage of the British warships on October 22nd, 1946, was not an innocent passage. The reasons advanced in support of this contention may be summed up as follows: The passage was not an ordinary passage, but a political mission; the ships were manoeuvring and sailing in diamond combat formation with soldiers on board; the position of the guns was not consistent with innocent passage; the vessels passed with crews at action stations; the number of the ships and their armament surpassed what was necessary in order to attain their object and showed an intention to intimidate and not merely to pass; the ships had received orders to observe and report upon the coastal defences and this order was carried out. -73- It is shown by the Admiralty telegram of September 2Ist, cited above, and admitted by the United Kingdom Agent, that the object of sending the warships through the Strait was not only to carry out a passage for purposes of navigation, but also to test Albania's attitude. As mentioned above, the Albanian Government, on May Is5th, I946, tried to impose by means of gunfire its view with regard to the passage. As the exchange of diplomatic notes did not lead to any clarification, the Governs -ment of the. United Kingdom wanted to ascertain by other means whether the Albanian Government would maintain its illegal attitude and again impose its view by firing at passing ships. The legality of this measure taken by the Government of the United Kingdom cannot be disputed, provided that it was carried out in a manner consistent with the requirements of international law. The "mission" was designed to affirm a right which had been unjustly denied. The Government of the United Kingdom was not bound to abstain from exercising its right of passage, which the Albanian Government had illegally denied. It remains, therefore, to consider whether the manner in which the passage was carried out was consistent with the principle of innocent passage and to examine the various contentions of the Albanian Government in so far as they appear to be relevant. When the Albanian coastguards at St. George's Monastery reported that the British warships were sailing in combat forma- tion and were manoeuvring, they must have been under a misap- prehension. It is shown by the evidence that the ships were not proceeding in combat formation. but in line, one after the other, and that they were not manoeuvring until after the first explosion. Their movements thereafter were due to the explosions and were made necessary in order to save human life'and the rmined ships. It is shown by the evidence of witnesses' that the contention that soldiers were on board must be due to a misunderstanding probably. arising from the fact that the two cruisers carried their usual detach- ment of marines. It is known from the above-mentioned order issued by the British Admiralty on August Ioth, I946, that ships, when using the North Corfu Strait, must pass with armament in fore and aft position. That thisorder was carried out during the passage on October 22nd is stated by the Commander-in-Chief, Mediterranean, in a telegram of October 26th to the Admiralty. The guns were, he reported, "trained fore and aft, which is their normal position at sea in peace time, and were not loaded". It is confirmed by the commanders of Saumarez and Volage that the guns were in this position before the explosions. The navigating officer on board Mauritius explained that all guns on that cruiser were in their normal stowage position. The main guns were in the line of the ship, and the anti- aircraft guns were pointing outwards and up into the air, which is the normal position of these guns on a cruiser both in harbour and at sea. In the light of 'this evidence, the Court cannot .accept the Albanian contention that the position of the guns was incon- sistent with the rules of innocent passage. -74- In the above-menitioned telegram of October 26th, the Com- nladler-in-Chitef reported that the passage ''wa;s malde with ships a t action stations in order that they might be able to retaliate quickly if fired upon again". In view of the firing from the Albanian battery on May I5th, this measure of precaution cannot, in itself, be regarded as unreasonable. Buts four warships--two cruisers and two destroyers-passed in this manner, with crews at action stations, ready to retaliate quickly if fired upon. They passed one after another through this narrow channel, close to the Albanian coast, at a time of political tension in this region. The intention must have been, not only to test Albania's attitude, but at the same: time to demonstrate such force that she would abstain from firing *again on passing ships. Having regard, howevcr, to all the circum- stances of the case, as described above, the Court is unable to characterize these measures taken by the United Kingdom author- ities as a violation of Albania's sovereignty. The Admiralty Chart, Annex 2I to the Memorial, shows that coastal defences in the Saranda region had been observed and reported. In a report of the commander of Volage, dated Octo- ber 23rd, I946-a report relating to the passage on the 22nd-it is stated: "The most waLs made of the opportunities to study Albanian defences at close range. These included, with reference to XCU...."--and he then gives a description of some coastal defences. In accordance with Article 49 of the Statute of the Court and Article 54 of its Rules, the Court requested the United Kingdom Agent to produce the documents referred to as XCU for the use of the Court. Those documents were not produced, the Agent pleading naval secrecy ; and the United Kingdom witnesses declined to answer qnestions relating to themn. It is not therefore possible to know the real content of these naval orders. thle Court cannot, however, draw from this refusal to produce the orders any con- clusions differing from those to which the actual events gave rise. The United Kingdom Agent stated that the instructions in these orders related solely to the contingency of shots being fired from the coast--which did not happen. If it is true, as the commander of Volage said in evidence, that the orders contained information concerning certain positions from which the British warships might have been fired at, it cannot be deduced therefrom thlat the vessels had received orders to reconnoitre Albanian coastal defences. Lastly, as the Court has to judge of the innocent nature of the passage, it cannot remain indifferent to the fact that, though two warships struck mines, there was no reaction, either on their part or on that of the cruisers that accompanied them. Withl regard to the observations of coastal defences made after tilt explosions, thtese were justified by the fact that two ships had just been blown up and that, in this critical sitruation, their com- manlders might fea;r that they would be fired on from the coast, as on May 15th. Having thus examined the various contentions of the Albanian (overnmeont in so far as they appear to be relevant, the Court has ar-rivedl at the conclusion that the United Kingdom did not violate the sove'reigrnty of Albania hby reason of the acts of the British Navy in Albanian waters on October 22nd, 1946. * * In addition to the passage of the United Kingdom warships on October 22nd, I946, the second question in the Special Agreement relates to the acts of the Royal Navy in Albanian waters on November I2th and I3th, 1946. This is the minesweeping oper- ation called "Operation Retail" by the Parties during the pro- ceedings. This name will be used in the present Judgment. -75- After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in which it Iannounced its intention -to sweep the Corfu Channel shortly. Thil Albanian reply, which was received in London on October 31st, stated that the Albanian Government would not give its consent to this unless the operation in question took place outside Albanian territorial waters. Meanwhile, at the United Kingdom Govern- ment's request, the International Central Mine Clearance Board decided, in a resolution of November Ist, 1946, that there should be a further sweep of the Channel, subject to Albania's consent. The United Kingdom Government having informed the Albanian Government, in a communication of November Ioth, that the proposed sweep would take place on November I2th, the Albanian Government replied on the iith, protesting against this "unilateral decision of His Majesty's Government". It said it did not con- sider it inconvenient that the British fleet should undertake the sweeping of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to decide what area of the sea should be deemed to constitute this channel, and proposed the establishment of a Mixed Commission for the purpose. It ended by saying that any sweeping undertaken without the consent of the Albanian Government outside the chan- nel thus constituted, i.e., inside Albanian territorial waters where foreign warships have no reason to sail, could only be considered as a deliberate violation of Albanian territory and sovereignty. After this exchange of notes, "Operation Retail" took place on November I2th and I3th. Commander Mestre, of the French Navy, was asked to attend as observer, and was present at the sweep on November I3.th. The operation was carried out under the protection of an important covering force composed of an aircraft carrier, cruisers and other war vessels. This covering force remained throughout the operation at a certain distance to the west of the Channel, except for the frigate St. Bride's Bay,, which was stationed in the Channel south-east of Cape Kiephali. The sweep began in the morning of November I3th, at about 9 o'clock, and ended in the afternoon -near nightfall. The area swept was in Albanian territorial waters, and within the limits of the channel previously swept. The United Kingdom Government does not dispute that "Oper- ation Retail" was carried out against the clearly expressed wish of the Albanian Government. It recognizes that the operation had not the consent of the international mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly that, in principle, international law does not allow a State to assemble a large number of warships in the -76- territorial waters of another State and to carry out minesweeping in those waters. The United Kingdom Government states that the operation was one of extreme urgency, and that it considered itself entitled to carry it out without anybody's consent. The United Kingdom Government put forward two reasons in justification. First, the Agreement of November 22nd, I945, signed by the Governments of the United Kingdom, France, the Sovidt Union and the United States of America, authorizing regional mine clearance organizations, such as the Mediterranean Zone Board, to divide the sectors in their respective zones amongst the States concerned for sweeping. Relying on the circumstance that the Corfu Channel was in the sector allotted to Greece by the Mediterranean Zone Board on November 5th, i.e., before the signing of the above-mentioned Agreement, the United Kingdom Government put forward a permission given by the Hellenic Government to resweep the navigable channel. The Court does not consider this argument convincing. It must be noted that, as the United Kingdom Government admits, the need for resweeping the Channel was not under consideration in November 1945; for previous sweeps in I944 and 1945 were considered as having effected complete safety. As a consequence, the allocation of the sector in question to Greece, and, therefore, the permission of the Hellenic Government which is relied on, were both of them merely nominal. It is also to be remarked that Albania was not consulted regarding the allocation to Greece of the sector in question, despite: the fact that the Channel passed through Albanian territorial waters, But, in fact, the explosions of October 22nd, I946, in a channel declared safe for navigation, and one which the United Kingdom Government, more than any other government, had reason to consider safe, raised quite a different'problem from that of a routine sweep carried out under the orders of the mineclearance organiz- ations. These explosions were suspicious; they raised a question of responsibility. Accordingly, this was the ground on which the United Kingdom Government chose to 'establish its main line of defence. According to that Government, the corpora delicti must be secured as quickly as possible, for fear they should be taken away, without leaving traces, by the authors of the minelaying or by the Albanian authorities. This justification took two distinct forms in the United Kingdom Government's arguments. It was presented first as a new and special application of the theory of intervention, by means of which the State intervening would secure possession of evidence in the territory of another State, in order to submit it to an international tribunal and thus facilitate its task. -77- The Court cannot accept such a line of d(efenc(. Tile Court can only regard the alleged right of intervention as the mani- festation of a policy of force, such as has, in the past, given risc to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it ,would be reserved for the most powerful States, and might easily lead to perverting the aidministration of inter- national justice itself. The United Kingdom Agent, in his speech in reply, has further classified "Operation Retail" among methods of self-protection or self-help. The Court cannot accept this defeince iither. Between independent States, respect for territorial sovereignty is an essential foundation of international relations. The Court recognizes th:at the Albanian Government's complete failure to carry out its duties after the explosions, and the dilatory nature of its diplomatic notes, are extenuating circumstances for the action of the United Kingdom Government. But to ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy co stituted a violation of Albanian sovereignty. This declaration, is in accordance with the request made by Albania through her Counsel, and is in itself appropriate satis- faction. The method of carrying out "Operation Retail" has also been criticized by the Albanian Government, the main ground of com- plaint being that the United Kingdom, on that occasion, made use of an unnecessarily large display of force, out of proportion to the requirements of the sweep. The Court thinks that this criticism is not justified. It does not consider that the action of the British Navy was a demonstration of force for the purpose of exercising political pressure on Albania. The responsible naval commander, who kept his ships at a distance from the coast, cannot be reproached for having employed an important covering force in a region where twice within a few months his ships had been the object of serious outrages. -78- F[OR THEISE REASONS, THiE COURT, on the first question put by the Special Agreement of March 25th, 1948, by eleven votes to five, (;ives judgment that the People's Republic of Albania is respons- ible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life that resulted therefrom ; and by ten votes to six, Reserves for further consideration the assessment of the amount of compensation and regulates the procedure on this subject by an Order dated this day on the second question put by the Special Agreement of March 25th, 1948, by fourteen votes to two, (;ives judgment that the United Kingdom did not violate the sovereignty of the People's Republic of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946; and unanimously, ' Gives judgment that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November I2th and I3th, I946, the United Kingdom violated the sovereignty of the People's Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction. -79- CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE 516 U.N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639 In force Sept. 10, 1964 , Article 7 shall be included as if they were part of the t' water areas of the indentation. 1. This article relates only to bays the coasts of which belong to a single State. 14. If the distance between the low-water. marks of the natural entrai'Ee points of a hay 2. For the purposes of these articles, a hay *does not exceed twenty-fouir miles, a closing is a well.marked indentation whose penetration line may be drawn between these two low is in such proportion to the width of its mouth , and the waed thereby as to contain landlocked waters and constitute w hall he red as intral waters. more than a mere curvature of the coast. An all be o re as ternal water indentation shall not, however, be regarded 5. Where the distanc! between the low- as a bay unless its area is as large as, or larger water marks of the natural entrance points of than, that of the semi-circle whose diameter a hay exceeds twenty-four miles, a straight is a line drawn across the mouth of that inden. baseline of twenty-four miles shall be drawn tation. within the bay in such a manner as to enclose the maximum area of water that is possible 3. For the purpose of measurement, the with a line of that length., area of an indentation is that lying between ,' the low-water mark around the shore of the 6. The foregoing provipos shall not apply indentation and a line joining the low:water to so-called "historic" bays' or in any case marks of its natural entrance points. Where. where the straight baseliie system provided because of the presence of islands, an indenta- for in article 4 is applied. i 4 tion has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the dif- ferent mouths. Islands within an indentation UNITED STATES V. CALIFORNIA United States Supreme Court, 1965 381 U.S. 139, 161-70 III. THE MEANING OF 'INAND WATERS" IN THE SUBMEREaD LANDS ACT SHOULD CONFORM TO THE CONVENTION' ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE. We turn, then, to determining the judicial defintioqn of "inland waters." It immediately appears that the bulk' of cases cited by Congressmen during debates on: the Sub-' merged Lands Act for the proposition that inland waters have "been defined time and time again by the courts" deal with interiir waters -such a' lakes ad' r-ivers, and 'r6- vide no assistance in classifying bodies of water which join the open sea. In this latter context no prior case in this Court has ever precisely defined the term. The 1947 California opinion clearly indicated that "inland waters" was to have an international content since the outer limits of inland waters would determine the Country's interna- tional coastline, but the Court did not particularize the definition. It was that task which subsequently led to the appointment of the Special Master. The Special Master' found thit there'was no ifiternpa tionally accepted definition for inland waters and decided, in those circumstances, that it was the position which the United States took on the question in the conduct of its foreign affairs which should be controlling. He consid-: ered the relevant date on which to determine our foreign policy position to be the date of the California decree,! October 27, 1947. He therefore rejected the assertion that letters from the State Department written in 1951 and 1952 declaring the then present policy of the United States were conclusive on the question before him. At ,the same time that decision required the Special Master to consider a great many foreign policy materials dating back to 1793 in an attempt to discern a consistent thread of United States policy on the definition of inland waters. He ultimately decided that as of 1947 the United States :had taken the position that a bay was inland water only if a closing line could be drawn across its mouth less than 10 miles long enclosing a sufficient water area to satisfy the Boggs formula. Since the filing of the Special Master's Report the policy of the United States has changed significantly. Indeed it may now be said that there is a settled international rule defining inland waters. On March 24, 1961, the -81- United States ratified the Convention on the Territorial Sea and the Contiguous Zone (T. I. A. S. No. 5639) and on September 10, 1964, when the requisite number of nations had ratified it, the Convention went into force. For nations which do not use a straight-base-line method to define inland waters (see United Kingdom v. Norway, [1951] I. C. J. Rep. 116), the Convention permits a 24- mile maximum closing line for bays and a "semicircle" test for testing the sufficiency of the water area enclosed.' The semicircle test requires that a bay must comprise at least as much water area within its closing line as would be contained in a semicircle with a diameter equal to the length of the closing line. Unquestionably the 24-mile closing line together with the semicircle test now repre- sents the position of the United States. ' The United States contends that we must ignore the Convention on the Territorial Sea and the Contiguous Zone in performing our duty of giving content to "inland waters" as used in the Submerged Lands Act, and must restrict ourselves to determining what our decision would' have been had the question been presented to us for deci- sion on IMay 22, 1953, the date of enactment. At that tine there was no international accord on any defini- tion of inland waters, and the best evidence (although strenuously contested by California) of the position of the United States was the letters of the State Department which the Special Master refused to treat as conclusive. We do not think that the Submerged Lands Act has so restricted us. Congress, in passing;the Act, left the responsibility for defining inland waters to this Court.,e We think that it did not tie our hands at the same time; Had Congress-wished us simply to rubber-stamp the state'~ ments of the State Department as to its policy in 1953, it could readily have done so itself. It is our opinion that we best fill our responsibility of giving content to the words which Congress employed by adopting the best and most workable definitions available. The Convention on the Territorial Sea 'and the Contiguous Zone, approved by the Senate and ratified by the President, 'provides such definitions. We adopt them for purposes of the Sub- merged Lands Act. This establishes a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations (bar- ring an unexpected change in the rules established by the Convention). Furthermore the comprehensiveness of the Convention provides answers to many of the lesser problems related to coastlines which, absent the Conven- tion, would be most troublesome. -82- California argues, alternatively to its claim that "inland waters" embraces all ocean areas lying within a State's historic seaward boundaries, that if Congress intended "inland waters" to be judicially defined in accordance with international usage, such definition should possess an ambulatory quality so as to encompass future changes in international law or practice. Thus, if 10 years from now the definitions of the Convention were amended, California would say that the extent of the Submerged Lands Act grant would automatically shift, at'least if the effect of such amendment were to enlarge the extent of submerged lands available tothe States. We reject this open-ended view of the Act for several reasons. Before today's decision no one could say with assurance where lay the line of inland waters as contemplated by the Act; hence there could have been no tenable reliance on any particular line. After today that situation will have changed. Expectations will be established and reliance placed on the line we define. Allowing future shifts of international understanding respecting inland waters to alter the extent of the Submerged Lands Act grant would substantially undercut the definiteness of expectation which should attend it. Moreover, such a view might unduly inhibit the United States in the conduct of its foreign relations by making its ownership of submerged lands vis--vus the States continually dependent upon the position it takes with foreign nations. "Freezing" the meaning of "inland waters" in terms of the Convention definition largely avoids this, and also serves to fulfill the requirements of definiteness and stability which should attend any congressional grant of property rights belonging to the United States. IV. SUBSIDIARY ISSUES. Once it is decided that the definitions of the Con- vention on the Territorial Sea and the Contiguous Zone apply, many of the subsidiary issues before us fall into place. 1. Straight Base Lines.-California argues that because the Convention permits a nation to use the straight-base- line method for determining its seaward boundaries if its "coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity," California is therefore free to use such boundary lines across the'openings of its bays and around its islands. We agree with the United States that the Convention rec- -83- ognizes the validity of straight base lines used by other countries, Norway for instance, and would permit the United States to use such base lines if it chose, but that California may not use such base lines to extend our inter- national boundaries beyond their traditional interna- tional limits against the expressed opposition of the United States. The national responsibility for conduct- ing our international relations obviously must be accom- modated with the legitimate interests of the States in the territory over which they are sovereign. Thus a contrac- tion of a State's recognized territory imposed by the Fed- eral Government in the name of foreign policy would be highly questionable. But an extension of state sov- ereignty to an international area by claiming it as inland water would necessarily also extend national sovereignty, and unless the Federal Government's responsibility for questions of external sovereignty is hollow, it must have the power to prevent States from so enlarging themselves. We conclude that the choice under the Convention to use the straight-base-line method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States. California relies upon Manchester v. Massachusetts, 139 U. S. 240, for the proposition that a State may draw its boundaries as it pleases within limits recognized by the law of nations regardless of the position taken by the United States.' Although some dicta in the case may be read to support that view, -we do not so interpret the opinion. The case involved neither an expansion of or'. traditional inte'nationb :boundary nor opposition by' the United States' to the position taken by the State., *'i ',/ 2. Twenty-four-mile Closing Rule.-:-The Convention recognizes, and it is the present United States position, that a 24-mile closing rule together with the semicircle test should be used for classifying bays in the United States. Applying these tests to' the segments of Cali. fornia's coast here in dispute, it appears that Monterey' Bay is inland water and that none of the other coastal seg-' ments in dispute fulfill these aspects of the Convention test. We so hold. -84- UNITED STATES V. LOUISIANA United States Supreme Court, 1969 394 U.S. 11, 22-26, 74-77 Under generally accepted principles of international law, the navigable sea is divided into three zones, dis- tinguished by the nature of the control which the con- tiguous nation can exercise over them.23 Nearest to the nation's shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land terri- tory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial, sea.24 Within it the coastal nation may exercise extensive control but cannot deny the right of innocent passage to foreign nations.25 22 Article 7 sets forth precise mathematical requirements which bays must satisfy to qualify as inland waters from whose seaward edge the territorial sea extends. See infra, at 48; n. 64, at 49; 52, n. 68; 54-55. Paragraph 6 of the Article provides, however, that "tllhe foregoing provisions shall not apply to so-called 'historic' bays .... 23 On the threefold division of the sea, see generally L. Bouchez, The Regime of Bays In International Law 4-5 (1964); 1 Shalowitz, supra, n. 7, at 22-24; M. Strohl, The International Law of Bays 3-4 (1963). 24 Tlhe breadth of the territorial sea varies from country to country, depending on the claims of the coastal state. These claims have long been so diverse that the Geneva Conference was unable to agree upon a uniform distance for purposes of the Convention on the Territorial Sea and the Contiguous Zone. A table illustrating the various territorial sea claims of most nations appears at 1 Shalo- witz, supra, n. 7, at 389 (App. J.). 25 Article 14 of the Convention on the Territorial Sea and the Contiguous Zone provides that "ships of all Sta.tes, whether coastal or not, shall enjoy the right of innocent passage through the terri- torial sea." -85- Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation.26 Whether particular waters are inland has depended on historical as well as geographical factors. Certain shore- line configurations have been deemed to confine bodies of water, such as bays, which are necessarily inland. But it has also been recognized that other areas of water closely connected to the shore, although they do not meet any precise geographical test, may have achieved the status of inland waters by the manner in which they have been treated by the coastal nation. As we said in United States v. California, it is generally agreed that historic title can be claimed only when the "coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations." 381 U. S., at 172.27 26 Article 2 of the Convention on the High Seas provides: "The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty." [1962] 13 IT. S. T. (pt. 2) 2313, T. I. A. S. No. 5200. It has, however, generally been thoulght that the coastal nation can exercise some limited, jurisdiction over ships beyond its territorial waters. See, e. g., AT. MciDougal & W. Burke, The Public Order of the Oceans, c. 6 (1962); P. Jessup, The Law of Territorial Waters and Maritime Jurisdiction 75-112 (1927); 1 Shdaowitz, supra, n. 7, at 27. The Convention on the Terriforial Sea 'and .the Contiguous Zone has recognized that such extensions of jurisdiction are sometimes impera- tive and has provided that in a contiguous zone not to exceed 12 miles from the coast, the littoral nation "may exercise. the control necessary to: (a) Prevent infringement of its customs, fiscal, immi- gration or sanitary regulations within its territory or territorial sea; (b) Punish infringement of the above regulations committed within its territory or territorial sea." Article 24. 27 A recent United Nations study recommended by the Inter- national Law Commission reached the folloiving conclusions: "There seems to be fairly general agreement that at least three factors have to be. taken into consideration in determining whether a State has acquired a historic title to a niaritime area. These factors are: (1) the exercise of authority over the area by the -86- While there is not complete accord on the definition of historic inland waters,2" it is universally agreed that the reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters. On the contrary, control of navi- gation has long been recognized as an incident. of the coastal nation's jurisdiction over the territorial sea. Article 17 of the Convention on the Territorial Sea and the Contiguous Zone embodies this principle in its declaration that "[f]oreign ships exercising the right of innocent passage [in the territorial sea] shall comply with the laws and regulations enacted by the coastal State. . . and, in particular, with such laws and regulations relating to transport and navigation.""2 Because it is an accepted regulation of the territorial sea itself, enforcement of navigation rules by the coastal nation could';not constitute a claim to inland waters from whose seaward border the territorial sea is measured.30 State claiming the historic right; (2) the continuity of this exercise of authority; (3) the attitude of foreign States. First, the State must exercise authority over the area in question in order to acquire a historic title to it. Secondly, such exercise of authority must have continued for a considerable time; indeed it must have developed into a usage. More controversial is the' third factor, the position which the foreign States may have taken towards this exercise of authority. Some writers assert that the acquiescence of other States is required for the emergence of an historic title; others think that absence of opposition by these States is sufficient." Juridical Regime of Historic Waters, Including Historic Bays, 11962)] 2 Y. B. Intl L. Comm'n 1, 13, U. N. Doe. A/CN.4/143 (1962). See also Bouchez, supra, n. 23, at 203, 281. 28 Historic title can be obtained over territorial as well as inland waters, depending on the kind of jurisdiction exercised over the area. "If the claimant State exercised sovereignty as over internal waters, the area claimed would be internal waters, and if the sov- ereignty exercised was sovereignty as over the territorial sea, the area would he territorial sea." Juridical Regime of IIistoric Waters, Including Historic Bays, supra, n. 27, at 23. -87- 7. Historic inland waters. Louisiana argues that all the waters of the Mississippi River Delta, and East Bay in particular, are "so-called 'historic' bays" within the meaning of Article 7 (6),98 and that they are therefore inland waters notwithstanding their failure to. meet the -geographical requirements of Article 7 and the United States' refusal to draw straight baselines.91 Historic bays- are not defined in the Convention, and the term therefore derives its content from general principles of international law.'00 As the absence of a definition indicates, there is no universal accord on the exact meaning of historic waters.l0? There is substantial agreement, however, on the outlines of the doctrine and on the type of showing which a coastal nation must make in order to establish a claim to historic inland. waters.'02 But because the concept of historic waters, is still relatively imprecise and its application to par- ticular areas raises primarily factual questions, we leave. to the Special Master-as we did in United States v. California-the task of determining in the first instance: whether any of the waters off the Louisiana coast are historic bays. We do not think the ultimate resolution of this litigation would be hastened by any further dis- cussion of the subject at this time, beyond the remarks below. In its effort to establish that the waters of the Delta have been subjected to the continuous authority of the coastal nation, Louisiana has relied heavily on its own activities as well as on those of the Federal Government. The United States contends that those state activities cannot in this lawsuit support the position that the Delta waters are historic bays. The argument is not 100 The United States argues that the Convention recognizes only historic bays and not other kinds of inland water bodies. We do not pass on this contention except to note that, by the terms of the Convention, historic bays need not conform to the normal geographic tests and therefore need not be true bays. How unlike a true bay a body of water can be and still qualify as a historic bay we need not decide, for all of the areas of the Mississippi River Delta which Louisiana claims to be historic inland waters are indentations sufficiently resembling bays that they would clearly qualify under Article 7 (6) if historic title can be proved. "ll See supra, at 24. 11,2 See n. 27, supra. -88- that such exercises of authority by Louisiana would not be relevant to a claim of historic title vis-a-vis another nation. On the contrary, the United States has "En]o doubt [that] the national government may, if it chooses, xely on State action to support its own historic claim as against other nations." 103 But, the United States asserts, "a State cannot oblige it to do so or to accept State action as binding in a domestic case such as the present one." In brief, then, the United States' position is that it can prevent judicial recognition of a ripened claim to historic title merely by lodging a disclaimer with the court. In United States v. California we noted, but found it unnecessary to pass on, the United States' contention that historic title cannot be founded upon exercises of state authority because a claim to historic inland waters can be maintained only if endorsed by the United States. We there sustained the Master's determination that, even assuming the relevance of California's assertions of sovereignty over the coastal waters, they did not estab- lish historic title. The United States' disclaimer was credited only because the case presented such "question- able evidence of continuous and exclusive assertions of dominion." 381 U. S., at 175. And we noted that we \vere "reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic evidence was clear beyond doubt." Ibid. Thus, the Court indicated its unwillingness to give the United States the same complete discretion to block a claim of historic inland waters as it possesses to decline to draw straight baselines. While we do not now decide that Louisiana's evidence of historic waters is "clear beyond doubt," neither are we in a position to say that it is so "questionable" that the United States' disclaimer is conclusive. We do decide, however, that the Special Master should con- sider state exercises of dominion as relevant to the existence of historic title. The Convention was, of course, designed with an eye to affairs between nations rather than domestic disputes. But, as we suggested in United States v. California, it would be inequitable in adapting the principles of international law to the reso- lution of a domestic controversy, to permit the National Government to distort those principles, in the name of its Ipower over foreign relations and external affairs, by denying any effect to past events.l04 The only fair way to apply the Convention's recognition of historic bays to this case, then, is to treat the claim of historic waters as if it were being Inade by the national sovereign and opposed by another nation. -89- UNITED STATES V. ALASKA United States Court of Appeals, Ninth Circuit, 1974 497 F.2d 1155 line should be drawn at Kalgin Island (as the United States contends) or at PER (CURIAM: ('Cape Douglas-Point Gore (as Alaska PER- CURIAM: ~contends) will determine whethelr then The United States sued the State of area in question may be leased by Alas- Alaska to quiet title to the lower part of. aea pivotaleston may be in this deter- Cook Inlet located on the Alaska coast minati and to enjoin Alaska from offering oil over which there are "inland waters" as and gas leases for sale in the area. The denominated in, but not defined by, the district court found in favor of Alaska. Submerged Lands Act. If so, Alaska is United States v. Alaska, 352 F.Supp. 815 -orrect and the district Court's judgmnt (D.Alaska 1972). The United States ap- must be affirmed. pealed and we affirm. In early 1967, Alaska offered to sell, The Supreme Court has adopted at competitive bidding, an oil and gas the definition of inland waters as con- lease to a tract of 2,500 acres of sub- tained in the Convention on the Terri- merged lands located in lower Cook In- torial Sea and the Contiguous Zone (T. let. The United States does not contest I.A.S. No. 56,39). United States v. Cali- Alaska's right to the upper part of Cook fornia, 381 U.S. 139, 165, 85 S.Ct. 14I1, Inflet. The tract in question, however, is 14 L.Ed.2d 296 (1965). Article 7 dt- located more than 3 geographic miles scribes inland bays; but Cook Inlet fails seaward of the low-water line, the clos- to meet the definition which requires a ing lines of rivers and small bays within distance of no more than 21 miles be- Cook Inlet and the 24-mile fallback line tween the natural entrance points of the drawn across the narrows at Kalgin Is- bay. Cook Inlet is 47 miles wide at its land. The essence of the controversy in- natural entrance points. Nevertheless, volves the proper location of the Alaska the Court has recognized that whether M coastline. The United States would or not a body of water is inland may de- place the coastline at the 24-mile fall- pend upon historical as well as gco- back line at Kalgin Island. Alaska would graphical factors. The Court has stat- place it at the 47-mile opening of ed: Cook Inlet extending from Cape Douglas Certain shoreline configurations have through the Barren Islands to Point been deemed to confine bodies of wa- Gore. The significance of the placement ter, such as bays, which ale nevessari- of this line is that under the Submerged ly inland. But it has also been recog- Lands Act of 1953 (43 U.S.C. �� 1301- nized that other areas of water clos(ly 1343), a state is entitled to the natural connected to the shore, although they resources of the seabed and subsoil in do not meet any precise geographical waters up to 3 geographic miles seaward test, may have achieved the status of from the state's coast line at low tide or inland waters by the mannel in which its functional equivalent as drawn by they have been treated by the coastal connecting the land openings of water in- nation. lets such as rivers and small bays. The waters landward from the line formin JUnited States v. Louisiana 2I ouisilnS the functional equivalent of the coast Bounc.ry Case), 394 U.S. 2d, 244, 8' S line are inland waters belonging to the Ct. 773, 781, 22 L.Ed.2d 44 (J1jti) V state and the :X-mile distance extends Historic bays. which Article 7 exempts seaward from that line. Whether this Ilronl the requirement of being no more than 24 miles between the natural (ll- trance points, fall within this classificta- tion. As to such waters the ('ourt in the Iouisinat Boundary ('ctase conlilnlucl: "[I it is generally agreed that historic _90- title call be claimed only when the 'coastal nation has traditionally asserted the findings to be clearly erroneous. Indl nlmaintailned dolnillioll with the a(*- The trial judge received the testimony lllicsccucce of foreign nlations.' :T.1 {. of hundreds of witnesses and examined S. at 23, 89 S.Ct. at 781, quotin!r from, volumes of documents. The clearly erro- Ulnited States v. California, 381 V!.S. neous test applies to both. W. S. Sham- 139:, 172, 85 S.Ct. 1401, 14 L.Ed.2d 296 ban and Co. v. Commerce and Industry (1965). As further guidance the Court Ins. Co., 475 F.2d 34 (9th Cir. 197:3); noted with apparent approval: United States v. Ironworkers Tlocal 86, 4431 F.2d 544, 548-49 (9th Cir.), cert. A recent United Nations study rec- denied, 404 U.S. 984, 92 S.Ct. 447, 3(0 L. ommended by the International Law Ed.2d 367 (1971); Lundgren v. Free- Commission reached the following con- man, 307 F.2d 104, 114-I.< (Oth (ir, clusions: 1962). "There seems to be fairly general As the Court in the Lovisiana Round- agreement that at least three factors dry Case has instructed, boundary dis- have to be taken into consideration in putes involving such complex and de- determining whether a State has ac- tailed evidonce as has been presented in qluired a historic title to a maritime this case must be resolved by answering area. These factors aec: (1) th( ex- questions that are primarily factual. ercise of authority over the area by This task can best be done by the trier the State claiming the historic right; of faIct who has heard the evidence in (2) the continuity of this exercise of the first instance. The Court stated: authority; (3) the attitude of foreign States. First, the State must exercise Historic hays are not defined in the authority over the area in question in Convention, and the term therefore order to acquire a historic title to it. derives its content from general prin- Secondly, such exercise of authority ciples of international law. As the must have continued for a considera- absence of a definition indicates, there ble time; indeed it must have devel- is no universal accord on the exact oped into a usage. More controversial meaning of historic waters. There is is the third factor, the position which substantial agreement, however, on the foreign States may have taken to- the outlines of the doctrine and on the wards this exercise of authority. type of showing which a coastal na- Some writers assert that the acquies- tion must make in order to establish a cence of other States is required for claim to historic inland waters. But the emergence of an historic title; because the concept of historic waters others think that absence of opposition is still relatively imprecise and its ap- by these States is sufficient." Juridi- plication to particular areas raises cat Regime of Historic Waters, Includ- primarily factual questions, we leave ing Historic Bays, [1962] 2 Y.B.Int'l ,to the Special Master--as we did in L. Comm'n 1, 13, U.N.Doc.A/CN. United States v. California-the task 4/143 (1962). of determining, in. the first instance 394 U.S. at 23-24 n.27, 89 S.Ct. at 781. whether any of the waters off the The district court correctly adopted and Louisiana coast are historic bays. applied this three-pronged test. Since 394 U;S. at 75, 89 S.Ct. at 808 (empha-, the district court correctly applied the sis added and footnotes omitted). law, our sole remaining task is to deter- As the law applied by the district mine whether the facts found by the trial court was correct and its findings were court were clearly erroneous. United not clearly erroneous, we affirm. States v. United States Gypsum Co., 833 Affirmed. U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). The United States mounts a heavy attack, reviewing in detail evi- dence which it contends leads unques- tionably to the conclusion that the wa- ters involved are at. the most territorial rather than inland. It has succeeded in demonstrating that the evidence was in conflict and that the question of deter- mining the ultimate inferences to be drawn was close. But it failed to show -91- C. Islands and Archipelagoes CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE 516 U.N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639 In force Sept. 10, 1964 Article 10 I. An island is a naturally-formed area of land, surrounded by water, which is above water at high.tide. , X ,-' 2. The territorial sea of an island is meas- ured in accordance with the provisions of these articles. Article 11 1. A low-tide elevation is a naturally- formed area of land which is surrounded by and above water at low-ti4e but submerged at high tide. Where a low-tide elevation is situ- ated wholly or partly at a distance not exceed. ing the breadth of the territorial sea-from -the mainland pr an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. 2. Where a low-tide elevation is wholly sit- uated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. -92- Evensen, Certain Legal Aspects Concerning the Delimitation of Territorial Waters of an Archipelago UK Doc. A/Conf. 13/18, I (1957), 289, 301-02 A. Coastal archipelagos Frequently the only natural and practical solution is to treat such outlying archipelagos as a whole for the Article 5 of the draft articles concerning the law of delimitation of territorial waters by drawing straight lhe sea by the International Law Commission seems baselines from the outermost points of the archipe- reasonably to embody the governing rules and prin- lago-that is from the outermost points of the con- ciples laid down by the International Court of Justice in stituent islands, islets and rocks--and by drawing the its 1951 Judgement, and also seems to give reasonable seaward limit of the belt of marginal seas at a distance of weight to the special problems arising out of the X nautical miles outside and parallel to such baselines. delimitation of territorial waters of coastal archipelagos. Thus the archipelago viewed as a unit has a continuous However, in view of the special problems involved, area of territorial water. Whether or not an outlying the following changes in article 5 may perhaps prove archipelago should be treated in such a manner will, to desirable. a large extent, depend on the geographical features of the archipelago. The following criteria may be of im- According to draft article 5, paragraph I, first sentence, the archipelago. The following criteria may be of im- sahtbsines may be .e whr e a. coastline . portance for the delimitation of territorial waters in any straight baselines may be used where a coastline isartic "deeply indented or cut into or because there are islands in its immediate vicinity". If the word (a) Though a State in delimiting the territorial waters " islands" was interpreted strictly, it would prevent the of its outlying archipelagos must be allowed the latitude drawing of straight baselines in many cases where such necessary in order to be able to adapt its delimitation a method seems called for; for example where a string to practical needs and local requirements, it is equally of islets, skerries and rocks (but not islands) is situated clear that such delimitation has international law in the immediate vicinity of the coast or where a aspects and such aspects may be especially delicate coastal archipelago consisting of islets, skerries and where outlying archipelagos are concerned. rocks as well as islands is situated along the coast of the (b) In any given case, the more or less close mainland. Therefore, the writer ventures to suggest dependence of the territorial sea upon the land domain changes in the first sentence of article 5, paragraph 1, of the archipelago will always be of paramount im- so that it will provide as follows: portance. "Where circumstances necessitate't special regime because (c) The drawing of the baselines must not depart the coast is deeply indented or cut'into or because there are to any appreciable extent from the general direction of archipelagos. islands or islets in its immediate vicinity, the base- the coast of the archipelago viewed as a whole. line may be independent of the low water mark." .22 (d) While the distance between the various islands, B. Outlying archipelagos islets and rocks of an archipelago obviously may play an important role in the question of whether the Where outlying (mid-ocean) archipelagos are con- drawing of straight baselines is appropriate, no fixed cerned, the following principles may be set forth-in maximum exists as to the length of such baselines. On the writer's opinion - as the governing principles of the other hand it is also obvious that exorbitantly loni, international law. baselines, closing vast areas of sea to free navigation No hard-and-fast rules exist whereby a State is com- and fishing, are contrary to international law. In pelled to disregard the geographical, historical (and such instances there will not be a sufficiently close economical) peculiarities of outlying archipelagos. dependence between the land domain and the water areas concerned. -93- (e) The question as to whether the waters situated between and inside the islands and islets of an archipe- lago may be considered as internal waters depends upon ,whether such water areas are so closely linked to the surrounding land domain of the archipelago as to be treated in much the same manner as the surrounding land. Each case must be treated on its individual merits' in this respect. The geographical configuration of the archipelago concerned will be of primary importance for such determination, though other factors--such as historical and economical factors--may play a role. (f) Even where the waters between and inside !,r constituent parts of an archipelago are sufficient:i closely linked to the land domain to be considered ,. internal waters, such waters may form a "strait" :!',' consequently be subject to the rules of international !.,., governing "straits" established for the benefit of frrc navigation and innocent passage of foreign ships. in view of the foregoing, the writer ventures to propole the following additional article on outlying :rcli. pelagos: " . In the case of an archipelago which belongs to n King' State and which may reasonably be considered as a whlel. ! extent of the territorial sea shall be measured from the ol!r: most points of the outermost islands and islets of the archipel.,, Straight baselines as provided for under article 5 may be appl;.! for such delimitation. "2. The waters situated between and inside the contlitlc- islands and islets of the archipelago shall be considered internal waters with the exceptions set forth under paragraph: of this article. "3. Where the waters between and inside the islancdl .,n islets of an archipelago form a strait, such waters cannol e. closed to the innocent passage of foreign shlps:" According to this proposal, straight baselines mrnal l used for delimiting the territorial waters of an archip,. lago which may be looked upon as a whole. Howet., it is possible to apply other methods: for examplek. mixture of straight baselines and arcs of circles. In the writer's opinion, the waters between and insil the islands and islets of the above-mentioned type 4 archipelago must be considered as internal waters. luii' where the waters of such an archipelago form a slr.i!5 it is in conformity with the prevailing rules of inler national law that such a strait cannot be closedl .. traffic. Whether a water passage is to be considcrr'd strait or not, must be decided in each specific ca'; Though no definition is universally accepted,2" a sIr. is usually defined as a water passage connecting t., stretches of open sea with the territorial waters of, State. -94- UNITED STATES V. LOUISIANA United States Supreme Court, 1969 394 U.S. 11, 66-73 6. Fringes of islands. At several places the question is raised whether areas between the mainland and fringes or chains of islands along the coast are inland waters. The parties agree that no article of the Convention specifically provides that such areas are inland waters. Louisiana argues that they are inland waters, under any one of several theories: that such island fringes form the perimeter of bays under Article 7, that straight base- lines must be drawn along the islands under Article 4, or that the waters should be deemed "inland" under general principles of international law which antedate and supplement the Convention on the Territorial Sea and the Contiguous Zone. The position of the United States is that such island chains can be taken into account as enclosing inland waters only by drawing straight baselines; yet the decision whether to draw such baselines is within the sole discretion of the Federal Government, and the United States has not chosen to do so. We have concluded that Article 7 does not encompass bays formed in part by islands which cannot realistically be considered part of the mainland. Article 7 defines bays as indentations in the "coast," a term which is used in contrast with "islands" throughout the Conven- tion. Moreover, it is apparent from the face and the history of the Convention that such insular formations were intended to be governed solely by the proyisioi iln Article 4 for straight baselines. The language of: Article 4 itself is the clearest indication of that intent: "1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured." (Emphasis supplied.) The drafters of the Convention and their predecessors were aware that international law permitted such island fringes in some circumstances to enclose inland waters.90 -95- The principle was recognized and applied by the Inter- national Court of Justice in the Fisheries Case (United Kingdom v. Norway), [1951] I. C. J. 116, in which Norway was held legitimately to have drawn straight baselines along the "skjaergaard," literally a "rock rain- part" composed of hundreds of thousands of insular formations which ringed the mainland. Thereafter, with the Fisheries Case as the model, attempts were made to draft concrete rules for the uniform treatment of such island fringes, and both the International Law Commission and the 1958 Geneva Conference discussed the problem at length. There was, however, too little technical information or consensus among nations on that and related subjects to allow the formulation of uniform rules. It was agreed, therefore, that the prob- lem should be handled as it had been by the International -ourt of Justice ifi-the-Fitsheries Case: each nation was left free to draw straight baselines along suitable insular configurations if it so desired.93 In the light of this reso- 93 The history of the subject is summarized in the Reference Guide to thce Articles Concerning the Law of the Sea Adopted by the International Law Commission at its Eighth Session, U. N. Doe. t A/C.6/L.378, p. 45, n. 1 (1956), as follows: "In his first report . . . the special rapportcur proposed an article entitlled 'Groups of Islands.' This was article 10, which read as follows: "'With regard to a group of islands (archipelago) and islands situ- ated along the coast, the ten-mile line shall be adopted as the base line for measuring the territorial sea in the direction of the high sea. The waters included within the group shall constitute inland waters.' "`He explained, however, that he had inserted this text 'not as expressing the law at present in force, but as a basis of discussion should the Commission wish to study a text envisaging the pro- gressiv-e development of international law on this subject.' He referred to a passage in the Judgment of the International Court of Julsticce in the Fisheries case where the Court had said . . .: "'In this connection, the practice of States does not justify the formulation of any general rule of law. The attempts that have becen made to subject groups of islands or coastal archipelagoes to conditions analogous to the limitations concerning bays (distance between the islands not exceeding twice the breadth of the territorial waters, or ten or twelve sea miles), have not got beyond the stage of proposals.' "In his second report . . . the special rapporteur suggested as article 10 an abbreviated version of his.earlier proposal, which now simply read as follows: "'With regard to a group of islands (archipelago) and islands situ- ated along the coast, the ten mile line shall be adopted as the base line.' "After consulting the Committee of Experts the special rapporteur ptlt forward a more elaborate proposal . . . and yet a further pro- pos)l in his third report .... "The latter proposal read as follows: "'1. The term "group -of islands," in the juridical sense, shall be deemed to mean three or more islands enclosing a portion of the -96- lution of the problem, it is clear that the drafters did not intend to leave island fringes beyond the scope of the Convention altogether. The deliberate decision was that such island formations are not to be treated differently from any other islands unless the coastal nation decides to draw straight baselines. In United States v. California, 381 U. S. 139, 168, we held that "the choice under the Convention to use the straight-base-line method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States." "' Since the United States asserts that it has not drawn and does not want to draw straight baselines along the Louisiana coast, that disclaimer would, under the California decision, be conclusive of the matter. Louisiana argues, however, that because the Louisiana coast is so perfectly suited to the straight baseline method, and because it is clear that the United States would employ it in the conduct of its international affairs were it not for this lawsuit, the Court should reconsider its holding in California and itself draw appropriate base- lines. While we agree that the straight baseline method was designed for precisely such coasts as the Mississippi River Delta area, we adhere to the position that the selection of this optional method of establishing bound- aries should be left to the branches of Government responsible for the formulation and implementation of foreign policy. It would be inappropriate for this Court to review or overturn the considered decision of the United States, albeit partially motivated by a domestic concern, not to extend its borders to the furthest extent consonant with international law. -97- SECTION 3. SPECIAL JURISDICTIONAL AREAS: ECONOMIC ZONE (CONTINENTAL SHELF) Presidential Proclamation 2667 3 C.F.R. 67-68 (1943-48 Comp.) PROCLAMATION 2667 Having concern for the ufgency of POLICY OF THE UNITED STATES WITH conserving and prudently utilizing its RESPECT TO THIE NATURAL RESOURCES OF natural resources, the Gtyernment of THE SUBSOIL AND SEA BED OF THE CON- the United States regards the natural TINENTAL SHELF ' resources of the s'ubsoil anq sea bed of WHEREAS the Government of the the continental shelf beneath the high United States of America, aware of the seas but contiguous to the coasts of the United States of America, aware of the long range world-wide need for new United States as appertaning to the sources of petroleum and other minerals, United States, subject to its Jurisdiction holds the view that efforts to discover and control. In cases where the conti- and make available new supplies of these nental shelf extends to the shores of an- resources should be encouraged; and other State, or is shared with an adja- cent State, the boundary shall be WHEREAS its competent experts are cent State, the boundary shall he of the opinion tha ent such resourcerts areun determined by the United States and the derlie many parts of the continental shelf State concerned in accordance with off the coasts of the United States of equitable principles. The character as America, and that with -modern techno- high seas of the waters above the conti- logical progress their utilization is al- nental shelf and the right to their free ready practicable or will become so at an and unimpeded navigation are in no way early date; and thus affected. WHEREAS recognized jurisdiction IN WITNESS WHEREOF, I have here- over these resources is required in the unto set my hand and caused the seal interest of their conservation and pru- of the United States of America to be dent Utilization when and as development ; a d.__9 , ,I is undertaken; and DONE at the City of Washington this WHEREAS it is the view of the Gov- 28th day of September, in the year of ernment of the United States that the our Lord nineteen hundred and exercise of Jurisdiction over the natural [SEAL] forty-five, and of the Irdepend- resources of the subsoil and sea bed of ence of the United States of the continental shelf by the contiguous America the one hundred and seventieth. nation is reasonable and just, since the effectiveness of measures to utilize or conserve these resources would be con- tingent upon cooperation and protection DEAN ACHESON, from the shore, since the continental Actint Secretary of State. shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a I seaward extension of a pool or deposit i lying within the territory, and since self- protection compels the coastal nation to keep close watch over activities off its shores which are of the nature neces- sary for utilization of these resources; NOW, THEREFORE, I, HARRY S. TRUMAN, President of the United States of America, do hereby proclaim the fol- lowing policy of the United States of America with respect to the natural re- sources of the subsoil and sea bed of the ,_cont!ental shelf. _ -98- GENEVA CONVENTION ON THE CONTINENTAL SHELF 499 U.N.T.S. 311, 15 U.S.T. 471, T.I.A.So No. 5578 In force June 10, 1964 Articles The States Partie to this Convention I Arti 1. The exploration of the continental shelf Have agreed as follows: and the exploitation of its natural resources must not result in any unjustifiable interfer. Article I | ence with navigation, fishing or the consera. For the purpose of these articles, the term tion of the living resoures of the sea, nor re- "continental shelf" is used as referring (a) to suit in any interference with fundamental the seabed and subsoil of the submarine areas oceanographic or other scientific research car- adjacent to the coast but outside the area of ried out with the intention of open publica- the territorial sea, to a depth of 200 metres or, tion. beyond that limit, to where the depth of the superjacent waters admits of the exploitation I and 6 of this article, t he o astal State is pararap of the natural resources of the said areas; (b) titled to construct and maintain or operate on | to the seabed and subsoil of similar submarine the continental sheintallation and other the continental shelf installations and other areas adjacent to the coasts of islands. devices necessary for its eploration devices necessary for its exploration and the Articles2 exploitation of its natural resources, and to establish safety zones around such installs.a- 1. The coastal State exercises over the con- tions and devices and to take in those zones tinental shelf sovereign rights for the purpose measures necessary for their protection. of exploring it and exploiting its natural re- sources. � 3. The safety zones referred to in para- graph 2 of this article may extend -to a distance 2. The rights referred to in paragraph I of of 500 metres around the installations and this article are exclusive in the sense that if the of 500 detres around the installations and coastal State does not explore the continental other devices which have been erected, meas- chelf or exploit ido natural resources, no one ured from each point of their outer edge. Ships shelf or exploit its natural resources, no one may undertake these actifties, or make a of all nationalities must respect these safety claim to the continental shelf, without the ex- zones. press consent of the coastal State. 4. Such installations and devices, though 3. The rights of the coastal State over the under the jurisdiction of the coastal State, do continental shelf do not depend on occupation, not possess the status of islands. They have no effective or notional, or on any express proclas territorial sea of their own, and their presence mation. does not affect the delimitation of the terri- torial sea of the coastal State. 4. The natural resources referred to ine coastal State. these articles consist of the mineral and other 5. Due notice must be given of the construce non-living resources of the seabed and subsoil tion of any such installations, and permanent together with living organisms belonging to means for giving warning of their presence sedentary species, that is to say, organisms must be maintained. Any installations which which, at the harvestable stage, either are im- are abandoned or disused must be entirely re- mobile on or under the seabed or are unable moved. to move except in constant physical contact with the seabed or the subsoil. 6. Neither the installations or devices, nor the safety zones around them, may be estab. Article 3 lished where interference may be caused to the use of recognized sea lanes essential to inter- The rights of the coastal State over the con- tinental shelf do not affect the legal status ofnavigation. the superjacent waters as high seas, or that of 7, The coastal State is obliged to under. the airspace above those waters. take, in the safety zones, all appropriate mens- ures for the protection of the living resources Article 4 of the sea from harmful agents. Subject to its right to take reasonable mes 8. The consent of the coastal State shall ures for the exploration of the continental ures for the exploration of the continental be obtained in respect of any' research concern- shelf and the exploitation of its natural re- ing the continental shelf and undertaken there. sources, the coastal State may not impede the Nevertheless the co astal Stat shal l not n or - laying or msinttemmce of snbmarine cablfi or Nevertheless the coastal State shall not nor- laying or maintenance of submarine cables or mally withhold its consent if the request is pipe lines on the continental shelf. 99ppe ln on e ontinentalel. y withhold its consent if the request is ( -99- submitted by a qualified institution with a view to purely scientific research into the phy. sical or biological characteristics of the con. This Convention shall be open for accession tinental shelf, subject to the proviso that the by any States belonging to any of the cate- coastal State shall have the right, if it so de. gories mentioned in article 8. The instruments sires, to participate or to be represented in the of accession shall be deposited with the Secre- research, and that in any event the results shall tary-General of the United Nations. be published. Article 11 Article 6 1. This Convention shall come into force 1. Where the same continental shelf is ad. on the thirtieth day following the date of de. jacent to the territories of two or more States posit of the twentysecond instrument of whose coasts are opposite each other, the ratification or accession with the Secretary- boundary of the continental shelf appertain. General of the United Nations. ing to such States shall be determined by agree. 2. For each State ratifying or acceding to ment between them. In the absence of agree. the Convention after the deposit of the twenty. ment, and unless another boundary line is second instrument of ratification or accession, justified by special circumstances, the bound. the Convention shall enter into force on the ary is the median line, every point of which thirtieth day after deposit by such State of its is equidistant from the nearest points of the instrument of ratification or accession. baselines from which the breadth of the ter Article 12 ritorial sea of each Stateis measured. 1. At the time of signature, ratification or 2. Where the same continental shelf is ad. accession, any State may make reservations to jacent to the territories of two adjacent States, articles of the Convention other than to arti- the boundary of the continental shelf shall be cles 1 to 3 inclusive. determined by agreement between them. In the absence of agreement, and unless another 2. A ny Contractig State making a r a- tion in accordance with the preceding para. boundary line is justified by special circum. stances the boundary line is justifiedhall by special circuby graph may at any time withdraw the reserva. stances, the boundary shall be determined by tion by a communication to that effect ad. application of the principle of equidistance dressed to the Secretary-General of the United from the nearest points of the baselines from Nations. which the breadth of the territorial sea of each State is measured. Article 13 3. In delimiting the boundaries of the con. 1. After the expiration of a period of five tinental shelf, any lines which are drawn in years from the date on which this Convention accordance with the principles set out in para- shall enter into force, a request for- the re- graphs 1 and 2 of this article should be de. vision of this Convention may be made at any fined with reference to charts and geographi. time by any Contracting Party by means of a cal features as they exist at a particular date, notification in writing addressed to the Secre- and reference should be made to fixed perma. tary-General of the United Nations. nent identifiable points on the land. 2.: The General Assembly of the United Article 7 Nations shall decide upon the steps, if any, to be taken in respect of such request. The provisions of these articles shall not prejudice the right of the coastal State to ex- ploit the subsoil by means of tunnelling irre- Article 14 spective of the depth of water above the sub. The Secretary-General ofthe United Na. soil. , tions shall inform all States Members of the United Nations and the other States referred Article 8 to in article 8: This Convention shall, until 31 October (a) Of signatures to this Convention and of 1958, be open for signature by all States Mem- the deposit of instruments of ratification or bers of the United Nations or of any of the accession, in accordance with articles 8, 9 specialized agencies, and by any other State and 10; invited by the General Assembly of the United (b) Of the date on whic this Conventon Nations to become a Party to the Convention. will come into force, in ath arti- will come into force, in accor'ance with arti- cle 11; Article 9 (c) Of requests for revii;sn in accordance This Convention is subject to ratification. with article 13; The instruments of ratification shall be de to v io, i posited with the Secretary-General of the accordance with article 12. in United Nations. ,_...._. -100- UNITED STATES V. RAY United States Court of Appeals, Fifth Circuit, 1970 423 F. 2d 16 .........-~~~~ ~~~sons was causing irreparable injury to Before WISDOM, GEWIN and AINS- the reefs which are subject to the control WORTH, Circuit Judges. of the United States, and that these ac- tivities constituted trespass. The second I AINSWORTH, Circuit Judge: count alleged that these activities were Triumph and Long Reefs are two cor- being unlawfully conducted without the al reefs which lie in international waters i required authorization of the Secretary {about four and one-half miles off the of the Army. See 33 U.S.C. � 403; 43 southeast coast of Florida, near Miami, I U.S.C. � 1333(f). A preliminary injunc- and are the subject of this interesting tion was granted against defendants. and fantastic controversy between two I Thereafter Atlantis Development Cor- rival private claimants and the United l poration, Ltd., which was also contem- States. To the District Court (Judge plating commercial development of the Charles B. Fulton), the case was remi- reefs, was allowed by this Court to in- niscent of a fairy tale.' To the defend- tervene in the proceedings.2 Inter- ants, the reefs were to become an island venor filed a cross claim, alleging its nation to be known as Grand Capri Re- superior title to the property by vir- public; to intervenor, a new sovereign tue of discovery of the reefs by its country would be established on the predecessor. After an extensive nonjury reefs, to be named Atlantis, Isle of Gold. trial, at which numerous witnesses, lay Defendants would organize some sem- and expert, testified and at which volu- blance of a defense but have no inten- minous exhibits were introduced, the tion of attacking the Coast Guard or District Court adopted all of the facts Navy. Intervenor envisioned the reefs stipulated by the parties and further as a property worth one billion dollars, found: where a post office, building offices,. Triumph and Long Reefs are a stamp department and foreign office1. Triumph and Long Reefs are a would be built, as well as a government r palace and congress. llextending seaward from the alac andcoEast Coast of Florida, and all The fairy tale has an unhappy ending,, waters overlying the reefs do with the granting by the District Court not exceed one hundred fath- of the petition of the United States for oms in depth. a permanent injunction against the ac- tivities of defendants and intervenor on "2. Triumph and Long Reefs are these reefs, and by the action which we completely submerged at all take here in affirming in part and re- times, except when their high- versing in part the judgment of the trial est projections are fleetingly court. The dreams of the separate visible while awash at mean groups for a. new nation must perish, low water. Accordingly, like the lost continent "Atlantis," be- l Triumph and Long Reefs are neath the waves and waters of the sea part of the 'seabed' and 'sub- which constantly submerge the reefs. soil' of the Outer Continental The United States brought this action Shelf within the Outer Conti- for injunctive relief against Louis M. nental Shelf Lands Act of 1953, Ray and Acme General Contractors, Inc. 43 U.S.C. 1331, et seq. alleging interference with the rights of the United States on coral reefs located on its Continental Shelf on two grounds. In the first count the Government al- leged that the activities of these defend- ants in building caissons on the reefs, dredging material from the seabed and depositing that material within the cais- -101- "3. These reefs, together with the LACK OF STATUTORY PERMIT IS- organisms attached thereto, are SUE: 'natural resources' within the The District Court correctly concluded Outer Continental Shelf Lands that the past and proposed activities of Act, and the Geneva Convention defendants and intervenor were unlaw- on the Continental Shelf. ful in the absence of a statutory permit "4. The caissons positioned by Ray from the Secretary of the Army. See- and the jack platform construc- tion 10 of the Rivers and Harbors Act, tion or 'boathouses' built on pil- 33 U.S.C. � 403, prohibits construction ings proposed by Atlantis con- I in navigable waters of the United States stitute 'artificial islands and I unless the work has been "recommended fixed structures * * by the Chief of Engineers and autho- erected * * * for the pur- l rized by the Secretary of the Army." pose of * * * developing' The authority of the Secretary of the the reefs, within the Outer Army is extended to the Outer Continen- Continental Shelf Lands Act." tal Shelf by Section 1333(f) of the Out- Continental Shelf Lands Act, 43 U.S. er Continental Shelf Lands Act, 43 U.S. The District Court denied all claims C, � 1331 et seq.: of defendants and intervenor, granted "The authority of the Secretary of the the claim of the Government under its Army to prevent obstruction to navi- second count, but denied the Govern- gation in the navigable waters of the ment's claim of trepass under the first United States is extended to artificial count. In so doing, the District Court islands and fixed structures located on recognized the sovereign rights of the the outer Continental Shelf." United States, but concluded that those It is undisputed that defend- rights are limited as the claimed inter- ants and intervenor did not obtain per- est of the United States is something, j jmission or authority for their activities less than a property right, consisting of on the reefs. The argument is made neither ownership nor. possession, and that.the area is not navigable and there- consequently not supporting a common fore not governed by Section 1333(f) of law action for trespass quare clausum the Outer Continental Shelf Lands Act. fregit. ; Apparently the Court did not, nor do we, I deem it necessary to predicate the in- All parties have appealed. The Gov- | junction on navigability of waters cover- ernment's appeal is limited to the j ing the reefs, although a specific find- Court's denial of an injunction on count ing of navigability was made. The one of the amended complaint. We af- quoted section extends the authority of firm the District Court's factual find- the Secretary to "fixed structures locat- ings and its grant of injunctive relief ed on the outer Continental Shelf" with- under the Government's second count. out regard to the navigability of the par- However, we reverse the Court's denial ticular area involved. If it were neces- of injunctive relief on the first count of sary to find navigability, however, the the Government's amended complaint.3 evidence amply supports such a finding,4 3. The Legal Adviser of the Department of tinental shelf than are necessary to pre. State joined in the brief of the United vent damage to the interests involved in States "as an expression of the official the particular case." (Reply hr. p. 3.) views of that Department concerning the United States' rights and obligations un- 4. The fact that a portion of a body of der the Convention on the Continental , water is nonnavigable does not affect the Shelf." The United States emphasizes in legal character of general navigability of its brief "that it would be contrary to the the area. In this respect see United interests of the United States to claim, States v. Turner, 5 Cir., 1949, 175 F.2d at this time, in a domestic court, more 644, 647, cert. don., 338 U.S. 851, 70 S.Ct. rights for the United States over its con- 92, 94 L.Ed. 521. -102- I coast but outside the area of the terri- and fully establishes that the structures toral sea, to a depth of 200 metres or, herein involved interfere with the exclu- beyond that limit, to where the depth sive rights of the United States under of the superjacent waters admits of the Convention to explore the Continen- the exploitation of the natural re- tal Shelf and exploit its natural resourc- sources of the said areas; * * * es. Under the circumstances we do not s 15 U.S.T. 473. decide what the result would be if the structures did not interfere with the [5] The evidence shows that the rights of the United States as recognized reefs are completely submerged at mean by the Convention, our decision being high water," and as the Court specifical- limited to the particular facts of this ly found, "at all times, except when case. their highest projections are fleetingly visible while awash at mean low water." THE TRESPiA.SS ISSUE: ! Thus the reefs are contemplated within lit is clear that the reefs in question ~are within the area designated as the, 1 Shelf Lands Act and the Geneva Conven- Continental Shelf by both national (Out- tion on the Continental Shelf, if they er' Continental Shelf Lands Act, supra) meet the definition of "seabed" or "sub- soil" contained therein. Webster de- and international (Geneva Convention on the Continental Shelf,5 15 U.S.T. 473, fines "seabed" as "lands underlying the executed in 1958 and effective in 196473) lVsea." 8 The evidence establishes that the executed in 1958 and effective in 1964) law. term "seabed" is commonly understood to beany terrain below the high water The Outer Continental Shelf Lands line. The federal and common law com- Act, 43 U.S.C. � 1331(a), in pertinent ports with this understanding in defin- part provides: ing the "bed" of a body of water as "The term 'outer Continental Shelf' lands below the ordinary high water .means all submerged lands lying sea- mark. See United States v. Chicago, M., ward and outside of the area of lands i St. P. & P. R. Co., 312 U.S. 592, 597, 61 beneath navigable waters as defined I S.Ct. 772, 313 U.S. 543, 61 S.Ct. 772, 85 in section 1301a of this title, and of L.Ed. 1064 (1941); Alabama v. Georgia, which the subsoil and seabed apper- 64 U.S. (23 Howard) 505, 515, 16 L.Ed. tain to the United States and are sub- 556 (1859); Borough of Ford City, ject to its jurisdiction and control." Pennsylvania v. United States, W.D.Pa., 1963, 213 F.Supp. 248, 251; Yellowstone Article 1 of the international Conven- P * p Pipe Line Company v, Kuczynski, 9 Cir., tion on the Continental Shelf similarly1960, 283 F.2d 41i, 421. The record 1960, 283 F.2d 415, 421. The record reads: shows that on the death of the coral, "For the purpose of these articles, the which has a natural predilection for ce- term 'continental shelf' is used as re- menting itself onto preexisting rocky ferring (a) to the seabed and subsoil structures, its skeletal remains become of the submarine areas adjacent to the but not above the line of mean high tide 5. The Convention grew out of the 1958 * * *, United Nations Conference on the Law of the Sea at Geneva, and was developedl by 7. "Mean high water" has been defined to the International Law Commission of the be the average height of all high waters United Nations. over a given location during a spien of 6. The referred-to section is part of the Sub- 18.0 years. Borax Consolidated v. City of merged Lands Act, 43 U.S.C. � 1301: Los Angeles, 269 U.S. 10, .2, 27, 56 S.Ct. "When used in this chapter- 28, 80 L.Ed. 9 (19835); United States (a) the term 'lands beneath navigable v. California, 882 U.S.- 448, 450, 86 S.Ct. waters' means-- 8.007, 15 L.Ed.2d 517 (1960). � * * ~' * 8. elmter's New, International )iel ilimur (2) all lands permanently. or peri- (3d ed. 1901). odically covered by tidal waters up to -103- part of the seabed of the Continental its natural resources, no one Shelf. The District Court's finding that may undertake these activities, the reefs are part of the "seabed" of the or make a claim to the continen- Shelf is fully supported by substantial I tal shelf, without the express evidence of record. i consent of the coastal State. "3. The rights of the coastal State tional laws (The Outer Continental l over the continental shelf do not depend on occupation, effective Shelf Lands Act and the Geneva Conven- ordepend on occupation effective tion on the Continental Shelf) explicitly p or notiona recognize the sovereign rights of the proclamation. United States and the exclusiveness of "4. The natural resources referred to those rights to explore the Shelf and ex- in these articles consist of the ploit its natural resources. mineral and other non-living re- sources of the seabed and subsoil The Outer Continental Shelf Lands sources of the seabed and subsoil Act (43 U.S.C. � 1332(a)) states: together with living organisms belonging to sedentary species, "It is declared to be the policy of the that is to say, organisms which, United States that the subsoil and at the harvestable stage, either seabed of the outer Continental Shelfle the are immobile on or under the appertain to the United States and are are unable to move ex- subject to its jurisdiction, control, and cept in constant physical contact power of disposition as provided in with the seabed or the subsoil." this subchapter." this subhapter." It is unnecessary for us to decide To the extent that any of the i whether the Outer Continental Shelf terrns'of the Act are inconsistent with Lands Act, Section 1332(a), supra the later adopted Geneva Convention on (which does not limit the nation's "ju- the Continental Shelf, they should be risdiction, control, and power of disposi- considered superseded. See Cook v. tion" to the natural resources of the United States, 288 U.S. 102, 118-119, 53 Shelf), alone confers rights sufficient to S.Ct. 305, 77 L.Ed. 641 (1933). But authorize tho ;'-" nctiVe relief sought. there is nothing in the pertinent lan- The right of the United States to control guage of the Geneva Convention on the' Ithose resources is implicit in Article 2, Continental Shelf which detracts from paragraphs 1, 2 and 3, supra, of the Ge- or is inconsistent with the Outer Conti- neva Convention on the Continental nental Shelf Lands Act. To the contra- Shelf, and explicitly recognized in the ry, the Geneva Convention confirms and Submerged Lands Act, 43 U.S.C. � 1301 crystallizes the exclusiveness of those iet seq. This Act further provides (43 rights, particularly with reference to the U.S.C. � 1302) the definition of "natural natural resources of the Shelf. resources" of the Continental Shelf: / Article 2 of the Geneva Convention on "Nothing in this chapter shall be the Continental Shelf provides: deemed to affect in any wise the "1. The coastal State 3 exercises over i rights of the United States to the nat- the continental shelf sovereign l ural resources of that portion of the rights for the purpose of explor- i subsoil and seabed of the Continental ing it and exploiting its natural i Shelf lying seaward and outside of the resources. i area of lands beneath navigable wa- "2. The rights referred to in para- ters, as defined in Section 1301 of this graph 1 of this article are exclu- title, all of which natural resources sive in the sense that if the appertain to the United States, and / coastal State does not explore the jurisdiction and control of which the continental shelf or exploit by the United States is confirmed," -104- Section 1301, referred to within the not only to its jurisdiction but its con- above-quoted section, defines "natural trol as well. It is in this light that we resources" as including, "without limit- consider the allegations of amended ing the generality thereof, oil, gas, and count one. all other minerals, and fish, shrimp, oys- ters, clams, crabs, lobsters, sponges, Neither ownership nor posses- kelp, and other marine animal and plant sion is, however, a necessary requisite life * * *."' (Emphasis supplied.) jfor the granting of injunctive relief. 43 U.S.C. � 1301(e). i This principle is implicit in the compan- ion decisions of the Supreme Court, eArnticle 2, paragraph 4, of the Geneva United States v. State of Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 cludes in its definition of "natural re- (1950); United States v. State of Tex- sources" both living and non-living 10 re- as, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. sources, /or it defines the term as con- 1221 (1950), in which injunctive relief / sisting of " "' * * mineral and other was granted to protect "paramount non-living resources of the seabed and rights" of the United States beyond the � subsoil together with living organisms territorial limits of Louisiana and Tex- belonging to sedentary species. as, to distances, farther out in interna- tional waters than that involved here Having thus concluded that the United and at a time when those rights had not States has the etc.g.sixe.&igk for pur- yet been statutorily established." poses of exploration and exploitation of In United States v. Republic Steel the reefs, there remains only the ques- Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L. tion of whether injunctive relief was im- Ed.2d 903 (1960), the Supreme Court did properly denied to the Government on not consider lack of specific statutory its first count which alleged trespass. authority a bar to injunctive relief for Although the complaint is inaccurately, the United States in an action alleging framed in terms of trespass in count to commerce in a navigable inland river. one, the Government repeatedly stresses that it is not claiming ownership of the The test for such relief, the Court said, reefs. We do not question the District citing United States v. San Jacinto Tin Court's conclusion that the Government's Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. interest, being something less than fee 747, was "whether the United States had simple, cannot support a common law ac- an interest to protect or defend." 362 U.S. at 492, 80 S.Ct. at 890. See also tion for trespass quare clausum fregit. Wyandotte Transportation Co. v. United But we do not understand that claim to Wyandotte Transportation Co. v, United seek such a remedy, despite the language seek such a remedy, despite the language States, 389 U.S. 191, 88 S.Ct. 379, 19 L. in which the petition is couched. Dam- Ed. 407 (1967); United States v. City and County of San Francisco, 310 U.S. ages, an inseparable element in the com- mon law action for trespass, are not 16, 60 S.Ct. 749, 84 L.Ed. 1060 (1940). sought here, and the only relief request- The evwaum- overwhelmingly ed is restraint from interference with shows that the Government has a vital rights to an area which appertains to interest, from a practical as well as an the United States and which under na- aesthetic viewpoint, in preserving the tional and international law is subject reefs for public use and enjoyment. 10. Such a specific declaration renders im- I . Injunction from interferences with the material the controversy of whether the natural resources over which the IUited coral composing the reefs is living or dead. States was claiming "sovereign rights" ex- Nevertheless, there is abundant evidence tended to an area 27 miles from the coast to corroborate the District Court's finding in tile case against Louisiana, and to the that the living corals attached to the reefs outer edge of the Outer Continental Shelf are sedentary. in the case against Texas (anywhere from 75 to 160 miles of the coast). -105- The protective underwater crannies of The rights of the United States in and the reefs serve as a haven and spawning to the reefs and the vital interest which ground for myriad species of tropical the Government has in preserving the and game fish. The unique and spectac- area require full and permanent injunc- ular formations of the submerged coral I tive relief against any interference with deposits attract scores of water sports those rights by defendants and interve- enthusiasts, skin divers, nature students, : nor. and marine researchers. Certain organ- isms living on the reefs contain sub- We f ind without m erit the addi- stances useful in pharmacology. The tional error allege d, particularly the challenge to the District Court's juris- reefs protect the inland waters from the diction. The District Court held, and heavy wave action of the open sea, thus diction. The District Court held, and we agree, that jurisdiction lies under 28 making the area conducive to boating U.S.C. � 1345 (an action by the United and other water sports. Congress, in- States); under 28 U.S.C. � 1331 (a case tent on conserving the value and natural or controversy arising under the Consti- beauty of the area, recently enacted the the tution, laws or treaties of the United Biscayne National Monument Bill estab- lishing the area, which includes both States involving more than $10,000); TriumpharidLong Reef areas which incls under the Court's general equity and an- Triumph and Long Reefs, as a national monument.12 The reefs are a part of I cillary jurisdiction; and under 43 U.S.C. t he series of coral reefs which dot the � 1333(b) (the Outer Continental Shelf the series of coral reefs which dot the i Lands Act). coastal and international waters extend- l ing out from southeastern Florida., ' Affirmed in part, reversed in part. Slightly to the south and west of the l Triumph and Long Reefs, and straddling the three-mile dividing line between fed- eral and state waters, is the huge feder- al-approved John Pennekamp Coral Reef State Park, also known as Key Largo Coral Reef Preserve. The fact that the area is worthy of preservation is abun- dantly demonstrated by the evidence. But more importantly, the evidence shows that protective action by the Gov- ernment to prevent despoliation of these unique natural resources is of tanta- mount importance. There was convinc- ing evidence that the activities of de- fendants in dredging and filling the reefs has and would continue to kill the sensitive corals by smothering them; that the construction would constitute a navigational hazard to pleasure craft, and would destroy a very' productive ma- rine area and other natural resources. Obviously the United States has an im- i portant interest to protect in preventing I the establishment of a new sovereign na- tion within four and one-half miles of the Florida Coast, whether it be Grand Capri Republic or Atlantis, Isle of Gold. -106- PETROLEUM DEVELOPMENT LTD. V. SHEIKH OF ABU DHABI 1 International & Comparative Law Quarterly 247-48, 253-59 (1951) AWARI OF LORI) ASQUITII OF BISIIOPSTONE I. On January 11, 1939, Sheikh Shakhhbut of Abu Dhabi, one of the Trucial States abutting on the Gulf of Persia from the south atrd west, entered into a written contract in the Arabic language with Petroleum Development (Trucial Coast) Ltd., whereby the Sheikh purported to transfer to that company the exclusive right to drill for and win mineral oil within a certain area in Abu Dhabi. That written agreement contained an arbitration clause, providing for the reference of disputes arising under it to arbitration, for the appointment of two arbitrators, and for the appointment of an umpire in the event of the two arbitrators being unable to agree. Certain disputes (the nature of which is indicated more precisely below, but which relate in substance entirely to the area of the concession) have arisen under this agreement and were in fact referred to arbitration; the said arbitrators did differ; and appoin- ted me as umpire. According to the terms of the arbitration clause, this, my Award, in respect of the dispute is final. iA. Abu Dhabi has a coast line of about-'275 miles on the Gulf. It is bounded on the west by the State of Qatar, and on the east by the State of Dubai, both much smaller States. These frontiers, however, were and are to some extent vague. So is its mainland area, which has been estimated at anything from 10,000 to 26,000 square miles. The main reason for these wide divergences is that! the depth of hinterland to be included is indeterminate. Abu Dhabi is a large, primitive, poor, thinly populated country, whose revenge' until oil was discovered, depended mainly on pearling. It is, like the other Trucial Principalities, a British-protected State; that is6 its external relations are controlled by His Majesty. Internally, thl Sheikh is an absolute, feudal monarch. 2. The nature of the disputes referred to arbitration and the , subject-matter of this Award are formulated in a letter from the claimants to the respondent dated July 18, 1949. The letter runs i as follows:- "The arbitration is to determine what are the rights of the Company with respect to all underwater areas over which the Ruler has or may have sovereignty jurisdiction control or mineral oil rights. "The Company claims that the area covered by the Agree- ment of January 11, 1989 (notably Articles 2 and 3 thereof), includes in addition to the mainland and islands: " (1) All the sea-bed and subsoil under the Ruler's terri- torial waters (including the territorial waters of his islands), and " (2) All the sea-bed and subsoil contiguous thereto over which either the Ruler's sovereignty jurisdiction or control extends or may hereafter extend, or which now or hereafter may form part of the area over which he has or may have mineral oil rights." The issues: The questions referred to arbitration can usefully be paraphrased by expanding them into four, of which the first two -107- deal with territorial waters and the second two with the submarine area outside territorial waters- (i) At the time of the agreement of January 11, 1939, did the respondent-the Sheikh-own the right to win mineral oil from the subsoil of the sea-bed subjacent to the territorial waters of Abu Dhabi? (There seems to be no doubt about this.) (ii) If yes, did he by that agreement transfer such right to the claimant company? (iii) At the time of the agreement did lie own (or as the result of a proclamation of 194,9 did he acquire) the right to win mineral oil from the subsoil of any, and, if so, what submarine area lying outside territorial waters ? (iv) If yes, was the effect of the agreement to transfer such original or acquired rights to the claimant company? (The Sheikh in 1949--10 years after this agreement-purported to transfer these last rights to an American company-the "Superior Corporation": which the Petroleum Development Company claim he could not do, since he had already 10 years earlier parted with these same rights to themselves,) I would add that the parties requested me to express a view both on. question (iii) and on. qu'estion (iv), even if owing to the answer given, to one of these questions, the other should become academic; and; the view expressedi upon it at best an obittr dicturm. 3. The terms of the agreement: The terms of the agreement which are mainly relevant to the determination of these questions are articles 2, 3, 12a, 1 and 17.; from which I proceed to quote certain passages. 4. The agreement having originally- been in the Arabic tongue, considerable differences have arisen as to what is and what is not an accurate translation. This applies particularly to what is the most crucial article of all, namely article 2. Although, as will later appear, the divergences between those translations are not impor- tant, I: think I ought for completeness to set out the rival trans- lations. In the translation originally relied upon by the claimant company, the wording of article 2 is as follows:--- "ARTIcLE 2 (a) The area included in this Agreement is the whole territory subject to the rule of the Ruler of Abu Dhabi and its dependencies, and all its islands and territorial waters. And if in the future there should be carried out a delimitation of the territory belonging to Abu Dhabi, by arrangement with other governments, then the area (of this Agreement) shall coincide with the boundaries provided in such delimitation. " (b) If in the future a Neutral Zone should be formed adjacent to the territories of Abu Dhabi and the rights of rule over such Neutral Zone be shared between the Ruler of Abu Dhabi and another Ruler, then the Ruler of Abu Dhabi under- takes that this Agreement shall include all the mineral oil rights which belong to him in such Zone. "(c) The Company shall not undertake any works in areas r used and set apart for places of worship or sacred buildings or burial grounds." -10'8-m , In particular I cannot accept the argument put forward for the respondcnt that sea waters are merely "included " as a means of access to dry land, whether mainland or insular. To read the word "included," in the Concession, as meaning in the case of the main- land and islands " included as petroliferous areas ": and to read it in relation to the " sea waters " as something totally different, namely, "included as means of access to the petroliferous areas," seems to me unjustifiable, if not perverse. I am not impressed by the argument that there was in 19i39 no word for " territorial waters " in the language of Abu Dhabi, or that the Sheikh was quite unfamiliar with that conception. Mr. Jourdain had none the less been talking " prose " all his life because the fact was only brought to his notice somewhat late. Every State is owner and sovereign in respect of its territorial waters, their bed and subsoil, whether the Ruler has read the works of Bynkershock or not. The extent of the Ruler's Dominion cannot depend on his accomplishments as an international jurist. So far affirmatively. Negatively (still leaving aside what I have called the complicating factors) I should certainly in 1939 have read the expression " the sea waters which belong to that area " not only as including, but as limited to, the territorial belt and its subsoil. At that time neither contracting party had ever heard of the doctrine of the Continental Shelf, which as a legal doctrine did not then exist. No thought of it entered their heads. None such entered that of the most sophisticated jurisconsult, let alone the " understanding " perhaps strong, but " simple and unschooled " of Trucial Sheikhs. Directed, as I apprehend I am, to apply a simple and broad jurisprudence to the construction of this contract, it seems to me that it would be a most artificial refinement to read back into the contract the implications of a doctrine not mooted till seven years later, and, if the view which I am about to express is sound, not even today admitted to the canon of international law. However, the time has now come to consider this doctrine more narrowly. (d) The doctrine of the Continental Shelf, its substance and histornl: The expression " Continental Shelf " was first used by a geographer in 1898.1 The legal doctrine which later gathered round this geographical term was possibly foreshadowed when in 1942 England and Venezuela concluded a treaty about the Gulf of Paria providing for spheres of influence in respect of areas covered by the high seas and followed by certain annexations coincident with these spheres. The doctrine was perhaps first explicitly asserted as a legal doctrine (in a very exaggerated form) in a proclamation by the Argentine Republic in ]944, but its classical enunciation in the form in which it has mainly to be considered in this case was the well-known proclamation by President Truman of September 28, 1951.5. The substance of the doctrine then proclaimed, as I understand it, was this: A coastal power is not surrounded, even at low water, by a precipice leading vertically to the bottom of the ocean, I I Inade a fleeting appearance on thll legal stage in 1916: but passed over it willt "printless feet." -109- perhaps two miles below. As a rule the sea-bed shelves very gently outwards and downwards for a considerable distance, a distance generally (but not invariably) exceeding the three-mile territorial limit.2 Again, not always but very often, where the sea reaches a depth of about 100 fathoms or (what is much the same thing) '2(0 metres, the edge of this shelf is reached and there is a more or less abrupt plunge of the land-nmass down to the ocean floor. Tile doctrine of the " Shelf " as proclaimed in the Truman Declara- tion of 1945 arrogated to the United States "jurisdiction and control " over " the resources " of the American Continental Shelf which was described as " appertailing " to the United States. The resources referred to were those of the subsoil of that zone of the sea-bed which lies between the limit of the territorial waters and the point at which its gently shelving character gives place to an abrupt descent.3 Several other States followed roughly the same course as the United States. For instance, Great Britain (not quite on the same lines) in respect of Jamaica and of the Bahamas, and Saudi Arabia in respect of parts of the Persian Gulf. Other States weighed in with similar claims. These other States fall into two groups; I. Mexico and the Latin and Central American Republics, and II. The States which are most directly relevant in this Arbitration- States bordering on the Persian Gulf other than Saudi Arabia. In almost every case the claim was embodied in a decree or proclamation. Most often, though not invariably, the proclamation was in a " declaratory " form, that is in a form asserting or imply- ing that the proclamation was not constitutive of a new right but merely recorded the existence of a pre-existing one.4 I. The claims of the Latin and Central American Republics were often far more ambitious than those of this country, the United claims were often claims to actual sovereignty over the Shelf and its subsoil" and on the other hand, and this is more important, the claims were often not limited to the Shelf as a geological entity or even to the area ending where the depth of the sea began to exceed 100 fathoms, but sometimes extended to a zone 200 nautical miles 2 If I speak of the three-mile limit and of tho Territorial' Maritime Belt inter. changeably, ithis is only fl'or brevity. [ am aware that soime States claim more than a three-mile belt, but about 80 per cent. of the merchant shipping in the world is registered in " three-mile " countries; and this is tho width of terri- torial waters oin the Persian (tulf. 3 It does not scent to imake any dilriermcroe for the present lilrpose whether as a matter of geological fact the Shelf was built upr by erosion of material from the nnsIbinIerligd portion arid by its sedimentation, or whether the Shelf was originally there in a denuded state and was subsequently submerged by whllt is poetically called the " transgression of the seas." 4 )eclarat.ory: see, fol insteanc(, the proclailiations of Saudi Arabia, May 28, ]9.49, of the 'l'rucial Slates inclulding Abiu ihabi of Jume t10, ]949; the Truman proclalnmatioll of 1945, though its language is not on this point wholly free from ariliiguity: a]nd contrast with Illese proclllinations hlie languiage of the Uniteld lKingdom proclamliations in lthe case (of 11li BIahamras, Novelther 27, 19.19; JaLmai ca, November 26, J19 f; and of hlio lF'alldland Islands, )ecelilIer 21, 1950, all of which employ soitm.Whal allnexatory ]allgllUage stlch " tIlthe b}oundaries of lo ('Iolol)v " arl' h(l'ely stelnllded : lait11a, "ii coi il titive If ratlher titan merely deehlilratory of t11h rightts involved. 5 As in the ctses oif Argelntina ll I), .M(lxiqo 1.t3 and (tl ile 1I.17. from the mainland; an area quite unrelated to the width of the physical Shelf.6 In these exorbitant forms the claims met with protest and resistance; but in the more modest form in which they were advanced by the United States, the United Kingdom and Saudi Arabia, they were acquiesced in by the generality of Powers, or at least not actively gainsaid by them. TI. The British Persian Gulf Proclamnations: The proclamation of Saudi Arabia was followed in 194.9 by proclamations issued by the Sheikhs of the Trucial States (or on their behalf by the Govern- mcnt of the United Kingdom qua protecting Power) including the Sheikh of Abu Dhabi. All of these last proclamations conform broadly in their terms to the Truman proclamation. They mostly contain recitals on the following lines: " Whereas it is just that the sea-bed and subsoil extending to a reasonable distance from the coast should appertain to and be controlled by the littoral State to which it is adjacent." The Abu Dhabi proclamation of June 10, 1949, provides in its operative part " We, Shakhbut Bin Sultan Bin Za'id, Ruler of Abu Dhabi, hereby declare that the sea-bed and subsoil lying beneath the high seas in the Persian Gulf con- tiguous to the territorial waters of Abu Dhabi and extending seaward to boundaries to be determined more precisely as occasion arises on' equitable principles by us after consultation with the neighbouring States appertain to the land of Abu Dhabi and are subject to its exclusive jurisdiction and control." (e) Is the doctrine in any of its form.s part and parcel of inter- national law ?: The preceding section calls attention not only to the recent origin of the doctrine but to the great variety of forms which in its short life it has assumed. Some States claim sovereignty over the Shelf. Others pointedly avoid doing so, claiming only "jurisdiction " or " control," " appurtenance " and the like. Whatever the scope of the rights claimed, some States assert those rights by declaratory proclamations implying their pre-existence; others issue proclamations which are on the face of them a new departure and designed to be constitutive of title. What is the seaward limit of the Shelf ? Here again the answers given differ. Some States say, " its geological or geographical limit, its ' edge ' or its 'drop.' " Others (whether because their particular Shelf has got no edge and has got no drop, or for other reasons), say, " the point at which the sea become I 00 fathoms or 200 metres deep "; while yet others say, " a line drawn parallel to the coast of the, contiguous power and 200 nautical miles from it." The 200-mile claim seems to be more or less universally discredited. The other two criteria seem on their face much more reasonable. But what is the position where as in the Persian Gulf itself, both of these more reasonable criteria fail us, because the Shelf not only has no edge, but extends continuously across a sea whose waters never attain a depth of as much as 100 fathoms? Is it to extend outwards to a "reasonable distance " from the coast-the expression used in the recital of the Abu Dhabi proclamation ? If so, what is a " reason- able distance " ? Where States are grouped, as in this case, round a more or less cylindrical gulf, is the principle " usque ad medium * As in the case of Chile, El Salvador, Hondlras and Costa Rita. , ]' filum " applicable? How could it possibly be applied in the case of comparably shallow seas of completely irregular configuration, such as the North Sea ? Again how are rights of whatever character to the subsoil of the Shelf acquired ? Can they indeed be acquired at all? Or would their existence inevitably conflict with the "free- dom" of the high seas? Before the doctrine of the Shelf was promulgated I think the general answer might well have been that they cannot be acquired at all-that the Shelf is as inappropriable as the high seas that roll or repose above it: subject to this reservation, that the sea-bed (not the subsoil) of the submarine area, is in certain rare cases, subject to a customary right vested in certain States to conduct "sedentary" fisheries in such sea-bed. For instance, the right to fish for sponges, coral, oysters, pearls and chank.7 Indeed, the shallow seas of the Persian Gulf are subject to mutual pearling rights by subjects of the various littoral States. If, however, the submarine area is capable not merely of being the subject-matter of these limited occupational rights over the sea-bed, and pro tanto a ", es nullius," is its subsoil as a whole res nullius? that is to say, something in which rights can be acquired, but only by effective occupation i Or is the position, as the claimants' main argument maintains, that the rights in the subsoil of the Shelf adhere (and must be taken always to have adhered) ipso jure- occupation or no occupation-to the contiguous coastal Power? Or failing that, if occupation be indeed necessary; in cases where it is almost impracticable, may proclamations, or similar acts be treated as a constructive or symbolic or inchoate occupation (tlle claimants' alternative contention under this head) ? Conclusion as to doctrine of the Continental Shelf Neither the practice of nations nor the pronouncements of learned i~. jurists give any certain or consistent answer to many-perhaps most -of these questions. I am of opinion that there are in this field so many ragged ends and unfilled blanks, so much that is merely tentative and exploratory, that in no form can the doctrine claim as yet to have assumed hitherto the hard lineaments or the defini- tive status of an established rule of international law. Whether there ought to exist a rule giving effect to the doctrine in one or other and, if so, which of its forms is another question and one which, if I had to answer it, I should answer in the affirmative. There seems to me much cogency on the arguments of those who advocate the ipso julre variant of the doctrine. In particular: (1) it is extremely desirable that someone, in what threatens to become an oil-starved world, should have the right to exploit the subsoil of the submarine area outside the territorial limit; (2) the contiguous coastal Power seems the most appropriate and con- venient agency for this purpose. It is in the best position to exercise effective control, and the alternatives teem with disadvat- tages; (8) there is no reason in principle why the subsoil of the high seas should, like the high seas themselves, be incapable of T An incompletely selientary crustacean. I galheredl from P1roftessor Waildock hlati ia chank moves very slowly: epulr si lrlore: on this who10t suLbject Sir (rIil Hurst's Paper read to the Grotius lociety in 19t8 is the locaes Classicus. I. -112- being the subject of exclusive rights in any one. The main reasons why this status is attributed to the high seas is (i) that they are the great highways between nations and navigation of these high- ways should be unobstructed. (ii) That fishing in the high seas should he unrestricted (a policy approved by this country ever since Magna Carta abolished " several" fisheries). The subsoil, how- ever, of the submarine area is not a highway between nations and the installations necessary to exploit it (even though sunk from the surface into the subsoil rather than tunnelled laterally) need hardly constitute an appreciable obstacle to free navigation; nor does the subsoil contain fish. (4) To treat this subsoil as res nullius--" fair game " for the first occupier-entails obvious and grave dangers so far as occupation is possible at all. It invites a perilous scramble. The doctrine that occupation is vital in the case of a res nullius has in any case worn thin since the East Greenland Arbitration and more especially since that relating to Clipperton Island. But leaving that aside, it is difficult to imagine any arrangement more calculated to produce international friction than one which entitles nation A, it may be thousands of miles from nation B, to stake out claims in the Continental Shelf contiguous to nation B by " squat- ting " on B's doorstep-at some point just outside nation B's territorial water limit. The question just considered, namely not what is but what ought to be the rule, is not so irrelevant as it might at first sight appear, for the following reason: the International Law Com- mission appointed by the United Nations with M. Frangois as Rapporteur, has been investigating the doctrine and problems of the Continental Shelf. This body has made a number of reports of great interest and importance including a draft code contained in the Report of the Third Session of the International Law Com- mission (A-CN 4-48) consisting of some six or seven short articles ,V ! of which I will quote the first three. ARTICLE 1: "As here used the term ' Continental Shelf' refers to the sea-bed and subsoil of the submarine areas con- tiguous to the coast but outside the areas of territorial waters where the depth of the superjacent waters admits of the exploitation of the natural resources of the sea-bed and sub- soil." ARTICLE 2: "The Continental Shelf is subject to the exercise by the coastal state of control and jurisdiction for the purpose of exploring it and exploiting its natural resources." ARTICLE 3: " The exercise by a coastal state of control and jurisdiction over the Continental Shelf does not affect the legal status of the superjacent waters as high seas." These draft Articles have been prayed in aid by the claimants with the implication that they are, or are intended to be the. expression of principles which are already part of international law, not merely of principles which ought to, or might with advantage, form part of that law in future. If this is indeed the contention of the claimants, I am of opinion that it is ill-founded. It is clear that the Codifying Commission of the International Law Com- mission is charged with two distinct functions, (1) that of recording i existing rules of international law, and (2) that of indicating what .c.l,.tt.--1 .17 . -_ ., _., _ _. -113- the law should be; promoting as the phrase runs, "the progressive development of international law" by preparing draft conventions on " subjects which have not yet been regulated by international law, or in regard to which the law has not yet been sufficiently developed in the practice of States." It seems to me clear that these Articles were framed in the discharge, not of the first but of the second, of these functions. As the Commission in paragraph 0 of its commentary on Article 2 says: " The Commission has not attempted to base on customary law the right of a State to exercise control and jurisdiction for the limited purposes stated in Article 2, and though numerous proclamations have been issued over the past decade it can hardly be said that such unilateral action has already established a new customary law." I therefore cannot accept these Articles as recording, or even purporting to record, established rules: and if they do not, if they are mere recommendations as to what such,rules might with advan- tage be, if adopted by International Convention, they clearly cannot affect the construction of the contract of 1939. (f) Pausing here before dealing with the last question, viz., the effect, if'any of the negotiations on the meaning of the contract; and considering only the possible effect on the construction of the contract of the doctrine of the Shelf; I would summarise as follows the claimant's argument *and my conclusions about it: The claimant's primary contention is (1) that the doctrine of the Shelf is settled law, (2) that it always was so, and therefore that it was so in 1939; ergo, the meaning which some of the expressions in the contract would or might other- wise have borne is enlarged by the inclusion therein of the Shelf. For instance, in Article 2 either the expression " the whole of the lands which belong to the rule of the Ruler of Abu Dhabi " or the expression " and the sea waters which belong to that area," are so enlarged by the inclusion of an area in this case measuring over 8 In respect of this interpretation of the suggested Articles-viz., as recomnmcn. dations rather than records--the following United Nations documenls are relevant; besides A-CN. 4-48 of 19'51 itself (the suggested Articles and coln. mentary thereon), A-CN. 4-Sr. 66, 67, 68 and 69 (these last constituting the Summary Record of the meetings of the Second Session of the International Law Commission, 1950). Perhaps I may make this footnote the vehicle for an expression of gratitude to those who addressed me, for bringing to my notice some or I;he voluminous literature, articles, addresses and other publications- by experts on the Continental Shelf. Those from which I have derived tho most instruction include: (1) Prof. H. Lanterpacht's article entitled " Sovereignty over Slbmarine Areas," which is likely to be published in the Britisl Year Book of Iht'r. national Law, Vol. 27, 19,50, pp. 376-433, almost simultaneously with this Award. (2) Professor Waldock's article "The Legal Basis of Claims to the Con. tinental Shelf " (to appear in Transactionts pf the Grolius Society, Vol. 3, 1950), previously printed as a paper submitted to the Copenhagen Conference of the International Law Association, 1950. (3) Mr. Richard Young's article, " The Legal Status of Submarine Areas beneath the High Seas," published in the American Journal of Interniational Lau), Vol. 45, 1951, April, pp. 225-219. (4) The Memorandum of the Secretary-General of the United Nations on the Reqinme of the Hiqh Seas-'2nd Scssion (1950) of the International Law Commission (A-CN. 4-32). (5) The works of Sir Arnold McNair pasesim; my debt to which is too diffused to be particularised by chapter and verse. -114- 10,000 square miles of extraterritorial marine subsoil. The argu- ment falls to the ground if I am right in rejecting the premise on which it rests, namely, that the doctrine of the Shelf has become and, indeed, was already in 19089, part of the corpus of inter- national law. Again, if I am right in rejecting that premise, the second way in which they put their case also fails; here they rely on the proviso to Article 2 which says that "If in future the lands which belong to Abu Dhabi are defined by agreement with other States, then the limits of the area" (of the Concession) "shall coincide with the limits specified in this definition." The argument is that the Concession is by these words expressly to extend to any after- acquired area of Abu Dhabi, and that the effect of the proclama- tions of 1949, if not retrospective, cannot be less than to add the Shelf to the area originally covered as from the date when the proclamations were promulgated. This argument also fails if I am right in thinking that the premiss on which it rests is invalid; but' I think it would fail independently of that since there has been no definition of anything "by agreement with other States," and I should have thought in any case that the definition referred to wa, limited to oneafeetindry land, whether epirot or insular. -115- NORTH SEA CONTINENTAL SHELF CASES /i1969/ I.C.J. Rep. 3, 12-13, 19-23, 29-33, 39-41, 45-46, 48-54 1. By the two Special Agreements respectively concluded between the Kingdom of Denmark and the Federal Republic of Germany, and between the Federal Republic and the Kingdom of the Netherlands, the Parties have submitted to the Court certain differences concerning "the delimita- tion as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them"-with the exception of those areas, situated in the immediate vicinity of the coast, which have already been the subject of delimitation by two agreements dated 1 December 1964, and 9 June 1965, concluded in the one case between the Federal Republic and the Kingdom of the Netherlands, and in the other between the Federal Republic and the Kingdom of Denmark. 2. It is in respect of the delimitation of the continental shelf areas lying beyond and to seaward of those affected by the partial boundaries thus established, that the Court is requested by each of the two Special Agreements to decide what are the applicable "principles and rules of international law". The Court is not asked actually to delimit the further boundaries which will be involved, this task being reserved by the Special Agreements to the Parties, which undertake to effect such a delimitation "by agreement in pursuance of the decision requested from the ... Court"-that is to say on the basis of, and in accordance with, the principles and rules of international law found by the Court to be applicable. * 11. Although the proceedings have thus been joined, the cases them- selves remain separate, at least in the sense that they relate to different areas of the North Sea continental shelf, and that there is no a priori reason why the Court must reach identical conclusions in regard to them,-if for instance geographical features present in the one case were not present in the other. At the same time, the legal arguments presented on behalf of Denmark and the Netherlands, both before and since the joinder, have been substantially identical, apart from certain matters of detail, and have been presented either in common or in close co-opera- tion. To this extent therefore, the two cases may be treated as one; and it must be noted that although two separate delimitations are in question, they involve-indeed actually give rise to-a single situation. The fact that the question of either of these delimitations might have arisen and called for settlement separately in point of time, does not alter the character of the problem with which the Court is actually faced, having regard to the manner in which the Parties themselves have brought the matter before it, as described in the two preceding paragraphs. 12. In conclusion as to the facts, it should be noted that the Federal Republic has formally reserved its position, not only in regard to the Danish-Netherlands delimitation of the line E-F (Map 3), as noted in paragraph 9, but also in regard to the delimitations United Kingdom/, Denmark and United Kingdom/Netherlands mentioned in paragraph.4: In both the latter cases the Government of the Federal Republic pointed out to all the Governments concerned that the question of the' lateral delimitation of the continental shelf in the North Sea between the Federal Republic and the Kingdoms of Denmark and the Netherlands was still outstanding and could not be prejudiced by the agreements concluded between those two countries and the United Kingdom. -116- 13. Such are the events and geographical facts in the light of which the Court has to, determine what principles and rules of international law are applicable to the delimitation of the areas of continental shelf Envolved. On this 'question the Parties have taken up fundamentally different positions.' On behalf of the Kingdoms of Denmark and the !etherlands it is contended that the whole matter is governed by a mandaFory rule of law which, reflecting the language of Article 6 of the Convention on the Continental Shelf concluded at Geneva on 29 April 1958, was designated by them as the "equidistance-special circumstances" rule. According to this contention, "equidistance" is not merely a method of the cartographical construction of a boundary line, but the essential element in a rule of law which may be stated as follows,-namely that in the absence of agreement by the Parties to employ another method or to proceed to a delimitation on an ad hoc basis, all continental shelf boundaries must be drawn by means of an equidistance line, unless, or except to the extent to which, "special circumstances" are recognized to exist,-an equidistance line being, it will be recalled, a line every point on which is the same distance away from whatever point is nearest to it on the coast of each of the countries concerned-or rather, strictly, on the baseline of the territorial sea along that coast. As regards what constitutes "special circumstances", all that need be said at this stage is that according to the view put forward on behalf of Denmark and the Netherlands, the configuration of the German North Sea coast, its recessive character, and the fact that it makes nearly a right-angled bend in mid-course, would not of itself constitute, for either of the two bound- ary lines concerned, a special circumstance calling for or warranting a departure from the equidistance method of delimitation: only the presence of some special feature, minor in itself-such as an islet or small pro- tuberance-but so placed as to produce a disproportionately distorting effect on an otherwise acceptable boundary line would, so it was claimed, possess this character. 14. These various contentions, together with the view that a rule of equidistance-special circumstances is binding on the Federal Republic, are founded by Denmark and the Netherlands partly on the 1958 Geneva Convention on the Continental Shelf already mentioned (preceding para- graph), and partly on general considerations of law relating to the conti- nental shelf, lying outside this Convention. Similar considerations are equally put forward to found the contention that the delimitation on an equidistance basis of the line E-F (Map 3) by the Netherlands-Danish agreement of 31 March 1966 (paragraph 5 above) is valid erga omnes, and must be respected by the Federal Republic unless it can demonstrate the existence of juridically relevant "special circumstances". 15. The Federal Republic, for its part, while recognizing the utility of equidistance as a method of delimitation, and that this method can in many cases be employed appropriately and with advantage, denies its obligatory character for States not parties to the Geneva Convention, and contends that the correct rule to be applied, at any rate in such circumstances as those of the North Sea, is one according to which each of the States concerned should have a "just and equitable share" of the available continental shelf, in proportion to the length of its coastline or sea-frontage. It was also contended on behalf of the Federal Republic -117- that in a sea shaped as is the North Sea, the whole bed of which, except for the Norwegian Trough, consists of continental shelf at a depth of less than 200 metres, and where the situation of the circumjacent States causes a natural convergence of their respective continental shelf areas, towards a central point situated on the median line of the whole seabed -or at any rate in those localities where this is the case-each of the States concerned is entitled to a continental shelf area extending up to this central point (in effect a sector), or at least extending to the median line at some point or other. In this way the "cut-off" effect, of which the Federal Republic complains, caused, as explained in paragraph 8, by the drawing of equidistance lines at the two ends of an inward curving or recessed coast, would be avoided. As a means of giving effect to these ideas, the Federal Republic proposed the method of the "coastal front", or facade, constituted by a straight baseline joining these ends, upon which the necessary geometrical constructions would be erected. 16. Alternatively, the Federal Republic claimed that if, contrary to its main contention, the equidistance method was held to be applicable, then the configuration of the German North Sea coast constituted a "special circumstance" such as to justify a tleparture from that method of delimitation in this particular case. 17. In putting forward these contentions, it was stressed on behalf of the Federal Republic that the claim for a just and equitable share did not in any way involve asking the Court to give a decision ex aequo et bono (which, having regard to the terms of paragraph 2 of Article 38 of the Court's Statute, would not be possible without the consent of the Parties),-for the principle of the just and equitable share was one of the recognized general principles of law which, by virtue of paragraph I (c) of the same Article, the Court was entitled to apply as a matter of the justitia distributive which entered into all legal systems. It appeared, moreover, that whatever its underlying motivation, the claim of the Federal Republic was, at least ostensibly, to a just and equitable share of the space involved, rather than to a share of the natural resources as such, mineral or other, to be found in it, the location-of which could not in any case be fully ascertained at present. On the subject of location the Court has in fact received some, though not complete information, but has not thought it necessary to pursue the matter, since the question of natural resources is less one of delimitation than of eventual exploita- tion. 18. It will be convenient to consider first the contentions put forward on behalf of the Federal Republic. The Court does not feel able to accept them-at least in the particular form they have taken. It considers that, having regard both to the language of the Special Agreements and to more general considerations of law relating to the regime of the continental shelf, its task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned, or their division into converging sectors. Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical. -118- 19. More important is the fact that the doctrine of the just and equi- table share appears to be wholly at variance with what the Court enter- tains no doubt is the most fundamental of all the rules of law relating to the continental shelf, enshrined in Article 2 of the 1958 Geneva Con- vention, though quite independent of it,-namely that the rights of the coastal State in respect of the area of contifental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab ilitio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted. Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is "exclusive" in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent. 20. It follows that even in such a situation as that of the North Sea, the notion of apportioning an as yet undelimited area, considered as a whole (which underlies the doctrine of the just and equitable share), is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement, according to which the process of delimitation is essentially one of drawing a boundary line between areas which already appertain to one or other of the States affected. The delimitation itself must indeed be equitably effected, but it cannot have as its object the awarding of an equitable share, or indeed of a share, as such, at all,-for the fundamental concept involved does not admit of there being anything undivided to share out. Evidently any dispute about boundaries must involve that there is a disputed marginal or fringe area, to which both parties are laying claim, so that any delimitation of it which does not leave it wholly to one of the parties will in practice divide it between them in certain shares. or nnerrte as if such a division had been made. But this does not mean that there has been an apportionment of some- thing that previously consisted of an integral, still less an undivided whole. V � * * 21. The Court will now turn to the contentions advanced on behalf of Denmark and the Netherlands. Their general character has already' been indicated in paragraphs 13 and 14: the most convenient way of dealing with them will be on the basis of the following question-namely,; does the equidistance-special circumstances principle constitute a manda- tory rule, either on a conventional or on a customary international law basis, in such a way as to govern any delimitation of the North Sea continental shelf areas between the Federal Republic and the Kingdoms of Denmark and the Netherlands respectively? Another and shorter way of formulating the question would be to ask whether, in any delimitation of these areas, the Federal Republic is under a legal obligation to accept the application of the equidistance-special circumstances principle. 22. Particular attention is directed to the use, in the foregoing formula- tions, of the terms "mandatory" and "obligation". It has never been doubted that the equidistance method of delimitation is a very convenient one, the use of which is indicated in a considerable number of cases. It constitutes a method capable of being employed in almost all circum- stances, however singular the results might sometimes be, and has the virtue that if necessary,-if for instance, the Parties are unable to enter into negotiations,-any cartographer can de Jfcto trace such a boundary on the appropriate maps and charts, and those traced by competent cartographers will for all practical purposes agree. -119- 23. In short, it would probably be true to say that no other method of delimitation has the same combination of practical convenience and certainty of application. Yet these factors do not suffice of themselves to convert what is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise, or in which "special circumstances", cannot be shown to exist. Juridically, if there is such a rule, it must draw its legal force from other factors than the existence of these advantages, important though they may be. It should also be noticed that the counter- part of this conclusion is no less valid, and that the practical advantages of the equidistance method would continue to exist whether its em- ployment were obligatory or not. 38. fThe Court will begin by examining this latter aspect, both because it is the more fundamental, and was so presented on behalf of Denmark and the Netherlands-i.e., as something governing the whole case; and because, if it is correct that the equidistance principle is, as the point was put in the course of the argument, to be regarded as inherent in the whole basic concept of continental shelf rights, then equidistance should con- stitute the rule according to positive law tests also. On the other hand, if equidistance should not possess any a priori character of necessity or inherency, this would not be any bar to its having become a rule of posi- tive law through influences such as those of the Geneva Convention and State practice,-and that aspect of the matter would remain for later examination. 39. -The aipi-or--trgument starts from the position described in para- graph 19, according to which the right of the coastal State to its conti- nental shelf areas is based on its sovereignty over the land domain, of which the shelf area is the natural prolongation into and under the sea. From this notion of appurtenance is derived the view which, as has al- ready been indicated, the Court accepts, that the coastal State's rights exist ipso facto and ab initio without there being any question of having to make good a claim to the areas concerned, or of any apportionment of the continental shelf between different States. This was one reason why the Court felt bound to reject the claim of the Federal Republic (in the particular form which it took) to be awarded a "just and equitable share" of the shelf areas involved in the present proceedings. Denmark and the Netherlands, for their part, claim that the test of appurtenance must be "proximity", or more accurately "closer proximity": all those parts of the shelf being considered as appurtenant to a particular coastal State which are (but only if they are) closer to it than they are to any point on the coast of another State. Hence delimitation must be effected by a method which will leave to each one of the States concerned all those areas that are nearest to its own coast. Only a line drawn on equidistance principles will do this. Therefore, it is contended, only such a line can be valid (unless the Parties, for reasons of their own, agree on another), because only such a line can be thus consistent with basic continental shelf doctrine. 40. This view clearly has much force; for there can be no doubt that as a matter of normal topography, the greater part of a State's continental -120- shelf areas will in fact, and without the necessity for any delimitation at all, be nearer to its coasts than to any other. It could not well be other- wise; but post hoc is not propter hoc, and this situation may only serve to obscure the real issue, which is whether it follows that every part of the area concerned must be placed in this way, and that it should be as it were prohibited that any part should not be so placed. The Court does not consider that it does follow, either from the notion of proximity it- self, or from the more fundamental concept of the continental shelf as being the natural prolongation of the land domain-a concept repeatedly appealed to by both sides throughout the case, although quite differently interpreted by them. 41. As regards the notion of proximity, the idea of absolute proximity is certainly not implied by the rather vague and general terminology employed in the literature of the subject, and in most State proclamations and international conventions and other instruments-terms such as "near", "close to its shores", "off its coast", "opposite", "in front of the coast", "in the vicinity of", "neighbouring the coast", "adjacent to", "contiguous", etc.,-all of them terms of a somewhat imprecise character which, although they convey a reasonably clear general idea, are capable of a considerable fluidity of meaning. To take what is perhaps the most frequently employed of these terms, namely "adjacent to", it is evident that by no stretch of imagination can a point on the continental shelf situated say a hundred miles, or even much less, from a given coast, be regarded as "adjacent" to it, or to any coast at all, in the normal sense of adjacency, even if the point concerned is nearer to some one coast than to any other. This would be even truer of localities where, physically, the continental shelf begins to merge with the ocean depths. Equally, a point inshore situated near the meeting place of the coasts of two States can often properly be said to be adjacent to both coasts, even though it. may be fractionally closer to the one than the other. Indeed, local geo- graphical configuration may sometimes cause it to have a closer physical. connection with the coast to which it is not in fact closest. 42. There seems in consequence to be no necessary, and certainly no complete, identity between the notions of adjacency and proximity; and therefore the question of which parts of the continental shelf "adjacent to" a coastline bordering more than one State fall within the appurte- nance of which of them, remains to this extent an open one, not to be determined on a basis exclusively of proximity. Even if proximity may afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in all circumstances, the most appropriate one. Hence it would seem that the notion of ad- jacency, so constantly employed in continental shelf doctrine from the start, only implies proximity in a general sense, and does not imply any fundamental or inherent rile the ultimate effect of which would be to prohibit any State (otherwise than by agreement) from exercising>t"ci-' tinental shelf rights in respect of areas closer to the coast of another State. -121- 43. More fundamental than the notion of proximity appears to be the principle-constantly relied upon by all the Parties-of the natural prolongation or continuation of the land territory or domain, or land sovereignty of the coastal State, into and under the high seas, via the bed of its territorial sea which is under the full sovereignty of that State. There are various ways of formulating this principle, but the underlying idea, namely of an extension of something already possessed, is the same, and it is this ide;a of extension which is, in the Court's opinion, deter- minant. Submarine areas do not really appertain to the coastal State because-or not only because-they ate near it. They are near it of course; but this would not suffice to confer title, any more than, ac- cording to a well-established principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the sub- marine areas concerned may be deemed to' be actually part of the terri- tory over which the coastal State already has dominion,-in the sense that, although covered with water, they are a prolongation or continua- tion of that territory, an extension of it under the sea. From this it would follow that whenever a given submarine area does not constitute a natural-or the most natural-extension of the land territory of a coastal State, even though that area may be closer to it than it is to the territory of any other State, It cannot be regarded as appertaining to that State;- or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it. 44. In the present case, although both sides relied on the prolongation principle and regarded it as fundamental, they interpreted it quite dif- ferently. Both interpretations appear to the Court to be incorrect. Den- mark and the Netherlands identified natural prolongation with closest proximity and therefrom argued that it called for an equidistance line: the Federal Republic seemed to think it implied the notion of the just. and equitable share, although the connection is distinctly remote. (The Federal Republic did however invoke another idea, namely that of the proportionality of a State's continental shelf area to the length of its coastline, which obviously does have an intimate connection with the prolongation principle, and will be considered in its place.) As regards equidistance, it clearly cannot be identified with the notion of natural prolongation or extension, since, as has already been stated (paragraph 8), the use of the equidistance method would frequently cause areas which ;are the natural prolongation or extension of the territory of one State to be attributed to another, when the configuration of the latter's coast makes the equidistance line swing out laterally across the former's coastal front, cutting ifoff from areas sitifated;.directly before that front. 45. The fluidity of.all these notions is well illustrated by the case of the Norwegian Trough (paragraph 4 above). Without attempting to pronounce on the status of that feature, the Court notes that the shelf areas in the North Sea separated from the Norwegian coast by the 80- 100 kilometres of the Trough cannot in any physical sense be said to be adjacent to it, nor to be its natural prolongation. They are nevertheless considered by the States parties to the relevant delimitations, as described in paragraph 4, to appertain to Norway up to the median lines shown on Map I. True these median lines are themselves drawn on equidistance' principles; but it was only by first ignoring the existence of the Trough that these median lines fell to be drawn at all. -122- 46. The conclusion drawn by the Court from the foregoing analysis is that the notion of equidistance as being logically necessary, in the sense of being an inescapable a priori accompaniment of basic continental shelf doctrine, is incorrect. It is said not to be possible to maintain that there is a rule of law ascribing certain areas to a State as a matter of in- herent and original right (see paragraphs 19 and 20), without also ad- mitting the existence of some rule by which those areas can be obliga- torily delimited. The Court cannot accept the logic of this view. The problem arises only where there is a dispute and only in respect of the marginal areas involved. The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights. There is for instance no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisory Opinion, 1924, P.C.I.J., Series B, No. 9, at p. 10). * * 47. A review of the genesis and development of the equidistance method of delimitation can only serve to confirm the foregoing conclu- sion. Such a review may appropriately start with the instrument, generally known as the "Truman Proclamation", issued by the Government of the United States on 28 September 1945. Although this instrument was not the first or only one to have appeared, it has in the opinion of the Court a special status. Previously, various theories as to the nature and extent of the rights relative to or exercisable over the continental shelf had been advanced by jurists, publicists and technicians. The Truman Proclama- tio.a however, soon eame to be regarded as the starting point of the posi- tive law on the subject, and the chief doctrine it enunciated, namely that of the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores, came to prevail over all others, being now reflected in Article 2 of the 1958 Geneva Convention on the Continental Shelf. With regard to the delimitation of lateral boundaries between the continental shelves of adjacent States, a matter which had given rise to some consideration on the technical, but very little on the juristic level, the Truman Proclamation stated that such boundaries "shall be determined by the United States and the State con- cerned in accordance with equitable principles". These two concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, have underlain all the subsequent history of the subject. They were reflected in various other State proclamations of the period, and after, and in the later work on the subject. 48. It was in the International Law Commission of the United Nations that the question of delimitation as between adjacent States was first taken up seriously as part of a general juridical project; for outside the ranks of the hydrographers and cartographers, questions of delimitation were not much thought about in earlier continental shelf doctrine. Juridical interest and speculation was focussed mainly on such questions as what was the legal basis on which any rights at all in respect of the continental shelf could be claimed, and what was the nature of those rights. As regards boundaries, the main issue was not that of boundaries between States but of the seaward limit of the area in respect of which the coastal State could claim exclusive rights of exploitation. As was pointed out in the course of the written proceedings, States in most cases had not found it necessary to conclude treaties or legislate about their lateral sea boundaries with adjacent States before the question of ex- ploiting the natural resources of the seabed and subsoil arose;-practice was therefore sparse. -123- 49. In the records of the International Law Commission, which had the matter under consideration from 1950 to 1956, there is no indication at all that any of its members supposed that it was incumbent on the Commission to adopt a rule of equidistance because this gave expression to, and translated into linear terms, a principle of proximity inherent in the basic concept of the continental shelf, causing every part of the shelf to appertain to the nearest coastal State and to no other, and because such a rule must therefore be mandatory as a matter of customary inter- national law. Such an idea does not seem ever to have been propounded. Had it been, and had it had the self-evident character contended for by Denmark and the Netherlands, the Commission would have had no alter- native but to adopt it, and its long continued hesitations over this matter would be incomprehensible. 64. The normal inference would therefore be that any articles that do not figure among those excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of law; and this is the inference the Court in fact draws in respect of Article 6 (delimitation), having regard also to the attitude of the International Law Commission to this provision, as already described in general terms. Naturally this would not of itself prevent this provision from eventually passing into the general corpus of customary interna- tional law by one of the processes considered in paragraphs 70-81 below. But that is not here the issue. What is now under consideration is whether it originally figured in the Convention as such a rule. 65. It has however been suggested that the inference drawn at the beginning of the preceding paragraph is not necessarily warranted, seeing that there are certain other provisions of the Convention, also not excluded from the faculty of reservation, but which do undoubtedly in principle relate to matters that lie within the field of received customary law, such as the obligation not to impede the laying or maintenance of submarine cables or pipelines on the continental shelf seabed (Article 4), and the general obligation not unjustifiably to interfere with freedom of navigation, fishing, and so on (Article 5, paragraphs I and 6). These matters however, all relate to or are consequential upon principles or rules of general maritime law, very considerably ante-dating the Convention, and not directly connected with but only incidental to continental shelf rights as such. They were mentioned in the Convention, not in order to declare or confirm their existence, which was not necessary, but simply to ensure that they were not prejudiced by the exercise of continental shelf rights as provided for in the Convention. Another method of drafting might have clarified the point, but this cannot alter the fact that no reservation could release the reserving party from obligations of general maritime law existing outside and independently of the Con- vention, and especially obligations formalized in Article 2 of the con- temporaneous Convention on the High Seas, expressed by its preamble to be declaratory of established principles of international law. -124- 66. Article 6 (delimitation) appears to the Court to be in a different position. It does directly relate to continental shelf rights as such, rather than to matters incidental to these; and since it was not, as were Articles I to 3, excluded from the faculty of reservation, it is a legitimate inference that it was considered to have a different and less fundamental status and not, like those Articles, to reflect pre-existing or emergent customary law. It was however contended on behalf of Denmark and the Nether- lands that the right of reservation given in respect of Article 6 was not intended to be an unfettered right, and that in particular it does not extend to effecting a total exclusion of the equidistance principle of delimitation,-for, so it was claimed, delimitation on the basis of that principle is implicit in Articles 1 and'2 of the Convention, in respect of which no reservations are permitted. Hence the right of reservation under Article 6 could only be exercised in a manner consistent with the preserva- tion of at least the basic principle of equidistance. In this connection it was pointed out tha, of the no more than four reservations so far entered in respect of Article 6, one at least of which was somewhat far- reaching, none has purnorted to effect such a total exclusion or denial. 67. The Court finds this argument unconvincing for a number of reasons. In the first place, Articles 1 and 2 of the Geneva Convention do not appear to have any direct connection with inter-State delimitation as such. Article 1 is concerned only with the outer, seaward, limit of the shelf generally, not With boundaries between the shelf areas of opposite or adjacent States. Article 2 is equally not concerned with such boundaries. The suggestion seems to be that the notion of equidis- tance is implicit in the reference in paragraph 2 of Article 2 to the rights of the coastal State over its continental shelf being "exclusive". So far as actual language is concerned this interpretation is clearly incorrect. The true sense of the passage is that in whatever areas of the continental shelf a coastal State has rights, those rights are exclusive rights, not exercisable by any other State. But this says nothing as to what in fact are the precise areas in respect of which each coastal State possesses these exclusive rights. This question, which can arise only as regards the fringes of a coastal State's shelf area is, as explained at the end of para- graph 20 above, exactly what falls to be settled through the process of delimitation, and this is the sphere of Article 6, not Article 2. 68. Secondly, it must be observed that no valid conclusions can be drawn from the fact that the faculty of entering reservations to Article 6 has been exercised only sparingly and within certain limits. This is the affair exclusively of those States which have not wished to exercise the faculty, or which have been content to do so only to a limited extent. Their action or inaction cannot affect the right of other States to enter reservations to whatever is the legitimate extent of the right. 69. In the light of these various considerations, the Court reaches the conclusion that the Geneva Convention did not embody or crystallize any pre-existing or emergent rule of customary law, according to which the delimitation of continental shelf areas between adjacent States must, unless the Parties otherwise agree, be carried out on an equidistance- special circumstances basis. A rule was of course embodied in Article 6 of the Convention, but as a purely conventional rule. Whether it has since acquired a broader basis remains to be seen: qua conventional rule however, as has already been concluded, it is not opposable to the Federal Republic. -125- 70. The Court must now proceed to the last stage in the argument put forward on behalf of Denmark and the Netherlands. This is to the effect that even if there was at the date of the Geneva Convention no rule of customary international law in favour of the equidistance principle, and no such rule was crystallized in Article 6 of the Convention, never- theless such a rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent State prac- tice,-and that this rule, being now a rule of customary international law binding on all States, including therefore the Federal Republic, should be declared applicable to the delimitation of the boundaries between the Parties' respective continental shelf areas in the North Sea. 71. In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to thet Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained. 81. The Court accordingly concludes that if the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance prin- ciple for the delimitation of continental shelf areas between adjacent States, neither has its subsequent effect been constitutive of such a rule, . and that State practice up-to-date has equally been insufficient for the purpose. 82. The immediately foregoing conclusion, coupled with that reached earlier (paragraph 56) to the effect that the equidistance principle could not be regarded as being a rule of law on any a Driori basis of logical necessity deriving from the fundamental theory of the continental shelf, leads to the final conclusion on this part of the case that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings. In these circumstances, it becomes unnecessary for the Court to determine whether or not the configuration of the German North Sea coast constitutes a "special circumstance" for the purposes either of Article 6 of the Geneva Convention or of any rule of customary international law,-since once the use of the equidistance method of delimitation is deteirmined not to be obligatory in any event, it ceases to be legally necessary to prove the existence of special circum- stances in order to justify not using that method. -126- 88. The Court comes next to the rule of equity. The legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining States has already been stated. It must however be; noted that the rule rests also on a broader basis. Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable. Nevertheless, when mention is made of a court dispensing justice or declaring the law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application of equitable principles. There is con- sequently no question in this case of any decision ex aequo et bono, such as would only be possible under the conditions prescribed by Article 38, paragraph 2, of the Cqurt's Statute. Nor would this be the first time that the Court has adopted such an attitude, as is shown by the following passage from the Advisory Opinion given in the case of Judgments of the Administrative Tribunal of the I.L.O. upon Complaints Made against Unesco (I.C.J. Reports 1956, at p. 100): "In view of this the Court need not examine the allegation that; the validity of the judgments of the Tribunal is vitiated by excess of' jurisdiction on the ground that it awarded compensation ex aequo et bono. It will confine itself to stating that, in the reasons given by the Tribunal in support of its decision on the merits, the Tribunal said: 'That redress will be ensured ex aequo et bono by the granting to the complainant of the sum set forth below.' It does not appear from the context of the judgment that the Tribunal thereby intended to depart from principles of law. The apparent intention was to sav that, as the precise determination of the actual amount to be awarded could not be based on any specific rule of law, the Tribunal fixed what the Court, in other circumstances, has described as the true measure of compensation and the reasonable figure of such com- pensation (Corfu Channel case, Judgment of December 15th, 1949, I.C.J. Reports 1949, p. 249)." : 89. It must next be observed that, in certain geographical circum- stances which are quite frequently met with, the equidistance method, despite its known advantages, leads unquestionably to inequity, in the following sense: (a) The slightest irregularity in a coastline is automatically magnified by' the equidistance line as regards the consequences for the delimita- tion of the continental shelf. Thus it has been seen in the case of concave or convex coastlines that if the equidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity. (b) In the case of the North Sea in particular, where there is no outer boundary to the continental shelf, it happens that the claims of several States converge, meet and intercross in localities where, despite their distance from the coast, the bed of the sea still un- questionably consists of continental shelf. A study of these con- vergences, as revealed by the maps, shows how inequitable would be the apparent simplification brought about by a delimitation which, ignoring such geographical circumstances, was based solely on the equidistance method. -127- 90. If for the above reasons equity excludes the use of the equidistance method in the present instance, as the sole method of delimitation, the question arises whether there is any necessity to employ only one method for the purposes of a given delimitation. There is no logical basis for this, and no objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. The Court has already stated why it considers that the inter- national law of continental shelf delimitation does not involve any im- perative rule and permits resort to various principles or methods, as may be appropriate, or a combination of them, provided that, by the applica- tion of equitable principles, a reasonable result is arrived at. 91. Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy. But in the present case there are three States whose North Sea coastlines are in fact comparable in length and which, therefore, have been given broadly equal treatment by nature except that the con- figuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment equal or comparable to that given the other two. Here indeed is a case where, in a theoretical situation of equality within the same order, an inequity is created. What is un- acceptable in this instance is that a State should enjoy continental shelf rights considerably different from those of its neighbours merely because in the one case the coastline is roughly convex in form and in the other it is markedly concave, although those coastlines are comparable in} length. It is therefore not a question of totally refashioning geography* whatever the facts of the situation but, given a geographical situation of, quasi-equality as between a number of States, of abating the effects ofi an incidental special feature from which an unjustifiable difference of' treatment could result. 92. It has however been maintained that no one method of delimita- tion can prevent such results and that all can lead to relative injustices. This argument has in effect already been dealt with. It can only strengthen the view that it is necessary to seek not one method of delimitation but. one goal. It is in this spirit that the Court must examine the question of how the continental shelf can be delimited when it is in fact the case that the equidistance principle does not provide an equitable solution. As the operation of delimiting is a matter of determining areas appertaining to different jurisdictions, it is a truism to say that the determination must be equitable; rather is the problem above all one of defining the means where- by the delimitation can be carried out in such a way as to be recognized as equitable. Although the Parties have made it known that they intend: to reserve for themselves the application of the principles and rules laid down by the Court, it would, even so, be insufficient simply to rely on the rule of equity without giving some degree of indication as to the possible ways in which it might be applied in the present case, it being understood that the Parties will be free to agree upon one method rather than an- other, or different methods if they so prefer. . 93. In fact, there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circum- stances of the case. 94. In balancing the factors in question it would appear that various aspects must be taken into account. Some are related to the geological, others to the geographical aspect of the situation, others again to the -128- idea of the unity of any deposits. These criteria, though not entirely precise, can provide adequate bases for decision adapted to the factual situation. 95. The institution of the continental shelf has arisen out of the recog- nition of a physical fact; and the link between this fact and the law, with- out which that institution would never have existed, remains an im- portant element for the application of its legal r6gime. The continental shelf is, by definition, an area physically extending the territory of most coastal States into a species of platform which has attracted the attention first of geographers and hydrographers and then of jurists. The impor- tance of the geological aspect is emphasized by the care which, at the beginning of its investigation, the International Law Commission took to acquire exact information as to its characteristics, as can be seep in particular from the definitions to be found on page 131 of Volure I of the Yearbook of the International Law Commission for 1956. The ap- purtenance of the shelf to the countries in front of whose coastlines it lies, is therefore a fact, and it can be useful to consider the geology of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation because, in certain localities, they point-up the whole notion of the appurtenance of the continental shelf to the State whose territory it does in fact prolong. 96. The doctrine of the continental shelf is a recent instance of en- croachment on maritime expanses which, during the greater part of history, appertained to no-one. The contiguous zone and the continental shelf are in this respect concepts of the same kind. In both instances the principle is applied that the land dominates the sea; it is consequently necessary to examine closely the geographical configuration of the coast- lines of the countries whose continental shelves are to be delimited. This is one of the reasons why the Co'urt does not consider that markedly pronounced configurations can be ignored; for, since the land is the legal source of the power which a State may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extensions. Above all is this the case when what is in- volved is no longer areas of sea, such as the contiguous zone, but stretches of submerged land; for the legal regime of the continental shelf is that of a soil and a subsoil, two words evocative of the land and not of the sea. 97. Another factor to be taken into consideration in the delimitation of areas of continental shelf as between adjacent States is the unity of any deposits. The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of the legal r6gime established subsequent to the Truman Proclamation. Yet it frequently occurs that the- same deposit lies on both sides of the line dividing a con- tinental shelf between two States, and since it is possible to exploit such a deposit from either side, a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. To look no farther than the North Sea, the practice of States shows how this problem has been dealt with, and all that is needed is to refer to the undertakings entered into by the coastal States of that sea with a view to ensuring the most efficient exploitation or the apportionment of the products extracted-(see in particular the agree- ment of 10 March 1965 between the United Kingdom and Norway, Article 4; the agreement of 6 October 1965 between the Netherlands and the United Kingd6m relating to "the exploitation of single geological structures extending across the dividing line on the continental shelf under the North Sea"; and the agreement of 14 May 1962 between the Federal Republic and the Netherlands concerning a joint plan for ex- ploiting the natural resources underlying the area of the Ems Estuary where the frontier between the two States has not been finally delimited.) The Court does not consider that unity of deposit constitutes anything more than a factual element which it is reasonable to take into considera- tion in the ccqurse of the negotiations for a delimitation. The Parties are fully aware of the existence of the problem as also of the possible ways of solving it. -129- 98. A final factor to be taken account of is the element of a reason- able degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines,-these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions. The choice and application of the appropriate technical methods would be a matter for the parties. One method discussed in the course of the pro- ceedings, unde': the name of the principle of the coastal front, consists in drawing a straight baseline between the extreme points at either end of the coast concerned, or in some cases a series of such lines. Where the parties wish to employ in particular the equidistance method of delimita- tion, the establishment of one or more baselines of this kind can play a useful part in eliminating or diminishing the distortions that might result from the use of that method. 99. In a sea with the particular configuration of the North Sea, and in view of the particular geographical situation of the Parties' coastlines upon that sea, the methods chosen by them for the purpose of fixing the delimitation of their respective areas may happen in certain localities to lead to an overlapping of the areas appertaining to them. The Court considers that such a situation must be accepted as a given fact and resolved either by an agreed, or failing that by an equal division of the overlapping areas, or by agreements for joint exploitation, the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit. 100. The Court has examined the problems raised by the present case in its own context, which is strictly that of delimitation. Other questions relating to the general legal regime of the continental shelf, have been examined for that purpose only. This r6gime furnishes an example of a legal theory derived from a particular source that has secured a general following. As the Court has recalled in the first part of its Judgment, it was the Truman Proclamation of 28 September 1945 which was at the origin of the theory, whose special features reflect that origin. It would therefore not be in harmony- with this history to over-systematize a pragmatic construct the developments of which have occurred within a relatively short space of time. 101. For these reasons, THE COURT, by eleven votes to six,. finds that, in each case, (A) .the use of the, equidistance method of delimitation not being obligatory as between the Parties; and (B) there being no other single method of delimitation the use of which is in all circumstances obligatory; (C) the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the agreements of I December 1964 and 9 June 1965, respectively, are as follows:. -130- (1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circum- stances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other; (2) if, in the application of the preceding sub-paragraph, the delimitation leaves to the Parties areas that overlap, these are to be divided be- tween them in agreed proportions or, failing agreement, equally, unless they decide on a r6gime of joint jurisdiction, user, or exploita- tion for the zones of overlap or any part of them; (D) in the course of the negotiations, the factors to be taken into account are to include: (1) the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features; (2) so far as known or readily ascertainable, the physical and geological structure; and natural resources, of the continental shelf areas in- volved; (3) the element of a reasonable degree of proportionality, which a delimi- tation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas apper- taiing to the coastal State and the length of its coast measured in the general' direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental Shelf delimitations between adjacent States in the same region. Done in English and in French, the English text being authoritative at the Peace Palace, The Hague, this twentieth day of February, one thousand nine hundred and sixty-nine, in four copies, one of which will' be placed in the archives of the Court and the others transmitted to the Government of the Federal Republie of Germany, to the Government of the Kingdom of Denmark and to the Government of the Kingdom of the Netherlands, respectively. (Signed) J. L. BUSTAMANTs R., President. (Signed) S. AQUARONE, Registrar. THIRD U.N. CONFERENCE ON THE LAW OF THE SEA SECOND COMMITTEE, SECOND SESSION, 16TH MEETING 26 July 1974 4. With regard to the delimitation of the continental shelf, he Continental shelf noted that in 1956 the Internatibnal Law Commission in its [Agenda item 5] draft articles concerning the law of the sea2 had added the . Mr. TUERK (Austria) said that the results of the Commit- exploitability criterion to the depth criterion and that both 1 ~. Mr. TUERK (Asra)si tahrsltfh omi � criteria had been included in the 1958 Geneva Convention. His tees work had so far not been as good as might have been expected or desired and he confirmed his delegation's readiness country could not accept reconfirmation of the exploitability to do everything it could to help the Committee reach generally crterion in the new convention because it implicitly contra- acceptable solutions, dicted the Declaration of Principles Governing the Sea-Bed 2 heitembefwconcern and the Ocean Floor, and the Subsoil Thereof, beyond the 2. The item before the Committee was of particular concern Limits of National Jurisdiction3 by voiding of much of its to his country. His delegation hoped that the new law of the sea substance an area whose resources were the common herita would accommodate the legitimate interests of all States. That of mankind. His delegation had stated in the general debate at had not always been the case for certain groups of States, as of m ankind. His delegation had stated n the general debate at could be seen from the legal norms established at Geneva in the 38th plenary meeting that it was essential for the Confer- 1958, in the Convention on the Continental Shelf,' which to- ence to create an economically meaningful international area; . ' :y _.~ the only way to do justice to the concept of the common tally disregarded the legitimate interests of the land-locked the only way to do ustldbe teo set up an inteationa heritage of mankind would be to set up an international area countries. That was understandable considering that the with enough significant resources left to be shared among all Truman Proclamation of 28 September 1945, on which the GeTruman Proclamatiod been bas ed to some exte ntmber 945, on which the States in the near future. Accordingly, his country preferred a Geneva text had been based to some extent, had emanated distance criterion not exceeding 200 miles, for the inequity of from a country which did not have to take into account the interests of any land-locked States in its geographical area. In the depth criterion had beendean important r eason into the high view of the political situation existing at that time, any misgiv. seas. ings which some countries might have had concerning the sea principle enunciated in the Proclamation had not been voiced. 5. If the Conference should'reach agreement on the establish- Other coastal States had followed the example set in the.Proc ment of an economic zone, his delegation would see no need to lamation, and their unilateral declarations had been given legal retain the concept of the continental shelf, since the legal con- sanction by the 1958 Geneva Convention, He noted that of the tent of the tern cont inental shelf sh ould b e absorbed by the 86 States participating in the First United Nations Conference new legal notion of "econoric zone". Such a development on the Iaw of the Sea, in 1958, only 10 were land-locked, while legal framework of matters relating to the of the 149 States invited to the current Conference 29 were s_ Iafind-locked. His country, like almost two thirds of the States ' Mr. Pisk (Czechoslovakia), Vice-Chairman, took the Chair. participating in the current Conference, had not become a 6. Mr. ZELAYA UBEDA (Nicaragua) said that the question party to the Geneva Convention on the Continental Shelf. of the continental shelf required frank examination and could . The continental shelf had been defined as the zone around be approached from two points of view. First, the 1958 Geneva the continent extending from the low-water line to the depth Convention had created a legal fiction by dividing the sub- :where there was usually a marked increase of declivity to marine part of a territory into two parts, one situated below the greater depth. Geophysical research had shown that the conti- territorial sea, the other situated beyond an undefined territo- nental m argin was an extension r of the same nature as the 'rial sea where the coastal State would exercise sovereign rights continent itself. It could therefore be said that the with regard to the exploration and exploitation of natural margin was a submerged area of the continent and not just of resources. That legal fiction had prevented some countries, its coastal fringes. The assertion that the continental shelf I including his own, from acceding to the Convention. Secondly, might be regarded as an extension of the land mass of the e hen the various proposals concerning the cont inental s helfa- coastal nation and thus naturally appurtenant to it seemed submitted to the Committee o n the Peaceful Uses of the Sea- correct only in cases where Nhe coastal State was one of conti-ooral Juris nental dimensions with no land-lockedcodiction were considered in th'$context of the notions of territo- The right to explore and exploit the natural resources of the rial sea, patrimonial sea and conomic zone, it could be seen continental shelf should not therefore be reserved for coastal I Official Records of the General A~sembly. Eleventh Session, Sup- States but should be accorded on an equitable basis to land- plment No. 9,para. 33. locked States in their respective geographical regions. Greater General Assembly resolution 2749 (XXV). account should also be taken of the legitimate interests of other geographically disadvantaged States. -132- that the legal fiction had been retained: some ideas had been consensus. Accordingly, his delegation had submitted a added which obscured the concept of the continental shelf, working document (A/CONF.62, C'.2 ' I.. 17). It requested that while others were open to interpretations which would extend " at least the first four paragraphs should be incorporated in the the limits imposed on the coastal State with regard to its sub- informal working paper on the continental shelf' to be prepared merged territory to such a degree as to be tantamount to ac- by the officers of the Committee, but stressed that all the pro- ceptance of a further partition of its territory and sovereign posals formed an integralwholc. powers. 12. His delegation had tried to set out a series of basic points 7. His delegation thought that all those ambiguous concepts leading towards a global agreement or the basic political should be made clear; the new law of the sea should have a framework for universal solutions. An essential concept was rational foundation which would make it intelligible. The ex- that adjoining the traditional national territory there should be isting concept of the continental shelf was similar to an asser- a national zone made up of three separlat elements; in it the tion that a person's foot was part of his body if he was bare- coastal State would have the right to exercise separate jurisdic- foot, whereas, when shod, his foot was not part of his body but tional powers to safeguard its own interests and the legitirate was identified with the shoe. interests of the international community; the coastal Stalte would be the guarantor of the international community, which, 8. His country's laws maintained that the continental shelf in its turn, would guarantee to the coastal State the inviola- was a part of its national territory. In view of the recognized bility and integrity of the national zonec: finally, the working special nature of the submerged area of the territory of Central document dealt with the question of rights and duties in the America in the Caribbean, the listing of the characteristics of natiopal zone, including the questions of straits and land- that area would show that his country's legal tradition of terri- ilocked and geographically disadvantaged States. toriality for the shelf dated from the distant past. Everything that was essential for the territorial integrity and physical, economic and institutional security of a country must be under three fssues before the Committee: the legal basis of the rights its jurisdiction and control. That fundamental right was limited of coastal States over the continental shelf; the definition of the only by the equal right of another State. His country could continental shelf; the relation of the continental shelf to the easily demonstrate that its continental shelf in both oceans Ieconomic zone. In 1969, in paragraph 19 of its judgment on the bordering its coastline-and in the Pacific up to a distance of ; North Sea continental shelf,4 the International Court of Justice 200 miles from its coasts-met that criterion fully. History had - had held that the continental shelf was the natural prolong;l- demonstrated the strategic value of some of the characteristics tion of a State's territory and that the rights of the coastal State of his country's continental shelf. Moreover, everyone was i with regard to that area existed ip ad a i byg aware that its emergent territory did not extend very far and virtue of its sovereignty over the land. Although those rights had few resources; thus his country needed the resources of' its were embodied in the 1958 Geneva Convention, they existed continental shelf for its development, and the use of those independently of the Convention by virtue of their toundation resources was being fully integrated in the life of the country. It in customary law. The International Court had in effect undel- needed to complete that integration by establishing a regime i scored the importance of the geological factor, which must be which would guarantee rather than weaken it. ' taken into account in any definition of the continental shelf. 9J. Somne of the proposals concerningtlhe continental shelf, the 114. The definition of the continental shelf in article I of the 1958 Convention lacked precision. The criterion of exploita- patrimonial sea and economic zone gave rise to deep concern. il en Either the economic zone would be limited to the water column ility was open to various interpretations by stressing the geo- situated between the outer limit of the territorial sea of 12 miles. logical and the geographical factors, the International Court and the outer limit of 200 miles, or the concept of the conti- had not supported that criterion. the detinition must hie made nental shelf established in 1958 would be further weakened. rrore precise, the legal notion of the contincivai shclf must be ntal sdelegalf establishferred thin 19 would be further wealternative. different from the geological notion. In his delegation's view. the definition should be expressed in terms of depth, and the 10. It was inconceivable that the economic zone or patrimo- continental shelf should include the continental slope and rise. nial sea could be interpreted as including areas of the sea-bed That view was supported by the judgment of the International whiclh formed part of a country's continental shelf. That would Court that the coastal State's jurisdiction over submerged areas make tihe problem more complicated and unless the ambiguity extended not only over the continental shelf but also over the was removed, it would give rise to many reservations. Unless slope and rise, on the grounds that they were a natural proion- the Committee established that the economic zone or patrimo- gation of the coastal State's territory. nial sea had a national character, it would be creating yet15. The Conference could not rere. Some c al another legal fiction. Some of the proposals would have serious S 15. The Confer continentl mreshion th otur. SoTe coastal economic effects and must be limited to certain resources and Stats hed a b etter continental argin than others. The need to a part of the water column of the economic zone. Other definition f the practical, rontiioental, just and equitable proposals. such as that of historic use, divested the concepts of definition of the contin ental shelf. the economic zone and patrimonial sea of the role incumbent 16. His delegation thought that the rgitne for the continental upon them as instrumets of development. The granting to shelf should be considered together with that fot the economic interfnational bodies of powers of jurisdiction and inspection the natre and characteristics of over the national economic zone was only ac~eptable in a very *the economic zone, including the rights and jurisdictions of iri area and possibly should not go beyond advisory coastal States with regard to all the natural resources thereof. limited area and possibly should not go beyond advisory functions. With regard to the question of compensatory men- J 17. Mr. ORION (Israel) said that the doctrine of the conti- sures in favour of the land-locked and other geographically mlental shelf was firmly established in modern international disadvantaged States, his delegation thought that geographical law and that nothing affected the legal status of the superjacenl proximity could not be the sole criterion, and it would not be 'waters as high seas or of the air space above those waters. ''hc fair to compel States with few resources to share them with freedom of the seas must be preserved and any interference others, while the rich countries enjoyed abundance. twith freedom of navigation and overflight must be kept to the , absolute minimum. 11. Failure to reach agreement on certain basic aspects of the absolute mini tn. issues could impede the general work of the Conference. His 18. Underlying the Truman Proclamation of 1945 was the consideration that the continental shelf was regar'ded as a delegation thought that some decisions were more basic than others and that it would help the work of all the Committees if they were dealt with separately in a partial and provisional i 4 North Sea (ontinental Shelf/ Judgmenm, 1. c.. Reporls 1969. p 3. -133- single morphological unit joined with the continental area of a 1. Mr. MUKUNA KABONGO (Zairc) said that. over the given State; hence the coastal State enjoyed sovereign rights years, the concept of the continental shelf had lost none of its over it. Technological advances since the 1958 United Nations economic importance. Consequently, it was only right to incor- Conference on the Law of the Sea required a re-examination of porate it in the new convention. tinder the 1958 Geneva ('on- the law and new agreements with a view to preventing conflicts. vention on the Continental Shelf,' the concept was based oni His delegation, which agreed that the rules for the delimitation the criteria of morphology and depth. At the current stage, of the outer limit of the continental shelf should be revised, however, it was appropriate to review those criteria within the believed that the criteria of depth and exploitability were now context of an over-all political solution. A 200-mile economic outdated. Israel. a country with a narrow shelf and a short zone, if established, would, in practice, not dilcer in substance coastline, was unable to support any criterion based on depth from the concept of the continental shell. The rights of a as the seaward limit of the continental shelf and it preferred a coastal State over the exploration and exploitation of the re- lixed distance from the shore as an alternative to exploitability. sources within the relevant economic zone would necessarily cover the mineral resources of the continental shelf, which 19.It ws advisable to permit each coastal Stateto define the henceforth should be delimited in accordance with the criterion outer limit of its continental shell' up to an agreed maximum of distance and not that of exploitability. Te continental measured from the baselines in order to help the disadvantaged margin beyond the 200-mile limit would fall within thejurisdic- coastal States to exploit the sea-bed within the area designated tion of the proposed international authority, which would have for the continental shelf. In a semi-closed sea like the Mediter- more extensive powers over that aria. rancan. the problem of delimiting the continental shelf for coastal States, whether adjacent or opposite to each other, was Mr. Pisk (Czechoslovakia) Vtce-haluirtnan, rook fhe C'uir. that their shelves were likely to overlap. Those States should, . 2. Mr. ROTKIRCH (Finland) said that the question of the therefore, respect each other's sovereignty and conduct neces- future regime of the continental shelf was closely linked to the sary consultations in order to arrive at a reasonable agreement various new proposals to extend the jurisdiction of coastal on the boundary of the coastal sea-bed area of each State, States over the natural resources adjacent to their coast, and particularly in accordance with the principle of equity as stated particularly to the principle of an economic zone. The concept by the International Court of Justice in 1969 with respect to the of the continental shelf embodied in the 1958 Geneva Conven- continental shelf of the North Sea. ' tion on the Continental Shelf was widely accepted and applied 20. Since the proposed economic zone of 200 miles would by States, including States not parties to the Convention. Ac- 20. Since the proposed economic zone of 200 miles would Xcordingly, the function of the Conference was not to abolish cover the continental shelf, there was some question whether to cordingly, the function of the Conference was not to abolish covlealr the con tinental shelf, there was some question whethe to the concept, but rather to seek agreement on an exact dclini- deal with the issue at all. His delegation believed that the two tion of the outer limit of the continental shelf. items should be dealt with separately for the time being, be- cause the economic zone concept was still being formulated 13. The part of the continental shelf situated within the pro- and its full development would require time and experience, posed 200-mile economic zone would in practice be absorbed while the continental shelf was an established institution. With into that zone and would no longer exist as a special regime regard to the sea-bed and non-living resources, his delegation The proposals to extend the maximum breadth of the tcrrito- was still studying whether exclusive zones would be a practical rial sea to 200 miles would have the same efcect. There might be proposition in Israel's part of the Mediterranean Sea; however, States, however, especially coastal States in enclosed or semi- it did not wish to prejudice decisions with respect to the wide enclosed sea areas, which did not wish to establish economic oceans where wide allocations were feasible. zones as such over the whole area of their continental shelf, or States which wished to establish zones of a limited economic 21. It was generally recognized that only the developed States . .', v' wt currently possessed the financial and technological competence nature only, such as fisheryzones, of which there were already for the exploitation of the submarine resources of the oceans many examples. In such cases, his delegation understood that Accordingly, his delegation would suggest that the United Na- the current concept of the continental shelf would remain valid. tions Development Programme should develop programmes to That view was also reflected in some of the proposals submitted ,sDevelopment Programme should develop programmes to . to the Committee on the Peaceful Uses of the Sea-Bed and the help developing countries to benefit from the resources of the Ocean Floor beyond the Limits of National Jurisdiction. If the deep sea adjacent to their continental shelf by providing re- concept were not to remain valid, difficult situations could arise search and technical facilities. His delegation understood that in many areas of the world where the continental shelves of that zone was being limited to the non-living resources of the bo rdering States ha d b een delimited through bilateral or sea-bed and subsoil underlying a belt of sea up to a reasonable tilater a l agreements. distance seaward of the outer limit of the continental shelf. That would not affect the character, as high seas, of the super- 4. What should be avoided was the creation of a situation in jacent sea, nor the status of the air space above it. . which current agreements would have to be renegotiated just 22. HIle wished to recall that his delegation had not taken part because the concept of the continental shelf' had ceased to exist in the work of the sea-bed Committee and, since it was within the area over which an economic zone was established. speaking on the item for the first time, it reserved the right to speak again, particularly on new proposals introduced at the Conference. -134- REPORT OF U.S. SENATE COMM. ON COMMERCE, 94TH CONG. , 1ST SESS.,0 THIRID U.N. LAW OF THE SEA CONFERENCE 24-28 (Comm. Print 1975) THE ECONOMIC ZONE The. concept of exclusive coastal state jurisdiction over the renew- Iable and inon-renewable resources which are found in the water, in the seabed, Iand in the subsoil of an area adjacent to the territorial sea, wits first introduced at a meeting of ministers of Caribbean nations on the law of the sea held in Santo Domingo in June 1972. In a declaration ~issued on June 7, 1972, the Caribbean -nations held that coastal states had sovereign rights over such resources in an area (which they called the patrimonial sea) not exceeding a maximum of 200 nautical miles)12 The Caribbean declaration was 1ollowed by draft articles submitted by~ Kenya, which specifically refer to the rights of coastal states "to establish an Diconomic Zone beyond the territorial sea for the primary benefit of their peoples and their respective economies in which they shall exercise sovereign rights over tile natural resources for thle pur- pose. of exploration and exploitation." Theli rights of the coastal sta te under the Kenyan draft are more extcnsivfe than those, under the Santo Domingo Declaration and include the right of thle coastal state to regulate scientific. research and marine pollution within the "Eco-. nomlic Zoie'. TInte'rmnis of the limnits of tboarea, the Kenan draftqsates7 that "Ille Econoilic Zone shiall not in ainy case excesed 200,nautical mliles, mleasured fromn the baselines .for deterwiniung the territorial s." A year later, the Organizatiopi. for .Africani Unity att its 21st ordlinary session in Addis Ababa, ]Ethiopia, fromll 17 to 24 Maiy 1973, p ~~~~~adopteldite, 1Kenyan (Iraft on the Economic, Zotick-1 Grnanally, a g~rowing,$ nin uher o)f developing and somec developed nations adopted the.( 200) nautical miEkEconomic Zone concept,Ihut the, mnajor ingiritilue c-ountries con ifinlci I t dwil op oita ff. Finally at thle arci'eso, I tie Soviet, Union fild. the Unilld St~ates, enidorsed. the c~otwpt of "a 200 unauticall Ilile econlomic( zone( linder. certain conditions. On July 11,, 1974, Amubassadlor John R. Stevenson stated: We, are, proparedt to accept, and !indeed we would welcome, goi-kral agmraeuet on a 12 maife oilier imnit for the territ~orial sea and a 200mille outer limit for the economic zone, providted it is 13art of ani acceptablle coprheWie paokage incluing satisfactory regimc within and beyond the econiomi z ine and po vision for umkipelerlj)d transit. of straits used for interniatonal naviagatioon.10 USB. psin Tewillinignle--s of the. U~nited States atid 9,her developed ("oastal states (Jap~an bas nlot yet endorsed the conce~pts)to accept, a 200) mile outeor flimit for the (economic zoneo d'epends Onr the ("11VI11U011t iegot'ift~ion, and acceptance, of correlative coastal state (lutie-'. Th1e UT.,S. draft proposal on the econornic, zone includ&s the fol lowillg provisionls (1) th.le outer limiit of tbe economicd zone shall not exceed 200 n.i.fro-i- a Jpplicoble aiselities for ineasuring the territorial.'sea; Withinl the ecollnoic zone the coastal state shall haverexc~iivo righ~ts for the pulrpost' or explorilng arid exploiting atll.t .AialUal resources" of the seabed, the subsoil,' and the, sulperjaeent-watsrs; (2) coastal states mnay not' interfere -with. tu~remfai gation and overflighit, and other r'ights- recognized. by they O'~ietal prl~i)e of international law, exempt as otherwise specifically * 1)1'('I~~~~proid'odl; (3)' ('oll-A.11 stories shll ave exclusive, rights for 'the, purpose of reguIlotiug- fishinig wvithlin thle ecouloillc zone; (4 -oatal states shiall ensure conservaino rnwbl e- source~s wvit-in the (uconomific zone bl~iise on .,Scienitific, xeseaitch Ahd withlout( cliScIi'fiMinatio aginsl't ally fisherman;.-- -135- (5) the coastal state shall ensure full utilizaition of renewable resourlces within the economic zone, and for this purpose shall permit natinmals of othe r states to fish for that portion-of the allow)able catch not fully utilized by its nationals, and on the basis of priorities. Priorities favor states that have hiiitl.llv fishlled for the resource, neighboring and land-locked 'tates; (6) special regulations for narll'omous species such as ialmon favoring the state of origin; (7) special regulatio:ns for highly migratory species such:asttuna, whihl will be regulated by the coastal state within the economin; zone, and by the state of nationality outside the economic zone, in accordance with regulations established by ftppopriate international and roeional fishing organizations: : (8) coastal states will exercise sovereign rights over the. conti- nental shelf for the purpose of exploring and exploiting its natural resources. '.The continental shelf is defined as the seabed and subsoil of the siubmarine areas adjacent to anti beyond the territorial sea to the limit of the economic zone or, beyond that limit, 'throughout' the submerged natural prolongation of the land tenlitory)of the 6oastal state to the outer limit of its conti- nefntill margint. The seward limit of the continental margins still need to be defined; (9) other provisions call for guarantees of foreign investment arfd sharing of revenue of non-renewable resources seward of tile territorial sea or the 200 meter isobath, whichever is fu:rther and (10) rights of the coastal state over the continental shelf do iot affect the legal status of the superjacent waters, or that of air space above those waters.'7 'The present U.S. position is both a recognition of the growing consensus on the concept of -a 200 n.m. economic zone and a compro- mise between domestic coastal and distant-water fisleerie.s. The Unite(1 States has a major interest in both. Its distant-water tuna and shrimp fisheries rank among the most important U.S. fisheries in terms of value landed, Atfthe same time,, the United States has recognized the need to protect its coastal fisheries from the rapidly increasing danger of overfishing. RExisting international law does not sufficiently protect marine fisheries beyond a narrow zone of twelve niles, and inter- fnational and regional fisheries treaties and organizations have not, proven effective in the fight against overfishing. The proposed eco- nomic zone of 200 nautical miles, coupled with special regulations for anadromnous and highly migratory species, would bring almost all fisheries of commercial importance under the malamgement of coastal states and international fisheries organizations. The provision calling for coastal state jurisdic-tion over the resources of the seabed and subsoil to the outer limit of the continental margin, would also give the coastal state control over almost all potential petroleum provinces in the oceans. The only significant category of exploitable resources outside the economic zone are the manganese nodules, which are primarily located on the deep seabed. The present, U.S. position on the continental shelf differs from thie original Nixon proposals of 1970. At that time, the United States proposed that all nations adopt as soon as possible a treaty under which they would renounce national claims over seabed resources beyond the 200 meter isobath and would agree to regard those resources as the common heritage of mankind.1l The Departmcnt of the Interior did not favor the Nixon draft, and foreign reaction to the idea of international con- trol was also negative. In response to theose negative responses the United States position shifted toward support for the 200-mile eco- nomic zone concept. Developing nations' position.-Most developing coastal states favor a 200 nautical mile economic zone in one form or another. However, they differ significantly in their approach. The AfricLaL position as -136- presifent l il tlhe Declara tion, of theo Organization of African $t~tfls in I 973, ]'it, examiple, cons;iders. 11lie exclusive ("Collolnio Z(ofl as an ieVI WIe which the coa'ta sIItate exerciskes sovereignity over the living 1111l non-hying reswlircv, of I lie area. Thel African ntations consider tho eol"'coilmic. zone, 11 II iiiti onal area of sovereignty for economici piNroes it-hin which the coastai stato not only enjoys, sovereigntby ov7erJ all resources, but also exercises exclusive juitsdiction in the alcfor their prot~ection. Rat her than cons'ider-ingg thol e'0011MIC zoPe a1s cii areaPf Within whlich ilhe coast al tAute )los certain rights, talk O.A.U t Io"itionl regards I he, ecolnomic Zono as a national zonie w'1it It n wich (iOvi enaina coimnmitin has- ce(ritain well defined bitt res'twlefted rigli t. Th'leyrejc the , l obligatnion to ensu"Ire full Obliga- Gont iii Ihil)(g reSotIrV' 11tidt insist on (,,oast at state controls dover scieltifiic research and regulal ion of p)olluttion wit~hin tlie eononiic7zone. E'vfn lua"igtionl lna~y he subi)ject to coastal state regulation tender the African proposal.- 'heAfrican proplosrll as it stands does' not a ppenrt 14 be accept'able to thle maritime nations. _Evon within t~he Group of 77 there are dfifference-Cs of opinion on' theo riglits andi oblihgo-tions of tile coastatl stattes, withinl. the ec-onomic zone. _N41nv land(1lockedI aild -eoguaphicti ly dlisadiv~antaged states Lear-that 1111le.s they hlave att t s to thl, resoitices ol tile ecoifonlhlc zone and re(ceive gt'.11.tnatees of H-2insit , ilhey have lit tle lo gorain fronm the pro- pttsed eormtoifliC Zone( Thii~s clea.;rloml briolghlt out, in tile Katnpala dleehtrat a at. Their sitppou t I or the ecotoitic, zone will lairgely depend otil lie d(lt~~re of m.eutodi~aii ion tha coast~al startes, aire willing to bring Thorto are farthor corn plicalt ions. Ac-cept rt(e, of the. economic zono will flopet~id oil turoigreernen oil. territorial lim~ f~iltlt(].t international stnittit. NI orovcr'u',tile ( olifero!Ce tilso llec.(ls to reatch agrectmoft' on. tIl problemi of' islandIs, lbase'lines, archipelagoes, and So on1. The, list, of Init em before Commnitteec It t~ot-als 15 out, of file 24 items before 'tho P (1~~~~~onldeleiiee, anld because so many controversial inatters have to ~be ('X.11i61ewl' ('olminittveo .II iritide loss progres~s tl'itui (onirnittoeel'a'b thle ( arrawas ses-.ion. At the Caracats sv,,sioti Clonuni~itee IT devotedl most itt it,, t nite to a, presejttat ioal o'f i~idividittl national Jpositiong,. d lpropo:.;als ;it, its 46 fi-nitl nieeting.- (July 3-Aiigust 28) and to un (effort. inl informal sessionls t'o focus tlit nr;-( di, cussions and negotiatiotis oil fuindantent ti issues. Mu ich or tile available' time was use-,d *atteznPt- ing( to dbtieoi andi commnen~t. oit the~ myore titan SO formal prop4al tel.1(] to rItinec a" ariuch Its tis.iile , th iinheib I le rna ovfor MRoS ili the working papers. '.t Anti es-adlor Andres Angui'mlar of Venezuela, tile Chirnuof'~ Inittee 11, sutiii'ed up1 thle, progress, I-made lit Caracas i~~mit~f in a collcililoit staoiltetnet lit, thel end of the session: The i (Itt ia ,f ait erritorinsal oJff 2 tollIes iotC (if. at I xeh IIsive econmchoed the ttrritiitiiteal "UT) to a totll, (Ustzmee of 200 mxiles, is, at least~ttll~m' h Jieystoile ef the Compromnise solittioll favored by theaiiajorityof ttslaLp- big !in tht, Coieerence. The acceetaaace of this idea is,. of course,derdtt a ,,ati~sfamo~rx -solution of other issue eweialfy the iassue. of pa~ssa~~ hoge ttr' used fiir int~eraatimi onalavigatimiu, the ocierniostliruitts of the colitinetlse'n the utetitil 1`0tention Of this coneetit. and last,. hutl not leftst~ the siai~o land-locked and other countries which, for one reason or another,cnidrte selves geographically disadvantaged. There are, in addition, other problems Which Inust be studied and solved in connection with this idea, for example, those reliating to archipelagoes and to the regihne of islands in general. It is necessary to' go further into the matter of the nature and characteristics of the concept of an exclusive economic zone, a subject on which !important differences still persist. On all these subjects substantial progress has been made which lays the founda- tions for negotiation in the interscssional p~eriod and at the next session of the conference, Much headwny has be en miade aet Caracas along the! road which will lead uts to the final goal.21 -137- U.N. DOC. A/CONF. 62/WP. 8/REV. I/PART II 3D Official Records 5, 160-65 (Informal Single Negotiating Text) Chapter 111:'The exclusive economic zone AniM Ic'46 Righits an diltits aotoher Sleutev ill the exch/uov it' er1cwomu A iric h 44 -M Riqlahs, Irisdiction and d~uiiev of the coast'al Statle inl the I. in the exclusive economic zone, fill States, whefibri xchtI1islil' C'0l~J Z.Oll coastal or land-locked, enjoy. Nuhiect to the relevant prim sions of the present Convention, the treedomns of navigatioii I. In an area 'beyond and adjacent to its territorial se;i, and overflight and of' the laying of submiarine cabless ;ran described as file exclusive economic zone, tile Coastal State pipelines and other internationally lawful uses of' the so, ha,.,: related to navigation and cotmmu nication. (it) Sovereign rights For the purpose of exploring .ind 2. Articles 77 to 103 land other pertinent riles of' intlen'la- exploiting, conserving and managing the nauali resourceS. tional law apply to the exclusive economic ,omte in -so 11-ri;i whether living or non-living, of' the tied and subsoil and the they are not incompatible with this Chapter. supemriacent waiters;, 3. In exercising their'rights and performing theitr dtiecs (b) Exclusive rights and jiirisdiction with regard to Ilhe under the present Convention in the exclusive. econolliQ establishment and use of artificial islands, installations land zone. States shall have due regard it) the rights, andi dilties il structures;, the coastal Stale and shall comply with the laws mdi t egulte (c) Fxclusive jurisdiction with regatd to: tions enacted by the coastal State in conformity with ill, I (i) Other activities for the economic exploitation Hutant i o te ue fintrainll exploration of the zone. such as the production (if energy from the waiter,. currents and winds; atidK (ii Scientific research; (it) JIurisdiction with regard it) the preservation of, the marine environment, including polltttion control and~ abatcment; ~~~~~~~~~~~~~~~~~~~Artich, 47 (e) Other rights land ditties provided for in the present Ba-V ./;It . the rcsollitioll of' collflict.. 1-crgedin4' flit aurihol- Cotnvention.tino .tsad*ridgimith.luieraoi' 2. In exercising its rights. and performing its ditties uenderi 0 the presetit Convention in the exclusive economic zone, the Inassweetepsnt(ovtindsntatrue coastal State shaill have due regard to the rights, and duties (II uesweeth e p e e t Crvnil te o 111fl other States. rigfits or jutrisdiction to the coastal State ot' to other States 3ti [he rights set out in this article with respect to the e ihnteecuieeooi oe n ofitaie 3. usi hl eeecsd nacrac ihCatrI between the interests of' the coastal State and any (ther Staite subsil sall e exrcied i accrdane wth (haptr I orStates, the conflict should he resolved on the basis (i1' equity and in the light of all the relevant circumstances, taking into account the respective importance of the interest.- A)rtjich 415 involved to the parties as well as to the internatoa community as a whole. Breadtlh of th1e v.%chIah-4, eeafloilli -,cal The exclusive economic zone shall not extend beyond 200t nautica-l miles, frm-oithe baselines from which the breadth otf the territorial sea is measured. -138- Al richle 50 A Iricle 48 Con.servltion of the living resxotrves � IrtlIif'ial i.N-htnsX, in.l'tlhtili, m.i (alnt .lvt,'tttreX i the' �.\('llisvf eo('(lomic )/ 0 l1lt 11 I. The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone. I. In the exclusive economic zone, the coastal Stitec shall have the exclusive right to construct and to authorize and 2. The coastal State, taking into account the best scien- regulate the construction, operation and use of: tific evidence available to it, shall ensure through proper conservation and management measures that the mainte- (a) Arltificial islands; nance of the living resources in the exclusive economic zone (h) Installations and structures for the purposes provided is not endangered by over-exploitation. As appropriate, the for in article 44 and other economic purposes; coastal State and relevant subregional, regional and global organizations shall co-operate to this end. (c) Installations and structures which may interfere with the exercise of the rights of the coastal State in the zone. 3. Such measures shall also be designed to maintain or restore populations of harvested species at levels which can 2. 'I'he coastalState shall have exclusivejurisdictionover i produce the maximum sustainable yield, as qualified by such artificial islands, installations and structures, including relevant environmental and economic factors, including the jurisdiction with regard to customs, fiscal, health, safety and economic needs of coastal fishing communities and the imnmigratio n regulations. special requirements of developing countries, and taking into 3. I)ue notice must he given of the construction of such account fishing patterns, the interdependence of stocks and artificial islands, installations or structures, and permanent any generally recommended subregional, regional or global means for giving warning of their presence must be main- minimum standards. tained. Any installations or structures which are abandoned 4. In establishing such measures the coastal State shall orl disusedl must he entirely removed, take into consideration the effects on species associated with 4. The coastal State may, where necessary, establish or dependent upon harvested species with a view to maintain- reasonable safety zones around such artificial islands, instal- ingbor restoring populations of such associated or dependent lations and structures in which it may take appropriate species above levels at which their reproduction may become measures to ensure the safety both of navigation and of the seriously threatened. artificial islands, installations and structures. i 5. Available scientific information, catch and fishing 5. 'I'he breadth of the safety zones shall hbe determined by effort statistics, and other data relevant to the conservation of the coastal State, taking into account applicable international fish stocks shall be contributed and exchanged on a regular standlards. Such zones shall he designed to ensure that they batsis through subregional, regional and global organizations are reasonably related to the nature and function of the where appropriate and with participation by all States con- artificial islands, installations orl structures, and shall not cerned, including States whose nationals are allowed to ish in exceed a distance of 500( metres around them, measured from the exclusive economic zone. each point of their outer edge, except as authorized by gencrally accepted international standards or as recom- Article 51 mended by the appropriate international organizations. ; 6. All ships must respect these safety zones and shall . Utilirtion of the living resources comply with generally accepted international standards re- garding navigation in the vicinity of artificial islands, installa- The coastal State shall promote the objective o tions. structures and safety zones. DIue notice shall be given optimum utilization of the living resources in the exclusive of the extent of safety zones. { , economic zone without prejudice to article 50. 2. 'The coastal State shall determine its capacity te 7. Artificial islands, installations and structures and the 2 The coas shall determine its capacity t ~safety zones around them may not be established where i.harvest the living resources of the exclusive economic zone. interfierence may be caused to the use of recognized sea lanes interter ence may be caused to the use of r ecognized sea lanes z Where the coastal State does not have the capacity to harvesi the entire allowable catch, it shall, through agreements oi other arrangements and pursuant to the terms, conditions ant 8. Artificial islands. installations and structures have no regulations referred to in paragraph 4, give other State! territorial sea of their own and their presence does not affect access to the surplus of the allowable catch. the delimitation of the 'territorial sea or of other zones of - coasital State iurisdiction orof thexcontinentat shelf. 3. In giving access to other States to its exclusive 't t rdti t shelf. economic zone under this article, the coastal State shall tak, A trfile 49 into account all relevant factors, including, biter (olien, th significance of the living resources of the area to the econorm Repscht ec/li of the coastal State concerned and its other national interests the provisions of articles 58 and 59, the requirements c 'I he consent of the coastal State shall be obtained in respect developing countries in the subregion or region in harvestin ol any research concerning the exclusive economic zone and part of the surplus and the need to minimize economi undertaken there, as provided in C'hapter ... (Marine scien- tific research) -139- dislocation in States whose nationals have habitually fished in either directly or through appropriate subregional or regional the zone or which have made substantial efforts in research organizations to agree upon the measures necessary foil the and identification of stocks. i conservation of these stocks in the adjacent area. 4. Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions, established in the regulations of the coastal State. These regulations shall be H migrator .vPVC(.V consistent with the present Convention and may relate, inter alr/~it~, to the following: ~ 1~~I. The coastal State and other States whose nationils fish 'i/ia, to the following: in the region for the highly migratory species listed in the (l) Licensing of fishermen, fishing vessels and equilmenot, annex shall co-operate directly or through appropriate inter- including payment of fees and other forms of remuneration, national organizations with a view to ensuring conservation which in the case of developing coastal States. may consist of and promoting the objective of optimum utilization of sutch adequate compensation in the field of financing, equipment species throughout the region, both within and beyond the and technology relating to the fishing industry; exclusive economic zone. In regions where no appropriate 1X(h) Determining the species which may be caught, and international organization exists, the coastal State and other fixingq uotasofecath, whetherin relltion toparticularnstocks States whose nationals harvest these species in the region shall co-operate to establish such an organization and partici- orgroups of stocks or catch per vessel over a period of time or shall co-operate in ition nd pici- to the catch by nationals of any State during a specified period; 2. The provisions of paragraph I apply in addition to the (c) Regulating seasons and areas of fishing, the types, other provisions of this Chapter. sizes and amount of gear, and the numbers. sizes and types of fishing vessels that may be.used; Artle-le 54 ' (d) Fixing the age and size of fish and other species that ,;may be caught; I (e) Specifying information required of fishing vessels, Nothing in the present Convention restricts the right of a including catch and effort statistics and vessel position coastal State or international organization, as appropriate, to reports; prohibit. regulate and limit the exploitation of marine mam- mals. State shall co-operate either directly or through appro. (f) Requiring, under the authorization and control of the priate international organizations wilha view tothe protection coastal State, the conduct of specified fisheries research and management of marine mam.mals. programmes and fgll4tting the coreduct of sHch rese;rch. including the sampling of catches, disposition of samples and reporting of associated scientific data: A rticle 55 (g) The placing of observers or, trainees on bkard' such AnladromoUrt s.tOc'. vessels by the coastal State: 1. States in whose rivers anadromous stocks originate (11h) T'he landing of all or any part of the catch by such 1. States in whose rivers anad s stocks irigilt vessels in the ports of allornyarfthe cthoastal Stste; shall have the' primary interest in and responsibility foir such vessels in the ports of the coastal Stite: stocks. (i) Terms and conditions relating to joint ventures or other 2. The State of origin of anadromous stocks shall ensure cooperative arrangements; their conservation by the establishment of applropri'ate rcg- (j) Requirements for training personnel and transfer of ulatory measures for fishing in all waters laridwards of the fisheries technology. including enhancement of the coastal outer limits of its exclusive economic zone and for fishing State's capability of undertaking fisheries research: provided for in subparagraph (bh) of paragraph 3. The State of (A) Enfolrcement procedures. origin may, after consultation with other States fishing these stocks, establish total allowable catches for stocks originating 5. Coasltal States shall give due notice of conservation in its rivers. and management regulations. 3. (a) Fisheries for anadromous stocks shall be con- ducted only in the waters landwards of the ouler limits of exclusive economic zones, except in cases where this provi. Article 52 sion would result in economic dislocation for a State other than the State of origin. Stlocks occurrin. withiln the eX:cltsiive economioic zone.l oftI'to (h) The State of origin 'shall co-operalte in minimiiing or more Coastal SState.s or hotIi within the exrclu.ile economic disl/cation in such other States fishing these er-onomic zone and in cln area heyond aned tdjtcent to it stocks, taking into account the normal catch and the mode of operatidhs of such States, and all the areas in which such I. Where the same stock or stocks of associated species fishing has occurred. occur within the exclusive economnic zones of two or more coastal States, these States shall seek either directly or i ) Statesreferredtoinsubparagraph (h). palicipainlby through appropriate subregional or regional organizations to renew agree upon the measures necessary to co-ordinate and ensure anadromous stocks, particularly by cxpenditures for thiv the conservlation and development of such stocks witholut 'purpose, shall be given special consideration by the State or prejudice to the other provisions oft this Chapter. torigin in the harvesting of stocks originating in its rivers. 2. Where the same stock or stocks of associated species (d) Enforcement of regulations reglardilg nldrrlnous occur both within the exclusive economic zone and in an ae'a stocks beyond the exclusive economic ao(e sh;ll be IhN beyond and adjacent to the zone. the coastall Stlate and thile agreement between the State of origin rand the other States States fishing for such stocks in the adjacent area shall seek concerned. -140- ------ .. -------- ..... .. -1. In c,, ces .vhere anadronius stock's iigrailc inltO 1 Ar-licle 59 hil ttl Il c iC ;llels lndw;itlrds tIhe Oti'l lcin ilts ol the 1 cS Ii LC tollonli C /oliti off i Stile other li thi) lthe St:Ntel ' Right /oft 'rltjn det'i'elopili.g. cnt1(11 ,tille ill tt tllben't'ioln oi. illtilt. tich StaItlie shall co opr:te with the talte itforigin s ill, II regIIjtl R. Developing coastal States which are situated in a i 1 lie StaIe of origin of an~adlroontis stocks an dt ofherl suhbregion or region whose geographical peculiarities make S.lates hishing these stoc>ks shall make airrangetnrient s far tIhe such States particularly dependent ftor the sa;tisfction of the siiiiplc enltationl of the provisions of' this article. whre i nutiittional needs of their populations upon the exploitation of a;ppropri;alte Throigh regiolnal organizations. the living resources in the exclusive economic zones of their neighbouring States and developing coastal States which can A4nriclt'5f1, 56 'claim noexclusive economic zones of theirown shall have the right to participate, on an equitable basis, in the exploitation of living resources in the exclusive economic zones of olher States in a subregion or region. I. A coastal St;lce in whose waters catldromotIs specie 2. T'he terms and conditions ol such palticipation shall be spendl the greater pal-t ofthei r lil'e cycle shall have responsibil- detelrmined by the States concerned through bilateral, slbre- ity for the management of these species and shall ensure the gional or regional agreements, taking intoaccount the relevant ingress anld egress of migrating fish. economic and geographical circumstances of all the States concerned, including the need to avoid effects detrimental to 2. Harvesting ofcatadromous species shall be conducted the fishing communities or to the fishing industries of the inly in waters in respect of' which the State mentioned in States in whose zones the right of participation is exercised. paragraph I exercises sovereign rights over the living re- sourccs and, when condttcted in the exclusive economic 3. his article is subject to the provisions of articles 5) ione, shall be subject to the provisions of the present and 51. ('onvenlion concerning fishing in the zone. 3. In cases where cat;adrolnlous fish migate through the waters of another Stnte or States, whether as juvenile or Aritic 6h) malturing fish, the management, including harvesting, of such fish shall be regulated by agreement between the State Rtrictiorm oil trtnofsflr ofri.hth.' mentioned in paragraph I and the State or States concerned. Such agreement shall ensure the rational management of thile I. Rights provided under articles 58 and 59 to exploit species and take into account the responsibilities of the State living resources canlnot without the express consent of the mentioned in paragraph I flor the maintenance of these coastal State be transferred to third States or their nationals species. by lease or license, by establishing joint collahoration vyen- tures or by any other arrangements. Arnichl 57 I 2. Paragraph I does not preclude States from obtaining technical or financial assistance from third States or interna- S*.leden t aryr N.eci%\; I tional organizations in order to Iflcilitalte the exercise of the rights provided under articles 58 anl 59. This Chapter does not apply to sedentary species ;Ias defined in paragraph 4 of article 65. Atiichle 61 '.'llrtl',i' lll-'lc( 'oe ?to'f Ilw.� ttllad reg',k',lill o Is ' o 'the 'Ol.Slt(il Stit' Rilrt o./' Ih l-lhllit l Strtlt*. I. The coastal State may, in the exercise of its sovereign I. I.and-locked States shall have the right to participate in rights to explore, exploit, conserve and imanage the living the exploitation of the living resources of the exclusive resources in the exclusive economic zone. take such meas- economic zones of adjoining coastal States on ain equitable . ures, including bolrding, inspection,. arrest and judical pro- hasis, taking into account the relevant economic and geo- ceedings, as may be necessary to ensure compliance with the graphical circumstances ofallthe States concerned. The terms laws and regulations enacted by it in conformity with the ;Ind conditions of such participation shall be determined by present Convention. the States concerned through bilateral, subregional or reg- . Arrested vessels anid their crews shall he prmptly ional agreements. Developed land-locked States shall, how- released upon the posting of reasonable bond or other ever, be entitled to exercise their rights only within the security. exclusive economic zones of' ad.ioining developed coastal States. 3. Coastal State penalties for violations of fisheries regu- lations in the exclusive economic zone may not include 2. This article is subject to the provisions of articles 50 imprisonment, in the absence ofagreement to the contrary by and 51. the States concerned, or any other form of corporal punishment. :. 3. Paragraph I is without prejudice to arrangements '.ihe, agreed upon in regions where the co:astal States may grant to 4. In cases of arrest or dMtention of foreign vessels the land-locked States of the same region equal or preferential State shall promptlji notify, through appropriate rights for the exploitation of the living resources in the channels, the flag State; of.the action taken and of any exclusive economic zones. penalties subsequently imposed. Article 62 3. The rights of the coastal State over the continental shelf do not depend on occupation. effcective or notional, or on Delimitation of the exrlutsive econotlic zore beltween any express proclamation. adjarcent or oppo.site Stltes 4. The natural resources referred to in this Chapter consist of the mineral and other non-living resources of the I. The delimitation of the exclusive economic zone sea-bed and subsoil together with living organisms belonging between adjacent or opposite States shall be effected by to sedentary species. that is to say. organisms which, at the agreement in accordance with equitable principles, employ- harvestable stageeitherare immobile on or under the sea-hed ing, where appropriate, the median or equidistant line, and or are unable to move except in constant physical contact taking account of all the relevant circumstances. with the sea-bed or the subsoil. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the A4ridce 66 procedures provided for in Part . .. (Settlement of disputes). St ler air spIe 3. Pending agreement orsettlement, the States concerned shall make provisional arrangements, taking into account the The rights of the coastal State over the continental shelf do provisions of paragraph 1. not affect the legal status of the superijacent waters orl the air 4. For the purposes of the present Convention, "median space above those waters. or equidistant line" means the line every point of which is equidistant from the nearest points of the baselines from Artlicle 67 which the breadth of the territorial sea of each State is measured. .Sllutmarinle cables and pipelilles onl flte ctnfinveltal shler/ 5. Where there is an agreement in force between the I. All States are entitled to lay submarine cables and States concerned, questions relating to the delimitation ofthe pipelines on the continental shelf, in accordance wilh the exclusive economic zone shall be determined in accordance provisions of this article. ,.with the provisions of that agreement. 2. Subject to its right to take reasonable measures tor the Artic1le 63 exploration of the continental shelf, the; exploitation of its natural resources and the prevention of pollutionl-fromr Chart~s ianed li.vsts iot'f ,geogisr-aphical )co-ordb~intecs pipelines, the coastal State may not impede the laying or maintenance of such cables or pipelines. I. Subject to this Chapter, the outer limit lines of the exclusive economic zone and the lines of delimitation drawn 3. 'The delineation of the course for the laying of' uch in accordance with article 62 shall be shown on charts of a pipelines on the continental shelf is subject to the consent ft' scale or scales adequate for determining them. Where ap- the coastal State. propriate, lists of geographical co-ordinates of points, 4. Nothing in this Ch;ptcraflectsthe ight o'the cot;ll specifying the geodetic datum, may he substituted for such State to establish conditions for cables or pipelines entering outer limit lines or lines of delimitation. its territory or territorial sea, or its jurisdiction over cables 2. The coastal State shall give due publicity to such charts and pipelines constructed or used in connexion with the or lists of geographical co-ordinates and shall deposit a copy exploration of its continental shelf or exploitation of ilts of each such chart or list with the Secretary-General of the resources or the operations of artificial islands, installations United Natiens. and structures under its jurisdiction. 5. When laying submarine cables or pipelines. States shall Chapter IV: Continental shelf pay due regard to cables or pipelines already in position. In particular, possibilities of repairing existing cables or Article M pipelines shall not be prejudiced. Definiionof tile continenrtal shelf Aril6 A ricle 68 The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend Ari. istali l riI n the beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge ofthe continental margin, or to a distance of 200 nautical miles from the baselines fromArticle 4 applies itas m1tlrelis to artificial slt, which the breadth of the territorial sea is measured where the installations and structures on the continental shelf. outer edge of the continental margin does not extend up to . . that distance. Ai de Article 65 Drilling orn he ,conJinetal shefl Rights of the coastal State orer the 'ontinental shelf' The coastal State shall have the exclusive right to atthorize and regulate drilling on the continental shelf fior all purposes. I. The coastal State exercises over the continental shell' sovereign rights for the purpose of exploring it and exploiting Arti�t 70 its natural resources. 2. The rights referred to in paragraph I are exclusive in . Pel ts an ribaions't respecl the t lplimaticll the sense that if the coastal State does not explore the cf thlle continetlal shelfbevole dl 20) miles continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the I. The coastal State shall make payments or conttibi- coastal State. tions in kind in respect of the exploitation of the non-living -- -- ------�---- �----- -�-���---�-�-�-�� Yli._- --1 2-- . -~"~l~,..,,- ..-. ~-i......... - ....... ..~��YY. ._I Article 72 resources of the continental shelf beyond 200 nailtical miles trom the basclines from hllich the breadth of the territorial Ch arts tr/ liss qfgeogrip/llhicl co-ordinates cl i', lmeatsured. 2. l he payments and contributions shall be Made annu- 1. Subject to this Chapter the outer limit lines of the ally with respect to all production at a site after the first five continental shelf and the lines of delimitation clrakw.n in years of production at that site. For the sixth year, the rate of accordance with article 71 shall be shown on charts of;a scale payment or contribution shall be ... per cent of the value or or scales adequate for determining them. Where appropriale, volume of production at the site. The rate shall increase by lists of geographical coordinates of points, specifying the .. per cent for each subsequent year until the tenth year and geodetic datum may be substituted for such outer limit lines or shall remain at ... per cent thereafter. Production does not lines of delimitation. include resources used in connexion with exploitation. 2. The coastal State shall give due publicity to such charts 3. IFhe International Authority shall determine if and to or lists of geographical co-ordinates and shall deposit a copy what extent developing countries shall be obliged to make of each such chart or list with the Secretlary-General of the payments or contributions provided for in paragraphs I and 2. United Nations. 4. The payments or contributions shall be made to the Artic e 7. internatlional Authority on terms and procedures to he agreed upon with the Authority in each case. T'he International Resea-l Atulhorily shall distribute these payments and contributions on the basis of equitable sharing criteria, taking into account TheconsentofthecoastalState shall e obtained inrespect the interests and needs of developing countries, partictilarly of any research concerning the continental shelf and under- the least developed amongst them. taken there, as provided in Chapter . (Marine scientific research). .Ar'ticle 71 e/i/itatiion )f'the /iconli('nul s/el/f /bete'e n td4jace'n/t 'or oppoSite Sitlles', Article 74 I. The delimitation of the continental shelf between adiacent or opposite States shall be effected by agreement in accordance with equitable principles, employing, where appropriate, the median or equidistant line, and taking This C'haptle does not prejudice the right of the coastal account of all the relevant circumstances. ' State to exploit the subsoit by nleals ol'tunnelling, irrespec- 2. If no agreement can be reached within a reasonable tive of the depth of water above the subsoil. period of time, the States concerned shall resort to the procedures provided for in Part . . . (Settlement of disputes). 3. Pending agreement or settlement, the States concerned shall make provisional arrangements, taking into account the provisions of paragraph I. 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement. -143- George Cadwalader, "Freedom for Science in the Oceans" 182 SCIENCE 15-20 (5 October 1973) * Copyright 1973 by the American Freedom versus the Common Heritage Association for the Advancement The 17th-century doctrine of free- dom of the seas provided the basis for of Science all law of the sea for nearly 300 years. The preeminence of this doctrine was challenged in 1970, when the U.N. General Assembly declared the seabed and its resources beyond the limits of national jurisdiction, to be the "com- mon heritage of all mankind" (4). To implement'. the concept of common heritage will require different legal ar- "Americans," wrote de Tocqueville creasing attack by states calling for the rangements' than would prevail if the in 1835, "judge that the diffusion of es:ablishment of some form of inter- seabeds remained under traditional knowledge must necessarily be advan- national authority to regulate on behalf law. The' comparisons in the box 'on tageous and the consequences of igno- of the international community activi- page 17 illustrate these differences. rance fatal" (1). No less true today, ties under and on the high seas. These : this characterization perhaps helps ex- pressures for change, exerted primarily i ' plain the astonishment with which by the developing countries, have led The Attack on Freedom most American oceanographers have the U.N. General Assembly to call for reacted to the efforts of developing a new Law of the Sea Conference to The dissatisfaction of developing countries to curtail their freedom to begin in 1973. A 90-nation "Commit- countries with traditional law of the conduct scientific research in the tee on the Peaceful Uses of the Seabed sea was evident at the 1958 Law of the oceans. The response of our marine and Ocean Floor Beyond the Limits of Sea Conference (5). The acceptance scientists has been to base their defense National Jurisdiction" (known simply of the common heritage concept 12 1- of this freedom largely on the intangi- as the Seabed Committee) is currently years later provided a basis for a legal ble but deeply felt conviction that "the engaged in negotiations preparatory to system more compatible with their in- quest for knowledge about the oceans the conference. terests and has led to attacks of in- is a universal right not to be abridged Almost inevitably, the result of the creasing frequency on the doctrine of by national restrictions" (2, p. 1). The 1973 conference will be that substan- freedom of the seas. ' comparatively few efforts that have tially more, if not all, of the ocean Freedonm 'of the seas evolved into been made to reply to the often well- space will fall unde'r some form of na- accepted law during a period when the articulated contrary views of the de- tional or international jurisdiction. The major European nations were begin- veloping countries tend to stress the extent of the jurisdiction exercised in ning to develop sizable merchant fleets. economic and social benefits that ac- the various areas of control that de- The origin' ofthis concept in 1609, as crue from unrestricted basic research. velop will be a matter for negotiation, a counterclaimito the Pope's division of This argument has proved less than and freedom for science will certainly the ocean between Spain and Portugal, convincing to countries whose mistrust be one of the more controversial bar- has not' beenlost on the developing of science is based on the belief that gaining points. If science is to continue countries, who' correctly contend that its benefits (which they do not ques- with a minimum of regulation, the op- international'Jaw is only valid as long tion) are limited to the wealthy few ponents of controls will have to ap- as it reflects the interests Bf the major- possessing the technology to exploit its proach these negotiations with more ity of the ':nternational community. findings. For, not surprisingly, the than impassioned pleas for total free- Freedom of.'the seas, they argue, met growing tension that exists between the dom. Their case will have to be built this test as long as the oceans were developed and developing countries has on a realistic assessment of what can regarded :piiHriarily as avenues for become a factor in the debate within be achieved in view of the prevailing commerce.' The principle has become the United Nations over freedom for political climate, and they will have to increasingly obsolete as traditional uses science (3). / bring something to bargain with in of the sea.have been expanded and Since 1945, the area of the ocean terms of specific proposals aimed at other uses : htVe emerged. Moreover, known as the "high seas" has been meeting the objections of those who some haVe g0i'tended that no principle steadily eroded by coastal states' ex- seek to restrict or prevent science in can be held i:'i binding on states that panding their claims of jurisdiction. their areas of jurisdiction. Above all, did not even xiSt during the period in More recently, the legal doctrine of they must be flexible enough to adapt . freedom of the seas, which historically their position to changes in the legal The author i oxiCutie offlccr,.Marine Policy and Ocean Mas emen& Program, Woods Hole has applied beyond the limits of na- doctrines that justify actions within the Oceanographic' tntaltion, Woods Hole. Mawsn- tional jurisdiction, has come under in- ocean. rhusetts 0254.. .' -144- i hcl it hbecame at;cepted. interUn:,onal This position portends ill for science. gation. Thus the effect of the Truman.r law. .: : If it prevails, it promises: (i) the crea- Froclamation was to claim jurisdiction 1[he developing countries thus main- tion of a strong ISA with broad powers only out to 3 miles on the ocean'sur- ltam that there exists today a need for to regulate activities on and under the face, while at the same time claiming new legal arrangements governing the high seas and (ii) expanded national far more extensive jurisdiction on the usc~ of the sea--arrangemenls guaran- jurisdiction over ocean space now con- ocean floor. How to exercise jurisdic- tecing them access to the ocean re- sidered high seas. tion on the ocean floor without exerting sources. which are the common heri- some control over the water column lage, but which de facto are denied to above has never been made entirely all hut the developed countries under The Functions of the ISA clear. the existing concept of freedom of the This question ceases to be theoretical seas. This point was effectively pre- In general, the developing countries in the case of the proposed ISA. Any sentcd to the UJ.N. International I.aw have maintained that the ISA should lease the ISA grants on the sea floor Commission by the Ecuadorian dele- have broad powers to regulate activities will inevitably result in some form of gate, who argued that "the alleged (including scientific research) within mining activities on the sea surface. equality of all states with respect to the area of its jurisdiction (7). The Large-scale seabed mining, legal by vir- their rate of access to the' high seas and developed countries argue that the tue of the common heritage principle, their right to exploit its resources is ISA's functions should be limited to may impede or prevent other, more somewhat illusory, because only the granting leases to mining rights on the traditional uses of the ocean still justi- great maritime and shipping powers sea floor and levying taxes on any re- fled on the basis of freedom. When this exercise this right on a. really large sources recoveted, with the proceeds does occur, no clear way exists to eval- scale. Thus, the exercise of this right being used to support projects of bene- uate the relative merits of the two depends on economic power, and fit to the international community. The competing activities, since each claims equality before the law loses all reality traditional concept of freedom of the rights arising from a different legal in the face of the economic inequality seas would remain applicable to all ac- concept. of states" (6, p. 21). tivities not specifically conceded to the Priorities among mutually exclusive The doctrine of common heritage ISA. uses can only be established if some meets this objection by providing that This apparently procedural dispute common standard for comparison ap- a state's right to share in seabed re- reflects the more fundamental disagree- plies. When, as is the case with tradi- sources is not dependent on its eco- ment over the legal basis for activities tional law of the sea, all peaceful uses nomic power. The Seabed Committee within the ocean. Underlying the posi- are presumed free, no such standard is has accordingly been charged with de- tion of the developing countries is the provided. The rather crude criterion of signing an International Seabed Au- assumption that common heritage has "unreasonable interference" developed thority (ISA) for the purpose of replaced freedom as the basis for all because conflicts have occasionally oc- ensuring the equitable distribution of law of the sea. The ISA, by virtue of curred. But the concept of freedom, as profits from seabed resources among its common heritage mandate, thus its name implies, remains predicated the international community. A major acquires at least potential jurisdiction on the assumption that.such conflicts problem in this effort has been the in- over all activities formerly considered will be the exception and that they can ability to agree on the limits of the free. be easily resolved in view of the vast- geographical area in which the com- The preference of developed coun- ness of the ocean and the limited num- mon heritage concept is to apply. tries for an ISA-of strictly limited juris- ber of activities it supports. However, Developing countries have, by and diction assumes that the two legal doc- as activities increase and the apparent large, argued with equal fervor for trines can coexist. The United States size of the ocean decreases, there arises both the common heritage and the in particular reflects this attitude. The a need for more precise standards than right to wide areas of national jurisdic- United States was among the first those provided by "unreasonable inter- tion over ocean space. Their critics 'countries to endorse the concept of ference" to establish the optimum bal- have been quick to point out that such seabed resources as the common heri- ance among activities, The common national claims remove from the area tage of mankind and to call for the heritage concept permits uses to be of the common heritage most of the establishment of an international au- ranked by the degree to which they known seabed resources. This criticism thority to oversee exploitation (8). At serve the common heritage, or, alter- has not yet moved the developing the same time, the United States has natively, by the degree to which they countries to reconsider their position. continued in its support of the princi- do not impede it. The latter is perhaps nor is it likely to, since it has yet to plce of freedom of the seas, particularly the better test, since there are many be shown that in the short term a as this freedom relates to navigation, uses which benefit the user and neither coastal state will profit more from the overflight, and (with a much lower help nor harm anyone else. international management of seabed priority) science. By so doing, it per- There obviously can be no univer- resources than it would from outright petuates an ambiguity introduced origi- sally applicable ranking of activities. ownership of its adjacent continental nally in 1945, when President Truman Priorities will vary with circumstances, shelf. Thus, from the perspective of claimed for the United States owner- but priorities can always be established most poor countries, the most advan- ship of all seabed resources on its if there is a clear objective. Maximiz- tageous bargaining position is to claim adjacent 'continental shelf out to a ing the common heritage is a vague ownership of their shelves and use the water depth of 200 meters. Then, as objective in the abstract, but for any vehicle of common heritage to secure now, the United States held to a terri- given situation it translates into the a share in whatever resources lie be- torial sea of 3 (nautical) miles in the realistic and practical goal of balancing yond. interest of maximum freedom for navi- activities for the maximum benefit of -145- the greatest number. This balance is Limits of National Jurisdiction the right to prosecute polluters in its xtot apt to occur naturally in a "free" Arctic waters. Brazil, Ecuador, and cievironment, since often activities that The seaward extension of national Peru have simply claimed a 200-mile compete for the same ocean space are jurisdiction in the form of a territorial territorial sea, although Ecuador and not in direct economic 'competition sea was an early exception to freedom Peru refer euphemistically to this area with one another. of the seas. The right of a state to as a "maritime zone." So the Truman However, even if one agrees to the exercise sovereignty over the strip of Proclamation has come back to haunt theoretical advantages of regulating ac- ocean adjacent to its coast arose from the United States. The United States, tivitics for the maximum benefit, it is the need to provide a measure of secl- along with the other great maritime A questionable whether, inf practice, the rity against seaborne attack, and the powers, considers the major ocean ISA can effectivcly exercise this func- initial seaward limit of jurisdiction of "resource" to be freedom of naviga- tion. The ditlicilly here is not only 3 miles was established for the very tion, and today it finds itself in the organ:i:atlional. it also involves achieving pragmatic reason that, in the 171h cen- embarrassing position of having paved agreement on the limits of the ISA's tury, this was the maximum conceiv- the way for claims that, if honored, authority. Even acceptance of the corn- able range of shore-based cannon. The will give its naval and research ships meon heritage concept as the legal basis original limit thus established a prece- access to large parts of the ocean only for all activities in the ocean should dent for future adjustments as better upon the sufferance of coastal states, not empower the ISA with blanket cannon were invented or other new over 70 of which are classified as de- jurisdiction. Its function is properly conditions arose. However, few states veloping nations. limited to regulating only those activi- chose to avail themselves of this prece- The limits of national jurisdiction ties, that are mutually exclusive, cco- dent until after the Truman Proclama- have thus become one of the thorniest logically damaging, or economically tion in 1945. issues in the Seabed Committee nego- and biologically wasteful. All other Although the proclamation was in- ti.ltions. The alternatives currently be- activities not included in these cate- tended to claim jurisdiction only over ing debated range from 12- to 200-mile gorics Imust, by definition, either serve the continental shelf beyond the terri- limits, with the most likely compromise the common heritage or not impede it, torial sea, the U.S. action has been being a 12-mile territorial sea, with alel thOus the ISA has no legal claim to invoked by other states to justify claims free transit guaranteed by treaty jurisdiction over them. for more comprehensive jurisdiction. through all straits that would otherwise Be this as it may, positions at the Iceland recently established an exclu- come under national jurisdiction. Be- forthcoming conference will be based sive fisheries zone out to 50 miles from tween 12 and 200 miles, in the area ont considerations of national and its coast. Chile claims a similar zone becoming known as the "resource group interest rather than sound law. 200 miles wide, and Canada maintains zone," states will probably be given The developed countries have ignored the logical inconsistencies in their posi- tion simply because they cannot go on record as opposing common heritage in principle; at the same time, how- ever, they are not willing to accept the 'The seabed belongs to everyone The seabed is the common heri- possible curtailment of existing free- (or to no one) and all have tage of all mankind and the doms that its support implies. Their equal right of access to it. right of access to it is not fears in this regard are not groundless, necessarily equal for all pur- since the developing countries quite poses. obviously support this concept largely Everyone has an equal right to Exploitation of the seabed is as a means (of exerting their collective exploit the seabed for his per- done on behalf of the inter- influence in an area from which they sonal gain anl no one may national community. are currently excluded by a combina- deny this right to another. tion of existing law and lack of tech- nology. In view of the current interna- Any usage of the seabed is per- Uses of the seabed are allowed tiona;l climate, it is unlikely that a missible (unless specifically in the basis of their conform- strong ISA dominated by the develop- prohibited by treaty), provid- iy to standards established un- ing only that it does not in- der the concept of the com- ing countries would prove a particu- tterfere "unreasonably" with mon heritage. larly impartial judge of what activities other uses. constituted the common interest. Regardless of how narrowly the role If two users compete for the same Piliorilies among competing uses of the ISA is initially defined, the fu- part of the seabed or otherwise are established by balancing ture will see continuing pressure ex- propose uses that are mutually the interests involved for the erted by the developing countries to exclusive, priority is established greatest net benefit of the broaden the ISA's f unctions within the by who gets there first. world community. broaden the ISA's functions within the area of its jurisdiction. Since science is Existing law of the sea requires Law devised to implement the one of the issues on which positions no specific administering or common heritage concept may are divided most clearly along devel- enforcing agency. Claims of require an administering agen- oped-developing lines, efforts to em- "unreasonable interference" are cy to determine priorities, col- power the ISA with control over re- settled by persuasion or co- lect revenues, issue licenses, search will continue, even if the attempt ercion. and so forth. fails in 1973. -146- limited jIurisdiction for specific pur- phers make of the economic implica- 'Ihese might be feasible approaches,, poses (conscevalttion, resource and fish- tions of their work contributes to this it' it were possible to predict what bac cries man;agement, and so forth). impression. Warren Wooster, a mem- research will pay off in terms of tangi- It is in Ihese resource zones, where ber of the National Academy of Sci- ble benefits. Research can be directed the relative jurisdictions of the state ences' Task Force on Freedom for toward specific objectives, such as opti- and the ISA remain to be defined, that Science, writes in an article demon- mizing the return of food or minerals positions on science have become strating the "tenuous" connection be- or minimizing the danger of hurricanes polarized. Developing countries de- tween scientific research and economnic and pollution, but the potential of the mand that research be one of the activ- payoff, that scientific geological inves- ocean is so vast that further basic re- iti,,s over which they retain jurisdiction. tigalions "will be less detailed and will search will almost certainly lead to the DIevelopcd countries are pushing (with otherwise differ from that of commer- discovery of other uses, and implica- varying degrl-ee of emphasis) for mini- cial petroleumn or mineral prospectors" tions of existing uses, still undreamed muml restrictions on science beyond a (12). Not long afterwards, K. O. of. Without knowing what these uses narrow territorial sea. The stakes in- Emery reported on his investigation of are, there is no way to mobilize scien- volved are evident if one considers that the Eastern Atlantic Continental Mar- tific talent directly toward their achieve- the area between 12 and 200 miles gin. He cited the mapping of two fea- ment. The only alternative, as one seaward encompasses some 30 percent lures that "may be potential sources laboratory director put it (14), is to of the world ocean and is, by and of oil" (13). A great deal of addi- "get good men and turn them loose," large, the area of most interest scien- tional work lies between the prelimi- knowing from experience that even the tilically and cllnoinically (9). nary survey described and the actual most apparently esoteric investigation drilling for oil in these areas. But de- may lead to valuable results in solving veloping countries have very few petro- the global problems of hunger, poverty, Common heritage and lem geologists, so they cannot be and pollution. Acess for Science hblamed if they see in the apparent con- Another factor to consider in evaluat- iradiction between Wooster's statement ing the implications of controlling Access for scientists to all of the and Emery's findings substantiation of basic research is the personality of the oceans beyond narrowly defined limits their suspicion that "knowledge means investigator himself. Very few scien- of national jurisdiction is one of the power." lists in basic research are much moti- "freedoms" the developed countries The actual relationship between vated by the possibility of their work hope to preserve at the forthcoming basic research arnd power has been leading to any practical results. More conference. Not unexpectedly, the at- much debated. Suffice it to say here commonly, they are men driven mainly tacks of developing countries on free- that, although this connection appears by a sense of curiosity developed dom for science have taken much the to be growing increasingly direct, it sometimes to the point of eccentricity. same form as those on the parent con- still remains impossible to predict what While it is easy to make too much of cept. [Developing countries contend basic research will bear fruit in terms the fact that scientists are somehow a that science cannot be called a freedom of social, military, or economic utility. breed apart, it is a fair generalization when its exercise is limited only to the The only certainly is that the more to say that, as a group, they are notori- handful of nations who have a research basic research is encouraged the bet- ously impatient with the petty intru- capability, nor does it meet the test of ter the chances for the kind of prac- sions of everyday life. Therefore, the being in the best interest of mankind tical return from the oceans necessary environment in which they operate when its results can provide military to make the ''common heritage" a best is a fragile one, easily disrupted by and economic advantage only to the meaningful concept. the necessity to conform to bureau- few possessing the technological ability Seen in this perspective, science can cratic regulations requiring lengthy ad- to exploit its findings. no longer be said to be the parochial vance notice of their investigations, de- These arguments are based on a concern of one group of men or one tailed research plans, specific handling quite different perception of basic re- group of nations. If it can be organized of data, and all the other requirements search than exists among the developed to contribute to the common good, the that follow with incrcasied controls. countries. H. L. F. Von Helmholtz's entire international community will Both the proven but .unpredictable famous statement that "whoever, in the benefit from arrangements that most return from basic research and the pursuit of science, seeks after immedi- facilitate the conduct of research. peculiar nature of the few men compe- ate practical utility may rest assured The question thus becomes one of tent to conduct it suggest that restric- that he seeks in vain" has become such whether the absence of regulations is tive regulations on science do in fact a truism for Western scientists that it the condition that produces the best run counter to the common heritage appears in Bartlett's Familar Quota- basic research. Would it not be better concept. For if the ocean and its re- lions (10). In contrast is the develop- to focus the collective attention of the sources are the common heritage of ing country's view, as expressed by limited number of research oceanog- mankind, it follows that states accept- Brazilian diplomat Saraiva Guerrceiro, raiphers on particular problems, per- ing this principle are obligated to sub- that "in the last analysis, every particle haps by coordinating all research ordinate, to some degree, their own of scientific knowledge can be trans- through the proposed ISA? Or, on a interest in the area to the common lated into terms of economic gain or more local level, would not individual interest of the international community. national security, and in the technologi- developing countries do better to stipu- Scientific freedom can be justified on cal society, scientific knowledge means late the types of research they felt was the grounds that, since research does power" (I1). needed off their coasts and only permit yield knowledge of potential social The frequent mention oceanogra- access to those willing to undertake it? utility, no state accepting the common -147- heritage principle can properly erect tional tests" to his own work, or must the common interest as long as it is barriers that restrict mankind from he convince someone else that his is used by the developed to exploit the learning what he must'know about the really open research? Publication, developing. For the reasons given ocean in order to optimize its use for after all, occurs after the fact. How earlier, it is unlikely that the National the benefit of all. The same logic con- can developing countries, with little Academy of Sciences' effort to differ- demns states that pay lip service to the scientific capability of their own, be entiate between types of research will common heritage concept, while at assured that they are receiving all data dissuade developing countries from this the same time claiming expansive areas collected, and of what use is it to them suspicion unless a mechanism that they of nalional jurisdiction. The concept if they do receive it? Even if univer- can trust is created to assist in differ- is mcaningless if the greater part of sally known, data are only useful to entiating between open research and ocean resources is in the hands of indi- those with the technology to exploit limited exploration. By proposing such vidual states. them. a mechanism themselves, the advocates To maintain (as many will) that It would seem that even if the de- of scientific freedom eliminate the ma- argurments such as these have little veloping countries accept the acad- jor remaining objection of their oppo- weight in the United Nations is to emy's definition and agree that research nents with an alternative that, again, underestimate the amount of idealism should not be regulated in the resource is difficult to oppose politically or in underlying the concept of a common zones and the deep sea, it is likely that principle. heritage. Although the developing they will insist on some form of neutral As matters now stand, the 1973 con- countries have exploited this concept international machinery to verify the ference will very probably give states for the political leverage it affords, nature of research proposed in areas the right to regulate science within they and much of the rest of the world of concern. Granting this, it would cer- their resource zones. An effectively community are not blind to the hope tainly be good politics, as well as an presented argument against regulations that common heritage will provide the indisputable gesture of good faith, if as being incompatible with the com- basis for a new world order based on the developed countries themselves pro- mon heritage concept, combined with cooperation rather than competition. posed specific machinery for verifica- an offer to submit proposed investiga- I'ositiolls against regulation of science tion and agreed to abide by its decisions tions to the scrutiny of an impartial that are based on the idea of a corn- as an arbitrator. In 1968, an informal body, may not convince the develop- mon heritage will be difficult for any proposal that the Intergovernmental ing countries to withdraw their demand country to oppose, both politically and Oceanographic Commission (IOC) act that investigators request permission in principle. in this capacity, met with vehement to work within their resource zones. A opposition, particularly from some mechanism for third-party settlement U.S. oceanographers who claimed that could, however, provide an alternative Open Research versus the IOC had neither the staff nor the to individual states' having the final L~imited 1Exploration scientific expertise to make judgments authority over what science is done in of this kind. The fear was also ex- the area between 12 and 200 miles off If science is governed by the corn- pressed that such a "clearinghouse" their coasts. mon heritage concept, the test of scien- would cause interminable delays and In areas where a 200-mile jurisdic- tific "legitimacy" (that is, whether or frustrations to the rescacher (15). tion is now claimed, access for the pur- not a particular type of investigation is Arbitration procedures established pose of doing research has been ob- subject to regulation) becomes a ques- by treaty for use on an ad hoc basis tained by bilateral negotiations between lion of whether the investigation is may prove less ponderous than an the parties involved. This would cer- structured so ttllat its results contribute established agency. The procedures tainly become the pattern if the 200- to the common good or whether they common to international arbitration, mile limit applied universally. Recourse contribute only to the advantage of the whereby the disputing parties select to arbitration would be necessary only sponsor. The dilliculty, of course. lies referees from a list of neutral experts, when bilateral negotiations broke down in making this distinction. "A proposed could certainly be employed in cases (a major objection to the IOC pro- U.S. position on freedom for science in where the nature of a proposed investi- posal was that the commission would the oceans" (2). drafted by the Nation- gation was in question. Regardless of act as an intermediary in all. requests). al Academy of Sciences, attempts to do the method, however, some delay and The third party could be a neutral body this by differentiating between open rc- frustration are inevitable. The risk of to which a developing country without search, which is "intended for the ben- the certifying procedures becoming a an oceanographic capability of its own cfil of all mankind and characteri7cd bureaucratic nightmare must be weighed could turn if it were uncertain of the by the prompt availability and full pub- against their advantages. implications of the research proposed. lication of results" and limited explora- To date, the opponents of regulation The third party could serve equally lion, "intended for the economic bene- have been on the defensive, fighting to well as a court of appeals for those fit of a limited group" (2, p. 2). The retain as much of the status quo as whose requests for access were sum- proposal suggests that these definitions possible in light of a changing inter- marily rejected, particularly if states are "easily understood and subject to national environment. A case for sci- agreed by treaty to abide by its deci- operational tests" and calls for no ence, based on the common heritage sions. The procedures established would restrictions on open research in areas concept, takes the initiative away from also work in cases of disagreement heyond the territorial sea; the advocates of control. The only part between an investigator and the ISA The academy does not consider the of their argument left intact, and the over the nature of research, in the issue of burden of proof. Does it sulffice one they will certainly fall back on, is event that the ISA is given control over for the scientist to apply these "opera- the contention that science is not in research in its area of jurisdiction. -148- The establishment by treaty of pro- doctrine a reality were to contain pro- research (see U.S. Department of State idele ceduwes for binding third-party settle- visions which would impede the under- pramfro 191.S iin.Gnv, 4l4. ment in cases where the ISA or the standing of the marine environment on B. Statement by the President on U.S. Ocean Policy, Office of the White House Press state withholds permission for research which all nations, rich and poor alike, Secretary, 23 May 1970. withn thir rspecivearea of ontrl ae gong t depnd ncresingy inthe 9. P. M. Fsre. "Ocean policy and scientific within their respective areas o~~~~~~~~~~fcotlaregigtdpendicresnlntefedom," lecture given before the Marine is the position most favorable to basic years ahead. Technology Society, Washington,, D.C., 11 September 1972. rcsearch, and one that none of the 10. J.1 Bartlett, Barde'S Familiar QuoMHatIoS. E. competing interest groups at the 1973 References and Notes Back, Ed. (Little, Brown, Boston, 1968), p. conference can effectively oppose. Hay- 1. A. tie Tocqluevilte. Democracy In America, 79 P. Bradley, Ed. tKnopf, New York, 1963), It. U.N. General Assembly Document A/Ac ing claimed that a legitimate distinction vo. t, p. 393. 138/SR 54 (22 March 1971), p. 109; quoted exists between basic research and lim- 2. Ocean Allairs Dowtt of the National Academy by M. Franassn, In Freedom of Oagoanic Ro. of Sciences, "A proposed U.S. posliloan on search, W. S. Wooster, Ed, (Cra~e, Russak, ited exploration, the developed coun- freedom for science in the oceans" (un- 12New York, 1973), p. 158. tries cnnot obect to ntrustig this puiblished, revised June 1972). 1. W. S. Wooster. "Costs and consequences of tr~~~~~~~~~~~~imaes anno objetiou entrusjmifting tis restrictions ott research., Another view," dis- determination, when contested, to a t reating both the developed and the develop- tusion -ocengaphy prsn ed te forip Mastin- neuLtral body of experts. Nor can de- inst countries as unifiedl blocs. The variety A ffirsokhpon CofOendtogrpy nse for Farnee and complexity of the Issues confronting the Ao f Ocanic Works-hop on 2 Conrilin 1972ree veloping countries justify in the name 1973 Law of the Sea Conference, sponsored 13, K.n Emry Scienice Reseh 29-6Api 11972. of the common ..- ~~~~by the United Nations, assures that voting EerSine7,28(97. of thecommonheritage claims to me6 will not always be strictly along these lines. 14, P, M. Fyo, personal communIcatIon. right to bar from their resource zones Science, however. is oite of the isue Inl a. og Tit gropo ral e wasmade ifrmally comnt. which i lia differenct between developed rel athuhi gnrtd osdrbecnmnt research certified by an unbiased third developing countries iS most apparent. it was apparenitly never mentioned in oiliclisl records, I learned of It from A, E. Maxwell, party to be in the common interest. 4. U.N. General Assembly Resolution 2750 (17 provost' of the Woods Role Oceanuographic science s no loger a ~ December 19701, p. 2. Institution and EL frequent delegate to the Freedom for sienei ologra5 . Friedheim, World P0111. 18, 25 (1955). lc universal right. But access to the oceans 6. A~. quoted by W. Marz, Brill. Al. Scl. 24 16. This article would riot have boon possible for research "inte~~~~~~Nde or h eei . 9), 19 (1968). without the help of Robertson P. Dinsmore, for eseach "ntened or te beefit-7.Representative of the developing country's Richard L. 1laedrich, Herman Fransisen, of all mankind" is equally justified un- position in tie debate ever the ISA's Juris. Maureen Franssen, Paul Mt. Pye, Kalaroy I.. der the cmmon hertage docrine. It diction is a statement by the Peruvian dcle- Flatlkon, and, above all, P. Sreenivasa Rao, der the common herita~ ~geaotrie. It glo the July 1971 meeting of tlse scribed who spent many hours introducing me to the would be ironic if the new law of the (Committee, who callred for an authority emu- mysteries, of international law. This article Is poweied to carry our a wide range of ac- Woods Hole Occanographic Institution Con- sea that is being created to make this tivities, including the coordination of scientific tributlon No. 3089. -149- Notes 1. Pollution Zone. (a) Compare the positions of the United States and of the developing countries, as summarized in the REPORT OF THE U.S. SENATE COMM. ON COMMEVRCE, 94TH CONG., 1ST SESS., THIRD U.N. LAW OF THIE SEA CONFERENCE 29-132 (Comm. Print 1975) (footnotes omitted): 'MARINE POLLUTION AND SCIENTIFIC RE SUARCIt Proteoction of the mnarinc enviroriment Wag largely overlookdd. t the 19)58 and 190() conferences on thie law of the Sea. Partic~lerly Since tlie Stockhiolni Confeience. on the 1-urnan, Environmenct," ic~ need for mulltijateral action to comnbat marine pollution hase- b~ol apparcnt. ~C6Tllnitt66` TIf of thel Conerecl(e, was givell a fillictiollil ra thJorj th4a territorial nmandate: it was if) deal wvith flftb prob-lems, of pollu- tion and scientifk6 researchl everywher(- in. the oceans. 'rhe Thirdl Conlferenlce addresses'itself to two ba-ic, soiiroes of pollutionl, (1) polltition, produced in'the process of vxpllonting the Imop-li vi]W~ resource"' of. the sea bedl andI sutbs'oil and (2) polliti on ifltro(liweil to (1)he marnna en~VirromTlCn.t fromn delibera1,te andJ accideuts iscag? Tho Con- feuence does not addlress itself to anlother Imajor soulree of mlarine pollultion; water-borne. p)oiitition viniptio(i il to tile oceatill by Ilb a wiorld's river systems. 1,heo ]Doiot critical pollution qution sh t' the COnfrecc appears to hem~i the area of Coastal state, jtiris4(tlioiil over oluinregulation anld coltr-ol Within the proposeol aeonloilic Zone. Wh fiemarine, pollutionl relatedl to offshore petroleum1 producltion contributes only it fraction of the total amount of oil spilledl il thec oceans, it-, local impnact can ba ]arge. U.S. positiov.-Tlie U.S. bas _proposedi that pollution rosuilting fromn fhe exploration and( exploitation of seabedl resouricos be treatedl differently fromt vessel-sourice pollution. Theli former shouldi fall uinder the julrisdlict~ionl of VI(e coast~al state; the latter should be subject to in'ternal ional. standlardls auiol reguiatimoi. Th T1.S. fears-- fliat coalstal state jurisoliction over vessel-source pollution could1 leadi to (lifferent. set9-of sndrsfrostlsaewhlichl iln turn would iilpair freedloin of navig-ation. 11owever, 1.11w United Slates 111,6ntainls; that. evell withlin the econom-ic zone, there sih1011(1 be uainimnu n international. standards with. respect to the productihon of liqo iid lly drocarborls. A coastal state cane lutvv thle ri-ght to imrposo, st rioteor stulualxlsd inl addition to the m'inimumn initernation al stani lards.20 Thle United States favors intern-Tational reguilations, for tlir cont rol of vessel-source J)ollution, mulu envisions a1 collbillationl flar" state,~ port State coasta state iegulatory sy-itern, which provides thuit' The flag State, would continue to have (itforceniout responsibilitivs over its ves~se],3, 11lthojgi iahsch authoril~v wvould not be e~xclusive, and woidd astsune, a specifie obligation to enforce internationil-6tandards in the:- ease of vessels lftyia siqttleneLjt~ ipcevduilris to enisure that the obligation wAm, fully discharged. T'he )ori. 't:itle NN0oud he able to enforece pollution control standards in tile'p~e of- Vessel., rsing its port, regardless (if whiere violations tookr place. 2- The coastal state wvould haive rights mid remnedies; that wouild-fullY lrob its. cnvirowiwnutal iiiterests; provi,;Ion ww aszude for dealing wNith the fowu.ao mairitim~e pollul ion prublems facing the coastal state: serious mariitinecaates otf it.4 coast, violationls of initerreitional standards iiiininent danger 9f'pra)or hairmful eouisequetices, lpersistellt and mnreasonablo failure of a Stdte to,,66ieetc the internmational standardA miith respect to vessel~s flying its flrkg, and goneral violta' iells of the starj!.~darSL." -150- Tile~ 1ITI);1ed Sltat~os ha~s indivatled litht, extensive, coastal state' Cdfl- inils over i 11.1arill p)011u1io1i1Xi m-tlii thol 200-n iil(' (W()fOnfiic zone wonid- horl, develop~ing coat al st,,,ae as much as it would the U.S. and other inart iinc, power-s. Most (levI lophing count~ries 'are ''zone locked;'' which 31eals I at, Vessels b)if~ oundfo their port to areas beyo-nd any 200- fllitt(Ulmie eojijin /110W~lI~iofnecssiy ass through~ the economic(~i- Zone oft at least, onle other flatirlil. If piollution control z~i Ze% W(ONl ItzeAd to inhjbit miarin uim trans;port, the majority of the wor'ld'a vouwst 'iSt ale colli~l be hurt. ID'vel"I ngq co-livfries psinDelongcountries maintain tVbnt not, ouly pN ollution resultoing fromi Seabed resources deve'lopinent shouild, be- co11trolled by the. coalstal state, but- tiit) -vessel-source pollution shlould 1i iso lbe re&Iuluted aind controlled by the cotistal State wvithbin'the prooPsedl Q(�oflofiic zonte. It, niay prove very difficult to rcnieTi vi("Nv wvith thlat, of the developed nattions.. Ainodher waj~or pro)blemniarises froni tlie degrec6 of-uirg ny Of" pollU4. lion c(ont rol as perceivedt by, votastill States. TIhe d e~el~ipi-ng countrits ared genervall-, not, as entbus~iastic a)olut- the concept of' polluti on pre- tiol Lis are the developed countries. T hey maintain thftt the doveleped- count rics acbiovedl their advanlcedl econontic. status at',no smAll 'est to thleir environmients, and oi oi hi er f lune r po(sitionl to affor(1 consideratiofl of such factors as environtrioutal qual1.ity. 'rlieor argute that suggestions coricerning restrii-ticinvof inr dltst-rjal. deve'lopment for tile purpose Of p~roteetin~ 'the en-virojamilet will reduce growth rates in. the developing comitries.-They am~ only willingl to accept restrictions on. growth if the developed rnationw-pay for it. Developing countries are als;o (Thick to point out that (if' thff;'Bjrc in tern ational] Conventions for the Prevention of Polluftion;oll ne tlie I %4, agroortent-is in force.11 Moreover, they .hide .charged!, righ10 tvOr Wrong-ly, that the Inter-Goverunmental. Mritimna Conseila- tive Organfizatioll (IMCO)-whichd has been engaged in- atterttpt~ .tt red uic- vessel-source pollution-has by, and large been, the tool- .of the. untijor matritime powers, and its effort-, at. pollution: piteventidtvjl.vy* heeucot token tit best.. Hence, most, developing coastal sbt~ts wanrttrdge" 11l2te t11(1 control 11arine pollution with1inl the pooe eonY At, 1,140 Caracas session, dIraft articles. were coitpleted- on genridt14 obligations toe prevent, pollution, particular olgtos lblad~ ginalI cooperationl technical as-sistanice, rights oft ~taes, to e kV6T' thelir resources, La tihe relevance of economic factors to developing counriies' obligations. These texts were not fully aigreed upon and~ the U.$., anermon otheis~ opposed the last two in their entirety. Work wa~s, begun on rights t. set tAundards and to enforce them, anid on muoniitoi'-. in.The Conlmittee. (lid. not begin consideration of state responsibility ndliability sovereign inliunity or settlements of disputes. At the Geneva-session, the Committee will, begin with the article O~i, monitoring lad then take up standard-settiag and enforcement iht.The basis problem of vessel-source pollution remains to be:~ addresed, althoigh a trend against coastal state standard setting is' alreodv evidlent, particularly with roslpect to construction standards.' Neg-otiations have, moved to the, point of begirilliigr onl the major coitri~versial issues of -standards and enforcement, lpartioularly regarding vessel-source pollution. Private negotialtions aim ol oisjflta- tions indicated considerable detailed consideration of specifio, problemis mind'a willinmiess to dis;cuss realistic, solutions,. . (b) The Informal Single Negociating Text, U.N. Doc. A/ CONF. 62/ WP. 8/ REV. 1/ PART III, provides as follows: Chapter 1: Protection and preservation of the marine () Release of toxic, harmful and noxious substances, environment especially those which are persistent: SECI ION 1. GENI-RAI. PROVISIONS (i) From land-based sources; (ii) From or through the atmosphere; Article I (iii) By dumping. "Pollution of the marine environment" means the intro- (b) Pollution from vessels, in particular for preventing duction by man, directly or indirectly, of substances or accidents and dealing with emergencies, ensuring the ilfctl energy into the marine environment (including estuaries) of operations at sea, preventing intentional and unintentional which results or is likely to result in such deleterious effects as discharges, and regulating the design, construction, equip- harm to living resources, hazards to human health, hindrance ment, operation and manning of vessels; to marine activities including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and (c) Pollution from installations and devices used in the reduction of amenities.* exploration or exploitation of the natural resources of the sea-bed and subsoil, in particular for preventing accidents andl dealing with emergencies, ensuring the safety of operations at A rfirle 2 sea, and regulating the design, construction, equipment, operation and manning of such installations or devices: States have the obligation to protect and preserve the (d) Pollution from all other installations and devices marine environment. operating in the marine environment. in particular for pr�. venting accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, Article 3 construction, equipment, operation and manning of such installations or devices. States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in 4. In taking measures to prevent, reduce or control accordance with theirduty to protect and preserve the marine pollution of the marine environment Staes, shall refrain frirn environment. unjustifiable interference with activities in pursuance of the rights and duties of other States exercised in conformity with Arti cle 4 this Convention. I. States shall take all necessary measures consistent Aricle S with this Convention to prevent, reduce and control pollution of the marine environment from any source using for this In taking measures to prevent, reduce or control pollution purpose the best practicable means at their disposal and in of the marine environment, States shall so act as not to accordance with their capabilities, individually or jointly, as transfer, directly or indirectly, damage or hazards from one appropriate, and they shall endeavour to harmonize their area to another or transform one type of pollution into policies in this connexion. 2. States shall take all necessary measures to ensure that Article 6 activities under their jurisdiction or control are so conducted that they do not cause damage by pollution to other States and I. States shall take all necessary measures to prevenl, theirenvironment, and that pollution arising from incidents or reduce and control the use of technologies under thir activities under their jurisdiction or control does not sprei;tl jurisdiction or control, or the intentional or accidental intro. beyond the areas where they exercise sovereign rights in duction of species, alien or new to a particular part of the accordance with this Convention. marine environment, which may cause significant and harnl ful changes thereto. 3. The measures taken pursuant to this Chapter of the Convention shall deal with all sources whatsoever of pollu- tion of the marine environment. These measures shall in. clude, inter r/lia, those designed to minimize to the fullest . . possible extent: -152- 2. 'I his Article shall not affect the application of the (i) Training of scientific and technical personnel; liioviions of the present Convention regarding the preven- i10n1. rFeduction and control of pollution of the marine (ii) Facilitation of their participation in relevant interna- ltional programmes; (iii) Supply of necessary equipment and facilities; SI 0IIQ N 2. (il OBAI ANtD Ri:ION AI (O)-()PElRA IION (iv) Enhancing the capacity of developing countries to xrticlh 7 manufacture such equipment: (v) Development offacilities for and advice on research, States shall co-operate on a global basis and as appropriate monitoring, educational and other programmes; on a regional basis, directly or through competent interna- tional organizations, global or regionall. to formulate and tional orate internnizational ules, glob standards andor regional, to formulate anded veloping countries, for the minimization of the effects of elaborate international rules, standards and recommended major incidents which may cause serious pollution in the p clicesrnd procedures consistent with this Conveition for- major incidents which may cause serious pollution in the practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, laking into account characteristic regional features. (c) Provide appropriate assistance, in particular to de- veloping countries, concerning the preparation of environ- Article 8 mental assessments. A State, which becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution shall immediately notify other Article 13 Statelcs it deems likely to be affected by such damage, as well as the competent internationDl organizations I)eveloping States shall, for purposes of the prevention of pollution of the marine environment or the minimization of its A rticl, 9 effects, be granted preference in: (a) The allocation of appropriate funds and technical In the cases referred to in Article 8 of this Part of the assistance facilities of international organizations, and (Convention, States in the area affected, in accordance with their capabilities, and the competent international organiza- (h) The utilization of their specialized services. tions, shall co-operate, to the extent possible, in eliminating the effects of pollution and preventing or minimizing the damage. Towards that end. States shall jointly promote and SECIION 4. MONviol( N(; develop contingency plans for responding to pollution inci- dents in the marine environment. Articke 14 Aticle 10 I. States shall, consistent with the rights of other States, endeavour, as far as practicable, individually or collectively States shall co-operate directly or through competent through the competent international organizations to oh- international organizations for the purpose of promoting serve, measure, evaluate and analyse, by recognized studies, undertaking programmes of scientific research and methods, the risks or effects of pollution of the marine encouraging the exchange of information and data acquired environment. about pollution of the marine environment. They shall endeavour to participate actively in regional and international 2. In particular, States shall keep under surveillance the programmes to acquire knowledge for the assessment of the effect of any activities which they permit or in whichbthey nature and extent of pollution and the pathways and risks of, engage to determine whether these activities are likely to exposures to and the remedies for pollution. pollute the marine environment. Article II Article 15 In the light of the information and data acquired pursuant to Article 10 of this Part of the Convention, States shall States shall publish reports of the results obtained relating co-operate directly or through competent international or- to risks or effects of pollution of the marine environment, or ganizations in establishing appropriate scientific criteria for provide at appropriate intervals such reports to the competent the formulation and elaboration of rules, standards and international or regional organizations, which should make recommended practices and procedures for the prevention of them available to all Slates. pollution of the marine environment. SFcTIoN 5. ENVIRONMENITAl ASSESSMI:NT SECTION 3. 1I:('IINICAI ASSISI AN(CE Article 16 Article 12 When States have reasonable grounds for expecting that planned activities under their jurisdiction or control may States shall directly or through competent international or planned activities under their jurisdiction or control may Statesshal directly or hroughcompetentintenationalor cause substantial pollution of, or significant and harmful changes to, the marine environrment, they shall, as far as (r) Promote programmes of scientific, educational, tech- practicable, assess the potential effects of such activities on nical and other assistance to developing countries for the the marine environment and shall communicate reports of the preservation ofthe marine environment and the prevention of results of such assessments in the manner provided in Article marine pollution. Such assistance shall include, inter trlie: 15 of this Part of the Convention, -153- 2. Fisheries Zone. The following points up the problem of an extended national fisheries zone. "Stormy Seas," THE WALL STREET JOURNAL, Thursday, November 11, 1976. (Reprinted with permission of THE WALL STREET JOURNAL. Copyright Dow Jones & Company, Inc.,(1976). All Rights Reserved. r By MIKE THARP other countries is that peWi quotas for .Stalf Reporter of TH9 WALL SRXar JoUeNAL catches will be enforced by members of OTARU, Japan-The rain has turned to eight regional councils respo/nsible for U S. hail, and the wind rocks the Sanyo Maru, waters. moored in the harbor of this town on the s- This provision particularly orries the land of Hokkaido in northern Japan. Inside Japanese, according to one T.S. official. He the boat's warm cabin, Kanematsu Hira- says they fear that the regionS'councils will matsu watches men in black slickers and place local interests above international con- siderations, such as trying to limit overfish. yellow safety hats unload pollack from the such as tryingit vrfih hold. "Our sea is getting smaller," says the 45- The Japanese are also concerned about year-old fisherman. "In the past it was our acquiring permits to fish In waters affected sea, but now it is becoming the sea of oth- by the 200-mile limit and abo paying li- cense fees to be able to fish. "'e don't think ers. When we take a .long trip, we run into cense fees o be able to d on't think many outsiders now. It Isn't our sea any- we should pay to advanced eot restor of Takeshi Nakamura. executive director of more." Mr. Hiramatsu refers to the probable ef- the Japan Fisheries Asoeatin, a private fects on his livelihood and his town......when, in group. "Also, the amount is so huge that we can't pay it." March. the q.S. implements the law extend- ing its jurisdiction over fisheries' to 200 U.S. Arguments miles off its coast from the present 12 miles. The U.S. maintains that the law is neces- The law will have ripples far beyond its im- sary for several reasons. For years, Amerl- pact on Mr. Hiramatsu and other Japanese can fishermen have claimed that they have fishermen who head their boats Into the i been shoved out of the richest fishing waters choppy waters of the North Pacific. of the North Pacific by highly mechanized Indeed, the 200-mile economic zone is the Japanese and Soviet fishing fleets. Addition- rTist serious bilateral disagreement cur- ally, supporters of the economic zone charge rently confronting the U.S. and Japan, and that sverfishing by foreign shlps has de- the dispute could strain relations between I pleted the stock of several species; and that the two allies on other fronts. One U.S. offi- the new law's restrictions .will l1ow those cial says, "We're worried. The Japanese fish to replenish themselves. Fnally, some might'have a sense of betrayal that casts a U.S. congressional leaders lost patience with substantial cloud over the relationship." the International Law of the Sea Confer- And Yoshlhide Uchimura, director general ences that for years have been trying unsuc- of the Japanese Fisheries Agency, says, "If cessfully to produce a workable global pact our fishing can't he continued Iln U.S. wa- on ocean rights. Another suCh session is ters, It will have grave consequences for the scheduled for May 1977, and the Japanese Japanese people." wii1dlike the tl.8. to rem imp 'compromie,' Unlikely menting its law until after that meeting. So Arican an eound ofUapaneike negot i a tsi e far, the U.S. has refused, though there have American and Japanese negotiators be-' been indications that it might be willing to gan another round of talks on the fishing is-' can s a t cgie win o se in Toyo this week. During the stse change its law to coincide with any law pro- sue in Tokyo this week. During the first ses- sion, the Japanese restated their refusal to mulgated by the conference recognize the 200-mile economic zone, De- The threatened reductlonn.,Japan's catch spite optimism voiced by U.S. negotiators is viewed with trepidation here, for about before the talks began. prospects for any half the daily protein intake of the average compromise are slim. The law goes into ef- Japanese comes from fish-related products. feet on March 1. 1977. and participants from Fish is to the Japanese what the T-bone andi the t.S. side are limited in what they can hamburger are to the average A4merican. In offer the Japanese An earlier meeting, 1974, for example, Japan'sp ,j-, ta annual -Sheduled for August. was postponed vhlPn consumption of fish was 77 pounds. com- agreement couldn't be reached on either pared to only 5,5 pounds bf.beef,. fRy con- procedural or substantive matters. trast, per-capita consumnpt1soz:oi fish in the The Japanese have recently met with the t.S. that year was 12 pounds, compared to Canadians on the same issue, and the U.S. 11.3 pounds of beef., There are iearly iO,- conducted exchanges with both these coun 000 shops In Japan that specfalize in sushi. tries last week. Later this year and next, the the raw fish delicacy so poptior' here, and I U.S, and Japan will sit down at the bargain- almost 57.000 apanese make tbeir living -oi ing table with the Soviet Union. The Ameri- fishmongers. cans and Japanese have also been trying to The Japanese estimate tht but 1. m- hammer out some agreement with South Ko- lion tons of the nation's 10 mt liotitton annual rea over its fishing rights and restrictions. catch comes from waters within the 200-mile Whatever the outcome of the negotiatlons limit of the U.S. and Canada.:v'We have no between the U.S. and Japan, the intern- alternative to the North Pacifi, says Mr.h tional trend is clearly toward the 200-mile Nakrmira to the Japan Faerles Assoela- economic zone. More than 50 countries have Nm a i r n ishresoc tion, "The sea is rich in fishing resources already extended their territorial waters to there, and there's no replacing what we get that distanoo from their coasts, and the U.S there. More than . boatsit crew measure, according'to experts on ocean law, ee. o e n atwt . re isn't as radical as those of some other na- members operate in waters off the U.S. tions. What is new Compared with previous -154- coast according to the assoc..the. bilateral agreement. between the U.S. and Quotas on Pol lack fiess, Such as processing l itiland supply (One of the knottiest problems facing ne- shops. City officials esttmateathe annual vol- gotiators is the question of quotas, particu- ume of the fish-processtng industry to be l:rly for the Alaskan pollack. Largely re- about $50 million and the annual value of the garded as a "trash" fish by U.S. fishermen, catch to be about $36.7 million. Though they the pollack is used in several ways in Japa- decline to project specific figures, Otaru of- nese diets, most commonly for kamahoko, ficials say that .mplementation bf the new or boiled fish paste. Japan annually catches law would cause the towns Unemployment about 1.1 million tons of pollack inl waters rate, currently at about 4.de; to go even off Alaska within the 200-mile limit of the higher. "If fishing went down, other Indus- new law. Officials close to the negotiations tries would suffer a serious ble." says one say that the U.S. will seek to reduce the administrator amount of that catch to 8,50,000 tons or less a Nishidate Masanobu, who has been sup- year. "The cost of kamaboko paste will go plying tools, rope and other.gear to local up," concedes one American official, "but f tshermet or nearly o t his t5 years, fishermen for nearly 50 of his 65 years, it's not a preferred component of the Japa- agrees. "It. Is a life-or-death problem for nese diet. \ us,". he says. Miyokicbi Abe, whose father U.S. officials maintain that because fish ran the same beer and sake shop that he is an international commrodity, the Japanese now operates;, says his sales will fall by 15'ic can still import it from abroad if their catch once the new law goes into effect. He says runs short of demand. "In the long run, that one recent ship heading for Alaskan wa- there's no reason for any nation to suffer ters bought more than $2,500 worth of provl- economic dislocation," one American expert stons from his store. "What Carl we do?" he says. asks. "I have been here $3 years. I can't move from this place." . .": , Apart from the current negotiations. the move irom thIs place. Fishermen, of course, will be even more Japanese are taking several steps to try to directly affected. Makota Honma, who soften the expected blow. For one, they're i fishes from the decks of the Shosei Maru. trying to win support for their cause abroad estimates that his catch for the entire year by organizing public demonstrations in To- will be reduced by 30% once the law goes kyo protesting the U.S. position, For an- into effect. "We are too old to change jobs." other, they have been placing increasing he says, showing a gold tooth as he smiles. emphasis on the development of aquacul- may have to become a beggar And Ma- ture, or fish farming. The Japanese are also considering stepping up imports of beef and goshichn Watanabe stands in the cabin of the pork and increasing domestic productn of Zenpo Maru and explains that long-distance pork and increasing domestic production of have to fishermen like himself will now have to compete with those who fish In nearby ) "What Can We lDo?" |coastal waters. "We would. both lose Whatever emerges from the negotiations monih;" nt says. or other fronts. the most substantial Impact Many fishermen here dmit that they of the U.S. law will be felt in towns like haven't prepared for the Impact of the new Otaru. In this city of 180,000, officials esti- law. Mr. Howma, who comes from several mate that some 5,000 residents work as crew , generations of fishermen h1 Otaru. says he members on fishing boats. Otar'u also has won't advise his sons to follow in his foot. .500 enterprises related to the fishing busi. steps. "A new.perlod has come" he says, "and the weather has changed." -155- 3. Semi-enclosed Seas. The Informal Single Negotiating Text, U.N. Doc. A/ CoNF. 62/ WP. 8/ REV. I/ PART II. Article 129 Definition For the purposes of this Chapter, 'enclosed or semi- enclosed sea" means a gulf, basin, or sea surrounded by two or more States and connected to the open sea by a nar- row outlet or consisting entirely or primarily of the terr- itorial seas and exclusive economic zones of two or more coastal States. Article 130 Co-operation of States bordering enclosed or semi-enclosed seas States bordering enclosed or semi-enclosed seas should co-operate with each other in the exercise of their rights and duties under the present Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) To co-ordinate the management, conservation, ex- ploration and exploitation of the living resources of the sea; (b) To co-ordinate the implementation of their rights and duties with respect to the preservation of the marine environment; . (c) To co-ordinate their scientific research policies and undertake where appropriate joint programmes of sci- entific research in the area; *(d) To'invite, as appropriate, other interested States or international organizations to co-operate with them in furtherance of the provisions of this article. 4. Scientific Research (a) REPORT OF U.S. SENATE COMM. ON COMMERCE, 94TH CONG., 1ST SESS., THIRD U.N. LAW OF THE SEA, CONFERENCE 32- 33 (Comm. Print 1975) (footnotes omitted): U.S. position on scientific research.--Maritime nations like th-e United States have maintained that oceanic research has benefitted all mankind by provideing the scientific comm- unity with information that can lead to better management of ocean resources, better weather forecasting, understanding and regulation of pollution, and the like. As most of the interesting scientific research at sea is conducted within the proposed economic zone of 200 nautical miles, marine sci- entists maintain that much vital reearch will be impaired by coastal state restrictions if the latter were to have the right to regulate scientific research within the area. In order to safeguard the interests of the coastal states, the U.S. has pro-posed that all scientific research remain free from restraints, but that researchers comply with the follow- ing rules if they wish to conduct research in the economic zone., (1) advance notification of the proposed research., in- cluding a detailed description of the research project; (2) a right of the coastal state to participate direct- ly or through an international organization of their choice; (3) sharing of all data and samples with the coastal states; (4) assistance to the coastal states in interpreting the results of the research project in a manner that is relevant to the coastal state; (5) publication as soon as possible of the significant research findings in an open, readily available scientific publication; (6) compliance with all appicable international envir- onmental standards; and (7) flag-state certification that the research will be conducted in accordance with the treaty by a qualified in- stitution with a view to purely scientific research. Developing coastal states, on the other hand, want to have control over all scientific research within the pro- posed economic zone. Developing coastal states have ex- pressed the following reasons for their need to control oceanic research: (1) the desire to control all oceanic activities, in- cluding scientific research within the proposed economic zone would make the coastal state the final judge of the kind of research they believe would be of benefit to their state; (2) the fear that unregulated research within the pro- posed economic zone will widen the technological gap between the developed and the developing nations(this fear is based on the perception that only advanced countries can trans- late scientific research into economic benefits or military power); (3) fear for espionage activities by research vessels (Pueblo affair syndrome); and (4) freedom to conduct scientific research within the economic zone would not provide the developing coastal state with a qu~id -pro quo which they expect in return for allow- ing foreign researchers to conduct oceanic research within their coastal waters. At the Caracas session, the views of the maritime na- tions and the developing coastal states on the question of freedom of scientific research did not come any closer to one another. Agreement was reached on general principles for the conduct of research as well as obligations for inter- national and regional cooperation. The general principles in- clude a requirement that scientific research be conducted ex- clusively for peaceful purposes, a clause dealing with non- interference with other uses, a requirement that research comply with applicable environmental regulations,and agree- ment that research activities shall not form the legal basis for any claim to any part of the marine environment or its resources, The most important issues, and those on which there was the greatest divergence of views, centered upon research in the economic zone and the international seabed. The number of proposals were finally reduced to four prin- ciple alternative texts. -15a_ (b) Informal Single Negotiating Text, U.N. Doc. A/ CONF. 62/ WP.8/ REV.1/ PART III: Chapter 11. Marine scientific research SC� I()N 2. INTIRNAI IONAI. ANI) DRI (I)N.I ((O-O)Iit'R IION SI IIION 1. (I NllRAI I)ROIVISIONS A rlicle 53 A ril'id 48 States and competent international organizations shall, in 1or the purpose of this Convention, "marine scicntilfi accordance with the principle of respect for sovereignty and researcci' mc;ans any study or related experimental work on the basis of mutual benefit, pronmote international co- designed to increase mankind's knowledge of the marine operation in marine scientific research for peaceful purposes. environnlent. A rticle 54 Article 49 States, irrespective of their geographical location. and States and conpet ent international organitations shall competent international organizations have the right to con- c(-(perate with one another, through the conclusion ot competent international orgsacniisation hatve the right dutie" bilateral, regional and multilateral agreements, to create duct marine scientific research subject to thise rightslnvd tion favourable conditions for the conduct of scientific research in the marine environment and to integrate the efforts by Ar ticl-ie 5 scientists in studying the essence of and the interrelations between phenomena and processes occurring in the marine environment. States and competent international organizations shall promote and facilitate the development and conduct of marine scientific research in accordance with the provisions Article 55 of this Convention. _ ____ States shall, both individually, and in co-operation with Arricle 51 other States and with competent international organizations, actively promote the flow of scientific data and information In the conduct of marine scientific research the fl)llowing and the transferof knowledge resulting from marine scientific principles shall apply: research in particular to developing countries, as well as the (Ia) Marine scientific research activities shall be conducted strengthening of the autonomous marine research capabilities excllsi\ely lor peacefil purposes: of developing countries through. ite'rr :lia. progranmes it) proide adequate elucation and training olheir technical and t/,) Such activities shall be conducted with appropriate scitenfic rer;onrel scientific methods and means compaltible with the provisions iof this ('onvention;- (c) Such activities shall not unjustifiably interfere with other legitimate uses of the sea compatible with the provisions iU:Te ..; .'. .. :._.' -.' ' t.; of this Convention and shall hbe duly respected in the course of aoraineL vih ithe proVtsillW fi1 init iTIlimlrt krlet such ruses; available information on proposed majot pirogrammes and (d) Such activities shall comply with all relevant regula- their objectives as well as knowledge resulting from marine lions established in conformity with the provisions of this scientific research by publication and dissemination'through Convention including those for the preservation oft he maiine appropriate channels. environment. Article 52 Marine scientific research activities shall not form the legal basis for any claim whatsoever to any part of the marine environment or its resources. -159- Slc ( ION ,. ("(}NDtIC'r ANI) PHOMO'IION 01: MARINE Article 60 SCtIENFIFIC RESEAR('H 1. Marine scientific research activities in the economic Article 57 zone or on the continental shelf shall be conducted with the 'consent of the coastal State in accordance with the provisions Coastal States have the sovereign right to conduct and of this Convention. r'egula;te ma;line scientific research in their territorial sea 2. The coastal State shall not withhold its consent to the established in accordance with this Convention. Scientific conduct of a marine scientific research project unless that research activities therein shall be conducted only under the project: conditions set forth by the coastal State. (a) Bears substantially upon the exploration and exploita- Article 58 tion of the living or non-living resources: (b) Involves drilling or the use of explosives; States and competent international organizations which intend to undertake scientific research in the economic zone (c) Unduly interferes with economic activities performed ol on the continental shelf of a coastal State shall, not less by the coastal State in accordance with its jurisdiction as than four months in advance of the expected starling date of provided for in this Convention; the research project, provide that State with a full description (d) Involves the construction, operation or use of such of: artificial islands, installations and structures as are referred to ()t} The natutre and objectives of the research project; in Articles . . . of Part II of this Convention. (h) The method and means to be used, including name. Article 61 tonnage. type and class of vessels and a description of scientific equipment: The results of a research project bearing substantially upon (c) The precise geographical areas in which the activities the exploration and exploitation of the living or non-living arte to be conducted; resources of the economic zone and on the continental shelf of a coastal State shall not be published or made internationally (d) The expected date of first appearance and final depar- available against the express wish of that State. ture ofl the research vessels, or deployment of the equipment and its removal, as appropriate: A-rile62 (e) 'he name ofthe sponsoring institution, its director, and the person in charge of the research project: States shall seek to promote ihrough competentilnterna- tional organizations the establishment of general criteria and (t) T'he extent to which it is considered that the coastal guidelines to assist States in ascertaining the nature and State should he able to participate or to be represented in the implications of marine scientific research. research proiect. Article 63 Article 59 Communications concerning the research project shall be Stlates and competent international organizations when Communications concerning the research prect shall b unde talkingd scioentificresearch inthereconlomiczaionse oronthe made through appropriate official channels unless otherwise undet taking scientific research in the economic zone or on the continental shell' of a coastal State shall comply with the following conditions: Article 64 (a ) Ensure the rights of the coastal State, if it so desires4 to participa;lte or be represented in the research project, espe- States or competent international organizations may pro- cially on hoard research vessels and other craft or installa- ceed with a research project upon the expiry of four months tions. when practicable, without payment of any remunera- from the date upon which the information required pursuant tion to the scieritists of the coastal State and without to Article 52 of this Part of the Convention was provided to obligatlion to contribute towards the cost of the research the coastal State unless within two months of the receipt of proiect: the communication containing such information the coastal J/) Provide the coastal State. at its request, with prelimi- StatehascommunicatedtotheStateororganizltionconduc- na:ry reports. as soon as practicable, and with the final results ing the research: and conclusions after the completion of the research; (a) The withholding of its consent pursuant to Article 60. (I) Undertake to provide access for the coastal State, at its subparagraph 2 (a) of this Part of the Convention; request, to all data and samples derived from the research (h) A statement that the information provided regarding pro ject and likewise to furnish it with data which may be the nature or objectives of the research project is inaccurate copied and samples which may be divided without detriment and does not conform to the manifestly evident flcts: to their scientific ,alue: (c) A request for supplementary information relevant to ,.: if :ea.e . ' fist rhe .:el s. S,'a.e , , ,'es.s r. i*b.... determining more precisely the nature and objectives of thlb m.. ;: . - .-. - , re '- : . :f' research project. e.) Evnis thw ht I he mresearc st4es alestPn ov"44 W*Wtao adly mlvcilbleb Atuos atwp ate, -;C',. r iatW ratana Article 65 :,1.T-,tT: ,: -.t':l in5[hlDi'- l. The coastal State shall have the right to require the cessation of any research activities in progress within its changpe in the research programme-: economic zone or on its continental shelf if: (g) Unless otherwise agreed remove the scientific installa- (a) The Stat e or competent international organization tions or equipment once the research is completed. .. conducting marine scientific research fails to comply substan- A4rfi~e 71 tially with the provisions of Article 58 of this Part of the ,ir 71 Convention and compliance is not secured within a reason- The installations or equilrent referreld to in this Section able time; ' e shall not have the status of islands or possess thcir own (b) Information communicated to the coastal State under territorial waters. and their presence shall not ;affect the Article 58 of this Part of the Convention regarding the nature delimitation of the territorial sea, continental shelf or and objectives of the research project is shown to be economic zone of the coastal State. inaccurate. 2. The coastal State may likewise require the fulfilment of any outstanding obligations as referred to in Article 59 of this Part of the C~onvention before the commencement of any Safety zones of a reasonable width not exceeding a distance Partof he 'onvntii~ efor th comencmen ofany of 500 metres may he created around scientific research subsequent research project by the defaulting party within the of 500 metres my e created around scientific es ch economic zone or on thecontinental shelf of the coastal State. installations in accordance with the relevant provisions ofthis Convention. All States shall ensure that such safity /ones are r::'ticle 66 respected by their vessels. ;:Article 66 I. States and competent international organizations con- 7 ducting marine scientific research in the economic zone oron the continental shelfofa coastal State shall take into account he deployment nd is or aey t scientific restearch the inlerests and rights of neighbouring land-locked and other installtions or quipent st not cnstitute o cle to geographically disadvantaged States, as provided for in this the established international shipping routes. Convention and shall notify these States of the proposed research proiect as well as provide, at their request, relevant A 74 information and assistance as specified in Article 58 and Article 59, subparagraphs (d) and (f) of this Part of the Installations or equipment referred to in this Section sha.ll Convention, bear identification markings indicating the State or interna- tional organization where they are registered and shall have 2. Such neighbouring land-locked and other geographi- adequate internationally agreed warning signals to ensure the cally disadvantaged States shall, at their request. be given the safety of sea and air navigation, taking into account the opportunity to participate, whenever feasible, in the pro- principles established by competent international posed research project through qualified experts appointed organizations. by them. Article 67 Sic-:llON 5. Rl-sl'oNsinll.llv AND) IAI Itti i Y Coastal Statles shall, on the basis of bilateral or regional and Articlie 75 other multilateral agreements and in a spirit of international co-operation with a view to promoting marine scientific . States and competent international organizations shall research activities conducted in accordance with this Con- be responsible for ensuring that marine scientific research, vention, adopt measures to facilitate access to their harbours whether undertaken by them or on their behalf, is conducted and to provide assistance for marine scientific research in accordance with the provisions of this Convention. vessels carrying on such activities. 2. States and competent international organizations shall be responsible and liable for the measures they undertake in Article 68 contravention of this Convention in respect of mar-ine scien- tific research activities conducted by other States, their States, irrespective of their geographical location, as well natural or juridical persons or by competent inlernational as competent international organizations, shall have the right, organizations, and shall provide compensation for damage in conformity with the provisions of Part I of this resulting from such measures. Convention, to conduct marine scientific research in the inteIrnational sea-bed area. 3. States and competent international organizations shall be responsible and liable puirsuant to the principles set forth in Article 69 Article 44 of this Part of the Convention for damage arising out of marine scientific research undertaken by them or on States, ilrrespective of their geographical location, as well their behalf. a's competent international organizations. shall have the right,. in conformity with the provisions of this Colvention, to SIcX oN 6. SEi I . MEN i D)Oi riSLI-s conduct marine scientific research in :the water column beyond the limits of the economic zone. Article 76 I. Any dispute relating to marine scientific research shall SI:(I iON 4: I.i (,Ai STATUS 1O SC.IN IIFIC RISIAR('I11 be settled by negotiation, conciliation or other procedures for INS AI I A I IONS 6NI) EQUII'MEN I IN I iF; MARINI settlement agreed upon by the parties to the dispute. notwith- I NV'IRONMI NI standing anything to the contrary contained in this Convention. Alrtice 70 2. If a dispute regarding the nature or objectives of al 'Ithie deployment and use of any type of scientific 'research resea-ch project is not settled by negotiation or a procedure installations or equipment in any area of the mntarine environ- under paragraph i, agreed to between the parties concerned. ment strhall be stbject to the same conditions as those lfr The it shall, at the request of any of the parties to the dispute. be conct of marine scientific research in suhbmitted for settlement in accordance with the conciliation Cotidjict o~f inan'ne scientific research in such areal. is pl- prcduest u blw vided for in this Convention. procedue set out below -161- (a) Each party to the dispute, unless otherwise agreed, shall nominate one expert from a list ofexperts established by the appropriate United Nations organ in the field of marie scientific research; (b) The experts shall assist the parties to reach an agree- ment. If. after a period of two months from the date the dispute is first submitted for conciliation, the disagreement continues. a third expert shall be nominated by the appro- priate United Nations organ at the request of any of the interested parties in order to assist in the conciliation of the differences. The maximum period for the procedure outlined in this paragraph shall not exceed four months from the date the dispute isfirst submitted for conciliation. If no agreement is reached by this process, the dispute shall be resolved bythe procedures for settlement of disputes set forth in the relevant articles of this Convention. 3. Any other dispute which is not resolved by procedures set forth in this Article shall he settled pursuant to Part IV of this Convention. A rticle 77 Pending conciliation or settlement of a dispute in accord- ance with Article 76 of this Part of the Convention, the State or competent international organization shall not allow re- search activities to commence or continue without the express approval of the coastal State. Notes 5.Dispute Settlement (a) REPORT OF U.S. SENATE COMM. ON COMMERCE, 94TH CONG., 1ST SESS., THIRD U.N. LJAW OF THE SEA CONFERENCE 33- 34 (Comm. Print 1975) (footnotes omitted). The nations negociating at the law of the sea conferences are attempting to produce an internat- ionally agreed upon system, aimed at limiting friction and conflict over the uses of the sea. The voting pro- cedures agreed upon at the Caracas session are a step in the direction of achieving this goal. However, there are likely to be differences over the interpretation and application of the provisirans of the treaty. In order to define the rights and duties of states and to provide assurances that those rights under the treaty will be protected, a dispute settlement mechanism is necessary. U.S. position.--The U.S. government believes that any law of the sea treaty is almost as easily suscept- ible of unreasonable unilateral interpretation as are the principles of customary international law. This is particularly true considering that the essential bal- ance of critical portions of the treaty, such as the economic zone, must rest upon impartial interpretation of treaty provisions. In a working paper, introduced jointly with Aus- 4 ~~~~tralia, Belgium, Bolivia, Colombia, El Salvador, Lux- embourg, the Netherlands and Singapore, the United States has set out its views on dispute settlement. In addition, most U.S. draft proposals contain com- pulsory dispute settlement provisions. The United States favors the creation of a new oceans tribunal with broad jurisdiction to deal with disputes arising under the treaty. Whenever parties who abide by the law of the sea treaty cannot agree on a method of dis- pute settlement, they may refer the dispute to the tribunal. However, prior to referring disputes to the tribunal, states should be free to agree an other methods of dispute settlement they consider suitable, such as mediation, conciliation, arbitration, and other procedures. The only disputes that would not be submitted to the tribunal are fishing disputes, which would instead be submitted to a special com- mission, consisting of five members, named by agree- ment between the states in dispute or by the U.N. Secretary-General. The United States government maintains that a system of compulsory and peaceful third-party settlement of disputes is in the end per- haps the most significant justification for the accom- modations which natkis have been asked to make. -163-- Developing countries positions.--They generally do not favor compulsory dispute settlement for the fol- lowing reasonsi (1) They believe that the decision- makers in this approach will tend to be from developed nations; (2) costs associated with compulsory dispute settlement are likely to be high, and are consequently difficult to sustain for poor countries; and (3) the number of disputes requiring tribunal' action may b6- come overwhelming. At the Caracas session the three Committees did not become deeply involved in dispute settlement problems. Aside from Committee I, there was not much public debate in the Conference on dispute settlement. In the latter part of the session about 30 states from all .regions interested in dispute settlement met in- formally on a regular basis to discuss dispute settle- ment problems, and at the end of to session nine countries, including the United States, issued a work- ing paper which is likely to stimulate further study and discussion before the Geneva session. (b) The Informal Single Negotiating Text, U.N. Doc. A/ CONF. 62/ wP. 9/ REV. 1/ PART IV, provides, SECTION'l Article 1 Obligation to settle disputes by peaceful means The Contracting Parties shall settle any dispute between them relating to the interpretation or aplication of the pres- ent Convention through the peaceful means indicated in Art- icle 33 of the Charter of the United Nations. Article 2 Settlement of disputes by means chosen by the parties Nothing in this Chapter shall impair the right of the Contracting Parties to agree at any time to settle a dispute between them which relates to the interpretation or appli- cation of the present Convention by any peaceful means of their own choice. Article 3 Obligations under general, regional or special agreements If the Contracting Parties which are parties to a dis- pute relating to the interpretation or application of the present Convention have accepted,through a general, regional -164- or special agreement, or some other instrument or instru- ments an obligation to settle such dispute by resort to arbitration or judicial settlement, any party to the dispute may refer it to arbitration or judicial settlement in accord- ance with such agreement or instruments in place of the pro- cedure specified in this Chapter, unless the parties agree otherwise. Article 4 Obligation to exchange views 1. If a dispute arises between two or move Contracting Parties with respect to the interpretation or application of the present Conventi~arn, those parties shall proceed expedi- tiously to exchange views regarding settlement of the dispute. 2. Similarly, such an exchange of views shall be held whenever a procedure under the present Convention, or another procedure chosen by the parties, has been terminated without a settlement of the dispute. Article 5 If the Contracting Parties which are parties to a dis- pute have agreed to settle a dispute by peaceful means of their own choice and have agreed on a time-limit for such proceedings, the procedure specified in this Chapter shall apply only after the expiration of that time-limit, provided that no settlement has been reached and the agreement between the parties does not preclude any further procedure. -165- 6. High Seas: Definition and Freedoms Enjoyed The Geneva Convention on the High Seas, 450 U.N.T.S. 82, 13 U.S.T. 2312, T.I.A.S. No. 5200, provides: Article 1 -The term "high seas" means all parts of the sea that are not included in the territorial sea or in the internal waters of a State. Article 2 The high seas being open to all natibans, no State may validly purport to subject any part of them to its sover- eignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. These freedoms, and others which are recognized by the gen- eral principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in the exercise of the freedom of the high seas. Compare the provisions of the Informal Single Negoci- ating Text, U.N. Doc. A/ CONF. 62/ WP. 8/ REV.l/ PART II: Article 75 The term "high seas" as used in the present Convention means all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. Article 76 I.) The high seas are open to all States, whether coastal or land-locked. Accordingly, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by the present Convention and by other rules of international law. It comprises, inter alia, both for coastal and land- locked States: (a) Freedom of navigation; (b) Freedom of overflight; (c) Freedom to lay submarine cables and pipelines, subject to Chapter IV; (d) Freedom to construct artificial islands and other installations permitted under international law, subject to Chapter IV; -166- (e) Freedom of fishing, subject to the conditions laid down in section 2; (f) Freedom of scientific research, subject to Chap- ters IV and . . . (Marine scientific research). 2. These freedoms shall be exercised by all States, with due consideration for the interests of other States in their exercise of the freedom of the high seas, and also with due consideration for the rights under the present Convention with respect to activities in the International Area. -167- Chapter Two LIVING RESOURCES OF THE-OCEANS "Every new enclosure of the commons involves the infringement of somebody's personal liberty. Infringements made in the distant past are ac- cepted because no contemporary complains of a loss. It is the newly proposed infringements that we vigorously oppose: cries of 'rights' and 'freedom' fill the air. But what does freedom mean? When man mutually agreed to pass laws against robbing, mankind became more free, not less so. Individuals locked into the logic of the commons are free only to bring on universal ruin; once they see the necessity of mutual coercion, they become free to pursue other goals. I believe it was Hegel who said, 'Freedom is the recognition of necessity.' Hardin, The Tragedy of the Corrmons, 162 Science 1243 (1968). "Eight years ago, I stood on the Route One bridge in south Miami and squinted into the blaze of sun- light sparkling on the waters below. I had come to see the famous manatees of the Miami River, those whaleli-ke creatures so thrilling to behold and so few in number. But when I leaned over the rail to find them in their customary hideout under the bridge, they were not there. Scanning the river in vain for the familiar upboilings that mark their whereabouts, I approached an elderly fisherman on the bridge. 'Where are the manatees?' When he did not answer, I went on to describe them: about 12 feet long and hung like dirigibles in the water, with legless hind- quarters and bristly prehensile lips that plucked the greens out of the river. 'You mean the sea cows?' the fisherman replied. 'They're dead. Propellers on the big power boats slashed them up. "' George, This Fragile Menagerie Hangs by a Thread, 12 Nat. Wildlife 6 (Apr.- May, 1974). 168 A. ~ ~ ~ ~ ~~~~~~ SECTION 1. INTRODUCTION From his place at the summit of the food chain, man often overlooks the importance -- or even the existence -- of his travelling companions aboard this sphere with its delicately interdependent and complex biomass. Especially forgotten are the animals least frequently seen -- those living in or near the oceans and coastal waters. A reminder of sea life appears now and then, perhaps. Maybe a sketch of a smiling halibut adorning a frozen package in the supermarket or a glimpse of an exotic t~ropical fish in an aquarium might maintain a vague awareness for most people that an aquatic world exists. But how many really appreciate its importance? Whether it's the continental shelf fisheries which support the large fishing industry, or the Florida manatee, a tropical marine mammal known to aid navigation by clearing waterways clogged by luxuriant hyacinth growths, the water animals are a necessary portion of the system. But like many wild species, their survival is threatened by man. Already gone are the sea cow, the sea mink and the Atlantic gray whale. The sturgeon, reported by Captain John Smith as more plentiful than could be "devoured by dog or man," has now vanished from the Chesapeake Bay. The blue, bowhead, finback, gray, humpback, right, sei and sperm whales are listed as officially endangered, as are the Florida manatee, the Dugong and the Hawaiian monk seal. 41 Fed. Reg. 47181. Considered threatened by the National Wildlife Fed- oration are the Southern sea otter, and the Guadalupe fur, Carribean monk and ribbon seals. Virtually all of the major commercial fish species face serious depletion, and marine scientists are currently debating whether porpoise and dolphin populations are in a general decline. This chapter will deal with the legal protections ac- corded marine life: the Fisheries Conservation and Manage- ment Act,-of 1976 and the Marine Mammal Protection Act of 1972. Also considered are the developments in the inter- national law of the sea, state regulations of fisheries and aquaculture, and the application of the Endangered Species Act to coastal animals. 169 The Economics of Fisheries Management-a note The extension of United States jurisdiction to 200 nautical miles-embodied within the Fisheries Conservation and Management Act of 1976 (FCMA) is predicated on a task never before attempted by the federal government -- the management of the fisheries of the continental shelf. From an economic-standpoint, a fishery with free access to all fishermen (which was the case prior to March 1, 1977, the effective date of the FCMA) will inevitably become exploited to the point of eventual depletion. There is simply insufficient incentive for the individual fisherman to conserve the common resource, absent some assurance that all of his competitors will also conserve. And since no fisherman can restrain any other fisherman operating within a commons, there is actually a real disincentive for fishermen to conserve. A conservationist fisherman would find that his restraint lessened the competition for his colleagues, and at the same time reduced their future costs as his conservation efforts slowed the depletion of the fisheries stocks, or even aided their re. plinishment. So in an unlimited entry system, the fishermen find that although their maximum fishing efforts will result in the depletion of their resource, they nevertheless must optimize their present catch, as they have no control over their colleagues or the result of their collective operations. Not only does such fishing bring on depletion of the common resource, it also produces great economic waste as more labor and capital are invested than are required to acheive the maximum catch. in hopes of solving the problems of economic waste and depletion brought on by the commons, the FCMA seeks to manage the fisheries through a set of plans to acheive the optimum sustainable yield (OSY) of the fishery. OSY is an interesting concept. The starting point in its formulation is the maximum sustainable yield (MSY), or the point in fishing where the stocks can maintain themselves from season to season. If fishing exceeds the MSY, the stock's reproduction cannot keep pace with the extraction, thus depletion begins. 170 MSY, then, is primarily a biological term, while OSY rep- resents a broader concept. The Act defines OSY as the MSY of the fishery, as modified by "any relevant economic, social, and ecological factors." FCMA, 16 U.S.C.A. �1802(18). In its report, the Senate Committee on Commerce cautioned that the OSY concept could not be used to justify a catch exceeding the MSY on a continued basis. Rather, the report said, the OSY should ordinarily be "equal to or below the MSY." Sen. Rep. No. 416. 94th Cong., 1st Sess. 21 (1975). It should be noted that the OSY of the fishery is not necessarily synonymous with the maximum economic yield (MEY). The MEY model is geared toward the maximization of economic rent (or the value of the right to fish), and the elimination of economic waste. As illustrated in the graph below, the supply of fish (s) increases with corresponding fishing efforts to a point, MSY, at which increased fishing produces a decline in fish populations. MEY represents a point on the curve at which the increase in fishing cost per unit matches the increase in revenues, and fishing beyond this point results in a decline in revenues at such an increasing rate as to constitute economic waste. See Clingan, A Second Look at United States Fisheries Management, 9 San Diego L. Rev. 432 (1972); Comment, Legal Dimensions of Entry Fisheries Management, 17 Wm & Mary L. Rev. 757 (1976). In the graph at the left, the point M represents the point at which increased :~sL~ ~ fishing efforts begin to deplete the stocks. The P ~ a\~~~~point U is the limit imposed .MAfNAL by the selection of MEY, or ccsT the intersection of demand and marginal cost. See Copes, L : \ ~'. ~ The Backward-Bending Supply X'"~ ~~ Curve of the Fishing Industry x !,~ ~17 Scot. J. Polit. Econ. 69 ~,\ ' ~~(1970). 'I\ 0~ .................................. ,.......... , M . , -) ............................... .. .17 OU IIU17 171 While an MEY-based management scheme might prove the most economically efficient course, it would likely have the undesirable effect of rapidly diminishing the size of the domestic fishing fleet, with a corresponding decline in the number of jobs available in the fishing industry. On the other hand, a plan based on the OSY (with social and ecological factors considered) should not have that effect. The adoption by Congress of the OSY concept signifies a healthy regard for the numerous variables at work in the fisheries systems, and it indicates that although open access has led to serious overfishing and threats to the existence of some stocks, the institution of fisheries managements should proceed with caution. Procedurally, the management will be conducted on the basis of regional management plans conceived by regional com- missions with membership weighted toward private citizens over governmental officials. The management plans will be submitted to the Secretary of Commerce for approval, and then published in the Federal Register along with regulations imple- menting the plans. Enforcement of the regulations is assigned to the Coast Guard, and violators can face criminal and civil penalties and civil forfeitures. The FCMA charges the commissions with the responsibility of determining the OSY, but leaves the regulatory means of acheiving it to the discretion of the commission and the Secretary. Generally, there are three major types of restricting fishing: closed seasons, restrictions on fishing gear, and limitations on the number of vessels permitted to operate. Arguments can be made against the closing of seasons on the basis of efficiency. Professor Clingan suggests that although a closed season allows time for repair of gear and main- tenance of vessels, the ultimate effect is the creation of a highly intensified effort during the open season. Additionally, Clingan states, "shorter seasons result in the need for high capacity processing plants (to) remain idle for long periods," thereby denying the consumer the availability of fresh fish and imposing the inflated costs resulting from the longer periods of storage. Limitations on the types of fishing gear, such as those currently in force in some states are similarly criticized by Professor Clingan as a "deliberate choice for inefficiency." Such a limitation can result in technoTogical stagnation in the area, with some fish stocks going underutilized. Also, economic waste will ensue as more labor and capital are invested than are required to obtain the optimum return. 172 The most attractive 'option -- one which would achieve the goals of closed seasoits and gear limitations, and at the same time attain maximum efficiency --is that of limited access, Clingan argues. Authorized by the FCMA, 16 U.S.C.A. �1853(6), a limited access plan would involve the required determination by the regional management council of the OSY, followed by a finding of the number of vessels necessary to take the specified catch. Only that number of vessels would be licensed to operate within the fishery. The concept is simple, but the application has obvious problems. A sudden imposition of a vessel limit would diminish the number of vessels in the fishing industry, with a certain corresponding loss of employment opportunities within the fishing industry and the subsequent displacement of persons now active in the fishing work force. Of course, regard for such social factors would indicate that limitations resulting in large employment losses should be adopted gradually to minimize the adverse impact. So the regional management councils have a difficult mandate. On the one hand they must insure that the fishery stocks survive and prosper; and on the other, they must ameliorate the harsh impacts of limited entry by considering relevant social factors. For an analysis of possible constitutional attacks on limited access regulations, see Comment, Legal Dimensions of Entry Fisheries Management, 17 Wm & Marv L. Rev. 757 (1976). 173 Section 2 - Fisheries A, 'International Law THE FISHERIES JURISDICTION CASE: UNITED KINGDOM v. ICELAND The International Court of Justice Merits Judgment of July 25, 1974 [1974] I.C.J.Rep. 3 THiE COU RT, delivers ile folio wing Judgment: 1. By a letter of 14 April 1972, received in the Registry of the Court the same day, the Charge d'Affaires of the British Embassy in the Netherlands transmitted to the Registrar an Application instituting proceedings against the Republic of Iceland in respect of a dispute concerning the then proposed extension by the Government of Iceland of its fisheries jurisdiction. 2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was at once communicated to the Government of Iceland. In accordance with paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application. 3. By a letter dated 29 May 1972 from the Minister for Foreign Affairs of Iceland, received in the Registry on 31 May 1972, the Court was informed (inter alia) that the Government of Iceland was not willing to confer jurisdic- tion on the Court and wpuld not appoint an Agent. 4. On 19 July 1972, the Agent of the United Kingdom filed in the Registry of the Court a request for the indication of interim measures of protection under Article 41 of the Statute and Article 61 of the Rules of Court adopted on 6 May 1946. By an Order dated 17 August 1972, the Court indicated certain interim measures of protection in the case; and by a further Order dated 12 July 1973, the Court confirmed that those measures should, subject as therein mentioned, remain operative until the Court has given final judg- ment in the case. By a letter of 21 November 1973, the Agent of the United Kingdom informed the Court, with reference to the Orders of 17 August 1972 and 12 July 1973, of the conclusion on 13 November 1973 of an Exchange of Notes constituting an interim agreement "relating to fisheries in the disputed area, pending a settlement of the substantive dispute and without prejudice to the legal position or rights of either government in relation thereto". Copies of the Exchange of Notes were enclosed with the letter. A further copy was commlllrlnunicated to the Court by the Minister for Foreign Affairs of lceland under cover of a letter dated 11 January 1974. The Exchange of Notes was registered with the United Nations Secretariat under Article 102 of the Charter of the United Nations. 5. By an Order dated 18 August 1972, the Court, considering that it was necessary to resolve first of all the question of its jurisdiction in the case, decided that the first pleadings should be addressed to the question of the jurisdiction of the Court to entertain the dispute, and fixed time-limits for the filing of a Memorial by the Government of the United Kingdom and a Counter-Memorial by the Government of Iceland. The Memorial of the Government of the United Kingdom was filed within the time-limit pre- scribed, and was communicated to the Government of Iceland; no Counter- Memorial was filed by the Government of Iceland. On 5 January 1973, after due notice to the Parties, a public hearing was held in the course of which the Court heard the oral argument of counsel for the United Kingdom on the question of the Court's jurisdiction; the Government of Iceland was not represented at the hearing. 6. By a Judgment dated 2 February 1973, the Court found that it had jurisdiction to entertain the Application filed by the United Kingdom and to deal with the merits of the dispute. 174 7. By an Order dated 15 February 1973 the Court fixed time-limits for the ,. rilten proceedings on the merits, namely 1 August 1973 for the Memorial of tihe Government of the United Kingdom and 15 January 1974 for the Count- er-Memorial of the Government of Iceland. The Memorial of the Government of the United Kingdom was filed within the time-limit prescribed, and was communicated to the Government of Iceland; no Counter-Memorial was filed by the Government of Iceland. 8. By a letter from the Registrar dated 17 August 1973 the Agent of the United Kingdom was invited to submit to the Court any observations which the Government of the United Kingdom might wish to present on the question of the possible joinder of this case with the case instituted on 5 June 1972 by the Federal Republic of Germany against the Republic of Iceland (General List No. 56), and the Agent was informed that the Court had fixed 30 Sep- tember 1973 as the time-limit within which any such observations should be filed. By a letter dated 26 September 1973, the Agent of the United Kingdom submitted the observations of his Government on the question of the possible joinder of the two Fisheries Jurisdiction cases. The Government of Iceland was informed that the observations of the United Kingdom on possible joinder had been invited, but did not make any comments to the Court. On' 17 January 1974 the Court decided by nine votes to five not to join the present proceedings to those instituted by the Federal Republic 'of Germany against the Republic of Iceland. In reaching this decision the Court took into account the fact that while the basic legal issues in each case appeared to be identical, there were differences between the positions of the two Applicants, and be- tween their respective submissions, and that joinder would be contrary to the wishes of the two Applicants. The Court decided to hold the public hearings in the two cases immediately following each other. 9. On 25 and 29 March 1974, after due notice to the Parties, public hearings were held in the course of which the Court heard the oral argument of counsel for the United Kingdom on the merits of the case; the Government of Iceland was not represented at the hearings. Various Members of the Court addressed questions to the Agent of the United Kingdom both during the course of the hearings and subsequently, and replies were given either orally at the hearings or in uwriting. Copies of the verbatim record of the hearings and of the written questions and replies were transmitted to the Government of Iceland. 10. The Governments of Argentina, Australia, Ecuador, the Federal Rcpubic of Germany, India, New Zealand and Senegal requested that the pleadings and annexed documents in this case should be made available to them in accordance with Article 44, paragraph 2, of the Rules of Court. The Parties having indicated that they had no objection, it was decided to accede to these requests. Pursuant to Article 44, paragraph 3, of the Rules of Court, the pleadings and annexed documents were, with the consent of the Parties, made accessible to the public as from the date of the opening of the oral proceedings. I1. In the course of the written proceedings, the following submissions were presented on behalf of the Government of the United Kingdom: in the Application: "The United Kingdom asks the Court to adjudge and declare: (a) That there is no foundation in international law for the claim by Iceland to be entitled to extend its fisheries jurisdiction by estab- lishing a zone of exclusive fisheries jurisdiction extending to 50 nautical miles from the baselines hereinbefore referred to; and that its claim is therefore invalid; and (b) that questions concerning the conservation of fish stocks in the waters around Iceland are not susceptible in international law to regulation by the unilateral extension by Iceland of its exclusive fisheries jurisdiction to 50 nautical miles from the aforesaid base- lines but are matters that may be regulated, as between Iceland and the United Kingdom, by arrangements agreed between those two countries, whether or not together with other interested countries and whether in the form of arrangements reached in accordance with the North-East Atlantic Fisheries Convention of,24 January 1959, or in the form of arrangements for collaboration in accordance with the Resolution on Special Situations relating to Coastal Fish- eries of 26 April 1958, or otherwise in the form of arrangements agreed between them that give effect to the continuing rights and interests of both of them in the fisheries of the waters in question." 175 in the Memorial on the merits: ". .. the Government of the United Kingdom submit to the Court that the Court should adjudge and declare: (a) that the claim by Iceland to be entitled to a zone of exclusive fisheries jurisdiction extending 50 nautical miles from baselines around the coast of Iceland is without foundation in international law and is invalid; (b) that, as against the United Kingdom, Iceland is not entitled uni- laterally to assert an exclusive fisheries jurisdiction beyond the limits agreed to in the Exchange of Notes of 1961; (c) that Iceland is not entitled unilaterally to. exclude British fishing vessels from the area of the high seas beyond the limits agreed to in the Exchange of Notes of 1961 or unilaterally to impose restrictions on the activities of such vessels in that area; (d) that activities by the Government of Iceland such as are referred to in Part V of this Memorial, that is to say, interference by force or the threat of force with British fishing vessels operating in the said area of the high seas, are unlawful and that Iceland is under an obligation to make compensation therefor to the United Kingdom (the form and amount of such compensation to be assessed, failing agreement between the Parties, in such manner as the Court may indicate); and (e) that, to the extent that a need is asserted on conservation grounds, supported by properly attested scientific evidence, for the introduc- tion of restrictions on fishing activities in the said area of the high seas, Iceland and the United Kingdom are under a duty to examine together in good faith (either bilaterally or together with other interested States and either by new arrangements or through already existing machinery for international collaboration in these matters such as the North-East Atlantic Fisheries Commission) the existence and extent of that need and similarly to negotiate for the establish- ment of such a regime for the fisheries of the area as, having due regard to the interests of other States, will ensure for Iceland, in respect of any such restrictions that are shown to be needed as aforesaid, a preferential position consistent with its position as a State specially dependent on those fisheries and as will also ensure for the United Kingdom a position consistent with its traditional interest and acquired rights in and current dependency on those fisheries." 13. No pleadings were filed by the Government of Iceland, which was also not represented at the oral proceedings, and no submissions were therefore presented on its behalf. The attitude of that Government was however defined in the above-mentioned letter of 29 May 1972 from the Minister for Foreign Affairs of Iceland, namely that there was on 14 April 1972 (the date on which the Application was filed) no basis under the Statute for the Court to exercise jurisdiction in the case, and that the Government of Iceland was not willing to confer jurisdiction on the Court. After the Court had decided, by its Judgment of 2 February 1973, that it had jurisdiction to deal with the merits of the dispute, the Minister for Foreign Affairs of Iceland, by letter dated 11 January 1974, informed the Court that: "With reference to the time-limit fixed by the Court for the submission of Counter-Memorials by the Government of Iceland, I have the honour to inform you that the position of the Government of Iceland with iegard to the proceedings in question remains unchanged and, colnse- quently, no Counter-Memorials will be submitted. At the same time, the (iovernment of Iceland does not accept or acquiesce in any of the state- ients of facts or allegations or contentionsI of law contained in the Memorials filed by the Parties concerned." 176 14. Iceland has not taken part in any phase of the present proceedings. By the above-mentioned letter of 29 May 1972, the Government of Ice- land informed the Court that it regarded the Exchange of Notes between the Government of Iceland and the Government of the United Kingdom dated II March 1961 as terminated; that in its view there was no basis under the Statute for the Court to exercise jurisdiction in the case; that, as it considered the vital interests of the people of Iceland to be involved, it was not willing to confer jurisdiction on the Court in any case involving ilhe cxtnt o1' the fishery limits of Iceland: and that an agent would not be appointed to represent the Government of Iceland. Thereafter, the Government of Iceland did not appear before the Court at the public hearing held on I August 1972 concerning the United Kingdom's request for the indication of interim measures of protection; nor did it file any pleadings or appear before the Court in the subsequent proceedings concerning the Court's jurisdiction to entertain the dispute. Notwith- standing the Court's Judgment of 2 February 1973, in which the Court decided that it has jurisdiction to entertain the United Kingdom's Appli- cation and to deal with the merits of the dispute, the Governinent of Iceland maintained the same position with regard to the subsequent proceedings. By its letter of 11 January 1974, it informed the Court that no Counter-Memorial would be.submitted. Nor did it in fact file any pleading or appear before the Court at the public hearings on the merits of the dispute. At these hearings, counsel for the United Kingdom, having drawn attention to the non-appearance in Court of any representative of the Respondent, referred to Article 53 of the Statute, and concluded by presenting the final submissions of the United Kingdom on the merits of the dispute for adjudication by the Court. 15. The Court is thus confronted with the situation contemplated by Article 53, paragraph 1, of the Statute, that "Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court tb decide in favour of its claim". Paragraph 2 of that Article; however, also provides: "The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law." 16. The present case turns essentially on questions of international lawv. and the facts requiring the Court's consideration in adjudicating upon the Appiicant's claim either are not in dispute or are attested by documentary evidence. Such evidence emanates in part from the Govern- mncnt of Iceland, and has not been specifically contested, and there does not appear to be any reason to doubt its accuracy. The Government of Iceland, it is true, declared in its above-mentioned letter ol 11l January 1974 that "it did not accept or acquiesce in any of the statements offact or allegations or contentions of law contained in the Memorials of the Parties concerned" (emphasis added). But such a general declaration of non-acceptance and non-acquiescence cannot suffice to bring into ques- tion facts which appear to be established by documentary evidence, nor can it change the position of the applicant Party, or of the Court, which remains bound to apply the provisions of Article 53 of the Statute. 177 17. It is to be regretted that the Government of Iceland has failed to appear in order to plead its objections or to make its observations against the Applicant's arguments and contentions in law. The Court however, as an international judicial organ, is deemed to take judicial notice of international law, and is 'therefore required in a case falling under Article 53 of the Statute, as in any other case, to consider on its own iiliati\e all rules of international law which mnay be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the, parties, for the law lies within the judicial knowledge of the Court. In ascertaining the law applicable in the present case the Court has had cognizance not only of the legal arguments submitted to it by the Applicant but also of those contained in various communications addressed to it by the Government of Iceland, and in documents presented to the Court. The Court has thus taken account of the legal position of each Party. Moreover, the Court has been assisted by the answers given by the Applicant, both orally and in writing, to questions asked by Members of the Court during the oral proceedings or immediately thereafter. It should be stressed that in applying Article 53 of the Statute in this case, the Court has actfTwith particular circum- spection and has taken special care, being faced with the absence of the respondent State. 18. Accordingly, for the purposes of Article 53 of the Statute, the Court considers that it has before it the elements necessary to enable it to determine whether the Applicant's claim is, qr is not, well founded in.fact and law, and it is now called upon to do so. However, before proceeding further the Court considers it necessary to recapitulate briefly thel isto off, the peent dispute. lo a! 1948 the Althing (the Parliament of Iceland) passed a law entitled "Law concerning the Scientific Conservation of the Continental Shelf Fisheries" containing, inter alia, the following provisions: "Article I The Ministry of Fisheries shall issue regulations establishing explicitly bounded conservation -zones within the limits of the con- tinental shelf of Iceland; wherein all fisheries shall be subject to Icelandic rules and control; Provided that the conservation measures now in effect shall in no way be reduced. The Ministry shall further issue the necessary regulations for the protection of the fishing grounds within the said zones ... Article 2 The regulations promulgated under Article 1 of the present law shall be enforced only to the extent compatible with agreements with other countries to which Iceland is or may become a party." 20. The 1948 Law was explained by the Icelandic Government in its expovs cics tnoti/f submitting the Law to the Althing, in which, inmer alia, it stated: 178 178 "It is well known that the economy of Iceland depends almost entirely on fishing in the vicinity of its coasts. For this reason, the population of Iceland has followed the progressive impoverishment of fishing grounds with anxiety. Formerly, when fishing equipment was far less efficient than it is today, the question appeared in a diffelrent light, and the right of providing for exclusive rights.of fishing by Iceland itself in the vicinity of her coasts extended much further than is admitted by the practice generally adopted since 19i)0. It seems obvious, however, that measures to protect fisheries ought to be extended in proportion to the growing efficiency of fishing equipment. In so far as the jurisdiction of States over fishing grounds is concerned, two methods have been adopted. Certain States have proceeded to a determination of their territorial waters, especially for fishing purposes. Others, on the other hand, have left the question of the territorial waters in abeyance and have contented themselves with asserting their exclusive right over fisheries, independently of territorial waters. Of these two methods, the second seems to be the more natural, having regard to the fact that certain considerations arising from the concept of 'territorial waters' hive no bearing upon the question of an exclusive right to fishing, and that there are therefore serious drawbacks in considering the two questions to- gether." 21. Conilnlcting upon Article 2 of the 19,48 Law, the c.X/,po. s / n,;ifS referred to the Anglo-Danish Convention of 1901, which applied to the fisheries in the waters around Iceland and established a 3-mile limit for the cxciLusixc right of lishery. 'I his Convention, hichic wa's subject to termination by either party on giving two years' notice, was mentioned as one of the international agreements with which any regulations issued under the Law would have to be compatible so long as the Convention remained in force. In the following year, on 3 October 1949, the Govern- ment of Iceland gave notice of the denunciation of the Convention, with the result that it ceased to be in force after the expiry of( the prescribed two-year period of notice on 3 October 1951. Furthermore, during that interval this Court had handed down its Judgment in the Fisheries case (I.C.J. Reports 1951, p. 116) between the United Kingdom and Norwlay, in which it had' endorsed the validity of the system of straight baselines applied by Norway off the Norwegian coast. Early in 1952, Iceland informed the United Kingdom of its intention to issue new fishery regula- tions in accordance with the 1948 Law. Then, on 19 March of that year, Iceland issued Regulations providing for a fishery zone whose outer limit was to be a line drawn 4 miles to seaward of straight baselines traced along the outermost points of the coasts, islands and rocks and across the opening of bays, and prohibiting all 'oreign fishing acti:,ities within that zone. 22. The 1952 Fisheries Regulations met with protests from the United Kingdom, regarding Iceland's claim to a 4-mile limit and certain features of its straight-baseline system, which the United Kingdom considered to go beyond the principles endorsed by the Court in the Fisheries case. After various attempts to resolve the dispute, a modus rilrendi was reached in 1956 under which there was to be no further extension of Iceland's fishery limits pending discussion by the United Nations General Assembly in that year of the Report of the International Law Commission on the Law of' the Sea. Tlhis discussion resulted in the converning at Gcnexa inll 1958 of the first United Nations Conference on the Law of the Sea. 179 23. The 1958 Conference, having failed to reach agreement either on the limit of the territorial sea or on the zone of exclusive fisheries, adopted a resolution requesting the General Assembly to study the advisability of convening a second Law of the Sea Conference specifically to deal with these questions. After the conclusion of the 1958 Conference, Iceland made on I June 1958 a preliminary announcement of its intention to reserve the right of fishing within an area of 12 miles from the baselines , exclusively to Icelandic fishermen, and to extend the fishing zone also by modification of the baselines, and then on 30 June 1958 issued new "Regulations concerning the Fisheries Limits off Iceland". Article 1 of these proclaimed a new 12-mile fishery limit around Iceland drawn from new baselines defined in that Article, and Article 2 prohibited all fishing activities by foreign vessels within the new fishery limit. Article 7 of the lRcguialiolls expressly stated that they were promulgated in accordance with the Law of 1948 concerning Scientific Conservation of the Continen- tal Shelf Fisheries. 24. The United Kingdom did not accept the validity of the new Regulations, and its fishing vessels continued to fish inside the 12-mile limit, with the result that a number of incidents occurred on the fishing grounds. Various attempts were made to settle the dispute by negotiation but the dispute remained unresolved. On 5 May 1959 the Althing passed a resolution on the matter in which, ilter alia, it said: "... the Althing declares that it considers that Iceland has an in- disputable right to fishery limits of 12 miles, that recognition should be obtained of Iceland's right to the entire continental shelf area in co00rolit with tile policy adopted by the Law of 1948, concerning the Scilanlijic Colserlaltion of the Contillental She/lf Fisheries and that fishery limits of less than 12 miles from base-lines around the country are out of the question" (emphasis added). The Resolution thus stressed that the 12-mile limit asserted in the 1958 Regulations was merely a further step in Iceland's progress towards its objective of a fishery zone extending over the whole of the continental shell'f area. 25. After the Second United Nations Conference on the Law of ihe � Sea, in 1960, the United Kingdom and Iceland embarked on a series of negotiations with a view to resolving their differences regarding the .12- mile fishery limits and baselines claimed by Iceland in its 1958 Regula- tions. According to the records of the negotiations which were drawn up by and have been brought to the Court's attention by the'Applicant, the Icelandic representatives in their opening statement called attention to the proposals submitted to the 196() ConlJirclce on the Law of the Sea concerning preferential rights a nd to the widespread support these proposals had received, and asserted that Iceland, as a country in a special situation, "should receive preferential treatment even beyond 12 miles". Fishery conservation measures outside the 12-mile limit, including the reservation of areas for Icelandic fishing, were discussed, but while the United Kingdom representatives recognized that "Iceland is a 'special situation' country", no agreement was reached regarding fisheries outside the 12-mile limit. In these discussions, the United Kingdom insisted upon receiving an assurance concerning the future extension of Iceland's fishery jurisdiction and a compromissory clause was then included in the Exchange of Notes which was agreed upon by the Parties on 11 March 1961. 180 26. The substantive provisions of the settlement, which were set out in the principal Note addressed by the Government of Iceland to the Government of the United Kingdom, were as follows: (i) ihic UnitLed Kingdom would no longer object to a 12-mile fishery zone around Iceland measured from the baselines accepted solely for the purpose of the delimitation of that zone. (2) The United Kingdom accepted for that purpose the baselines set out in the 1958 Regulations subject to the modification of four specified points. (3) For a period of three years from the date of the Exchange of Notes, Iceland would not object to United Kingdom vessels fishing within certain specilied areas and during certain stated months of the year. (4) During that three-year period, however, United Kingdom vessels would not fish within the outer 6 miles of the 12-mile zone in seven specified areas. (5) Iceland "will continue to work for the implementation of the Althing Resolution of May 5, 1959, regarding the extension of fisheries juris- diction around Iceland, but shall give to the United Kingdom Government six months' notice of such extension and, in case of a dispute in relation to such extension, the matter shall, at the request 1,!' either party, be referred to the International Court of Justice". In its Note in reply the United Kingdom emphasized that: "... in view of the exceptional dependence of the Icelandic nation upon coastal fisheries for their livelihood and economic develop- ment, and without prejudice to the rights of the United Kingdom under'international law towards a third party, the contents of Your Excellency's Note are acceptable to the United Kingdom and the settlement of the dispute has been accomplished on the terms stated therein". 27. On 14 July 1971 the Government of Iceland issued a policy state- ment in which, inter alia, it was said: "That the agreements on fisheries jurisdiction with the British and the West Germans be terminated and that a decision be taken, on the extension of fisheries jurisdiction to 50 nautical miles from base lines, and that this extension become effective not later than September Ist, 1972." 28. The United Kingdom replied on 27 September 1971 and placed formally on record its view that "such an extension of the fishery zone around Iceland would have no basis in international law". It then con- troverted Iceland's proposition that the object and purpose of the provi- sion for recoufse to judicial settlement of disputes relating to an extension of fisheries jurisdiction had been fully achieved, and again reserved all its rights under that provision. At the same time, however, the United Kingdom expressed its willingness, without prejudice to its legal position, to enter into further exploratory discussions. In November 1971 the United Kingdom and Iceland held discussions. At these talks, the British delcepalion stated their view that Iceland's objectives could be achieved by a caLch-limitation agreement. In further talks which took piace in January 181 1972 the United Kingdom expressed its readiness to negotiate any arrangements for the limitation of catches that scientific evidence might show to be necessary, and in which any preferential requirements of the' coastal State resulting from its dependence on fisheries would be recog- nized. It further proposed, as an interim measure pending the elaboration of a multilateral arrangement, to limit its annual catch of demersal fish in Icelandic waters to 185,000 tons. The Icelandic Government was not, however, prepared to negotiate further on this basis. . 29. On 15 February 1972 the Althing adopted a Resolution reiterating the fundamental policy of the Icelaidic people that the continental shelf of Iceland and the superjacent waters were within the jurisdiction of Ice- land. While repeating that the provisions of the Exchange of Notes of 1961 no longer constituted an obligation for Iceland, it resolved, inter alia: 1I. That the fishery limits will be extended to 50miles from base-lines around the country, to become effective not later than I September 1972. 3. That efforts to reach a solution of the problems connected with the extension be continued through discussions with the Govern- ments of the United Kingdom and the Federal Republic of Germany. 4. That effective supervision of the fish stocks in the Iceland area be continued in consultation with marine biologists and that the necessary measures be taken for the protection of the fish stocks and specified areas in order to prevent over-fishing ..." in an ai dc-mioiio)ir of 24 February 1972 fcel:and's Minister for Foreign Affairs formally notified the United Kingdom Ambassador in Reykjavik o' his Government's intention to proceed in accordance with this Resolu- tion. 30. On 1[4 March 1972, the United Kingdom in an aide-memioire took note ot Ilhe decision of Iceland to issue new Regulations, reiterated its view that "such an extension of the fishery zone around Iceland would have no basis in international law", and rejected Iceland's contention that the Exchange of Notes was no longer in force. Moreover, formal notice was also given by the United Kingdom that an application would shortly be made to the Court in accordance with the Exchange of Notes; the British Government was however willing to continue discussions with Iceland "in order to agree satisfactory practical arrangements for the period while the case is before the International Court of Justice". On 14 April 1972, the United Kingdom filed in the Registry its Applica- tion bringing ihe present case before the Court. 31. A series of negotiations between representatives of the two coun- tries soon followed and continued throughout May, June and July 1972, in the course of which various proposals for catch-limitation, fishing- effort limitation, area or seasonal restrictions for United Kingdom vessels were discussed, in the hope of arriving at practical arrangements for an interim r6gime pending the settlement of the dispute. By 12 July there was still no agreement on such an interim regime, and the Icelandic delegation announced that new Regulations would be issued on 14 July 1972 which would exclude all foreign vessels from fishing within the 50-mile limit after I September 1972. The United Kingdom delegation replied that, while ready to continue the discussions for an interim regime, they reserved the United Kingdom's rights in areas outside the 12-inile 182 limit and would seek an Order for interim measures of protection from the Court. Tlitl mw Regulations, issued on 14 July 1972, extended [ce- land's fishery limits to 50 miles as from I September 1972 and, by Article 2, prohibited all fishing activities by foreign vessels inside those limits. Consequently, ,il 19 July 1972, the United Kingdom filed its request for the indication of interim measures of protection. 33. Ol I August 1972 the Court made an Order for provisional measures ill t ich, inter alia, it indicated that, pending the Court's final decision in the proceedings, Iceland should refrain from taking any measures to ntforce the Regulations of 14 July 1972 against United King- dom vessels cingaged in fishing outside the 12-mile fishery zone; and that the United Kingdom should limit the annual catch of its vessels in the "Sea Arc:l of' Iceland" to 170,000 tons. That the United Kingdom has complied with the terms of the catch-limitation measure indicated in the Court's Order has not been questioned or disputed. Iceland, on the other hand, notwithstanding the measures indicated by the Court, began to enforce the new Regulations against United Kingdom vessels soon after: they came into effect on 1 September 1972. Moreover, when in August 1972 the United Kingdom made it clear to Iceland that in its view any settlement between the parties of an interim regime should be compatible with the Court's Order, Iceland replied on 30 August that it would not consider the Order to be binding upon it "since the Court has no juris- diction in the matter". 34. By its Judgment of 2 February 1973, the Court found that it had jurisdiction'to entertain the Application and to deal with the merits of the dispute. However, even after the handing down of that Judgment, Iceland persisted in its efforts to enforce the 50-mile limit against I Jnited King- dom vessels and, as appears from the letter of 11 January 1974 addressed to the Court by the Minister for Foreign Affairs of Iceland, mentioned above, it has continued to deny the Court's competence t)o entertain the dispute. 35. Negotiations for an interim arrangement were, however, resumed between the two countries, and were carried on intermittently during 1972 and 1973. In the meantime incidents on the fishing grounds involving British and Icelandic vessels were becoming increasingly frequent, and eventually discussions between the Prime Ministers of Iceland and the United Kingdom in 1973 led to the conclusion of an "Interim Agreement in the Fisheries Dispute" constituted by an Exchange of Notes dated 13 November 1973. 36. The terms of the Agreement were set out in the Icelandic Note, which began by referring to the discussions which lhad taken place and continued: "In these discussions the following arrangements have been worked out for an interim agreement relating to fisheries in the disputed area, pending a settlement of the substantive dispute and without prejudice to the legal position or rights of either Govern- ment in relation thereto, which are based on an estimated annual catch of about 130,000 metric tons by British vessels." The arrangements for the fishing activities of United Kingdom vessels in the disputed area were then set out, followed by paragraph 7 which stipulated: "The agreement will run for twvo years from the present date. Its termination will not affect the legal position of either Government with respect to the substantive dispute." 183 38. The interim agreement of 1973, unlike the 1961 Exchange of Notes, does not describe itself as a "settlement" of the dispute, and, apart from being of limited duration, clearly possesses the character of a provisional arrangement adopted without prejudice to the rights of the Parties, nor does it provide for the waiver of claims by either Party in respect of the matters in dispute. The Applicant has not sought to withdraw or dis- continue its proceedings. The primary duty of the Court is to discharge its judicial function and it ought not therefore to refuse to adjudicate merely because the Parties, while maintaining their legal positions, have entered into an agreement one of the objects of which was to prevent the continuation of incidents. 40. The Court is of the view that there is no incompatibility with its judicial function in making a pronouncement on the rights and duties of the Parties under existing international law which would clearly be capable of having a forward reach; this. does not mean that the Court should declare the law between the Parties as it might be at the date of expiration of the interim agreement, a task beyond the powers of any tribunal..The possibility of the law changing is ever present: but that cannot relieve the Court from its obligation to render a judgment on the basis of the law as it exists at the time of its decision. In any event it cannot be said that the issues now before the Court have become without object; for there is no doubt that the case is one in which "there exists at the time of the adjudication an actual controversy involving a conflict of legal interests between the Parties" (Northern Cameroons, Judgment, I.C.J. Reports 1963, pp. 33-34). 41. Moreover, if the Court were to come to the conclusion that the interim agreement prevented it from rendering judgment, or compelled it to dismiss the Applicant's claim as one without object, the inevitable result would be' t'disc6urage the making of interim arrangements in future disputes with the object of reducing friction and avoiding risk to peace and security. This would run contrary to the purpose enshrined in the provisions of the United Nations Charter relating to the pacific settlement of disputes. It is because of the importance of these considera- tions that the Court has felt it necessary to state at some length its views on the inferences discussed above. The Court concludes that the existence of the interim agreement ought not to lead it to refrain from pronouncing judgment in the case. 49. The Applicant has challenged the Regulations promulgated by the Government of Iceland'on 14 July 1972, and since the Court has to pronounce on this challenge, the ascertainment of the law applicable becomes necessary. As the Court stated in the Fisheries case: "The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard'to other'States depends upon international law." (I.C.J. Reports 1951, p. 132.) The Court will therefore proceed to the determination of the existing rules of international law relevant to the settlement of the present dispute. 184 50. The Geneva Convention on the High Seas of 1958, which was adopted "as generally declaratory of established principles of interna- tional law", defines in Article 1 the term "high seas" as "all parts of the sea that are not included in the territorial sea or in the internal waters of a State". Article 2 then declares that "The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty" and goes on to provide that the freedom of the high seas comprises, inter alia, both for coastal and non-coastal States, freedom of navigation and freedom of fishing. The freedoms of the high seas are however made subject to the consideration that they "shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas". 51. The breadth of the territorial sea was not defined by the 1958 Convention on the Territorial Sea and the Contiguous Zone. It is' true that Article 24 of this Convention limits the contiguous zone to 12 miles "from the baseline friom which the breadth of the territorial sea is measured". At the 1958 Conference, the main differences on the breadth of the territorial sea were limited at the time to disagreements as to what limit, not exceeding 12 miles, was the appropriate one. The question of the breadth of the territorial sea and that of the extent, of the coastal State's fishery jurisdiction were left unsettled at the 1958 Conference. These questions were referred to the Second Conference on the Law of the Sea, held in 1960. Furthermore, the question of the extent of the fisheries jurisdiction of the coastal State, which had constituted a serious obstacle to the reaching of an agreement at the 1958 Conference, became gradually separated from the notion of the territorial sea. This was a development which reflected the increasing importance of fishery re- sources for all States. 52. The 1960 Conference failed by one vote to adopt a text governing the two questions of the breadth of the territorial sea and the extent of fishery rights. However, after that Conference the law evolved through c l,~.i.li ,'f States on the basis of the debates and near-agreements at the Conference. Two concepts have. crystallized as customary law in recent years arising out of the general consensus revealed at that Con- ference. The lirst is the concept of the fishery zone, the area in which a State may claim exclusive fishery jurisdiction independently of its territo- rial sea; the extension of that fishery zone up to a 12-mile limit from the basclines appears now to be generally accepted. The second is the concept of preferential rights of fishing in adjacent waters in favour of the coastal State in a situation of special dependence on its coastal fisheries, this preference operating in regard to other States concerned in the exploita- tion of the same fisheries, and to be implemented in the way indicated in paragraph 57 below. 53. In recent years the question of extending the coastal State's fisheries jurisdiction has come increasingly to the forefront. The Court is aware that a number of States has asserted an extension of fishery limits. The Court is also aware of present endeavours, pursued under the auspices of the United Nations, to achieve in a third Conference on the ILaw of the Sea the further codification and progressive development of this branch of the law, as it is of various proposals and preparatory docu- ments produced in this framework, which must be regarded as manifesta- tions of' the views and opinions of individual States and as vehicles of their aspirations, rather than as expressing principles of existing law. The very fact of convening the third Conference on the Law of the Sea evidences a manifest desire on the part of all States to proceed to the codification of that law on a universal basis, including the question of' fisheries and conservation of the living resources of the sea. Such.a general desire is understandable since the rules of international maritime law have been the product of mutual accommodation, reasonableness and, co-operation. So it was in the past, and so it necessarily is today. In the circumstances, the Court, as a court of law, cannot render judgment sub 185 specie' legisferendae, or anticipate the law before the legislator has laid it down. . . ... 54. The concept of a 12-mile fishery zone, referred to in paragraph 52 above, as a terliurn genus between the territorial sea and the high seas, has been accepted with regard to Iceland in the substantive provisions of the 1961 Exchange of Notes, and the United Kingdom has also applied the same fishery limit to its own coastal waters since 1964; therefore this matter is no longer in dispute between the Parties. At the same time, the concept of preferential rights, a notion that necessarily implies the exis- tence of other legal rights in respect of which that preference operates, has been admitted by the Applicant to be relevant to the solution of the present dispute. Moreover, the Applicant has expressly recognized Iceland's preferential rights in the disputed waters and at the same time has invoked its own historic fishing rights in these same waters, on the ground that reasonable regard must be had to such traditional rights by the coastal State, in accordance with the generally recognized principles embodied in Article 2 of the High Seas Convention. If, as the Court pointed out in its dictum in the Fisheries case, cited in paragraph 49 above, any national delimitation of sea areas, to be opposable to other States, requires evaluation in terms of the existing rules of international law, then it becomes necessary for the Court, in its examination of the Icelandic fisheries Regulations, to take those elements into consideration as well. Equally it has necessarily to take into account the provisions of the Exchange of Notes of 1961 which govern the relations between the Parties with respect to Iceland's fishery limits. The said Exchange of Notes, which was concluded within the framework of the existing pro- visions of the law of the sea, was held by the Court, in its Judgment of 2 February 1973, to be a treaty which is valid and in force. 55. e oep of prefereial rigs for e oaal State in a situation 55. The concept of preferential rights for the coastal State in a situation of special dependence on coastal fisheries originated in proposals sub- mitted by Iceland at the Geneva Conference of 1958. Its delegation drew attention to the problem which would arise when, in spite of adequate fisheries conservation measures, the yield ceased to be sufficient to satisfy the requirements of all those who were interested in fishing in a given area. Iceland contended that in such a case, when a catch-limitation becomes necessary, special consideration should be given to,the coastal State whose population is overwhelmingly dependent on the fishing resources in its adjacent waters. 56. An Icelandic proposal embodying these ideas failed to obtain the majority required, but a resolution was adopted at the 1958 Conference concerning the situation of countries or territories whose people are overwhelmingly dependent upon coastal fisheries for their livelihood or economic development. This resolution, 'after -."recognizing that sUch situations call for exceptional measures befitting particular needs" re- commended that: . .. where, for the purpose of conservation, it becomes necessary to limit the total catch of a stock or stocks of fish in an area of the high seas adjacent to the territorial sea of a coastal State, any other States fishing in that area should collaborate with the coastal' State to secure just treatment of such situation, by establishing agreed measures which shall recognize any preferential requirements of the coastal Stat'e resulting from its deperidence upon' the fishery con- cerned while having regard to the interests of the other States". 186 57. At the Plenary Meetings of the 1960 Conference the concept of preferential rights was embodied in a joint amendment presented by Blrazil, Cuba and Uruguay which was subsequently incorporated by a substantial vote into a joint United States-Canadian proposal concerning a 6-mile territorial sea and an additional 6-mile fishing zone, thus totalling a 12-mile exclusive fishing zone, subject to a phasing-out period. This amendment provided, independently of the exclusive fishing zone, that the coastal State had: . . the faculty of claiming preferential fishing rights in any area of the high seas adjacent to its exclusive fishing zone when it is scientific- ally established that a special situation or condition makes the exploi- tation of the living resources of the high seas in that area of funda- mental importance to the economic development of the coastal State or tile feeding of its population". It also provided that: "A special situation or condition may be deemed to exist when; (a) The fisheries and the economic development of the coastal State or the feeding of its population are so manifestly interrelated that, in consequence, that State is greatly dependent on the living resources of the high seas in the area in respect, of which preferential fishing is being claimed; (h) It becomes necessary to limit the total catch of a stock or stocks' of fish in such areas ..." The contemporary practice of States leads to the conclusion that the preferential rights of the coastal State in a special situation are to be implemented by agreement between the States concerned, either bilateral or multilateral, and, in case of disagreement, through the means for the peaceful settlement of disputes provided for in Article 33 of the Charter of the United Nations. It was in fact an express condition of the amendment referred to above that any other State concerned would have the right to request that a claim made by a coastal State should be tested and deter- mined by a special commission on the basis of scientific criteria and of evidence presented by the coastal State and other States concerned. The commission was to be empowered to determine, for the period of time and under the limitations that it found necessary, the preferential rights of the coastal State, "while having regard to the interests of any other State or States in the exploitation of such stock or stocks of fish". 59. There can be no doubt of the exceptional dependence of Iceland on its fisheries. That exceptional dependence was explicitly recognized by the Applicant in the Exchange of Notes of 11 March 1961, and the Court has also taken judicial notice of such recognition, by declaring that it is "necessary to bear in mind the exceptional dependence of the Icelandic nation upon coastal fisheries for its livelihood and economic develop- ment" (I.C.J. Reports 1972, p. 16, para. 23). 60. The preferential rights of the coastal State come into play only at the moment when an intensification in the exploitation of fishery resources makes it imperative to introduce some system of catch-limitation and sharing of those resources, to preserve the fish stocks in the interests of their rational and economic exploitation. This situation appears to have been reached in the present case. In regard to the two main demersal species concerned--cod and haddock-the Applicant has shown itself aware of the need for a catch-limitation which has become indispensable in view of the establishment of catch-limitations in other regions of the North Atlantic. If a system of catch-limitation were not established in the Icelandic area, the fishing effort displaced from those other regions might well be directed towards the unprotected grounds in that area. 187 61. The Icelandic regulations challenged before the Court have been issued and applied by the Icelandic authorities as a claim to exclusive rights thus going beyond the concept of preferential rights. Article 2 of the Icelandic Regulations of 14 July 1972 states: "Within the fishery limits all fishing activities by foreign vessels shall be prohibited in accordance with the provisions of Law No. 33 of 19 June 1922, concerning Fishing inside the Fishery Limits." Article i of the 1922 Law provides: "Only Icelandic citizens may engage in lishing in the territorial waters of Iceland, and only Icelandic boats or siups may be used for such fishing." The language of the relevant government regulations indicates that their object is to establish an exclusive fishery zone, in which all fishing by vessels registered in other States, including the United Kingdom, would be prohibited. The mode of implementation of the regulations, carried out by Icelandic'govern- mental authorities vis-a-vis United Kingdom fishing vessels, before the 1973 interim agreement, and despite the Court's interim measures, confirms this interpretation. 62. The- concept of preferential rights is not compatible with' the exclusion of all fishing activities of other States. A coastal State entitled to prclil'rntial rights is not free, unilaterally and according to its own un- controlled discretion, to determine the extent of those rights. The charac- terization of the coastal State's rights as preferential implies a certain priority, but cannot imply the extinction of the concurrent rights of other States, and particularly of a State which, like the Applicant, has for many years been engaged in fishing in the waters in question, such fishing activity being important to the economy of the country concerned. The coastal State has to take into account and pay regard to the position of such other States, particularly when they have esthblished an' e'6nomic dependence on the same fishing grounds. Accordingly, the fact that Iceland is entitled to claim preferential rights does not suffice to justify its claim unilaterally to exclude the Applicant's fishing vessels from all fishing activity in the waters beyond the limits agreed to in the 1961 Exchange of N otes. 63. In this case, the Applicant has pointed out that its vessels have been fishing in Icelandic waters for centuries and that they have done'so in a manner comparable with their present activities for upwards of 50 years. Published statistics indicate that from 1920 onwards, fishing of demersal species by United Kingdom vessels in the disputed area has taken place on a continuous basis from year to year, and that, except for the period of the Second World War, the total catch of those vessels has been remark- ably steady. Similar statistics indicate that the waters in question con- stitute the most important of the Applicant's distant-water fishing grounds for demersal species. '64. The Applicant further states that in view of the present situation of fisheries in the North Atlantic, which has demanded the establishment of agreed catch-limitations of cod and haddock in various areas, it would not be possible for the fishing effort of United Kingdom vessels displaced from the Icelandic area to be diverted at economic levels to other fishing grounds in the North Atlantic. Given the lack of alternative fishing opportunity, it is further 'contended, the exclusion of British fishing vessels from the Icelandic area would have very serious adverse con- scqucnicc, W\ilhl immediate results for the affected vessels and with damage extending over a wide range of supporting and related industries. Lt is pointed out in particular that wide-spread unemployment would be caused among all sections of the British fishing industry and in ancillary industries and that certain ports-Hull, Grimsby and Fleetwood- specially reliant on fishing in the Icelandic area, would be seriously affected. 188 65. Iceland has for its part admitted the existence of the Applicant's historic and special interests in the fishing in the disputed waters. The Exchange of Notes as a whole and in particular its final provision re- quiring Iceland to give advance notice to the United Kingdom of any extension of its fishery limits impliedly acknowledged the existence of United Kingdom fishery interests- inf the waters adjacent to the 12-mile limit. The discussions which have taken place between"the two countries also imply an acknowledgement by Iceland of the existence of such 67. The provisions of the Icelandic Regulations of 14 July 1972 and the manner of their implementation disregard the fishing rights of the Applicant. Iceland's unilateral action thus constitutes an infringement of the principle enshrined in Article 2 of the 1958 Geneva Convention on the High Seas which requires that all States, including coastal States, in exercising their freedom of fishing, pay reasonable regard to the interests of other States. It also disregards the rights of the Applicant as they result from the Exchange of Notes of 1961. The Applicant is therefore justified in asking the Court to give all necessary protection to its own rights, while at the same time agreeing to recognize Iceland's preferential posi- tion. Accordingly, the Court is bound to conclude that the Icelandic Regulations of 14 July 1972 establishing a zone of exclusive fisheries jurisdiction extending to 50 nautical miles from baselines around the coast of Iceland, are not opposable-to the United Kingdom, and the latter is under no obligation to accept the unilateral termination by Iceland of tlniltcl Kingdom fishery rights in the area. 68. The findings stated by the Court in the preceding paragraphs suffice to provide a basis for the decision of the present case, namely: that Iceland's extension of its exclusive fishery jurisdiction beyond 12 miles is not opposable to the United Kingdom; that Iceland may on the other hand claim preferential rights in the distribution of fishery resources in the adjacent waters; that the United Kingdom also has established rights with respect to the fishery resources in question; and that the prin- ciple of reasonable regard for the interests of other States enshrined in Article 2 of the Geneva Convention on the High Seas of 1958 requires Iceland and the United Kingdom to have due regard to each other's interests, and to the interests of other States, in those resources. 69. It follows from the reasoning of the Court. in this case that in order to reach an equitable solution of the present dispute it is necessary that the preferential fishing rights of Iceland, as a State specially depen- dent on coastal fisheries, be reconciled with the traditional fishing rights of the Applicant. Such a reconciliation cannot be based, however, on a phasing-out of the Applicant's fishing, as was the case in the 1961 Ex- change of Notes in respect of the 12-mile fishery zone. In that zone, Iceland was to exercise exclusive fishery rights while not objecting to continued fishing by the Applicant's vessels during a phasing-out period, In adjacent waters outside that zone, however, a similar extinction of rights of other fishing States, particularly when such rights result from a situation of economic dependence and long-term reliance on certain fishing grounds, would not be compatible with the notion of preferential rights as it was recognized at the Geneva Conferences of 1958 and 1960, nor would it be equitable. At the 1960 Conference, the concept of prefer- ential rights of coastal States in a special situation was recognized in the joint amendment referred to in paragraph 57 above, under such limita- tions and to such extent as is found "necessary by reason of the depen- dence of the coastal State on the stock or stocks of fish, while having regard to the interests of any other State or States in the exploitation of such stock or stocks of fish". The reference to the interests of other States in the exploitation of the same stocks clearly indicates that the preferential rights of the coastal State and the established rights of other States were considered as, in principle, continuing to co-exist. 189 70. This is not to say that the preferential rights of a coastal State in a special situation are a static concept, in the sense that the degree of the coastal State's preference is to be considered as fixed for ever at some given moment. On the contrary, the preferential rights are a function of the exceptional dependence of such a coastal State on the fisheries in adjacent waters and may, therefore, vary as the extent of that dependence changes. Furthermore, as was expressly recognized in the 1961 Exchange of Notes, a coastal State's exceptional dependence on fisheries may relate not only to the livelihood of its people but to its economic development. In each case, it is essentially a matter of appraising the dependence of the coastal State on the fisheries in question in relation to that of the other State concerned and of reconciling them in as equitable a manner as is possible. 71. In view of the Court's finding (paragraph 67 above) that the Icelandic Regulations of 14 July 1972 are not opposable to the United Kingdom for the reasons which have been stated, it follows that the Government of Iceland is not in law entitled unilaterally to exclude United Kingdom fishing vessels from sea areas to seaward of the limits agreed to in the 1961 Exchange of Notes or unilaterally to impose restric- tions on their activities in such areas. But the matter does not end there; as the Court has indicated, Iceland is, in view of its special situation, entitled to preferential rights in respect of the fish stocks of the waters adjacent to its coasts. Due recognition must be given to the rights of both Parties, namely the rights of the United Kingdom to fish in the waters in dispute, and the preferential rights of Iceland. Neither right is an absolute one: the preferential rights of a coastal State are limited according to the extent of its special dependence on the fisheries and by its obligation to take account of the rights of other States and the needs of conservation; the established rights of other fishing States are in turn limited by reason of the coastal State's special dependence on the fisheries and its own obligation to take account of the rights of other States, including the coastal State, and of the needs of conservation. 72. It follows that even if the Court holds that Iceland's extension of its fishery limits is not opposable to the Applicant, this does not mean that the Applicant is under no obligation to Iceland with respect to fishing in the disputed waters in the 12-mile to 50-mile zone. On the contrary, both States have an obligation to take full account of each other.s rights and of any fishery conservation measures the necessity of which is shown to exist in those waters. It is one of the advances in maritime international law, resulting from the intensification of fishing, that the former laissez- faire treatment of the living resources of the sea in the high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all. Conse- quently, both Parties have the obligation to keep under review the fishery resources in the disputed waters and to examine together, in the light of scientific and other available information, the measures required for the conservation and development, and equitable exploitation, of those resources, taking into account any international agreement in force between them, such as the North-East Atlantic Fisheries Convention of 24 January 1959, as well as such other agreements as may be reached in the matter in the course of further negotiation. 73.' The most appropriate method for the solution of the dispute is clearly that of negotiation. Its objective should be the delimitation of the rights and interests of the Parties, the preferential rights of the coastal State on the one hand and the rights of the Applicant on the 'other, to balance and regulate equitably questions such as those of catch-limita- tion, share allocations and "related restrictions concerning areas closed to fishing, number and type of vessels allowed and forms of control of the agreed provisions" 190 75. The obligation to negotiate thus flows from the very nature of the respective rights of the Parties; to direct them to negotiate is therefore a proper exercise of the judicial function in this case. This also corresponds to the Principles and provisions of the Charter of the United Nations concerning peaceful settlement of disputes. As the Court stated in the North Sea Continental Shelf cases: "... this obligation merely constitutes a special application of.a principle which underlies all international relations, and which is moreover recognized in Article 33 of the Charter of the United Nations a's one of the methods for the peaceful settlement of interna- tional disputes" (I.C.J. Reports 1969, p. 47, para. 86). 78. In the fresh negotiations which are to take place on the basis of the present Judgment, the Parties will have the benefit of the above appraisal ,4' their respective rights, and of certain guidelines defining their scope. 'The task before them will be to conduct their negotiations on the basis lohit each must in good faith pay reasonable regard to the legal rights of ow other in the waters around Iceland outside the 12-mile limit, thus Il'inging about an equitable apportionment of the fishing resources based ,,n the facts of the particular situation, and having regard to the interests o' other States which have established fishing rights in the area. It is not a it.lter of finding simply an equitable solution, but an equitable solution dlcived from the applicable law. As the Court stated in the North Sea Continental Shelf cases: :'... it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles" (I.C.J. Reports 1969, p. 47, para. 85). 79. For these reasons, THE COURT, . - : : : : by ten votes to four, (1) finds that the Regulations concerning the Fishery Limits off Iceland (Regluger6 um fiskveibilandhelgi Islands) promulgated by the Government of Iceland on 14 July 1972 and constituting a unilateral extension of the exclusive fishing rights of Iceland to 50 nautical miles from the baselines specified therein are not opposable to the Government of the United Kingdom; (2) finds that, in consequence, the Government of Iceland is not entitled unilaterally to exclude United Kingdom fishing vessels from areas between the fishery limits agreed to in the Exchange of Notos of Il March 1961 and the limits specified in the Icelandic Regulations of 14 July 1972, or unilaterally to impose restrictions on the activities of those vessels in such areas; by ten votes to four, (3) holds that the Government of Iceland and the Government of the United Kingdom are under mutual obligations to undertake negotia- tions in good faith for the equitable solution of their differences concerning their respective fishery rights in the areas specified in subparagraph 2; 191 (4) holds that in these negotiations the Parties are to take into account, inter alia: (a) that in the distribution of the fishing resources in the areas specified in subparagraph 2 Iceland is entitled to a preferential share to the extent of the special dependence of its people upon the fisheries in the seas around its coasts for their livelihood and economic development; (b) that by reason of its fishing activities in the areas specified in subparagraph 2, the United Kingdom also has established rights in the fishery resources of the said areas on which elements of its people depend for their livelihood and economic well-being; (c) the obligation to pay due regard to the interests of other States in the conservation and equitable exploitation of these resources; (d) that the above-mentioned rights of Iceland and of the United Kingdom should each be given effect to the extent compatible with the conservation and development of the fishery resources in the areas specified in subparagraph 2 and with the interests of other States in their conservation and equitable exploitation; (e) their obligation to keep under review those resources and to examine together, in the light of scientific and other available information, such measures as may be required for the conser- vation and development, and equitable exploitation, of those resources, making use of the machinery established by the North-East Atlantic Fisheries Convention or such other means as may be agreed upon as a result of international negotiations. Done in English, and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-fifth day of July, one thousand nine hundred and seventy-four, in three copies, of which one will be placed in the archives of the Court and the others transmitted to the Government of the United Kingdom of Great Britain and Northern Ireland and to the Government of the Republic of Iceland respectively. The four dissenting judges Stressed Ain-their separate- opinions that a more definite answer was necessary concerning whether Iceland's claim to a 50-mile exclusive zone was contrary to international law, and emphasized that the issue of whether Iceland could regulate conservation of the stocks in the waters around Iceland was beyond the competency of the court. 192 B. U. S. Law The Law of the Sea and the Fisheries Management Conservation Act To an extent, the decision in the Fisheries Jurisdiction Case reflects the atmosphere of change and uncertainty surrounding the jurisdiction of coastal nations. In considering the Fisheries Conservation and Management Act of 1976, the international law of coastal state jurisdiction was examined, and the Senate Commerce Committee concluded that "the world community is ready to accept a 200-mile limit" with respect to fishery regulation zones. THE FISHERIES CONSERVATION AND MANAGEMENT ACT SENATE COMMERCE COMMITTEE REPORT 94th Cong., 1st Sess. The United States first touched off the most recent series of uni- laterial dechlarations of fisheries jurisdiction beyond the territorial sea. President Harry S. Truman, in his "Presidlenti; l Proclamation With Respect to Coastal Fisheries in Certain Areas of the High Seas," delivered September 28, 1945, set the stage, as follows: In view of the pressing need for conservation and protec- tion of fisheries resources. the Government of the United States of America regalds it as proper to establish conserva- tion zones inl those areas of the high seas contiguous to the coast of the United States wherein fishing activities have been olr in the future may be developed and maintained on a sub- stantial scale * * * and all fishing activities in such zones shall be subject to regulation and control. * * The right of any State to establish conservation zones off its shores * * * is concede(l. * * * Tile cllaracter as high seas of areas where such conservation zones are established and the right to their free and unimpeded navigation are in no way thus affected. * * * The motivating purpose behind President Truman's proclamation was coiservation. The proclanlation represented a response to the incursion of Japallese fisherllmenl into the Alaska Bristol Bay red salmon fishely. Chile responded quickly to the Trunlan Fisheries Proclamationll by declaring its own jurisdiction over the seas adjacent to its coast to 'a distance of 200 miles. The Truman Fisheries roclallmation was never, however, imple- mented into law. According to the "D)igest of Internationai Law," the proclamation per se asserts no claim to exclusive fisheries juris- diction over high seas fishing areas off the coast of the United States. Instead, it is stated, the purpose of the fisheries proclamation was to establish, as U.S. policy, that where fishing activities were developed or Imatilntained jointly by the United States and' other nations, con- servation zones would be established-but only pursuant to agreement between the United States and sucI other nations. The domestic implemeltation of this proclamation has been mainly through State Department attempts to negotiate international agreemlnts to protect certain species of fish, whiclh were threatened by the Japanlese, most notably Ilhe halhnon. Since that tjile, e(xcept for a treaty with Canada on sockeye sallon concluded in 1 :0(. t le United States has negotiated 193 a] I of thle 22 lishery treaties p~resently in existence (See ajpl. T.). Also. -Since I hust tie, appro1-Xillately 36 'nat ions havel dec"laim I exclu4iy Indem'-a~t ;onu Treatie8 In 1 958 (ihe international commlunity niegotiated 4 *~jjarate. treatie,, rpgardingr the law of the sea. These. treaties r ~plesentcf 11 attempt to codify tinviertaiii international rules.~ The principal objective of the 1960 nictirig was to resolve the. issue of the'limits of territorial sea oi- fisl eries j~i(l~,iat~ion. The question of fisheries proved to be the- point oWhichob nations could not agree, and no specific limits wvere agreed upon. At, that time, the practice of most nations supported a 8-mile territormial linit wvith a 12-mile fisheries zone. (Nowv, however, the practice. of numerous nations reflects support for a 12 mile territorial withit 2(1(200-Iriji fisheries zone.) Followillg tite 1958 and 1960 sessions of the first Conference on Law of the sea, tliere has bieen a trenid away from a comipletely I assez-faire policy for fishing on the high seas, particularly in coastal aesot sidlC tiet(rioin sea. This tr-end was recognizced in the Convention on1 Fishing :111d (Xiservation of the Living Resources of the High Seas wvIlchh was Signed by the delegates attenlding the Conlferencev. Article I of the conveirtioni state thatethe right of all nations- to fish on lie high seas isa Ttafidnhineital Ifreedom. Bit Ithe cb11venitioll also recog- nizves I hy spwiai'l right of coastal nation to uni1laterally adopt conlser- vation imeasures off its shores, even in areas of the, high seas, under certain, y, d rather Strait,, condcit ions. The extent, of coastal nation fishery maunagenment. aut-hority was the triost troublesome issue dis- ('11-sed at.ite 1 and 11060 meet ilgs. Broad fishery jurisdiction was not Appr oved, the Convention on Fishing representing th e only coni- l)romi1se achie vable. at the time. Nonetheless, the beginnings of a trend ,were evident. F ollowi~ mc thre ConferenerS, t here were new, and renpxed in~tern~ationial disputes over fis] ing rights: A "lobster war' bl-cle 61.t betWeen) FrUnce and Brazil over lobster resources on the lifayiiaji Continental Shelf TUhe "tuna, watr" between the T'nited States and severall Latin Am erican coutmilies continued over- the tunia, which occ-asirnally roomn into anti through te2)-iezoe lni(lby these Central and Smnth Airneri- can countries. The, "'cod war" betweenl rvellind and Great Britain heated up1 (, casillg great s;train -within the. Nor-th Atlantic Treaty O)rgani zat ion. More noat ions claimed ex~clusive fi sherv zon es beyond the 12-mile, limit. In 1907, the. Unit~ed Nations tiecided-to convene- a, now Law of the Sea Conference. The. recent. International Court of Justice decision (197:3), in a con- foevnly giiigwing out, of the "cod wvar is particularlym instructive, in dietiolls. W\hile the Court. said that Teeland -ould] riot un1ilaterally ex- Chide British] vessels fromt its claimned 50-mile, fishery conservation zone, it didlstate: Stat e. practice on the subject of fisheries reveals air increas- ing and widespread acceptance. for the concept of preferen- tial. righlts for coastal tStates, particularly; in favour of couri- tries or territories in a situation of special depeidndenc on coastal fisheries. ** 194 The International Court went on to say that the content and scope of this lreferelltial right must be worked out in negotiation with other countries fishing in coastal areas. 'T'le Couil also nphllasized that: [Tlhe preferential rights of the coastal State colme into play only at the moment when an intensification in the exploi- tation of fishery resources makes it imperative to introduce some system of catch-linitation and sharing of those re- sources, to preserve the fish stocks in the interests of their rational and economic exploitation. * * * International law with regard to the geographical extent of coastal nation fishery jurisdiction is in a state of flux. Solle legal experts still c'laillnthat the international law limit on coastal nation fishery jurisdiction is 12 nautical miles, but only because they do not feel that enough nations, have adopted the 200-mile limit. Few legal experts disliute, however, the fact that tile trend is in that direction, and al- most all scientists agree on the precalious biological stat us of many of the world's fish stocks. The Third Law of the Sea Conference, now unlderway, will, in all likelihood, agree to a coastal fishery jurisdiction limit of 200 nautical miles. The Third Law of the Sea Conference, and the Po.s;tio. of the Ulitcd State8 In 19(68, the United Nations resolved to make yet another attempt at develolping a consensus on the law of tlhe sea. On June 20. 197.1, after several years of preplalatory meetings, the .United Nations con- vented the Third Law of the Sea Conference in Caracas, Venezuela. A second session convened in 1975 in Geneva. Switzerland. A third session will convene in New York City on 'March 29, 1976. One of the most contentious issues before the Conference is the extent of jurisdicltionf coastal nations (can exercise over fisheries off their shores. As a, matter of policy, for the last several years the United has adaanntly opposed any extension of fishery jurisdiction beyond 12 mliles. The executive branch has generally supported the priliciple of freedom of the seas as being in tile best interest of tlhe Nation. This attitude is attributable to strong naval interests, the need to import lare :amounts of enegy and raw;l materials by wa;lter, and long dis- t.lance fisilg interests, notably tuna anld shrimp. Strictly coastal fish- ing interests have taken a back seat to global interests. Consequently, thle U.S. position was, until quite recently, the so-called "species" ap- proach, designed to assert no geographical fisheries jurisdiction. Under this proposal, coastal nations would be given regulatory jurisdiction ov'er coast al and anadromnous species of fish, together with preferential rights to as much fish as they can catch. The actual limit of coastal jurisdiction over these species would be determined by the species' location, not by any arbitrary geographical line. In tlose instances where a coastal nation is not harvesting all of the fish that can be taken, based on maximum sustainable yield, all nations would be per- mitted to fish for tile surplus, after payment of an administrative fee. Migratory species would be placed under management by an inter- national body. The U.S. "species approach" position generated litile sulpport alIlong the internal ional conlllmnity. Accordingly, in 1974, the IT nited States 195 efluiat(ld a niew position. On July 11. 197-1, Ambassador John R. Steve.ionll. Speciall Rlprsentative Rof tlle l'residleint 1and1( I'.S. Repre- se ll:l livl( to) tll Ialaw of tle Sea ('ollferetle state( tlle new position aIs fIllow. on Jily 11I, 1974:- In the course of listening to and reading the statements iliade during the last 2 weeks, I have been struck by the very large measure of agreement on the gel;,ral outlines of an overall settlenment. Most delegations that have spoken have endorsed or indicated a willingness to accept, under certain (ond it ionls and as part of a package settlemellnt. a 1maximum liiiuit of 12 miles for the territorial sea and of 200 nliles for an economic zone, an(t anl international reginre for the deep sea bed in the area beyond national jurisdiction. T'llte nited States has for a number of years indicated its flexibility on the limits of coastal state resonurce jurisdiction. *We have( stressed that. the content of the legral regime within stlhll coastal state jurisditio sl or i more iortant than the 1 inits of sliuc jurisdiction. ,ccordingly, we are prepared to ac- cept, and indeed we would welcome general agreement on a 12 mile outer limit for the territorial sea and a 200-mile outer limit for the economic zone provided that it is part of an acceptable comprehensive packlage including a satisfactory regilice within and beyond the economic zone and provision for unimpeded transit of straits used in international navigation. Ambassador Stevenson went on to state further that: For fisheries, to the extent that the coastal nation does not fully utilize a fishery resource, we'contellplate coastal., nation diuty to permit foreign fishing under reasonable coastal state regulations. These regulations would include c.onselrvation measures and provisions for harvesting by coastal state vessels up to their capacity andl would include the lpaymient of a reasonable license fee bly foreign fishermen. We also contemplated duty for the coastal state and all other fishing states to cooperate with each other in formulating equitable international and regional conservation and alloca- tion regulations for highly migratory species, taking into ac- count the nnique migratory pattern of these species within anIld without the zones. The thrust of this new position is that the United States is ready to accep)t, as plart of an acceptable overall treaty package, the concept of 2o0 miles for fishery management jurisdiction. However, acceptanee, would be. conditioned upon satisfactory resolution of a number of issues of lirgh importance to the U.S. delegation. In effect, the United States has conceded that the 200-mile limit will be accepted by the law of the Sea Conference and has turned its attention to defining the relationships between the coastal notions and the international com- munity within that 200-mile limit. 196 FISHERIES CONSERVATION AND MANAGEMENT ACT OF 1976 16 U.S.C.A. � 1801. Findings, purposes and policy (a) Findings-The Congress finds and declares the following: (1) The fish off the coasts bf the United States, the highly migra- tory species of the high seas, the species which dwell on or in the Continental Shelf appertaining to the United States, and the anadromous species which spawn in United States rivers or estuaries, constitute valuable and renewable natural resources. These fishery resources contribute to the food supply, economy, and health of the Nation and provide recreational opportunities. (2) As a consequence of increased fishing pressure and because of the Inadequacy of fishery conservation and management prae- tices and controls (A) certain stocks of such fish have been over- fished to the point where their survival is threatened, and (B) other such stocks have been so substantially reduced in number that they could become similarly threatened. (3) Commercial and recreational fishing constitutes a major source of employment and contributes significantly to the economy of the Nation. Many coastal areas are dependent upon fishing and '? related activities, and their eeonomies, hakve, beelt) badSi. by the overfishing of fishery resources at an ever-ncreasin t -'A over the past decade. The activities of 'massive' foreign' fleets in Waters adjacent to such coastal areas have eot lttb. :. to such -dama ,.ge; interfered with domestic fishing ' J:';.,eusd 'distruction:.of the .fishing gear of United, States fisher'iHa .i:' ,,; ~' (4) I nteni4tional filshirry agreements have not been effecl(ve zi ' .preventlng. t' termiiating the overfishing of these valuable fis h'io ;'..'resources., 'The:l'ij:danfieirthat irrevefsible' effects from oVer.t4: .;':lng will take- place beforet an effective ;international agreement. e ,;:hflslhery mlanagBmeint jurlsdictio':w can' bei' negotiated, signedi 'i :.-;fied, and ilmplemeite.'- " ,, , - : - .,~?.:[f * u :-ie} F hiae. rerceXpare'!firnite biut! Yrenewable.ib pfplaf6d i '' -ound managenmient before otverfishing has'caused irreversible efect*f the fisheries can be'c&onsqrved and maintained So as to pro6iev optimum yields' n'a continuing basis. ' 'I ,�i (6) 'A national program for the conservation and management of the fishery resources of the United States is necessary to-< ,vent overfishing, to rebuild overfished stocks, to insure conserliv tion, and to realize the full potential of the Nation's fisherys sources. - A.~.f (7) A national program for the development of fisheries whCih: are underutilized or not utilized by United States fishermen, inclu-!: ing bottom fish off Alaska, is necessary to assure that our citlden's benefit from the employment, food supply, and revenue which could be generated thereby. (b) Puposes.-It is therefore declared to be the purposes of the Con- gress in this chapter- (1) to take immediate action to conserve and manage the fishery resources found off the coasts of the United States, and thj,. anadromous species and Continental Shelf fishery resources of t'th. United States, by establishing (A) a fishery conservation zone with- in which the Un)ted States will assume exclusive fishery manage- ment authority over all fish, except highly migratory species, and (B) exclusive fishery management authority beyond such zone over such anadromous species and Continental Shelf fishery resources;. (2) to support and'encourage the implementation and enforce- ment of international fishery agreements for the conservation and management of highly migratory species, and to encourage the negotiation and. implementation of additional such agreements. p necessary; 197 (3) to promote domestic commercial and recreational fishing under sound conservation and management principles; :, (4) to provide for the preparation and implementation, i'n accordance with national standards, of fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from each fishery; (5) to establish Regional Fishery Management Councils to pre- pare, monitor, and revise such plans under circumstances (A) which will l.enable the States,, the fishing industry, consumer and environmental organizations, and other ihterested persons to par- ticipate in, and advise on, the establishment and administration of such plans,. and (B) which take into account the social and economic needs of the States; and (6) to encourage the development Of fisheries which are cur- rently underutilized or not utilized by United States fishermen, including bottom fish off Alaska. (c) Policy.-It is further declared to be the policy of the Congress in this chapter- (1) to maintain -without change the existing territorial or other ocean jurisdiction of the United States for all purposes other than the conservation and management of fishery resources, as provided for in this chapter; (2) to authorize no impediment. to, or interference with,, recog nized legitimate uses of the high seas, expept as necessary for the. conservation and management of fish'ry resources, as provided: for in this chapter .. (3) to assure that the national fishery coansryatfion and 'mIn- agement program utilizes, and is 'based uppon, tlie Abst scientific- information available;, invoives, and- it responsivg;t 'the needs O,', interested and affected'"States and citizens; r~idmotes 'efficiency; draws upon Federal, State, and academie capabilities in carrying dut research, administration, management, and,.enforement; and iS' workable and effectivei - . (4) to perrmit foreign fishing consiste'nt witlithp :rovilione of tiis qhapter; and: ' - - ..... � (6) to support an&' OW4i a5ge-'coptind 1 etly talted States efforts to obtain an internationally aceWptable treaty, at the Third United Nations Conferience on thel aw'lof the'Sea, which provides for effective conservation and management of fishe'ry resources, � 1802. Definitions As used in this chapter, unless the context otherwise requires- (1) The term "anadromous species" means species of fish which spawn in fresh or estuarine waters of the United,States and which migrate to ocean waters. (2) The term "conservation and management" refers to all of the rules, regulations,. conditions, methods, and other measures (A) which are required to rebuild, restore, or maintain, and which are useful in rebuilding, restoring, or maintaining, any fishery resource and the marine environment; and (B) which are designed to as- �sure that- (i) a supply of food and other products may be taken, and that recreational benefits may be obtained, on a continuing basis; (ii) irreversible or long-term adverse effects on fishery re- sources and the marine environment are avoided; and (iii) there will be a multiplicity of options available with respect to future uses of these resources. (3) The term "Continental Shelf" means the seabed and subsoil of the submarine areas adjacent to the coast, but outside the area .of the territorial sea, of the United States, to a depth of 200 meters or, beyond that limit, to where the depth of the superJacent waters admits of the exploitation of the natural resources of such areas. * (4) The term "Continental Shelf fishery resources" means the following : . . . . ,. - ,,., . 5_,. ,,, it . .;. ',' . � - COLENTEABATA Bamboo Coral-Acanella spp.; Black Coral-Antipathes spp.; Gold Coral-Callogorgia spp.; Precious Red Coral-Corallium spp.; ' Bamboo Coral-Keratoilis spp,; and .* Gold Coral-Parazoanthus spp. 198 CAUSTACEA - :; i? Tanner Crab-2-Chlonoeeetes tanneri; Tanner Crab-Chionoecetes opilio; Tanner Crab-Chionoecetes angulatus; . .- Tanner Crab--Chionioecetea .bairdi; King Crab-Paralithodes camt.ehatica; ., - , Ii King Crab-Paralithodes Platypus; King Crab-Paraithodea brevlpe8i; Lobster --Homarus americanus .. Dungeness Crab-Cancer magister; ' California King Crab--Paralithodes oaliforniensis; California King Crab--Paralithodes rathbuni; Golden King Crab-Lithodes aequisplnus; . Northern Stone Crab-Lithodes maja; Stone Crab-Menilppe mercenaria; and Deep-sea Red Crab--Geryon quinquedens. ]k[OLLUSKS Red Abalone-Haliotis rufescens; Pink Abalone-Haliotis corrugata; Japanese Abalone-Haliotis kamtschatkana; Queen Conch-Strombus gigas; Surf Clam-Spisula solidissima; and Ocean Quahog-Artica islandlea. SPNonES -: Glove Sponge-Hippiospongia canaliculata; Sheepswool Sponge-Hippiospongia lachne; Grass Sponge-Spongia graminea; and Yellow Sponge-Spongia barbera. If the Secretary determines, after consultation with the Secretary of State, that living organisms of any other sedentary species are, at the harvestable stage, either- (A) immobile on or under the seabed, or (B) unable to move except in constant physical contact with the seabed or subsoil, of the Continental Shelf which appertains to the United States, and publishes notice of such determination in the Federal Register, such sedentary species shall be considered to be added to the fore- going list and included in .such term for purposes of this chapter. (5) The term "Council" means any Regional Fishery Manage- ment Council established under section 1852 of this title. (6) The term "fish" means finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals, birds, and highly migratory species. (7) The term "fishery" means-- (A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and (B) any fishing for such stocks. (8) The term "fishery conservation zone" means the fishery conservation zone established by section 1811 of this title. (9) The term "fishery resource" means any fishery, any stock of fish, any species of fish, and any habitat of fish. (10) The term "fishing" means- (A) the catching, taking, or halrvesting of fish; (B) the attempted catching, taking, or harvesting of fish; (C) any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or (D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A) through (C). Such term does not include any scientific research activity which is conducted by a scientific research vessel. (11) The term "fishing vessel" means any vessel, boat, ship; or other craft which is used for, equipped to be used for, or of a type which is normally used foir- (A) fishing; or (B) aiding or assisting One or more vessels' at sea in 'the performance of any activity relating to fishing, including, but not limited to, preparation, supply, storagei refrigerationi trails- portation, or. proeessing.,, - 199 (12) The term "foreign fishing" means fishing :by a vessel other 0 than a vessel of the United States. (13) The term "high seas" means all waters' beyond the :ter ritorial sea of the United States and beyond any foreign nation's territorial sea, to the extent that such sea is recognized by the United States . (14) The term ;'hlghly migratory species" means species ,e i tuna which, in the course of their life cycle, spawn and migrate over great distances in waters of the ocean, (15) The term "international fishery agreement" means any bilateral or multilateral treaty, convention, or agreement which relates to fishing and to which the United States is a party. (16) The term "Marine Fisheries Commission" means the Atlantic States Marine Fisheries Commission, the Gulf States Marine Fisheries Commission, or the Pacific Marine Fisheries Commission. (17) The term "national standards" means the national stand- ards for fishery conservation and management set forth in sec- tion 1851 of this title. (18) The term "optimum", with respect to the yleld.from a fish- ery, means the amount of fish- (A) which will provide the greatest overall benefit to the Nation, with particular reference to food production and recrea- tional opportunities; and (B) which is prescribed as such on the basis of' the maxi- mum sustainable yield from such fishery, as modified by any, relevant economic, social, or ecological-factor. (19) -The term "person" means any individual' (whether or not a citizen or national of the United States), any corporation, partner- ship, association, or other entity (whether or not organized or existing' under the laws of any State), and any Federal, State, local, or'foreign government or any entity of any such government. (20) The term "Secretary" means the Secretary of Commerce or his designee. (21) The term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Ameri- can Samoa, the Virgin Islands, Guam, and any other Common- wealth, territory, or possession of the United States. (22) The term "stock of fish" means a species, subspecies, geo- graphical grouping, or other category of fish capable of manage- ment as a unit. (23) The term "treaty" means any international fishery agree- ment which is a treaty within the meaning of section 2 of article II of the Constitution. (24) The term "United States", when used in a geographical context, means all the States thereof. (25) The term "vessel of the United States" means any vessel documented under the laws of the United States or registered under the laws of any State. SUBCHAPTER I-FISHERY MANAGEMENT AUTHORITY !' OF THE UNITED STATES, 1811. Flshery conservation zone : =.. - There is establishedh 'zone contlgouso t' the te8rrtiei mal sa oD.-th United States to'bl khtwfli S' :the fisherr cbOlservationl zone.' -'The- ink/ei; boundary of the 'fisheri conservation zdne Is a line coterminous with the -seaward boundary. of. each of the' coastal States, and the outer boundary of such zone is a line drawdf in such a manner that each point on. it is 200 nautical miles from the baseline from which th territorial sea is measured., 200 � 1812. Exclusive fishery management authority The United States shall exercise exclusive fishery management author- ity, in the manner provided for in this chapter, over the following: (1) All fish within the fishery conservation zone. (2) All anadromous species throughout the migratory range of each such species beyond the fishery conservation zone; except that such management authority shall not extend to such species during the time they are found within any foreign nation's terri- torial sea or fishery conservation zone (or the equivalent), to the ,extent that such sea or zone is recognized by the United States. (3) All Continental Shelf fishery resources beyond the fishery conservation zone. � 1813. Hligily migratory species The exclusive fishery management authority of the United States shall not include, nor shall it be construed to extend to, highly migratory species of fish. SUBCHAPTER II-FOREIGN FISHING AND INTERNATIONAL FISHERY AGREEMENTS � 1821. Foreign fishing (a) In general-After February 28, 1977, no foreign fishing Is a>0.' thorized within the fishery conservation zone, or for anadromous species or Continental Shelf fishery resources beyond the fishery conservatiAl zone, unless such foreign fishing- (1) is authorized under subsection (b) or (c)-of this section: (2) .is not prohibited by subsection (f) of this section; and i (3) is conducted under, and in accordance with, a valid and applicable permit issued pursuant to section 1824 of this title. , (b) Existing International fishery agreements.-Foreign fishing de- scribed in subsection (a) of this section may be conducted pursuant to an international fishery agreement (subject to the provisions of section 1822 (b) or (c) of this title), if such agreement- (1) was in effect on April 13, 1976; and - (2) has not expired, been renegotiated, or otherwise ceased to k b of force and effect with respect to the United States. (c) Governing international fishery agreements.-Foreign fishing de- scribed in subsection (a) of this section may be conducted pursuant to an international fishery agreement (other than a treaty) which meeto the requirements of this- subsection- if- such agreement becomes effeC- tive after application of section .1823-0f this title. Any such international: fishery agreement shall hereafter in- this chapter be referred to as a "governing international fishery agreement". ' Each governing interna- tional fishery agreement shall acknowledge the exclusive fishery manages meat authority of the United States, as set forth in this chapter. It is the sense of the Congress that each such agreement shall include a binding commitment, on the part-.of such foreign nation and its fishing veaseOl, to comply with the fbalowing'terms and conditions: i; (1) The foreign nation, and the owner or operator ot any fishing vessel fishinig pursuant to such agreement, will abide by all regulations promulgated by the Secretary pursuant to this chap- ter, including any regulations promulgated to implement any appli- cable fishery management: Wlan or any 'prelimtlary, fishery man- agement plan . (2) The foreign nation, and the owner or' operator of any fishing vessel fishing pursuant-to such agreement, will abide by the require- ment that-- " (A) any officer authorized to enforce the provisions of this chapter (as provided for in section 1861 of this title) be per- mitted- (1) to board, and search or inspect, any such vessel at any time, 201 (ii) to make arrests and seizures provided for in section 1861(b) of this title whenever such officer has reasonable cause to believe, as a result of such a search or inspection, that any such vessel or any person has committed an act prohibited by section 1857 of this title, and (ili) to examine and make notations on the permit Is- sued pursuant to section 1824 of this title for such ves- sel; (13) the permit issued for any such vessel pursuant to section 1824 of this title be prominently displayed in the wheel- house of such vessel; (C) transponders, or such other appropriate position-fixing an.d identification equipment as the Secretary of the depart- ment in which the Coast Guard is operating determines to be appropriate, be installed and maintained in Working'order on each such vessel; (D) duly authorized United States observers be permitted, on board any such vessel ahd that the United States be reim- bursed for the cost of such observers; (E) any fees required under section 1824(b)(10) of this title be paid in advance; (F) agents be appointed and maintained within the United States who are authorized to receive and respond to any legal process issued in the United States with respect to such owner or operator; and (G) responsibility be assumed, in accordance with any re- quirements prescribed by thli Secretary, 'for the reimburse- ment of United States citizens for any loss of, or damage to, their fishing vessels, fishing gear, or catch which is caused by any fishing vessel of that nation; and will abide by any other' inonitoring, :compliiance, or enforce-' ment requirement related to fishery conservation and management which is included in such agreement. (3) The foreign nation and the owners or operators of all of the fishing vessels of such nation shall not, In any year, exceed such nation's allocation of the total allowable level of foreign fish- ing, as determined under subsection (e) of this section. (4) The foreign nation will-- (A) apply, pursuant to section 1824 of this title, for any re- quired permits; (B) deliver promptly to the owner or operator of the ap- propriate fishing vessel any permit which Is issued under that section for such vessel; and (C) abide by, and take appropriate steps under Its own laws to assure that all such- owners and operators comply with, section 1824(a) of this title and the applicable conditions and restrictions established under .section 1824(b)(7) of this title. (d) Total allowable level of foreign fishing.-The total allowable level of foreign fishing, if any, with respect to any fishery subject to the exclu- sive fishery management authority of the United States, shall be thatf portion of the optimum yield of such fishery which will not be harvested by vessels of the United States, as determined In accordance with the pro- visions -of this chapter. (e) Allocation of allowable level.-The Secretary of State, in coopera- tion with the Secretary, shall determine the allocation' among foreign nations of the total allowable,level of foreign fishing which is permitted with respect to any fishery subject to the exclusive fishery manage- ment authority of the United States. In making any such determination, the Secretary of State and the Secretary shall consider- (1) whether, and to what extent, the fishing vessels of such nations have traditionally engaged in fishing in such fishery; (2) whether such nations have cooperated with the United States in, and made substantial contributions to, fishery research and the identification of fishery resources; (3) whether such' nations have cooperated with the United States in enforcement and with respect to the conservation and management of fishery resources; and (4) such other matters as the Secretary of State, in cooperation with the Secretary, deemns appropriate. 202 (f) Ileclprocity.--Foreign fishing shall not be authorized for the fishing vessels of any foreign nation unless such nation satisfies the Secretary and the Secretary of State that such nation extends sub- stantially the same fishing privileges to fishing vessels of the United States, if any, as the United States extends to foreign fishing vessels. (g) Preliminary fishery management plans.-The Secretary, when notified by the Secretary of State that any foreign nation has submitted an application under section 1824(b) of this title, shall prepare a pre- liminary fishery management plan for any fishery covered by such application if the Secretary determines that no fishery management plan for that fishery will be prepared and( implemented, pursuant to subchapter III of this chapter, before March 1, 1977. To the extent prac- ticable, each such plan- (1) shall contain a preliminary description of the fishery and a preliminary determination as to the optimum yield from such fishery and the total allowable level of foreign fishing with respect to such fishery; (2) shall require each foreign fishing vessel engaged or wish- ing to engage in such fishery to obtain a permit from the Secre- tary; (3) shall require the submission of pertinent data to the Secre- tary, with respect to such fishery, as described in section 1853(a) (5) of this title; and (4) may, to the extent necessary to prevent irreversible effects from overfishing, with respect to such fishery, contain conserva- tion and management measures applicable to foreign fishing which- (A) are determined to be necessary and appropriate for the conservation and management of such fishery, (B) are consistent with the national standards, the other provisions of this chapter, and other applicable law, and (C) are described in section 1853(b)(2), (3), (4), (5), and (7) of this title. Each preliminary fishery management plan shall be in effect with respect to foreign fishing for which permits have been issued until a fishery management plan is prepared and implemented, pursuant to sub- chapter III of this chapter, with respect to such fishery. The Secretary may, in accordance with section 553 of Title 5, also prepare and promul- gate interim regulations with respect to any such preliminary plan. Such regulations shall be in effect until regulations implementing the ap- plicable fishery management plan are promulgated pursuant to section 1855 of this title. � 1822. International fishery agreements (a) Negotiations.-The Secretary of State- (1) shall renegotiate treaties as provided for in subsection (b) of this section; (2) shall negotiate governing international fishery agreements described in section 1821(c) of this title; (3) may negotiate boundary agreements as provided for in subsec- tion (d) of this section; (4) shall, upon the request of and in cooperation with the Sec- retary, initiate and conduct negotiations for tile purpose of enter- ing into international fishery agreements- (A) which allow fishing vessels of the United States equi- table access to fish over which foreign nations assert exclusive fishery management authority, and (B) which provide for the conservation and management of anadromous species and highly migratory species; and (5) may enter into such other negotiations, not prohibited by subsection (c) of this section, as may be necessary and appropriate to further the purposes, policy, and provisions of this chapter. (b) Treaty renegotiation.-The Secretary of State, in cooperation with the Secretary, shall initiate, promptly after April 13, 1976,'the renegotia- tion of any treaty which pertains to fishing within the fishery conserva- tion zone (or within the area that will constitute such zone after February 28, 1977), or for anadromous species or Continental Shelf fishery re- sources beyond such zone or area, and which is in any manner incon- sistent will the purposes, policy, or provisions of this chapter, in order to conform such treaty to such purposes, policy, and provisions. It is the segatL. kf gon~es that the United States shall withdraw from any such treaty, in accordance with its provisions, if such treaty is not so re- negotiated within a reasonable period of time after April 13, 1976. 203 (c) International fishery agTeements.-No international fishery agree- ment (other than a treaty) which pertains to foreign fishing within the fishery conservation zone (or within the area that will constitute such zone after February 28, 1977), or for anadromous species or Continental Shelf fishery resources beyond such zone or area- (1) which is in effect on June 1, 1976, may thereafter be renewed, extended, or amended; or (2) may be entered into after May 31, 1976; by the United States unless it is in accordance with the provisions of section 1821(c) of this title. (d) Boundary negotiations.-The Secretary of State,; in cooperation with the Secretary, may initiate and conduct negotiations with any ad- jacent or opposite foreign nation to establish the boundaries of the fishery conservation zone of the United States in relation to any such nation. (e) Noulrecognition.-It is the sense of the Congress that the United States Government shall not recognize the claim of any foreign nation to a fishery conservation zone (or the equivalent) beyond such nation's territorial sea, to the extent that such sea is recognized by the United States, if such nation- (1) fails to consider and take into account traditional fishing activity of fishing vessels of the United States; (2) fails to recognize and accept that highly migratory species are to be managed by applicable international fishery agreements, whether or not such nation is a party to any such agreement; or (3) imposes on fishing vessels of the United States any condl- tions or restrictions which are unrelated to fishery conservation and management. � 1823. Congressional oversight of governing international fishery agreements (a) In general.-No governing international fishery agreement shall become effective with respect to the United States before the close of the first 60 calendar days of continuous session of the Congress after the date on which the President transmits to the House of Representatives and to the Senate a document setting forth the text of such governing international fishery agreement. A copy of the document shall be de- livered to each House of Congress on the same day and shall be delivered to the Clerk of the House of Representatives, if the House is not in ses- sion, and to the Secretary of the Senate, if the Senate is not in session. (b) Referral to conmlittees.-Any document described in subsection (a) of this section shall be immediately referred in the I-louse of Repre- sentatives to the Committee on Merchant Marine and Fisheries, and in the Senate to the Committees on Commerce and Foreign Relations. (c) Computation of /O-day Iperiod.-For purposes of subsection (a)- (1) continuity of session is broken only by an adjournment of Congress sine die; and (2) the days on which either House is'not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period. (d) Congressional procedures.- (1) Rules of the House of Representatives and.Senate.-The pro- visions of this section are enacted by the Congress- (A) as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of fishery agreement resolutions describ- ed in paragraph (2), and they supersede other rules only to the extent that they are inconsistent therewith; and (B) with full recognition of the constitutional right of either House to change the rules (so far as they relate to the procedure of that House) at any time, and in the same manner and to the same extent as in the case of any other rule of that House. 204 (2) I)efinition.-For purposes of this subsection, the term "fish- cry agreement resolution" refers to a joint resolution of either House of Congress- (A) the effect of which is to prohibit the entering into force and effect of any governing international fishery agreement the text of which is transmitted to the Congress pursuant to subsection (a) of this section; and (B) which is reported from the Committee on Merchant Marine and Fisheries of the House -of Representatives or the Committee on Commerce or the Committee on Foreign Rela- tions of the Senate, not later than 45 days after the date on which the document described in subsection (a) of this section relating to that agreement is transmitted to the Congress. (8) Placement on calendar.-Any fishery agreement resolution upon being reported shall immediately be placed on the appropriate calendar. (4) Floor consideration hi the House.- (A) A motion in the House of Representatives to proceed to the consideration of any fishery agreement resolution shall be highly privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to. (B) Debate, in the House of Representatives on any fishery agreement resolution shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the resolution. A motion further to limit debate shall not be debatable. It shall not be in order to move to recommit any fishery agreement resolution or to move to reconsider the vote by which any fishery agreement resolution is agreed to or disagreed to. (C) Motions to postpone, made in the House of Representa- tives with respect to the consideration of any fishery agree- ment resolution, and motions to proceed to the consideration of other business, shall be decided without debate. (D) All appeals from the decisions of the Chair relating to the application of the Rules of the House of Representa- tives to the procedure relating to any fishery agreement resolu- tion shall be decided without debate. (E) Except to the extent specifically provided in the pre- ceoding provisions of this subsection, consideration of any fish- ery agreement resolution shall be governed by the Rules of the House of Representatives applicable to other bills and res- olutions in similar circumstances. (5) Floor consideration in the Senate.- (A) A motion in the Senate to proceed to the consideration of any fishery agreement resolution shall be privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to. (B) Debate in the Senate on any fishery agreement resolu- tion and on all debatable motions and appeals in connection therewith shall be limited to not more than 10 hours. The time shall be equally divided between, and controlled by, the majority leader and the minority leader or their designees. (C) Debate in the Senate on any debatable motion or appeal in connection with any fishery agreement resolution shall be limited to not more than 1 hour, to be equally divided between, and controlled by, the mover of the motion or appeal and the manager of the resolution, except that if the manager of the resolution is in favor of any such motion or appeal, the time in opposition thereto shall be controlled by the minority leader or his designee. The majority leader and the minority leader, or either of them, may allot additional time to any Senator during the consideration of any debatable motion or appeal, from time under their control with respect to the applicable fishery agreement resolution. (D) A motion in the Senate. to further limit debate is not debatable. A motion to recommit any fishery agreement res- olution is not in order. 205 � 1824. Permits for foreign fishing (a) In general.-After February 28, 1977, no foreign fishing vessel shall engage in fishing within the fishery conservation zone, or for anadromous species or Continental Shelf fishery resources beyond such zone, unless such vessel has on board a valid permit issued under this section for such vessel. (b) Applications and permits under governing international fishery agreements.- (1) EllgibUity.-Each foreign nation with which the United States has entered into a governing international fishery agree- ment shall submit an application to the Secretary of State each year for a permit for each of its fishing vessels that wishes to engage in fishing described in subsection (a) of this section. (2) Forms.-The Secretary, in consultation with the Secretary of State and the Secretary of the department in which the Coast Guard is operating, shall prescribe the forms for permit applica- tions' submitted under this subsection and for permits Issued pur- suant to any such application. (8) Contents.-Any application made under this subsection shall specify- (A) the name and -official number or other Identification of each fishing vessel for which a permit is sought, together with the name and address of the owner thereof; (B) the tonnage, capacity, speed, processing equipment, type and quantity of fishing gear, and such other pertinent information with respect to characteristics of each such vessel as the SeCretary may require; (C) each fishery in which each such vessel wishes to fish; (D) the amount of fish or tonnage of catch contemplated for each such vessel during the time such permit is in force; and (E) the ocean area in which, and the season or period dur- ing which, such fishing will be conducted; and shall include any other pertinent information and material which the Secretary may require. (4) Transmittal for action.-Upon receipt of any application which complies with the requirements of paragraph (3), the Secre- tary of State shall publish such application in the Federal Register and shall promptly transmit- (A) such application, together with his comments and rec- ommendations thereon, to the Secretary; (B) a copy of the application to each appropriate Council and to the Secretary of the department in which the Coast Guard is operating; and (C) a copy of such material to the Committee on Merchant Marine and Fisheries of the House of Representatives and to the Committees on Commerce and Foreign Relations of the Senate. (5) Action by council.-After receipt of an application trans- mitted under paragraph (4)(B), each appropriate Council shall prepare and submit to the Secretary such written comments on the application as it deems appropriate. Such comments shall be sub- mitted within 45 days after the date on which the application is received by the Council and may include recommendations with re- spect to approval of the application and, if approval Is recom- mended, with respect to appropriate conditions and restrictions thereon. Any interested person -.ay submit comments to such Council with respect to any such application. The Council shall consider any such comments in formulating its submission to the Secretary. (6) Approval.-After receipt of any-appllcation transmitted under paragraph (4)(A), the Secretary shall consult with the Secretary of State and, with respect to enforcement, with the Secretary of the department in which the Coast Guard is operating. The Secre- tary, after taking into consideration the views and recommendations of such Secretaries, and any comments submitted by any Council under paragraph (5), may approve the application, if he determines that the fishing described in the application will meet the require- ments of this chapter. 206 (7) Establishment of conditions and restrictions.-The Secretary shall establish conditions and restrictions which shall be included in each permit issued pursuant to any application approved under paragraph (6) and which must be complied with by the owner or operator of the fishing vessel for which the permit is issued. Such conditions and restrictions shall include the following: (A) All of the requirements of any applicable fishery man- agement plan, or' preliminary fishery management plan, and the regulations promulgated to implement any such plan. (B) The requirement that no permit may be used by any vessel other than the fishing vessel for which it is issued. (C) The requirements described in section 1821(c) (1), (2), and (3) of this title. (D) Any other condition and restriction related to fishery conservation and management which the Secretary prescribes as necessary and appropriate. (8) Notice of approval.-The Secretary shall promptly trans- mit a copy of each application approved under paragraph (6) and the conditions and restrictions established under paragraph (7) to- (A) the Secretary of State for transmittal to the foreign nation involved; (B) the Secretary of the department in which the Coast Guard is operating; (C) any Council which has authority over any fishery speci- fied in such application; and (D) the Committee on Merchant Marine and Fisheries of the House of Representatives and the Committees on Com- merce and Foreign Relations of the Senate. (9) Disapproval of applications.-If the Secretary does not approve any application submitted by a foreign nation under this subsection, he shall promptly inform the Secretary of State of the disapproval and his reasons therefore. The Secretary of State shall notify such foreign nation of the disapproval and the reasons there- for. Such foreign nation, after taking into consideration the rea- sons for disapproval, may submit a revised application under this subsection. (10) Fees.-Reasonable fees shall be paid to the Secretary by the owner or operator of any foreign fishing vessel for which a permit is issued pursuant to this subsection. The Secretary, in consultation with the Secretary of State, shall establish and pub- lish a schedule of such fees, which shall apply nondiscriminatorily to each foreign nation. In determining the level of such fees, the Secretary may take into account the cost of carrying out the pro- visions of this chapter with respect to foreign fishing, including, but not limited to, the cost of fishery conservation and management, fisheries research, administration, and enforcement. (11) Issuance of permits.-If a foreign nation notifies the Secre- tary of State of its acceptance of the conditions and restrictions established by the Secretary under paragraph (7), the Secretary of State shall promptly transmit such notification to the Secretary. Upon payment of the applicable fees established pursuant to para- graph (10), the Secretary shall thereupon issue to such foreign nation, through the Secretary of State, permits for the appropriate fishing vessels of that nation. Each permit shall contain a state- ment of all conditions and restrictions established under para- graph (7) which apply to the fishing vessel for which the permit is issued. (12) Sanctions.-If any foreign fishing vessel for which a per- mit has been issued pursuant to this subsection has been used in the commission of any act prohibited by section 1857 of this title the Secretary may, or if any civil penalty imposed under section 1868 of this title or any criminal fine imposed under section 1869' of this title has not been paid and is overdue the Secretary shall-' . (A) revoke such permit, with or without prejudice to the right of the foreign nation involved to obtain .. permit for ;: |.uch vessel in any subsequent. year; . . . . (B) suspend such permit for. the period of,tilme deemeld .: . appropriate', .or .- . ' ; ! � ' 207 (C) Impose additional -conditions and restrictions on the approved application of the foreign nation involved and on any: permit issued under such application. Any permit which is suspended under this paragraph for nonpay- ment of a civil penalty shall be reinstated by the Secretary upon the payment of such civil penalty together with interest thereon at the prevailing rate. (c) Registration permits.-The Secretary of State, in cooperation with the Secretary, shall issue annually a registration permit for each fishing vessel of a foreign nation which is a party to an international fishery agreement under which foreign fishing is authorized by section 1821 (b) of this title and which wishes to engage in fishing described in sub- section (a) of this section. Each such permit shall set forth the terms and conditions contained in the agreement that apply with respect to such fishing, and shall include the additional requirement that the owner or operator of the fishing vessel for which the permit is issued shall prominently display such permit in the wheelhouse of such vessel and show it, upon request, to any officer authorized to enforce the provisions of this chapter (as provided for in section 1861 of this title). The Secre- tary of State, after consultation with the Secretary and the Secretary of the department in which the Coast Guard is operating, shall prescribe the form and manner In which applications for registration permits may be made, and the forms of such permits. The Secretary of State may establish, require the payment of, and collect fees for registration per- mits; except that the level of such fees shall not exceed the administra- tive costs incurred by hip in issuing such permits. � 1825. Import prohibitions (a) Determinations by Secretary of State.-If the Secretary of State determines that- (1) he has been unable, within a reasonable period of time, to conclude with any foreign nation an international fishery agree- ment allowing fishing vessels of the United States equitable access to fisheries over which that nation asserts exclusive fishery manage- ment authority, as recognized by the United States, in accordance with traditional fishing activities of such vessels, if any, and under terms not more restrictive than those established under sections 1821(c) and (d) and 1824(b)(7) and (10) of this title, because' such nation has (A) refused to commence negotiations, or (B) failed to negotiate in good faith; (2) any foreign nation is not allowing fishing vessels of the United States to engage in fishing for highly migratory species in accordance with an applicable international fishery agreement, whether or not such nation is a party thereto; (3) any foreign nation is not complying with its obligations under any existing international fishery agreement concerning fishing by fishing vessels of the United States in any fishery over which that nation asserts exclusive fishery management authority; or (4) any fishing vessel of the United States, while fishing in waters beyond any foreign nation's territorial sea, to the extent that such sea is recognized by the United States, is seized by any foreign nation- (A) in violation of an applicable international fishery agree- ment; (B) without authorization under an agreement between the United States and such nation; or (C) as a consequence of a claim of jurisdiction which is not recognized by the United States; he shall certify such determination to the Secretary of the Treasury. (b) Prohibitions.-Upon receipt of any certification from the Secre- tary of State under subsection (a) of this section, the Secretary of the Treasury shall immediately take such action as may be necessary and appropriate to prohibit the importation into the United States- (1) of all fish and fish products from the fishery involved, if any; and (2) upon recommendation of the Secretary of State, such other fish or fish products, from any fishery of the foreign nation con- cerned, which the Secretary of State finds to be appropriate to carry out the purposes of this section. (c) Removal of prohibition.--If the Secretary of State finds that the reasons for the imposition of any import prohibition under this section no longer prevail, the Secretary of State shall notify the Secretary of the Treasury, who shall promptly remove such import prohibition. (d) Definitions.-As used in this section- (1) The term "fish" includes any highly migratory species. (2) The term "fish products" means any article which is pro- duced from or composed of (in whole or in part) any fish. 208 SUBCHAPTER III-NATIONAL FISHERY MANAGEMENT PROGRAM � 1851. National standards for fishery conservation and management (a) In general.-Any fishery management plan prepared, and any regulation promulgated to implement any such plan, pursuant to this subchapter shall be consistent with the following national standards for fishery conservation and management: (1) Conservation and management measures shall prevent over- fishing while achieving, on a continuing basis, the optimum yield from each fishery. (2) Conservation and management measures shall be based upon the best scientific information available. (3) To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination. (4) Conservation and management measures shall not discrim- inate between residents of different States. If it becomes neces- sary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote con- servation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges. (5) Conservation and management measures shall, where prac- ticable, promote efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose, (6) Conservation and management measures shall take into ac- count and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. (7) Conservation and management measures shall, where prac- ticable, minimize costs and avoid unnecessary duplication. (b) ulidellnes.-The Secretary shall establish guidelines, based oht the national standards, to assist in the development of fishery manage- ment plans. � 1852. Regional fishery management councils .: t(a) Establishment.-There shall be established, within 120 days after April 13, 1976, eight Regional Fishery Management Councils, as follows: (1) New England Council.-The New England Fishery Manage- ment Council shall consist of the States of Maine, New Hampshire, Massachusetts, Rhode Island, and Connecticut and shall have au- thority over the fisheries in the Atlantic Ocean seaward of such States. The New England Council shall have 17 voting members, including 11 appointed by the Secretary pursuant to subsection (b) (1) (C) of this section (at least one of whom shall be appointed: from each such State). (2) Mid-Atlantic Councll.-The Mid-Atlantic Fishery Management Council shall consist of the States of New York, New Jersey, Dela- ware, Pennsylvania, Maryland, and Virginia and shall have authority over the fisheries in the Atlantic Ocean seaward of such States, The Mid-Atlantic Council shall have 19 voting members, including 12 appointed by the Secretary pursuant to subsection (b) (1) (C) of this section (at least one of whom shall be appointed from each such State). (8) South Atlantic Council.-The South Atlantic Fishery Man- agement Council shall consist of the States of North Carolina, South Carolina, Georgia, and Florida and shall have authority over the fisheries in the Atlantic Ocean seaward of such States. The South Atlantic Council shall have 13 voting members, including 8 ap- pointed by the Secretary pursuant to subsection (b) (1) (C) of this section (at least one of whom shall be appointed from each such State). (4) Caribbean Council.-The Caribbean Fishery Management Council shall consist of the Virgin Islands and the Commonwealth of Puerto Rico and shall have authority over the fisheries in the Caribbean Sea and Atlantic Ocean seaward of such States. The Carribbean Council shall have 7 voting members, including 4 ap- pointed by the Secretary pursuant to subsection (b)(1)(C) of this section (at least one of whom shall be appointed from each such State). 209 (C) The executive director of the Marine Fisheries Commission for the geographical area concerned, if any, or his designee. (D) One representative of the Department of State designated for such purpose by the Secretary of State, or his designee. (2) The Pacific Council shall have one additional nonvoting mem- ber who shall be appointed by, and serve at the pleasure of, the Governor of Alaska. (d) Compensation and expenses.-The voting members of each Coun- cil, who are not employed by the Federal Government or any State or local government, shall receive compensation at the daily rate for GS-18 of the General Schedule when engaged in the actual performance of duties for such Council. The voting members of each Council, any non- voting member described in subsection (c) (1) (C) of this section, and the~non.votlng memb~er "ola ted"~ p'ui in~tSbseeloa: (e)(')l.t-i[ Setio:n shall be 'reilbuslse ,for aetual expenses incurred in the' perf.~'* andce of such dutieS,- . -.. ; ' (1) A maf rltty0of the.v~pting memberb'of sany Council shatll-eo:,f ..stitute a Quorumn",'but one: or more such members designated-ly"'thi * '.C.uncil YaY tli ;f eprilg:l :A decisions of ;ny 'Council ahall' b: b.. Y majorlty-vote orf the'voting members present and voting, i theiL i: s: '{ 2) The:v.tlng membern of each., Council shall- select;,'4 CliUI man for such Council from among the voting members. ' : '(3). Eaph Council shall meet, in theo geographical area concerned; at the call of tthleC.0halrmal or-upon the request of a-maJortt,.'f.- .i.. its voting members,. hi. -, . '(4). It.' any votting meiber oti;'aOoucil- dlsagrees wlith .reped; to any matter which Is transmitted to the Secretary by such CoulncllU "-:'euch mermber niay.submit 'h statement to the Secretary setting forth � the reasons foz:.such disagreement, -: . - .- 'j(f) Staff and adm-nistraton- - (1) Each Council may appoint, and assign dities to, an exeeuti'i director and such other full- and part-time administrative employees as the Secretary determines are necessary to the performance of its functions (2) Upon the request of any Council, and after consultation with the Secretary, the hpad of any Federal agency is authorized to detail to such Council, on a'reimbursable basis, any of the personnel of such agency, to assist such Council in the performance of its func- tions under this chapter. (3) The Secretary shall provide to each Council such adminlstra-' tive and technical support services as are necessary for the effective functioning of such Council. (4) The Administrator of General Services shall furnish each Council with such offices, equipment, supplies, and services as he is authorized to furnish to any other agency or instrumentality .of the United States. . (6) The Secretary and the Secretary of State shall furnish each( Council with relevant information concerning foreign fishing and international fishery agreements.- (6) Each Council shall determine its organization, and presciibe; its practices and procedures for carrying out its functions under this chapter, in accordance with such uniform standards as are pr,- scribed by the Secretary. Each Council shall publish and make available to the public a statement of its organization, practices, and procedures. (7) The Secretary.shall pay- ' ' '; ' '; (A) the compensation"and expenses provided for- Ln sub- section (d) of this section; (B) appropriate compensation to employees appointed under' paragraph (1); (C) the. amounts required for reimbursement of other Ped- eral agencies under-paragraphs (2) and (4); (D) the actual expenses of the members 'of the committees and panels established under subsection (g) of thi' section; and- (c) suioh other costs 'as the Secretary determines are neces- sary to the performance of the- functions of the Councils. , (g) Committees and panels.- . (1) Each Council shall establish and maintain,- and appoint the members ot a, *soientific and statistical committee to assist It ih, the develope'tnt, collection, and evaluation of such statistical, bio" logical, c 1itc, social, and other scientific information as is relevant to such Council's development and amendment of any fishery management plan. 210 (5) Gulf Council.-The Gulf of Mexico Fishery Management Council shall consist of the States of Texas, Louisiana, Mississippi, Alabama, and Florida and shall have authority over the fisheries in the Gulf of Mexico seaward of such States. The Gulf Council shall have 17 voting members, including 11 appointed by the Secre- tary pursuant to subsection (b)(1)(C) of this section (at least one of whom shall be appointed from each such State). (6) Pacific Council.-The Pacific Fishery Management Council shall consist of the States of California, Oregon, Washington, and Idaho and shall have authority over the fisheries in the Pacific Ocean seaward of such States. The Pacific Council shall have 13 voting members,. including 8 appointed by the Secretary pursuant to subsection (b) (1) (C) of this section (at least one of whom shall be appointed from each such State). (7) North Pacific Council.-The North Pacific Fishery Manage- ment Council shall consist of the States of.Alaska, Washington, and Oregon and shall have authority over the fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska. The North Pacific Council shall have 11 voting members, including 7 appointed by the Secretary pursuant to subsection (b) (1) (C) of this section (6 of whom shall be appointed from the State of Alaska and 2 of whom shall be appointed from the State of Washington). (8) Western Pacific Council.-The Western Pacific Fishery Man- agement Council shall consist of the State of Hawaii. American Samoa, and Guam and shall have authority over the -fisheries in the Pacific Ocean seaward of such States. The Western. Pacific Council shall have 11 voting members; including 7 appointed by the. Secretary pursuant to subsection (b) (1) (C) of this section (at least one of whom shall be appointed from each such State). Each Council shall reflect the expertise and interest of, the several con- stituent States in the ocean area over which such Council is granted authority. - ... (b) Voting members.--(1) The voting members of each Council shall be: (A) The principal State official with marine fishery manage- ment responsibility and expertise in each constituent State, who is designated as such by the Governor of the State, so long as the official continues to hold, such position, or the designee of such official, (B) The regional director of the National Marine Fisheries Service for the geographic area concerned, or his designee, except that if two such directors are within such geographical area, the Secretary shall designate which of such directors shall be the vot- ing member. (C) The members required to be appointed by the Secretary shall be appointed by the Secretary from a list of qualified individ- uals submitted by the Governor of each applicable constituent State. With respect to the initial such appointments, such Governors shall submit such lists to the Secretary as soon as practicable, not later than 45 days after April 13, 1976. As used in this subparagraph, (i) the term "list of qualified individuals" shall include the names (including pertinent biographical data) of not less than three such individuals for each applicable vacancy, and (ii) the term "qualified individual" means an individual who is knowledgeable or exper- ienced with regard to the management, conservation, or recreational or commercial harvest, of the fishery resources of the geographical area concerned. (2) Each voting member appointed to a Council pursuant to para- graph (1) (C) shall serve for a term of 3 years; except that, with re- spect to the members initially so appointed, the Secretary shall designate up to one-third thereof to serve for a term of 1 year, up to one-third thereof to serve for a term of 2 years, and the remaining such members to serve for a term of 3 years. (3) Successors to the voting members of any Council shall be ap- pointed in the same manner as the original voting members. Any in- dividual appointed to fill a vacancy occurring prior to the expiration of any term of office shall be appointed for the remainder of that term. (c) Nonvoting members.-(1) The nonvoting members of each Coun- cil shall be: (A) The regional or area director of the United States Fish and Wildlife Service for the geographical area concerned, or his designee. (B) The commander of the Coast Guard district for the geo- graphical area concerned, or his designee; except that, if two Coast Guard districts are within such geographical area, the commander designated for such purpose by the commandant of the Coast Guard. 211 ai;.7; (- If2) --Eavheb.oulnci! 'Shall establish such okbther *ai~iviseriy panels as.- are necessary or appropriate to assist: it in. earrilng :out -ts tfuLie tions under this chapter, .. . .... .Li (h) Funetions.--Each Councll Shall, in aecordance with the prtovsloRS of this chapter- . ....q. , .'- 1; ) prepare and :sUbmlt.to thie ; Saecreare 'a -f.she~munage . plan with~ respect.o- each, fisheryn Withinm. its g;eograpbilcaL areai % V-./. authority and<.fb-.4ime .t.o time, 'such amendments .to each s :e plan as are ncessary.;:. i;, m> . : i M . - - i (2) prepare comments on any applicaiod;fr foreign fisling transmitted to It iinder section 182 4(b) (4) (B) of thia title, 'and ant' fishery management plan or amendment transmitted to it underf s', Section 1864 () (2) bf'thfs title; -. !'- . -- .. , : - (3) conduct public hearings; at 'aprppriate times and in apro priate locations in the geographical area. concerne'd so as to'0tllow 'all interested persons an opportunity to be heard iit the develop-: ment of fishery management plans and amendments to such ilans, and with respect to the administration and implementation of the provisions of this chapter; (4) submit to the Secretary- - .: (A) a report, before February 1 of each year, on the Coun- cil's activities during the immediately preceding calendar year, (B) such periodic reports as the Council deems appropriate, and (C) any other relevant report which may. be requested by the Secretary; (6) review on a continuing- basis, -and rdvise as 'appropriate, the assessments and specifications made pursuant to section 1853(a) (3) and (4) of this title with respect to the optimum yield from, and the total allowable level. of foreign fishing in, each fishery within Its geographical area of authority; and', ;" (6) conduct any other activities which are required by, or pro- vided for in, this chapter or which are necessary and appropriate to the foregoing functions. � 1853. Contents of fishery management plans (a) Required provisions.-Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, shall-- (1) contain the conservation and. management measures, appli- cable to foreign fishing and fishing by vessels of the United States, which are- (A) necessary and appropriate for the conservation and man- agement of the fishery; (B) described in this subsection- or subsection (b) of this section, or both;. and -... - .. (C) consistent with the national standards, the, other pro- visions of this chapter, and any other applicable law; , ; (2) contain a description of the fishery, including, but not limited to, the number of vessels involved, the type and quantity of fishing gear used, the species of fish involved and tneir location, the cost 'likely to be incurred in management, actual and potential revenues from the fishery, any recreational interests in the fishery, and the nature and extent of foreign fishing and Indian treaty fishing rights, if any; (3) assess and specify the present and probable future condi- tion of, and the maximum sustainable yield and optimum yield from, the fishery, and include a summary of the information utilized in making such specification; (4) assess and specify- (A) the capacity and the extent to which-fishing vessels of the United States, on an annual basis, will harvest the optimmin yield specified under paragraph (3), and (B) the portion of such optimum yield which, on an annual basis, will not be harvested by fishing vessels of the United States and can be made available for foreign fishing; and (5) specify the pertinent data which shall be submitted to the Secretary with respect to the fishery, including, but not limited to, information regarding the type and quantity of fishing gear. used, catch by species in numbers of fish or weight thereof, areas in which fishing was engaged in, time of fishing, and number of hauls. 212 (b) Discretionary provisions.-Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, may- (1) require a permit to be obtained from, and fees to be paid to, the Secretary with respect to any fishing vessel of the United States fishing, or wishing to fish, in the fishery conservation zone, or for anadromous species or Continental Shelf fishery resources beyond such zone; (2) designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quanti- ties of fishing gear; (3) establish specified limitations on the catch of fish (based on area, species, size, number, weight, sex, incidental catch, total biomass, or other factors), which are necessary and appropriate for the conservation and management of the fishery; (4) prohibit, limit, condition, or require the use of specified types and quantities of fishing gear, fishing vessels, or equipment for such vessels, including devices which may be required to facil- itate enforcement of the provisions of this chapter; (5) incorporate (consistent with the national standards, the other provisions of this chapter, and any other applicable law) the relevant fishery conservation and management measures of the coastal States nearest to the fishery; (6) establish a system for limiting access to the fishery in order to achieve optimum yield if, in developing such system, the Council and the Secretary take into account- (A) present participation in the fishery, (B) historical fishing practices in, and dependence on, the fishery, (C) the economics of the fishery, (D) the capability of fishing vessels used in the fishery to engage in other fisheries, (E) the cultural and social framework relevant to the fish- ery, and (F) any other relevant considerations; and (7) prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery. (c) Proposed regulations.-Any Council may prepare any proposed regulations which it deems necessary and appropriate to carry out any fishery management plan, or any amendment to any fishery management plan, which is prepared by it. Such proposed regulations shall be sub- mitted to the Secretary, together with such plan or amendment, for action by the Secretary pursuant to sections 1854 and 1855 of this title. (d) Confidentiality of statistics.-Any statistics submitted to the Secretary by any person in compliance with any requirement under sub- section (a) (5) of this section shall be confidential and shall not be disclosed except when required under court order. The Secretary shall, by regulation, prescribe such procedures as may be necessary topreserve such confidentiality, except that the Secretary may release or make public any such statistics in any aggregate or summary form which does not directly or indirectly disclose the identity or business of any person who submits such statistics. � 1854. Action by the Secretary (a) Action by the Secretary after receipt of plan.-Within 60 days after the Secretary receives any fishery management plan, or any amend- ment to any such plan, which is prepared by any Council, the..Secre- tary shall- (1) review such plan or amendment pursuant to subsections(b) of this section; and (2) notify such Council in writing of his approval, disapproval, or partial disapproval of such plan or amendment. In the case of disapproval or partial disapproval, the Secretary shall include in such notification a statement and explanation of the Secre- tary's objections and the reasons therefor, suggestions for improvement, a request to such Council to change such plan or amendment to satisfy the objections, and a request to resubmit the plan or amendment, as so modified, to the Secretary within 45 days after the date on which the Council receives such notification. 213 (b) Review by the Secretary.-The Secretary shall review any fishery management plan, and any amendment to any such plan, prepared by anyCouncil and submitted to him to determine whether it is consistent with the national standards, the other provisions of this chapter, and any other applicable law. In carrying out such review, the Secretary shall consult with- (1) the Secretary of State with respect to foreign fishing; and (2) the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea. (c) Preparation by the Secretary.-(1) The Secretary may prepare a fishery management plan, with respect to any fishery, or any amend- ment to any such plan, in accordance with the national standards, the other provisions of this chapter, and any other applicable law, if- (A) tlie appropriate Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management; or (B) the Secretary disapproves or partially disapproves any such plan or amendment, and the Council involved falls to change such plan or amendment in accordance with the notification made under subsection (a) (2) of this section. In preparing any such plan or amendment, the Secretary shall consult with the Secretary of State with respect to foreign fishing and with the Secretary of the department In which the Coast Guard is. operating with respect to enforcement at sea. (2) Whenever, pursuant to paragraph (1), the- Secretary prepares a fishery management plan or amendment, the Secretary shall promptly transmit such plan or amendment to the appropriate Council for con- sideration and comment. Within 45 days after the date of receipt of such plan or amendment, the appropriate Council may recommend, to the Secretary, changes in such plan or amendment, consistent with the national standards, the other provisions of this chapter, and any other applicable law. After the expiration of such 46-day period, the Secre- tary may implement such plan or amendment pursuant to section 1855 of this title. (3) Notwithstanding paragraph (1), the Secretary may not include in any fishery management plan, or any amendment to any such plan, prepared by him, a provision eotablishing a limited access system de- scribed in section 1853(b)(6) of this title, unless such system is first approved by a majority of the voting members, present and voting, of each appropriate Council. . , ('d) Establishment of fees.-The Secretary shall by regulation estab- lish the level of any fees which are authorized to be charged pursuant to section 1853(b)(1) of this title. Such level shall not exceed the administrative costs incurred by the Secretary in issuing such permits, (e) Fisheries Research.-The Secretary shall initiate and maintain a comprehensive program of'flshery research to carry out and further the purposes, policy, and provisions of this chapter. Such program shall be designed to acquire knowledge and information, including statistics, on fishery conservation and management, including, but not limited to, biological research concerning the interdependence of fisheries or stocks of fish, the impact of pollution on fish, the impact of wetland and estuarine degradation, and other matters bearing upon the abundance and availability of fish. (f) Miscellaneous duties.-(1) If any fishery extends beyond the geo- graphical area of authority of any one Council, the Secretary may- (A) designate which Council shall prepare the fishery manage- ment plan for such fishery and any amendment to such plan; or (B) may require that the plan and amendment be prepared joint- ly by the Councils concerned. No jointly prepared plan or amendment may be submitted to the Secre- tary unless it is approved by a majority of the voting members, present and voting, of each Council concerned. (2) The Secretary shall establish the boundaries between the geo- graphical areas of authority of adjacent Councils. 214 � 1855. Implementation of fishery management plans (a) In general.-As soon as practicable after the Secretary- (1) approves, pursuant to section 1854(a) and (b) of this title, any fishery management plan or amendment; or (2) prepares, pursuant to section 1854(c) of this title, any fishery management plan or amendment; the Secretary shall publish in the Federal Register .(A) such plan or amendment, and (B) any regulations which he proposes to promulgate to implement such plan or amendment. Interested persons shall be afforded a period of not less than 45 days after such publication within which to submit in writing data, views, or comments on the plan or a amendment, and on the proposed regulations. (b) Hearlng.-The Secretary may schedule a hearing, in accordance with section 553 of Title 5, on any fishery management plan, any amend- ment to any such plan, and any regulations to implement any such plan or amendment. If any such hearing is scheduled, the Secretary may, pending its outcome- (A) postpone the effective date of the regulations proposed to implement such plan or amendment; or (B) take such other action as he deems appropriate to preserve the rights or status of any person. (c) Implementation.-The Secretary shall promulgate regulations to implement any fishery management plan or any amendment to any such plan- (1) after consideration of all relevant matters- (A) presented to him during the 45-day period referred to in subsection (a) of this section, and (B) produced in any hearing held under subsection (b) of this section; and (2) if he finds that the plan or amendment is consistent with the national standards, the other provisions of this chapter, and any other applicable law. To the extent practicable, such regulation shall be put into effect in a manner which does not disrupt the regular fishing season for any fishery. '' -(d) Judicial review.-Regulations promulgated by the Secretary under this chapter shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of Title 5, if a petition for such review is filed within 30 days after the date on which the. regulations are promulgated; except that (1) section 705 of such title is not appli- cable, and (2) the appropriate court shall only set aside any such regula- tion on a ground specified in section 706(2) (A), (B), (C), or (D) of such title. (e) Emergency actions.-If the Secretary finds that an emergency Nt involving any fishery resources exists, he may- (1) promulgate emergency regulations, without regard to sub- sections (a) and (c) of this section, to implement any fishery man- agement plan, If such emergency so requires; or (2) promulgate emergency regulations to amend any regulation which implements any existing fishery management plan, to the ex- tent required by such emergency. Any emergency regulation which changes any existing fishery manage- ment plan shall be treated as an amendment to such plan for the period in which such regulation is in effect. Any emergency regulation promul- gated under this subsection (A) shall be published in the Federal Regis- ter together with the reasons therefor; (B) shall remain in effect for not more than 45 days after the date of such publication, except that any such regulation may be repromulgated for one additional period of not more than 45 days; and (C) may be terminated by the Secretary at any earlier date by publication in the Federal Register of a notice of termination. (f) Annual report.-The Secretary shall report to the Congress and the President, not later than March 1 of each year, on all activities of the Councils and the Secretary with respect to fishery management plans, regulations to implement such plans, and all other activities relating to the conservation and management of fishery resources that were under- taken under this chapter during the preceding calendar year. (g) Responsibility of the Secretary.-The Secretary shall have gen- eral responsibility to carry out any fishery management plan or amend- ment approved or prepared by him, in accordance with the provisions of this chapter. The Secretary may promulgate such regulations, in accord- ance with section 553 of Title 5, as may be necessary to discharge such responsibility or to carry out any other provision of this chapter. 215 � 1850. State jurisdiction (a) In general.-Except as provided in subsection (b) of this section, nothing in this chapter shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries. No State may directly or indirectly regulate any fishing which is engaged in by any fishing vessel outside its boundaries, unless such vessel is registered under the laws of Such State. (b) Exception.-(1) If the Secretary finds, after notice and an op- A portunity for a hearing in accordance with section 554 of Title 5, that- (A) the fishing in a fishery, which is covered by a fishery man- agement plan implemented under this chapter, is engaged In pre- dominately within the fishery conservation zone and beyond such zone; and (B) any State has taken any action, or omitted to take any action, the results of which will substantially and adversely afffet the carrying out of such fishery management plan; the Secretary shall promptly notify such State and the appropriatai Council of such finding and of his Intention to regulate the applicabe' fishery within the boundaries of such State (other than its internial waters), pursuant to such fishery management plan and the regqlations prtmulgated to Implement such plan. :. ~ (2) If the Secretary, pursuant to this subsection, assumes respofisi- bility for the regulation ,of any fishery, the State Involved may at any time thereafter apply to the Secretary for reinstatement of its authority. over such fishery. If the Secretary finds that the reasons for which he assumed such regulation no longer'prevail, he shall promptly terminate: such regulation. � 1857. Prohibited acts It is unlawful- (i) for any person-i- (A) to violate any provision of this chapter oi. any regula- tion Or permit issued pursuant to this chapter; (B) to use any fishing vessel to engage in fishing after the revocation, or during the period of suspension, of an applicable permit issued pursuant to this chapter; (C) to violate any provision of, or regulation under, an applicable governing international fishery agreement entered into pursuant to section 1821(c) of this title; (D) to refuse to permit any officer authorized to enforce the provisions of this chapter (as provided for in section 1861 of this title) to board a fishing vessel subject to such person's control for putposes of conducting any search or Inspection in connection with the enforcement of this chapter or any regu- lation, permit, or agreement referred to in subparagraph (A) or (C); (E) to forcibly assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the conduct of any search or inspection described in subparagraph (D); (F) to resist a lawful arrest for any act prohibited by this section; (G) to ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish taken or retained in violation of this chapter or any regulation, permit, or agreement referred to in subparagraph (A) or (C); or (H) to interfere with, delay, or prevent, by any means, the apprehension or arrest of another person, knowing that such other person has committed any act prohibited by this, section; and (2) for any vessel other than a vessel of the United States, and for the owner or operator of any vessel other than a vessel of the United States, to engage in fishing- (A) within the boundaries of any State; or (B) within the fishery conservation zone, or for any anadro- mous species or Continental Shelf fishery resources beyo'd such zone, unless such fishing is authorized by, and conducted in accordance with, a valid and applicable permit issued pur- suant to section 1824(b) or (c) of this title. 216 � s1858. Civil penalties (a) Assessment of penalty.-Any person who is found by the 6ecre- tary, after notice and aid opportunity for a hearing in accordance With section 554 of Title 5, t- have committed an act prohibited by'section 1857 of this title shall be liable to the United States for a civil penalty, The amount of the civil penalty shall not exceed $25,000 for each viola- tion. Each day of a continuing violation shall constitute a separate offense. The amount of such civil penalty shall be assessed by the Secre- tary, or his designee, by written notice. In determining the amount of such penalty, the Secretary shall take into account the nature, cirCum- stances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. (b) Review of civil penalty.-Any person against whom a civil penalty is assessed under subsection (a) of this section may obtain review there- of in the appropriate court of the United States by filing a notice of ap- peal In such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the Secretary. The Secretary shall promptly file in such court a certified copy of the record upon which such violation was found or such penalty imposed, as provided In section 2112 of Title 28. The findings and order of the Secretary shall be set aside by such court if they are not found to be supported by substantial evidence, as provided in section 706(2) of Title 5, (c) Action upon failure to pay assessment.-If any person fails to pay an assessment of a civil penalty after it has become a final and un- appealable order, or after the appropriate court has entered final judg- ment in favor of the Secretary, the Secretary shall refer the matter to the Attorney General of the United States, who shall recover the amount assessed in any appropriate district court of the United States. In such action, the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review. (d) Compromise or other action by Secretary.-The Secretary may compromise, modify, or remit, with or without conditions, any civil penal- ty which is subject to imposition or which has been imposed under this section. � 1859. Crimilnal offenses (a) Offenses.-A person is guilty of an offense if he commits any act prohibited by- (1) section 1857(1)(D), (E), (F), or (H) of this title; or (2) section 1857(2) of this title. (b) Punishment.-Any offense described in subsection (a)(1) of this section is punishable by a fine of not more than $50,000, or imprison- ment for not more than 6 months, or both; except that if in the com- mission of any such offense the person uses a dangerous weapon, engages in conduct that causes bodily injury to any officer authorized to enforce the provisions of this chapter (as provided for in section 1861 of this title), or places any such officer in fear of imminent bodily injury, the offense is punishable by a fine of not more than $100,000, or imprison- ment for not more than 10 years, or both. Any offense described in sub- section (a)(2) of this section is punishable by a fine of not more than $100,000, or imprisonment for not more than 1 year, or both. (c) Jurisdiction.-There is Federal jurisdiction over any offense de- scribed in this section. 1 i800. Civil forfeitures . (a) In general.--Any fishing vessel (including its fishing gear, furni- ture, appurtenances, stores, and cargo) used, and any fish taken; or retained, in any manner, in connection with or as a result of the commis- sion of any act prohibited by section 1857 of this title (other than any act for which the issuance of a citation under section 1861(c) ot this title is sufficient sanction) shall be subject to forfeiture to the United States. All or part of such vessel may, and all such fish shall, be for- feited to the United States pursuant to a civil proceeding under this section, . (b) Jurisdiction of courts.-Any district court of the United States which has jurisdiction under section 1861(d) of this title shall have jurisdiction, upon application by the Attorney General on behalf of the United States, to order any forfeiture authorized under subsection (a) of this section and any action provided for under subsection (d) of this section. 217 (c) Judgment.--If a judgment is entered for the United States in a civil forfeiture proceeding under this section, the Attorney General may seize any property or other interest declared forfeited to the United States, which has not previously been seized pursuant to this chapter or for which security has not previously been obtained under subsection (d) of this section. The provisions of the customs laws relating to- (1) the disposition of forfeited property, (2) the proceeds from the sale of forfeited property, (3) the remission or mitigation of forfeitures, and (4) the compromise of claims, shall apply to any forfeiture ordered, and to any case in which forfeiture is alleged to be authorized, under this section, unless such provisions are inconsistent with the purposes, policy, and provisions of this chapter. The duties and powers imposed upon the Commissioner of Customs or other persons under such provisions shall, with respect to this chapter, be performed by officers or other persons designated for such purpose by the Secretary. (d) Procedure.-(1) Any officer authorized to serve any process in rem which is issued by a court having jurisdiction under section 1861(d) of this title shall-- (A) stay the execution of such process; or (B) discharge any fish seized pursuant to such process; upon the receipt of a satisfactory bond or other security from any person claiming such property. Such bond or other security shall be conditioned upon such person (i) delivering such property to the appropriate court upon order thereof, without any impairment of its value, or'(ii) paying the monetary value of such property pursuant to an order of such court. Judgment shall be recoverable'on such bond or other security against both the principal and any sureties in the event that any condition thereof is breached, as determined by such court. (2) Any fish seized pursuant to this chapter may be sold, subject to the approval and direction of the appropriate court, for not less than the fair market value thereof. The proceeds of any such sale shall be deposited with such court pending the disposition of the matter involved. (e) Rebuttable presumption.-For purposes of this section, it shall be a rebuttable 'presumption that all fish found'on board a fishing vessel which' is eized iri connection'with an' act prohibited by section 1857' of "thiSitlte were taken oi'i'etalned in violation of this chapter. �1861. Enforcement .... (a) Resposqlbility.-The provisions of this chapter shall be enforced by the Secretary and the Secretary of the department in which the Coast Guard is operating. Such Secretaries may, by agreement, on a re~m- bursable basis 'or otherwise, utilize the personnel, services, equipment (including aircraft and vessels), and facilties qf any 'other Federal agency, including all elements of the Department of Defense, and of 'ngy State agency, in the .erforpance of such duties;' Such Secretaries Shall report semiannually, to each committee of the Congress listed In section 1823(b) of this title and to the Councils, on the degree and extent of known and estimated compliance with the provisions of this chapter. (b) Powers of authorized 'officers.-Any officer who is authorized (by' the Secretary, the Secretary of the department In which the Coast Guard is operating, or the head of any Federal or State agency which has entered into an agreement with such Secretaries under subsection (a) of this section to enforce the provisions of this chapter may- ' (1) with or without a warrant or other process- - (A) arrest any person, if he has reasonable cause to believe that such person has committed an act prohibited by section 1857 of this title; (B) board, and search or inspect, any fishing vessel which is subject to the provisions of this chapter; (C) seize any fishing vessel (together with its fishing gear, furniture, appurtenances, stores, and cargo) used or employed in, or with respect to which it reasonably appears that such vessel was used or employed in, the violation'of any provision of this chapter; (D) seize any fish (wherever found) taken or retained in violation of any provision of this chapter; and (E) seize any other evidence related to any violation of any provision of this chapter; (2) execute any warrant or other process issued by any court of competent jurisdiction; and (3) exercise any other lawful authority. 218 (c) Issuance of citations.-If any officer authorized to enforce the provisions of this chapter (as provided for in this section) finds that a fishing vessel is operating or has been operated in violation of any provision of this chapter, such officer may, in accordance with regula- tions issued jointly by the Secretary and the Secretary of the department in which the Coast Guard is operating, issue a citation to the owner or operator of such vessel in lieu of proceeding under subsection (b) of this section. If a permit has been issued pursuant to this chapter for such vessel, such officer shall note the issuance of any citation under this subsection, including the date thereof and the reason therefor, on the permit. The Secretary shall maintain a record of all citations issued pursuant to this subsection. (d) Jurisdiction of courts.-The district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under the provisions of this chapter. In the case of Guam, and any Commonwealth, territory, or possession of the United States In the Pacific Ocean, the appropriate court is the United States District Court for the District of Guam, except that in the case of American Samoa, the appro- priate court is the United States District Court for the District'of Hawaii. Any such court may, at any time- (1) enter restraining orders or prohibitions; (2) issue warrants, process in rem, or other process; (3) prescribe and accept satisfactory bonds or other security; and (4) take such other actions as are in the interest of justice. (e) Definition.-For purposes of this section- (1) The term "provisions of this chapter" includes (A) any regu- lation or permit issued pursuant to this chapter, and (B) any pro- vision of, or regulation Issued pursuant to, any international fishery agreement under which foreign fishing is authorized by section 1821 (b) or (c) of this title, with respect to fishing subject to the exclu- sive fishery management authority of the United States. (2) The term "violation of any provision of this chapter" includes.. (A) the commission of any act prohibited by section 1857 of this title, and (B) the violation of any regulation, permit, or agreement referred to in paragraph (1). 219 Notes 1. Prior United States authority over fishing arose from the Fishing Zone Extra-Territorial Sea Act of 1966, which ex- tended jurisdiction to 12 nautical miles. The Bartlett Act, passed in 1964, made it unlawful for vessels to take sedentary species (such as crab) from the continental shelf. Both acts were repealed by the FCMA. Consider also that 200 nautical miles is the equivalent of 230 statute miles, or roughly the distance between New York City and Washington, D.C. It is also interesting to note that with the adoption of the FCMA the United States acquired the largest fishing zone in world, more than 2.2 million square nautical miles. See Alexander and Hodgson, The Impact of the 200-Mile Economic Zone on the Law of the Sea, 1L2 S-an Diego L. Rev. 569 (1975). 2. How will anadromous species, such as salmon, which range beyond the 200-nautical mile limit but return to inland streams to spawn be managed? See section 1812(2). What is the justification for the extension of authority under section 1812(2)? Notice the only limitation on authority under section 1812(2) is that of other nations' regulatory zones. Also, it has been speculated that the type of authority exercised under 1812(2) would be unacceptable to the majority of the representatives to the United Nations Law of the Sea Conference. 3. Which is the more persuasive: (1) With the declaration of the 200--nautical mile fishing zone, the Japanese salmon fishermen will abrogate the North Pacific Fisheries Treaty (which sets a western boundary for their fishing operations) and fish within the abstention line, thus severely restricting the United States catch; or (2) Other fish taken by the Japanese within the 200-mile zone are more important to them and can be used as a negotiating tool by the United States in the attempt to enforce salmon regulation under the anadromous species section. Obviously, Congress believed the latter. See H. Rep. No. 445, 94th Cong., 1st Sess. 48 (1975). 4. Fishing for highly migratory species is exempt from regulation under the FCMA. Section 1813. The United States tuna industry feared that the inclusion of highly migratory species, such as tuna, within the scope of regulation would destroy their operation, which depends upon the freedom of wide ranging travel to take the speeding tuna. See Comment, The 200-Mile Exclusive Economic Zone: Death Knell for the American Tuna Industry, 13 San Diego L. Rev. 707 (1976). 220 C. State Law NORTH CAROLINA GENERAL STATUTES Chapter 113 SUBCHAPTER IV. CONSERVATION OF FISHERIES RESOURCES. ARTICLE 12. General Definitions. � 113-127. Application of Article. - Unless the context clearly requires otherwise, the definitions in this Article apply throughout this Subchapter. � 113-128. Definitions relating to agencies and their powers. - The following definitions apply to powers and administration of agencies charged with the conservation of marine and estuarine and wildlife resources: (1) Commercial and Sports Fisheries Inspector. - An employee of the Department of Natural and Economic Resources sworn in as an officer and assigned the duties which include exercise of law-enforcement power. All references in statutes, regulations, contracts, and other legal and official documents to commercial fisheries inspectors apply to commercial and sports fisheries inspectors. (2) Committee. - Commercial and Sports Fisheries Committee. (3) Department. - Department of Natural and Economic Resources. (4) Executive Director. - Executive Director, North Carolina Wildlife Resources Commission. (5) Inspector. - Commercial and sports fisheries inspector. (6) Notice; Notify. - Where it is required that notice be given an agency of a situation within a given number of days, this places the burden on the person giving notice to make sure that the information is received in writing by a responsible member of the agency within the time limit. (7) Protector. - Wildlife protector. (8) Secretary. - Secretary of Natural and Economic Resources. (9) Wildlife Protector. - An employee of the North Carolina Wildlife Resources Commission sworn in as an officer and assigned to duties which include exercise of law-enforcement powers. (10) Wildlife Resources Commission. - North Carolina Wildlife Commission as established by Article 24 of Chapter 143 of the General Statutes of North Carolina and as modified by any amendments which became effective prior to 1974. � 113-129. Definitions relating to resources. - The following definitions apply in the description of the various marine and estuarine and wildlife resources: (1) Bushel. - A dry measure containing 2,150.42 cubic inches. (2) Coastal Fisheries. - Any and every aspect of cultivating, taking, possessing, transporting, processing, selling, utilizing, and disposing of fish taken in coastal fishing waters, whatever the manner or purpose of taking, except for the regulation of inland game fish in coastal fishing waters which is vested in the Wildlife Resources Commission; and all such dealings with fish, wherever taken or found, by a person primarily concerned with fish taken in coastal fishing waters so.as to be placed under the administrative supervision of the Department. Provided, that the Department is given no authority over the taking of fish in inland fishing waters. Except as provisions in this Subchapter or in regulations of the Marine Fisheries Commission authorized under this Subchapter may make such reference inapplicable, all references in statutes, regulations, contracts, and other legal or official documents to commercial fisheries apply to coastal fisheries. 221 (3) Coastal Fishing. - All fishing in coastal fishing waters. Except as provisions in this Subchapter or in regulations of the Department of Natural and Economic Resources authorized under this Subchapter may make such references inapplicable, all references in statutes, regulations, contracts, and other legal or official documents to commercial fishing apply to coastal fishing. (4) Coastal Fishing Waters. - The Atlantic Ocean; the various coastal sounds; and estuarine waters up to the dividing line between coastal fishing waters and inland fishing waters agreed upon by the Department and the Wildlife Resources Commission. Except as provisions in this Subchapter or changes in the agreement between the Department and the Wildlife Resources Commission may make such reference inapplicable, all references in statutes, regulations, contracts, and other legal or official documents to commercial fishing waters apply to coastal fishing waters. (5) Crustaceans. - Crustacea, specifically including shrimp and hard- and soft-shelled crabs. (6) Fisheries Resources. - Marine and estuarine resources and such wildlife resources as relate to fish. (7) Fish; Fishes. - All marine mammals; all shellfish; all crustaceans; and all other fishes. (8) Game Fish. - Inland game fish and such other game fish in coastal fishing waters as may be regulated by the Department. (9) Inland Fishing Waters. - All inland waters except private ponds; and all waters connecting with or tributary to coastal sounds or the ocean extending inland from the dividing line between coastal fishing waters and inland fishing waters agreed upon by the Department and the Wildlife Resources Commission. (10) Inland Game Fish. - Those species of freshwater fish, wherever found, and migratory saltwater fish, when found in inland fishing waters, as to which there is an important element of sport in taking and which are denominated as game fish in the regulations of the Wildlife Resources Commission. No species of fish of commercial importance not classified as a game fish in commercial fishing waters as of January 1, 1965, may be classified as an inland game fish in coastal fishing waters without the concurrence of the Department. (11) Marine and Estuarine Resources. - All fish, except inland game fish, found in the Atlantic Ocean and in coastal fishing waters; all fisheries based upon such fish; all uncultivated or undomesticated plant and animal life, other than wildlife resources, inhabiting or dependent upon coastal fishing waters; and the entire ecology supporting such fish, , fisheries, and plant and animal life. (12) Nongame Fish. - All fish found in inland fishing waters other than inland game fish. (13) Private Pond. - A body of water arising within and lying wholly upon the lands of a single owner or a single group of joint owners or tenants in common, and from which fish cannot escape, and into which fish of legal size cannot enter from public waters at any time. (14) Shellfish. - Mollusca, specifically including oysters, clams, mussels, and scallops. (15) Wild Animals. - Game animals; fur-bearing animals; and such other wild mobile creatures included in the definition of wildlife resources which in the discretion of the Wildlife Resources Commission need protection or regulation in the interests of conservation of wildlife resources. (16) Wildlife. - Wild animals; wild birds; all fish found in inland fishing waters; and inland game fish. Unless the context clearly requires otherwise, the definitions of wildlife, wildlife resources, wild animals, wild birds, fish, and the like are deemed to include species normally wild, or indistinguishable from wild species, which are raised or kept in captivity. (17) Wildlife Resources. - All wild birds; all wild mammals other than marine mammals found in coastal fishing waters; all fish found in inland fishing waters, including migratory saltwater fish; all inland game fish; all uncultivated or undomesticated plant and animal life inhabiting or depending upon inland fishing waters; waterfowl food plants wherever found, except that to the extent such plants in coastal fishing waters affect the conservation of marine and estuarine resources the Department is given concurrent jurisdiction as to such plants; all undomesticated terrestrial creatures; and the entire ecology supporting such birds, mammals, fish, plant and animal life, and creatures.' 222 � 113-130. Definitions relating to activities of public. - The following definitions apply to activities of the public in regard to marine and estuarine and wildlife resources: (1) Individual. - A human being. (2) Owner; Ownership.-As for personal property, refers to persons having beneficial ownership and not to those holding legal title for security; as for real property, refers to persons having the present right of control, possession, and enjoyment, whether as life tenant, fee holder, beneficiary of a trust, or otherwise. Provided, that this definition does not include lessees of property except where the lease arrangement is a security device to facilitate what is in substance a sale of the property to the lessee. (3) Person. - Any individual; or any partnership, firm, association, corporation, or other group of individuals capable of suing or being sued as an entity. (4) Resident. - In the case of individuals, one who, at the time in question, has resided in North Carolina for the preceding six months or has been domiciled in North Carolina for the preceding 60 days, provided that when resort must be had to the circumstances of domicile rather than the mere fact of residence, such individual shall sign a certificate on a form supplied by the Wildlife Resources Commission stating the necessary facts and intent to constitute legal domicile within the State for the preceding 60 days. In the case of corporations, a corporation which is chartered under the laws of North Carolina and has its principal office within the State. (5) To Fish. - To take fish. (6) To Sell; Sale. - Includes a sale or exchange of property, or an offer or attempt to sell or exchange - for money or any other valuable consideration. (7) To Take. - All operations during, preparatory, and subsequent to an attempt - whether successful or not - to capture, kill, pursue, or otherwise harm or reduce to possession any fisheries resources. (8) Vessel. - Every description of watercraft, other than a seaplane on the water, used or capable of being used as a means of transportation on water. ARTICLE 13. Jurisdiction of Fisheries Agencies. � 113-131. Resources belong to public; stewardship of conservation agencies. - The marine and estuarine and wildlife resources of the State belong to the people of the State as a whole. The Department and the Wildlife Resources Commission are charged with stewardship of these resources. � 113-132. Jurisdiction of fisheries agencies. - (a) The Department has jurisdiction over the conservation of marine and estuarine resources. Except as may be otherwise provided by law, it has jurisdiction over all activities connected with the conservation and regulation of marine and estuarine resources. (b) The Wildlife Resources Commission has jurisdiction over the conservation of wildlife resources. Except as may be otherwise provided by law, it has jurisdiction over all activities connected with the conservation and regulation of wildlife resources. (c) Notwithstanding the provisions of this Article, the Department and the 1w, Wildlife Resources Commission do not have jurisdiction over matters with respect to which jurisdiction may now or hereafter be vested in the Environmental Management Commission, the Department of Natural and Economic Resources, or the Commission for Health Services. 223 (d) To the extent that the grant of jurisdiction to the Department and the Wildlife Resources Commission may overlap, the Department and the Wildlife Resources Commission are granted concurrent jurisdiction. In cases of conflict between actions taken or regulations promulgated by either agency, as respects the activities of the other, pursuant to the dominant purpose of such jurisdiction, the Department and the Wildlife Resources Commission are empowered to make agreements concerning the harmonious settlement of such conflict in the best interests of the conservation of the marine and estuarine and wildlife resources of the State. In the event the Department and the Wildlife Resources Commission cannot agree, the Governor is empowered to resolve the differences. (e) Those coastal fishing waters in which are found a significant number of freshwater fish, as agreedupon by the Department and the Wildlife Resources Commission, may be denominated joint fishing waters. Such waters are deemed coastal fishing waters from the standpoint of laws and regulations administered by the Department and are deemed inland fishing waters from the standpoint of laws and regulations administered by the Wildlife Resources Commission. The Marine Fisheries Commission and the Wildlife Resources Commission may make joint regulations governing the responsibilities of each agency and modifying the applicability of licensing and other regulatory provisions as may be necessary for rational and compatible management of the marine and estuarine and wildlife resources in such joint fishing waters. (f) The granting of jurisdiction in this section pertains to the power of agencies to enact regulations and ordinances. Nothing in this section or in G.S. 113-138 is designed to prohibit law-enforcement officers who would otherwise have jurisdiction from making arrests or in any manner enforcing the provisions of this Subchapter. � 113-133. Abolition of local coastal fishing laws, - The enjoyment of the marine and estuarine resources of the State belongs to the people of the State as a whole and is not properly the subject of local regulation. As the Department is charged with administering the governing statutes and promulgating regulations in a manner to reconcile as equitably as may be the various competing interests of the people as regards these resources, considering the interests of those whose livelihood depends upon full and wise use of renewable and nonrenewable resources and also the interests of the many whose approach is recreational, all special, local, and private acts and ordinances regulating the conservation of marine and estuarine resources are repealed. Nothing in this section is intended to invalidate local legislation or local ordinances which exercise valid powers over subjects other than the conservation of marine and estuarine resources, even though an incidental effect may consist of an overlapping or conflict of jurisdiction as to some particular provision not essential to the conservation objectives set out in this Subchapter. � 113-134. Regulations. - The Marine Fisheries Commission or the Wildlife Resources Commission, as appropriate, are empowered to promulgate regulations implementing the provisions of this Chapter, within the limits of the jurisdiction granted in this Article. 224 � 113-134.1. Jurisdiction over marine resources in Atlantic Ocean. - The State of North Carolina shall exercise all such jurisdiction it possesses under the State Constitution necessary for the maintenance, preservation and protection of all marine fisheries'resources from their inland reaches to a line drawn parallel to the entire coastline at a distance of 200 miles or where the water depth reaches 100 fathoms, whichever is greater. The Department of Natural and Economic Resources is hereby given the authority to promulgate the rules and regulations necessary to carry out the intent of this section; provided, however, that no such rule or regulation shall become effective until it has been approved by the General Assembly. Such rules and regulations shall be designed to prevent substantial depletion or damaging of the various marine fisheries resources. Any violation of the rules and regulations promulgated under the authority of this section shall constitute a misdemeanor, punishable by imprisonment not to exceed two years, or by a fine not to exceed one thousand dollars ($1,000) or by both such fine and imprisonment. The rules and regulations adopted by the Department of Natural and Economic Resources pursuant to this section shall be enforced by the fisheries inspectors, in the same manner and with the same authority vested in them by Chapter 113 of the General Statutes. (1973, c. 1315.) � 113-135. General penalty for violating Subchapter or regulations. - Any person who violates any provision of this Subchapter or any regulation adopted by the Marine Fisheries Commission or the Wildlife Resources Commission, as appropriate, pursuant to the authority of this Subchapter is guilty of a misdemeanor. Unless a different level of punishment is elsewhere set out, anyone convicted of such a misdemeanor may be fined not exceeding fifty dollars ($50.00). Noncriminal sanctions, such as license revocation or suspension, and exercise of powers auxiliary to criminal prosecution, such as seizure of property involved in the commission of an offense, do not constitute alternative levels of punishment so as to oust criminal liability. � 113-136. Enforcement authority of inspectors and protectors; refusal to obey or allow inspection by inspectors and protectors. - (a) Inspectors and protectors are granted the powers of peace officers anywhere in this State in enforcing all matters within their respective subject-matter jurisdiction as set out in this section. (b) The jurisdiction of inspectors extends to all matters within the jurisdiction of the Department of Natural and Economic Resources as set out in this Subchapter and to all other matters within the jurisdiction of the Department of Natural and Economic Resources. (c) The jurisdiction of protectors extends to all matters within the jurisdiction of the Wildlife Resources Commission, whether set out in this Chapter, Chapter 75A, Chapter 143, or elsewhere. (d) Inspectors and protectors are additionally authorized to arrest without warrant under the terms of G.S. 15A-401(b) for felonies, for breaches of the peace, for assaults upon them or in their presence, and for other offenses evincing a flouting of their authority as enforcement officers or constituting a threat to public peace and order which would tend to subvert the authority of the State if ignored. In particular, they are authorized, subject to the direction of their administrative superiors, to arrest for violations of G.S. 14-223, 14-225, 14-269, and 14-277. (e) Inspectors and protectors may serve warrants, subpoenas, and other process connected with any cases within their subject-matter jurisdiction. In the exercise of their law-enforcement powers, inspectors and protectors are subject to provisions relating to police officers in general set out in Chapter 15 and elsewhere. (f) Inspectors and protectors are authorized to stop temporarily any persons they reasonably believe to be engaging in activity regulated by their respective agencies to determine whether such activity is being conducted within the requirements of the law, including license requirements. If the person stopped is in a motor vehicle being driven at the time and the inspector or protector in question is also in a motor vehicle, the inspector or protector is required to sound a siren or activate a special light, bell, horn, or exhaust whistle approved for law-enforcement vehicles under the provisions of G.S. 20-125(b) or 20-125(c). 225 (g) Protectors may not temporarily stop or inspect vehicles proceeding along primary highways of the State without clear evidence that someone within the vehicle is or has recently been engaged in an activity regulated by the Wildlife Resources Commission. Inspectors may temporarily stop vehicles, boats, airplanes, and other conveyances upon reasonable grounds to believe that they are transporting taxable seafood products; they are authorized to inspect any seafood products being transported to determine whether they were taken in accordance with law and to require exhibition of any applicable license, tax receipts, permits, bills of lading, or other identification required to accompany such seafood products. (h) The refusal of any person to stop in obedience to the implicit or explicit directions of an inspector or protector acting under the authority of this section is unlawful. It is unlawful to refuse to exhibit upon request any license, permit, tax receipt, certificate, or identification required to be carried by any law or regulation as to which inspectors and protectors have enforcement jurisdiction. It is unlawful to refuse to allow inspectors and protectors to inspect weapons, equipment, fish, or wildlife regulated by any law or regulation as to which inspectors and protectors have enforcement jurisdiction. (i) Nothing in this section authorizes searches within the curtilage of a dwelling or of the living quarters of a vessel in contravention of constitutional prohibitions against unreasonable searches and seizures. (j) The refusal of any person to stop in obedience to explicit directions of an inspector or protector acting under the authority of this section is unlawful. A violation of this subsection (j) is punishable by a fine of not less than fifty dollars ($50.00) nor more than two hundred dollars ($200.00) or imprisonment of up to 30 days or both. (k) It is unlawful to refuse to exhibit upon request any license, permit, tax receipt, certificate, or identification required to be carried by any law or regulation as to which inspectors and protectors have enforcement jurisdiction. It is unlawful to refuse to allow inspectors and protectors to inspect weapons, equipment, fish, or wildlife regulated by any law or regulation as to which inspectors and protectors have enforcement jurisdiction. (1) Nothing in this section authorizes searches within the curtilage of a dwelling or of the living quarters of a vessel in contravention of constitutional prohibitions against unreasonable searches and seizures. � 113-137. Search on arrest; seizure and confiscation of property; disposition of confiscated property. - (a) Every inspector or protector who arrests a person for an offense as to which he has enforcement jurisdiction is authorized to search the person arrested and the surrounding area for weapons and for fruits, instrumentalities, and evidence of any crime for which the person arrested is or might have been arrested. (b) Every inspector or protector who issues a citation instead of arresting a person, in cases in which the inspector or protector is authorized to arrest, may seize all lawfully discovered evidence, fruits, and instrumentalities of any crime as to which he has arrest jurisdiction and probable cause. (c) Every inspector or protector who in the lawful pursuit of his duties has probable cause for believing he has discovered a violation of the law over which he has jurisdiction may seize in connection therewith any fish, wildlife, weapons, equipment, vessels, or other evidence, fruits, or instrumentalities of the crime, notwithstanding the absence of any person in the immediate area subject to arrest or the failure or inability of the inspector or protector to capture or otherwise take custody of the person guilty of the violation in question. Where the owner of such property satisfies the Secretary or the Executive Director, as the case may be, of his ownership and that he had no knowledge or culpability in regard to the offense involving the use of his property, such property must be returned to the owner. If after due diligence on the part of employees of the 226 Department or the Wildlife Resources Commission, as the case may be, the identity or whereabouts of the violator or of the owner of the property seized cannot be determined, such property may be sold by the Department or the Wildlife Resources Commission in accordance with the provisions of this section. (d) The Department and the Wildlife Resources Commission may provide by regulation for summary disposition of live or perishable fish seized by an inspector or protector pursuant to subsection (b) or (c) or pursuant to a search authorized under subsection (a). If the property seized consists of live fish which may again be placed to the benefit of the public on public grounds or in public waters, the inspector or protector may require the person in possession of the seized live property to transport it such distance as may be necessary to effect placement on appropriate grounds or waters. In the event of refusal by the person in question to transport the property, the inspector or protector must take appropriate steps to effect such transportation. The steps may include seizure of any conveyance or vessel of the person refusing to transport the property. Where a conveyance or vessel is seized, it is to be safeguarded by the inspector or protector seizing it pending trial and it becomes subject to the orders of the court. Such transportation costs as may be borne by the Department or by the Wildlife Resources Commission, as the case may be, may be collected by the agency from the proceeds of the sale of any other property of the defendant seize and sold in accordance with the provisions of this section. Except as provided in subsection (g), where the seizure consists of edible fish which is not alive, may not live, or may not otherwise benefit conservation objectives if again pJaced on public grounds or in public waters, the inspector or protector must dispose of the property by turning it over to one or more appropriate public or charitable or nonprofit agencies or institutions, in accordance with the directions of his administrative superiors. (e) Except as otherwise specifically provided in this section, all property seized must be safeguarded pending trial by the inspector or protector initiating the prosecution. Upon a conviction the property seized in connection with the offense in question is subject to the disposition ordered by the court. Upon an acquittal, property seized must be returned to the defendant or established owner, except: (1) Where the property was summarily disposed of in accordance with subsection (d); (2) Where possession of the property by the person to whom it otherwise would be returned would constitute a crime; and (3) Where the property seized has been sold in accordance with subsection (g). In this event the net proceeds of the sale must be returned to the defendant or established owner, as the case may be. Where property seized summarily under subsection (d) is not available for return, an acquitted defendant or established owner is entitled to no compensation where there was probable cause for the action taken. In safeguarding property seized pending trial, an inspector or protector is authorized in his discretion, subject to orders of his administrative superiors, to make his own provisions for storage or safekeeping or to deposit the property with the sheriff of the county in which the trial is to be held for custody pending trial. In the event the mode of safekeeping reasonably selected by the inspector or protector entails a storage or handling charge, such charge is to be paid as follows: (1) By the defendant if he is convicted but the court nevertheless orders the return of the property to the defendant; (2) From the proceeds of the sale of the property if the property is sold under court order or in accordance with the provisions of this section; or (3) By the Department or by the Wildlife Resources Commission, as the case may be, if no other provision for payment exists. 227 (f) Subject to orders of his administrative superiors, an inspector or protector in his discretion may leave property which he is authorized to seize in the possession of the defendant with the understanding that such property will be subject to the orders of the court upon disposition of the case. Willful failure or inexcusable neglect of the defendant to keep such property subject to the orders of the court is a misdemeanor punishable in the discretion of the court. In exercising his discretion, the inspector or protector should not permit property to be retained by the defendant if there is any substantial risk of its being used by the defendant in further unlawful activity. (g) Where a prosecution involving seized saleable fish is pending and such fish are perishable or seasonal, the inspector or protector may apply to the court in which the trial is pending for an order permitting sale prior to trial. As used in this subsection, seasonal fish are those which command a higher price at one season than at another so that economic loss may occur if there is a delay in the time of sale. When ordered by the court, such sale prior to trial must be conducted in accordance with the order of the court or in accordance with the provisions of this section. The net proceeds of such sale are to be deposited with the court and are subject to the same disposition as would have been applicable to other types of property seized. Where sale is not lawful or otherwise not practicable or where prosecution is not pending, disposal of the fish is in accordance with subsection (d). (h) Pending trial, the defendant or the established owner of any nonperishable and nonconsumable property seized may apply to the court designated to try the offense for return of the property. The property must be returned pending trial if: (1) The court is satisfied that return of the property will not facilitate further violations of the law; and (2) The claimant posts a bond for return of the property at trial in an amount double the value of the property as assessed by the court. (i) Upon conviction of any defendant for a violation of the laws or regulations administered by the Department or the Wildlife Resources Commission under the authority of this Subchapter, the court in its discretion may order seizure and sale of all weapons, equipment, vessels, conveyances, fish, and other evidence, fruits, and instrumentalities of the offense in question - whether or not seized or made subject to the orders of the court pending trial. The defendant may appeal the reasonableness of any order of seizure and sale. Unless otherwise specified in the order of the court, such sales are to be held by the Department or by the Wildlife Resources Commission, as the case may be. The Marine Fisheries Commission and the Wildlife Resources Commission may by regulation provide for an orderly public sale procedure of property which it may sell under the provisions of this section. Such procedure may include turning the property to be sold over to some other agency for sale, provided that the provisions of subsection (j) are complied with and there is proper accounting for the net proceeds of the sale. In the case of property unlikely to sell for a sufficient amount to offset the costs of sale, the Marine Fisheries Commission and Wildlife Resources Commission may provide for destruction of the property. (j) Except as provided in subsection (d), or in the case of property seized under the provisions of subsection (c) or in any case where it appears that a person not a defendant has an interest in any property to be sold, destroyed or otherwise disposed of, the Marine Fisheries Commission and the Wildlife Resources Commission must provide for public notice of the description of the property and the circumstances of its seizure for a sufficient period prior to the time set for sale or other disposition to allow innocent owners or lienholders to assert their claims. The validity of such claims are to be determined by the trial court in the event there is or has been a prosecution in connection with the seizure of the property. Where there has been no prosecution, the validity of such claims must be determined by the Secretary or by the Executive Director, as the case may be. Where there has been a sale under subsection (g), the provisions of this subsection apply to the net proceeds of the sale. (k) Except as provided in sub ivision (e)(3) and subsection (j), the net proceeds of all sales made pursuant to this section must be deposited in the school fund of the county in which the property was seized. 228 � 113-139. Search warrants. - (a) Inspectors and protectors are authorized to obtain and execute search warrants within the limitations of this section from any official authorized to issue search warrants in accordance with the procedure in Article 11 of Chapter 15A of the General Statutes. (b) Search warrants which inspectors may execute must be for evidence, fruits, or instrumentalities of some criminal offense as to which the Department is granted exclusive or primary jurisdiction in this Subchapter. (c) Search warrants which protectors may execute must be for evidence, fruits, or instrumentalities of some criminal offense as to which the Wildlife Resources Commission is granted exclusive or primary jurisdiction in this Chapter or elsewhere, including Chapters 75A and 143. � 113-138. Enforcement jurisdiction of special officers. - The Marine Fisheries Commission and the Wildlife Resources Commission by regulation may confer law-enforcement powers over matters within their jurisdiction upon the employees of any local, State, or federal public agency who possess special law-enforcement jurisdiction that would not otherwise extend to the subject matter of this Subchapter, The Department of Natural and Economic Resources and Wildlife Resources Commission may confer such powers or not to any particular officers or class of officers as may be convenient or desirable in the interests of conservation of marine and estuarine and wildlife resources. Such conferring of powers does not constitute the appointment of any such special enforcement officer to an additional office and no oath need be taken. ARTICLE 14. Commercial and Sports Fisheries Licenses and Taxes. � 113-151. Regulations of Marine Fisheries Commission. - The [Marine Fisheries Commission] is authorized to make reasonable rules and regulations governing the administration and enforcement of all license requirements and taxes prescribed in this Article. � 113-151.1. License agents. - The Secretary shall commission such persons as in his discretion he deems necessary to be license agents for the Department of Natural and Economic Resources; provided, that at least one such license agent shall be appointed in each county which contains or borders'on coastal fishing waters. Such agents together with the Department of Natural and Economic Resources shall have the authority. and duty to sell all licenses provided for by this Article. Agents shall be compensated not in excess of five percent (5%) of the license fees collected by them. � 113-152. Licensing of vessels; fees. - (a) The following vessels are subject to the licensing requirements of this section: (1) All vessels engaged in commercial fishing operations in coastal fishing waters and (2) All North Carolina vessels engaged in commercial fishing operations without the State which result in landing and selling fish in North Carolina. North Carolina vessels are those which have their primary situs in North Carolina. Motorboats with North Carolina numbers under the provisions of Chapter 75A of the General Statutes are deemed to have their primary situs in North Carolina; documented vessels which list a North Carolina port as home port are deemed to have their primary situs in North Carolina. "Commercial fishing operations" are all operations preparatory to, during, and subsequent to the taking of fish: (1) With the use of commercial fishing equipment or (2) By any means, if a primary purpose of the taking is to sell the fish. It is unlawful for the owner of a vessel subject to licensing requirements to permit it to engage in commercial fishing operations without having first procured the appropriate license. It is unlawful for anyone to command such a vessel engaged in commercial fishing operations without complying with the 229 provisions of this section and of regulations made under the authority of this Article. It is unlawful for anyone to command such a vessel engaged in commercial fishing operations that does not meet the license requirements of this Article or of regulations made under the authority of the Article, or without making reasonably certain that all persons on board are in compliance with the provisions of this Article and regulations made under the authority of this Article. It is unlawful to participate in any commercial fishing operation in connection with which there is a vessel subject to licensing requirements not meeting the licensing requirements under the provisions of this Article or of regulations' made under the authority of this Article. Nothing contained in this section shall require the licensing of any vessel used solely for clamming or oystering by a person not required to have a clami and oyster license under the provisions of G.S. 113-154. Spears or gigs shall not be deemed commercial fishing equipment unless used in an operation the purpose of which is the taking of fish for commercial purposes. (b) Any license that may be required by this section is to be issued in the name of the owner of the vessel. It is unlawful for the owner to permit anyone who is not eligible to have the license issued to him in his own right to command such licensed vessel for the purpose of engaging in commercial fishing operations. It is unlawful for such an ineligible person to command a licensed vessel for such purposes. The license application for a menhaden vessel must stat_ the name of the person in command of the vessel. Upon change in command of a menhaden vessel, the owner must notify the Secretary within 15 days. Upon change in ownership of any licensed vessel, the new owner must notify the Secretary within 15 days. The Marine Fisheries Commission may provide by regulation for replacement of lost license plates upon tender of the original license receipt or upon such other evidence as the Marine Fisheries Commission may deem sufficient. A fee not to exceed fifty cents (50�) may be charged for replacement of a plate. (c) Licenses are issued annually upon a calendar-year basis for vessels of various lengths (length measured straight through the cabin and along the deck, from end to end, excluding the sheer) and types as follows for the fees indicated: (1) Vessels without motors, one dollar ($1.00). ,(2) Vessels with motors not over 18 feet in length, three dollars ($3.00). (3) Vessels with motors over 18 feet but not over 26 feet in length, fifty cents (50�) per foot. (4) Vessels with motors over 26 feet in length, seventy-five cents (75�) per foot. (5) Vessels engaged in menhaden fishing shall be taxed, based on tonnage, as prescribed in subsection (d). Length is measured from end to end over the deck excluding sheer. (d) Vessels engaging in menhaden fishing are subject to the following license and fee requirements: (1) For the mother ship, one dollar and sixty cents ($1.60) per ton, gross tonnage, customhouse measurements. (2) For each purse boat carrying a purse seine used in connection with a licensed mother ship, no license required. (e) Unless otherwise indicated, all licenses in this Article expire on December 31 of each year and are subject to the full license fee regardless of when issued. (f) No persons exempt from the oyster and clam licenses under the provisions of this section may take more than one bushel of oysters and clams in the aggregate on any one day. � 113-153. Vessels fishing beyond territorial waters. - Persons aboard vessels not having their primary situs in North Carqlina which are carrying a cargo of fish taken outside the waters of North Carolina may land and sell their catch in North Carolina either by complying with the licensing provisions of G.S. 113-152 with respect to the vessel in question or by complying, if eligible, with the provisions of G.S. 113-155. The Marine Fisheries Commission may by regulation modify the licensing procedure set out in G.S. 113-152 in order to devise an efficient and convenient procedure for licensing out-of-state vessels after landing in order to permit sale of cargo. Provided, that persons aboard vessels having a primary situs in a jurisdiction that would allow North Carolina vessels without restriction to land and sell their catch, taken outside such jurisdiction, may land and sell their catch in North Carolina without complying 4 with this section. 230 � 113-154. Oyster and clam licenses. - (a) In addition to all other license requirements, every individual engaged in taking oysters or clams from the public or private grounds of North Carolina for commercial use by any means whatever must have first procured an individual oyster and clam license. (b) It is unlawful for any individual to take oysters or clams for commercial use from the public or private grounds of North Carolina without having ready at hand for inspection a current and valid oyster and clam license issued to him personally and bearing his correct name and address. It is unlawful for any such individual taking or possessing freshly taken oysters or clams to refuse to exhibit his license upon the request of an officer authorized to enforce the fishing laws. (c) Oyster and clam licenses are issued annually on a calendar-year basis upon payment of a fee of one dollar ($1.00) upon proof that the license applicant is a resident of North Carolina. (d) In the event an individual possessing an oyster and clam license changes his name or address or receives one erroneous in this respect, he must within 15 days surrender the license for one bearing the correct name and address. An individual prosecuted for failure to possess a valid license is exonerated if he can show that the invalidity consisted solely of an incorrect name or address appearing in a license to which he was lawfully entitled and that the erroneous condition had not existed for longer than 15 days. (e) It is unlawful for an individual issued an oyster and clam license to transfer or offer to transfer his license, either temporarily or permanently, to another. It is unlawful for an individual to secure or attempt to secure an oyster or clam license from a source not authorized by the Department. � 113-155. Licenses to land and sell fish. - (a) Except as otherwise provided in this Article, it is unlawful for any person to sell fish, no matter where or how taken, to a fish dealer required to be licensed under this Article unless the fish were taken lawfully and unless: (1) He has a current and valid license to land and sell fish. issued to him personally and has received less than two hundred dollars ($200.00) on account of the sale of fish within the last 12 months; or (2) The fish were taken in a commercial fishing operation meeting all licensing requirements, and he was a party to the operation; or (3) The fish were taken by him, whether by sport or commercial methods, through the use of a vessel currently and validly licensed under G.S. 113-152; or (4) The fish were taken by him in inland fishing waters in conformity with laws and regulations administered by the [Wildlife Resources] Commission and are of a type permitted to be sold by the [Wildlife Resources] Commission; or (5) He is a licensed fish dealer. (b) In the case of oysters or clams a license to land and sell is not required, but the person selling must satisfy the dealer that he took them or participated in the taking, that he then had a current and valid oyster and clam license issued to him personally, and that the oysters or clams were taken lawfully. In the event the person selling is a dealer, he must satisfy the purchasing dealer that the oysters or clams were acquired in conformity with law. (c) Dealers purchasing fish must record such information relating to purchases as required by the Department of Natural and Economic Resources to implement the provisions of this section. (d) Annual licenses to land and sell are issued on a calendar-year basis to individual residents and nonresidents upon payment of a fee of two dollars ($2.00). (e) Any individual who receives in excess of two hundred dollars ($200.00) in cash or equivalent value within any 12-month period on account of the sale of fish is not entitled to a license to land and sell. If not covered by any exemption from license requirements, he must comply with licensing provisions applicable to vessels (or secure compliance by the owner of any vessel that may be involved) or comply with licensing provisions applicable to dealers, as may be appropriate. The Marine Fisheries Commission may implement this subsection by regulations clarifying which license is required in particular situations. In the event the 231 taking of fish is done without the use of a vessel but the vessel license rather than the dealer license is the appropriate one, the Marine Fisheries Commission may by regulation determine which vessel license may be applicable on the basis of amount or value of fish taken and the average size of vessels ordinarily used to take such quantity or value of fish. (f) It is unlawful for an individual issued a license to land and sell to transfer or offer to transfer his license, either temporarily or permanently, to another. It is unlawful for an individual to secure or attempt to secure an oyster and clam license from a source not authorized by the Department. � 113-155.1. Commercial fishermen; identification. - Upon request by a licensed commercial fisherman, the Department of Natural and Economic Resources shall issue to him a suitable card which shall identify him as a commercial fisherman. Each identification card issued shall bear an expiration date, which date shall be the date on which the license issued to such fisherman expires, and such card may be renewed annually for so long as a valid commercial fishing license is in effect. The Secretary of Natural and Economic Resources shall prescribe the form and contents of such identification cards and shall promulgate the necessary rules and regulations relative to their issuance. � 113-156. Licenses for fish dealers. - (a) Except as otherwise provided in this Article, every person who sells fish or has any connection whatever with fish that results in his enrichment is a fish dealer, provided that individual employees of fish dealers are not fish dealers merely by virtue of transacting the business of their employers. (b) The Marine Fisheries Commission may make reasonable regulations to implement this section by clarifying the status of particular classes of persons as regards fish dealerships. Persons all of whose dealings with a category of fish fall under one or more of the following headings are not fish dealers as respects that category: (1) Persons whose dealings in fish are primarily educational, scientific, or official. Scientific, educational, or official agencies may sell fish harvested or processed in connection with research or demonstration projects without being deemed dealers, but such sales are subject to such reasonable regulations as the Marine Fisheries Commission may make governing such sales. (2) Individuals selling legally acquired fish other than oysters and clams to individuals other than dealers on a casual, noncommercial basis, provided that such sales do not net in excess of five hundred dollars ($500.00) in cash or equivalent value in any 12-month period. Any public offer to sell, or peddling of fish, is deemed commercial. (3) Fishermen who sell their catch exclusively to licensed dealers in accordance with G.S. 113-155. (c) Every fish dealer is subject to the licensing requirements of this section unless all fish handled within any particular licensing category meet one or more of the following requirements: (1) The fish are shipped to him by a dealer from without the State. (2) The fish are nongame fish taken in inland fishing waters. (3) The fish are of a kind the sale of which is regulated exclusively by the [Wildlife Resources] Commission. (4) The fish are purchased from a licensed dealer. In the event the seller is a licensed fish dealer, he must satisfy any purchasing fish dealer, whether licensed or unlicensed, that the fish were acquired in conformity with law. It is unlawful for a fish dealer to purchase or sell or in any manner deal in fish except in conformity with the provisions of this section. 232 (d) Every fish dealer subject to the licensing provisions of this section must secure a separate license or set of licenses for each established location. Where a dealer does not have an established location for transacting the fisheries business within the State, the license application must be denied unless the applicant satisfies the Secretary that his residence, or some other office or address, within the State, is a suitable substitute for an established location and that records kept in connection with licensing, sale, and tax requirements will be available for inspection when necessary. Fish dealers' licenses are issued on a calendar-year basis upon payment of a fee as set forth herein upon proof, satisfactory to the Secretary, that the license applicant is a resident of North Carolina. (e) Every fish dealer subject to licensing requirements must secure an annual license at each established location for each of the following activities transacted there, upon payment of the fee set out: (1) Dealing in shellfish: a. Shucker-packer (including sale of shell stock), twenty-five dollars ($25.00). b. Shell stock shipper, ten dollars ($10.00). (2) Dealing in hard and soft crabs: a. Crab processor (including dealing in unprocessed crabs), ten dollars ($10.00). b. Unprocessed crab dealer, five dollars ($5.00). (3) Dealing in shrimp, ten dollars ($10.00). (4) Dealing in finfish, ten dollars ($10.00). (5) Operating menhaden processing plant, one hundred dollars ($100.00). (6) Operating any other fish-dehydrating or oil-extracting plant, fifty dollars ($50.00). Any person subject to fish-dealer licensing requirements who deals in fish not included in the above categories must secure a finfish dealer license. The Department of Natural and Economic Resources may make reasonable regulations implementing and clarifying the dealer categories of this subsection. � 113-157. Taxes on seafood. - (a) Taxes are due and payable to the Department from fish dealers required to be licensed upon delivery to them of any seafood listed in this section taken within the State, whether from public or private grounds, unless accompanied by evidence that the tax levied by this section has already been assessed. The Marine Fisheries Commission may make reasonable regulations governing the assessment of the seafood tax and the Department may make reasonable regulations governing the administration and collection of said tax. (b) In the event the fish dealer required to be licensed is also the fisherman taking the taxable seafood, the Marine Fisheries Commission may make reasonable regulations fixing the point at which the seafood tax becomes due and payable. (c) In the event that the Department of Natural and Economic Resources authorizes a self-assessment method of collecting all or any part of the seafood tax, upon forms furnished to dealers by the Department, all taxes assessed are payable at all times on demand of any inspector or other authorized agent of the Department. If the Secretary becomes satisfied that any dealer granted the privilege of self-assessment has substantially obstructed the efficient and equitable administration of the provisions of this Article, either willfully or through inexcusable neglect, the Secretary may order the dealer's self-assessment privilege terminated. Termination may not exceed 10 days upon the first occasion. Upon the second occasion, the period of termination may not exceed 30 days. Upon the third or any subsequent occasion, the Secretary may terminate the self-assessment privilege indefinitely subject to reinstatement in his discretion. If the Secretary determines that termination of the privilege is 233 likely to aggravate rather than reduce obstruction, he should employ other methods designed to secure compliance with laws, regulations, and reasonable requests of agents of the Department designed to produce equitable and efficient administration and enforcement of the provisions of this Article. (d) The following taxes are applicable to the seafood named below: (1) Oysters, eight cents (8�) per bushel. (2) Clams, six cents (6�) per bushel. (3) Scallops, five cents (5�) per gallon. (4) Soft crabs, two cents (2�) per dozen. (5) Hard crabs, ten cents (10�) per one hundred pounds. (6) Shrimp, green, heads off, fifteen cents (15�) per one hundred pounds. (7) Shrimp, green, heads on, ten cents (10�) per one hundred pounds. (e) In the event the Department of Natural and Economic Resources authorizes a self-assessment method of collecting all or any part of the seafood tax, all records and accounts required to be kept by the Department must be kept in a safe place and reasonable efforts mustbe made to preserve them from loss or destruction. If it becomes impossible to determine the amount of tax assessed for any period owing to loss or destruction of records or accounts, failure to make proper entries, or other fault of the dealer, an agent of the Department must reconstruct the approximate tax payable based upon previous sales in similar periods, the general condition of the market for the time in question, and other relevant information. The tax to be assessed for such period includes a one hundred percent (100%) penalty and is double the reconstructed figure. It is unlawful for any fish dealer to fail to remit upon demand of an authorized agent of the Department all taxes and penalties due. If any dispute arises as to the accuracy of the reconstructed figure, the dealer must bear the burden of showing it to be inaccurate. The dealer may appeal the reconstructed amount to the Secretary and, if dissatisfied, to the Marine Fisheries Commission. The decision of the Marine Fisheries Commission is final. In the event of appeal, the dealer must pay the reconstructed tax plus penalty under protest. ARTICLE 15. Regulation of Coastal Fisheries. � 113-181. Duties and powers of Department. - (a) It is the duty of the Department to administer and enforce the provisions of this Subchapter pertaining to the conservation of marine and estuarine resources. In execution of this duty, the Department may collect such statistics, market information, and research data as is necessary or useful to the promotion of sports and commercial fisheries in North Carolina and the conservation of marine and estuarine resources generally; conduct or contract for research programs or research and development programs applicable to resources generally and to methods of cultivating, harvesting, marketing, or processing fish as may be beneficial in achieving the objectives of this Subchapter; enter into reciprocal agreements with other jurisdictions with regard to the conservation of marine and estuarine resources; and regulate placement of nets and other sports or commercial fishing apparatus in coastal fishing waters with regard to navigational and recreational safety as well as from a conservation standpoint. (b) The Department is directed to make every reasonable effort to carry out the duties imposed in this Subchapter. The Marine Fisheries Commission may make regulations as necessary to implement the work of the Department in carrying out such duties. 234 erty, will execute its powers in such a way as to bring about inijustices to states, their subdivisions, or persons acting pursuant to their permission." Id., at 40. The Submerged Lands Act (lid indeed grant to the States dominion over the offshore seabed within the limits defiled in the Act and released the States from any liability to account for any prior income received frorn state leases that had been granted with respect to the nlarginal sea. But in further exercise of paramount national authority, the Act expressly declared that noth- ing in the Act "shall be deemed to affect in any wise the rights of the United States to the natural resources of that portion of the subsoil and seabed of the Continental Shelf lying seaward and outside of [the marginal seal, all of which natural resources appertain to the United States, and the jurisdiction and control of': which by the United States is confirmed." 43':( U. S. C. � 1302. This declaration by Congress is squarely at odds with the assertions of the States in the present case. So, too, .: is the provision of the Act by which the grant to the States is expressly limited to the seabed within three miles (or three marine leagues in some cases) of the coastline, whether or not the States' historic boundaries might extend farther into the ocean. � 1301 (b). More- over, in the course of litigation dealing with the reach and impact of the Act, the Court has said as plainly as may be that "the Act concededly did not impair the validity of the California, Louisiana, and Texas cases, which are admittedly applicable to all coastal States .... " United States v. Louisiana, 363 U. S. 1, 7 (1960); see also id., at 83 n. 140. We agree with the Special Master when he said: "It is quite obvious that Congress could reserve to the federalgovernment all the rights to the seabed of the continental shelf beyond the three-mile territorial belt of sea (or three leagues in the case of certain Gulf states) only upon the basis that it already had the paramount right to that seabed under the rule laid down in the California case." Report 19. Congress emphatically implemented its view that the United States has paramount rights to the seabed be- yond the three-mile limit when a few months later it enacted the Outer Continental Shelf Lands Act of 1953, 67 Stat. 462, 43 U. S. C. � 1331 et seq. Section 3 of the Act 317 "declared [it] to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and -power of disposition as provided In this subchapter." 43 U. S. C. � 1332 (a). - . The Act then proceeds to set out detailed provisions for the exercise of exclusive jurisdiction in the area and for the leasing and development of the resources of the seabed. Of course, the defendant States were not parties to United States v. California or to the relevant decisions, and they are not precluded by res judicata from liti- gating the issues decided by those cases. But the doc- trine of stare decisis is still a powerful force in our juris- prudence; and although on occasion the Court has declared-and acted accordingly-that constitutional de- cisions are open to re-examination, we are convinced that the doctrine has peculiar force and relevance in the pres- ent context. It is apparent that in the almost 30 years since California, a great deal of public and private busi- ness has been transacted in accordance with those de- cisions and in accordance with major legislation enacted by Congress, a principal purpose of which was to resolve the "interminable litigation" arising over the controversy of the ownership of the lands underlying the marginal sea. See H. R. Rep. No. 215, 83d Cong., 1st Sess., 2 (1953). Both the Submerged Lands Act and the Outer Con- tinental Shelf Lands Act which soon 'followed proceeded from the premises established by prior Court decisions and provided for the orderly development of offshore re- sources. Since 1953, when this legislation was enacted, 33 lease sales have been held, in which 1,940 leases, em- bracing over eight million acres, have been issued. The Outer Continental Shelf, since 1953, has yielded over three billion barrels of oil, 19 trillion m.c.f. of natural gas, 13 million long tons of sulfur, and over four million long tons of salt. In 1973 alone, 1,081,000 barrels of oil and 8.9 billion' cubic 'feet of naturaFgs-: were :extraced' daily from the Outer Continental Shelf. Exploitation of ? our resources offshore implicates a broad range of federalri legislation, ranging from the Longshoremen's and HarborSX Workers' Compensation Act, incorporated into the Outer -�' Continental Shelf Lands Act, to the more recent Coastal : Zone Management Act.8 We are quite sure that it would - be inappropriate to disturb our prior cases, major legisla-2"'. tion, and many years of commercial activity ' by calling 318 into question, at this date, the constitutional premise of prior decisions. We add only that the Atlantic States, by virtue of the California, Louisiana, and Texas cases, as well as by reason of the Submerged Lands Act, have been on notice of the substantial body of authoritative law, both constitutional and statutory, which is squarely at odds with their claims to the seabed beyond the three- mile marginal sea. Neither the States nor their putative lessees lhave been in the slightest misled. Judgment. shall lbe entered for the United States. NOTES In United States v. Florida, 420 U.S. 531(1975), the Court upheld t-h' Special Master's finding that the seaward boundary of Florida in the Atlantic Ocean extended only to the limits specified in �1301(b) of the Submerged Lands Act(three geograph- ical miles) rather than the boundaries defined in the State's 1868 Constitution. B. Regulation o (')CS Drilling OUTER CONTINENTAL SHELF LANDS ACT 43 U.S.C. �1331 et. seq. (enacted 1953) � 1331. Definitions : When used in this subchapter- ' (a) The trrnm "outer Continental Shelf" means all submerged i]a]i lying seaward and outside of the area of lands beneath navigable waters as defined in section 1301 of this title, and of which the sub': soil and seabed appertain to the United States and are subject to it. jurisdiction and control; (b) The term "Secretary" means the Secretary of the Interiorw;'i (c) The term "mineral lease" means any form of authorization the exploration for, or development or removal of deposits of, oil, gas, or other minerals; and (d) The term "person" includes, in addition to a natural person, an association, a State, a political subdivision of a State, or a private, public, or municipal corporation.' � 1332. Congressional declaration of policy; jurisdiction; construction (a) It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter.' 319 (b) This subchapter shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected. � 1333. Laws and regulations governing lands--Const-it o'ti2 United States laws; laws of adjacent States; publication of . pJ: States lines; restriction on State taxation and Jurisdiction (a) (1) The Constitution and laws and civil and political jurisdictioi'oif the United States are extended to the subsoil and seabed of thitier Continental Shelf and to all artificial islands and fixed structures Whch may be erected thereon for the purpose of exploring for, developtngre- moving, and transporting resources therefrom, to the same extentas: It the outer Continental Shelf were an area of exclusive Federal wifidic- tion located within a State: Provided, howerer, That mineral lei on': the outer Continental Shelf shall be maintained or Issued only. under the provisions of this subchapter. (2) To the extent that they are applicable and not Inconslstontwith this subchapter or with other Federal laws and regulations of the Sre- tary now in effect or hereafter adopted, the civil and criminal laws .ofeaeh adjacent State, now in effect or hereafter adopted, amended, or repealed are declared to be the law of the United States for that portifoan'oifhe subsoil and seabed of the outer Contipental Shelf, and artificial,'iads and fixed structures erected thereon, which would be within the at'ea 'ot the State If its boundaries were extended seaward to the outermargin of the outer Continental Shelf, and the Ptesident shall determine an4,- pb- lish in the Federal Register such projected lines extending sea6iFrd and defining each such area. All of such applicable laws shall "t d- ministered and enforced by the appropriate officers and courts':'Of the United States. State taxation laws shall not apply to the outer';?qn- tinental Shelf. .: (3) The provisions of this section for adoption of State law iaStle law of the United Srates shall never be interpreted as a basis for!cl g any interest in or jurisdiction on behalf of any State for any pi e over the seabed and subsoil of the outer Continental Shelf, or tleapiBP arty and natural resources thereof or the revenues therefrom. Coat Guard reguato; ring o e Coast Cunrd roaulitil.q; mnarl;illg of islands nnd strueturecs offenses and penalties , (e) (1) The head of the Department in which the Coast Guard is operating shall have authority to promulgate and enforce such rea- sonable regulations with respect to lights and other warning devices, safety equipment, and other matters relating to the promotion of safety of life and property on the islands and structures referred to in subsection (a) of this section or on the waters adjacent thereto, as he may deem necessary. Prevention of obstruction to navigation by Secretary or the Armni (f) The authority of the Secretary of the Army to prevent ob- struction to navigation in the navigable waters of the United States is extended to artificial islands and fixed structures located on the outer Continental Shelf. � 1334. Administration of leasing-Rules and regulations; amendment; cooperation with State agencies; violations and penalties; compliance with reguldr tions as condition of lease (a) (1) The Secretary shall administer the provisions of this subchapter relating to the leasing of the outer Continental Shelf, and shall prescribe such rules and regulations as may be necessary to carry out such provisions. The Secretary may at any time pre- scribe and amend such rules and regulations as he determines to be 320 necessary and proper in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf, and the protection of correlative rights therein, and, notwith- standing any other provisions herein, such rules and regulations shall apply to all operations conducted under a lease issued or maintained under the provisions of this subchapter. In the enforce- ment of conservation laws, rules, and regulations the Secretary is authorized to cooperate with the conservation agencies of the adjacent States. Without limiting the generality of the foregoing provisions of this section, the rules and regulations prescribed by the Secretary thereunder may provide for the assignment or re- linquishment of leases, for the sale of royalty oil and gas accruing or reserved to the United States at not less than market value, and, in the interest of conservation, for unitization, pooling, drilling agreements, suspension of operations or production, reduction of rentals or royalties, compensatory royalty agreements, subsurface storage of oil or gas in any of said submerged lands, and drilling or other easements necessary for operations or production. (2) Any person who knowingly and willfully'violates any rule or regulation prescribed by the Secretary for the prevention of waste, the conservation of the natural resources, or the protection of cor- relative rights shall be deemed guilty of a misdemeanor and punish- able by a fine of not more than $2,000 or by imprisonment for not more than six months, or by both such fine and imprisonment, and each day of violation shall be deemed to be a separate offense.. The issuance and continuance in effect of-any lease, or of any extension, renewal, or replacement of any lease under the provisions of this subchapter shall be conditioned upon compliance with the regula- tions issued under this subchapter and in force and effect on the date of the issuance of the lease if the lease is issued under the provi- sions of section 1337 of this title, or with the regulations issued un- der the provisions of section 1335(b) (2) of this title if the lease is maintained under the provisions of section 1335 of this title.. Cancellation of lease; Judicial review (b) (1) Whenever the owner of a nonproducing lease fails to com- ply with any of the provisions of this subchapter, or of the lease, or of the regulations issued under this subchapter and in force and effect on the date of the issuance of the lease if the lease is issued-under~ the provisions of section 1337 of this title, or of the regulations is- sued under the provisions of section 1335(b) (2) of this title, if the lease is maintained under the provisions of section 1335 of this title, such lease may be canceled by the Secretary, subject to the right of judicial review as provided in section 1337(j) of this title, if such default continue.sfor the period of thirty days after mailing of notice by registered letter to the lease owner at his record post office ad- dress. ., (2') Whenever the owner of any producing lease fails to. comply with any of the provisions of this subchapter, or of the lease, or of the regulations issued under this subchapter and in force and effect on the date of the issuance of the lease if the lease is issued under the provisions of section 1337 of this title, or of the regulations is- sued under the provisions of section 1335(b) (2) of this title, if the lease is maintained under the provisions of section 1335 of this title, such lease may be forfeited and canceled by an appropriate proceed- ing in any United States district court having jurisdiction under the provisions of section 1333(b) of this title. 321 said submerged lands in the vicinity of the pipeline in such proporz tionate amounts as the Federal Power Commission, in the caseof gas, and the Interstate Commerce Commission, in the case of oil, may, after a full hearing with due notice thereof to the interested parties;. determine to be reasonable, taking into account, among other things, conservation and the prevention of waste. Failure to comply with the provisions of this section or the regulations and conditions pre- scribed thereunder shall be ground for forfeiture of the grant in an appropriate judicial proceeding instituted by the United States in any United States district court having jurisdiction under the provisions of section 1333(b) of this title. Pipeline rights-of-wnay forfeiture of grant (c) Rights-of-way through the submerged lands of the outer Conti- nental Shelf, whether or not such lands are included in a lease main- tained or issued pursuant to this subchapter, may be granted by the Secretary for pipeline purposes for the transportation of oil, natural gas, sulphur, or other mineral under such regulations and upon such conditions as to the application therefor and the survey, location and width thereof as may be prescribed by the Secretary, and upon the express condition that such oil or gas pipelines shall transport or purchase without discrimination, oil or natural gas produced from � 1337. Grant of leases by Secretary-Oil and gas leases; award to highest bidder; method of bidding. Terms and provisions of oil and gas leases (b) An oil and gas lease issued by the Secretary pursuant to this section shall (1) cover a compact area not exceeding five thousand seven hundred and sixty acres, as the Secretary may determine, (2) be for a period of five years and as long thereafter as oil or gas may be plroduced from the area in paying. quantities, or drilling or well reworking operations as approved by the Secretary are conducted thereon, (3) require the payment of a royalty of not less than 121/2 per centum, in the amount or value of the production saved, removed, or sold from the lease, and (4) contain such rental provisions and such other termns and provisions as the Secretary may prescribe a.tthe time of offering the area for lease. Publication of notices of sale anti terms of bidding (f) Notice of sale of leases, and the terms of bidding, authorized by this section shall be published at least thirty days before the date of sale in accordance with rules and regulations promulgated by the Secretary. � 1340. Geological and geophysical explorations Any agency of the United States and any person authorized by the Secretary may conduct geological and geophysical explorations in the outer Continental Shelf, which do not interfere with or endanger actual operations under any lease maintained or granted pursuant to this subchapter, and which are not unduly harmful to aquatic life in such area. Aug. 7, 1953, c. 345, � 11, 67 Stat. 469. 322 � 1341. Reservation of lands and rights-Withdrawal' of unleased lands by President (a) The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf. First recusnl of mineral purchases (b) In time of war, or when the President shall so prescribe, the United States shall have the right of first refusal to purchase at the market price all or any portion of any mineral produced from the outer Continental Shelf. NatiOInal security clause (c) All leases issued under this subchapter, and leases, the main- tenance and operation of which are authorized under this subchap- ter, shall contain or be construed to contain a provision whereby authority is vested in the Secretary, upon a recommendation of the Secretary of Defense, during a state of war or national emergency declared by the Congress or the President of the United States after August 7, 1953, to suspend operations under any lease; and all such leases shall contain or be construed to contain provisions for the payment of just compensation t6'the lessee whose operations are' thus suspended. '^" National defense areas; suspension of operationsl extension of leases (d) The United States reserves and retains the right to designate by and through the Secretary of Defense, with the approval of tfie President, as areas restricted from exploration and operation that part of the outer Continental Shelf needed for national defense; and so long as such designation remains in effect no exploration or opera. tions may be conducted on any part of the surface of such aresa ex- cept with the concurrence of the Secretary of Defense; and if op- erations or production under any lease theretofore issued on lands within any such restricted area shall be suspended, any payment of rentals, minimum royalty, and royalty prescribed by such lease like- wise shall be suspended during such period of suspension of opera- tion and production, and the term of such lease shall be extended by adding thereto any such suspension period, and the United States shall be liable to the lessee for such compensation as is required to be paid under the Constitution of the United States. 0 43 C.F.R. 3300 et. seq. bpart 3300-Outer Continental in submerged lands of the Outer Con- Subpart 3300-OutMiner Deposits; ne l tinental Shelf, as defined in section 2 of Shelf Mineral Deposits; General the act. Subject to the supervisory au- Somrcs: The provisions of this Subpart thority of the Secretary, the regulations 3300 appear at 36 F.R. 0604, June 13, 1970, in this part shall be administered by the unless otherwise noted. Director, Bureau of Land Management, � 3300.0-3 Pulrpoce and anutlority. hereinafter referred to in this part as the The Outer Continental Shelf Lands Act of August 7, 1953 (67 Stat. 462; 43 � 3300.04 Applicability of public land U.S.C. � 1331 et seq.), referred to in this laws. part as "the act", among 'FTier-thlngs, The laws and regulations pertaining authorizes the Secretary of the Interior to the public lands of the United States to issue on a competitive basis leases for are not applicable to the submerged 9il and gas, sulphur, and other minerals lands of the Outer Continental Shelf. 323 Mineral deposits in the submerged lands rector, Geological Survey, shall submit of the Outer Continental Shelf are sub- recommendations to the Director on Ject to disposition only in accordance tract selections and lease terms and with the provisions of the act and the conditions. regulations promulgated by the Scre- � 3301.4 Selectionoftracts. tary thereunder. The Director, prior to the final selee- m o4 tion of tracts for leasing, either selected on his own motion or nominated pur- � 3301.1 Leasingmaps. suant to � 3301.3 of this subpart, shall (a) Any area of the Outer Continental evaluate fully the potential effect of the Shelf which has, been appropriately leasing program on the total environ- platted as provided In paragraph (b) ment, aquatic resources, aesthetics, rec- of this section is subject to lease for reation, and other resources In the entire any mineral not included in a subsist- area during exploration, development ing lease issued under the act or meet- and operational phases. To aid him in lng the requirements of subsection (a) his evaluation and determinations he of section 6 of the act, unless before any shall request and consider the views and lease is offered or issued the unit is (1) recommendations of appropriate Federal withdrawn from disposition pursuant to agencies, may hold public hearinrs after section 12(a) of the act, or (2) desig- appropriate notice, and may consult with inted as an area or part of an area State agencies, organizatlons, industries, restricted froln operation under section and Individuals. The Director shall de- 12(d) of the act. velop special leasing stipulations and (b) As the need arises, the Bureau of conditions when necessary to protect the Land Management will prepare of, cal cnvironment and all other resources, and leasing maps of areas of the Outer Con- such special stipulations and conditions tinental Shelf, which will lb--a md cshall be contained in the proposed notice conform so far ss practicable to the of lease offer. The proposed notice of lease offer, together with all views and method of tract deslanatlon established recommendations received and the Di- by the adjoining State. The arca in- rector's findings or actions thereon, shall eluded in eaeh mineral lease shall be be submitted to the Secretary for final described in accordance with the officlal approval. leasing map. � 3301.5 Notice of lease offer. � 3301.2 Resoureu:s cvaluallon. Upon approval of the Secretary, the From time to time the Director may Director shall publish the notice of lease announce tentative schedules of lease offer at the expense of the United States sales of Outer Continental Shelf areas. in the FEDERAL REGISTER, as the official At such time as an area Is initially con- publication, and in other publications as sidered for mineral leasing, or as the may be desirable. The publication in the need arises, the Director shall request FEDERAL REGISTER shall be at least 30 the Director, Geological Survey, to pre- days prioi to the date of the sale. The pare a summary report describing the notice shall state the place and time at general geology and potential mineral which bids will be filed, and the place, resources of the area and shall request date, and hour at which bids will be other interested Fediial agencies to pre- opened. The notice shall contain any pare reports describing to the extent special stipulations or conditions which known any other valiable resources con- will become a part of any lease issued tained within the general area and the pursuant to such notice, including stip- potential effect of mineral operations ulatlons or conditions for the protection upon the resources or upon the total of the environment, aquatic life and environment. other resources. � 3301.3 Noillnations oaf Ir:eI � 3306,2 Cancellationof lease. In selecting tracts for oil and gas, �3306.2 Cancellaton le sulphur, or other mineral leasing, the Any nonproducing lease issued under Director will receive and consider nomi- the act may be canceled by the author- nations of tracts or requests describing Ized officer whenever the lesee falls to areas and expressing an Interest in leas- comply with any provision of the act or ing of minerals, or, from time to time, lease or applicable regulations in force upon his own motion, upon approval of and effect on the date of the issuance of the Secretary, may Issue calls for noml- the lease, If such failure to comply con- nations of tracts for the leasing of mln- tinues for 30 days after mailing of notice erals in specified areas. Nominations of by registered letter to the lease owner tracts should be addressed to the Dlrec- at his record post office address. Any tor, with copies to the appropriate such cancellation is subject to Judicial Bureau of Land Management field office review as provided in section 8(j) of the and the apl)ropriate oil and gas super- act upon the complaint of any person. visor of the Geological Survey. The Di- Producing leases Issued_tinder tlhe act 324 may be canceled for such failure only long as such designation remains in of-, by Judicial proceedings in the manner feet no exploration or operations may prescrihced in section 5(b) (2) of the act. be conducted on the surface of the leased. Any lease Issued under the act, whether area or the part thereof Included within producing or not, will be canceled by the designation except with the concur- the authorized officer upon proof that rence of the Secretary of Defense. If it was obtained by fraud or misrepre- operations or production under any lease sentation, and after notice and oppor- within any such restricted area shall be tunity to be heard has been afforded to suspended, any payments of rentals, the lessee. minimum royalty, and royalty prescribed a 'r by such lease likewilse shall be suspended . X3307. 4 Exploration and operations, during such period of suspension of operations and production, and the term � 3307.4-1 Purchase of production, of such lease shall be extended by adding In time of war, or when the President thereto any such suspension period, and of the United States shall so prescribe, the United States shall be liable to the the United States shall have the right of lessee for such compensation as is re- quired to be paid under the Constitution first refusal to purchase at the market of the United States. price all or any portion of the oil or gas produced from the leased area, as � 3307.4-4 Geological and geoplyslcanl provided in section 12(b) of the act. exploralZion; rightA-of-way. � 3307.4-2 Suspension of operations The United States reserves the right to during walr or national emergency. authorize the conduct of geological endc Upon recommendation of the Secre- geophysical exploration in the IcMu , tary of Defense, during a state of war or area which does not Interfere with or national emergency declared by the Con- endanger actual operations under the gress or the President of the United lease and the right to grant such ea.se- States after August 7, 1953, the ments or rlghts-of-way, upon, through, Secretary is authorized to suspend or in the leased area as may be neces;sary any or all operations under a lease, or appropriate to the working of other as provided in section 12(c) of the lands containing the deposits described act: Provided, That just compensa- in the act, and to the treatment and tion shall be paid by the United States shipment of products thereof by or to the lessee whose operations are thus under authority of the Governmer.t, ts suspended. lessees or permittees, and for other public purposes, subject to the pro- 3307.4-3 Rlestriction of exploration visions of section 5(c) of the act where and operrations. they are applicable and to all lawful The United States shall have the and reasonable regulations and condl- right, as provided In section 12(d) of tions prescribed by the Secretary there- the act, to restrict from exploration under. and operations the leased area or any part thereof which may be desig- nated by and through the Secretary of Defense, with the approval of the Presi- dent of the United States, as, or as part of, an area of the Outer Continental Shelf needed for national defense. So 30 C.F.R. 250 et. seq. part shall be administered by the Direc- � 250.1 IVurloose xinLd1 autlhority. tor of the Geological Survey through The Outer Continental Shelf Lands the Chief, Conservation Division. Act enacted on August 7, 1953 (67 Stat 4 462), referred to in this part as "the act.' 250.12 Regulation of operations. authorizes the Secretary of the Interior at any time to prescribe and amend such (a) Duties ofl supervisor. The super- rules and regulations, to be applicable to visor in accordance with the regulations all operations conducted under a lease In this part shall inspect and regulate all Issued or maintained under the provisions operations and is authorized to Issue of the act, as he determines to be neces- OCS Orders and other orders and rules sary and proper to provide for the pre- necessary for him to effectively supervise vention of waste and conservation of the operations and to prevent damage to, or natural resources of the Outer Conti- waste or, any natural resource, or injury nental Shelf, and the protection of to life or property. The supervisor shall correlative rights therein. Subject to the receive, and shall, when in his judgment supervisory authority of the Secretary it is necessary, consult with or solicit of the Interior, the regulations in this advice fromale ees _fef Qdoffclal of Inter- 325 ested Departments and agencies, includ- prescribed by the svpervisor. ing the Fish and Wildlife Service, Federal 4 5 Water Pollution Control Administration, � 250.41 Control of wells. Bureau of La.tnd Management, Coast (a) Drilling wells. The lessee shall take Guard, Department of Defense, Corps of all necessary precautions to keep all Engineers, and representatives of State wells under control at all tdies, shall and local governmnents. utilize only personnel trained and com- ac) 0nle, pence suspensions.The su- petent to drill and operate such wells, e(rcvs) Ewes Ufl7dcj suspensions. The su- wand shall utilize and maintain materials peor orlly with z, eithten confrmaton, to and high-pressure fittings and equip- o rsuspald any opervmation, tnclding pro- ment necessary to Insure the safety of susplend anIy ocrto ilun p-operation, inconditions and proocedures. duction, which in hLs Judgment threatens Immedlate, serious, or irreparable harm or damage to life, including aquatic life, 250.43 Pollution ond waste disposal. to property, to the leased deposits, to other valuable mineral deposits or to the (a) The lessee shall not pollute land environment. Stuch emergency suspen- or water or damage the aquatic life of sion shall continue until in his Judgment the s ea or allow extraneous matter to enter and damage any mineral- or water- the threat or danger has termilfnated. be arin g formation. The lessee slah ds- * pose of all liquid and nonliquid waste � 250.1'1 Satmples, tests, anti surveys. materials as prescribed by the supervisor (a) When deemed necessary or advis- All spills or leakage of oil or waste mate- able, the supervisor is authorized to re- rials shall be recorded by the lessee and, quire that adequate tests or surveys be upon request of the supervisor, shall be made in an acceptable manner without reported to him. All spills or leakage cost to the lessor to determine the reser- of a substantial size or quantity, as de- voir energy; the presence, quantity, and fined by the supervisor, and those of any quality of oil, gas, sulphur, other mineral size or quantity which cannot be immedi- deposits, or water; the amount and direc- ately controlled also shall be reported tion of deviation of any well from the by the lessee without delay to the super- vertical; or the formation, casing, tubing. visor and to the Coast Guard and the or other pressures. Regional Director of the Federal Water (b) The supervisor may, at the time Pollutionl Control Administration. All of .approval of any notice to drill or spills.or leakage of oil or waste materials redrill any well, stipulate reasonable of a size or quantity specified by the des- requirements for the taking of formation ignee under the pollution contingency samples or cores to determine the Iden- plan shall also be reported by the lessee tity and character of any formation. without delay to such designee. (b) If the waters of the sea are pol- � 250.30 Lease terms, regulatiols, waste, luted by the drilling or production opera- datlage anlll safety, .tions conducted by or on behalf of the The lessee shall comply with the terms lessee, and such pollution damages or of applicable laws and regulations, the threatens to damage aquatic life, wild- lease terms, OCS Orders and other writ- life, or public or private property, the ten orders and rules of the supervisor control and total removal of the pollut- and with oral orders of the supervisor, ant, wheresoever found. proximately re- AlI such oral orders shall be effectivse suiting therefrom shall be at the expense when issued, and are to be confirmed of the lessee. Upon failure of the lessee In writing as provided in � 250.11. The to control and remove the pollutant the lessee shall take all necessary precau- supervisor, in cooperation with other ap- tions to prevent damage to or waste of propriate agencies of the Federal, State any natural resource or injury to life, and local governments, or in cooperation or property, or the aquatic life of the seas. with the lessee, or both, shall have the ,, ,, I right to accomplish the control and re- �250.38 Well recordls, rnoval of the pollutant in accordance ,, , with any established contingency plan (c) Upon request by the supervisor, for combating oil spills or by other meana the lessee shall submit paleontological at the cost of the lessee. Such action shall reports identifying microscopic fossils not relieve the lessee of any responsil by depth (not the resulting Interpreta- bility as provided herein. tions based upon such identifications) (c) The lessee's liability to third par- unless washed well samples normally ties, other than for cleaning up the pol- maintained by the lessee for paleonto- lutant in accordance with paragraph (b) logical determinations are made avail- of this section shall be governed by ap. able to thy supervisor for inspection. plicable law. (g) The lessee shall submit any other a, reports and records of operations when required and in the manner and forla 326 tion or analysis of any geological data � 251.5 Requirelllellt of notices anld per- collected under the permit. At any time nIlils. within one year of receiving a notice of (a) Geological or geophysical ex- acquisition or analysis from a permittee, ploration for mineral resources. A per- or within a longer period if specified in son may not conduct geological or the permit, the Supervisor may select all geophysical exploration for minerli re- or part of the geological data and sources without a permit. Separate per- analyzed geological information. The mits will be issued for geological explora- pernlittee shall keep the geological data tion for mineral resources and for geo- and analyzed geological information physical exploration. for mineral available for inspection and selection by Iresources. � the Supervisor during such period, and a r - the permittee shall submit geological � 251.12 Submission of data and infor. data and analyzed geological informa- nlltion by perllitteces. tion to the Supervisor within 30 days after receiving a request for submission analyzed geological infortnation. (1) of them. Each holder of a permit for geological * exploration shall notify the Supervisor immnnediately, in writing, of the acquisi- T*IE NATINAL ENVIR ENTAL POLICY ACT OF 1969 42 U.S.C. ��4321 et seq. � 4321. Congressional declaration of purpose The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environ.- mant; to promote efforts which will prevent or eliminate damage to the en- virorment and biosphere and stimulate the health and welfare of man; to en- rich the understanding of the ecological systems and natural resources .im- portant to the Nation; and to establish a Council on Environmental Quality. Pub.L. 91-190, � 2, Jan. 1, 1970, 83 Stat. 852. SUBCHAPTER I. -- POLICIES AND GOALS � 4331. Congressional declaration of national environmental policy (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all ccnponents of the natural environment, particularly the profound influences of population gracwth, high-density urbanization, in- dustrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and pro- mote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to 327 improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may -- (1) fulfill the responsibilities of eacd generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended conrsequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, whereever possible, an environment which supports diversity and variety of individual choice; (5) achieve a balance between population and resource use which will per- mit high standards of living and a wide sharing of life's amenities; and (6) enhance the quality of renewable resources and approach the maxinmum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful en- vironment and that each person has a responsibility to contribute to the pre- servation and enhancreient of the environment. � 4332. Cooperation of agencies; reports; availability of information; reccmrnrrndations; international and national coordination of efforts The Congress authorizes and directs that, to the fullest extent possible: (1) -the policies, regulations, and public laws of the United States shall be in- terpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal 'Government shall -- (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment: (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or report on proposals for legis- lation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -- (i) the environmental impact of the proposed action, (ii)any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) and irreversible and irretrievable commitments of resources which would be involved in the proposed action should be im- plemented. 328 Prior to malcing any detailed statement, the responsible Federal official shall consult with and obtain the couments of any Federal agency which has juris- diction by law or special expertise with respect to any environnental impact involved. Copies of such statement and the comments and views of the appro- priate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, acnd shall accompany the proposal through the existing agency re- view processes; � 4333. Conformity of administrative procedures to national environmental policy All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or incon- sistencies therein which prohibit full corrpliance with the purposes and pro- visions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter. � 4334. Other statutory obligations of agencies Nothing in section 4332 or 4333 of this title shall in any way affect the specific statutory obligations of any Federal agency (1) to ccnply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State agency6 or (3) to act, or refrain fran acting contingent upon the recommendations or certification of any other Federal or State agency. �4335. Efforts supp] c.-ental to existing authorizations The policies and goals set forth in this chapter are supplenaenLary -to those set forth in existing authorizations of Federal agencies. NOTES An OCS lease sale involves the following basic procedures: a.)the Secretary of the Interior determines a general leasing schedule; b.)The Secretary receives. nominations by industry of tracts they are interested in bidding on and so called "negative nominations"--requests by States or persons that the Secretary not lease certain tracts due to pos- sible adverse environmental consequences; c.)the Secretary tentatively designates tracts for leasing; d.)a draft environmental impact statement(EIS) is pre- pared discussing the impact of and alternatives to developing the specific tracts; e.)a public hearing is held with the EIS providing the focus for public comment on the proposed action; written comments are also received; f.)a final BIS is prepared; 329 g.)a decision is made to offer specific tracts for lease; h.)bids are received and if an acceptable bid is offered the lease is sold; i.)expioratory drilling is carried out to determine the feasibility of commercial production;and j.)permission for commercial Production is granted by the Secretary after a revibw of compliance with safety, environmental and other regiulations. GULF OIL CORPORATION V. MORTON 493 F.2d 141(9th Cir. 1973) tended for an appropriate period of .OPINION time, and that no royalties would be due DUNIWAY, Circuit Judge: from them during the suspension. On This is an appeal by the Secretary of appeal, the Secretary'sustained the sus- the Interior and suboirdinate 'fderal of- pension, stating that it was for the pu- ficials 'from a judgment (1) setting pose of permitting ongessto consider aside the Secretary's orders suspending proposed legislation to terminate the drilling operations on eleven oil and gas leases, and that the action was taken "in leases in the Santa' Barbara Chanel, - the intelest of conservation." His deci- (2) directing the Secretary to forthwith sion incorporated a statement by the grant all pendling'applications for drill- Acting Director of the'United States ing permits, and (3)' extending the ini- Geological Survey which identiified three tial teiii''of tjiese leases for 'I32 months environmental risks which' would be in- to - enalJe the lessees' e se ei volved in continuing 6peratiois under rights unde: th ias e jeases. the lea possibility of another We - ~ - .blowout; the pbssibility that welfls We reverse. would be improperly plugged should the legislation pass and ab'anidonment be- come necessary; 'the possibility that The relevant facts have been stipulat- geologic structures such as the one ed to by the parties. Plaintiffs are'the which contributed to the 1969 spill holders of eleven oil and gas leases cov- would be encountered and fli'actured, ering areas of the oiter continental thus causing large quantities of oil and shelf in the Santa Barbara 'Channel, gas to escape. The statement empha- granted in 1968 pursuAnt to the terms Sized that none of these risks was acute of the Outer Continental Shelf Lands and that, if the development and extrac- Act, 67 'Stat. 462 (Aug. 7, 1953), 43 U. tion of oil 'were contemplated under S.C. �� 1331-1343 (OCS Act). They these leases, the risks woiild'be accepta- have paid some $153,000,000 for these ble. However, it also concluded that the leases. In January, 1969, a well being risks were unacceptable in light of the drilled by Union Oil Company under an- fact that the leases might 'be terminated other lease, not one here involved, blew in the near future. out, causing the massive Santa Barabara The plaintiffs then filed this action, oil spill. Shortly thereafter, the Secre- requesting that the suspensions be de- tary suspended all operations on certain dared invalid and revoked, that the Sec- leases in the Channel. This order was retary be ordered to issue drilling per- complied with, although the companies mits for the leases, and that the leases took an unsuccessful administrative ap- be extended to compensate for the loss peal, and the leases were extended for the of drilling time. The district court en- period of the suspension. In April, 1971, tered judgment in their favor, sti'ting: before plaintiffs had begun drilling un- "This Court considers that the only der the leases here in question, they were suspension orders which can be issued again ordered to suspend operations. by 'the Secretary are those provided They were informed that this suspen- for by Section 12 of the Act [dealing sion was to continue until January, with suspension during time of war 1973, that the lease terms would be ex- and for defense purposes] -or those .......~' .. -.............. providing for the suspension of actual tions; the Act speaks of "conservation of operations when requested by the les- the natural resources of the otter Conti- see or when necessary to prevent nental Shelf," not just of conservation waste or damage to person or proper- of oil, gas, sulphur and other mineral re- ty." 345 F.Sunp. at 685, 688-689,. sources. We cannot conclude that the later language, permitting suspension of Se(ction 5(a)(1) of the Act, 43 U.S.C. leases "in the interest of conservation" � 1:334(a) (1), provides: is confined to conservation of oil and "The Secretary shall administer the gas as plaintiffs urge, even though the provisions of this Act relating to the sentence also refers to "unitization, pool- leasing of the outer Continental Shelf, ing, drilling agreements . . . re- and shall prescribe such rules and reg- duction of rentals or royalties, compen- ulations as may be necessary to carry satory royalty agreements, subsurface out such provisions. The Secretary storage of oil or gas . . . " all of may at any time prescribe and amend which do relate primarily to conserva, such rules and regulations as he deter- tion of oil and gas. We think that the mines to be necessary and proper in phrase "in the interest of conservation" order to provide for the prevention of refers back to the earlier phrase which waste and conservation of the natural we have quoted. resources of the outer Continental The phrase "conservation of the natu- Shelf, and the protection of correla- ral resources of the -outer Continental tive rights therein, and, notwithstand- Shelf" is, on its face, broader than the ing any other provisions herein, such meaning that plaintiffs would give it. rules and regulations shall apply to all > Its natural meaning would encompass all operations conducted under a lease is- such resources, not just oil and gas, sul- sued or maintained under the provi- phur and other minerals. sions of this subchapter. In the en- The OCS Act was originally intro- forcement of conservation laws, rules, duced in Congress as Title III of the and regulations the Secretary is au- Submerged Lands Act, 67 Stat. 29, May thorized to cooperate with the conser- 22, 1953. See 1953 U.S.Code Cong. & vation agencies of the adjacent States. Admin.News 2177 ff, quoting S.Rep. Without limiting the generality of the foregoing provisions of this section, Cong., 1st Sess. (1953). It was stricken the ,'ules and regulations prescribed the rules and regulations prescribed from that Act, but reintroduced in the by the Secretary thereunder may pro- same form and ultimately adopted on vide for the assignment or relinquish- same form and ultimately adopted on August 7, 1953. In the legislative histo- ment of leases, for the sale of royalty ry, it is still referred to as Title III of oil and gas accruing or reserved to the the Submerged Lands Act, although it United States at not less than market was finally adopted as an amendment to value, and, in the interest of conservea- the Submerged Lands Act. It is clear, tion, for unitization, pooling, drilling however, that the two Acts are in par agreements, suspension of operations materia or production, reduction of rentals or royalties, compensatory royalty agree- Section 2(e) of the Submerged Lands ments, subsurface storage of oil or Act (43 U.S.C. � 1301(e)) provides gas in any of said submerged lands, "The term 'natural resources' in- and drilling or other easements neces- eludes, without limiting the generality sary for operational production." thereof, oil, gas, and all other miner- (Emphasis added.) als, and fish, shrimp, oysters, clams, It is true, as plaintiffs argue, that the crabs, lobsters, sponges, kelp, and oth- basic delegation of authority is to ad- er marine animal and plant life but minister the leasing provisions of the does not include water power, or the Act and that these deal with exploration use of water for the production of for and extraction of oil and gas and power. sulphur. But it is also true that, in au- We think it entirely reasonable for the thorizing the Secretary to issue regula- Secretary to conclude that the OCS Act, 331 in � 5(a)(1), uses the phrase "natural it was not. They point out, that the resources" in the sense in which it is de- leases were made in full conformity with fined in Section 2(e) of the Submerged the OCS Act, that one purpose of the Lands Act. Act was to develop the resources of the If there were still any doubt in our outer Continental Shelf, palticularly oil .minds that the Secretary's range f and gas, that the leases themselves con- minds that the Secretary's range Of template, and indeed require, the PlAin- choices includes sus~pensiofn to conserve tiffs to drill. They add to this the fact the natural resources of the'outer conti- the natural resour~i~s of thei-outer coriti- that the statement of the Geological Sur- nental shelf as thus broadly construed, that the statement f the eolo l Sui- those dotibts would be removed by the vey, on which the Secretary relied, National Environmental ro bicy Act of shows that, if drilling is to be done, the Na tio nal Environental Policy Act of 21- ecological risks are acceptable. Finally, 4347 ,NFSPA). 5Th2t 4et U rovides in 4 - they point out that the Secretary him- 102, 42 U .S.C. 4332- self recognizes that, under these cireum- stances, only Congress can permanently, "The Congress authorizes and di- "The Congress authorizes and di prevent drilling by;caneelling the leases rects that, to the fullest extent possi- and paying th aintiffs for their value. and paying the p'laintiffs for their value, ble: (11 the policies, regulations and In esince, theii argument is that the public laws of the United States shall Secretary cannot suspenti the l/rses to be interpreted and administered in ac- give himself a chance to persu;lde (ll- cordance with the policies set forth in gress to do what he now thinks ought to this chapter, In Calvert Cliffs' Coord. Com V. vUnit- ed States A. E. Comm., i971, i46 U.S. The argument is a powerful one, but App.D.C. 833 449 F.2d 1100, 1112-111%, we are unable to accept it. As we con- the Court said: strue the O(CS Act andl NEPA, the See- retary has a continuing duty to guard "NEPA, first of ail, maikes environ"- all the resources of the outer Continen- metAi protection a part of the m:an- tal Shelf. After the leases in question date of evry fed'eral agehey and de- were made, events occurre(d in the Santa partment. . . . This compulsion Barbara Channel that were both unex- is most plainly stated in Section 102. peted and very dangerous to the envi- Cohgress also 'authorizes Cogress also 'authorizes ronment. These caused the Secretary to anti directs' that '(2) all agencies of reconsider the dangers to the natural re- the Federai Government shall' follow sources of the area if drilling were to certain rigorous procedures in consid- proceed under the leases. ering environinental values. Senatol: . On April 20, 1971, the Secretary sent Jactkson, NEPA's principal sponsor, to the Speaker of the House a letter, a stated that '[nio agency will [nowa be proposed bill, and an environmental im- able to maintain that it has no nman- pact statement. In his letter, the Secre- date or no requirement to consider the tary recites the actions taken by him environmental consequences of its ac- after the January 196' blow out in the tions.' He characterized the irequire- Santa Barbara Channel, and continlues: ments of Section 102 as.'action-forc- ing' and stated that that '[oitherwisc, "At the same time, a second major these lofty declarations [in Section action was taken. An order was 1011 are nothing more than that.'" signed which converted the existing (F'ootnotes omitted.) two-mile buffer opposite the Santa * e e Barbara State Oil Sanctuary into a The? Secretary's Order is Within the permanent ecological preserve. Until Rangce of IChoice~s ~Available to Himnr this order was signed, the area which There remains, however, a see- covers 21,000 acres, had no special le- ond question: could the Secretary sus- gal status. pend operations under the plaintiffs' The enclosed bill proposed a more leases for the reasons that he has in- permanent solution to the problem. It voked in this case, i. e., was this particu- wouid terminate 85 of the Federal lar action within the range of choices leases and place the area covered by available to him? Plaintiftfs urge that them, as well as certain other adjacent 332 areas, into a National Energy Re- The fact that the bill in question was serve. The reserve shall be available recommended by the Secretary does not for' lease only as determined by.'the affect this analysis. It cannot be seri- President. ously contended that he has no power to We believe that the pro- recommend legislation. Indeed, NEP'A posed bill offers an equitable solution seems to require that he do so when he to the problem created by the 'blow- believes that legislation is necessary to out' in the Santa Barbara Channel enable him to carry out his duties under area of the Outer Continental Shelf. that Act. See � 103 and � 102(2)(C), e e , 42 U.S.C. � 4333 and � 4::32(2)(C). It The Bill, however, did not come to a would be a strange rule of law to insist vote. A second suspension order was is- that the Secretary's right hand ignore sued in April of 1973. The parties have what his left hand is doing. There is stipulated that its validity will be con- nothing to support the plaintiffs' fears trolled by our disposition of this case. that the Secretary will use this proce- Under date of April 18, 1973, the Secrc- dure as a bootstrap method of discon- tary re-submitted the bill. tinuing the off-shore exploration and 6 0 � drilling program entirely. Should such The bill was introduced in the Senate abuses occur, they can be dealt with in on June 6, 1973. So far as we are ad- an appropriate case. We think that, vised, it is still pending. given the fact that drilling had not yet When the suspension order in question begun and that it might have to be was made, drilling had not yet begun on abandoned, the Secretary's evaluation of the leases in question. In such circum- the environmental risks cannot bd called stances, the fact that the leases might be arbitrary, capricious, an abuse of discre- terminated is highly relevant to an eval- tion, or otherwise not in accordance with nation of the risks involved. For exam- law. ple, even if the threat to the marine en- We do not hold that the Secretary can vironnlent were grave, the Secretary continue to issue comparable orders one might be justified in refusing to order a after another and justify them by re- suspension of operations if it were cer- peatedlly having his proposed legislation tfain that drilling would eventually take introduced in the Congress. It is argua- place and there were no reason to be- ble that at some point, if Congress does lieve that the risks would decrease with not act, there must be an end to the the passing of time. On the other hand, matter. The parties' stipulation pre- if there were a good possibility that eludes our considering whether that drilling would have to be abandoned, it point had been reached when the first would certainly be rational for the Sec- suspension order expired in January of retary to decide not to run the risk of this year. We express no opinion as to .substantial environmental damage, even whether such a point would be reached if that risk were not acute. This is par- if and when the order presently in effect ticularly true when, as the Geological expires without congressional action. If Survey statement observes, the plugging that happens, and if the Secretary then of wells itself poses a risk of ecological should issue another suspension, that damage. It would make little sense to would be a new and different case. require the Secretary to ignore reality The judgment is reversed. by always assuming that a leased field will eventually be developed. 333 SIERRA CLUB V. MORTON 510 F.2d 813(5th Cir. 1975) CI,ARK, Circuit Judge: that the Act mandates that no agency limit its environmental activity by the This tcase involves yet another clash use of an artificial framework and on betwaseln ia federal agency and environ- the other that the act does not intend to mentalists over a proposed development impose an impossible standard on the of the nation's resources. The judicial agency." The court's task is to deter- rocus, blurrred as usual by the lack of mine whether the EIS was compiled technical ;and scientific expertise, is upon with objective good faith and whether whether the implact statement compiled the resulting statement would permit a during consideration of the federal ac- decisionmaker to fully consider aid bal- tion satisfies the National Environmen- ance the environmental factors tal Policy Act (NEPA), 42 U.S.C.A. � 4521 ce seql TESTING THE EIS Plaintifffs submit that the EIS fails to uTn~der existing jurisprudence, comply with Section 102(2)(C) of the plaintiffs were required to establish by a Act since it: does not adequately de- preponderance of the evidence, rather scribe and analyze the present cnvir ,n- than by a prima facie showing of defi- ent of the area ails to adequately ment of the area; fails to adequately ciencies, that the EIS for MAFLA was describe and analyze the most significant inadequate. The additional attack on impacts that will result from the MAF- the Secretary of Interior's decision to LA sale; fails to analyze the cumulative proceed with the leasing must be found- effect of oil development in the Gulf of ed on proof that it was a!rbitrary and Mexico; and fails to adequately analyze capricious. Since the basic legal premis- reasonable alternatives to the MAFLA es on which the district judge based his sale determination that the federal: agency The purposes of an environ- plactions passed muster were correct, mental impact statement are to detail plaintiffs must shoulder a more imposing the environmental and economic effects burden in this Court. Having failed to of proposed federal action "to enable convince the trial court that the EIS was thosed not have a part in its inadequate, the plaintiffs must now dem- ompilation to understand and consider onstrate that the lower court's findings compilation to understand and consider onstrte thati the Slower courtas findings meaningfully the factors involved," and accepting the EIS as adequate andl the to compel the decisionmaker to give seri- decision to proceed as permissible were ous weight to environmental factors in clearly erroneous. making discretionary choices. "The Section 102(2) contains the pro- sweep'of NEPA is extraordinarily broad, cedural requirements designed to compel compelling consideration of any and all all federal agencies contemplating ac- types of environmental impact of federal tions having a significant impact on the action." To carry out this statutory environment to consider NEPA's sub- mandate, every relevant environmental stantive policies and goals as enunciated effect of the project must be given in Section 101. The effectiveness of appropriate consideration. Section Section 102(2) depends upon compliance 102(2)(C) seeks these goals by specifically with procedural duties "to the fullest ex- requiring a detailed statement. tent possible," i.e., a compliance, the The purposes served by this "detailed completeness of which is only limited by statement" requirement have been suc- the agency's statutory obligations. cinetly enumerated by the First Circuit While no agency may properly adopt a in Silva v. Lynn, 482 F.2d 1282, 1284--85 less demanding standard for their effort, (1st Cir. 1973). The Silva:l cult stalted. judicial review is based on a pragmatic The "detailed statoment.'' required standlard. In determining whether an by � 4332(2)(C) serves at least three agency has complied with Section 102(2), purposes. Ilrst, it permits the court we are g<overn-edl tby the rulte of reason, to ascertain whether the agency has i.e., we must recognize "on the one hand made a good faith effort to take into 334 account the values NEPA seeks to Second, the statement fails to assess safeguard. To that end it must "ex- each ecosystem as to its unique charac- plicate fully its course of inquiry, its ter, productivity, and the manner in analysis and its reasoning." which it operates. This attack is hyper- Second, it serves as.an environmental critical. The statement discusses signifi- full disclosure law, providing informa- cant portions of the biological environ- tion which Congress thought the pub- ment. Descriptions of the communities lie should have concerning the particu- of Phytoplankton, Zoopl;nkton, Benthic lar environmental costs involved in a invertebrates and the active swimmers project. To that end, it. "must hIe (Nekton) of the Gulf, embracing an anal- written in language that. is under- ysis of factors affecting the distribution standable to nontechnical minds and and abundance of Benthos andt the loca- yet contain enough scientific reasoning tion of significant Benthic comnmnunities, to alert specialists to particular prob- are included.14 lems within the field of their exper- , Third, the statement does not describe tise." . . . It cannot be cornm- the operation of the E:astern Gulf ecosys- posed of statements "too vague, too tern as ia whole or the imporltance of the general and too conclusory." l. . ease area to this ecosystem as a unit. Finally and perhaps most sul)stantive- While the EIS does contain general in- ly, the requirement of a detailed state- formation about life in the (Gulf there is ment helps insure the integrity of the a dearth of information expllalining the process of decision by precluding stub- interrelationship of localized hiotie corn- born problems or serious criticism munities. No information is given as to from being swept under the rug. the predicted effect on the whole if some Id. (Citations omittedl.) Again, the part of the system were to be harmed. courts have approached their review of Fourth, detailed geological data is ab- claims that congressionally specified de- sent from the statement. Tl'he statement tail of environmental effects was lacking does include a review of the geological in an EIS with a view thatCongress did history and present structural composi- not intend to mandate perfection, or tion of the entire Gulf, with special at- intend "for an impact statement.to d(ocu- tention to structures within the MAFLA ment every particle of knowledge that sale area and a recognition of geologic an agency might compile in considering hazards of MAFLA exploration and pro- the proposed action." duction. Additionally the EIS observes that tests necessary to determine shallow Present Environment hazards, unstable bottom and mud waves Plaintiffs contend that a most se- are scheduled to be run after the sale, rious shortfall of the EIS is its lack of and that prior to aplroval of a drilling necessary baseline environmental studies permit, the Geological Survey requires upon which any reasoned decision on the submittal of an operation plan that in- environmental effect of the proposed sale eludes suitable safety procedures necos- must be based. Four specific omissions sary to control anticipated hazards. arte asserted. Environmental Imnpact First, the statement (loces not include Section 102(2)(C)(i) and (ii) require sufficient analysis of present air and that the EIS contain a detailed state- water quality in the area. For the most ment of the environmental impact of the part, plaintiffs are correct in this cen- proposed action and any adverse effects sure. While the statement does include which cannot be avoided if such proposed an analysis of the impact of lease opera- action is taken. Plaintiffs (do not argue tions on water quality it does not de- that defendants have failed to include scribe the present quality of these envi- references to environmental effects. In- ronmctllt:tl factors although it (does con- deed, the summary of the EIS states: tain :a briel' discussion of water quality All tracts offered pose some degree of degradation vwhich previously occurred in pollution risk to the environment and the Mississippi Sound(, Mobile Bay and adjacent shoreline. The risk potential along the Florida Gulf and of climatolog- is related to adverse effects on the ic:ll and oce:loglaphic conditions. environment and other resource uses 335 which may result principally from ac- determined that official establishment 6dr cidental or chronic oil spillage. pipeline corridors will constitute a major.' Rather, plaintiffs urge that the material federal action requiring preparation of included is inadlequate to permit the an impact statement, then such will be proper evaluation of its probability or prepared. Plaintiffs read this suggestion importance. as an attempt to fragment the project, and, by gaining acceptance of some In a panoply of particularized parts, compel acceptance of the whole. criticism plaintiffs attack omissions and W do not agree that this is the thrust We do not agree that this is the thrust deficiencies in Interior's preliminary of Interior's proposal. This project' is an studlies. While it is true that the pre- easily divisible one. In this continuously EIS research was either inadequate or controllable project, the fact that a tract nonexistent in some specific areas, the may prove productive would not man- significant environmental effects were date that an unsound method of deliver- recognized and presented in the final ing that production be utilized. We are statement in a way which afforded the not unmindful of the rule that the suffi- decisionmaker an opportunity to properly ciency of an EIS must be determined weigh them. NEPA's procedural re- without reference to possible future ac- quirements do not exist to dictate form tion. Today's statement, however, in- but to insure that judgmentgs are! no eludes sufficient pre-statement analysis longer based on old values. This EIS of possible environmental hazards from clearly brings the significant long-term pipeline location, construction or leakage. environmental hazards and detriments to peer status with the present need and The MAFLA sale is said to vio- economic costs considerations which for- late NEPA because it places the entire merly would have controlled decision- responsibility on the states to prevent making. This being so, under the rule of environmental injury from construction reason it meets the minimum require- of pipelines and onshore facilities. We ments of Section 102(2)(C)(i) and (ii). are in accord with the district court's .* I, . finding that "an examination of the [EIS] and the supplemental documents Although recognizing that the EIS in- IS] and the supplemental documents udes a general discussion ofz the envin- reveals that while the states have a role eludes a general discussion of the envi- ronmental problems that would result to play in the planning of pipelines and from pipeline construction, plaintiffs onshore facilities, the federal agency has' complain of the absence of analysis of considered, and will continue to consider, the effects of pipeline location and con- struction and the impact of pipeline leak- MAFLA leases contain a stipulation that age on particular areas. While the EIS pipelines be placed in corridors selected does not include an analysis of these by the federal government gives the matters, it does include a look at long- government a great deal of control over term effects of pipeline construction placement of pipelines and, consequently, generally, mitigating measures that may over onshore facilities. Thus, Interior be employed to prevent harm from such retains the opportunity to select less en- construction, and a special lease stipula- vironmentally hazardous areas whenever tion that reserves the right to require some harm becomes possible. Their pipelines to be placed in designated areas lease controls give them even greater su- pipelines to be placed in designated areas the or corridors. On leases in areas at pervisory powers. Additionally, the depths above 200 feet, the pipelines of states of Mississippi, Alabama and Flori- common carriers must be burie d and da have been consulted on several occa- sions and encouraged to begin planning only 18 of the 147 tracts lie partially or sions and encouraged to begin planning wholly beyond the 200 foot contour. environmental safeas for the con- struction and operation of onshore pipe- This procedure is expected to minimize This procedure effects fromexpected these linimize lines and facilities. These states have the adverse effects from these lines. been forewarned by' the EIS of the possi- The EIS also reviews the ef- ble harm that mayJ'result from unre- fects in previous Gulf operations of gas stricted �construction an(l operation. leaks, oil spills and other pipeline acci- Such efforts do not' indicate any abdica- dents. It further suggests that if it is tion of responsibility in violation of Inte- 336 rior's NEPA obligations, rather they the requirements of NEPA or fail." evince the agency's fulfillment of NEPA However, in a project such as this where requirements that the impact statement developers sign leases and conduct :sepa- be subjected to "the comments and rable operations over a period of months views of the appropriate and years, and where restrictions in State,'and local agencies . ., and those leases give the agency the ability that the Federal Government "make to constantly control and adjust future available to States . . . advice and action, this continuing control must ie informnmation useful in restoring, main- considered in determining the reasona- taining, and enhancing the quality of the bleness of the impact statement.4a The envitonment." MAFLA sale is a unique form of federal el e * action. It does not involve a single un- Sierra Club contends that the state- dertaking or a project which becomes a ment should have totalled the amount of fait accompli the day the decision to pro- oil spills which have already occurred ceed is made. Because it contemplates from all oil drilling in the Gulf and de- numerous, successive lessor-lessee rela- termined from these figures how much tionships involving activities over many more was probable. It further asserts areas and over many years, the agency's that similar calculations should have continuing opportunity for making in- been made for other pollutants, and that formed adjustments has a major effect the statement should have included a upon our evaluation of the sufficiency of mathematical analysis of the probability the materials contained in the EIS itself. of collision and loss of land from pipe- The future ability to control develop- lines being placed in marshl areas. These ment for ecological reasons is not given contentions boil down to questioning the judicial recognition in a NEIIA evaiua- degree of detail rather than the lack of tion for the first time here. In Gulf Oil it. While agreeing that these additional Corp. v. Morton, 493 F.2d 141, 144 (9th facts may have been useful to the Seecre- Cir. 1973), the Ninth Circuit held that -tary in reaching a decision, we still the Outer Continental Shelf' Lands Act conclude that the detail presented was and NEPA authorize "the Secretary sufficient to uvThold the EIS. [of Interior) to suspend operations under 4 aselin Stuies existing leases whenever he determines that the risk to the marine environment Plaintiffs next allege that the defend- outweighs the immediate national inter- ants' actions violated subsections A, B, est in exploring and drilling for oil and andl I) of Section 102. Subsection A re- gas." More specifically, the court held quires an agency to carry out systematic, that the Secretary could properly sus- interdisciplinary studies of the environ- pend offshore oil and gas leases for a mental impact which would result from period sufficient to permit Congress to exploration and development. More spe- consider termination of those leases for cific:Llly, plaintiffs contend that defend- environmental reasons. This Circuit, in ants failed to satisfy Interior's regula- Canal Authority of State of Florida v. tion 43 C.F.R. � 3301.4, which requires Callaway, 489 F.2d 567, 577 (5th Cir. evaluation of the potential effect of the 1974), has cited Gulf Oil Corp. v. Morton leasing program on the total environ- for the proposition that "temporary ad- ment, aquatic life, aesthetics, recreation ministrative action to meet previously and other resources in the area. How- unconsidered environmental dangers ever, the EIS does deal specifically with may be appropriate if it furthers the each of these items. public policy expressed by Congress in Plaintiffs contend that Interior's the National Environmental Policy Act plans to gain more detailed information (NEPA), 42 U.S.C.A. � 4321 et seq., even concerning the hazardous geologic condi- if it involves a temporary cessation of a tions of the ocean floor after the sale do project previously approved by Con- not satisfy the requirement that the gress." Here, the right to exercise fu- statement "must stand the test alone--. ture control is directly contractual and e., in andl of itself it must either meet even broader than the right which was 337 judicially dclhred there. ~ not that a court substitute its discretion for that of the executive as the decision- + * * maker. nDECISIONr TO PROCIEED This court may reject the Supplementary to their assertions of secretary's substantive decision only if it sta' ment inadequacy plaintiffs attack was reached procedurally without a full, the Secretary of Interior's dccision to good faith, individualized consideration proceed with the sale. In view of our and balancing of environmental factors; determination that the procedural re- or if, according to the standards set quirements of Section 102 were satisfied, forth in Sections 101(b) and 102(1) of we look to see whether the secretary's NEPA, it is "[shown that] 'the actual decision, based upon the information con- balance of costs and benefits that was tained in the EIS, was arbitrary, capri- struck was arbitrary or clearly gave in- cious or an abuse of discretion. How- sufficient weight to environmental val- ever, our review does not include consid- ue.' " The decision to proceed in this eration of the merits of the actual deci- instance was not shown to be in clear sion to go forward with the sale. "[Ilt is disregard of the evidence contained in the court's function to insure that the the EIS, nor does it appear arbitrary, mandate of the statute has been carried capricious or an abuse of disc~retion. out and that all relevant environmental effects of the project [are] given ap- The judgment appealed from is propriate consideration by the [sec- Affirmed. retary]." NEPA intended that courts and federal agencies collaborate to insure attainment of the Act's goals, NVW YORK V. KLEPPE 7 Environmental Law Reporter 20230(1977) Weinstein, J.: Accordingly, a preliminary injunction preventing Lease Sale After extensive hearings held in July and August of 1976, this 40 was granted pending further hearings and decision on applica- court determined that the National Environmental Policy Act court determined that the Nqational Environmentan oIcy tions for a permanent injunction. On August 16, 1976, the Court (NEPA), 42 U.S.C. �4321et seq., required issuance of a of Appeals for the Second Circuit stayed the order of this court; preliminary injunction preventing the Secretary of the Interior on October 14, 1976, it held that plaintiffs had not demonstrated from proceeding with Lease Sale Number 40 of outer continental that they would suffer irreparable harm between the date of the shelf lands in the mid-Atlantic region for exploration and produc- preliminary hearing and the trial, and that there was some ques- lion of oil and gas. tion whether Dlaintiffs would succeed on the merits at th[e!rial. The issue before this court is not the wisdom or desirability of .The Secretary of the Interior proceeded to lease a total of 93 this country's total "energy program," or of any of its specific tracts in the Sale 40 area. He accepted bids totalling over 1.I aspects. It is not this court's function to pass on the substantive billion dollars. The successful bidders have begun to take merits of the Sale 40 lease project, either in its present or poten- preliminary steps required for full exploitation of'their leaseholds. tially modified form. It is, rather, concerned with whether the ) a Secretary of the Interior, in reaching his decision to lease these I. Summary6fFlndilgs lands, complied with the statutory requirements governing his We find that the Secretary (lii)ginord the practical effects of responsibilities as trustee and administrator of the public local governmental licensing, permitting, and review powers in the resources of the outer continental shelf; specifically, the question NEPA documents; (2) failed to consider the environmental im- posed is whether his decision wassfully and accurately informed pact of specific probable pipeline routes from the outer continen- and made after adequate consideration of viable alternative pro- tal shelf, in spite of the fact that projection of such routes is grams and potential adverse environmental impacts. routinely made by industry and could have been made by the Our preliminary finding, as outlined in this court's opinion Secretary or his agents; (3) greatly overstated peak oil and gas pro- of August 13, 1976, was that the Secretary had not met his NEPA duction for Sale 40 and significantly understated the cost of such responsibilities. In deciding to proceed with Sale 40 in its present production, including pipeline construction; this resulted in a conlfiguration he virtually ignored the power of states and their serious lack of consideration of the likelihood and attendant political subdivisions to regulate the siling, construction, and use dangers of increased tanker traffic and an overestimate of the net of nearshore and onshore facilities through measures such as value of the entire project: (4).failed to consider the-possible im- spccia;l land-use laws, air and water pollution laws, pipeline pact of particular tract-selection choices on the feasibility and i egulfiions, and zoning and building codes. sites of pipelines; there was no dofsideration of the alternatives of either excluding industry-preferred tracts, or including less highly 338 desired tracts in the final sale offer because of related onshore im- anyone involved in major federal or industry projects. pacts and developments; and (5) failed to consider the alternative But passing references to, and abstract listings of, state and pacts and developments; and (5) failed to consider the altern ative local authority is only the beginning and not the end of the NEPA- of separating exploration from production leasing. Adequate con- local authority he beginning and not the end of the NiPAr sideration of these factors might have led to modifications in the required inquiry. The next, and by far more crucial sten is a nro- Sale 40 leasing program, resulting in greater environmental pro- jection of the site-specific, pragmatic, empirical effects of the � tection without impairing reasonable exploitation of offshore likely exercise of such power, It is the impact of local authority, hydrocarbon resources. not its mere existence, that must be studied and evaluated. a ,* o0- NEPA certainly contemplated that the federal agency respon- NEPA Violations sible for safely regulating ocean exploration would consider A. Failure to Consider Impact of State and Local Exercise specific, pragmatic land-based obstacles to transporting ocean- of Regulatorv Powers bottom energy resources. This has not been done. The NEPA � .~ documents, in their critial transportation aspects, are highly abstract. Despite the enormous volume of discussion they con- I. I.ffect of Crastal Zone Management Plans tain, the likely oil and gas delivery routes are nowhere described; [)efendants have relied heavily on the contention that these one might almost suppose that levitation were the anticipated various states and localities have been, and will be, able to protect mode of transport. The NEPA documents read like a theoretical their coastal areas arfd environment from the effects of an in- college thesis, written without the hard empirical data needed by complete impact statement by developing coastal zone manage- any practical person making a decision. The impact statement ment plans in accordance with the Federal Coastal Zone Manage- studiously avoids the factors required for rational, practical deci- ment Act (CZMA), 16 U.S.C. �1451 et seq., using funds supplied sionmaking. by the federal government. The argument that this activity is a e 4 d - substitute for the government's responsibilities under NEPA is The Council on Environmental Quality Guidelines on unpersuasive. First, NEPA requires an independent assessment of Preparation of Environmental Impact Statements, 40 C.F.R. Part a variety of facts to determine possible environmental damage. 1500, requires analysis of specific impacts on specific areas. It re- That responsibility cannot be fobbed off to the states under a dif- quires consideration of: ferent program. Second, the extensive work being done on the The relationship of the proposed action to land use plans, various state plans will not be completed until 1978 at the earliest. policies, and controls for the affected area This requires a Third, thle critical amendments to the CZNA relied upon by policies, and controls for the affected area. This requires a Third, the critical amendments to the CZMA relied upon by discussion of how te proposed action may conform or defendants were adopted after the Final Environmental Statement discussion of how the pro pose d action may conform or on Sale 40 was published and the Secretary of tile Interior made or proposed Federal objectives and local land use plans, his decision to lease; these amendments could have had no impact policies, and eonrals..t Where a conflict or in- onl his decisions under NEPA. . policies, and controls .... Where a conflict or in- i d. consistency exists, the statement should describe the extent Evidence, which could have been brought to the Secretary's to which the agency has reconciled its proposed action with attention by the NEPA documents, demonstrates that these local the plan, policy or control, and the reasons why the agency governmental powers can and will be utilized to prevent landing has decided to proceed notwithstanding the absence of full of outer continental shelf oil over wide portions of the coast line, reconciliation. whether that landing is by tanker or pipeline. Failure to include an ' evaluation of such local opposition to pipelines or tanker-related 3. Effect of State and Local Powers on Pipeline Routing- onshore facilities necessarily resulted in a failure to gain a full and Absence of Any Projection of Likely Pipeline Locations meaningful perspective on the intrinsic environmental prdblems Absence of any projections of likely pipeline locations il- related to offshore oil and gas exploration. lustrates the abstract nature of the relevant documents. The .. .o of Department's assumptions were that oil and gas collected by 2. Recognition of State and Local Po wers in NEPA Documents gathering lines from separate platforms would be transported to In attempting to demonstrate that the Secretary gave ade- onshore facilities along one to four corridors, in two 24" to 36" quate consideration to state and local powers to affect outer con- ielines per corridor. tinental shelf activities, defendants, in their extensive post-trial ipe in memoranda, marshal numerous references in the final en- Although as many as eight separate 36" pipelines were an- vironmental statement to such powers. In order to understand the ticipated, there was no attempt to determine specific likely land- true significance of the references, the most significant passages fall sites or tile ocean or overland routes that would be followed. are reproduced below. In context, they demonstrate a listing in The decision documents merely contain brief, vague and abstract abstract form, without any attempt to evaluate their practical ef- conjecture concerning the extremely broad geographical areas feet on specific oil and gas production and delivery systems from that might be involved: specific areas offshore to specific affected areas onshore: M * 4 8 IT", a - . All consideration 6f likely routes is clearly and explicitly These and other references succeed in establishing beyond deferred to the period after discovery of commercial quantities of question that the Secretary should have known of the existence of .i: - some vague state and local zoning and permitting powers. But This deferral of an attempt to grapple with specifics borders there was never any doubt in the court's mind that the Secretary on irresponsibility in view of NEPA's explicit mandate that all had such unspecific knowledge; any suggestion to the contrary potential environmental considerations be weighed prior to the would have had to assume a total ignorance on his part of our decision to proceed with major federal programs. NEPA required federal system. the Secretary to explore the site-specific impacts of pipelines along Nor was there any doubt that the NEPA documents made definite routes, at least to the extert that such routes were ascer- reference generally to the formal state and local powers and pro- tainable based on information available at the time. cedural requirements in this area, although it hardly requires an It is as if the federal government decided to proceed with the environmental impact statement to disclose the existence of some construction of a major highway connecting New York and sort of regulatory powers; it is surely elementary knowledge to Washington-approximatelythe distance to be covered by Sale 40 339 pipelines-but refused to reveal the contemplated route, whether to make a realistic estimate of the investment costs necessary to bridges or tunnels would be utilized, whether mountains would be produce a given quantity of energy. Critical components of that skirted or dynamited, or the impact on the area bordering the factor are the estimated quantities of oil and gas reserves, ex- road. Such a course of action would surely be impermissible. Cf. pected peak production levels, and the cost of pipeline construc- Monroe Comnty Conservation Council, Inc. v. Volpe, 472 F.2d tion. This last item has exceptional significance, in light of the 693, 697 [3 ELR 200061 (2d Cir. 1972); Citizens Committee for Secetary's firm assumption that pipelines, rather than tankers, Iltudson Valley v. Volpe, 425 F.2d 97 [I ELR 200061 (2d Cir. would be the actual mode of transport. The accuracy of the 1970). Yet the analogy to the instant case is a strong one. c; Secretary's assessment of each of these components was called in- It is perfectly clear from highly credible expert testimony at to serious question by highly credible evidence. trial from defendants' own witness that pipeline routes not only I. Undereslimrate ofFinding Costs, could have been predicted with a high degree of specificity and ac- Based on data sources readily available prior to the prepara- curacy, but that such predictions were in fact made by the oil com- tion of the final environmental impact statement, an expert panies who put up hard cash-'"megabucks," as one industry witness concluded that the finding cost estimates used in the deci. representative described them-in bids. Oil company experts pro- sion documents were unrealistically low, relative to recent in- jected relative costs of transportation problems that might arise dustry experience. The Secretary estimated that, assuming large from local and state zoning, and also predicted specific en- gas and oil reserves, finding costs were 14.5 cents per million vironmental factors attendant upon detailed alternative pipeline British Thermal Units (BTUs), and, on the hypothesis of low routes. reserves, 12.26 cents per million BTUs. The expert testimony, on For example, the witness Franklin Brunjes, Manager of Land the other hand, established that realistically determined finding Transportation for Shell Oil Co., testified that he had computed costs for new oil would in fact be 168 percent greater in the first economic feasibility vis-a-vis tanker transport of various pipeline instance, and 127 percent greaterin the second. routes from OCS lease sites to refining facilities in the $ _ $ Philadelphia area. 2. Underestimate of Pipeline Construction Costs a N Additional testimony by Mr, Donkin, based on information Had the Secretary been at least as conscientious as Shell Oil readily available to the Secretary, indicated that the critical ele- in exploring specific pipeline locations from an environmental ment of pipeline construction costs was greatly underestimated in perspective, he certainly would have considered the route into the the NEPA doculients. While the Seretary used a figure of $t Delaware Bay and up the Delaware River to Philadelphia, which million per mile diameter off-sho re pipeline, the was studied by Mr. Brunjes and considered a feasible and likely realistic cost is on the order of 7 illion per mile corridor. realistic cost is on the order of $1`75 million per mile. In the low resource case the cost of a pipeline was, as a conse- The evidence clearly established that the Secretary did not quence of this disparity, underestimated by $73 million. In the engage in inquiries adequate to inform fedetal, state, and local high resource case the error was $330 million: decisionmakers and the public of the alternative modes and routes # & e of transport of Sale 40 oil and gas, and to enable government deci- 3. Underestimate of Total Investment Required sionmakers to understand and plan to cope with the impacts of As a result of the underestimates with respect to finding and reasonably defined tanker-pipeline options in their zoning, land pipeline costs the realistic investment cost for the Sale 40 area in use, and coastal7 zone management planning processes. the low reserve case is in fact between 88.8 percent and 131.9 percent greater than Interior Department estimates. With respect Mr. Brunjes' testimony clearly established the feasibility of to finding newatural gas, in absolute terms this results in addi- "costing-out" different transportation forms and routes, and the tional costs of $756,790,000. In the high reserve case the realistic high degree of precision with which economic conclusions can be costs are between 70.7 percent and 100.9 percent higher than reached in this sphere: Department of Interior estimates, or in absolute terms between , a 1 $2,359,773;000 and $3,668,733,000 greater. This evidence establishes that it was quite possible for the a 0 a Secretary to engage in an economic assessment of the effects of 4. Overestimate of Peak Levels of Production. local opposition to pipelines. It was also reasonably necessary in Finally, Mr. Donkin concluded that the peak levels of oil and order for the Secretary to know the realistic costs of the proposed natural gas production assumed by the Interior Department could action as compared to the benefits, and in order to assess fairly never be obtained given the Department's own reserve estimates. the economic feasibility of pipelines as against tankers. Without Based on those estimates, peak oil production in 1988 would in this information the Secretary could not make a reasoned decision fact be 15,000 barrels per day less than assumed by the Secretary as to the potential costs to be incurred by the proposed program. in the low reserve case and 60,000 barrels per day less in the high Where, as here, information was available to the government reserve case. and meaningful analysis was reasonably possible on issues of such In the low case, reserves necessary to support the level of environmental significance, the Interior Department was under a peak production assumed by the Secretary would have to be 52.5 NEPA-imposed obligation to disclose the information and under- percent greater than government estimates. In the high gas reserve take the analysis. The conclusion is inescapable that if, in their case, resources would have to be 51 percent greater to support the own economic interest oil companies can project, examine and predicted peaks. analyze fairly detailed pipeline corridors, the Secretary of the In- , a o terior, in the critical public interest of environmental protection, 5. NEPA Consequences of Gross Misestimates of Costs and must do so as well. Bene its B. Detfective Cost-Benefit Analysis of LeaseSale40 The Secretary's cost-benefit analysis is vitally linked to In balancing the projected benefits of Lease Sale 40 against critical NEPA issues. Its relevance to the lanker-pipeline issue has its potential adverse environnmental impact and against alternative previously been alluded to, and its connection to other en- energy producing programs, and in order to arrive at a reasoned vironnlental impact issues is also clear. If the Secretary has grossly decision on whether to proceed, it was essential for the Secretary understated the investment costs and overstated the daily produc- 340 tilro rates andt reserves, then the timing, locations, size, and the possibility of separating exploration from development was tlinlher of pipelines, drilling wells, and duration of construction effectively ignored in the Sale 40 final environmental statement la'v differ from the Secretary's projections, with resultant en- Section VIII of the impact statement, which discusses "Alter- vti ininnllltal and socio-ecotnomic impacts (offshore and onshore) natives to the Proposed Action," is wholly silent on this option. In qualitatively and quantitatively different from those estimated in the Sale 40 documents the only reference to this alternative is con- lire NFI A documents. tained in a few lines of response to comments on the draft en- It h Scretlary'i duty ulder NEPA to compare Sale 40 to its vironmenta in a few lines of re hich summarily dismiss the pro- AItrn.atives, anti to weigh the latter and their environmental ef- posed separation as impossible under the provisions of the OCS lccls. depends upon an accurate cost-benefit analysis of the Sale Lands Act of 1953. FES Sale 40, Vol. 3, p. 67. 1p0 1 LroCI, withoLit whic ch t he Sccrietary arand other dedieon nakers aThe environmental impact statement does briefly mention the ;1cilln iotlckltaelltl determine priorities and the cou rse of actioln alternative of government exploration, Vol. 2, pp. 582-83, but the tddig n iot t Iongly to further the public interest. While we fied discussion is, considering the thousands of pages devoted to ii I,11l.,'.1"tsla It' consider plafintilT's submission that NEPA re- relatively insignificant matter in the NEPA documents, woefully tulnttC's stI{,itUtive review of the administrative decision, and no inadequate.' s1tih ic iew has heenl undertaken in this case, there is no disagree- ilntl hat;1t, a nla inilUIII, the Sccretary's decision may not be ar- When an alternative course of action exists, whether or not it Ilil l 5n and c;api iious. See Kurwin, Suhstauntive Review Under the is within the Secretary's existing authority, that could satisfy en- .\%mNitlal lFnt' ronmettal Policy Act. 3 Ecology L. Q. 173 (1973). vironmental and economic concerns relating to a program, that Where, as Ilhere, the economiuc costs and benefits of the alternative must be treated in a meaningful, non-conclusory il:tinntl a:ltion ,ere seriously and grossly misrepresented or omit- fashion. As the court in Committeefor Nuclear Responsibility v. ictd, theic could be no adequate balancing of economic benefits Seaborg, 463 F.2d 783, 787 (D.C. Cir. 1971), noted: .Lilnslt evironniental costs. It shouldk be emphasized that the [T]he statement has significance in focusing environmental discrepancies are so substantial that they cannot be attributed to factors for informed appraisal by the President, who has mere differences in judgment. They were so inadequate as to con- broad concern even when not directly involved in the decik stitute, for NEPA purposes, a failure to make a meaningful in- sional process, and'in any event by Congress and the quiry. As a result, the Secretary's decision on Sale 40 was in this public. respect arbitrary and capricious and in violation of NEPA. The point was reiterated in Natural Resources Defnse COlW. C. Failure to Evaluate Separation of Exploration and cil v. Morton, 458 F.2d 827, 833 (D.C. Cir. 1972), where the ques- Production Leasing - tion of considering alternatives outside the jurisdictional power of The Department of Interior failed to adequately consider the agency was raised: alternatives to the Sale 40 leasing procedure. The leases utilized Congress contemplated that the Impact Statement grant exploration, development, and production rights to a suc- would constitute t he environmental source material for t cessful bidder in one document. The government never considered nformation of the Cong ress as well as tie Executive, in exploration to determine the extent of oil and gas reserves and their location before granting exclusive rights of production. conn etion with to enhance of renlghtenmnt dcisios, ad In uncontradicted trial testimony, the government's witness, Judith Gresham, flatly stated that no alternative had ever been t considered by the New York City office of the Bureau of Land In the Morton case, Interior argued that it need not consider Management in preparing for Sale No. 40. Tr. 768-69. It was this alternatives which were beyond its power to affect. The court of office that coordinated preparation for Sale 40 leasing and that appeals rejected this argument and required that such allernatives prepared the relevant NEPA documents. Ms. Gresham testified be considered: that the existing lease forms for tile outer continental shelf had while the Department of the Interior does not have the always combined exploration, development and production rights authority to eliminate or reduce oil import quotas, such ac- and that no thought had ever been given to proceeding differently tion is within the!puryivw of both Congress and the Presi- in Sale40. lion is withill lhe':ptl~v~ew of befitsCon the Presi- in Sale 40. ldent, to whomn the'fi~pact statement goes. The impact This failure to consider exploration before leasing for pro- statement is not only for the exposition of the thinking of duction was particularly anomalous in view of the limited govern- the agency, but also for the guidance of these ultimate deci- ment knowledge of the nature, extent, and exact location of sionmakers, and must provide them with the environmen- probable oil and gas in the area. Private oil companies had been tal effects of both the proposal and the alterlatives, for making costly preliminary studies for some ten years but the their consideration along with the various other elements government had not. Apparently only on-the-spot exploratory of the public interest. drilling can determine what, if any, hydrocarbons will be available. 458 F.2d at 835. The final commitment to grant exclusive rights to exploit 8 as specific tracts of governmental land-without even considering D. Failure to Consider Impact of Leasing Alternative Tracts prior exploration-occurred in the face of no less than thirteen Those responsible for the tract selection process neglected to public comments on the Draft Environmental Statement for Sale examine the potential environmental effect of offering, and ac- No. 40, including among them remarks by the States of New cepting bids on, tracts other than those actually proposed and York, New Jersey, Delaware, and Maryland, urging that the ex- leased. ploration and development phases be separated. FES Sale 40, Vol. As we noted earlier, the Secretary has now leased 93 tracts in 3, p. 67. The thrust of these comments was that separation of ex- the Sale 40 area. These leases represent the culmination of a multi- ploration and development would allow government at all levels step tract selection process. to exercise timely and essential controls over environmental, Initially, based on the United States Geological Survey and social, and economic impacts, especially those associated with on- industry information concerning the potential of a specific region shore development. of offshore energy reserves, an area of approximately 6.5 million Notwithstanding this impressive body of public comment, acres was designated open to "nomination and comment," Tracts 341 covering approximately half this area were "nominated" by in- Secrclary hadlil l fact, recommnended to tlhe President that Illis ;ic dustry, i.e., industry expressed at least some interest in leasing colot.ation of leasing occur. PI. Eix. 103, p. 2. Three totilhi later. these acres. Of the industry-nominated tracts 154were selected for on .Iily 11, 1973, the Bureau of allad NMall3geliCent issued a further study in the Environmental Impact Statement. All of the rcviscd propoled schedule implementing the Presildell's directie. tracts selected for study were ultimately put up for sale. One hun- rhte Dlepariment of Ile interior had decided al Ihat timte that Icas dred one of these were bid on, and 93 were ultimately leased, ing wovlid he acceleraed; it left opnl only the filial dceitdon about with 8 bids rejected. See Appendix "D," infra [Appendices omit- 1 I � # ted. Ed.]. specific sale sites. PI. Ex. 87, p. 7, On September 12, 1973, the It is clear from the record that nowhere in the lengthy process Department of the Interior Under Secretary of Energy announced of considering which tracts were ultimately to be leased did the that this acceleratedl program was required in order to meet futlire Secretary or Bureau of Land Management personnel charged with energy needs. Pi Ex. 87, p. 6. preparing NEPA documents consider the onshore impact of liat the Department of the Interior had little interest in choosing particular tracts, rather than others. They simply propedly fulfilling its obligations under NEPA is evidenced by a assumed that landing of outer continental shelf oil and gas could Ilieloralidun from Assistant Secretary Hughes. The Assistant be had at any point along the coast. Even if the states do not pro- Secreltary allowed the United States Geological Survey one week hibit pipelines, they may restrict their point of entry, requiring a to furnish him with information for the final environnental state- landfall, for example, at the industrialized northern section of the, nlctl on Proposed Increase in Oil and Gas Leasing on the Outer New Jersey Coast or at the refinery areas in the tri-state New Continental Shelf relating to estimated outer continental shelf oil Jersey-Delaware-Pennsylvania region. The existence of such a andl gas reserves, likely drilling sites, and whether tankers or probability imposed on the Secietary the duty to consider the pipelines were to be used. Mr. Hughes acknowledged that the alternative of leasing tracts other than those proposed in Sale 40. "regrettably short response time will likely not allow highly ac- It might, for example, improve the revenue from lease sale, curate answers." P1. Ex. 97. decrease pipeline lengths, and reduce environmental impacts if In spite of this strong circumstantial evidence th It the dcci- tracts contiguous to potentially acceptable pipeline landfalls were sion to proceed with Sale 40 was made without considering the utilized. NEPA documents, we decline to base our decision that NEPA has Testimony by Judith Gresham, Chief of Operations of the been violated on these contentions. To do so would constitute Bureau of Land Management, who played a significant role in the review of the "mental processes" of the Secretary. Under general process by which tracts were selected for Sale 40, established that principles of review of agency action, such an inquiry should be the only environmental considerations that affected the scope of avoided by courts, if it is at all possible to decide a case on other Sale 40 was concern over the impact on commercial fishing grounds: grounds. No consideration whatsoever was given to the relation- 0o * - ship of the selected tracts to specific pipeline routes, onshore im- As already demonstrated, there are ample other grounds for pacts, or local .zoning and related powers. holding that NEPA has been violated by the Sale 40 leases. Ac- * e - cordingly, the court need not decide the good faith issue. E. The Issue of Secretary 's Lack of Good Faith :i/ At trial plaintiffs renewed their contention that the NEPA - ... dy review process was used as post hoc justification for decisions 4 a previously made by the Secretary to accelerate outer continental In considering the proper scope of any injunction we have ex- shelf leasing and to hold Sale 40. A strong argument has been amined and rejected alternatives such as allowing exploration to nade, supported by considerable circumstantial evidence, that the continue, but enjoining production pending preparation of an NtPA documents and public hearings were but a charade; that adequate environmental impact statement, Such a course is the decision to lease was a foregone conclusion once Presidents undesirable for two reasons. First, to allow the project to proceed and those in their administrations, including successive Secretaries will involve the commitment of resources which will either be lost of the Interior, decided some years ago that production of if the project is abandoned or reformed in the light of compliance Atlantic hydrocarbons should proceed speedily. with NEPA as a result of proper environmental impact evalua- Defendant's own witness, Mr. Robert Bybee, an Exxon ex- tion, or which will impermissibly tilt the scales in favor of pro- ecutive, admitted that as early as 1965 his company began gather- ceeding. ing geological data in the Atlantic area north of Cape Hatteras, Second, NEPA requires an evaluation of environmental Im- based on information, obtained from the Interior Department, pact early in the planning phase of a project, so that the decison- that a lease sale was planned in the Atlantic: maker has the most options available to reformulate the project to e * u ' v - minimize adverse consequences. Once action has been taken, or This statement, as well as numerous other written internal allowed to proceed, it may be too late to alter the plans, because nicinloranda and public statements of responsible government of- certain otherwise available alternatives have been foreclosed. fici;ls tend strongly to demonstrate that firm decisions to ac- IV. conclusion ccllatec outer continental shelf leasing and to hold Sale 40 were In:tde long before the ostensible decision dates, and before fulfil- Judged against "a rule of reason," N. Y. Natural Res. inertl of NEPA's requirements, and that the Bureau of Land Defence Council v. Kleppe, U.S. , , 97 S.C. 4, 6 taetion E'ent simrieply went through the NEPA motions in order to (1976), the Secretary of the interior violated NEPA. The parties rvianatsi mplyidan t roughte t isionspreviously he NEPA motions iare enjoined from further proceedings with the exercise of any vAlthough d ndant claimed that these decisions werev l made powers purportedly granted by Sale 40 leases executed by the Alsarcough dnetndant claimed that these depcision s were neade defendant. The leases are declared null and void. This order is as l rls pio e to the Ara ol embargo, one rsidllt nn8, 93,d nearly stayed pending the completion of appeals, if any. declsiOll ,0 accclerate outer contillental shelf leasing and to hold SOORDERED. Ieane sales. At that time, the [President directed the Sccretary "lto takl steps whichl would triple the annual acreage leased on tlhe ()lilt ( onlienltl Shelf by 1979." Pl. Ex. 86, p. 39. Ih 342 NOTES 1. Secretary of the Interior Andrus and the intervenor defen- dant, Ocean Industries Association, have both announced they will appeal the N.Y. v. Kleppe decision. A lawyer for the Interior Department said he believed Sierra Club v. Morton provides persuasive precedent for overturning the N.Y. decis- ion. Are the two cases reconcilable? 2. Most circuits have held that there exists a right of sub- stantive review under NEPA. The Eight Circuit Court of Appeals delineated the scope of this review: The review is a limited one for the purpose of deter- mining whether the agency reached its decision after a full good faith consideration of environmental factors made un- der the standards set forth in 9101 and 102 of NEPA; and whether the actual balance of costs and benefits struck by the agency according to these standards was clearly arbi- trary or clearly gave insufficient weight to environmental factors. Environmental Defense Fund, Inc. v. Froehlke, 473 F. 2d 346, 353(8th Cir. 1972) Although numerous cases have presented the issue of substantive review under NEPA, no circuit has ever totally overturned an agency decision on that ground. How would one apply the stan- dards of �101 and 102 to an OCS decision? It has been suggested that some judges exercise substantive review by applying an exacting standard of procedural NEPA review. See Kays, Substantive Rights under the National Environmental Policy Act, 13 Am. Bus. L.J. 289 (1976). 3. State participation in OCS decisions- a. To date States have participated in OCS decision-making primarily through advisory groups and litigation. The Secretary of the Interior chartered an OCS Advisory Board for policy mat- ters and and OCS Environmental Studies Advisory Committee (OCSESAC) for technical questions. These groups have representatives from each coastal state as well as representatives from federal agen- cies and the private sector. Regional committees are also provided. Both of the group's charters state that their functions are "solely advisory." A typical complaint of the groups was voiced by the OCSESAC regional Committee for the North Atlantic States: There is concern with both the timeliness of the data and the use to which it is put in making management decisions. It is felt that existing data may not be adequate, and new data not analyzed in time to make rational, tract-by-tract decisions for the lease sale. Additionally, it is not clear how new information will enter 343 the leasing process stream, although we are aware of the definitions of OCS orders, regulations and special stipu= lations. Finally, there is no mechanism providing for specific re- sponses to state reccommendations or for translating these recommendations into program modifications. 1976 OCS Environmental Studies Advisory Committee Annual Report, 85,(1977). b. Another method of control is the exercise of the police pow- ers of.a state. Although the actual drilling occurs on Federal lands essential support facilities including pipelines, ports and refineries will be on state lands and all these facilities will have major impacts on the state coastal zone. California has created statewide and regional coastal zone commissions and prohibits the construction of oil treatment or shipment facilities within 1000 yards of the coast without a permit from the regional commission. Califormia Coastal Zone Conservation Act, Cal. Pub. Rev. Code �2700 et. seq. (West. Supp. 1976). Are such acts pre- empted by the OCSLA; are they invlaid restraints on commerce? See Askew v. American Waterways Operators, 411 U.S. 325(1973) (upholding state liability and bonding requirements on tankers to protect state water and property from oil discharge within state jurisdiction) and Union Oil v. Miner, 437 F.2d 408 (9th Cir. 1970) (enjoining a local district attorney form using a state nuisance statute to interfere with Federal OCS drilling but specifically reserving the question of the power of a state to punish those who, on Federal lands, do acts which have effects on shore). c. The Coastal Zone Management Act (CZMA),16 U.S.C. 1451-64, provide's for grants to assist states in managing the coastal zone. As defined in the Act, the "coastal zone" does not include Federal OCS lands. However, the Act is still relevant to OCS activities. Section 307(c)(3) of the Act provides: After final approval by the Secretary of a state's manag- ment program, any applicant for a required Federal license or permit to conduct an activity affecting land or water uses in the coastal zone of that state shall provide in the application to the licensing or permitting agency a certi- fication that the proposed activity complies with the state's approved program and that such activity will be conducted in a manner consistent with the program .... No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the appli- cant's certification or until, by the state's failure to act, the concurrence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the ap- plicant, finds, after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the state, that the activity is consistent with 344 the objectives of this chapter or is otherwise necessary in the interest of national security. One of the criteria for approval of a state plan by the Secretary is a finding that "the management program provides for adequate consideration of the national interest involved in the citing of facilities necessary to meet the requirements which are other than local in nature." For further materials on coastal state planning see Chapter Seven. 4. The OCSLA has not been significantly changed since its en- actment in 1953. Over the last several years there has been a strong move in Congress to make substantial changes in the Act. In the 94th Congress bills passed both houses but the bill was returned to conference by the House. Identical bills (H. 1614, S.9) which copy the 94 th Congress House Conference Report have been introduced in the 95th Congress. The proposed 'amend- ments cover almost all aspects of OCS operations, codifying many of the existing regulations and also making several signif- icant changes. SENATE BILL 9 95th Congress 1st Session Sac. 101. TVhe Congress finds and declares that- (1) the demand for energy in the United States 'is increasing ' and will continue to increase for the foreseeable future.; A'.'. 12. Y'/,,' /?UoO/),s', ' of /A i.'1 ct (re to- (!) {-sxthl;i'h /trh lic'asl' .ll proced/z es for man.(g/il the oil tand ,l,(u,Il',' r.'so ,ro,'c's, of thle Outer Continental Shelf inL order to arhiei'ci /;nio7/ ecol e R ol.ie a nd enie'rgFy p7)oiucy goals, assure national srectrit/y, rl'lue de)pendence on foreign sources, and nmaintain a faveorable ba7lance of payqments in. world trade; (2) p?,eserrel, protect, and de've7lop oil and natuzral gas resources in the Oleter C(ontinental Shelf in at. mnanner which is consistent w'ithl the need (A) to ?tmake such resources available to meet the Aa.ti;on's energy needs as rapidly as possible, (B) to balanwce orderly energy resource developnment with protection of the hu. 9lan, vmaine, an(d coastal environ-ments, (C) to insure the public a fair alnd equitable return on the resources of the Outer Conti- n.ental q Shel f, antd (D) to preserve and maintain free enterprise comp)Ctition.; (3) encourage developmnent of new and improved teolmology for energy resource production, which will eliminate or minimize risk of tamaqen to the hunman, matrine, and coastal environments; (4) provide States which are impacted by Outer Continental Shelf oil and gas eaxplorat ion, development, and productio'a with comnpr7chcrive assistance in. order to anticipate and plan for such impact, andt thereby to assure adequate protection of the human enluniol'cnment: t ,i) uas.on that Statles ha le tlmely access to informantion regard- i.ny activ;ti,.s on the Outer Continental Shelf, and opportunity to reeicew and comm)e.ant on decisions re7lating to suchL activities, in o0'der to a.ticipate, ameliolate', and planii for th.e impacts of such acttivitics ,' ,. 345 (6) assurc that States which, are directly affected by explora- tion, development, and producotion of oil and natural gas are pro- 'aided an opportunity to participate in policy and planning deoi- sionms rclatingq to managemnent of the resources of the Outer C"onti- flcflt(d A~'he "~ (7) -7nim'izs or eliminate conflicts between the exploration, development, and pro'duction of oil and natural gas, and the rcceoery Of other resources such as Pisk and shellfish;. (8) establish, an oil spill liability fund to pay for the prompt reonoal of any oil spilled or discharged as a result of activities OIL 1he Outer Continental Shelf and for any damages to publ'io or p-rivate intereets caused by such, spills or disr.7wrge8; and (9) insure that the extent of oil and natural gas resources of the Outer Continental Shelf is asessed at the earliest practicable tine'. &ce. Rol. *(f) The term 'affected State' means, with respect to any programs, plan%, lerme sole, or other activity, proposed, conducted, or approved pursvvant to the provi.sions of this Acet, any State- "1(1) the lam-s of which. are declared, peirsuant to section 4(a) (29) of thh? Act, to be the law of the United Staes for thze portiom of the onther C'onti'nevtal Shell on which such aetiivity is, or is proposed to be, conducted "(2nwich, i~s or is pro'posed to be directly conmected by trans- portation facilities to any artificial isRland or -structure referred to in-stection. 4 (a) (7) of thIs Art; "(3) 'which, is re-eioving, or in. accordance with the pro poed acteiy 'wil r"eeiVe, oil for processing, refining, or tra7 'pzn which. v'as extracted from the outer Contnental Shelf and trans- ported by means of vessels or by a combinatio'n. of meava inelimd- ing 'vessels; "(4) wvh-ch is dehignated 6y the Secretary as a State 'in IPW7~cl there 'i. a sqzbstcztial probability of significant imapact on or dam- age to the coastal, marine, m- hum-an environ-ment, or a State in whIch, there vill be si;gnificant changes in the soci'al, governmental, or ec(Yogn-ir in~fra-ftrueture, resulting from the exploration, de-. velopment, and prodartion of oil and gasR anywhere on. the outer ContinPental Shelf; or " (6) in.,which, the Secretary finds that because of such, activity there is, orv'wll be, a significant risk of serious* dawage. dute to fap,- tore f &uch. a pre-railio.,4ng wins and e'urrevts, to th-e marine or coastal enanr~onnue.n.t i.n the even~t of any oils pill, blowout, or release of oil or gas! from veslpipelines, or oth'er traneshipment facilities; S~ec. 204. ,SC .An)MINISTRATboN or LFAsinvor O if? 71 OuTEJR CoNTINCurdt 0 9 TG re-gulations prescribed by tbr.,,'ee- rtayundler this subsectionb shall Minclde, but nlot be l1imted to, provision~s- (1) for the.ieno' or temporary prohibition~ Of aMY Opera- tion or a,. f'iy jaclvd~ing prodacio'~n, purslsnt to any lease Or ptyniit (A,) at the request of a lesee, in the Itherest of co'nsem'a- tion.. to facilitate proper development of a lease, or to all-ow for the unaailbiltyof transTportation facilities, or (B) if there is a thryeat of serirovs, irreparable, or immediate h-arm or damage, to lfe (inludingaquati life), to property, to any mnrldpst (i.areaa leasied or not yet letmed), or to the Marine, coastal, or hinan. env~ironment, and for the extension of any pe'rmit or lease _qjjeeted by !rich nspsinor prohibition by a period euvln 346 to the Period of Such, 'qupeyion, or, prohibitiall, except that nor Ppemit or leawe sghall be "0o e~x'tended qvhen s'uoh apni o.or Pro- hIIItio', is the rev"'lt Of qro00 *re nei jee or0 WiLllful Violation7 Of ,vuch, letse of, perm.t, Or of reqvnulaions isqwed covperninvg swch lease 0'! /)ermat; "g(2) IO,, the ca'ncelfatio~n of a~ny lease or pe-imit, at any time, * ~~~~~~~~~~')lsh en. ht deternmknedl, after hr;nthat coutli'mod (Irtivity PIX- val tit to s~uch leaie or permrdt wvould cause seviows hal-mn o r dcia-,oe, wivtich wowld not dear'ea,3e ovfer a reaso'flabte period of timne, to life (including aquatic life-), to jxroperty. to any mineral: deposits (in ove(/.- leas-ed, or 'neot yet leasyed), to the, national seciurity or defense, orw to the wmarine, coastal, or huam~av environment ; - ~voice. 18. Ou'r],.n CoNIvrNI.-,rAT, SITTEXLV AYANtO PII0GFIA-A.-(aZ) The NSCr'I'cte1yq pursuavt to procedureq set forth, in subsections (c) and (d), ,Iwi7 "w ?pare and perWolically 'revise,. and mnaintain. an oil and tgas It0;P pqvia gam to ivmplemt'nt the po7-;ieie 61 this Act. The, lea-ing pro)aitWI?. shall ~indicate a.? pvecisNe??, as jpossible the size, timing, and location coeafn artiviti, which lie determines will best meet national 9woq, &ds far the fire-year period followinig its approval or re- appl."(Vel. SWh leaving progriam shall be prepared and maintained in a ane co)sis;,tent w)Ith tile follovinq prirwiples: (.3)) Witin nine months after tie date ofenactmnent of thi8 section, the Secectary shall submait a proposed leasi'gprga to the Congrss ,111 Attorneq General, the Governors of affected States, and the m uchP p roposedl pro'gram,;in the F~ederal Register. (c) The Secretarty shall review the leasing program approved under this section at least Once each, year, and he may revise and reapprove suhel program, at any time, in the same manner as Originally de- veloped. SEC. 19 REGIONAL OUTER CONTINENITAL ;5uELie ADviso1?y BOARPS.- (a) The Governors of affected States may establish Regional Outer' Continental Shelf Advisory Boards for their regions with such mem- bership as they may deterinine, after' consultation. 'with the Secretaryq and the Secre tary of Covin-ercee (c) ILach, Board established pulrsuant to subsection (a) shall advise. the Secretar-y on all matters 'reatin~,v to outer Continentlal Shelf Oil and( gas developmnent, including deve lopment of the leasing progoram re- qvired by section 18 of this Act, approval of development wandprod,11e- tion plans required purs'uant to section '11 of this diet, implementation of baseline and monitorinq studies, ian the Prevaration Of environ7- NicitfL'i im~Pctsaens re)a~red in the c-ourse of the implementation of I/u~ p1oiroi'is'o ~of this Act. "(a') if axty Regional Advisory Board or the Governor of anyj "(I)maks' pecfic recmmedatonsto the Secretary relgardinkq th Mmic incig, or, locatioii of a pvoposed lease, sale or'with respect to a opop~~edldevelopmeit and producetiona plan; and "( dnlumito sucj ecomedtin to the Searetary wvithin sixty da.ys after, receip)t of niotice of such pro posed lease sale or of such ldevelp't an iproduction, plan, the Secretaryq eball accept such, recommebljndlations, unless he determines ale nmitot coeset?~t ntoa euiyor the overriding national a intcj'cst. J~~~or puiposes Fof th issubsection, a determination of over-ridlbg natona ineret sallbe bused on the des3irability of obtaining Oil and 347 qas supplies in a balancedwian-ner, consisteUnt 'iih, the policies of this ,I et. If the recomm-endations f)'om. State Governors or Ii~gionat.'Ad- vi Pr/hoa~rds on/flict with each other, the Secretary shalI accept any 01 thse, leniedainwhche finds9 to be the most consistent 'with the national interest. If/the Secretary finds that he cannot accept rec- OM21101datioins mnade pursuant to this &fubsection, he shall communicate, ~n qmriti~q, to .9-ch Governor or such. Board Vie reasons for rejection of such. recommniendations. The Secretary's determirination that recoin- M-e??dettionsv arc n ct con sistent with, the national security or the over- ridingy national interest shall be final and shall not, alone, be a basis for- Y'Vralidaio'n of a proposed lease Sale or a proposed development and-1 /)roduction, plani in any sieit or judicial review pu~rsuant to section ;?- of this Act, wv lesi faiaad to be arbitrar~y or capr-icious. "AS5C. 00. BA..fINEu~A AND 301OiIGST'UDIES.-" (a) (1) The Secre- tal'y of 00onnwu~rre, 'in.7 coopgeration with. the Seaeetary, shall conduct a stadil of any1 alrea o1 rreqion hnrluded int any lease so-le in order to eligbleht1,s bersebn nomto contce7,ning the status of the human, wiiead coastle e,2?.rhonnwnts of the ouster Oo'nt'ineiital Shelf and the coelstal (tiCOs whichl nut,?y be a//ecced by (41 aend gasr deoelopmevt Hill 8,h uraeao Oreio-'eql. (3 The Seceteary7 of Oomm.,erce shall, after being notified of the 8ubmiss,~ion of an71y delpntand production plan in an area or re~qio)! ild' wwley, 41(, com'Plete sulch, study andi su1bmvit it to the 8erev- tarly Iprior, to the daote for final, approval of any development and pro- (tu/io p/n rquiedby seetion 26 of this Ad~ for any lease area. 1"tilure of the Secretary of Commerce to complete afny, , uh sktudy in a lease. area, shall not bea basis for precludi~ng the approval of a (l~ellopent andproductin. 'pla by the Secretary,unesteec- tory, iCf i, dT iscretionl, find.1 sac/ failure to be an appropriate basis9 f~~~~~~~~~~~~~~~~~cor suhprcuan (2)In ro'~vla/ingreguljationzs ubnder th?'s section, the Secretar shal reuro l e rilling and production operation a9a~ whlerever practicable, on existing operations, the uise of the best avail- able and'saf eat techbnologY, -ivherever failure of equipment'WOVuld~ 'home a, signlificant effect on occupationaI or public health, safety, 0or the, environment. * 44AI' E Sr. 3. CITIZEN SZTS,Y C"Ouln JURISDICTION, AND JUJDIlAL - s''.()(1) ELxcept as9 proVied in this section, any person having an ineres~t zvhich is or can be adversely affected may omm enc ii "~(A) aga~inst any person, including the United Statesan any other, qoverflfleft instrumen'~tality or aqeny (to the extent perittd ~y he eleventh amendment to t~be Constitution) fOr any alleged'violation of any provision of Othis Act or an eua tien promiulgatcd unlder this Acet, or of th eternns of any per'mit or. laeissued bjy the Secretary u),nder th-is Act, and "(Ii) aqlainait any Federal o~ftiial Pef er-ed to in section �1 (a) (1) of this Act where there isR alleged a failure of such. officia to 'perform. any act or duty under this Act which is not discretionary?. _c 1) Any aIction of ethe Secretary to approve a leasing pro grni pursuant to section 18 of this Act Shall he subject to judi-?cial rew ew onlyin he nitd Sate Court of Appeals for the. District of ColumbiA.. action of the Secretary to approve, 9requtire modification 348 of,. or di~s'approe any exploration' plan or any development and pro- duction plan under this Act shall be subject to judicial revi ew only in a United States court of appeals for a circuit in whitich anu afjecled State is located. "(3) The judicial review specified in paragraphs (1) and (R) of thiv ssubsection shall be available only to apersonwho (A) p articipated in. the adlminist rative proceedinqs related to the actions speafifed in such paragraphs, (B) is adversely affected or aggrieved by such, action, (C) files a petition for relview of the Secretary's action 'within 8siw ty -days after the date of such action, and (D) promptly tvansmlit copias' o/f Mc petition to the Secretary and to the Attorney General of the U',:itcd States. (6') The court of appeals conducting a proceeding ursuant to ihis subsection shall cone-ider the matter under review solely on the record mnade before the Secretary. The findings of the Secretary, if supported by substantial evidence on the record considered as a whole, shall be conclqjsizve. The court may affirm, vacate, or modify any order or dcci- sio'q~ or may remand the proceedings to the Secretary for such further action as it may dirlect. * 0-. q .(d) ]Except as to causes of action which the court considers of greater vimportance, any action under this section shall take precedence oa the docket over all ot her caues of action and shall be set for hearing at the ear iest practical date and expedited in,' ever way. "(ci ) Notwithsta-ndint-g any other yn'ovision of this section, this see- ti.on shall not apply to any action which is commenced to require com- pliance wvith aLny proviSion of the National Envvironmental Poicy Acat of 196.9 (42 U.S.C. li' et seq..). 6EC.05.ORL AND GAS-D DEELOP T z, AN-D PReODvv CoN.-(a) (1) Prior to development and production pursuant to an oil and gas lease or maintained under this Act in any region of the outer Continental Shelf, other than the Gulf of Mex-ico or the Santa Barbara Chavnel, the lessee shall submvit a developn'~ent and production plan (heevinawf- to, i:n this section referred to as a 'plan') to the Secretary, for approval pursuant to this section. (d)(1) After reviewt, of a plan submitted pursuant to this section in accordance with the National IAnvironqn~ental Policy Act of 1969 (.II:? U.S.C. 4321 et seq.), the Secretary 'shall declare hi8 findings as to whether devezlopmnent and produiction pursuant to the lease or set of twashs (which set includIeCs suc-h, lease and, other leases which, cover, (d11aceni or nearby areas to the area covered by such, lease) is a major Federal action. "(2) The Serictarq shall at least once, prior to mIaj 'or development iln (any ar~ea or regin, of the oter Continenwtal Shelf, otiher than the Cu/lf of Mexico or the Santa Ra,'bara Channel, declare development and prodicttion purtarant to a lease or set of leases to be a major Feprderal action. .Y) if dcvelopnnet and production pursuant to a plan is niot foUnd to be an mjor Federal action, the Governar of any affected State, anty appropriate Peqional Outer Continental Shelf Advisory Board, and the exe(Tiute of any 'alffcted local government area shal1l haive ninety (lay fromn 'receipt of the plan from the Secretary to submit comments anl r0d comen'ndaticns. ,SuCh commn,6nts and recommendations shoal be vuade arailanble to the public uelpon request. In addition, any interested jon m,,Noj, Judy 81ubmnit cowminent,.,Ol andrecoinavndatioons. a I The Secr'etary~ sha7l requimodipcationl of a elari if he deternincs qtat the lessee has failed to -make adequate, Pro-ViV on in such lplan fort safe oper- 349 atiolls on the lease area or for protection of the huanna, maqlne, or coas~tal envi'ronment, except that any modification 'requestod by the 8ecretary shall be, to dMe maximum. extent practicalbe, covsiste'nt wt the coastal zone moa'agcln cut pro grains of affected AStates approved pursuant to section 306 of the Coastal Zone Management Art of 17 (16 U.S.C. 14j55).. The Secretar-y shall disapprove a, plan. only (A) if the lessee fails to denonst rate that Ito can. complyvu'wit the requirements 41 his Act and other applicable Ffederal law,' (B) if thme plan is not and cannot be made, to the maximum extent practicable, consiten ,with the coastal zone management p'o grams of affected S1tates ap- proved pursuddnt to section 306 of the Coastal Zon-e Management XIct of 1,972 (le) U.S~.C. 145.5), or (C) if because of exceptional geological conditions in the lease area, exceptional resource value in the mnarine or coastazl enevirowknint, or other exceptional circumstances, the pro- posed plan cannot be modified to insure a safe operation.. OFP'js'rIOIE OIL S-PILL POLLUTION FUNDP S/-C. 302. (a) There ii establishedlvithbin the Department of Traits- portat ion, an Offighore Oil Pollution Compensation Fund. The Fund ~may site or, be Filed. in its oon. name. St.303. I'Ihe discharge of oil from any offshore facility oi- vessel. in quantitiles which. the President under sewtion 311 (b) of the Feed- era? Water Pollution Control Acet (33 U.S.C. 1321 (b) ) deterignbes to be ha-lvnf'id, is prohibited. ks'xw 305. (d) V'henwevri' any oil is discharged from an2y offshiore facility or vlessel in violation of section 303 of this title, the Presidewt Ohall (art to 'revoi'c or, arrange for the re-mo'val of "oach. oil, '111de-Ns he dletelmines such. ),emvval 'll" be done properly anld vexpedi/o~tely by thi owvner, or- operator of slueb. offshore fac-ility or oevesl. RECOVEA'JMB) P.AMAGIIN' A.r.'. 307. Dainaqes mnay/ be recovecred under this title for- ('1) the ralue oy, any lossr or injury, at the time suchlt loss or in- Y11.1y 1, isTcuvrrcd 'with respect to any 'real or personal property 'Ieii WeI. ;- (lur? lgeqd o;. destroyed as a result of a. dischatrge of oil;' (") (A) I-le cost to the. owner Of restoring~, repairi ng, or re- phlav.-,rty anty 'real or peveso'ncd property 'which. is (lamaged or de- sbijlo !/ by a dis charge of oil, (B3) any income necessarily lost by 511('. Own r (~n'lg the time sack. property is being restored, re- patilvd, or, replafced, and, (C) a~ny redluction in the value of Such Yfl'op)crty Caused by 8,uch1. discharge,' (3) avi; loss of incomne or impairmen~t of ear'ning capac-ity for a period of not to e.xceced fivre years dlue to dalamages to real Or per- sonrial pr ope 1ty, or to na tural resources, without 'regard t ,o owne- ,Bipy of sac/i property or resources, which. are damawged ojr de- -s/i'-Oy('( 7,y? a discharge of oil, if the claimzant dleives at leastR�5per rdain m of his earnings from aetivi'iies which, utilize such. property or n~atural. re,3u1rce,3; *a(4)-an costs ant, expenses ~incurred by the Federal Govern- ve~it ol. any State governivuvit in, the restoration, repair, or-re- p huoe of vahtral resourcves 'which are dam-aged or destroyed by a (lisehlvrrl' of oii, cia] 350 CLEANUP COSTS AN)D PAIUA GES SAvC. 308. (a) All cleanup costs ineur'red by the PreIsideit, the Sec- retaiy, or any other FedIeral, State, or local offi(ial oz 0), aqene'y, in. cov- nection with a discharge of oil shall be borne by the ownv'ers and op- evator 0 the offs7hor2e facility or Ve8sei fr"om. wohlich the disehaiqe (b) NVotw'ithstanding any other prov1)i2sion, of law (avd ce?"('rpt (IN = provided iin subsection (d) of this section, the owner and operator of an offshore facility shall be held jointly and severally liable, 'wit houi regard to fault, for damages which result from a discharge of oil'from such offshore facility. Such liability shall not exceed $35,000,000, ex- cept that if it can be shown that (l) such damaqes were the remult of gross negligence or willful misconduct within tie nr-ivity and kno4o!,- elge of such, owner or operator, or of the person in charge of such off- shore facility, or (2) such discharge was the res'ult of a violation of apy- plicable safety, construction, or operating standa-rd1s or rcguliationV, such owner a-ml operator shall be jointly and severally liable foi, the full amount of sutch damages. (c) Notwithstarnding any other provision of law and except as pro- vided in subsection (d) of this section, the owner and operator of a vessel shall be jointly avnd severally liable, without regard to fault, for damages uwhich result from a diqcharge of oil from such vessecl. S~uch liability shall not ex-ceed $150 per gross 7civ tered tonv, except that if it can, be sh1ozown that (1) such, damages 'wer the ?result of gro'ss n-egligenlce or 'illful misconduct withi'n th.e prvity andl knomWlecdg of sich. owner),, over operator, or of the person in charig of suh v)essel, a,' (2) suich, discharge was the result of a violation of applicable safety, o'n~tr~S iUon, or operating s'q tavdards or regulationsK, such awnver anld operator shall be joinhtly aMzd severally liable for the full am?-ount of such dtanmages. (d) No liabi7lty shall be 'i'mposed unaders subsection (b) (c) of /hli- section to the extent the owner or opqrator establishes that the d(is- charge of oil or that any damages resulting from such disc-harge 'welre caused by (I) an. act of war, or (2) the negligent or intentiontal 7a.t of the damaged party or of any th-ird party (including any governmente entity). A PREA! COLLECTION; DF11OSITS IN RET'1OL VING ACCOUNT SRq. 310. (a) (1) The Secretary shall levy and the Secretary of the Treasry? shall collect a fee of not to exceed 3 cents per barrel on oil obtained from the Outer Continental Shelf, which shall be im-posed on the owner of the oil whlten such oil is produced. (2) The collection of the fee imposed pursuant to paragraph (1) of this subsection shall continue until the amount in the revolvvnq iie('eunt totals at least $100 ,ooo00,, whe,.reuipon bimpos;tion of such fee marI be, .'nhs'(n('d�I by the Secretary. Thereafter, the Secretary shaill from. tlf' to tim-e and ( ;In in aCcor-deancee wvith. thee limitation set forth in ther ~lK'~ x"ttdnev' of paragraph. ') of this subsection, modify by regu- leton. t2i ameount of the fee, if anyi, to be collected under this 81/b- m ,'thmi ;n. eipder to maintain the r'cvol;vig a(1ccount at a level of not less th'r. ,'W0J(}U)00and l'nIot wrlore' than 200()00 TRUISTEE OF NATURAL RE'SOUIrCES SEc. 312. (a) The PIresident, or the authorized representative of anvy State, shall act on behalf of the public as trustee of the natural re - sources to recover for damages to such resources. Sums recovered shall be used to restore, rehabilitate, or acquire the equivalent of suwch nvt- ural resources by the appropriate agencies of the Federal Go'ver'nment, or the State government. 351 5. The Carter Administration generally supports the proposed OCSLA legislation but feels that Senate Bill 9 goes too far in compelling Interior to accept governors' recommendations. Also the Administration prefers a comprehensive oil spill program in lieu of the amendments to OCSLA. An Administration bill re- flecting these and other concerns was promised by Andrus. The legislation submitted by the Administration for the creation of a new Energy Department provides for that new department to set long-term OCS production goals but leaves overall control of the leasing program with the Interior Department. 6. The law in the OCS field will likely continue to change rap- idly as national energy policy evolves. The impact of OCS oil on that policy is difficult to ascertain at this time due to the large degree of uncertainty as to the amount of recoverable OCS oil. The United States Geological Survey estimates that possible offshore yields at 95% chance of recovery and 5% chance of re- covery respectively are 4-70 billion barrels of oil and 20-256 trillion cubic feet of natural gas. Most of these reserves are located in Federal lands. In 1976 the United States consumed over six billion barrels of oil and 25 trillion cubic feet of natural gas. SECTION 3. DEEPWATER PORTS To compensate for the disparity between domestic production and demand the United States imports over six million barrels of oil per day. The amount of imported oil has risen sharply in the last few years and with domestic production declining and energy demand still growing it is projected that imports will continue to increase. Supertankers, several times larger than any tanker existing only a few~years ago, are rapidly be- coming the standard vehicle for transporting oil over long dis- tances. Although the United States has few ports deep enough to accomodate these tankers, supertankers are still used For oil delivery to the United States. However, before these 'tankers enter the port part of the oil is pumped into several smaller ships. This decreases the draft of the tanker and allows it to proceed into the port. Transportation costs of imported oil would be greatly reduced if facilities that would enable super- tankers to directly transfer their cargo to onshore facilities were available. The development of deepwater ports presents a number of domestic and international legal questions. Congress resolved many of these issues in the Deepwater Port Act of 1974, 33 U. S.C. ��1501-24. That act is reproduced in Chapter Six and is accompanied there by a discussion of the regulatory scheme for 352 deepwater ports. Here the question of the use of the ocean beyond territorial waters will be considered. Approval for the construction of two deepwater ports on the continental shelf of the United States has been granted. One will be located 26 miles off the Texas coast and the other will be 19 miles off the Louisiana coast. CONVENTION ON THE HIGH SEAS 450 U.N.T.S. 82, 13 U.S.T. 2312., T.I.A.S. No. 5200 (In force Sept. 30, 1962) Article 2 The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is ex- ercised under the conditions laid down by these articles and by the other rules of international law. it comprises, inter alia, both for coastal and non- coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas. CONVENTION ON THE CONTINENTAL SHELF 499 U.N.T.S. 311, 15 U.S.T. 471, T.I.A.S. No. 5578 (In force June 10, 1964) Article 5 1. The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scienti- fic research carried out with the intention of open publication. 2. Subject to the provisions of paragraphs I and 6 of this article, the coastal State is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the ex- ploitation of its natural resources, and to establish safety zones around such = ~~installations and devices and to take in those zones measures necessary for their protection. 3. Neither the installations or devices, nor the safety zones around them, may be established where interference may be caused to the use of recognized sea lanes essential to international navigation. 353 CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE 516 U.N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639 (In force Sept. 10, 1964) Article 9 Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea. The coastal State must clearly demarcate such roadsteads and indicate them on charts together with their boundaries, to which due publicity must be given. DEEPWATER PORT ACT OF 1974. JOINT REPORT TOGETHER WITH ADDITIONAL VIEWS OF COMMITTEE ON COMMERCE, INTERIOR AND INSULAR AFFAIRS AND PUBLIC WORKS TO ACCOMPANY S. 4706 (Oct. 2, 1974) pp. 7-8. INTERNATIONL LEGAL BASIS As far as clan be determined, a U.S. deepwater port constructed in international waters woul0d be the first such facility located outside a nation's territorial limits anywhere in the world. A nation exercises nearly absolute sovereignty over its territorial waters by virtue of the .Intelrnational Convention on the Territorial Sea and Contiguous Zone. Iu taddition, the Convention on the Continental Shelf allthomizes a coastal nation to erect structures on its continental shelf for the pur- pose of exploring and exploiting the mineral and non-living resources, and provides coastal nations with jurisdiction over sedentary living species on or undelr the seabed. No e.xistiag international ltw, treaty, or agreemrnent specitically recognizes the construction and operation of bdeepxwater ports as a permissible use of international wtter-s. I1owever, the treedomn of all nations to make reasonable use of waters leyond territorial botlndaries is recognized by the International Convention on the Higlh Seas. 'I estinmony presented to the special joint subcormmittee indicated that constructing and operating deepwater ports beyondl a nation's territorial limits wouldl constitllte a "reasonable use" as conteinplated b}v Ar'ticlte 2 of the Convention on the iigh Seas. ,, Undtler tlhe auttholity of this Convention, a nation Ihiullt iprlIoperly execilte jlni;dri(ction on the I{igh Seas in order to license anld rel'attlte slch. acilities. According to the U.S. Department of State anl several aca1ldemlic experts, the phrase inter alia implies that the allthors of the C(ollvention on the Hiigh Seas foresatw ta need to permit t bIroader rlan:ge of uses thtanl the four specified in Article 2. Itowever, .aIthough they consider developmlent of deepw)vater port ilcilities to be at reasoutable use of the high seas ulnder internatiolnul ladw, the State Department also believes that it is necessaryv to seek lrlltil,.teral agreernent as encllourlaged ill section 1I of tle bill. 'i'lle United( SBttes is presently seeking clarifitcation of the legal status (f (d1(epwtter ports in the United Nations LLaw of the Sea Conference ow uInrlerw-av. I1n addition, section 22 of the bill authorizes the ulrLsuit of int;ernattionall agreements with Canadta annd \lexico, espe- cially witlh respect to environmlental concerns, since the resources -of those two nations wilt be most immediately affected by develop- mnert of delelpwter ports off the coast of the 'United Stattes. 354 DEEPWATER PORT ACT OF 1974 33 U.S.C. �� 1501 et. seq. � 1501. (ollgressional declaration of policy (b) The Congress declares that nothing in this chapter shall be con- strued to affect the legal status of the high seas, the superjacent air- space, or the seabed and'subsoil, including the Continental Shelf. Pub.L. 93-627, � 2, Jan. 3, 1975, 88 Stat. 2126. 0 0 � 1508. License for ownership, construction, and operation of deep. water port-Requirement; restrictions on utilization of deepwater port Conditions for Issuance (c) The Secretary may issue a license in accordance with the provisions of this chapter if- a 9 e (4) he determines that the deepwater port will not unreasonably interfere with international navigation or other reasonable uses of the high seas, as defined by treaty, convention, or customary inter- national law; � 1504. Procedure-Regulations; issuance, amendment, or rescission;. scope o 4 Additional regulationsl criteria for site evaluation and preconstruction testing (bi The Secretary, in consultation with the Secretary of the Interior and the Administrator of the National Oceanic and Atmospheric Adminis- tration, shall, as soon as practicable after January 3, 1975, prescribe regulations relating to those activities involved in site evaluation and preconstruction testing at potential deepwater port locations that may (1) adversely affect the environment; (2) interfere with authorized uses of the Outer Continental Shelf; or (3) pose a threat to human health and welfare. Such activity may thenceforth not be undertaken except in accordance with regulations prescribed pursuant to this subsection. Such regulations shall be consistent with the purposes of this chapter. t 0. � 1509. Marine environmental protection and navigational safety- Regulations and procedures (a) Subject to recognized principles of international law, the Secre- tary shall prescribe by regulation and enforce procedures with respect to any deepwater port, including, but not limited to, rules governing vessel movement, loading and unloading procedures, designation and marking of anchorage areas, maintenance, law enforcement, and the equipment, train- ing, and maintenance required (A) to prevent pollution of the marine en- vironment, (B) to clean up any pollutants which may be discharged, and (C) to otherwise prevent or minimize any adverse impact from the con- struction and operation of such deepwater port. Safety zonesd designationl construction period! permitted activities (d) (1) Subject to recognized principles of international law and after consultation with the Secretary of the Interior, the Secretary of Commerce, the Secretary of State, and the Secretary of Defense, the Secretary shall designate a zone of appropriate size around and including any deepwater port for the purpose of navigational safety. In such zone; no installations, structures, or uses will be permitted that are incompatible with the opera- tion of' the deepwater port. The Secretary shall by regulation define permitted activities within such zone. The Secretary shall, not later than 30 days after publication of notice pursuant to section 1504(c) of this title, designate such safety zone with respect to any proposed deepwater port. 355 � 1510. International agreements The Secretary, of State, in consultation with the Secretary, shall seek effective international action and cooperation in support of the policy and purposes of this chapter and may formulate, present, or support specific proposals in the United Nations and other competent international organ- izations for the development of appropriate international rules and regu- lations relative to the construction, ownership, and operation of deep- water ports, with particular regard for measures that assure protection of such facilities as well as the promotion of navigational safety in the vicini- ty thereof. � 1521. Negotiations with Canada and Mexico; report to Congress The President of the United States is authorized and requested to enter into negotiations with the Governments of Canada and Mexico to deter- mine: (1) the need for intergovernmental understandings, agreements, or treaties to protect the interests of the people of Canada, Mexico, and the United States and of any party or parties Involved with the construction or operation of deepwater ports; and (2) the desirability of undertaking joint studies and investiga- tions designed to insure protection of the environment and to eliml- na.te any legal and regulatory uncertainty, to assure that the Inter- ests of the people of Canada, Mexico, and the United Staes are ade- quately met. The President shall report to the Congress the actions taken, the progress achieved, the areas of disagreement, and the matters about which more information is needed, together with his recommendations for further action. UNITED STATES OF AMERICA: DRAFT ARTICLES FOR A CHAPTER ON THE ECONOMIC ZONE AND THE CONTINENTAL SHELF U.N. Doc. A/CONF. 62/C.2/L/47 (August 8, 1974) Article 28. Installations 1. The coastal State shall have the exclusive right to authorize and regulate on the continental shelf the construction, operation and use of arti- ficial islands and installations for the purpose of exploration or exploitation of natural resources or for other economic purposes, and of any installation which may interfere with the exercise of the rights of the coastal State. 2. The coastal State may, where necessary, establish reasonable safety zones around such off-shore installations in which it may take appropriate measures to ensure the safety both of the installations and of navigation. Such safety zones shall be designed to ensure that they are reasonably related to the nature and function of the installation. Ships of all nationalities must respect these safety zones. 3. The breadth of the safety zones shall be determined by the coastal State and shall conform to applicable international standards in existence or to be established by the Inter-Governmental Maritime Consultative Organization re- 356 garding the establishment and breadth of safety zones. In the absence of such additional standards, safety zones around installations for the exploration and exploitation of non-renewable resources of the sea-bed and subsoil may extend to a distance of 500 metres around the installations, measured from each point of their outer edge. 4. Due notice must be given of the construction of any such installations and the extent of safety zones, and permanent means for giving warning of the -presence of such installations must be maintained. Any such installations which are abandoned or disused must be entirely removed. 5. States shall ensure compliance by vessels of their flag with applicable international standards regarding navigation outside the safety zones but in the vicinity of such off-shore installations. 6. Installations and safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to inter- national navigation. 7. For the purpose of this section, the term "installations" refers to artificial off-shore islands,, facilities, or similar devices, other than those which are mobile in their normal mode of operation at sea. Installations shall not afford a basis for a claim to a territorial sea or economic zone, and their presence does not affect the delimitation of the territorial sea or economic zone of the coastal State. THIRD UNITED NATIONS LAW OF THE SEA CONFERENCE REVISED SINGLE NEGOTIATING TEXT, Part 2 A/CONF. 62/WP.8 Rev. I/ Part II 6 May 1976 Article 44 1. In an area beyond and adjacent to its territorial sea, described as the exclusive economic zone, the coastal State has: ..(b) Exclusive rights and jurisdiction with regard to estab- lishment and use of all artificial islands, installations, and structures; .(c) Exclusive jurisdiction with regard to (i) other activ- ities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds; NOTES Compare the Deepwater Port Act with the present and proposed OCS regulatory structure. Section 1508(b)(1) of the Deepwater Port Act gives governors of adjacent states veto power over deep- water port development beyond the state submerged lands. Are there policy justifications for the different treatment of states in OCS and deepwater port decision-making? 357 SECTION 4. FLOATING NUCLEAR POWER PLANTS The ocean offers two scarce resources for nuclear power plants--space and water. Nuclear plants require a vast amount of water for cooling. Even if the coolant is recycled large quantities are lost through evaporation. In fact a nuclear plant can consume as much water as a good size city. To meet this need for water and to supply energy to the large populations of the coastal zone, many existing and planned facilities are located near the coast and use brackish or saline water for cooling. Under present regulations a land based nuclear power plant requires a site of 400-500 acres. Such land is often scarce in the coastal area and public opposition to the construction nearby of a nuclear plant further reduces the number of avail- able sites. This opposition in part reflects the acute sen- sitivity of the coastal environment to the impact of construct- ion of such a facility and the subsequent thermal pollution from cooling operations. Many contend that the construction of floating nuclear power plants (FNNP) offers a solution to these problems and that it offers cost savings and fewer adverse environmental impacts than land based plants. The oceans would satisfy the demands of cooling water and a plant site. Costs are hoped to be lowered due to the potential for centralization of production and standardizat- ion of plants. By placing the plant some distance from the coastal urban areas and sensitive wetland areas adverse environ- mental impacts may be reduced. COASTAL EFFECTS OF OFFSHORE ENERGY SYSTEMS, , UNITED STATES CONGRESS OFFICE OF TECHNOLOGY ASSESSMENT November 1976, pp. 197-203, 230-237. .. Nothi~ng e~,wof the 'erplant: a be assembled ,: plex of floating;,'' and pro~ttivc' eak.' < " 'feSoref~ Power 'Sy a subsidiary, ief L Lge let ; at a Shipy'ato qrie water has eVerb it in 't se ;at a shipyai-- Of'! where in the wvl ,'`4'6ore cubic 'yards s "f . . . . . .<;~ a" ~ 'if iacksonville, Fla., # and concrete wrfiW~b"ift il the irb� �th f ti< os"ipup, the St. ::,K'iver front the' east' will create a lagA of catm'tr''f 'th'. f, . ,. . .. . :;- plants and shield:. -m from fr 'aFnt will be a steel ocean waves than ,:i"It into ma iy'r.ajo6 daits b inasurin nfeet square a.nd 44i in the United Statg.,,The gantry branc'it'::theI' ; ftedap,:reinfor i ilkheads to fairma ,; Florida shipyard h. re tlhe plants will be built A i:HieXmb ":f watr cornpartmefits: A could straddle th'yMme of th US.:i pito -'d Wasimi 358 Westinghouse reactors now operating in land-;' study finds that: based powerplants will be mounted on each barge inside.a' 17-story domed containment � Although the costs of the first two float- structure withlstean turbines, generators, and ing nuclear plants, AGS I and 2, are office buildinrgs clustered arottld it. - about the same as the costs of a similar The domiecontdainmlcnt jstr~uctutre ~will rise land-based plant, volume production and nearly 18 gstokes atbve tile OC~cen surface anil standardization eventually could slow farom tie shordes wiloove tlle Ocan sikrFat e dnil from the sh0te will look ituclt like thKe distant down the rapid escalation of capital costs skyline of a small city. of nuclear powerplants. While the floating plants are being built, Offshore siting of nuclear plants would construction workers will build the largest reduce thermal pollution and eliminate structure ever placed in ocean waters--a disruption of marshlands and estuaries massive, curving breakwater of 5.6 million that would be associated with land-based tons of stone and cast concrete that will span or shoreline nuclear installations. 49 acres of ocean floor and rise 64 feet above the water surface. Routine operations would produce less Powerplants will be towed at intervals of 2 air pollution than would routine opera- years from Florida, moored, sealed in the tions of a coal-fired plant equipped with breakwater with a wall of concrete caissons, flue gas desulfurization and other ad- and connected to 4 miles of underwater cable vanced pollution control equipment. leading to shore and the power distribution grid. Public Service plans are to have the first The NRC has not evaluated and does not plant operational in 1985 and the second in plan to evaluate risks from accidents in 1987. floating nuclear plants comprehensively enough to permit either a general com- parison of the relative risks from land- The plants have a design life of 40 years, based and floating plants or an assess- after which they maybe shut down and decom- ment of the specific risks associated with missioned. deploying Atlantic Generating Station Units 1 and 2. In this study, OTA has analyzed available Several technical problems of design and information on costs, benefits, environmental operation remain to be resolved, includ- impact, safety, waste disposal systems, ing procedures for transporting nuclear transportation, and decommissioning ac- fuel to a floating plant and carrying tivities associated with the floating plants. The radioactive wastes to shore, the process study does not attempt to evaluate general of decommissioning a floating plant, and controversies about the safety and perform- the techniques of towing plants from ance of nuclear plants; these are beyond the Florida to the Mid-Atlantic coast. scope of the coastal effects analysis. It con- centrates, instead, on exploring differences be- There do not seem to be any significant tween the designs of floating and land-based differences between land-based and plants and comparing the advantages and dis- floating powerplants as to releases of advantages of each. radioactive material and other pollutants during routine operations. As a result of this comparative analysis, the 359 Although the nuclear reactor steam sup- Consequences of a Core-Melt ply and turbine generator systems and the floating barge are, separately, proven The OTA analysis indicates that the conse- technologies, the combination is not. In quences of a core-melt on a floating nuclear addition, there are unique features in- plant may be significantly different from those cluding the barge-to-cable connection, for a land-based plant. One reason is that in the breakwater, and the mooring system the case of a core-melt on a floating plant the that have not been tested by experience. core eventually would melt through the bot- Accident Risks tom of the barge hull and release large quan- tities of radioactive material directly into the The most serious accident possible in an ocean, where it could contaminate beaches operating nuclear powerplant is overheating and be taken up into the food chain. While a that causes the fuel core to melt. If the upper core-melt in a land-based plant could also lead containment of a powerplant were to rupture to waterborne contamination, e.g., if the core as a result of a core-melt, the radioactive entered an aquifer after melting through the materials released into the atmosphere could bottom of the containment, such effects were have severe health and economic impacts. No not considered in detail in WASH-1400. Con- core-melt accident has occurred in any com- cern about this type of release prompted the mercial light water reactor and the 1975 Reac- Advisory Committee on Reactor Safeguards to Advisory Committee on Reactor Safeguards to tor Safety Study (WASH-1400), commonly request a special study of the effects of acci- known as the 'Rasmussen Report, estimated dental releases of radioactive materials into the probability of such an accident in a land- water as part of its review of floating nuclear based reactor as 1 in 20,000 years of reactor powerplants. The NRC subsequently decided operation. WASH-1400 also concluded that to conduct a Liquid Pathways Generic Stud only about one in six pressurized water reac- to analyze the effects of such releases from tor core-melt accidents would lead to the tor core-melt accidents would lead to the both land-based and floating nuclear plants. release of significant amounts of radioactive materials to the open air. materials to the open air, A second reason to expect different conse- Taking all he differences that might alter quences for a floating plant is that it appears Taking all the differences that might alter that in case of a core-melt a release of the probability of a core-meltdown into ac- radioactive materials to the atmosphere is count, OTA's preliminary analysis indicates about seven times more likely with the reactor that the probability of a core-meltdown acci- system used in the floating plant than with the dent in a floating nuclear powerplant is com- WASH-1400 land-based PWR plant. On the parable to the value of 1 in 20,000 per year of other hand, this may be offset to some extent reactor operation that was calculated for land- by design features of floating plants which based plants in WASH-1400, although sub- could reduce the amount of radioactive stantial additional effort would be required to material released in case of an accident. validate that conclusion. The effects of a tow- ing and continued operation in a marine en- e J First, in the case of a vironment were not analyzed in detail because core-melt in a floating plant the core would that would require an examination of. in- eventually melt through the bottom of the dividual component failure rates that is platform and contact the water on which the beyond the scope of this study. plant was floating. This probably would pro- , e. duce large quantities of steam because boiling conditions could be expected to exist at the 360 surface of the core for a day or more after melt such secondary releases leads to a difference through. This steam could in turn in the generic risks of land-based and floating transport into the atmosphere significant plants. quantities of radioactive material, including fine particles produ~ed in the interaction of A second possible generic difference be- the molten core with water. While the possi- tween land-based and floating plants is the ble interaction of a molten core with ground- fact that floating plants can be located away water is a potential mechanism fog similar se- from shore, which guarantees a permanent condary atmospheric releases in some land- zone of zero resident population for several based plants, there are some factors that may miles around the plant. This could reduce the lead to differences in the effects of such expected consequences of an atmospheric releases on the generic risks of floating plants release compared to some onshore sites. as compared to land-based plants. For one However, this difference applies only to thing, the potential for such releases exists for offshore sites, and would not affect nearshore all plants located on water, and only for some sites as compared to land-based plants located land-based plants, depending on the site. In near the coast. addition, the release would occur later in time In summary, OTA's preliminary analysis after initiation of a core-melt sequence in a indicates that the conclusions of WASbJ-1400 land-based plant because of the thicker con- about the expected consequences of at- tainment base mat that the core would have to mospheric releases cannot be directly applied melt through before encountering ground- to the floating nuclear powerplant. Further- water; this coulId reduce the population at risk more, substantial additional analysis would by allowing additional time for evacuation. be required to enable a generic comparison of However, since WASH-1400 did not consider the types and effects of atmospheric releases this type of release, further analysis would be resulting from core-melt accidents in land- needed to determine whether the potential for based and floating nuclear plants. NOTES 1. Construction of a complex to manufacture FNPPs is presently underway as are procedures for the licensing of two FNPPs off the New Jersy coast. The single assembly complex could produce over 50 FNNPs over. the-.next 20 years. 2. Although there are possible sites for FNPPs beyond territor- ial waters present proposals all involve sites within territorial waters. There is some doubt as to whether the Nuclear Regulatory Commission could license a plant beyond territorial waters under the present law. Section 2131 of the Atomic Energy Act, 42 U.S.C. 2131 et. seq. provides: It shall be unlawful except as provided in section 91 of this Act for any person within the United States to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use import, or export any utilization or production facility except in accordance with a license issued by the Commission pursuant to section 103 or 104 of this Act. 2 ~~Section 103 states, inter alia, (d) No license under this section may be given to any pesnfractivites which are not under or within the jurisdiction of the United States .... 361 There is a similar question whether the Price-Anderson Act, which limits liability in the event of a nuclear accident, would apply to a FNNP outside of territorial waters. 3.There are several methods for states to oppose construction of a FNNP. Nuclear plants are subject to a number of laws. The two most important in the licensing procedure are the Atomic Energy Act and NEPA. The numerous hearings, licenses and permits required under these and other laws provide many opportunities for state intervention. Other powers of the state include the certification of consistency under the CZMA and the state's police power. These powers could be significantly reduced if the current question of Federal preemption of nuclear power plant regulation is resolved against the states. SECTION 5. DEEP SEABED MINING A. Ownership of the Resources UNITED NATIONS RESOLUTION 2574 (XXIV). Qiuestion of the reservation exchn- sively for peaceful purposes of the sea-bedl -lnd the ocean floor, and the subsoil thereof, traderlying the high seas beyond the limnits of present national jurisdictiou, aiul the luse of Ibeir resources in the interests of miankind U D The General Assembly, Recalling its resolution 2467 A (XXIII) of 21 De- Recalling its resolution 2340 (XXII) of 18 Decem- cember 1968 to the effect that the exploitation of the cember 1967 on the importance of preserving the sea- resources of the sea-bed and the ocean floor, and the bed and the ocean floor, and the subsoil thereof, be- subsoil thereof, beyond the limits of national jurisdic- yond the limits of national jurisdiction from actions tion should be carried out for the benefit of mankind and uses which might be detrimental to the common as a whole, irrespective of the geographical location of interests of mankind, States, taking into account the special interests and Declares that, pending the establishment of the needs of the developing countries, aforementioned international regime: Convinced that it is essential, for the achievement of (a) States and persons, physical or juridical, are this purpose, that such activities be carried out under bound to refrain fromn all activities of exploitation of an internationatl regime including appropriate interna- the resources of the area of the sea-bed and ocean floor, tional machinery, and the subsoil thereof, beyond the limits of nartional Noting that this matter is under consideration by the jurisdiction; Committee on the Peaceful UJses of the Sea-Bed and the (b) /No claim to any part of that area or its re- Ocean Floor beyond the Limits of National Jurisdic- sources shall be recognized. tion, _ - 1833rd plenary meeting, 15 )ecember 1969. 362 UNITED NATIONS RESOLUTION 2749 (XXV). Declaration of Principles Govern- ing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of Na- tional Jurisjdiction The General Assembly, Recalling its resolutions 2340 (XXII) of 18 De- law, including the Charter of the United Nations cember 1967, 2467 (XXIII) of 21 December 1968 and the Declaration on Principles of International and 2574 (XXIV) of 15 December 1969, concerning Law concerning Friendly Relations and Co-operation the arc: to which the title of the item refers, among States in accordance with the Charter of the. A/firming that there is an area of the sea-bed and United Nations, adopted by the General Assembly the ocean floor, and the subsoil thereof, beyond the on 24 October 1970, in the interests of maintaining limits of national jurisdiction, the precise limits of which international peace and security and promoting in- arc yet to be determined, ternational co-operation and mutual understanding. Recognizing that the existing legal regime of the 7. The exploration of the area and the exploita- high seas does not provide substantive rules for regu- tion of its resources shall be carried out for the lating the exploration of the aforesaid area and the benefit of mankind as a whole, irrespective of the exploitation of its resources, geographical location of States, whether land-locked Convinced that the area shall be reserved exclusively or coastal, and taking into particular consideration for peaceful purposes and that the exploration of the the interests and needs of the developing countries. area and the exploitation of its resources shall be 8. The area shall be reserved exclusively for carried out for the benefit of mankind as a whole, peaceful purposes, without prejudice to any mea- Believing it essential that an international regime sures which have been or may be agreed upon in applying to the area and its resources and including the context of international negotiations undertaken appropriate international machinery should be estab- in the field of disarmament and which may be ap- lished as soon as possible, plicable to a broader area. One or more interna- Bearing in mind that the development and use of tional agreements shall be concluded as soon as the area and its resources shall be undertaken in such possible in order to implement effectively this prin- a manner as to foster the healthy development of the ciple and to constitute a step towards the exclusion world economy and balanced growth of international of the sea-bed, the ocean floor and the subsoil thereof trade, and to minimize any adverse economic effects from the arms race. caused by the fluctuation of prices of raw materials 9. On the basis of the principles of this Declara- resulting from such activities, tion, an international r6gime applying to the area Solemnly declares that: and its resources and including appropriate interna- 1. The sea-bed and ocean floor, and the subsoil tional machinery to give effect to its provisions shall thereof, beyond the limits of national jurisdiction be established by an international treaty of a uni- (hereinafter referred to as the area), as well as the versal character, generally agreed upon. The regime resources of the area, are the common heritage of shall, inter alia, provide for the orderly and safe mankind. development and rational management of the area and its resources and for expanding opportunities in 2. The area shall not be subject to appropriation the use thereof, and ensure the equitable sharing by by any means by States or persons, natural or jun- States in the benefits derived therefrom, taking into dical, and no State shall claim or exercise sovereignty particular consideration the interests and needs of or sovereign rights over any part thereof. the deveticularoping consderatrieson whether land-locked or 3. No State or person, natural or juridical, shall coastal. claim, exercise or acquire rights with respect to the 10. States shall promote international co-opera- a:Iea or its resources incompatible with the inter- tion in scientific research exclusively for peaceful n:atlnal rCgime to be established and the principles of this Declaration. purposes 4. All activities regarding the exploration and (a) By participation in international progmmes exup!oit~ation of the resources of the area and other and by encouraging co-operation in scientific research reilated activities shall be governed by the intrna-ersonnel of different countries; tional r6gime to be established. (b) Through effective publication of research 5. The area shall be open to use exclusively for programmes and dissemination of the results of re- peaceful purposes by all States, whether coastal or search through international channels; land-locked, without discrimination, in accordance (c) By co-operation in measures to strengther with the international r6gime to be established. research capabilities of developing countries, includ- 6. States shall act in the area in accordance with ing the participation of their nationals in research the applicable principles and rules of international programmes. 363 No such activity shall form the legal basis for any (a) The legal status of the waters superjacent to claims with respect to any part of the area or its the area or that of the air space above those waters; resourccs. (b) The rights of coastal States with respect to W11. WTith respect to activities in the area and measures to prevent, mitigate or eliminate grave and II.n With rsco ty wit o ac tiitie in thernatinalreaime ao imminent danger to their coastline or related interests acting in conformity with the international r6.gime to from pollution or threat thereof or from other he (:stahisht-d State shal take pproprate mesufrom pollution or threat thereof or from other hbe established, States shall take appropriate measures hazardous occurrences resulting from or caused by ftor anti shall co-operate in the adoption and im- hazardous occurrences resulting from or caused by plcrnentation lof international rules, standards andi any activities in the area, subject to the international procedures for, inter alia: prresorf tinte an tin 14. Every State shall have the responsibility to (a) 'The prevention of pollution and contamini- ensure that activities in the area, including those re- lion, antl other hazards to the marine environment,. lating to its resources, whether undertaken by gov- including the coastline, and of interference with the ernmental agencies, or non-governmental entities or ecologic:al balance of the marine environment; persons under its jurisdiction, or acting on its behalf, (b) The protection and conservation of the na- shall be carried out in conformity with the interna- tural resources of the area and the prevention of tional r6gime to be established. The same respon- damage to the flora and fauna of the marine envi- sibility applies to international organizations and ronment. their members for activities undertaken by such 12. In their activities in the area, including those organizations or on their behalf. Damage caused by relating to its resources, States shall pay due regard such activities shall entail liability. to the rights and legitimate interests of coastal States 15. The parties to any dispute relating to activities in the region of such activities, as well as of all in the area and its resources shall resolve such dis- other States, which may be affected by such activities. pute by the measures mentioned in Article 33 of Consultations shall be maintained with the coastal the Charter of the United Nations and such proce- States concerned with respect to activities relating dures for settling disputes as may be agreed upon to the exploration of the area and the exploitation in the international regime to be established. of its resources with a view to avoiding infringe- 1933rd plenary meeting, ment of such rights and interests. 17 December 1970. 13. Nothing herein shall affect: REPORT ON THE DEEP SEABED HARD MINERALS ACT, COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, No. 754 94th Congress (1976) pp. 5-14 2. gBACKGlOUI7N OP ~[ANUANCEE WOoLT'0 ' 'i H : 'lhe area lying seawarid of the continental margi, en e feried to as tle deep seabed, is nllown to be rich in mineral S' .' ,. 1Fio. .the moment very little is hliown about thlie sitbsurface. p it of the 'deep seabed. With respect to the surface of the seabed! :lo-i' : ever, we know that extensive deposits of maiiganese nodull e 0, f ir&over 20 metallic elements- are abnlndat.'aotgntially"i' i ;ulas will contain at least 25 percent mangatlls6, 1.3Mi neeait ie~ea '' i percent copper and 0.X2 percent cobalt. : ': :; ,;; Tlhere are three types of mining systems presently h cdisid' for manganese nodule mining - : . a" a) Continuous path dredging iIvolves a suspended;cidil- tlhat connects, a dredge head and the ship}, 'which trans v':ei' '.inin, site, collecting ore over a eertain sweep width'. p ; � ('b) Fixed area dredgmig is canducted by a collectmna gI1ee I,'; until ore Iving Within thle radius of tlhe sweepin ei ' d ge collected. Duriing th" ir cess; thle\i*rfage, ship bt platfr3* Em' I:'mlains statnioary abve,!' , ,::' : :,gd" 4;' (�) Continuous lin' b:ck~t' :red~im;l inio :la o; ous reople to which are attaeled dre{dge urel-ts. As the slp 'v;' ; :siLdeways, the loop of dredge buckets is dr agedcIa ss t;'.e . ......ttoi, scoo p'gppo re:..X36 . . 364 Pilot tts(if the, continuous pathdr(VAgy'tv ous line bucket s-rstem hhve been conducted, but, fe~w of the r~s ~- 11)e Publwlvh riele(Ie. The techT'olo~ictd4a hltctonof~~Ts (rbw~ ei~,es Nwill thalea them bOn exp~iien~ d e-e.i'~ to partuicilar t psof, ~iOdi deposits iand smroun~dbn topg' py severn] rnetaurgiV~iai processes have been~ e~xeienment'illv md h thie'" inniing,,of metals from mail~ranese nodules, liowv~cerpilyll hd nu~tl~mgcal eeb~iqu~ ar prsentIy being '' o oi~1 ei.~,'proce(ssing. The i~etallurgical proceSS iS seiial Zurich fetldors as the. ph~sichl Clifracteristles of the'lnodules.thr,4 Printeiit" tv"ce me~tal.Content, as.s.ay or grad-o and detrital mtril Thjs, I~ a 9 critical aispect of nodule, mining-the degree to -WhcbtI equiii-nent developmefit''and type of metallurgical -procs's aredi4, ult~ upon (lefinite knowvledgec of the mnine ste t6'be developed ' ME~F O-A SEAIDED 31YIAA The spabe(1 minerals' are important. The mlajor~ prid'cefs 'f1c~ en r. nicell M'angaftlise, cobal and molybdeum. it j7Well kn_ n that All of -th]ee metal-, are essential to6 a m~odern industrial ei MKanWganese is vital in the production, of aII steel and imparts proP4 LIS %,W,, Of toughness to certain steels. Nickel is tlf ee~l Tirdenti less steels and in high temperature-high porfbrrmance alloys, V~$bai%` is of great utility in making magnets and is essential in the'rnalki # "spaze age" alloys. Mfolybdenu Isaesnta ingredlieutinpc4~ stees. The, uses of copper:for electrical atpparatus' of alkns~~ pipngy and hardware are well known. '~'*;~~ >~~'tis not well kh~w but thes nItei i~s9 tat w ar~l 'riolf sufficient or entit'rly lack- domlesti~c -riappwies we hae nyoi )Iajjlnickel mine"a dandustiprtor-T eceofurotco furnction of nickel. WWeh*-V no domestic cobalt or mnaeepoi- tion, and are 100 porcen depedet on newv',pri~nr~~pl rmii ports. AlIthough.'we aetelrstcopper prdue nteword *" are not self sud~eient anlu oprimports have lxe rdt~~ ing, Oe.s Today' we imo~ 5pretof oiiri copper., gie effect o"f these iplton0a10 hA. " n19 impciit6 amonatied t'almost 10,0,Q i tu Vef~ th;S is cxpected to rise rapidly. Recoveryo'sae an~ COUld almiost elilminate this outflow, of dollars by19Q''"- The t~ednology of seab~d resouree'~dev~elopmeii is at hand a " (luctin is certain to occur betWeen now and '1980 if securleaa ralii~eenllts aret. ftchieVcd by the passag of his 'legislation *~ea Companui-' l ave dredIged nodules' froni tfhe deep,(oan in bsnt~. uatIPY. t cs wsuessful. processes for extracting ihetaf~ firo JP the eep eabe ore '_('manganeso' i',6duleW) haiver been tested in 1o'' ~plants. The pace of techhnglogy is f urtl'iei illustrated by the recent ror- . Illtion of teespraiitnaoalconsortia tol undertake gij T1~�se considerations alone may inot dembibst'tea&fo g~7s vnth "espect to the development of the deep: seales;hwvr t~ fact~rs do create"a _aeffpee Of urgency. These Inyle'u edi t pecting, technology, an areiga ell '4s'"the -need, to mit indstr intitiv an ni'ienturn and the need to- encourage ine in~ inustril actiity w ichIaI goive rise eventually to even rae ~ minralresurcs bne~itsin heoceans. *~ IqE Ji IJSPMENT GUArLUNTPE, ~ '-Thc' tcchn66Ydg' -wh lc r'ty~big eeoped for IoI l~ Ing "is ext rellely sophisticated'adepni. The oceanographid andits equipment ued in the'osein ihse alone call cost$QO 365 *,OOper Pa? ~ct ossjmto#0-$opeda more intensive exp ol~odf 4o1~'bgtlksj"Sl toatd~ifqipjneh,1 *ilude hihycofper devies for acomid" /dppl aud in observation ogpther with grab, s'ani~#? prppePin cited 1 4ust be'usedt, t~tine'lIn, Appr6xirnately4:1,GOO fetof ,e ~~ thee joduesate found and! in the metalhiugcl prcsewhht to win tjw etls adgnryn h other drjt JdaGerman, FineGeat Britaini,:nd teSvetUitW& hate also show'h' 4in'nnnmelate Interest inl deep seXii )ig Je '<our technological kgd is fra~ile., If $others. develop~ inanao 1126dules before' we do and.obtain anl imr4diiti makt-n Wdvaa# reouc wil b develqfr but, ~atliit Mk sometm Q o4 will still be importfihg it.~ MoevrXd a'e u cmai4# tbi-t7nitedl States to engag i jnt vntures ,underthflgo tp5 cdnpitries. This would deceae t~oss~ibility- th4 at gns 4~4, 4'i "ilug wouild become' a new Tnited Statesictr." � 4' ' r~ti.therefore,. ih cvtlbde' t;upon the cohisMi. t6' hsu$Il ia * %fato, initiative. and technological acivnn~r.not stiff l United States'l own action&s. Indleed, it is iinpoi'tant that corpot&i tiatirve be encouraged. If it'is, we may jbdgin' to se4,productiono~ ocean nodules as early is 1L978 and substantial coimmercial prodti iynderway not la ter than 1982,'~ ~ thL~ ~s~n't~ieC~nt'tee, b0i~ thtteire~ mnc it ,~"~ 'tee provisioso8.73apfeedadabithaaiifltj is UnderAW& ex i*i law the f e~f't i~latrge extent th~ uncdrtalnjtttura f' thla iution whichl isi U Aabiting exploitation. Uarge stans ofmn 4aeretaeqict carj ~ 'ftallrgia plants.1 ThpgryLUst, hakV# fth sssia i&o 'to mine a PArteli or hmzjytriar S4t l'ong. eloaowrh to' are turn on its investni~t.nusr ,needs; the assiiranca- tha ftire0 Law of'~ the 'Sea, treaty, will nob in1 e~ct exprpit tthdr4. v0thint and Put them' ouft~i'~n4 prain2ti .gsa provides the aissurances that gt. 'necessAr fok indusr twoe apd at the same time. provride's the reiilto-o~xset *#lwill ensure that dlevelopmwut, of ti o ebdwl &i otY~ 'i confomance itWT'fi ekpresspbipoy and 'ofd It should bitctl 'a'topast the 'Uhit4Sa't& has i~cIda It 2that any Law of the Sea tremty miust ea ac sosabdmnrl xhtder reasonable con'ditions.J 14 in fact,, this is the kin4 ofpet ' ti~i y theUnited States ti`0vu J1ltei1~ dutyuder thlis bill. S.713 4oes'hlit Pr id-Trlaheatmmt rnO I4 rs ks o f ai o ,er businteis. tisolydrctd t6wa iiii)+ vsIng in~ternation4l law, agreed to by the UnitedSt es >'.:13is entirely.&~nsistent'vf with i &mtqa~o not'in anvay debde t~et enI6iing iiAt9inat*Ion4 lt '4L fact S. 713 is grroulnded' on tllrt intrnaif i1Ja otaic 1 fSo~of the seas, (2 td ~Caricv~ulo fa" sutat to~ regulhate the odcafishtoil;ad(' oiy *Article- .of te18GeeaCnnioonthe High Seas 4k *callYrecogizdsih4 a~i~s teAeeqp -fthe seas"'dbctdnle. Tita thttif~.the high _dsIeEAt ttk'sr i t b all tWV .reasonable resW&'t~eitrxts of other'Stit41in their eiectrcis the freedom othhIgD 'sa't. 4'I pto~atP~tpIp 'rides a ~statutory ineanl. foi1 U;.S nationals t-6 exec~ M~e~n J1 'tb~~teas thley enjoy.by vii tue of their statiP As u ju~tition 'o~f the Unijt'4,d S~tates, while dejibej'ately1iaa 'u61,0xc 1'mzr "will not 'Iiureasonxably intsrferev'ithi othr-, the 'nthe Stigt eais' as defined ))N any treaty or convenition filer( ;sigiaa toty, by custoinary internatoai~t .366 Sveond, S. 713, expressly limit's its Scope to0 tile extratc'I'itorial higlh rc~iatOI1ot U.S. nationals. It does itot urotian 11011111d' to i~q()n( roegrcfziition b~y the, United States'of 'in~ khid tipon thle iictivi- - ~~~~~~~~~tit's of K,"rc; mI ~.n aoflas oil the IUlih Se't, Finlai, thie bill incorlpotates~'thie 'intei.natioiial law (.o' titine '6f (,oinitv I v providingr for recogynition. of the rio-lits of reciprofeatili states p'c stabl,-sl anl illtervim policy and practice comnpvahale to tilat, es ~i~idbY this leaislat~ion. Inl thie cx et thiat aii Litiiito n~ree:~ lindjv unn thie Uijited States enter~ into forue est, blisli- ing a regimie for tile development of mineral resources of the deep seabed no licenses shall be issued under this Act inconsistent 'x ith the regumc. rates careful and complete recognition of existing international laxw -while aniticipating a new international agreement, and specifically providing that such agreement will supersede this act. RELA'TONSHIII Ta LAW OF THE SE& NEGOTIATICONS~ - The Administration has continually taken the position that enlact- 11en1t, of S. 713 would "adverselyi affect progress on the deeV seaibeda well as other aspects of thle Law of the Sea negotiation.' The Committee completely supports thre concept of a Law of the Sea" treaty. We have repeatedly indicated our support othUnedSates position in the curreant negotiations. The Committee recognizes that the Governuient must ~protect a. variety of important interests in the development of ocean law inc'lud-, ing our mineral resource interests. We agree that only through a sitc-. cessful Law of the Sea, Conference will the world achieve littruwoiy and stability in the many new and'varied uses of ocean space, inclixt- ing deep sea mining, which are developing right now. Htiphiaza'ia ae.. ve'lol)Ifent of international law in this area may not adequately pro- tect our own or any other country's interests in navigation, pollution control, f reedom of scientific research and the rational developmmn t of both living and mineral resources of the ocean and seabeds. & 9 True b~asic issue is whether we continue to wait for a treaty aind ~isk a loss of American industrial initiatives. The Adminstration 'spokes- men have stated thwat a timely and satisfactory Law of the Sea treaty is obtainable. The facts (lo not bear this out. The United Nations' Sea- bed Committee spent mnany sesionls in preparatory work but failed to make significant progress toward agreement. The Law of the Sea Conference., now in session in New York. consists of some 150 nations of widely disparate views. The issues are not confined to the question of the deep seabed but include navigation rights of several kinds, fish- eries, Continental Shelf resources, and a multiplicity of subissues. As one, miight expect, there is no sign of immninent agreement. The Adminiisitration has indicated that the portions of thn. single negotiating text developed at the 19Th5 Geneva Session dealing w"ith seabed mining are tot ally unacceptable to the United States. Tile Com- niittee completely agrees. Two of the Congressional delegates to the, New York session -Rep, resentatives MeClo~skey and Gilman. have filed a very compenie report on the first 4 weeks of the session. Their report point u h chiances of fina~l agreement by May 7, are very slim and the, chances of S~triors dleadlock are verv grreat. (The report is printcd in full in Thle Committee has concluded that we Qcata no longer delay in omr ow-naet ionial effort-, to create condlitions conducive to' then recovery o~f 19, ~ ~ ~~~~the. resources of the deep seabed. W~e caniio't accept the same old diory from the treaty negotiators that 'progress is greater than it apoeari and that success is fiust around the, corner. The, Committee rif2 believes thatr S. 11,34 ~. cov~sten~t w.ith ouir national interest in devel16p-~ ing nlew, sources of minerals and i8 ~iwt -irwonsistent -with our long-term' national aoal of a broad international agreement oft a new system of~ Law of the Sea. 367 SENATE BILL 713 94th Congress 2nd Session Section 2. (a) FINDINGS.--The Congress finds-- (1) that the Nation's hard mineral resource requirements will continue to expand in order to supply national industrial needs and that the demand for certain hard minerals will in- creasingly exceed available domestic sources of supply; (2) that, in the case of some minerals, the Nation is total- ly dependent upon foreign sources of supply and that the acqui- sition of mineral resources from foreign sources is a substantial factor in the national balance-of-payments position; (3) that the national security interests of the United States require the availability of mineral resources which are independent of the export policies of foreign nations; (4) that there is an alternate source of supply of certain minerals which are significant in relation to national needs contained in the manganese nodules which exist in great abun- dance on the ocean floor; (5) that to the extent that such nodules are located out- side the territorial limits and beyond the Continental Shelf of any nation, the nodules are available for utilization by any nation with the ability to develop them; (6) that United States mining companies have developed the technology necessary for the development and processing of deep seabed nodules and, given the necessary security of tenure, are prepared to make the necessary capital investment for such development and processing; and (7) that the increasing complexity of the world's problems has required the nations of the world to become more interde- pendent, especially in such matters as the resources of the land and the sea, transportation and communication, food, pop- ulation, human rights, arms control, world order under law and cultural relations; (8) that solutions to the problems of and 'interdependent world requires a reciprocal recognition by all nations of the legitimate interests of one another; and (9) that it is in the national interest of the United States to utilize existing technology and cpabilities by pro- viding for interim legislation which will authorize investment guarantees and insurance in order to encourage further efforts to insure national access to available deep seabed hard minerals and to provide the means whereby the national program may be merged into an international program which evolves from negot- iations on the Law of the Sea resulting in a treaty which is subsequently ratified by and becomes binding upon the United States. (b) PURPOSES--The Congress declares that the purposes of this Act are-- (1) to establish a national program to promote the orderly development of certain hard mineral resources of the deep sea- bed, pending the establishment of an international regime for that purpose; and (2) to insure the establishment of all practicable requirements 368 necessary to protect the quality of the marine environment to the extent that that environment may be affected by deep seabed hard mineral mining development. DEFINITIONS Section 3. For the purposes of this Act-- (a) "Secretary" means the Secretary of the Interior; (b)"deep seabed" means the seabed, and the subsoil thereof, lying seaward and outside the Continental Shelf of any nation; (c)"Continental Shelf" refers to the seabed and the subsoil of the submarine areas adjacent to the coast of any nations (including the coasts of islands), but outside the area of the territorial sea, to a depth of two hundred meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (e)"hard mineral" or "hard mineral resources" refers to nodules or accretions containg, but not limited to, iron, manganese, nickel, cobalt, and copper; (m)"reciprocating State" means any foreign State, designated by the President as a State with requirements and procedures comparable to those of the United States under this Act, and which has undertaken to recognize licenses issued under this Act; and ACTIVITIES PROHIBITED Section 4. (a) Except (1) as authorized pursuant to the pro- visions of this Act, including subseation (b) hereof, (2) as authorized under alicense issued by a reciprocating State, or (3) as may be authorized under a treaty, convention, or other international agreement, which is ratified by and binding up- on the United States, no person subject to the jurisdiction of the United States shall engage directly or indirectly in the development of hard mineral resources of the deep seabed. The prohibition of this subsection does not apply to equipment engi- neering development, prospecting, or scientific research, nor to the rendering of contractual engineering construction, or other service, not amounting to actual exploration or commercial recovery, nor to the furnishing of machinery, products, supplies, or materials to any organization or person lawfully engaged in such development. Provided, That the development does not infringe upon a license recognized as exclusive under the pro- visions of section 5(b) hereof. LICENSE TO DEVELOP Section 5 (a) GENERAL--Pursuant to the provisions of this Act, the Secretary shall accept applications from, and issue licenses to, eligible applicants for the development of hard meineral resources of the deep seabed....Before he may issue a license 369 the Secretary mu st first determine, in the consideration of each license application-- (1) that the applicat is financially responsible and has demonstrated the ability to comply with applicable laws, regulations, and license conditions; r(2) that the operations under the license will not unrea- sonably interfere with other reasonable uses of the high seas, as defined by any treaty or convention to which the United States is signatory, or by customary international law; (3) that the issuance of a license does not conflict with any obligations of the United States, established by treaty or other international agreement: and (4) that operations under the license will not pose an unreasonable threat to the integrity of the marine environ- ment and that all reasonable precautions will be taken to minimize any adverse impact on that environment. (b) NATURE AND DURATION OF LICENSE--(1) Subject to the provisions of section 12 hereof, any license issued pursuant to this Act shall be exclusive as against all persons sublect to the jurisdiction of the United States or of any reciprocating State, and shall authorize development of the hard mineral re- sources of the deep seabed within specified blacks thereof: Provided, That in no event shall any license issued under this Act authorize the commercial recovery of such resources prior to January 1, 1977: And provided further, That, except to the extent that such, licenses are authorized pursuant to the provisions of a future international agreement ratified by and binding upon the United States establishing a regime for the development of the international seabed area beyond the limits of coastal State territorial or resource jurisdiction, no licenses shall be issued under this Act subsequent to the date on which such international agreement shall be ratified by and become binding upon the United States. INTERNATIONAL REGIME SECTION 12. At such time as a future international agreement, providing for the establishment of an international regime for the development of the hard mineral resources of the deep seabed, shall be ratified and become binding upon the United States, no additional licenses shall be issued pursuant to this Act, To the extent that they are consistent with the provisions of the international regime, licenses previously issued shall continue in effect, and, to the extent possible under the inter- national agreement, the United States shall exercise its rights and responsibilities under the agreement to insure'their contin- uation under the international regime. 370 INVESTMENT GUARNATY SECTION 13. To the extent that a future international agreement, ratified by and binding upon the United States, shall differ from the requirements of this Act, the United States shall pro- vide the licensee with compensation in an effectively relizable form representing the reduction in value of the investment re- sulting form imposition of differing requirements or loss of rights granted under this Act: Provided, That the liability for compensation shall, until after an authorization for commer- cial recoery has been granted, be limited to compensation in relation to equipment and facilities utilized for exploration purposes: Provided further, That the Secretary of Commerce shall determine in the first instance the amount owing on the claims for compensation under this section: Provided further, That after an authorization for commercial recovery has been granted, the value of the investment shall be determined by subtracting from the value of the original investment any gross profits realized from development and processing operations: And provided further, That the liability under this section shall terminate ten years after commercial recovery has begun. INVESTMENT INSURANCE SECTION 14. (a) On annual payment by any licensee of a premium to be determined by the Skcretary of Commerce, utilizing stan- dard insurance practices and based upon the relative risks involved, the United States shall insure the licensee, in an amount not exceeding the value of the investment, for any damages suffered through the impairment of the insured invest- ment, or through the removal of hard minerals from the licensed block, by any other person against whom a legal remedy either does not exist or is unavailable in any legal forum to which the licensee has accesss. The Secretary of Commerce shall de- termine the amount owing on any claim for reimbursement under this section. (b) Insurance under this section shall be available solely upon the request of the licensee and after the Secretary of Commerce has determined that the insurance coverage requested is not readily available at a reasonable price elsewhere. RECIPROCATING STATES SECTION 19. (a) The Secretary shall, in promulgating regulations under this Act, attempt to harmonize his regulations with the laws, regulations, or other of ficail acts of any other State which has enacted legislation or regulations or taken, pursuant ti its own laws and procedured, equivalent official ac-t-s for purposes similar to those of this Act. When the Secretary finds, in consultation with the Secretary of State, that the laws and regulations of the United States and similar actions by any other State are in essential harmony one with the other, such other State shall be deemed to be a reciprocating State for the purposes of this Act. 371 (b) Any license or similar legal entitlement issued by a reciprocating State shall be accorded equivalent legal status as though it were issued by the Secretary: Provided, That the reciprocating State accords the same legal status to licenses issued by the Secretary: Provided further, That sections 13 and 14 of this Act shall not apply to persons subject to the juris- diction of the United States in respect to mining licenses or similar legal entitlements issued to them by a reciprocating State. NOTES Bills similar to Senate Bill 713 have been introduced in the last several sessions of Congress. In the 94th Congress Senate Bill 713 and a comparable House bill were both reported out of committee but never came to a vote. Deep seabed legis- lation was again introduce in the 95th Congress. ADDRESS BY SECRETARY OF STATE HENRY KISSINGER TO THE 1976 ANNUAL MEETING OF THE AMERICAN BAR ASSOCIATION printed in, REPORT ON THE DEEP SEABED MINERALS ACT, COfMMITTEE ON INTERIOR AND INSULAR AFFAIRS, No. 754, 94th Congress (1976) pp. 35-41. The issues before the Law of the Sea Conference cover virtuaily elcry area and aspect of man's uses of the seas, from the coastline .t the farthest deep seabed. Like the oceans themselves, tlese: aridt issues are interrelated parts of a single entity. Without agreemen{t'- all the issues, agreement on any will be empty, for nations ;will not -- ccept a partial solution-all the less so as some of the concessions that ,iave been made were based on the expectation of prograess on the issues which are not yet solved. ... Tie dee seabede ' ; :,. . :..b Tlthe.~ird, anid the most complex and vital issue remainin mm]rfor thie Conference is the problem of the deep seabeds. For decades we have known that the deep seabeds contain grept potential resources of nickel, manganese, cobalt and copper-resourC4c4' whoe aeessibifity would contribute significantly to global economi ':iiowth in the future. It is only'recently that the technology has bee!i developed which can enable us to reach those deposits and extirat them. -, .; ' The Conference has not yet'approached agreement on the issue of the deep'seabeds becauase it has confronted serious philosophical cdisagre- men'ts. Sote have argued. that commercial exploitation unre.4traiiedl by international "reaty would be" in tha best interests of the .Uited' States. In factI this counltry is many years ahend of any other 'in the technol'ogv of deep sea mining, and we are in all respects prepaied' t protect ourr intervsts. If the deep seabeads are not subject to inteRa-, tionalI agreement the United States can and will proceed to exploreBi i~l nmine on its oNyn. . - _ � 372 First., to ensure an eqluitable decisionmaking system, the United S.tate couf inules to believe that the Treaty should1 tcCol authorize the formation (If anl International Seabed Resource Authority to supervise exploration and1 development of the deep seabeds.ThAuort would be comprised of four principal organs:, An Assembyo l mcmber states, to give. general policy gudance; a Council, to serve as tile executive, policy-level and main decisionmaking forum,. setting operational and environmental rules for mining, and supervising the contracts for deep seabed mining; a Tribunal. to resolve disp~utes through le:ral processes; and a Secretariat, to carry out the day-to-day adni~iiixrative -activities of the Authority. The, United States proposes: That the~ rowev of thle Authority be carefully detailed by the. Treaty il order to pi('eserv all those, rights regarding, the uses of the seas. Which foil Ofluti(le the( Comlpetencle of the Aulthhority, and to avoid any jurisdictional ovcirlap wvith other interniational orzranizations; -TE-at t'hie oompositioai and structure of the, Council reflect the pro- duce0r aynd (-onsumer interests of those states most concerned with se;abed -minitig. Alil nations whose vital national economic conerIis are a-ffectied by (lecisionis of the Authority must have a voice and influence, in the Counlcil commensurate with their interests; and That the, proposed permianent seabed Tribunal adjudicate questionis of inter~pretat ion of the Treaty and of the powers of the Inter-national Allthorlty raisted by p-lrties to the Treaty or by private comnpajiie~0 vngaged in seabed mining. W, ithout.a Tribunal. unresolved contention 111a cert ~y. Such a body will be necessary if any seabed pooa is to win Widle aceoptancee. Second, to insure that all niations, developed1 and dleveloping,, have` adqut acees-s to se0abed mining sites The flnitoed States propose~s that the' Treaty, should guarantee' 11ondiscriminaroryV access for states and their nationals to deep seabedl resouirces Invidec spec ifhed and reasonable conditions. The requiremenit of "luaralitee loecess will not be met if them Treaty contains arbitrarv` - ~~~~~~or rest~riet;-," limjitatioiis oil the numiber Of Mine sites which any nation mighIt. e'xhoit. And such restrictions are unnecessary because deep sebd flinififr cannot be monopolized: there( are many mnore prodlic- tive seabed 3-ining siteso than conceivably can be mined for centuries to (orne. The TVnitcol States accepts that anl "Enterprise" should be estab- lished as. Part of tile International Seabed 11esource Authority'and tivet thrigllt to exploit the dleep seabeds under the samne condlitions. The -,'intel States (could accept as part of anl over-all settlment, svstemi iln WIhe.h Prime mining sites are reserved for exclusive Ox- Iplnitatioii ly The Enterprise or by the developing comitries directlv- it this applroavll meets With b~road supot Under this system, each iidiid t~i~de cnitraeltor w-ould prol)ose twoe iine sites. for exploittatiol.~ T he Alit-s-ri-ly woild then select one of these sites which %would be tries at, its -I izzretion. The other site would be minled by tile -ontractor on his ON~i. The TTi d ae pooesta teitentonlAthrt sol 'Slpervise a oftin( rel.enue10 sharime from i'inII( ac-tivities for the o .1,0 of tile ;-II1rnu11tiollat ~ommllliity.prilluarilv for the, needs of the lpoorest voillarme-S. Tlmr's revenules wvill not onrly advilnce thle gYrowth of dev eloping~ countries: l(vwl provide tangible evidence that It fair s.hi re mi & econoillio activity canl be achileved by a policy of co- (PerlitOiln Revenuello sharingy could he based either onl royalties or oil ai svsitcnj fni profit. sllarill- fromn contract miining. Sic a ytm ul * ~ ~ ~~~~x~iva reahify to th 'le desi!-"Iatioll of the de-p seabeds as the comnmuonlie tuge of all -11ankdind. F inlolly, thie T-nited 'States is preparedl to make a major eirort to enl hlanc te li and acesof developing couintrie~s to advanced deep, seabed mining, te(]flolo ,-yN in order to assist. their capabilities inl this 4 ~~~~~~field. For examlple. illcen-tives should he established for private cont- Imlnics to pm-ticipate inl a~greemnentz, to shaiire techn-ology and etrain per- nuIn freni lh v(10 )iin-- cotiltrik-c. 373 But while such a course might bring us a short-term advantage, it pr~ses long-term. dangers. Eventually any one countr' tehIca skills, areo bowitn to be duplicated by others, A race would hnbgn to carve -out deep sea domains for exploitation. This cannot but escalate into economic warfare, endanger t re freedom of navigtion, and ulti- wattely lead to tests of streng-th and military confrontationis. America wouldt not be true to itself, or to its moral heritage, if it accpe a World in whichi mright niakes right-where power aloeidetLci~ded tath6!I' iahof iliterests. Anld, from a practical standpoint, no one recognize" 111(re clearly than American industry. investment, access, slid' pi~i�, can best he jProtectcd in an establishing and predictable environment. On the, oflher hnand, there are those who would place all the deep seabed's rop~wlrcs under an international authority. Stich a proposal wyould pot 1)rovide adequate incentives and guarantees for those Da- tions Avfio' technoiogical achievement and entrepreneurial boldness fire requiredI if' the deep seabeds are to benefit till mankind. It would g-ive cof),. ro" to tlio~e who (lo not have the resources to undertake deep seabed Imi. Let Inc o d review tile specific issues before us arid then set forth. the olo:i; which wve believe cain form the basis for a new conisensu�. on thie tt(c! su-aea~dt:. First, theo decision-rn-king machinery for wanaging tederi bedcl`Tlacrelflas beeii c-onsiderable debate over the form and,( thce Po Wers (,l'the devi!:ion-niaking machinery established under the. Treaty. Pw "Ile j7,jj((,( States Is pr-eparcaj to gcceopt inter-national mnachinery,; hult such1 Loachinery inriust be balanced, equitable, and en~sure that the relatii% (:con-it, rcinterePsts of the countries with important activities in the deep seabesb protecteTd, -even~ though those countries may e numerical minoiy Second, accesst h deep seabeds. The Conference has been strug- gling'with the issues ofwhich nations, which firms, and'which interna- tional authorities will have direct access to, and share in. the benefits.' fr-om 'the developing of deep sdabed resources.'The United States undestans th conernthat the rich-es of the seas not be the exolusive peeeof only the most powerful and technologically advanced na-:; tions. We reonz httewrdcmuity should share" in Q2& benefits of deep Seaed exploitation. What the II nit'ed States cannot accept is that the right ofacei o seabed minerals be given-exclusively to an international authorit~y, or- be so severely restricted as effeAtively to deny access to the firms of. any individual nation including our own. We are gratified to. note an in- creasing awareness of the need to avoid such extreme positions and to move now to a genuine accommodation that would permit reasonable assurances to all states and their nationals that their access to these resoturces wvill not be denied. Third, thle effect of seabed mining on land-based producers Lana."7, based produceers of- seabed minerals are concerned that seabed pro- duction may adversely affect their national economies. This 'is an especially "A'rious problem since many of these producers are poor, developing countries'. We take these concerns seriously. But at the samte time it must be recgmd~ that commercial seabed production of these metals is iat least fiv years away. For many years thereafter, seabed production will amount to only a. fraction of total global production. Moreover,. global metal, markets are expanding and should easily be able to accommodlntiv additional productionA.,from the seabeds without versely affecting revenues'of land-based producer Countries,. The United States is prepared to make a major 'effort to resolve,,,- these issules equitably and to bring the Law. of the Sea Conference to-, a swift and successful conclusion. In this spirit, the United States' offers the following pro~posals. 374 Third, in response to the legitimate concerns of land-based prtoseT, ducers of minerals found in the deep seabeds, we offer the following ! steps as an additional major contribution to the negotiations: : The United States is prepared to accept a temporary limitation, for i a period fixed in the Treaty on production of the seabed minerals tied to the projected growth in the world nickel market, currently esti-.- mated to be about 6 percent a year. This would in effect limit produue-.. tion of other minerals contained in deep seabed nodules, incluciinr";' copper. After this period, the seabed production should be> gove'ri'r by overall market conditions. - The Unite&d States proposes that the International Seabed Au- thority have the right to participate in any international agreements . on seabed-produced commodities in accordance with the amount i': production for which it is directly responsible. The United States' is;';a prepared to examine with flexibility the details of arrangements con- cerning the relationships between the Authority and any eventual: comnmodity agreements. The United States proposes that some of the revenues of the Inter- national Seabed Resource Authority be used for adjustment assisti ance and that the W orld Bank, regional development bimks, and of ' international institutions assist countries to improve their comnicitllie.i ness or diversify into other kinds of production if they are seriousl~?Ad injured by production from the deep seabeds. An itrbent task of the In- ternational Authority, when it is established, will be to delvise an ad-'0 justment assistance program in collaboration with Ether international i institutions for countries which suffer economic dislocations ad a re-: _sult of deep seabed mining. - .. ..... The United States believes tha-tthe wvorld community has before it a grave responsibility. Our country cannot delay in its efforts to ', develop an assured supply of critical resources through our deep sean- bed mmining projects. We strongly prefer an international agreemeint to provide a stable legal environment before such developlenlt 1egins. one that ensures that all resources are managed for the good of the global community and that all can participate. But if an aigreeme'it ash not reached this year it will be increasingly difficult to resist pressiuret. to proceedr unilaterally. An agreement on tlie deep seabed can thril:- the world's interdependence front a slogan into a realitv. A .ql.se :Pqf communityv which nations lhave striven to achlieve oi laniid fTorl ' tl'iets cou1ll lbe realized in egime g for tile oceans. NOTES 1. The developing countries, earlier named the "Group of 77" but now consisting of over 115 members,are primarily interested obtaining a share of deepsea mining proceeds. They also desire to protect their members who are land based producers of the minerals found in the nodules. 2. The most difficult issue in the Law of the Sea Conference deep seabed negotiations has been the question whether an inter- national group would have authority to conduct mining operations and whether that authority would be exclusive. The developing countries are afraid .that given the high capital requirements of deep seabed mining and the large technological advantage of the United States and a few other countries, mining will be monopolized by a few countries if individual States or private 375 companies are allowed to mine. 3. There are a total of almost 160 nations participating in the Law of the Sea negotiations. Each nation has one vote. Thus the developing countries could easily dominate any issues left to the Authorities discretion since the Authority will have the same voting arrangement. The industralized countries want many aspects of mining to be covered by provisions not subject to such voting. They also want a subgroup of the assem- bly, with voting power reflecting respective economic interests to be given primary decison making authority. 4. A deep seabed mining operation requires an investment of $350-650 million and annual operating costs of $100-160 million. Annual net revenues of $40-60 million per operation are expected. If individual States or private companies conduct operations a percentage of their revenues would go to the Authority. No specific royalty has yet been proposed. 5. Although the quality of mining sites varies, there are considered to many more productive sites than can be mined in many centuries. Mining companies presently plan to recover nickel, copper, cobalt and some manganese from the nodules. The lion's share of the economic return comes from the nickel recovery. The impact of these new supplies on the world market would be significant. Each full scale mining operation could produce almost 10% of the present world consumption of nickel. One of the important issues is the duration, and level of any production quota to lessen the impact on the developing countries that are dependent on exporting these minerals. 6. A two thirds vote of those nations present and voting is necessary for the adoption of any Law of the Sea agreement. Therefore approval on the part of a majority of the developing countries is required since they account for over two thirds of the total votes. 7. After the two negotiating sessions held in 1976 the countries were still at an impasse. Subequent to those sessions a work- shop was set up for futher efforts toward agreement. The fol- lowing are summaries of the proposals that were submitted: Group o! 77 Proposrh r Under the paper submitted by the Group of 7770 activities into, a contract had not bee concludede covered by the contract and the extent of the participation The Authority Was .enipo.red to determine that, in of developing countries `tlerein, as well as the proper finan- certain parts of the contract 'ara, activities should only cial arrangements. -a.d, . ; ...be conducted by it, either thr ugh the Enterpri se or in Provisions were alS.'made to covet' cases where more association with developing .c.Onties, the Enterprise having than one application Is: received, whereby selection would the first right of'efusal, Wh~4 considering applications be'on a competitive basis,' and any preference and priority for such area the Authority w*as' quired to ensure that the would be accorded at a subsequent stage to an applicant developing country or countrieg!would obtain substantial who had previously entered into a contract for a separate I benefits, Reference to the issue:6Of a quota or anti-monopoly stage or stages of operations. The Authority could re- provision was maintained in the' text of Workshop Paper initiate the procedure for selection of applicants if, after a No. 1 ,: <, '__ specified period and after negotiations had been entered ' -- 376 'roposals by USSR the paper submitted by the USS, the activities in -The Authority wuld forbidden to impair any rights ,he area should be conducted both by States parties and gated under Part o e onv must fully directly by the Authority. The Authority would determine : safeguard such rights' �uPrsuant to specific articles in Part I of the alg with scientific research, the part or parts of the area in which it would conduct ttt I of t ne Centir eli with scientific research its activities. The Authority's area would not exceed thaty .eistribuli o f revenues the in which activities would be carried out by States parties. to tho interests and be epdo [en to give secia conri, prtiuon The activities of State parties would be conducted on ,r tIe land-locked 'td Fehicaly dlisadvantaged. Such the basis of contracts with the Authority and they would ; si c rt e deled to e ie S come under its effective financiaf and administrative super.d to be dic-imi- vision. States parties might carry out activities through , State enterprises or juridical persons registered in and ''t le to the resources Woild be vested In the Contractor sponsored by States. States parties sponsoring such entities at l thoment the resourcesgwere recovered from the area would be responsible for taking all necessary measures to pursuant to a contract. A contract would be entered into ensure that such entities complied with the Convention, its by the Authority if the applicant was qualified by virtue of rules, regulations and procedure adopted by the Authority. his financial standing and technological capability. The All States parties would have equal rights to participate in 'Enterprise and States parties would be presumed to be so activities in the area irrespective of their geographical loca- qualified. An applicant would also be required to submit tion, social system and level of industrial development, and a work programme to the AUthPrity which would fully take particular consideration Would be given to the needs of into account the Authbrity_ ;,j rules and regulations. All developing countries, particularly the land-locked or geo- contractors would be requit$O accept the supervision of graphically disadvantaged. the Authority. It was emphasized that the right of States to conduct Subject only to those r q~lements, the Authority would exploration and exploitation activities in the area followed award a contract; but if it hU received simultaneously an naturally from the concept of "common heritage. of man- application for a contract i(nfbe same area, the contract kind" since States are juridical representatives of mankind would be ava,.rded. on a jco'ipetitive basis. If no such under international law, and that those rights should there- competing appliation were �eceived, a properly qualified fore be guaranteed in the Convention itself and not left applicant would be granted cntract within 90 days and to the discretion of i'the Authority; [ the Aythority would not hfgi, the right to refuse to enter Furthermore, the system of exploitation would need into such a contract if the: financial arrangements criteria to take account of the legitimate rights and interests of set forth in 'paragraph 9 (d) had been satisfied and the the socialist system, being one of the main systems in the'i contract was in all .other respects in strict conformity with world; no sea-bed trgime and machinery would be viable the ,Convention and the;Authority's rules and regulations. without taking that into account. Although the. paper did It would be the obligatlo of the Contractor to provide not contain any quota clause, it was emphasized that such the funds, materials, equiprnt, skills and know-how as a clause should none the less be an integral part of the necessary for the conduct .perations under the contract system of exploitation as presented in the paper. The paper, made clear th~t.:iNi4 procedural and substantive -provisions of Annex t IriiS-n to contracts would apply nmutaris mutandis to the E.nteprise. It was emphasized that the parallel system could 0idly serve as the basis for a .... i e ' ;compnrotni", if the Enterpris "were on an equal footing with 'ropoanl by .United Stales :'; 7 othe applicants for contr}s : , Under the paper submitted by the United States, there r --iihthe area should be i exclusively by the Authority would be a parallel or dual access system. It was pointed ; (l) directly through te t prise in accordance with a out that a parallel system could be a method of accommo- for writte p f r 2) as determined y the dating the interests of i11 States and the international com-rit !irociation between the Enter- munity in general,. ;so as to best reflect the principle of , prise And th:{ipaiftd eiitiie pursuant to a contract. For the common heritage .of 'mankind. States parties o other the purposef securing liance at all times with the entities and the Enterprise would carry out activities in the relevant provisions and inbents, the Authority should area directly by entering into contracts with the Authority e All such activities would be in accordance with 'Annex I area ,, and the rules, regulations and procedures adopted by the tates parties should the Authority by taking all Authority, The Authority would have effective fiscal and measures necessary to seir'-.such complanc. 'The paper administrative supervision over allactivities in the area to further provided that the' Autlhority slwOuld avoid dlscrimi- secure effective.comlpliance with Part I of the Convention, nation in the exercise; fit wei and functions and that Annex I and the ities and regulations of the Authority. all rights granted sh4' fully safeguarded. Special States parties who sponsor other entities would assist consideration for d eve0pi ountries, including the con- the Authority by taking all appropriate measures to ensure duct of activities by th'.:Auibority in certain parts of tl;c such compliance, ! The Authority should promote and area solely in assoclatlIia 'ith them, should not be deemed encourage activities 'ri the area and should avoid discrimi- discriminatory, "h p'rs:i a ! ' ; natiog in granting' access and in implementing its powers plexilt.lity' Was ainali, in the provision as to when and functions. ' --- title 'to uIlnerals and pro'0&_ substances could be passed 377 frorhi heAvthotity. The Authority would be required to q" heef adopt appro~prite administrative procedures, rules and regu. ' The Auiist~~~trica o heni to conduct latfons for MAsIng an application and for the qualifications activities Iat rl~~soito ith entities. ~With of an app~lcatki, Suich qualifications incltuded financial stand- respect to eecia4~iunsthAuthority, Would be ing, technol~gltal capability and satisfactory performance emrpoweed o tohiltaivruPon receiving an under previousI contracts with the Authority, if any. In applicatio, t ltdM$tiipredres for applicants assessing the ualifications of a State party its character and to puls aldIik nw ielimit, for receiving as a State shouled be taken into account, other applienaoha. Every applicant should be treated on an equal footing 'ISubject to the Autori t y s hulete and oul 4;equredto fulfil four specific requirements: Wont liotant ons wthe tneUrri hofl an ~~~~~~~~~~~~~~~~~~~the ndrtkin o oply ithadt eta ncal otat rvdcant possessed the requisit all the obligations; acceptance of cantrol by the Authority; qualifications andcl~~~~Wt the procedures established satisfactory aksurance of fulfilment of obligations in good for applications; tath iction did not relate to those faith; the undertaking to promote the interests of developing f, parts of the area etidsllyfor the conduct of activities countries by- association or other means. In view of the by the Enterprise or byI t association with the'developing two main methods of operation embodied in article 22, one countries; and that .th6' ~tract complied with the resource new paragraph Was added to provide that the procedures for policy and the relevap :disons of the Authority, The the Enterprise should be governed by such provisions as the terms of a otat to 't~egotiated were clearly* set out Authority might 'establish In its rules and regulations and in the tex.Te enlde~ the resp'ective contributions of by the Statute of the Enterprise. Its activities should be the Authort n h Ohrco in association, including conducted Ili accordance with the resource policy and the the contribto of~dI~itras, equipment, skills and relevant decisions of the Authority In implementation know-howa e l t th conduct of operations Vol. XII, No. 9, U.N. Monthly Chronicle, pp. 37-40 (Oct. 1976) B. Environmental Impact and Regulation of Deep Seabed Min-ing FRANK, ENVIRONMENTAL ASPECTS OF DtEPSEA' MINING* 15 VTi-Tqnia Journal of International Law, 815 (1975) , pp. 315-20. The rd ci,' ~d~men ~ har~ei) durti~ eepsea manganesende exploitation forms a dark "plume" over A lairge area of the ocean's surface.. it has been estimated that the sediment may take five years to settle 100. yards downward.' If, as is forecast, many companies ultim~tely mine, the' i)lue of the ocean will be turned reddish-brown' over ten's of thousands of square milesv More importantly, the top layer of a substantial portion of the ocean, the. so-called "eulphotic zone" where. photosynthesis gives 'birth to the primary 'organismrrs in the food chain, may be. fundamentally changed.' tBottom layers might likewise be altered in some heretofore un- known man~ner.1 No one knows the ultimate imp lication of these altera- tions of naturesa Because of the, plume and various, other effects, deepsea mining will inevitably have a profound impact on the ocean environment. The basic problem today is that neither government, industry, not the environmental community has adequate information to make a sound judgment of the consequences to the marine ecology of this new activity: e.g., whether the consequences are so adverse as to suggest mining should not occur, or should be severely limited. 1. Anios, GaWilde, Winaes, & Roels, Effects Iof Surf ace-Discharged Deep-sea Mining PSffluent, in P&Qitk1~ANGANRSF DPPoSITs ON THE OrEAN, FLooR 271 (1). 1-Iota ed. 1972); U.S. t)EP'T INTERIMI, I ,~I'1NVIRONMIENTAI, STAWMNENT PRtOPOSED] Fol UNITED STATES INVOLVEMrENT IN LAW OF TttR Itll~nOT[ATIONS GOVERNING THE MiN4rNO GP 1se SE 91 14 IAJI M)INERAL, ltrsouiicrs St4A5DAli THE Imn's or NATIONAL SV910131,069N 2.113 (1974) lhsm'itafter cited, 55 N VIHNM At, t4AtTAT9MPN~r1. Minerals MctrasadFuels of the Senate Comm, on Interior and JNerur Affaits, 93d Cong., 2a ee. t',t 1092 (1974) (hereinafter cited as Senate Htear~ngsj. 3. Knausa Ocdr lution.. Status and Prognostication, in LAW OF THE SEA INSTIrtie Sioirru ANNUAL CONFERIENCE, PROCFEVING8 313, 326-27 (1973). - -*- *used with permission of the Virginia Journal of International Law Association 378 Unfortunately, no one now understands the environmental implications of mining the ocean's floor. According to the draft4environmental impact: statement on deepsea mining prepared by the Depatment of the Interior, there are gaps in techniques of observation of ecological baselines and of forecasting any natural or artificial change in the ocean environment : Deepsea fauna are relatively unknown, with a large fraction of species not ever having been described.," Further, the state of the art of benthic sam, y.;, pling is inadequate to support intelligent decision-makihg." The Departl,.!': ment of thie Interior therefore concludes that "sufficient data is not aval'iTM able to assess accurately the effects of many of the actions involved in dealep; seabed mining at this time." ' Part of the problem is the inherent difficulty of forecasting environmen. , tal consequences of a novel activity for which the equipment has not eveni' been fully developed. But another aspect is that the executive branch ofit' the United States Government has not requested adequate funds to under.'i take the necessary baseline studies and experimentation. Although theL environmental impact statement strongly recommends study and experi-s' ~'1 mental work,' and the National Oceanographic and Atmospheric Admin.-;:V istration of the Department of Commerce pressed for at least two years to, ; seek $9 million of appropriations for a Deep Ocean Mining Environmental : Study, other parts of the executive branch delayed the project. A modesty,1 'i $3 million appropriation for a more limited study has been requested thisi . ii year." In sum, while the government is promoting the development of X deepsea mining, inter alia through the negotiation of a Law of the Seai ? treaty mentioned below, it has not yet taken those steps necessary to learn of the ecological consequences of the activity it is promoting, . These ecological consequences may not simply be dismissed because - they are unknown. For although the adversity of its impact and the magni tude of that adversity is uncertain, it is clear that deepsea nodule mining;, will have at impact on the marine environment in various predictable: ways. For example, regardless of the technique used in mining, sediment ' 12. ENVIaONMENT'AL IMPACT STATEMENT, supti note 1, at 1.65. . 13, Id. at 2.14t. :O., , , ... . 14. Id. at A;3. l ;, i . 15. Id. at 5-;1: 16. E.g., id.7%3.7, 17. The struggle between NOAA and other parts of the Executive branch is well knowi to the industry and the environmental communities. However, public documentation of this is unavailable. 379 from the ocean floor will be lifted.with the nodule.11 Soine sed'im~enti ;m, sepidto during the ascent to the surface, but most will ptobably be washed free on board the minin~g vessel and eithei discharged over thie"41id or possibly returned to the sea at intermediate depths through adsare pipe."' The discharge of sediment creates the dark plume referred~r lier, and could well fundamentally change the character of the euphotic, zoie in the area.20One study concludes thatihixing de'ep-oceain*ateo and sedirdent with surface water may cause A stimulation of photoplankton and blooms of organisms which do not normally occur in the pelagic tone of areas overlying manganese nodule concentratfions (,perhaps because sedimeont-associated vitamins).21 Some speculate that stwh a redistribotl h of photoplanktoni species may be beneficial, or may be irrelevant s1inceth' areas of the ocean in which presently-projected mining will occur apjoear' to be the least biologically active,22 On the other hand, no one is aware of, the full implications of tinkering with such~ basic elements in the life caian~ Furthermore, the esthetics of changing ocean colot aside, surfats discharged deepsea sediments niay well alter light penetration in lowet layers and reduce photosynthesis there, leaving effects which are also ee tofore unknown.2' A second impact is likely in result from the disturbance to biblogld'4. act~tly and sedfiment on the oc6aii bottom caused by operation of either the Adetion or bucke syotem.i4 One could argue ,that such consequenices Will have an 'insignificant impact since bottom~ cirkebts naturally trarsfei sediment, since moat of it will settle, and since'ocean bottom areas'Whfe-re, miniing is likely to occur have little biologit'activity.11 But aigain, the;.r of these fauna in the ocean environment is uncleaiill the ocean bottoifiill some areas contains long-lived, late pubescent fauna - one benithiclb ~la" , M requires 200 years to reach soex.ual maturity2' - an'd If Ilarg oarea's of h ocean floor aire exploited, then the Departmentof the Interior concludes that a "serious concern may be found in the prelservability of deep~-ocean fauha"11 and that some types of mining "could diminish the probability of soMe species reproducing themselves thuis leading to a more rapid exiti& A,~ 18. 914VIRONMENTAI. IMPACT STATkMEST, Supra note 1, at 3.16 et sea., ' - 10. Id. at 3.21, 3.22, 20. Almsa, supra note 1; ENVIRONME~tAL IMPACT STATEM~ft~, sUpra n1Ole 1, at 2.113. 21. Nnvironmental impact Statemerit, supra fnote 1, at 3.28-9 and 3,332. 22. statement of 0. lRocls, Senate Hleatings, supra note 2, at WK9.. 23, E~NVIRtONMENTAL IMPACT S1'ATMsN't, Sipit" otest 1, [It 8,28. 24.: M. at 3.16 et &eq. 26,:Statemnent of 0. goels, sen~ate Hearings, supara note 2, at. 1092;, 26, See ENVIRONMENTAL. IMPACT STATEMENT, ur ot'Eat 2.124-27, 27. Id. at 3.10. .,apd o 28. I, sit 3.5,4. 380 tion rate of this unique fauna."2 The Department of the Interior concludes regulation will be required to prevent the "potential damage" of too "ag. gressive" floor mining.39 All U.S. mining companies, except one, will apparently extract only copper, nickel, and cobalt from nodules.3t After the extraction process, a great deal of waste, including manganese tracings, will be disposed. The huge quantities of manganese tracings and other waste may be dumped on land or in the ocean, but neither the economic feasibility nor the environ. mental impact of either disposal method has been evaluated. An interest- ing analogy may be made to the problem created by the dumping in Lake Superior of low-grade iron ore waste by the Reserve Mining Company.3 Neither the Government nor, apparently, the company was aware that the waste contained asbestos elements which, it is now claimed, are carcino. genic.3 A fourth possible consequence could result from the processing of the nodules at sea. Most U.S. companies maintain that they will not process at sea during the early years of mining.3" But no existing regulation or law would prevent such processing, and at least one foreign company has stated it may engage in primary refinement or "beneficiation" of ore at sea because that reduces transport costs?." Highly pollutive chemicals with heavy alkaline and acid bases are used in such processing, and they will undoubtedly be dumped at the mining site or in nearby areas. Assuming that processing will not be accomplished at sea, the fifth probable consequence might arise in a shift in the location of processing facilities from the "hinterland"' to coastal areas. According to the Depart- ment of the Interior, the development of extractive plants near the shore- line will "increase the probability of adverse impact in these areas."3" But the nature or magnitude of the adverse environmental impact on the' coastal zone has never been analyzed. 29. Id. at 3.10, 30. Id. at 3.40. 31. Senate Hearings, supra note 2, at 797. 32. See Washington Post, Feb. 23, 1975, at B2, col. 1; United States v. Reserve Mining Co., :180 F.Supp. 11 (D. Minn.), remanded, 498 F.2d 1073 (8th Cir.), continuation of stay of injunction denied, 380 F.Supp. 11 (1). Minn. 1974). 33. Tnilt MKETINO OF THE SECOND SPSSION OF THE CONFERENCE IN TIlE MATTIER OF POLLtnION OF LAKE SU'RRIOR AND ITS TRIBUTARY BASIN IN THE STATES OF MINNESOTA, WISCONSIN AND M/CNI9(AN. 1)R'oEC.EINtIS (1972); N.Y. Times, Oct. 2, 1974, at 29, col, 1, 34, Statement of M. Dubs on behalf of the American Mining Congress and Kerinectt (Copper Corp., Senate Hearings, supra note 2, at 1016, 1021; ENVIRONMENT&A. IMPACT STATtMSNT, supra nfote 1, at 1.81. 35. Statement of O. Roels, Senate Hearings, stupra note 2, at 1094. Sle also Mero, Potential Economic Value of Ocean Floor Manganese Nodule Deposits, In FERRO1IMANtANPSE DEPOSITS ON TII1 ()OCEAN FI.OOR 191 (D. Horn ed. 1972). 3(3, ENVIRONMENTAL IMPACr S'rArE'MENT, sulpr note 1, at 5.2. 381 Mining systems require substantial amounts of power. The Department of the Interior opines that future systems with large energy requirements may need to utilize nuclear reactors at sea." The potential environmental hazard from reactors is well known; the risks of using reactors at sea for mining have never been explored. The seventh consequence herein exposed is also unknown, for the origin of deepsea nodules is unknown. However, it is most likely that the nodules will play a role in the interface process between ocean water and the ocean bottom." 'Therefore the removal of the metal nodules may itself have an effect on the basic ocean biologic system. A final environmental concern involves an andromeda strain type prob- lem. The ocean bottom is essentially a self-contained unit; its life does not mirngle with the rest of the earth. Deepsea mining will bring up from that unknown world large amounts of ancient sediment containing ancient spores and organisms which may have created strange, alien antibodies which continue to survive. Scientists simply are unaware of what will happen when any such antibodies are set free in the new environment. It is possible that they will infect plant life or humans and that we will not have cures. II. THE LAW OF THE SEA REGIME In 1970, the General Assembly of the United Nations adopted a resilu- lion calling for the convocation of a Law of the Sea Conference which would, inter alia, establish a regime covering the mining of mineral nodules in areas beyond national jurisdiction.39 After a series of preparatory meet- ings, the Conference held its first formal session in Caracas, Venezuela, in the sunimer of 1974 and has held a second eight-week session from March t.7 to. May 9, 1975, in. Geneva. A stated Uinited States objective at the Conference is to promote the establishment of a regime under which deepsea mining could commence.'0 The Conference has reached a consensus that there should be an interna- tional Seabed Authority which would regulate deepsea nodule mining". But the negotiators have not yet decided upon such basic attributes of the 37. Id. at 1.47. 38. Bonatti, Kraemer, & Rydell, ('lassification and Genesis of Submarine Iron-Manganese Deposits, in FE.Rlt(OMANG:ANEsE DiP'osITrs ON THE OCEAN FLOOR 149 (D. Horn ed 1972). 39. G.A. Rles. 2749, 25 U.N. GAOR Supp. 28, at 24, U.N.Doc. A/8028 (1970). NOTES Debate on both the national and international levels has centered on the economics of exploitation of deep seabed min- erals and the division of the proceeds. The burden of environ- mental protection falls to the following provisions: Senate Bill 713 Section 5....Before he may issue a license, the Secretary must first determine... (4) that operations under the license will not pose an unreasonable threat ot the integrity of the marine 38'2 environment and that all reasonable precautions will be taken to minimize any adverse impact on that environment. Section 7. The Secretary shall consult with appropriate Federal agencies and departments regarding environmental criteria and shall establish environmental standards based to the max- imum extent practicable on available technical date and scientific data, applied in a consistent manner under the rules and regu- lations of section 18, to which operations under a license issued under this Act shall adhere. The Secretary may from time to time, propose revisions of the rules and regulations regarding environmental standards as available data may warrant. THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA Revised Single Negotiating Text A/Conf.62/WP.8/Rev.l/Part I , PROTECTION OF THE MARINE TE'IROlNT: MT Article 12M With respect to activities in the Area, necessary measur be taken in order to ensure'.effective protection 'or the marine environmeltiji harmful effects which m':'arise from such activities,$ To that end the A'ity shall adopt appropriated.rules, regulations and procedures for inter : ,. (a) .The prevention of pollution and cohtamination, and th#, " zards to the,' marine environtrint including the coastline, and of interferencei;.h the ecological balance of the marine environment, particular atenti eing paid to the need for protection from the conseqUence: of such activies airilling, dredging, excavation, disposal of waste, constiruction and ope${i ''or maintenance of installatiosb: pipelines and other devices related to such'at. .ies; (b) The protection and conservation of the natural resorr the Area and the preveitioni o!"!damage to the flora' and fauna of, the marine ef ment. SECTION 5. OTHER PROPOSED USES OF THE NONLIVING AND ENERGY RESOURCES OF THE OCEAN A. Energy from the Ocean The recent realization that fossil fuels are neither cheap nor unlimited and the recognition of the high economic and environ- mental costs of nuclear power have prompted a search for new energy sources. Many of the proposed new sources involve the use of the oceans. i.)ocean thermal energy conversion(OTEC)- OTEC facilities 383 would produce electricity by using the difference in temperatures between cold deep waters and the warm surface waters to drive a turbine connected to a generator. Ammonia in a closed system would be heated by the warm waters. This would cause the ammonia to boil. It would expand and pass through a turbine. After passing through the generator cold deep seawater would be used to cool and condense the ammohia. The ammonia would continuously cycle through the system. This is basically the same way that conventional generators work. They employ much more intense heat and convert water to steam to drive the tur- bine. Ammonia is used in lieu of steam in the OTe facility since the difference between the warm and cold seawater as the temperature difference created in a nuclear or fossil fuel plant. OTEC facilities are presently designed to be movable but they will be anchored to the sea bed at the operating site and will be almost totally submerged. A pipe 25-50 meters in diameter and 500-1000 meters long will be necessary to transport the cold water up to the surface. Much of the present research is directed to the locating of potential sites. The areas off the Southeastern states have been identified as potential sites. The best sites appear to be in the tropics seVefral hundred miles form shore. Two primary environmental effects are anticipated from OTEC facilities. The first is a slight reduction in the temper- ature of the surface waters around the plant. This change may have some secondary effects. For example, it has been suggested that down wind rain may be reduced due to the lower amount of evaporation from the cooled waters. The second impact results from the introduction of nutrients in the deep waters into the warmth and light of the suface. Observations of natural upwellings and experimentation suggests that this impact may provide an excellent setting for mariculture. (ii) wind-A strong and constant wind is needed for power production. A constant wind is important since it is expensive to provide back-up power for times when winds are calm. Wind velocity is important because the power content of wind is proportional to the tube of wind velocity. Thus when wind speed doubles, power output increases eight times. Good winds are found in several offshore areas and there have been several proposal for the construction of floating windmills. Particularily good winds are found at the edge of the Continental Shelf offshore from North Carolina to the Canadian border. It has been proposed that the country could meet a 384 large part of its energy demands by constructing about 3000 of these windmills along the Atlantic coast. It is claimed that the cost of the power would be one half that of nuclear plants. (iii) Other proposals include the construction of devices to capture the energy of waves both along the shore and in deeper waters; the production of power by using salintiy differences; and plans to make use of the energy in tides and currents. B. Water Column Mining There are many minerals dissolved in seawater and the total amount of these minerals is almost unlimited. A common problem in the recovery of any of these minerals is that they are gener- ally present in such minute concentrations compared to land based ores that extraction costs are prohibitive. In the past s~ome bromine, salt and magnesium were produced from seawater. Today only magnesium and a small part~of salt production are derived from seawater. it would take a major breakthrough in technology to make seawater mining of other elements eco- nomically feasible. C. Other Proposals other proposals for use of the ocean include floating airports, artifical islands, and cities at sea. 385 CUAPTER FOUR MARINE POLLUTION CONTROL SECTION 1. INTERNATIONAL LAW The international law of marine pollution is derived from several sources. The custom and practice of civilized nations is one such source. Where no convention or treaty controls, authorities look to custom and usage to determine international law. Principles of customary international law which pertain to marine pollution are found in two opinions. In the Trail Smelter Arbitration, 3 U.N. Rep. Intl. Arb. Awards 1905 (1949), 35 Am. J. Int'l. L. 684 (1941), the tribunal held that states had an obligation not to use their territory in such a way as might damage their neighbors. The International Court of Justice has likewise held that States have an obligation not to knowingly allow their territory to be used for acts which will be harmful to the rights of other states. Corfu Channel Case, (1949) 1 C. J. Rep. 4, 22. These principles would seem to prevent a nation pol- luting its waters to the extent that the polluting activity causes serious harm to the rights or territories of other nations. As the following materials indicate, the law of marine pollution control is now primarily governed by public international agreements. 386 UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT, REPORT, U.N. Doe. A/CONF. 48/14 (1972) "Principles" 7. States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea. 1958 GENEVA CONVENTION ON THE HIGH SEAS, April 29, 1958, 450 U.N.T.S. 82 (effective for United States Sept. 30, 1962). Article 24 Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil,, taking account of existing treaty provisions on the subject. Article 25 1. Every State shall take measures to prevent pollution of the seas from the dumping of radio-active waste, taking into account any standards and regulations which may be formulated by the competent international organizations. 2. All States shall co-operate with the competent international organizations in taking measures for the prevention of pollution of the seas or air space above, resulting from any activities with radio-active materials or other harmful agents. 387 Allegroie, MARINE OIL POLLUTION: THE EMERGING REGIME FOR THE ENFORCEMENT OF VESSEL SOURCES OF POLLUTION (unpublished seminar paper 1976) . . The 1958 Convention oh the High Seas, established at the First Law of the Sea Conference in Geneva, set out the basic rights of states to enforce oil pollution laws.4 The 1954 International Convention for the Prevention of Oil Pollution was amended twice, once in 1962 and again in 1969; these conventions established zones in which oil could not be discharged and set down standards for showing a violation.5 Also in 1969, two United Nations conventions were passed, the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, (the so-called Inter- vention Convention), which gave coastal states the right to intervene if such action was necessary to eliminate harm to its coastline: and the International Convention on Civil Liability for Oil Pollution Damage,7 (the Civil Liability Convention), which was the first attempt by governments to adopt uniform international rules and procedures for determining questions of liability and providing compensation to persons affected by oil from ships. Growing demand for sufficient liability coverage for oil pollution damage lead to three significant agreements in the early 1970's. In 1971 the United Nations agreed upon the International Oil Pollution Compensation Fund, (the Fund Convention) which would serve to supplement the Civil Liability Convention.8 In the same year, the private sector entered the field with two agreements which would serve to provide liability coverage while the Civil Liability and Fund Conventions were being ratified; they were the Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution (ToVALOP)9 and the Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution (CRISTAL),10 where 4Article 24 states: "Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships . . . taking account of existing treaty provisions on the subject." 13 U.S.T. 2312, T.I.A.S. 5200. 5Council on Environmental Quality, Fourth Annual Report 332. 9 Int'l Legal Mat'ls 25 (1969). Entered into law 6 May 1975. 79 Int'l Legal Mat'ls 45 (1969). Entered into law i9 June 1975. 811 Int'l Legal Mat'ls 284 (1971). The Fund Convention has a two-fold purpose: l)to provide compensation to the victims of oil pollution who have suffered damage to the extent that they fail to be protected by the Civil Liability Convention, and 2) indemnifying shipowners and their insurers for the additional burdens which the Civil Liability Convention imposes on them. The Civil Liability Convention's maximum damage recovery is $14,112,000. The Fund Convention will extend compensation up to a maximum of $32,400,000 (or up to $64,800,000 if 2/3 of the IMCO Assembly so votes). For more detail see, L.F.E. Goldie, "Liability for Oil Pollution Disasters: Inter- national Law and the Delimitation of Competenses in a Federal Policy", 6 J. of Maritime L. and Comm. 303 (1975). 9 8 Int'l Legal Mat'ls 497 (1969). 10 G. Houston Lay, New Directions in the Law of the Sea, Vol. II, Documents, (1973) at 646. 388 the cargo owners agreed to supplement the tanker owner's funds. Finally, and most importantly, the Inter-governmental Maritime Consultative Organization Convention for the Prevention of Oil Pollution by Ships was passed in 1973.12 This convention set new oil pollution standards and explicitly chose neither to permit not forbid individual nations from passing stricter measures than the Convention.13 Upon entry into force it will replace the 1954 Convention as amended. 11 It is anticipated that both TOVALOP and CRISTAL will probably end when the Civil Liability Convention and the Fund Convention become law. The Civil Liability Convention entered into force on 19 June 1975 and the Fund Convention should receive a sufficient number of ratifications soon. 12 12 Int'l Legal Mat'ls 1319 (1974). 13 Dennis Livingstone, "Oil on the Seas", 16 Environment 38, (Sept. 1974) at 41. 389 MERNATIONAL CONFERENCE ON MARINE POLLUTION: INTERNATIONAL CONVENTION:' FOR THE PREVENTION OF POLLUTION FROM SHIPS* [Dope at London, November 2, 1973] INTERNATIONAL CONVENTION FOIR THE PREVENTION RF POLLUTION FROM SHIPS, 1973 Text of the fkrticles of the Convention as adolpted by the Confcrence TiE PIUTIES TO THE CONVE4TION, BEING CONSCIOUS of the need to preserve the htum:an environmlent in general and the marine environment in particular, RECOGNIZING that deliberate, neli�;ent or accidental release of oil and other harmful substances from ships constitutes a serious souroe of pollution, RECOGNIZING JALSO the importance of the International Convention for the Prevention of Pollution of the Sea by Oil, 1954, as being the first rulti- lateral instrument to be concluded with the prime objective of protectinL; the Dn�v$o}p.entl, and appreciatring the significant contribution which that Convention' has made in preserving; the seas and coastal environment from pollution, DESIRING to achieve the complete elimination of intentional pollution of the marine environment by oil and other hanrmful substances and the miniimization of accidental dischar.;e of such substances, CONSIDLIING that this object may best be achieved by establishing rules not linited to oil pollution havin.; a universal :purport, HAVE AGRL-ED as follows: *[Reproduced from I.M.C.O. Document MP/CONF/WP.35 of November 2, 1973. [The Convention will be opened for signature from January 15, 1974 through December 31, 1974. The Convention includes five annexes and two protocols. Annexes III, IV, and V are so-called "optional annexes", and a state may declare that it does not accept any one or all of these. Annex I (p. 1335) concerns the regulations for oil pollution prevention; Annex II (p. 1386) deals with the control of pollution by noxious liquid substances; Annex III (p. 1421) contains the regulations for the preven- tion of pollution by harmful substances carried in packaged forms; Annex IV (p. 1424), the regulations for the prevention of pollution by sewage from ships; Annex V (p. 1434), the regulations for the prevention of pol- lution by garbage from ships. Protocol I contains the provisions for reports on incidents involving harmful substances, and Protocol II con- cerns arbitration. 390 ARTICLE 3 Application (1) The present Convention shall apply to: (a) ships entitled to fly the flag of a Party to the Convention; and (b) ships not entitled to fly the flag of a Party but which operate under the authority of a Party. (2) Nothing in the present Article shall be construed as derogating from or extending the sovereign ri~ghts of the Parties under international law over the sea-bed and subsoil thereof adjacent to their coasts for the purposes of exploration and exploitation of their natural resources. (3) The present Convention shall not apply to cony warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on fovernment non-commercial service. However, each Party shall ensure by the adoption of appropriate measures not impairing thec operations or operational capabilities of such shil's owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with the present Convention. ARTICLE 4 Violation (1) Any violation of the requirements of the present Convention shall be prohibited and sanctions shall be established therefor under the law of the Administration of the ship concerned wherever the violation occurs. If the Adninistration is informed of such a violation and is satisfied that sufficient evidence is available to enable proceedings to be brouWhit in respect of the alleged violation, it shall cause such proceedings to be taken as soon as possible, in accordance with its law. 391 (2) Any violation of the requirements of the present Convention within the jurisdiction of any Party to the Convention shall be prohibited and sanctions shall be established therefor under the law of that Party. Whenever such a violation ocours, that Party shall either: (a) cause proceedings to be taken in'accordance with its law; or (b) furnish to the Adrinistration of the ship such information and evidence as nay be in its possession that a violation has occurred,. (3) Where infomation or evidence with respect to any violation of the present Convention by a ship is furnished to the Ad.linistration of that ship,. the Adliinistration shall promptly informl the Party which has furnished the information or evidence, and the Organization, of the action taken. (4) The penalties specified under the law of a Party pursuant to the present Article shall be adequate in severity to discourage violations of the present 0onvention and shall be equally severe irrespective of where the violations ooocur, )r ' ' llRcclation'S, Control of Discharrc of Oil (1) Subject to the provisions of RIoeClations 10 and 11 of this Annex and parairaph (2) of this. 1eculation, any dischargo into the sea of oil or oily nixtures fron ships to which this Annex applies shall be prohibited except when all the follolrin� conditions arc satisfied: (a) for an oil tanker, except as proviled for in sub-uaracTaph (1j) of this paraLraph: (i) the tanker'is not within a special area; (ii) the tanker is i.oro than 50 nautical niles fror the nearest land; (iii) the tanker is proceedin3, on route; 392 (iv) the instantaneous rate o.C Oischarijc of oil content does not exceed 60 litres per nautical milQ; (v) the total quantity of oil dischar;c~d into the sea d.oes not cxcceed for existing tankers 1/15,000 of the total quaiitity-of the particular carC~o of which the residue forned. a part, anc! for new tankers 1/30,000 of the total quantity of the particular car,-o of which the residue forrod a part; and (vi) the tanker has in operation, oxcept as provided for in Re,"ulation 15(5) of this Ainnex, an oil dischar(,-o nonitorinC. aui control system and a slop taik arrangement as require& by Ro-,-ulation 15 of this Annex; from a ship of 400 tons ,,ross tonna,,:e and above other than an oil tanker and from machinery space eil~,'s excludin-~ car~o puap rooi bilges of an oil tanker unless mixed with oil czrCo rosiaue: (i) the ship is not within a special aren; (ii) the ship is rore than 12 nautical miles from the neare3st laji(id (iii) the ship is proccedin; on route; (iv) the oil contient of the efiluent is luss tibia 100 par-L er nilliw,-; (v) the. jllip has in operation an oil disohar.,,, monitorinm -n, control. Bycte4m, oily water separatinr equipment, oil filterin- 3sytkn or othor installation as required by ReC;ulation 16 of this annex. (2) In the case of a ship of less than 400 tons -'ross tonnaCo othhr thawt an oil tanker whilst outsi'c the spocial area, the A01ninistration shall ensure thai it is oquippo"' as far as prac-ticable anO. reasonable with installations to onsurv the stora;c of oil residues on board and their Llischar~ru to reception facilitic( or into thc sea in compliance with the requirements of paratraph (l)(b) oi tUia, Ile. ulat ion. (3) Whenever visibic traces of oil arc observed on or 'jol7.l tho ourface i' thof iwater in the Jaxioeiate vicinity of a ship or its waket Govermrento of Particv to -the Convention should, to the extent they are reasonably able to ao so, ProMptly Investigate the facts bearinc on the issue of whether there 1?,ae been v violation of the provisions of this Resulation or Rie(,ulation 10 of this 1n=5c., The invaatintior,, shor2.d include, in particular, the winJ and. sea conditions, r.;hc track and speooi - -393 of the ship,9 other possibleo sources of the visible traces -in the vicinity, andl '11y relevant oil dischar~.,: recor~s, ()The provisions of para,rTa,.h (1) of this Regulation shall not apply to the dlischar"C. of clean or' se~,Toatel ballas t. 'The provisions of sub-pax'ajyaph (l)(b) of tiais iregulation shall not ap)ply to the dischar.:;u of oily midxtur'e which without ,eilutima has an oil contrant not excec-in-; 15 parts per rail2lione (5 1o dischargeA into flue sea shal~l contain chermicals ox other substances in quwantities or 'concentrati,)ns which are hazardous to the murine environnont or chonicals or other substninces introd~uced for the purposo of cixctanvcntin,-2 tho cond.itions of ('.Uscha~r~ sIpocifice, in this }Re~,lation. (6) The oil residues which cannot Ibe dischar~ma into tho sea in conp~liancc with para~raphs (1), (2) an.'. (A.) of this ReCulation shall be retained on board or diechar-cd to recoption facilities. URowulation 10 M*cthocC.s for the I)-rcyoni~ton of Oil Pluin�o.~~ C.a~ 0e al aa s (i) ~o'thp puxrosc Of, CA-is ;4inex the spoocial areas are the Noditcorwxian Sca arja, the Baltic Sea area, the Black Sea tarea, thoe Red Son aroa and the JGnIP3 orea-I thich are define-i as follows, (a) The Mo~itorranoan Sea. area meana the Nodlitorran~n Sea izopcr incluCtiuid; - the I ,',lfs and', soaa therein with the bouxic1axy 'oetween the Mcditcrraiak.an and the Black Son con-stitute(I by the jlxi~ rallel and boundeJ- to th(. wost by the Straits of Gibraltar at the i-xridian of 503611fe (b) The Baltic Seat ares iecans, th-e Baltic Sev, proper with the Gulf of Bhothnia, th c Gulf of Finlan. sin(, the c'ntrance to the Baltic Sea boundted by th(, Darallel of Vic. Skcvw in thc SI-aGerrak at 57 a44. 8' (c) The B~lack Sea. area raean- this Black Sea p-roper with the bound=ax between'thv Neditorrsnocn and the Black Son coziatitutckl by tho p~arallel 41 1. (0) The Ried Son area racans the R&d Sea proper inoluCLir~; the Gulfs of Suuz and Aqabn bounaed at the south by the rhuunb line between Ita3s si Ano (12'8.5N, 43 0 9.6,1W onL Hlusn 4u~rad (12 0,40.4'N, 0030.24,"' (e) TheL "GUI1b al!'ca" ncaxes them sca area locAve, northL W-9t of the. rhurI'. line between htas cJ 'IVc.0 (22CJ301% 59'?,8%j) and Rae Al Fastch, (25 (041N, 61 025'H). (2) (a) Subioct to tho provisions of 11c4tilation 11 of this Annex, any dischfaxCc into tile sea of oil or oily, mixture fron any oil tanker and any ship of 400 tons Cross tonna,_7t, rind albove other than an oil tanker sluall L prohiLiteC, whilb in a special area.. (Ii) Such ships while in a special area shall retain on hoard all oil dlrainau an.. sludl:v, Otirty ballant rnnd tank washin, waters and. dtischiar~-c thoir ojLy to rAcuition fa-cilities. ()(a) Subjoct to the provisions of ao,'-lationll of this Annex, any dischar into the., sea of oil or oily mixture fror a ship of lcss than 400 tonc cross tonna.-, other than an.oil tanker, shall be prahibited while iin a special area,. except when the oil content of the effluent without dilution does not exceeds 15 parts per mlllion or alternatively wvhoe all of the followingt conditions are Satisfiedl (i) the ship is procodin3 oin route; (ii) the oil content of the effluent is lees than 100 parts pcr million; ancd (iii) the discharee is malle as far as practicWDle frOrn the land, but in no case less 'then 12 nautical uilos from the nearest lanIA (b) No Jtischar. ;le into the sea shall contain choeicals or other substances in quantities or concentrationid which are hazardous to the marina envirohnent or 'Chemicals oV other Substancef introdu*o& for the purpose of ciz'ourventinC; the -oonditions o~f disoharce sQecificQ in this lic,rulation. (c) The oil rosiduos which cannot be disoharjed into thd.soa in conpliarti. with sub-paratpraph (a) of this pargri aph shall be retained on board or Clischar~ed to roception facilities. (.I) The provisions of this Herrulation shall not applt tovthd dischfirC; o f clean or socrecated ballait. (5) Nothinu in this Heroulation shall prohibit a shiIp on'a Voyafo only part of which is in - special area from disoharL,,inW outside tho Especial area in accordance with Reiulation 9 of thi's Annex. (6) Whenever visible traces of oil are observed on or below the surface f tho water in tbe icriediate vicinity of a ship or its wake, thep Governunts of Parti'D to the Conventicn should, to the extent they are reasonabiy? able to 6c.,S M. _ ____ ~____. 1.395 pronptly investigato the facts bearing on the issue of whether there has been a violaticn of the provisions of this Regulation or Regulation 9 of this Annex. Ilu invwstigation should include, in particular, the wind c-nd sea conditions, the traok and speed of the ship, othor possible sources of the visible traceos in thev viniJnt3, r, nrl P.n -LJ,3ov' 1t; ni] clnrchn.rf.o 'rooonsS (7) ilecection facilities within special areas: (a) Io:itarraneal Scoa, Blacl; Sea and Baltic Sca areas. (i) The Government of each Party to the Convention, the coastline of which bnrders on any given special area undertates to ensure tlat not later than 1 January 1977 all oil loading terminals anrd repair ports within the special area are provided with facilities adcquatc for the reception and treatment of all the dirty ballast and tank washin, water from oil tankers. In addition all ports within the special area shall be provided with adequate reception, facilities for other residues and oily Mixtures from all ships. Such facilities shall have adequate capacity to r.leet the needs of the ships using thern without causing undue delay. (ii)] The Govermnent of each Party 'having under its Jurisdiction entrances to seawater courses with low depth contour which ni3it require a reduqtion of draught by the dischargeo of ballast undertakes to ensure the provision of the facilities referred to in sub-para.Traph (a)(i) of this paraLraph but with the proviso that ships required to discharge slops or dirty ballast could be subject to solo delay, (iii) During the -period between the entry into force of the present Convention (if earlier than 1 January 1977) and i January 1977 ships while navia,'ting, in the special areas shall comply with the requirmr.ents of l,egulation 9 of this nJmex. However the Governments of i'arties the coastlines of which border any of the special areas under this sub-para,;raph may obtablish a date earlicr thanl 1 January 1977 but after the date of entry into force of the present Convention, from which the requircmients of this Ilegolation in respect of the special areas in question shall tace effect: ' - . ':' (1) if all the reception facilities required have boon provided ,Jy the rlate so established; and t ____. 396. (2) provideO that the Iarties concerned notify the Org'Mization of the date so established. at least six months in advance, for circulation to other acrtios, (iv) i'"ter 1 January 1977, or the Waste cstahi;ished in accordance with su')-paraiancph (a)(iii) of this para4-p~aph if earlier, each Party shall notify the Organization for transnmission to the Contractin& Govrnmients concerned of all cases where the facilities are alleged to be inadequatc. (b) Reld Sea area and "Gulf area" (i)' The Government of each Party the coastline of which borders on the special areas undertakes to ensure that as soon as possible C.all oil loading; tcrinals and repair ports within those special areas are Provided with facilities adequate for the roception and treatr.ment of all the Oirty ballast an('L tn washinr- water frjn tankers. In addition all ports within the special area shall .ba provi('ed with adequate reception facilities for other rosiduc2 and oily mixtures from all ships. Such facilities shall ~bavc acdquate capacity to mieet the needs of the ships usiri.; then wuithout cau-in- undue delay. (ii) The Governniant of eacih rarty havinT univier its jurisdiction entrancey to seawater courses with low depth contour which niCht require a rot'uction of drau,-,ht by the Cischarge of ballast shall wiudortcio to ensure the Provision of the facilities reforrcd to in ouib- paraIraph (b)(i) of this paraLraph but with the proviso that ships required to dischari;o slops or dirty ballast coulk. be subject to some delay. (iii) iBach Party concerned shall notify the Organization of the measures taken pursua-t to provisions of su.!-IparaT,,raph (b)(i) anc! (ii) of this praLrraph." Upon reccipt of sufficient notifications the Oraniznation shall, establ~ish a dato fron which the requirenents of this Rc,,ulatioxi in respoct of the area in question shall talke effect. Tho 0O2r'anizti on :,shall notify all Iartiea of the (late oo estbl. hIved no less than twelve months in advance of that date, 397 (iv) Durino the perioC'i .btwcon the entry into force of the present Convention and the date so estX)lisheO, ships while naviatin- in the special area shall couply with the roq-iiroments of ikoalation 9 of this innex. (v) Aifter such date oil tankers loading in ports in these speOial areas where such facilities, ar not yet availxable shall also fully corpply with the roquiremlonts oX this folulation. Howevvr, oil tankers erntorin'. those special areas for the jmxrposo of loadin( shall manko eovry effort to enter the area with only clean ballast on Doard. (vi) After tho date on which the requirements for the special area in question take effect, each Party shall notify the Oranization for tvmisnissiozn.to the )?artiej qonioorned of all cases where the facilities are alleced to bo inaOdoquatu. (vii) At least the reception facilities s prescri`)ad in Ragulation 12 of this Vnnex'bhall be proviaed by I January 1977 *r *lze year after the date df entry into force-of the presont'Conv0ntioti, whichever voocurd later. Recrulation 11 Bxoition Rerilations 9 and 10 of thais 4nnx shall not apply to: (a) the 2ischar:e into the sea of oil or oily raixturO necessary for the purpose of securin,; the safety of a ship or savings life at sea; or (b) the dischar.-e into the sea of oil or oily mixturo rosultinclrol:l danage to a ship or its equip,-cnt; (i) provid.od that all reasonable precautions have been taken after the occurrence of the-Otanago or discovery of the discharCe for the purpose of provontinr, or nininisinrj the discharco; and (ii) except if the owner or the Master acted either with intent to cause damage, or recklessly and with kmowledge that damage would probably result; or (c) the discharge into the sea of substanoes containing ail,. approved by the Administration, when being used for the purpose of oombating specific pollution incidents in order to minimize the dama. from, 3981 _ erty, will execute its powers in such a way as to bring about inju-,tices to states, their subdivisions, or persons acting pursuant to their permission." Id., at 40. The Submerged Lands Act did indeed grant to the States dominion over the offshore seabed within, the limits defined in the Act and released the States from any liability to account for any prior income received, front state leases that had been granted with respect to the marginal sea. But in further exercise of paramount national authority, the Act expressly declared that noth- illg in the Act "shall be deemed to. affect in any wise the rights of the United States to the natural resources of that portion of the subsoil and seabed of the Continental Shelf lying seaward and outside of [the marginal seal, all of which natural resources appertain to the United States, and the jurisdiction and control of ';,i which by the United States is confirmed." 43 U. S. C. � 1302. This declaration by Congress is squarely at odds with the assertions of the States in the present case. So, tool .. is the provision of the Act by which the grant to the States is expressly limited to the seabed within three miles (or three marine leagues in some cases) of the coastline, whether or not the States' historic boundaries: might extend farther into the ocean. � 1301 (b). More- over, in the course of litigation dealing with the reach and impact of the Act, the Court has said as plainly as may be that "the Act concededly did not impair the validity of the California, Louisiana, and Texas cases, which are admittedly applicable to all coastal States .... " United States v. Louisiana, 363 U. S. 1, 7 (1960); see also id., at 83 n. 140. We agree with the Special Master when he said: "It is quite obvious that Congress could reserve to the federal,government all the rights to the seabed of the continental shelf beyond the three-mile territorial belt of sea (or three leagues in the case of certain Gulf states) only upon the basis that it already had the paramount right to that seabed under the rule laid down in the California case." Report 19. Congress emphatically implemented its view that the United States has paramount rights to the seabed be- yond the three-mile limit when a few months later it enacted the Outer Continental Shelf Lands Act of 1953, ' 67 Stat. 462, 43 U. S. C. � 1331 et seq. Section 3 of the Act 317 "declared [it] to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and -power of disposition as provided in this subchapter." 43 U. S. C. � 1332 (a). . .. . The Act then proceeds to set out detailed provisions for the exercise of exclusive jurisdiction in the area and for the leasing and development of the resources of the seabed. - Of course, the defendant States were not parties to United States v. California or to the relevant decisions, and they are not precluded by res judicata from liti- gating the issues decided by those cases. But the doc- trine of stare decisis is still a powerful force in our juris- prudence; and although on occasion the Court has declared-and acted accordingly-that constitutional de- cisions arc open to re-examination, we are convinced that the doctrine has peculiar force and relevance in the pres- ent context. It is apparent that in the almost 30 years since California, a great deal of public and private busi- ness has been transacted in accordance with those de- cisions and in accordance with major legislation enacted by Congress, a principal purpose of which was to resolve the "interminable litigation" arising over the controversy of the ownership of the lands underlying the marginal sea. See H. R. Rep. No. 215, 83d Cong., 1st Sess., 2 (1953). Both the Submerged Lands Act and the Outer Con- tinental Shelf Lands Act which soon followed proceeded from the premises established by prior Court decisions and provided for the orderly development of offshore re- sources. Since 1953, when this legislation was enacted, 33 lease sales have been held, in which 1,940 leases, em- bracing over eight million acres, have been issued. The Outer Continental Shelf, since 1953, has yielded over three billion barrels of oil, 19 trillion m.c.f. of natural gas, 13 million long tons of sulfur, and over four million long tons of salt. In 1973 alone, 1,081,000 barrels of oil and 8.9 billion cubic feet of naturatTgaswere :exfrac~ted': daily from the Outer Continental Shelf. Exploitation of our resources offshore implicates a broad range of federal !':- legislation, ranging from the Longshoremen's and Harbor"'i Workers' Compensation Act, incorporated into the Outer ;' Continental Shelf Lands Act, to-the more recent Coastal ?, Zone Management Act.' We are quite sure that it would ' be inappropriate to disturb our prior cases, major legisla:'? tion, and many years of commercial activity ' by calling 318 into question, at this date, the constitutional premise of prior decisions. We add only that the Atlantic States, by virtue of the California, Louisiana, and Texas cases, as well as by reason of the Submerged Lands Act, have been on notice of the substantial body of authoritative law, both constitutional and statutory, which is squarely at odds with their claims to the seabed beyond the three- mile marginal sea. Neither the States nor their putative lessees have been in the slightest misled. Judgment. shall be entered for the United States. NOTES In United States v. Florida, 420 U.S. 531(1975), the Court upheld the Special Master's finding that the seaward boundary of Florida in the Atlantic Ocean extended only to the limits specified in �1301(b) of the Submerged Lands Act(three geograph- ical miles) rather than the boundaries defined in the State's 1868 Constitution. B. Regulation of ()CS Drilling OUTER CONTINENTAL SHELF LANDS ACT 43 U.S.C. �1331 et. seq. (enacted 1953) � 1331. Definitions When used in this subchapter- : (a) The term "outer Continental Shelf" means all submerged lani lying seaward and outside of the area of lands beneath navigable' waters as defined in section 1301 of this title, and of which the sub:. soil and seabed appertain to the United States and are subject to it3 jurisdiction and control; (b) The term "Secretary" means the Secretary of the Interior;-i, (c) The term "mineral lease" means any form of authorization fo the exploration for, or development or removal of deposits of, oil, gas, or other minerals; and (d) The term "person" includes, in addition to a natural person, an association, a State, a political subdivision of a State, or a private, public, or municipal corporation. � 1332. Congressional declaration of policy; jurisdieti6on; construction (a) It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and popwer of disposition as provided in this subchapter. .. ! ' 319 (b) This subchapter shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected. � 1s33. Laws and regulations governing land-ConsttutfA United States laws; laws of adjacent States; publication of Lfpied' States lines, restriction on State taxation and Jurisdiction (a) (1) The Constitution and laws and civil and political jurisdletinl of the United States are extended to the subsoil and seabed of th -.iter Continental Shelf and to all artificial islands and fixed structures wiheh may be erected thereon for the purpose of exploring for, developilg, re- moving, and transporting resources therefrom, to the same extent f'a It the outer Continental Shelf were an area of exclusive Federal jii[tidc- tion located within a State: Provided, however, That mineral :lases on the outer Continental Shelf shall be maihtained or issued only underfthe provisions of this subchapter. (2) To the extent that they are applicable and not inconsistentiwith this subchapter or with other Federal laws and regulations of the Seere- tary now in effect or hereafter adopted, the civil and criminal laws of: each adjacent State, now in effect or hereafter adopted, amended, or rep'eled are declared to be the law of the United States for that portion 'ofChe subsoil and seabed of the outer Contipental Shelf, and artifcial,:lia"ds and fixed structures erected thereon, which would be within the oai ;g;of the State If its boundaries were extended seaward to the outeti',idn of the outer Continental Shelf, and the Ptesident shall determine andtphb- lish in the Federal Register such projected lines extending sea.rd and defining each such area. All of such applicable laws shall J d- ministered and enforced by the appropriate officers and courts 'Q the United States. State taxation laws shall not apply to the outser 1n- tinental Shelf. (3) The provisions. of this section for adoption of State law aiI/ Gle law of the United States shall never be interpreted as a basis for c~iri g any interest In or jurisdiction on behalf of any State for any pi e over the seabed and subsoil of the outer Continental Shelf, or thle' PP- arty and natural resources thereof or the revenues therefrom. Coast ;uard regulations; marking of islands nnd strlucturesl olfelses and penalties (e) (1) The head of the Department in which the Coast Guard is operating shall have authority to promulgate and enforce such rea- sonable regulations with respect to lights and other warning devices, safety equipment, and other matters relating to the promotion of safety of life and property on the islands and structures referred to in subsection (a) of this section or on the waters adjacent thereto, as he may deem necessary. - - Prevention of obstruction to navigation by Secretary of the Arniy . (f) The authority of the Secretary of "the Army to prevent ob- struction to navigation in the navigable waters of the United States is extended to artificial islands and fixed structures located on the' outer Continental Shelf. � 1334. Administration of leasing-Rules and regulations; amendment; cooperation with State agencies; violations and penalties; compliance with regula tions as condition of lease .. . (a) (1) The Secretary shall administer the provisions of this subchapter relating to the leasing of the outer Continental Shelf, and shall prescribe such rules and regulations as may be necessary to carry out such provisions. The Secretary may at any time pre-: scribe and amend such rules and regulations as he determines to be - .320 320 necessary and proper in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf, and the protection of correlative rights therein, and, notwith- standing any other provisions herein, such rules and regulations shall apply to all operations conducted under a lease issued or X maintained under the provisions of this subchapter. In the enforce- ment of conservation laws, rules, and regulations the Secretary is authorized to cooperate with the conservation agencies of the adjacent States. Without limiting the generality of the foregoing provisions of this section, the rules and regulations prescribed by the Secretary thereunder may provide for the assignment or re- linquishment of leases, for the sale of royalty oil and gas accruing or reserved to the United States at not less than market value, and, in the interest of conservation, for unitization, pooling, drilling agreements, suspension of operations or production, reduction of rentals or royalties, compensatory royalty agreements, subsurface storage of oil or gas in any of said submerged lands, and drilling or other easements necessary for operations or production. (2) Any person who knowingly and willfully violates any rule or regulation prescribed by the Secretary for the prevention of waste, the conservation of the natural resources, or the protection of cor- relative rights shall be deemed guilty of a misdemeanor and punish- able by a fine of not more than $2,000 or by imprisonment for not more than six months, or by both such fine and imprisonment, and each day of violation shall be deemed to be a separate offense. The issuance and continuance in effe6t of any lease, or of any extension, renewal, or replacement of any Lease under the provisions of this subchapter shall be conditioned upon compliance with the regula- P tions issued under this subchapter and in force and effect on the date of the issuance of the lease if the lease is issued under the provi- sions of section 1337 of this title, or with the regulations issued un- der the provisions of section 1335(b) (2) of this title if the lease is maintained under the provisions of section 1335 of this title.. Cancellation of lease; judicial review (b) (1) Whenever the owner of a nonproducing lease fails to com- ply with any of the provisions of this subchapter, or of the lease, or of the regulations issued under this subchapter and in force and effect on the date of the issuance of the lease if the lease is issued under the provisions of section 1337 of this title, or of the regulations is- sued under the provisions of section 1335(b) (2) of this title, if the lease is maintained under the provisions of section 1335 of this title, such lease may be canceled by the Secretary, subject to the right of judicial review as provided in section 1337(j) of this title, if such default continues, for the period of thirty days after mailing of notice by registered letter to the lease owner at his record post office ad- dress. . (2) Whenever the owner of any producing lease fails to comply with any of the provisions of this subchapter, or of the lease, or of the regulations issued under this subchapter and in force and effect on the date of the issuance of the lease if the lease is issued under the provisions of section 1337 of this title, or of the regulations is- sued under the provisions of section 1335(b) (2) of this title, if the lease is maintained under the provisions of section 1335 of this title, such lease may be forfeited and canceled by an appropriate proceed- ing in any United States district court having jurisdiction under the provisions of section 1333(b) of this title. 321 said submerged lands in the vicinity of the pipeline in such propo0r tionate amounts as the Federal Power Commission, in the caseof gas, and the Interstate Commerce Commission, in the case of oil, ra3y, after a full hearing with due notice thereof to the interested parties;. determine to be reasonable, taking into account, among other things, conservation and the prevention of waste. Failure to comply with the provisions of this section or the regulations and conditions pre- scribed thereunder shall be ground for forfeiture of the grant in an appropriate judicial proceeding instituted by the United States in any United States district court having jurisdiction under the provisions of section 1333(b) of this title. Pipeline rights-ot-wny, forfeiture of grant (c) Rights-of-way through the submerged lands of the outer Conti- nental Shelf, whether or not such lands are included in a lease main- tained or issued pursuant to this subchapter, may be granted by the Secretary for pipeline purposes for the transportation of oil, natural gas, sulphur, or other mineral under such regulations and upon such conditions as to the application therefor and the survey, location and width thereof as may be prescribed by the Secretary, and upon the express condition that such oil or gas pipelines shall transport or purchase without discrimination, oil or natural gas produced from � 1337. Grant of leases by Secretary-Oil and gas leases; award to highest bidder; method of bidding. . l Terms and provislons of oil and gas lenses (b) An oil and gas lease issued by the Secretary pursuant to this section shall (1) cover a compact area not exceeding five thousand seven hundred and sixty acres, as the Secretary may determine, (2) be for a period of five years and as long thereafter as oil or gas may be produced from the area in paying quantities, or drilling or well reworking operations as approved by the Secretary are conducted thereon, (3) require the payment of a royalty of not less than 121/0 per centum, in the amount or value of the production saved, removed, or sold from the lease, and (4) contain such rental provisions and such other terns and provisions as the Secretary may prescribe at the time of offering the area for lease. . . Publication of notices of sale and terms of bidding (f) Notice of sale of leases, and the terms of bidding, authorized ,by this section shall be published at least thirty days before the date of sale in accordance with rules and regulations promulgated by the Secretary. � 1340. Geological and geophysical explorations Any agency of the United States and any person authorized by the Secretary may conduct geological and geophysical explorations in the outer Continental Shelf, which do not interfere with or endanger actual operations under any lease maintained or granted pursuant to this subchapter, and which are not unduly harmful to aquatic life in such area. Aug. 7, 1953, c. 345, � 11, 67 Stat. 469. 322 � 1341. Reservation of lands and rights-Withdrawal of unleased lands by President (a) The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf. First reusanl of mineral purchases (b) In time of war, or when the President shall so prescribe, the United States shall have the right of first refusal to purchase at the market price all or any portion of any mineral produced from the outer Continental Shelf. Natiosnal security clause (c) All leases issued under this subchapter, and leases, the main- tenance and operation of which are authorized under this subchap- ter, shall contain or be construed to contain a provision whereby authority is vested in the Secretary, upon a recommendation of the Secretary of Defense, during a state of war or national emergency declared by the Congress or the President of the United States after August 7, 1953, to suspend operations under any lease; and all such leases shall contain or be construed to contain provisions for the payment of just compensatioii t6-the lessee whose operations are thus suspended. National defense areas, suspension of operationsl .. A?. " extension of leases (d) The United States reserves and retains the right to designate by and through the Secretary of Defense, with the approval of the President, as areas restricted from exploration and operation that part of the outer Continental Shelf needed for national defense; and so long as such designation remains in effect no exploration or opera-. tions may be conducted on any part of the surface of such area ex- cept with the concurrence of the Secretary of Defense; and if 6p- erations or production under any lease theretofore issued on lands within any such restricted area shall be suspended, any payment of rentals, minimum royalty, and royalty prescribed by such lease like- wise shall be suspended during such period of suspension of opera- tion and production, and the term of such lease shall be extended by adding thereto any such suspension period, and the United States shall be liable to the lessee for such compensation as is required to be paid under the Constitution of the United States. 0o 43 C.F.R. 3300 et. seq. bpar 3300-uter Continental in submerged lands of the Outer Con- tSubp 3300-uter Continental Shelf, as defined in section 2 of Shelf Mineral Deposits; General the act. Subject to the supervisory au- Somcsx: The provisions of this Subpart thority of the Secretary, the regulations 3300 appear at 35 F.R. 0604, June 13, 1970, in this part shall be administered by the unless otherwise noted. Director, Bureau of Land Management, � 3300.0-3 PnurpoEc and nutllority. hereinafter referred to in this part as the The Outer Continental Shelf Lands Act of August 7, 1953 (67 Stat. 462; 43 � 3300.0-4 Applicability of public land U.S.C. � 1331 ct seq.), referred to In thls laws. part as "the act", among oh-ficr-tlings, The laws and regulations pertaining authorizes the Secretary of the Interior to the public lands of the United States to issue on a competitive basis leases for are not applicable to the submerged oil and gas, sulphur, and other minerals lands of the Outer Continental Shelf. 323 Mineral deposits in the submerged lands rector, Geological Survey, shall submit of the Outer Continental Shelf are sub- recommendations to the Director on ject to disposition only in accordance tract selections and lease terms and with the provisions of the act and the conditions. regulations promulgated by the Secre- �3301.4 Selectionofracts. tary thereunder. The Director, prior to the final selec- * 4 I tion of tracts for leasing, either selected on his own motion or nominated pur- � 3301.1 Leasingmaps. suant to � 3301.3 of this subpart, shall (a) Any area of the Outer Continental evaluate fully the potential effect of the Shelf which has, been appropriately leasing program on the total environ- platted as provided In paragraph (b) ment, aquatic resources, aesthetics, rec- of this section is subject to lease for reatlon, and other resources in the entire any mineral not included in a subsist- area during exploration. development ing lease issued under the act or meet- and operational phases. To aid him in ing the requirements of subsection (a) his evaluation and determinations he of section 6 of the act, unless before any shall request and consider the views and lease is offered or issued the unit is (1) recommendations of appropriate Federal withdrawn from disposition pursuant to agencies, may hold public hearinrs after section 12(a) of the act, or (2) desig- appropriate notice, and may consult with hated as an area or part of an area State agencies. organizations, industries, restricted from operation under section and individuals. The Director shall de- 12(d) of the act. - vclop special leasing stipulations and (h) As the need arises, the Bureau of conditlons when necessary to protect the Land Management will prepare official environment and all other resources, and leasing maps of areas of the Outer Con- such special stipulations and conditions tinental Shelf, which will be- naade to shall be contained in the proposed notice conformn so far na. aacdtcibe made to of lease offer. The proposed notice of lease offer, together with all views and method of tract designation established recommendations received and the DI- by thec adjoining State. The arca in- rector's findings or actions thereon, shall eluded in each mineral lease shall be be submitted to the Secretary for final described in accordance with the officlal approval, -leasing map. � 3301.5 Notlice of Icasc offer. � 3301.2 Resources evaluation. Upon approval of the Secretary, the From time to time the Director may Director shall publish the notice of lease announce tentative schedules of lease offer at the expense of the United States sales of Outer Continental Shelf areas. in the FEDERAL REGISTER, as the official At such time as an area is initially con- publication, and in other publications as sidered for mineral leasing, or as the may be desirable. The publication in the need arises, the Director shall request FEDERAL REGISTER shall be at least 30 the Director, Geological Survey, to pre- days prior to the date of the sale. The pare a sunmary report describing the notice shall state the place and time at general geology and potential mineral which bids will be filed, and the place, resources of the area and shall request date, and hour at which bids will be other interested Feld'ral agencies to pre- olpened. The notice shall contlain any pare reports describing to the extent special stipulations or conditions which known any other valuable resources con- will become a part of any lease issued tained within the general area and the pursuant to such notice, including stlp- potential effect of mineral operations ulations or conditions for the protection upon the resources or upon the total of the environment, aquatic life and environment. other resources. � 3301.3 Nominations orl I'ncls. ~� ~~~~3301,3 Nomi f d� 3306.2 Cancellation of eases. In selecting tracts for oil and gas, sulphur, or other nmineral leasing, the Any nonproducing lease Issued under Director will receive and consider nonif- the act may be canceled by the author- nations of tracts or requests describing ized omcer whenever the lessee fails to areas and expressing an Interest in leas- comply with any provision of the act or ing of minerals, or, from time to time, lease or applicable regulations in force upon his own motion, upon approval of and effect on the date of the issuance of the Secretary, may issue calls for nomi- the lease, If such failure to comply con- nations of tracts for the leasing of mln- tinues for 30 days after mailing of notice erals in specified areas. Nominations of by registered letter to the lease owner tracts should be addressed to the Dlrec- at his record post office address. Any tor, with copies to the appropriate such cancellation is subject to Judicial Bureau of Land Management field office review as provided In section 8(J) of the and the appropriate oil and gas super- act upon the complaint of any person. visor of the Geological Survey. The DI- Producing leases issued under the act 324 may be canceled for such failure only long as such designation remains in of-, by judicial proceedings In the mannmer feet no exploration or operations may prescribed in section 5(b) (2) of the act. be conducted on the surface of the leased. Any lease issued under the act, whether area or the part thereof included within producing or not, will be canceled by the designation except with the concur- the authorized officer upon proof that rence of the Secretary of Defense. If it was obtained by fraud or misrepre- operations or production under any lease sentation, and after notice and oppor- within any such restricted area shall be tunity to be heard has been afforded to suspended, any payments of rentals, the lessee. minimum royalty, and royalty prescribed � e by such lease likewise shall be suspended. 3307.24 Exploration and operations. during such period of suspension of operations and production, and the term � 3307.4-1 Purchasc of production. of such lease shall be extended by adding In time of war, or when the President thereto any such suspension period, and of the United States shall so prescribe, the United States shall be liable to the the United States shall have the right of lessee for such compensation as is re- first refusal to purchase at the market quired to be paid under the Constitution price all or any portion of the oil or gas of the United States. produced from the leased area, as � 3307.4-4 Geological and geophystcal provided in section 12(b) of the act. exploratlion; rigiltr-of-wny. � 3307.4-2 Suspension of operations The United States reserves the right to during war or national emergency. authorize the conduct of geological r.nd Upon recommendation of the Secre- geophysical exploration In thc lezITd tary of Defense, during a state of war or area which does not interfere with or national emergency declared by the Con- endanger actual operations under the gress or the President of the United lease and the right to grant such ease- ? States after August 7, 1953, the monts or rights-of-way, upon, through, Secretary is authorized to suspend or in the leased area as may be nece,;sary any or all operations under a lease, or appropriate to the working of other as provided in section 12(c) of the lands containing the deposits described act: Provided, That just compensa- In the act, and to the treatment and tlon shall be paid by the United States shipment of products thereof by or to the lessee whose operations are thus under authority of the Government, its suspended. lessees or permittees, and for other public purposes, subject to the pro- 63307.14-:3 Reriction of explo-ratnion visions of section 5(c) of the act where anl operations. they are applicable and to all lawful The United States shall have the and reasonable regulations and condi- right, as provided In section 12(d) of tions prescribed by the Secretary there- the act, to restrict from exploration under. and operations the leased area or any part thereof which may be deslg-n nated by and through the Secretary of Defense, with the approval of the Presi- dent of the United States, as, or as part of, an area of the Outer Continental Shelf needed for national defense. So 30 C.F.R. 250 et. seq. part shall be administered by the Direc- � 250.1 urI'Irose lllld aIllllllrily. tor of the Geological Survey through The Outer Continental Shelf Lands the Chief, Conservation Division. Act enacted on August 7, 1953 (67 Stat . a a _-- 462), referred to in this part as "the act,"' �250.12 Regtion of operations. authorizes the Secretary of the Interior at any time to prescribe and amend such (a) Duties of supervisor, The super- rules and regulations, to be applicable to visor in accordance with the regulations all operations conducted under a lease in this part shall inspect and regulate all issued or maintained under the provisions operations and is authorized to issue of the act, as he determines to be neces- OCS Orders and other orders and rules sary and proper to provide for the pre- necessary for him to effectively supervise vention of waste and conservation of the operations and to prevent damage to, or natural resources of the Outer Contl- waste or, any natural resource, or Injury nental Shelf, and the protection of to life or property. The supervisor shall correlative rights therein. Subject to the receive, and shall, when In his judgment supervisory authority of the Secretary It is necessary, consult with or solicit of the Interior, the regulations in this advice frqlesseesflJdofficlalpf inter- 325 ested Departments and agencies, includ- prescribed by the svpervisor. Ing the Fish and Wildlife Service, Federal ~ Water Pollution Control Administration, � 250.41 Control of wells. Bureau of Land Management, Coast (a) Drilling wells. The lessee shall take Guard, Department of Defense, Corps o all necessary precautions to keep all Engineers, and representatives of State wells under control at all times, shall and local governments. utilize only personnel trained and com- The su- petent to drill and operate such wells, (C)vls0r Enl-s zncy suspensions. The su- wrand shall utilize and maintain materials pervIsor IP authorized, either in writing and high-pressure fittings ad equip- or orally with written confirmation, to mentd hgh-pressure ftthngs and equlp- suspenid anyV olyrntlon, Including pro- ment necessary to Insure the safety of suspend any operation, including pro- duction, which iln his judgment th-reatens operating conditions and procedures. Immnedilate, serious, or Irreparable harm # or damnage to life, including aquatic life, 250.43 Pollution and waste lisplosal. to property, to the leased deposits, to other valuable mineral deposits or to the (a) The lessee shall not pollute land environment. Such emergency suspen- or water or damage the aquatic life of sion shall continue until in his judgment the sea or allow extraneous matter t, nthe threat or nianger has terisuinatedgn enter and damage any mineral- or water- the threat or danger has terminated. bearing formation. The lessee shall dis- *�0.14� Slpcters pose of all liquid and nonliquid waste � 250.14 Samples, tests, and surveys, materials as prescribed by the supervisor (a) When deemed necessary or advis- All spills or leakage of oil or waste mate- able, the supervisor Is authorized to re- rials shall be recorded by the lessee and. quire that adequate tests or surveys he upon request of the supervisor, shall be made In an acceptable manner without reported to him. All spills or leakage cost to the lessor to determine the reser- of a substantial size or quantity, as de- volr energy; the presence, quantity, and fined by the supervisor, and those of any quality of oil, gas, sulphur, other mineral size or quantity which cannot be immedi- deposits, or water; the amount and direc- ately controlled also shall be reported tion of deviation of any well from the by the lessee without delay to the super- vertical; or the formation, casing, tubing. visor and to the Coast Guard and the or other pressures. Regional Director of the Federal Water (b) The supervisor may, at the time Pollution Control Administration. All of approval of any notice to drill or spills.or leakage of oil or waste materials redrill any well, stipulate reasonable of a size or quantity specified by the des- requirements for the taking of formation Ignee under the pollution contingency samples or cores to determine the Iden- plan shall also be reported by the lessee tity and character of any formation. without delay to such designee. (b) If the waters of the sea are pol- � 250.30 Lease terms, regulations, waste, luted by the drilling or production opera- danltlge aId safety. tions conducted by or on behalf of the The lessee'shall comply with the terms lessee, and such pollution damages or of applicable laws and regu'ations, the threatens to damage aquatic life, wild- lease terams, OCS Orders and other writ- life, or public or private property, the ten orders and rules of the supervisor, control and total remoal of the pollut- and with oral orders of the supervisor. ant, wheresoever found, proximately re- ,1k suchi oral orders shall be effective, suiting therefrom shall be at the expense when issued, and are to be confirmed of the lessee. Upon failure of the lessee In writing as provided in � 250.11. Thel to control and remove the pollutant the lessee shall take all necessary precau- supervisor, In cooperation with other ap- tlons to prevent damage to or waste of proprlate agencies of the Federal, State any natural resource or injury to life, and local governments, or in cooperation or property, or the aquatic life of the seas. with the lessee, or both, shall have the right to accomplish the control and re- �,250.38 Well records. mnoval of the pollutant in accordance , {} with any established contingency plan (c) Upon request by the supervisor, for combating oil spills or by other mnean the lessee shall submit paleontologlcal at the cost of the lessee. Such action shall reports identifying microscopic fossils not relieve the lessee of any responsl.- by depth (not the resulting interpreta- bility as provided herein. tions based upon such identifications) (c) The lessee's liability to third par- unless washed well samples normally ties, other than for cleaning up the pol- � maintained by the lessee for paleonto- lutant in accordance with paragraph (b) logical determinations are made avail- of this section shall be governed by ap. able to thi supervisor for inspection. plicable law. (g) The lessee shall submit any other o e reports and records of operations whena required and in the manner and forml 326 tion or analysis of any geological data � 251.5 Requirement of notices and per- collected under the permit. At any time 1111is. within one year of receiving a notice of (a) Geological or geophysical ex- acquisition or analysis from a permittee, ploration for mineral resources. A per- or within a longer period if specified in son may not conduct geological or the permit, the Supervisor may select all geophysical exploration for mineril re- or part of the geological data and sources without a permit. Separate per- analyzed geological information. The mits will be issued for geological explora- permnittee shall keep the geological data tion for mineral resources and for geo- and analyzed geological information physical exploration. for mineral available for inspection and selection by resources. the Supervisor during such period, and * e � the permittee shall submit geological � 251.12 Submission of data and infor. data and analyzed geological informa- rlation by perilittces. tion to the Supervisor within 30 days (a) Submnission of geological data and after receiving a request for submission analyzed geological information. (1) of them. Each holder of a permit for geological * 4 exploration shall notify the Supervisor imnlediately, in writing, of the acquisi- IE NATICNAL ENVIRMNMENTAL POLICY ACT OF 1969 42 U.S.C. ��4321 et seq. � 4321. Congressional declaration of purpose The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environ- ment; to prcmote efforts which will prevent or eliminate damage to the en- vironment and biosphere and stimulate the health and welfare of man; to en- rich the understanding of the ecological systems and natural resources .im- portant to the Nation; and to establish a Council on Environmental Quality. Pub.L. 91-190, � 2, Jan. 1, 1970, 83 Stat. 852. SUBCHAPTER I. -- POLICIES AND GOALS � 4331. Congressional declaration of national environmental policy (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all camponents of the natural environment, particularly the profound influences of population grcwth, high-density urbanization, in- dustrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and developrent of man, declares that it is the continuing policy of the Federal Govemrnent, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable reans and measures, including financial and technical assistance, in a manner calculated to foster and pro- mote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, econcmic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to 327 improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may -- (1) fulfill tHe responsibilities of earc generation as trustee of the environment for succeeding generations; (2) assure for all Armericans safe, healthful, productive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without cegradation, risk to health or safetcy, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, whereever possible, an environment which supports diversity and variety of individual choice; (5)achieve a balance between population and resource use which will per- mit high standards of living and a wide sharing of life's amenities; and (6) enhance the quality of renewable resources and approach the maxinum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful en- vironment and that each person has a responsibility to contribute to the pre- servation and enhancaement of the environrent. � 4332. Cooperation of agencies; reports; availability of information; reccnrr-andations; international and national coordination of efforts The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be in- terpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal ,Government shall -- (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man' s environment: (B)identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with econcmic and technical considerations; (C) include in every reccrmmendation or report on proposals for legis- lation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -- (i)the environmental impact of the proposed action, (ii)any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) and irreversible and irretrievable ccamitments of resources which would be involved in the proposed action should be im- plenented. o 328 Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the ccrments of any Federal agency which has juris- diction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appro- priate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section i4 ~ 552 of Title 5, and shall acconpany the proposal through the existing agency re- view processes; � 4333. Conformity of administrative procedures to national environmental policy All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or incon- sistencies therein which prohibit full compliance with the purposes and pro- visions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter. � 4334. Other statutory obligations of agencies Nothing in section 4332 or 4333 of this title shall in any way affect the specific statutory obligations of any Federal agency (1) to comely with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State agency, or (3) to act, or refrain fracn acting contingent upon the recommendations or certification of any other Federal or State agency. �4335. Efforts supp]R.e. ntal to existing authorizations The policies and goals set forth in this chapter are supplenRbLaar.y to those set forth in existing authorizations of Federal agencies. NOTES An OCS lease sale involves the following basic procedures: a.)the Secretary of the Interior determines a general leasing schedule; b.)The Secretary receives nominations by industry of tracts they are interested in bidding on and so called "negative nominations"--requests by States or persons that the Secretary not lease certain tracts due to pos- sible adverse environmental consequences; c.)the Secretary tentatively designates tracts for leasing; d.)a draft environmental impact statement(EIS) is pre- pared discussing the impact of and alternatives to developing the specific tracts; e.)a public hearing is held with the EIS providing the focus for public comment on the proposed action; written comments are also received; Wk~ ~ f.)a final EIS is prepared; 329 g.)a decision is made to offer specific tracts for lease; h.)bids are received and if an acceptable bid is offered the lease is sold; i.)exploratory drilling is carried out to determine the feasibility of commercial production;and j.)permission for commercial production is granted by the Secretary after a review of compliance with safety, environmental and other regulations. GULF OIL CORPORATION V. MORTON 493 F.2d 141(9th Cir. 1973) tended for an appropriate period of OPINION time, and that no royalties would be due DUNIWAY, Circuit Judge: from them during the suspension. On This is an appeal by the Secretary of appeal, the Secretary sustained the sus- the Interior and subordinate federal of- pension, stating that it was for the pur- ficials from a judgment (1) se~tting pose of permitting Congress to consider aside the Secretary's orders suspending proposed legislation to terminate the drilling operations on eleven oil and gas leases, and that the action was taken "in leases in the Santa Barbara Channel, the interest of conservation." His deci- (2) directing the Secretary to forthwith sion incorporated a statement by the grant all pending applications for drill- Acting Directoi of the United States ing permits, and (3) extending the ini- Geological Survey which identified three tial term of these leases for 32 months environmental risks which would be in- to ehable the lessees to exkerise their volved in continuing operations under rights under these leases. the leases: the possibility of another blowout; the possibility that wells eWe reverse. would be improperly plugged should the legislation pass and abandonment be- 1. The Facts come necessary; the possibility that The relevant facts have been stipulat- geologic structures such as the one ed to by the parties. Plaintiffs are the which contributed to the 1969 spill holders of eleven oil and gas leases cov- would be encountered and fractured, ering areas of the outer continental thus causing large quantities of oil and shelf in the Santa Barbara Channel, gas to escape. The statement empha- granted in 1968 pursuant to the terms sized that none of these risks was acute of the Outer Continental Shelf Lands and that, if the development and extrac- Act, 67 Stat. 462 (Aug. 7, 1953), 43 U. tion of oil were contemplated under S.C. �� 1331-1343 (OCS Act). They these leases, the risks would be accepta- have paid some $153,000,000 for these ble. However, it also concluded that the leases. In January, 1969, a well being risks were unacceptable in light of the drilled by Union Oil Company under an- fact that the leases might be terminated other lease, not one here involved, blew in the near future. out, causing the massive Santa Barabara The plaintiffs then filed this action, oil spill. Shortly thereafter, the Secre- requesting that the suspenrsions be de- tary suspended all operations on certain clared invalid and revoked, that the Sec- leases in the Channel. This order was retary be ordered to issue drilling per- complied with, although the companies mits for the leases, and that the leases took an unsuccessful administrative apt- be extended to compensate for the loss peal, and the leases were extended for the of drilling time. The district court en- period of the suspension. In April, 1971, tered judgment in their favor, stating: before plaintiffs had begun drilling un- "This Court considers that the only der the leases here in question, they were suspension orders which can be issued again ordered to suspend operations. by the Secretary are those provided They were informed that this suspen- for by Section 12 of the Act [dealing sion was to continue until January, with suspension during time of war 1973, that the lease terms would be ex- and for defense purposes] or those 330 providing for the suspension of actual tions, the Act speaks of "conservation of operations when requested by the les- the natural resources of the outer Conti- see or when necessary to prevent nental Shelf," not just of conservation waste or damage to person or proper- of oil, gas, sulphur and other mineral re- ty." 345 F.Supp. at 685, 688-689. . sources. We cannot conclude that the e i , later language, Permitting suspension of Section 5(a)(1) of the Act, 43 U.S.C. leases "in the interest of conservation" � 1334(a)(I), provides: is confined to conservation of oil and "The Secretary shall administer the gas as plaintiffs urge, even though the provisions of this Act relating to the sentence also refers to "unitization, pool- leasing of the outer Continental Shelf, ing, drilling agreements . . . re- and shall prescribe such rules and reg- duction of rentals or royalties, compen- ulations as may be necessary to carry satory royalty agreements, subsurface out such provisions. The Secretary storage of oil or gas . . . " all of may at any time prescribe and amend which do relate primarily to conserva. such rules and regulations as he deter- tion of oil and gas. We think that the mines to be necessary and proper in phrase "in the interest of conservation" order to provide for the prevention of refers back to the earlier phrase which waste and conservation of the natural we have quoted. resources of the outer Continental The phrase "conservation of the natu- Shelf, and the protection of correla- ral resources of the outer Continental tive rights therein, and, notwithstand- Shelf" is, on its face, broader than the ing any other provisions herein, such meaning that plaintiffs would give it. rules and regulations shall apply to all Its natural meaning would encompass all operations conducted under a lease is- such resources, not just oil and gas, sul- sued or maintained under the provi- phur and other minerals. sions of this subchapter. In the en- The OCS Act was originally intro- forcement of conservation laws, rules, duced in Congress as Title III of the and regulations the Secretary is au- Submerged Lands Act, 67 Stat. 29, May thorizcd to cooperate with the conser- 22, 1953. See 1953 U.S.Code Cong. & vation agencies of the adjacent States. AdminNews 2177 ff, quoting S.Rep. Without limiting the generality of the foregoing provisions of this section, Cong., Ist Sess. (1953). It was stricken the rules and regulations prescribed from that Act, but reintroduced in the by the Secretary thereunder may pro-ed same form and ultimately adopted on vide for the assignment or relinquish- August 7, 3 In the legislative histo- August 7, 1958. In the legislative histo- ment of leases, for the sale of royalty oil and gas accruing or hreserved to r he ry, it is still referred to as Title III of oil and gas accruing or reserved to the United States at not less than market was finally adopted as an amendment to value, and, in the interest of conserva- the Submerged Lands Act. It is clear, tion, for unitization, pooling, drilling however, that the two Acts are in par agreements, suspension of 'operations materia. or production, reduction of rentals or royalties, compensatory royalty agree- Section 2(e) of the Submerged Lands ments, subsurface storage of oil or Act (43 U.S.C. � 1301(e)) provides gas in any of said submerged lands, "The term 'natural resources' in- and drilling or other easements neces- eludes, without limiting the generality sary for operational production." thereof, oil, gas, and all other miner- (Emphasis added.) als, and fish, shrimp, oysters, clams, It is true, as plaintiffs argue, that the crabs, lobsters, sponges, kelp, and oth- basic delegation of authority is to ad- er marine animal and plant life but minister the leasing provisions of the does not include water power, or the Act and that these deal with exploration use of water for the production of for and extraction of oil and gas and power sulphurl. But it is also true that, in auu- We think it entirely reasonable for the thorizing the Secretary to issue regula- Secretary to conclude that the OCS Act, 331 in � 5(a)(1), uses the phrase "natural it was not. They point out, that the resources" in the sense in which it is de- leases were made in full conformity with fined in Section 2(e) of the Submerged the OCS Act, that one purpose of the Lands Act. � Act was to develop the resources of the If there were still any doubt in our outer Continental Shelf, particularly oil minds that e the Secretary's range of and gas, that the leases themselves con- template, and indeed require, the plain- choices includes suspension to conserve t to drill. They add to this the fact the natural resources of the'outer conti- that the statement of the Geological Sur- nental shelf as thus broadly construed, vey, on which the Secretary relied, those doubts would be removed by the Nationa l Envi ronmental Po d bicy Act of shows that, if drilling is to be done, the Ntion, 8t Stat. 852, 42 U.S.C. At 4321- ecological risks are acceptable. Finally, 1969, 83 Stat. 852, 42 U.S.C. �� 4321- 4347 (NFPA). That Act provides in � they point out that the Secretary him- self recognizes that, under these circum- 102, 42 U.S.C. � 4332: stances, only Congress can permanently,, 'The Congress authorizes and di- prevent drilling hyscancelling the leases rects that, to the fullest extent possi- ble: (1) the policies, regulations and and paying the plaintiffs for their value. In essence, their argument is that the public laws of the United States shall Secretary cannot suspend the leases to be interpreted and administered in ac- give himself a chance to persuade o- cordance with the policies set forth in gress to do what he now thinks ought to this chapter, be done. In Calvert Cliffs' Coord. Com. v. Unit- ed States A. E. Comm., 1971, 146 U.S. The argument is a poweLful one, but Api.D.C. 33, 449 F.2d lO9, 1112-1113, we are unable to accept it. As we con- the court said: strue the OCS Act and NEPA, the'Sec- retary has a continuing duty to guard "NEPA, first f all, makes environ- all the resources of the outer Continen- mental protection a part of the man- mental protetion a part of the man- tal Shelf. After the leases in question date of every federal agency and de- were made, events occurred in the Santa partment . This compulsion Barbara Channel that were both unex- is most plainly stated in Section 102. perted and very dangerlous to the cnvi~ . . . Congress also 'authorizes ronment. These caused the Secretary to and directs' that '(2) all agencies of reconsider the dangers to the natural re- the Federal Government shall' follow sources of the area if drilling were to certain rigorous procedures in consid- proceed under the leases. ering environmental values. Senator . On April 20, 1971, the Secretary sent Jaclkson, NEPA's principal sponsor, to the Speaker of the House a letter, a stated that '[n]o agency will [nowl be proposed bill, and an environmental im- able to maintain that it has no man- pact statement. In his letter, the Secre- date or no requirement to consider the tary recites the actions taken by him environmental consequences of its ac- after the January 1969 blow out in the tions.' He characterized the require- Santa Barbara Channel, and continues: ments of Section 102 as .'action-forc- ing' and stated that that '[o]therwise, "At the same tine, a second major these lofty declarations [in Section action was taken. An order was 1011 :ale nothing more than that."' signed which converted the existing (Fl'ootnotgs omitted.) * two-mile buffer opposite the Santa '*, o e , . - Barbara State Oil Sanctuary into a The Secretary's Order is Within thie permanent ecological preserve. Until Range of hIloices A;vailable to Him tuis order was signed, the area which There remains, however, a see- covers 21,000 acres, had no special le- ond question: could the Secretary sus- gal status. pend operations under the plaintiffs' The enclosed bili proposed a more leases for the reasons that he has in- permanent solution to the problem. It voked in this case, i. e., was this particu- would terminate 35 of the Federal lar action within the range of choices leases and place the area covered by available to him? Plaintiffs urge that them, as well as certain other adjacent 332 areas, into a National Energy Re- The fact that the bill in question was . serve. The reserve shall be available recommended by the Secretary does not for' lease only as determined by:'the affect this analysis. It cannot be seri- President. ously contended that he has no power to We believe that the pro- recommend legislation. Indeed, NEPA posed bill offers an equitable solution seems to require that he do so when he to the problem created by the 'blow- believes that legislation is necessary to out' in the Santa Barbara Channel enable him to carry out his.duties under area of the Outer Continental Shelf. that Act. See � 103 and � 102(2)(C), e a o 42 U.S.C. � 4333 and � 4:132(2)(C). It The Bill, however, did not come to a would be a strange rule of law to insist vote. A second suspension order was is- that the Secretary's right hand ignore sued in April of 1973. The parties have what his left hand is doing. There is stipulated that its validity will be con- nothing to support the plaintiffs' fears trolled by our disposition of this case. that the Secretary will use this proce- Under date of April 18, 1973, the Secre- dure as a bootstrap method of discon- tary re-submitted the bill. tinuing the off-shore exploration and ao a Xdrilling program entirely. Should such The bill was introduced in the Senate abuses occur, they can be dealt with in on June 6, 1973. So far as we are ad- an appropriate case. We think that, vised, it is still pending. given the fact that drilling had not yet When the suspension order in question begun and that it might have to be was nmade, drilling had not yet begun on abandoned, the Secretary's evaluation of the leases in question. In such circum- the environmental risks cannot be called stances, the fact that the leases might be arbitrary, capricious, an abuse of discre- terminated is highly relevant to an eval- tion, or otherwise not in accordance with nation of the risks involved. For exam- law. ple, even if the threat to the marine en- We do not hold that the Secretary can vironment were grave, the Secretary continue to issue comparable'orders one might be justified in refusing to order a after another and justify them by re- suspension of operations if it were cer- peatedly having his proposed legislation tain that drilling would eventually take introduced in the Congress.. It is argua- place and there were no reason to be- ble that at some point, if Congress does lieve that the risks would decrease with not act, there must be an end to the the passing of time. On the other hand, matter. The parties' stipulation pre- if there were a good possibility that eludes our considering whether that drilling would have to be abandoned, it point had been reached when the first would certainly be rational for the Sec- suspension order expired in January of 'retary to decide not to run the risk of this year. We express no opinion as to substantial environmental damage, even whether such a point would be reached if that risk were not acute. This is par- if and when the order presently in effect ticularly true when, as the Geological expires without congressional action. If Survey statement observes, the plugging that happens, and if the Secretary then of wells itself poses a risk of ecological should issue another suspension, that damage. It would make little sense to would be a new and different case. require the Secretary to ignore reality The judgment is _reversed. by always assuming that a leased field will eventually be developed. 333 SIERRA CLUB V. MORTON 510 F.2d 813(5th Cir. 1975) CCIAIK, Circuit Judtge: that the Act mandates that no agency limit its environmental activity by the Thiws cnase involes yet another clash use of an artificial framework and on etiilists ovcr a p sl agency and environ- the other that the act does not intend to impose an impossible standlard on the of the naLion's resources. The judicial agency." The court's task is to deter- focus, blurred as usual by the lack of mine whether the EIS was compile technical and scientific expertise, is upon with objective good faith and whether whether the impact statement compiled the resulting statement would permit a during considleration of the federal ac- decisionmaker to fully conslder and bal- tioh satisfies the Nationial Environmen- ance the environmental factors. tal Policy Act (NEPA), 42 U.S.C.A. � 4321 cl seq. TESTING THE EIS E Plaintifffs submit that the EIS fails to Under existing jurisprudence, comply with Section 102(2)(C) of the plaintiffs were required to establish by a Act since it: does not adequately dd- preponderance of the evidence, rather scribe and analyze the present cnvir n- than by a prima facie showing of defi- rient of the area; fails to adequately ciencies, that the EIS for MAFLA was (describe and analyze the most significant inadequate. The additional attack on impacts that will result from the MAF- the Secretary of Interior's decision to LA sale; fails to analyze the cumulative proceed with the leasing must be found- effect of oil development in the Gulf cf ed on proof that it was arl)itrary and Mexico; and fails to adequately analyze capricious. Since the basic legal premis-ble alternatives to the MAFLA es on which the district judge based his sale. determination that t&ie federal agency The purposes of an environ- action-s passed muster were correct, mental impact statement are to detail plaintiffs must shoulder a more imposing the environmental and economic effects burden in this Court. Having failed to of proposed federal action "to enable convince the trial court that the EIS was those who did not have a part in its inadequate, the plaintiffs must now dem- ompilation to understan onstrate that the lower court's findings meaningfully the factors involved," and meaningfully the factors involved," and accepting the EIS as adequate and the to compel the decisionmaker to give seri- decision to proceed as permissible were ous weight to environmental factors in clearly erroneous. making discretionary choices. "The Section 102(2) contains the pro- sweep'of NEPA is extraordinarily broad, cedural requirements designed to compel compelling consideration of any and all all federal agencies contemplating ac- types of environmental impact of federal tions having a significant impact on the action." To carry out this statutory environment to consider NEPA's sub- mandate, every relevant environmental stantive policies and goals as enunciated effect of the project must be given in Section 101. The effectiveness of appropriate consideration. Section Section 102(2) depends upon compliance 102(2)(C) seeks these goals by specifically with procedural duties "to the fullest ex- requiring a detailed statement. tent possible," ie., a compliance, the The purposes served by this "detailed completeness of which is only limited by statement" requirement have been sue- the, agency's statutory obligations. cinctly enumerated by the First. Circuit While no agency may properly adopt a in Silva v. Lynn, 482 B'.2d 1282, 1284--85 less demanding standard for their effort, (lst Cir. 1973). The Silva court state(l: judicial review is based on a pragmatic The "detailed statement" required stan(dard. In determining whether an by � 4332(2)(C) serves at least three agency has complied with Section 102(2), purposes. First, it permits the court we are governed by the rule o(f reasone, to ascertain whether the agency has i.e., we must recognize "on the one hant made a good faith effort to take into 334 account the values NEPA seeks 'to Second, the statement fails to assess safeguard. To that end it must "ex- each ecosystem as to its unique charac- plicate fully its course of inquiry, its ter, productivity, and the manner in analysis and its reasoning." . . . which it operates. This attack is hyper- Second, it serves as.an environmental critical. The statement discusses signifi- full (lisclosure law, providing informa- cant portions of the biological environ- tion which Congress thought. the pub- ment. Descriptions of the communities lie should have concerning the particu- of Phytoplankton, Zooplankton, Benthic lar environmental costs involved in a invertebrates and the active swimmers project. To that end, it "must be (Nekton) of the Gulf, embracing an anal- written in lannguage that is under- ysis of factors affecting the distribution standable to nontechnical minds and and abundance of Benthos and the loca- yet contain enough scientific reasoning tion of significant Benthic communities, to alert specialists to particular prob- are included.l4 lems within the field of their exper- , Third, the statement does not describe tise." . . . It cannot be corm- the operation of the Eastern Gulf ecosys- posed of statements "too vague, too tern as a whole or the importance of the general and too conclusory." . lease area to this ecosysteml as a unit. Finally and perhaps most substantive- While the EIS does contain general in- ly, the requirement of a detailed state- formation about life in thile (Gulf there is ment helps insure the integrity of the a dearth of information exphlailing the process of decision by precluding stub- interrelationship of localized biotic corn- born problems or serious criticism munities. No information is given as to from being swept untler the rug. the predicted effect on t.he whole if some Id. (Citations omitted.) Again, the part of the system were to Ibe harmed. courts have approached their review of Fourth, detailed geological data is ab- claims that congressionally specified de- sent from the statement. The statement tail of environmental effects was lacking does include a review of the geological in an FIS with a view thatCongress did history and present structural composi- not intend to mandate perfection, or tion of the entire Gulf, with special at- intend "for an impact statement.to docu- tention to structures within the MAFLA ment every particle of knowledge that sale area and a recognition of geologic an agency might compile in considering hazards of MAFLA exploration and pro- the prol'posed action." duction. Additionally the EImS observes that tests necessary to determine slallow Present Environment hazards, unstable bottom and mud waves Plaintiffs contend that a most se- are scheduled to be run after the sale, rious shortfall of the EIS is its lack of and that prior to approval of a drilling necessary baseline environmental studies permit, the Geological Survey requires upon which any reasoned decision on the submittal of an operation plan that in- environmental effect of the proposed sale eludes suitable safety procedures nees- must be lbased. Four specific omissions sary to control anticipated hazards. must b~e b~ased. Four specific omissionsE ~~~are w ~sscertc~ ~Environmental Impact are asserted. First, the statement dloes not include Section 102(2)(C)(i) and (ii) require sufficient. analysis of present air and that the EIS contain a detailed state- water quality in the area. For the most ment of the environmental impact of the part, pilaintiffs are correct in this cen- proposed action and any adverse effects sure. While the statement does include which cannot be avoided if such proposed an analysis of the impact of lease opera- action is taken. Plaintiffs do not argue tions on water quality it does not (de- that defendants have failed to include scribe the present quality of these envi- references to environmental effects. In- ronmenta:i factors although it does con- deed, the summary of the EIS states: tain :t brief discussion of water quality All tracts offered pose some degree of degradation which previously occurred in pollution risk to the environment and the Mississippi Sound, Mobile Bay and adjacent shoreline. The risk potential along the Florida Gulf and of climatolog- is related to adverse effects on the ic: d an(ld )ea(Illographic corndIitions. environment and other resource uses 335 which may result principally from ac- determined that official establishment 6f eidental or chronic oil spillage. pipeline corridors will constitute a major-, Rather, plaintiffs urge that the material federal action requiring preparation of included is inadequate to permit the an impact statement, then such will be proper evaluation of its probability or prepared. Plaintiffs read this suggestion importance. as an attempt to fraginent the project, and, by gaining 'acceptance of some In a pandply of particularized: parts, compel acceptance of the whole. criticism plaintiff;s attack omissions and We do not agree that this is the thrust deficiencies in Interior's preliminary of Interior's proposal. This project' is an studlies. While it is true that the pre- easily divisible one. In this continuously EIS research was either inadequate or controllable project, the fact that a tract nonexistent in some specific areas, the may prove productive would not man- significant environmental effects were date that an unsound method of deliver- recognize(l and 'presented in the final ing that production be utilized. We are staLemlent in a waly which afforded the, not unmindful of the rule that the suffi- decisionmaker an opportunity to properly ciency of an EIS must be determined weigh them. NEPA's procedural re- without reference to possible future ac- quirements do not exist to dictate form tion. Today's statement, however, in- but to insure that judgments are no eludes sufficient pre-statement analysis longer based on old values. This EIS of possible environmental hazards from clearly brings the significant long-term pipeline location, construction or leakage. environmental hazards and detriments to peer status with the present need and The MAFLA sale is said to vio- economic costs considerations which for- late NEPA because it places the entire merly would have controlled decision- responsibility on the states to prevent making. This being so, under the rule of environmental injury -from construction reason it meets the minimum require- of pipelines and onshore facilities. We ments of Section 109(2)(C)(i) and (ii). . I -are in accord with the district court's * ~ finding that "an examination of the [EIS] and the supplement'l documents Although recognizing that the EIS in- [EIS] and the supplemental documents Although recognizing that the EIS in- reveals that while the states have a role eludes a general discussion of the envi-e that whie the states have a role ronmenta problems that would result to play in the planning of pipelines and onshore facilities, the federal agency has' from pipeline construction, plaintiffs onsidered , and will conti nue t o consider, complain of the absence of analysis of thconsidered, and will continue thato consider, the effects of pipeline location and con- struction and the impact of pipeline leak- MAFLA leases contain a stipulation that age on particular areas. While the EIS pipelines be placed in corridors selected .by the federal rticularnment aWle theE does not include an analysis of these by the federal government ves the matters, it does include a look at long- government a great deal of control over placement of pipelines and, consequently, term effects of pipeline construction over onshore facilities'f 'Thus, Interior generally, mitigating measures that may retains the opportuity to select less en retains the opportunity to select less en- be employed to prevent harm from such construction, and a special lease stipula- vironmentally hazardous ares whenever some harm becomes possible. Their tion that reserves the right to require lease controls give them even greater su- pipelines to be placed in designated areas leas e controls g ive the or corridors. On leases in areas at pervisory powers. Additiona o pipeleines of states of Mississippi, Alabama and Flori- depths above 200 feet, the pipelines ofocc- common carriers must be buried and da have been consulted on several occa- common carriers must be buried and sions and encouraged to begin planning only 18 of the 147 tracts lie partially or environmental safeguage s for the con- wholly beyond the 200 foot contour. environmental safeguards for the on- wholly beyond the 200 foot contour. struction and operation of onshore pipe- This procedure is expected to minimize This procedure is expected to minimize lines and facilities. These states have the adverse effects from these lines. been forewarned by' the ElS of the possi- The EIS also reviews the ef- ble harm that may result from unre- fects in previous Gulf operations of gas stricted '.onstriuetiC9 and operation. leaks, oil spills and other pipeline acci- Such efforts do not'itidicate any abdica- dents. It further suggests that if it is tion of responsibility in violation of Inte- 336 rior's NEPA obligations, rather they the requirements of NEPA or fail." evince the agency's fulfillment of NEPA However, in a project such as this where requirements that the impact statement developers sign leases and conduct sepa- be subjected to "the comments and rable operations over a period of months views of the appropriate and years, and where restrictions in Stat,' and local agencies .., and those leases give the agency the ability that the Federal Government "make to constantly control and adjust future available to States . . . advice and action, this continuing control must le informnation useful in restoring, main- considered in determining the reasons- taiinng, and enhancing the quality of the bleness of the impact statem(nt.43 The cnvironment." MAFLA sale is a unique form of federal action. It does not involve a single un- Sierra Club contends that the state- dertaking or a project which becomes a ment should have totalled the amount of fait accompli the day the decision to pro- oil spills which have already occurred ceed is made. Because it contemplates from all oil drilling in the Gulf and de- numerous, successive lessor-lessee rela- termined from these figures how much tionships involving activities over many more was probable. It further asserts areas and over many years, the agency's that similar calculations should have continuing opportunity for making in- been made for other pollutants, and that formed adjustments has a major effect the statement should have included a upon our evaluation of the sufficiency of mathematical analysis of the probability the materials contained in the EIS itself. of collision and loss of land from pipe- The future ability to control develop- lines being placed in marsh areas. These ment for ecological reasons is not given contentions boil down to questioning the judicial recognition in a NEPA evalua- degree of detail rather than the lack of tion for the first time here. In Gulf Oil it. While agreeing that these additional Corp. v. Morton, 493 F.2d 141, 144 (9th facts may have been useful to the Secre- Cir. 1973), the Ninth Circuit held that - tary in reaching a decision, we still the Outer Continental Shelf Lands Act conclude that the detail presented was and NEPA authorize "the Secretary sufficient to uphold the EIS. [of Interior] to suspend operations under Baseline Studies existing leases whenever he determines that the risk to the marine environment Plaintiffs next allege that the defend- outweighs the immediate national inter- ants' actions violated subsections A, B, est in exploring and drilling for oil and and I) of Section 102. Subsection A re- gas." More specifically, the court held quires an agency to carry out systematic, that the Secretary could properly sus- interdisciplinary studies of the environ- pend offshore oil and gas leases for a mental impact which would result from period sufficient to permit Congress to exploration and development. More spe- consider termination of those leases for cifically, plaintiffs contend that defend- environmental reasons. This Circuit, in ants failed to satisfy Interior's regula- Canal Authority of State of Florida v. tion 43 C.F.R. � 3301.4, which requires Callaway, 489 F.2d 567, 577 15th Cir. evaluation of the potential effect of the 1974), has cited Gulf Oil Corp. v. Morton leasing program on the total environ- for the proposition that "temporary ad- ment, aquatic life, aesthetics, recreation ministrative action to meet previously and other resources in the area. How- unconsidered environmental dangers ever, the EIS does deal specifically with may be appropriate if it furthers the each of these items. public policy expressed by Congress in Plaintiffs contend that Interior's the National Environmental Policy Act plans to gain more detailed information (NEPA), 42 U.S.C.A. � 4321 et seq., even concerning the hazardous geologic condi- if it involves a temporary cessation of a tions of the ocean floor after the sale do project previously approved by Con- not satisfy the requirement that the gress." Here, the right to exercise fu- statement "must stand the test alone -i. ture control is directly contractual and c., in and of, itself it must either meet even broader than the right which was 337 not that a court substitute its discretion djudicially dccl~re. there. for that of the executive as the decision- zp a a maker. DECISION TO PROCE ED This court may reject the Supplementary to their assertions of secretary's substantive decision only if it sta' ment inadequacy plaintiffs attack was reached procedurally without a full, the Secretary of 'Interior's decision to good faith, individualized consideration proceed with the sale. In view of our and balancing of environmental factors; determination that the procedural rc- or if, according to the standards set quirements of Section 102 were satisfied, forth in Sections 101(b) and 102(l) of we look to see whether the secretary's NEPA, it is "[shown that] 'the actual decision, based upon the information con- balance of costs and benefits that was tained in the' EIS, was arbitrary, capri- struck was arbitrary or clearly gave in- cious or an abuse of discretion. How- sufficient weight to environmental val- ever, our review does not include consid- ue.'" The decision to proceed in this eration of the merits of the actual dcci- instance was not shown to be in clear sion to go forward with the sale. "[Ilt is disregard of the evidence contained in the court's function to insure that the the EIS, nor does it appear arbitrary, mandate of the statute -has been carried capricious or an abuse of discretion. out and that all relevant environmental effects of the project [are] given ap- The judgment appealed from is propriate consideration by the [see- Affirmed. retaryl." NEPA intended that courts and federal agencies collaborate to insure attainment of the Act's goals, --< .... :NEW YORK V. KLEPPE 7 Environmental Law Reporter 20230(1977) Weinstein, J.: Accordingly, a preliminary injunction preventing Lease Sale After extensive hearings held in July and August of 1976, this 40 was granted pending further hearings and decision on applica- court determined that the National Environmental Policy Act tions for a permanent injunction. On August 16, 1976, the Court (NEPA), 42 U.S.C. �4321et seq., required issuance of a of Appeals for the Second Circuit stayed the order of this court; preliminary injunction preventing the Secretary of the Interior on October 14, 1976, it held that plaintiffs had not demonstrated from proceeding with Lease Sale Number 40 of outer continental that they would suffer irreparable harm between the date of the shelf lands in the mid-Atlantic region for exploration and produc- preliminary hearing and the trial, and that there was some ques- tion of oil and gas. ' tion whether olaintiffs would succeed on the merits at thle.!rial. The issue before this court is not the wisdom or desirability of ;The Secretary of the Interior prbOeeded to lease a total of 93 this country's total "energy program," or of any of its specific tracts in the Sale 40 area. He a�cieped bids totalling over 1.1 aspects. It is not this court's function to pass on the substantive billion dollars. The successful ~bidders have begun to take merits of the Sale 40 lease project, either in its present or poten- preliminary steps required for full eploitation of'their leaseholds. tially modified form. It is, rather, concerned with whether the * i - Secretary of the Interior, in reaching his decision to lease these. SummaryofFindipgs : lands, complied with the statutory requirements governing his We find that the Secretary (l)'ignored the practical effects of responsibilities as trustee and administrator of the public local governmental licensing, permitting, and review powers in the resources of the outer continental shelf; specifically, the question NEPA documents; (2) failed to consider the environmental im- posed is whether his decision wacfully and accurately informed pact of'specific probable pipeline routes from the outer continen- and made after adequate consideration of viable alternative pro- tat shelf, in spite of the fact that projection of such routes is grams and potential adverse environmental impacts. routinely made by industry and could have been made by the Our preliminary finding, as outlined in this court's opinion Secretary or his agents; (3) greatly overstated peak oil and gas pro- of August 13, 1976, was that the Secretary had not.met his NEPA duction for Sale 40 and significantly understated the cost of such rcsponsihilities. In deciding to proceed with Sale 40 in its present production, including pipeline construction; this resulted in a configuration lie virtually ignored the power of states and their serious lack of consideration of the likelihood and attendant lpolitica;l subdivisions to regulate the siting, constrllction, and use dangers of increased tanker traffic and an overestimate of the net of nearshore and onshore facilities through measures such as value of the entire project (4) failed to consider the possible ia- speci;ll landl-use laws, air and water pollution laws, pipeline pact of particular tract-seletlfn'ch'oices on the feasibility and egllaion s, and zoning and building codes. sites of pipelases o ines; there was no sbdsiiration of the alternatives of either excluding industry-preferred tracts, or including less highly 338 desired tracts in the final sale offer because of related onshore im- anyone involved in major federal or industry projects. pacts and developments; and (5) failed to consider the alternative But passing references to, and abstract listings of, state and of separating exploration from production leasing. Adequate con- local authority Is only the beginning and not the end of the NEPA- sideration of these factors might have led to modifications in the required inquiry. The next, and by far more crucial sten is a nrn- Sale 40 leasing program, resulting in greater environmental pro- jection of the site-specific, pragmatic, empirical effects of the tection without impairing reasonable exploitation of offshore likely exercise of such power, It is the impact of local authority, hydrocarbon resources. not its mere existence, that must be studied and evaluated. 4, a e . NEPA certainly contemplated that the federal agency respon- NEPA Violations . sible for safely regulating ocean exploration would consider A. Failure to Consider Impact of Srate and LocalExercise specific, pragmatic land-based obstacles to transporting ocean- oJ'Regulatory Powers bottom energy resources. This has not been done. The NEPA documents, in their critial transportation aspects, are highly abstract. Despite the enormous volume of discussion they con- 1. Elect of Coastal Zone Management Plans tain, the likely oil and gas delivery routes are nowhere described; Dcfendants have relied heavily on the contention that these one might almost suppose that levitation were the anticipated variouis states and localities have been, and will be, able to protect mode of transport. The NEPA documents read like a theoretical their coastal areas arfd environment from the effects of an in- college thesis, written without-the hard empirical data needed by complete impact statement by developing coastal zone manage- any practical person making a decision. The impact statement ment plans in accordance with the Federal Coastal Zone Manage- studiously avoids the factors required for rational, practical deci- ment Act (CZMA), 16 U.S.C. �1451 et seq., using funds supplied sionmaking. by the federal government. The argument that this activity is a C f d substitute for the government's responsibilities under NEPA is The Council on Environmental Quality Guidelines on unpersuasive. First, NEPA requires an independent assessment of Preparation of Environmental Impact Statements, 40 C.F.R. Part a variety of facts to determine possible environmental damage. 1500, requires analysis of specific impacts on specific areas. It re- That responsibility cannot be fobbed off to the states under a dif- quires consideration of: ferent program. Second, the extensive work being done on the The relationship of the proposed action to land use plans, various state plans will not be completed until 1978 at the earliest. Third, thle critical amendments to the CZMA relied upon by policies, and controls for the affected area. This requires a Third, the critical amendments to the CZMA relied upon by discussion or how the proposed a"ton may co'orm or defendants were adopted after the Final Environmental Statement discussion of how the objectives and specific termys of appr oved on Sale 40 was published and the Secretary of the Interior made conflict with the objectives and lcc land us of approved his decision to lease; these amendments could have had no impact posed ederl, Stte, and local land use a conflict or ins on his decisions under NEPA. . policies, and controls.... Where a conflict or in- oil his decisions under NPA. consistency exists, the statement should describe the extent Evidence, which could have been brought to the Secretary's to which the agency has reconciled its proposed action with attention by the NEPA documents, demonstrates that these local the plan, policy or control, and the reasons why the agency governmental powers can and will be utilized to prevent landing has decided to proceed notwithstanding the absence of full of outer continental shelf oil over wide portions of the coast line, reconciliation. whether that landing is by tanker or pipeline. Failure to include an e evaluation of such local opposition to pipelines or tanker-related 3. Effect of State and Local Powers on Pipeline Routing- onshore facilities necessarily resulted in a failure to gain a full and Absence of Any Projection of Likely Pipeline Locations meaningful perspective on the intrinsic environmental prdblems Absence of any projections of likely pipeline locations il- related to offshore oil and gas exploration. lustrates the abstract nature of the relevant documents. The Department's assumptions were that oil and gas collected by 2. Recognition of State and Local Powers in NEPA Docutments gathering lines from separate platforms would be transported to In attempting to demonstrate that the Secretary gave ade- 'onshore facilities along one to four corridors, in two 24" to 36" quate consideration to state and local powers to affect outer con- tinental shelf activities, defendants, in their extensive post-trial per .. . memoranda, marshal numerous references in the final en- Although as many as eight separate 36" pipelines were an- vironmental statement to such powers. In order to understand the ticipated, there was no attempt to determine specific likely land- true significance of the references, the most significant passages fall sites or the ocean or overland routes that would be followed. are reproduced below. In context, they demonstrate a listing in The decision documents merely contain brief, vague and abstract abstract form, without any attempt to evaluate their practical ef- conjecture concerning the extremely broad geographical areas fect on specific oil and gas production and delivery systems from that might be involved: specific areas offshore to specific affected areas onshore: * 4 .- ap it -4 All consideration oT likely routes is clearly and explicitly These and other references succeed in establishing beyond deferred to the period after discovery of commercial quantities of question that the Secretary should have known of the existence of di : some vague state and local zoning and permitting powers. But This deferral of an attempt to grapple with specifics borders there was never any doubt in the court's mind that the Secretary on irresponsibility in view of NEPA's explicit mandate that all had such unspecific knowledge; any suggestion to the contrary potential environmental considerations be weighed prior to the would have had to assume a total ignorance on his part of our decision to proceed with major federal programs. NEPA required federal system. the Secretary to explore the site.specific impacts of pipelines along Nor was there any doubt that the NEPA documents made definite routes, at least to the extent that such routes were ascer- reference generally to the formal state and local powers and pro- tainable based on information available at the time. cedural requirements in this area, although it hardly requires an It is as if the federal government decided to proceed with the environmental impact statement to disclose the existence of some construction of a major highway connecting New York and sort of regulatory powers; it is surely elementary knowledge to Washington-approximately:the distance to be covered by Sale 40 339 pipelines-but refused to reveal the contemplated route, whether to make a realistic estimate of the investment costs necessary to bridges or tunnels would be utilized, whether mountains would be produce a given quantity of energy. Critical components of that skirted or dynamited, or the impact on the area bordering the factor are the estimated quantities of oil and gas reserves, ex- road. Such a course of action would surely be impermissible. Cf. pected peak production levels, and the cost of pipeline construc- Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d tion. This last item has exceptional significance, in light of the 693, 697 [3 ELR 20006] (2d Cir. 1972); Citizens Committee for Secretary's firm assumption that pipelines, rather than tankers, Hudson Valley v. Volpe, 425 F.2d 97 [I ELR 200061 (2d Cir. would be the actual mode of transport. The accuracy of the 1970). Yet the analogy to the instant case is a strong one. 4 Secretary's assessment of each of these components was called in. It is perfectly clear from highly credible expert testimony at to serious question by highly credible evidence. trial from defendants' own witness that pipeline routes not only I. Underestimate of Finding Costs. could have been predicted with a high degree of specificity and ac- Based on data sources readily available prior to the prepara- curacy, but that such predictions were in fact made by the oil com- tion of the final environmental impact statement, an expert panies who put up hard cash-"megabucks," as one industry witness concluded that the finding cost estimates used in the deci- representative described them--in bids. Oil company experts pro- sion documents were unrealistically low, relative to recent in- jected relative costs of transportation problems that might arise dustry experience. The Secretary estimated that, assuming large from local and state zoning, and also predicted specific en- gas and oil reserves, finding costs were 14.5 cents per million vironmental factors attendant upon detailed alternative pipeline British Thermal Units (BTUs), and, on the hypothesis of low routes. reserves, 12.26 cents per million BTUs. The expert testimony, on For example, the witness Franklin Brunjes, Manager of Land the other hand, established that realistically determined finding Transportation for Shell Oil Co., testified that he had computed costs for new oil would in fact be 168 percent greater in the first economic feasibility vis-a-vis tanker transport of various pipeline instance, and 127 percent greater in the second. routes from OCS lease sites to refining facilities in the $ 1 .- Philadelphia area, 2. Underestimate of Pipeline Construction Costs ,9 a <Additional testimony by Mr. Donkin, based on information Had the Secretary been at least as conscientious as Shell Oil readily available to the Secretary, indicated that the critical ele- in exploring specific pipeline locations from an environmental underestimated in perspective, he certainly would have considered the route into the the pipelite construction costs was greatly I erspective, he certainly would have considered the route into teth e NEPA documents. While the Secretary used a figure of $1 Delaware Bay and up the Delaware River to Philadelphia, which million per mile for a large diameter off-shore pipeline the was stud.ied by Mr. Brunjes and considered a feasible and likely realisticcost is on the order of million per mile. corridor. In the low resource case the cost of a pipeline was, as a conse- The evidence clearly established that the Secretary did not quence of this disparity, underestimated by $73 million. In the engage -in inquiries adequate to inform federal, state, and local high resource case the error was $330 million: decisionmakers and the public of the alternative modes and routes * of transport of Sale 40 oil and gas, and to enable government deci- 3. Underestimate of Total Investment Required sionmakers to understand and plan to cope with the impacts of As a result of the underestimates with respect to finding and reasonably defined tanker-pipeline options in their zoning, land pipeline costs the realistic investment cost for the Sale 40 area in useand coastal zone management planning processes. the low reserve case is in fact between 88.8 percent and 131.9 percent greater than Interior Department estimates. With respect Mr. Brunjes' testimony clearly established the feasibility of to finding newiatural gas, in absolute terms this results in addi- "costing-out" different transportation forms and routes, and the tional costs of $756,790,000. In the high reserve case the realistic high degree of precision with which economic conclusions can be costs are between 70.7 percent and 100.9 percent higher than reached in this sphere: Department of Interior estimates, or in absolute terms between a 4 Q $2,359,773;000 and $3,668,733,000 greater. This evidence establishes that it was quite possible for the e X * Secretary to engage in an economic assessment of the effects of 4. Overestimate of Peak Levels of Production. local opposition to pipelines. It was also reasonably necessary in Finally, Mr. Donkin concluded that the peak levels of oil and order for the Secretary to know the realistic costs of the proposed natural gas production assumed by the Interior Department could action as compared to the benefits, and in order to assess fairly never be obtained given the Department's own reserve estimates. the economic teasibility of pipelines as against tankers. Without Based on those estimates, peak oil production in 1988 would in this information the Secretary could not make a reasoned decision fact be 15,000 barrels per day less than assumed by the Secretary as to the potential costs to be incurred by the proposed program. in the low reserve case and 60,000 barrels per day less in the high Where, as here, information was available to the government reserve case. and meaningful analysis was reasonably possible on issues of such In the low case, reserves necessary to support the level of environmental significance, the Interior Department was under a peak production assumed by the Secretary would have to be 52.5 NEPA-imposed obligation to disclose the information and under- percent greater than government estimates. In the high gas reserve take the analysis. The conclusion is inescapable that if, in their case, resources would have to be 51 percent greater to support the own economic interest oil companies can project, examine and predicted peaks. analyze fairly detailed pipeline corridors, the Secretary of the In- , , P terior, in the critical public interest of environmental protection, 5. NEPA Consequences of Gross Misestinmaes of Costs and must do so as well. Beneits B. Defective Cost-Benefit Analysis of Lease Sale 40 The Secretary's cost-benefit analysis is vitally linked to In balancing the projected benefits of Lease Sale 40 against critical NEPA issues. Its relevance to the tanker-pipeline issue has its potential adverse environmental impact and against alternative previously been alluded to, and its connection to other en- energy producing programs, and in order to arrive at a reasoned vilronnlllenlal impact issues is also clear. If the Secretary has grossly decision oln whether to proceed, it was essential for the Secretary UtLderstated the investment costs and overstated the daily produc- 340 ioll rates andl reserves, then the timing, locations, size, and the possibility of separating exploration from development was numhber of pipelines, drilling wells, and duration of construction effectively ignored in the Sale 40 final environmental statement. may differ from the Secretary's projections, with resultant en- Section VIII of the impact statement, which discusses "Alter- vit onnellnlital and socio-economic impacts (offshore and onshore) natives to the Proposed Action," is wholly silent on this option. In qlualitatlivdely and quantitatively different from those estimated in the Sale 40 documents the only reference to this alternative is con- thIe NI!PA dotullents. I i~~the, NFPA doct~uments. ~tained in a few lines of response to colmments on the draft en- I'ihe Secretary's duty under NEPA to compare Sale 40 to its vironmental impact statement, which summarily dismiss the pro- 'nltrnairivcs, and to weigh the latter and their environmental et- posed separation as impossible under the provisions of the OCS Ieet,. dlpcncids upon an accurate cost-benefit analysis of the Sale Lands Act of 1953. FES Sale 40, Vol. 3, p. 67. 11! IpolloijcCl, withoaut which the Secretary and other deciiionmakers The environmental impact statement does briefly mention the lliant adequatgiely( determine priorities and the course of actiont alternative of government exploration, Vol. 2, pp. 582-83, but the tiiilig Il ost tIonllgty to 1further the public interest. While we find discussion is, considering the thousands of pages devoted to It IlIIth�.ev~lr\ to onsider plaintliff's submission that NEPA re- relatively insignificant matter in the NEPA documents, woefully quIlli\ sutlluanlivc review of the administrative decision, and no inadequate. stillh te iew has, been undertaken ill this case, there is no disagree- l1cti thal, 1at a niniulil , the Secretary's decision may not be ar- When an alternative course of action exists, whether or not it hiti anIId capi ioiusll. See Kurwin, Subhstantive Review Under the is within the Secretary's existing authority, that could satisfy en- .\uornlnl :'nvrontnental Polict Act, 3 Ecology i.. Q. 173 (1973). vironmental and economic concerns relating to a program, that W'lelc, as helte, the econollic costs and benefits of the alternative must be treated in a meaningful, non-conclusory Ilulnmnvl action were seriously andle grossly misrepresented or omit- fashion. As the court in Committeefor Nuclear Responsibility v. ted, ticle could hbe no adequate balancing of economic benefits Seaborg, 463 F.2d 783, 787 (D.C. Cir. 1971), noted: ,tolling ellvilvloninittal costs. 11 sh*ould be emphasizedI that the [T]he statement has significance in focusing environmental discrepancies are so substantial that they cannot be attributed to factors for informed appraisal by the President, who has mere differences in judgment. They were so inadequate as to con- broad concern even when not directly involved in the deci- stitute, for NEPA purposes, a failure to make a meaningful in- sional process, and'in any event by Congress and the quiry. As a result, the Secretary's decision on Sale 40 was in this public. respect arbitrary and capricious and in violation of NEPA. The point was reiterated in Natural Resources Defense Coun C. Failure to Evaluate Separation of Exploration and cil v. Morton, 458 F.2d 827, 833 (D.C. Cir. 1972), where the qucs- Production Leasing tion of considering alternatives outside the jurisdictional power of The Department of Interior failed to adequately consider the agency was raised: alternatives to the Sale 40 leasing procedure. The leases utilized Congress contmplared that the Impact Statement grant exploration, development, and production rights to a suc- would constitute the environmental source material for the cessful bidder in one document. The government never considered information of the Congress as well as the Executive, in exploration to determine the extent of oil and gas reserves and connection with the making of rell nt decisions, and their location before granting exclusive rights of production. would be available to enhance enlightenment of---Uld by In uncontradicted trial testimony, the government's witness, h blc Judith Gresham, flatly stated that no alternative had ever been t pu considered by tlhe New York City office of the Bureau of Land In the Morton case, Interior argued that it need not consider Management in preparing for Sale No. 40. Tr. 768-69. It was this alternatives which were beyond its power to affect. The court of office that coordinated preparation for Sale 40 leasing and that appeals rejected this argument and required that such alternutives prepared the relevant NEPA documents. Ms. Gresham testified be considered: that the existing lease forms for tile outer continental shelf had While the Department 'of the Interior does not have the always combined exploration, development and production rights authority to eliminate or reduce oil import quotas, such ac- and that no thought had ever been given to proceeding differently lion is within the purview Of both Congress and the Presi- in Sale 40. dent, to whom the '[lpact statement goes, The impact This failure to consider exploration before leasing for pro- statement is not only for the exposition of the thinking of duction was particularly anomalous in view of the limited govern- the agency, but also for the guidance of these ultimate deci- mcnt knowledge of the nature, extent, and exact location of sionmakers, and must provide them with the environmen- probable oil and gas in the area. Private oil companies had been tal effects of both the proposal and the alternatives, for making costly preliminary studies for some ten years but the their consideration along with the various other elements government had not. Apparently only on-the-spot exploratory of the public interest. drilling can determine what, if any, hydrocarbons will be available. 458 F.2d at 835. The final commitment to grant exclusive rights to exploit t a X specific tracts of governmental land-without even considering D. Failure to Consider Impact of Leasing Alternative Tracts prior exploration-occurred in the face of no less than thirteen Those responsible for the tract selection process neglected to public comments on the Draft Environmental Statement for Sale examine the potential environmental effect of offering, and ac- No. 40, including among them remarks by the States of New cepting bids on, tracts other than those actually proposed and York, New Jersey, Delaware, and Maryland, urging that the ex- leased. ploration and development phases be separated, FES Sale 40, Vol. As we noted earlier, the Secretary has now leased 93 tracts in 3, p. 67. The thrust of these comments was that separation of ex- the Sale 40 area. These leases represent the culmination of a multi- ploration and development would allow government at all levels step tract selection process, to exercise timely and essential controls over environmental, Initially, based on the United States Geological Survey and social, and economic impacts, especially those associated with on- industry information concerning the potential of a specific region shore development. of offshore energy reserves, an area of approximately 6.5 million Notwithstanding this impressive body of public comment, acres was designated open to "nomination and comment," Tracts 341 covering approximately half this area were "nominated" by in- Secrclary hat;, in fact, recommended to tlle Presidetll that this i;�- dustry, i.e., industry expressed at least some interest in leasing 'clterllion oft Icasilig occur. PI. Ex. 103., p 2. Thrce mlonlhs laher. these acrcs. Of the industry-nominated tracts 154 were selected for on July II, 1973, the Bureau of land Mlaiagentil issued a further study in the Environmental Impact Statement. All of the rcvi,,ic pioposed schedulc implementting the President's dirctllCe. tracts selected for study were ultimately put up for sale.- One hun- IThe Ikpartilnent of lic Inlerior had deccided al that limtle that leas. dred one of these were bid on, and 93 were ultimately leased, ing wiould he accelerated; it left open only tihe fitnal decision about with 8 bids rejected. See Appendix "D," infra [Appendices omit- * # I ted. Ed.]. specific sale sites. PI. Ex. 87, p. 7. On September 12, 1973, Bhe It is clear from the record that nowhere in the lengthy process Department of the Interior Under Secretary of Energy announced of considering which tracts were ultimately to be leased did the that this accelerated program was required in order to meet future Secretary or Bureau of Land Management personnel charged with energy needs. PI Ex. 87, p. 6. preparing NEPA documents consider the onshore impact of - s I'that the Department of the Interior had little interest in choosing particular tracts, rather than others. They simply roprly fulfillin its obligations under NEPA is evidenced by a assumed that landing of outer continental shelf oil and gas could ra fro Assistat Secretary Huge Assistant be had at any point along the coast. Even if the states do not pro- Secretary allowed the United States Geological Survey one week hibit pipelines, they may restrict their pbint'of entry, requiring a to furnish him with inf ormation for the final ir ena sae landfall, for example, at the industrialized northern section of the, n10It on Proposed Increase in Oil and Gas Leasing on the Outer New Jersey Coast or at the refinery areas in the tri-state New Continental Shelf relating to estimated outer continental shelf oil Jersey-Delaware-Penmsylvania region. The existence of such a and gas reserves, likely drilling sites, and whether tankers or probability imposed on the Secretary the duty to consider the nd gas erves, likely drilling sites and whether tnk alternative of leasing tracts other than those proposed in Sale 40. pipgrettabl y s ho were to be time will likely not acknowledged that the "regrettably short response time will likely not allow highly ac- It might, for example, improve the revenue from lease sale, curateanswers." PI. Ex. 97 decrease pipeline lengths, and reduce environmental impacts if crateir cumstantial evidence tt the de tracts contiguous to potentially acceptable pipeline landfalls were s In to proceed with Sa le 40 was made witout considence t the utilizedsion to proceed with Sale 40 was made without considering the NEPA documents, we decline to base our decision that NEPA has Testimony by Judith Gresham, Chief of Operations of the been violated on these contentions. To do so would constitute Bureau of Land Management, who played a significant role in the review of the "mental processes" of the Secretary. Under general process by which tracts were selected for Sale 40, established that principles of review of agency action, such an inquiry should be the only environmental considerations that affected the scope of avoided by courts, if it is at all possible to decide a case on other Sale 40 was concern over the impact on commercial fishing grounds: grounds. No consideration whatsoeveti was given to the relation- 4 - ship of the selected tracts to specific pipeline routes, onshore im- As already demonstrated, there are ample other grounds for pacts, or local zoning and related powers holding that NEPA has been violated by the Sale 40 leases, Ac- cordingly, the court need not decide the good faith issue. E. The Issue of Secretary 's LacA of Good Faith L At trial plaintiffs renewed their contention that the NEPA. emedy review process was used as post hoc justification for decisions E g previously made by the Secretary to accelerate outer continental In considering the proper scope of any injunction we have ex- shelf leasing and to hold Sale 40. A strong argument has been amined and rejected alternatives such as allowing exploration to made, supported by considerable circumstantial evidence, that the continue, but enjoining production pending preparation of an NEPA documents and public hearings were but a charade; that adequate environmental impact statement. Such a course is the decision to lease was a foregone conclusion once Presidents undesirable for two reasons. First, to allow the project to proceed and those in their administrations, including successive Secretaries will involve the commitment of resources which will either be lost of tile Interior, decided some years ago that production of if the project is abandoned or reformed in the light of compliance Atlantic hydrocarbons should proceed speedily. with NEPA as a result of proper environmental impact evalua- Defendant's own witness, Mr. Robert Bybee, an Exxon ex- tion, or which will impermissibly tilt the scales in favor of pro- ecutive, admitted that as early as 1965 his company began gather- cceding. ing geological data in the Atlantic area north of Cape Hatteras, Second, NEPA requires an evaluation of environmental im- based on information, obtained from the Interior Department, pact early in the planning phase of a project, so that the decison- that a lease sale was planned in the Atlantic: maker has the most options available to reformulate the project to e -a . - minimize adverse consequences. Once action has been taken, or TIhis statement, as well as numerous other written internal allowed to proceed, it may be too late to alter the plans, because imemlloranda and public statements of responsible government of- certain otherwise available alternatives have been foreclosed. ficials tcnd strongly to demonstrate that firm decisions to ac- celcil;ate outer continental shelf leasing and to hold Sale 40 were I. oncluslon nla:ld long before the ostensible decision dates, and before fulfill- Judged against "a rule of reason," N.Y. Natural Res. mein of NEPA's requirements, and that the Bureau of Land Defence Council v. Kleppe, UU.S. - , ., 97 S.C. 4, 6 Managemen;l; t simply went through the NEPA motions in order to (1976), the Secretary of the Intetior violated NEPA. The parties validate the decisions previously made. are enjoined from further proceedings with the exercise of any Although defendant claimed that these decisions were miade powers purportedly granted by Sale 40 leases executed by the as a responsc-lo the Arab oil emabargo, on April 18, 1973, nearly defendant. The leases are declared null and void. This order is s Ill months prlior to the cilbairgo, the President announlceid hi, stayed pending the completion' of appeals, if any. decrsioln to accelerate outer continental shelf leasing and to hold SO ORDERED. Ielsr sales. At that timne, the Prcsidelnt directed the Secretary "lo Itlkc sieps which woutld triple the annual acreage leased on tile O)ir tC outinclrnlal Shlel by 1979." Pl. L-x. 86, p. 193. The 342 NOTES I. Secretary of the Interior Andrus and the intervenor defen- dant, Ocean Industries Association, have both announced they will appeal the N.Y.,v. Kieppe decision. A lawyer for the [nterior Department said he believed Sierra Club v. Morton provides persuasive precedent for overturning the N.Y. decis- ion. Are the two cases reconcilable? 2. Most circuits have held that there exists a right of sub- stantive review under NEPA. The Eight Circuit Court of Appeals delineated the scope of this review: The review is a limited one for the purpose of deter- mining whether the agency reached its decision after a full good faith consideration of environmental factors made un- der the standards set forth in 9101 and 102 of NEPA; and whether the actual balance of costs and benefits struck by the agency according to these standards was clearly arbi- trary or clearly gave insufficient weight to environmental factors. Environmental Defense Fund, Inc. v. Froehlke, 473 F. 2d 346, 353(8th Cir. 1972) Although numerous cases have presented the issue of substantive review under NEPA, no circuit has ever totally overturned an agency decision on that ground. How would one apply the stan- dards of �101 and 102 to an OCS decision? It has been suggested that some judges exercise substantive review by applying an exacting standard of procedural NEPA review. See Kays, Substantive Rights under the National Environmental Policy Act, 13 Am. Bus. L.J. 289 (1976). 3. State participation in OCS decisions- a. To date States have participated in OCS decision-making primarily through advisory groups and litigation. The Secretary of the Interior chartered an OCS Advisory Board for policy mat- ters and and OCS Environmental Studies Advisory Committee (OCSESAC) for technical questions. These groups have representatives from each coastal state-as well as representatives from federal agen- cies and the private sector. Regional committees are also provided. Both of the group's charters state that their functions are "?solely advisory." A typical complaint of the groups was voiced by the OCSESAC regional Committee for the North Atlantic States: There is concern with both the timeliness of the data and the use to which it is put in making management decisions. It is felt that existing data may not be adequate, and new data not analyzed in time to make rational, tract-by-tract decisions for the lease sale. Additionally, it is not clear how new information will enter 343 the leasing process stream, although we are aware of the definitions of OCS orders, regulations and special stipu= lations. Finally, there is no mechanism providing for specific re- sponses to state reccommendations or for translating these recommendations into program modifications. 1976 OCS Environmental Studies Advisory Committee Annual Report, 85,(1977). b. Another method of control is the exercise of the police pow- ers of.a state. Although the actual drilling occurs on Federal lands essential support facilities including pipelines, ports and refineries will be on state lands and all these facilities will have major impacts on the state coastal zone. California has created statewide and regional coastal zone commissions and prohibits the construction of oil treatment or shipment facilities within 1000 yards of the coast without a permit from the regional commission. Califormia Coastal Zone Conservation Act, Cal. Pub. Rev. Code �2700 et. seq. (West. Supp. 1976). Are such acts pre- empted by the OCSLA; are they invlaid restraints on commerce? See Askew v. American Waterways Operators, 411 U.S. 325(1973) (upholding state liability and bonding requirements on tankers to protect state water and property from oil discharge within state jurisdiction) and Union Oil v. Miner, 437 F.2d 408 (9th Cir. 1970) (enjoining a local district attorney form using a state nuisance statute to interfere with Federal OCS drilling but specifically reserving the question of the power of a state to punish those who, on Federal lands, do acts which have effects on shore). c. The Coastal Zone Management Act (CZMA),16 U.S.C. 1451-64, provides for grants to assist states in managing the coastal zone. As defined in the Act, the "coastal zone" does not include Federal OCS lands. However, the Act is still relevant to OCS activities. Section 307(c)(3) of the Act provides: After final approval by the Secretary of a state's manag- ment program, any applicant for a required Federal license or permit to conduct an activity affecting land or water uses in the coastal zone of that state shall provide in the application to the licensing or permitting agency a certi- fication that the proposed activity complies with the state's approved program and that such activity will be conducted in a manner consistent with the program.... No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the appli- cant's certification or until, by the state's failure to act, the concurrence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the ap- plicant, finds, after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the state, that the activity is consistent with 344 the objectives of this chapter or is otherwise necessary in the interest of national security. One of the criteria for approval of a state plan by the Secretary is a finding that "the management program provides for adequate consideration of the national interest involved in the citing of facilities necessary to meet the requirements which are other than local in nature." For further materials on coastal state planning see Chapter Seven. 4. The OCSLA has not been significantly changed since its en- actment in 1953. Over the last several years there has been a strong move in Congress to make substantial changes in the Act. In the 94th Congress bills passed both houses but the bill was returned to conference by the House. Identical bills (H. 1614, S.9) which copy the 94 th Congress House Conference Report have been introduced in the 95th Congress. The proposed amend- ments cover almost all aspects of OCS operations, codifying many of the existing regulations and also making several signif- icant changes. SENATE BILL 9 95th Congress 1st Session SEC. 101. The Congress finds and declares that- (1) the demand for energy in the United States is increasing ' and will continue to increase for the foreseeable futu.re; S'/t '. 1)02. i'/l )It1'/)o.''. of /h i-. ./1 Ct aI'C to- ( ) sltab//,Ush /)pol( ies u,/d proczedw, es for inonmagi7ng the aoi and /(da',ll fIS I,'r'OIl'c'('.es of the Outer Continrental Shelf in order to achivce na/ /ional econormic aNl e7nerrgy policy goals, assZre national .verr;ty. 4lrurhce depe ndence o? foreign sources, anid maintairn a faoorhie balawrle of paynelts in world trade; (2) prvsere, protect, and dlevelop oil anul natural gas resources in the Outer Continental Shelf ein a. mansner wlich is consistent witf tihe lneed (A) to mltke such resources available to meet the Nlati.on's en.ergy needs as rapidly as possible, (B) to balance orderly energy resource development with protection of the hu- man, ,marine, and coastaZ environ.ments, (a) to insure the public a fair and equitable returln on the resources of the Outer Conti- n.entan7 Sthelf, and (D) to preserve and( manintain free enterprise competition; (3) encolrage development of new and improved technology for energy resource p'rodurction wUich will eliminate or minimize risqk of daim.gqe to the hvutman, marine. and coastal environments; (4) provide. States w7hich are impacted by Outer Continental Shelf oil and gas exploration, development, and production with conmprehenrsitve assistance i'n order to anticipate and plan for such impact, and thereby to assure adequate protection of the. hwman t,5) a.ssure that States halle timely access to in.fonrmation regard- ing actiitics on7 the Outer Continental Shelf, and opportunity to re!iclw and comnel.?,at on decisions relating to such activities, in order to a.n.titei.te, amlCioaltc, and plan for the impacttC of such et te ics; it 345 (6) as5sure that States which, are directly affected by explora- 7 tion, developrmet, andl production of oil and natural gas are pro- t'ided an opportunity to participate in policy and pian~ning deoi- SIOZR elaingto anaemet of the resources of the Outer Conti- (2')minmizeor limiateconflicts between the exploration,- devlopent an prducionof oil and natural gas, and the recoveryj of other resources sckb as fishk and shellfish.; (8) establish, an. oil spill liabiity fund to pyfrtepop removal of any oil spilled or discharged as arsl fatvte on1 the Outer Continental Shelf and for any damaes opb or private interests caused by such, spjills or discagsan (.9) insure that the extent of oil and natua ga eOure f the Outer Continental Shelf is asessd at the eariet practicable time. TfhIe term,'affected State' means, with, respect to any pro gravn, planl, leas-~e salde, or other activity, proposed, conducted, or approved pursuan"t to the proisions8 of this Acet, any State- ,,(I) the laws1 of which, are declared, parsuant to section 4(a) (2") of th`;s "let' to be th e law of the United States for the portion ofthe otter ('ontinen-tal Shelf on which suchA activity is, or is proposed to be, conducted; " (2) which, is or is proposed to be directly connected by trans- portation facilities to any artificial island or structure referred to in sect ion. 4(a) (1) of this Act; "1(3) ?h ich z-q reCeivzng, or in accordance with the proposed activ~ity. 'will receive, oil for processing, refining, or traft'ghinn rat wvhich. nuts? extracted from. the outer Continental Shelf and trans- ported by meansy of vessels or by a combination, of wmean inelid- ivy 'vess8els; "(4) wvhich is* desgignated by the Secretary as a State in 'whic there ;is et su9bstantial probability of significant impact on or dam- age to the coastal, marine, or huka~n environment, or a State in wyh ich th ere 1di be sign-ifican-Pt changes in the social, governmen tal or economwo infras~tructure, resulting from th-e exploration, de- velopment, and poroution of oil and gas anywhere on the mg-ter Continental Shelf;- or cc(5) in-which the Secretary finds that because of suck activiy th ere is, orzwill be, a significant risk of serious4 do-mange.W dueJi to faUP- toes sach, as rviinlid and cu'rrenIts, to the marine or coatal enus~vronine'nt in the event of any oilspill, blowout, or release of oil or g~as frolm. vessvels, pipelines, or other transshipment facilities,; Sec. �04. * Sc. 5. AD)MINISTRATION Or, LEASING' Or, TIE Ourtn OTNNA SHELF.- * . a 7'~he regulJations prescribed by thei Sec- retary? under this subsection s/tail include, but 'not be limwited to, (I) for the suv~evpenion or tem~porary prohibition of any opera,- Nllo, ora(tir~ity. inocluigpoutoprun to any'leasRe or Pp"'Itit (A) at the request of a less-ee, in the. inte'resIt of conserva- tionto frifla~tsproper dev~elopment of a lease, o to il-te o therei unalvailability of t~ransportation facilities, Or (B)ifteesa 00'seat of serious, irreparable, or immediate harm or damage to lifeC (including aqutatic life), to property, to any mineral deposits 4 (in. arefas leasved or not -yet leaseda), or to the mari~ne, coastal, or . humanv e-nniroanment, and for the extension of any permit or lease gfeeted bysuch, sitspenstion or prohibition by a period~3v~~ 346 to the period of Sruch 3Vq7,en8,jag or prohibitiow",exptta o permnIt or lease 3h,7ll be go e;7!te'nd~el f,.n ,Aee that no, hibhliov,, i-q the MeMul of gross nIreq~gevce or iL'?llf?ti 'Iiolation of ,vich lea*'e aP Permi;t, or of re-gI'I.a6MIo -nsssed co'ce'rn;,g -qqich lef..e or; pe-M~it;, "() for the ca'nnellati'n, of any Jea-se or pern'd,, atan ti e, 'itis(iter~ie.lafter hearings th,7t continued (.Ictrivty pwr satto su'?ch lease or permit 'wodd cause serious, hrm. or damage, which, UICYdd'not decrease over a rea,'n able period of time, to life (incoluding apua'tic life), to p-roperty, to any mineral deposits (in, "fejra, leased. or 'not Yet learned), to the'veationil security or defense, 01, to th Pileniw ,o~tz uy krna environme'nt ~''.18. OU'ri".P CONTINI'ITAL, SIu~r. Li-wixaS PROGRAM.-(a) The &('icltc'i, 7nersuanv to pvroeduresq set forth in sub sect~ouq (c') and (d), 811all ;'n'epare and periodically 'rev'ise. and m~aintain an oil and 'gas h ashnfl Po gra-m to iIplemeZ(nt the policies of this Act. The, lea-qng~ ptriqi'ain? shal~l 'I'vndicate as pm'OO?5ely as possible the s Umi'nOm and localtion of leas~ing aotivity wh'ich bte determines will best meet national (1710PO 'neelds for the fire-year period following its approval or re- ay"Il'otial. S%.ch, lcasfi7q roamshail be prepared and maintained inl (a MaMPO tnrco si-vtevt U'wih thle follo'winq prncwiples: (-3) Within nine months af ter the date oit enactment of this section, the Secretary shall submit a proposed leasing program to the Congress, the Attoiney General, the, Governors of affected StateN, and the Pe r-ional Outer Continental Shelf Advisoryi Boards, and shall publish ~U-ch proposed proigram 'in the Federal Re~qister. (C) T1he Secret ary shall review the leasing program approved under this suction at least once each year, and he m~ay revise and reapprove such pro gram, at any time, in the same, manner aoriginally de- 'celoped. SEC. 19 REGIONAL OUTRu CONTINENITAL ;IL'LS' Anv~'sopy BoAiws.- (a) The Govemnors of affected States may establish R~egio'nal Outer Continental Shelf Advisory Boaids for their regionis 'with such mem- bersh~ip as they may determi~ne, after% consultation, with the Secretaryq and the Secretary of Cowwmerce-. (c ach Board establishted pur~suant to subsection (a) 8h 71 advise the Secretary on all matters relatinti to after' Continental Shelf oil add gasdevlope'n, icluingdevlopentof the leasing program re- quied y sctin 1 ofthi Ac, aproalof developmelt and~ produvc- tionplas reuird pusuat to eti' ~ of this Act, implementationl of aslie ad ontorngstdie, 'n the Preparation of environ- ~jt(,7j t(.l -itipljott staetements p)reparedl in the course of the implementation of Me, In.0 'isios' of1 this Art. "&(() if any Regfoval Advisory Board or the Governor of anY (If4rctcd State--- "(I) vja.7,e, pcfcrcotenai to the Secretary regardingq thesiz, im~gor location of et p'noposed lease sale or with respect 10 et prajposed de'icto llUflt lll prodiuctioa plan;- and "1(31) submniits such it reCOMmend~a~tio'ns to the Secaretary 'witbhln sirzt~y days after, receipt of 'n.otice, of such prop~osed lease sale or of such, developillent and prodluctio'n plan, the Secretary, shall accept s"ck recomlmendatio'ns, unless he determines thetl are nost cositn mhntoa euiyor the overriding national * intejest. For~~~~~~ pORposesf th issubs~ection, a determi nation of over-riding ,natiolal interest shall be basedl onb the desirability of obtaining oil and 347 gas supplies in a balanced mnan~ner, consistent 'zoith, the policies of this A et, It/the recomImendations Irom, State Governors or Pegionat A d- visory Boards coniflict woith each other, the Secretary shall accept any of those recomnmenzdations which he find8 to be the most consistent with the national interest. If the Secretary finds that he cannot accept vec- ownmla-leciaions m9ade puirsuant to this subsection, lie shall communicate, ?fl wrdm!/~, to such Governor or such Board the reasons for rejection of Sucht recommen-dations. The Secretary's determination that recoin- Mvindations are nlot consistent urith the national security or the-over- ridng atinalintres shllbe final and shall not, alone, be a basis for b~aidaionof prposd lease sale or a proposed development andj~rjueinpla inanysuit orjuicial re'vie'u pursuant to section 22 o ths At, ules frzndto be arbitraryq or capricious. A~X.20. IASA7,11' AtND MONIrORlIvA STUDIES.-", (a) (1) rthe secre- tary, of C'onjineeire., ;in coo pei-ation with the Secretary, shall conduct ((stud/y of an1y area or, region Iincluded in any Measw sale in order to vcdabl-i'97 baselinew ;vjflrmatio-) concerningq the status of the hunvzn, Ina'i-ne, and coastal environmens of the ounter Continental Shelf and the voeiSaI areas which vaily be' affected by (il and gas develoynnent i-II'vach, area( 07'erj'~!iol. * -31 The Secretaryl of C7ommerce shall, after being notified of the -suIblission of an-c.,' eeornn and produqctjon. plan in an area, or region, 'under tdy complete sulch, studly antia qwbvvit 'it to the Serem- tay jrov to the date for final approval of any deveelopmesnt and pro- dcinplan re(quired by seto1 ~o his Ac~tfor any lease area. alilure of the! Scervetan of Commperce tocmlt any sucoh studyi a eat avrea sh1all not he a basis for precluding the approval of a d~e'lopmct and production, plan by the Secretary, unless? the Secre- tan,, kifhi disrcrIon,, finds 'wch fadum-v to be an appropriate basis lo,'sue pl-elusion.. Ci. 0!. SAFETYr RRGUIATI(NS.-( (,P) In pr17Omnuigating' regulations9 under thiis section, the Secretary~ shall reqTuire, on all7 new driling and production operatiom ns whereqwr practicable, on existing operations, the v~e of thte best avail1- able a~nd'safest technology, wherever failure of equipment would, tha!"" a, si~qwivfleat effect on occupational c-n public health., safe~ty, or. te environment. *8r '33. CrrZEv ASUiny, CouJ?7 JunISDIcTION, AND JUDIciA; BP- in .()(1) Excwept as providzed in this section, any person having filn interest which. is or can be (adversely affected may corwm'wen 9, civil acion oP, his ow"'n behalf- I "c(A) against any person, including the United States, and ansy oth-er govermMe~nt instrumentality or aqencsy (to the extent peivnitted by the eleventh amendment to Aew Constitution) for an.1y alleged violation of any provision of this Act or any regula- tion, prom~ulgated un1der this Act, or of the'terms of anmy permit or. leats~e issuted 'by thre Secretary under this Alct, and "c(B) agjainst any F ederal offcial ref err'ed to in section 9,1 (a) (1) of/this Act wohere there is alleged a failure of such o#OWia to per/cn any actV or duty under this Act whichis'not discretionary.- (c) () Anyac/io of the Secretary to approve a. leas;,ing prog r.A pui'sant to 'ectio 18 of this Act shall be sujecj ojdcilr , only in the (United States Cour't of Appeals7 for the. Thstrit of Columbia. t prv,2qi ~-fa;l * "(2) Any action of the Secretary t prvrqiemdfcto 348 of,, or disapprove any exploration' plan or any development anid pPro- dluction plan under tlnhis Act shall be subject to judicial 'reliewu only in a United States co urt of appeals fog, a circuit in7 w2ohich, an0 a/ffeclcd State is located. "(3) The judicial 'review specified in paragraphs (1) and (2) of this subsection shall be available only to a person who (A) participaled in the administrati-ve proceedings related to the actions speififed. in such paragraphs, (B) is adverse Ty affected or aggrieved by such action, (C) files a petition for review of the Secretavy's action within s8irly (lays after the date of such action, and (D) promptly transmits copies of the petitio-n to the Secretary? and to the Attorney General of the L7~.~t(' States. -(6) Dhe court of appeals conducting a proceeding pursuant to this subsection shall consider the matter under review s on the record made before the Secretary?. The findings of the Secretaryif 8ported by substantial evidence on the record considered as a whole, shall be conclusizbve. Tihe court may affirm, vacate, or modify any order or deci- sion or may remnajnd the proceedings to the Secretary for such further action as it may direct. *0-* 1 (d) Except as to causes of action wihich the court 6onsiders of greater importance, any action under this sedion shall take precedence on.t the docket over all other causes of action and shall be set for heari~ng at the earliest practical date and expedited in.eve7ry way. "(c) N~otwithstan-ding any other provision of this section, this see- tic-n shall not apply to any action which is comnenced to require com- plian we 'with any provision of the National En vironmental Policy Act of 1969 (42, U.S.C. 4321et seq..). 4-'C.-25. 0r AN! GAS DA'VA'LOILNT AND PGVDucTioN.- (a) (I) Prior to developiment and production pzrsuant to an oil and gas lease or maintained under, this Act in any region9 of the outer Continental Shelf, other than the Gulf of Mexioo or the Santa Barb ara Channel, the lessee shall submit a developinent and production plan (hercrittaf- te?, in this section referred to as a 'plan') to the Secretary, f or approvaul pursuan~t to this section. -(d))(1) After reviewit of a plan submtb~itted pursuant to this section in accordance with the National Environmental Policy Act of 1909 (aid" U.S.C. 4321 et seq.), the Secretary 'hall declare His flidings as to whether development and production pursuant to the lease or set of elieaes (which set includes such lease and other leases which cover adjacent or0 near'by areas to the area, covered by such lease) is a major FI'edleral action.. "(2) The Secretary shall at least once, p-ior to mal"or development in a-Nwy area. or reqion of the oueter, onwtinvetal Shelf, other than the Cu/lf of Mxirco or the Santa Barbara Channel, declare development anied producition purosuant to a lease or set of leases to be a major F-ederal action. If) If d'velopnnet aind production pursuan-t to a, plan is not founed to 1e a Inajlor Federal action, the Governor of any affected State, a-ny (rpprop)'inte Rleqional Outer Continenztal Shelf Advisor Board, and the ex('(ctioe of any affected local government area shall haive ninety dlays fro In receipt of the plan from the Secretary to submit comments and-re ~wcomm-en dinttie-n s. Such comments and recommendations shall be made aral .1able to the public upon request. In a~ddition, any interested. * pc r-~n -may?, suiibm it co-ri-ve-i ts and erecoi mewndat-ions. * a 0 A The Scare ta-ry shal7wl 'equir-emodification' of a olaanif he determines that the1, lessee has failed to make adequate pro"4s8on i such p)lan for safe oper- 349 ationS On the lease area 0or for protection Of the hu1192man, marvine, Or coastal envirounment, except that any modiftlcation requested by the Secretary shall be, to the maximurn exteut jnwoticalbe, ro'mn'stent -mith. the coastal zone management programs of affected States approved pursita'nt to section 306 of the Coastal Zone Mane ge'ment Act of if)72, (16- U.S.C. 1464-). The Secretary shall disapprove a, plav. only (A) if the lessee fails to denwmt rate that he can. compliyiwith, the requivemeonts of this Act and other applicable Federal law,' (B) if the plan is not and cannot be mafie, to the ma~ximum extent practicable, consistent woith thbe coastal zone management p'o gramS of affected States ap- proed ursantto ecton306 of the Coastal Zo-ne Management Act of 17~ 16 .S.. 155) or(C)if because of exceptional geological condtion in he tase reaexcetional resource saluies in the marineqw or coastgsl envirognment, or threxceptional circumstances, the pro- posed plan cannot be mdiie o insutre a safe operation,. OFFSTIORIV OIL SPILL POLLUTION FUND) Sjiw. 30.2. (a) There i-i established witlhin the Department of 7'rans- port at ion an O//shore Oil Pollution Compensation Fund.. Te F"und may sim or, be sued in its owon name. 81C. 303. The dischar"ge Of Oil frPom any offshore facility or 'tecsel, in quanitities which, the President under section .311 (b) of the, Fell- eral Water Pollution Control Act (33 U.S.C. 1,321 (b)) determinevs to be hcwmfuI, is prohibited. sim. 305. (a) Whenever any oil is dischagqcd from, avy offshore facili"ty or vessel in 'violation of sect-ion 303 of this titele the presidWevt Vhall acvt to veinoi' or ar-ranqIe for' the remgoval of Srach, oi, un esli dletervu",nes such, removal wIill be done, 'pioperly adexpeditiously by the owoner? or, Operator of sluch. Offshore facility or, Ycs~sel. ymu-y Yv nic ul-Id, with respect to any real or personal property 'which, is dang, o etoeda .rsult of a divcharge of oil; (2() (A) the cost to the. owyner of restoring, repairing9, or Ve- p1ruin~ ny 'real or pers6onal property -which, is (lagnaed or- de- s/ic ed by ai d(fcharge of o'ii, (B) any incomne necessarily lost by svurh. ou'ner u' the time SUCH, property is being ?restored, re- pelted, o), replaced, a'nd (C) arty redlurtion in the value of Stich yui'operty c'aused by such dischlarge; (3) anti loss, of income or i qmm .airnent of earning capacity for a period of 'not to exceed fire ?yeai4' JIM to damnage8 to real or, per- sonal prropeely, or to nlatural resources, 'withowt 'regaOrd to moner- shpof ac.property or resources, wvhich, are damnaged or de- 8ti-oyed bY el di~scharge of oil, if th e claimnant derives at least R5 per cc'ntam of his earnings fromi activ'ities which utilize suich property or natural r'esources; I(4) any costs and expenses inicurred by the Federal Govern- intat or amy estate gloveramvent in. the restoratHion, repair, orre- ptarc( o'f naltwral resources withich, arc, damaged or destroyed by a (G.5rharql( of il,'. awul 350 CLEANUP COSTS AND 7)AMA GES Ss'c. 308. (a) All clearup costs incurred by the President, the See- ret ary, or any other Federal, State., or local offcial or agenlcy, in, cov- nection with a discharge of oil shall be borne by the owners and op- cvator f the offshore facility or vessrel favorom. which the dischalyrge (b) Notwithstagidi'ng any other provi sioon of 7auD' a', ea"e'ept (Is pn'o'vided 1in? subsection (d) of this section, the owner and operaltor, of an offshore facility shall be h-eld jointly anid severally liable, without. regard to fault, for damages which result from a discharge of ailfirow. such offshore facility. Such liability shall not exceed $3,000,000, ex- cept that if it can be shown that () such damaqes were the result of gross negligence or willful misconduct wit/tin thle privity atnd knowol- edge of such owner or operator, or of the person in charge of such off- shore facility, or (2) such discharge was the result of a violation of ap- plicable safety, construction, or operating staznda-rds or regula tion-, such owner and operator shall be jointly and severally liable for the full amount of su(ch damages. (e) Notwi thstanding any other provision of law and except as pro- vided in subsection (d) of this section, the owuner and operator of a vessel shall be jointly and severally liable, without regard to fauzelt, for damages which. result from a. discharge of oil from such, vessel. Such, liability shall not exceed $150 per gross registered ton., exeept that if it call be showan that (1) such damages 'were the res'lat of gross negligence or -willful misconduct withil th.e pri'I'ity al.'P al lvo- (icdg Of sucrhi. ownUter or operator, or of the person rin charfqe of such. vessel, oi' (2) such discharge was the result of a violation of applcable safety. constructio'n, o0r operating standards or regulations, suvh oc ncr an d opera-tori- shall be jointly and s5everally liable for the full avmount of such (ldanagles. (W) No liability shall be inmposed under, subsection (b) (c) of IthL; section to the extent the owner or operator establishes that the deis- charge of oil or that any damages resulting from such ,disharge woere, caused by (1) an a-t of war, or (2) the negligent or intentio-nal act of the. dama.,ged party or of any third party (including any government enbtity). FEE COLLRCTlOX; DEPIOSITS IN REVOLVING ACCOUNT Ssr. 310. (a) (1) TMe Secretary shall levy and thwe Secretary of the Treasury shall collect a fee of not to exceed 3 cents per barrel on oil obtained from the Outer Continental Shelf, which shall be imposed on tMe owner of the oil when such oil is produced. (2) The colkotion of the fee imposed pursuant to paragraph (1) of this subsection shall continue until the a-mount in the revolvmng alrewem.-t total7s at leaqst $100,000,00,I), whereutpon imposition of such fee may hr supeSnded.r by thee SeCretaly. Thereafter, the Secretary shall. from.l� tnyie 0o tine anld i;n accordance withte limW'itation set forth in i-e,, e sentncve of paragraph. (1) of this subsection, modify by reg 'u- alioo. the amone t of the fee, if any, to be collected under this eub - scf Uflti At. oi-der to Mairntaini the. revo7?L))th accoupnt at a level of not less than. '$WO.Ol6i.000 (adl 'not erore, thani $100.1000 000. - TRUSTFE Or NATURAL RPSOURCES SEC. 312. (a) The President, or the authorized representative of any State, shall act on behalf of the public as trustee of the natural re- sources to recover for damages to such resaources. Sums recovered shall be used to restore, rehabilitate, or acquire the equivalent of such na0t- ural, resources by the appropriate agencies of th e Federal G'aveenmmevnt, or the State government. 351 5. The Carter Administration generally supports the proposed OCSLA legislation but feels that Senate Bill 9 goes too far in compelling Interior to accept governors' recommendations. Also the Administration prefers a comprehensive oil spill program in lieu of the amendments to OCSLA. An Administration bill re- flecting these and other concerns was promised by Andrus. The legislation submitted by the Administration for the creation of a new Energy Department provides for that new department to set long-term OCS production goals but leaves overall control of the leasing program with the Interior Department. 6. The law in the OCS field will likely continue to change rap- idly as national energy policy evolves. The impact of OCS oil on that policy is difficult to ascertain at this time due to the large degree of uncertainty as to the amount of recoverable OCS oil. The United States Geological Survey estimates that possible offshore yields at 95% chance of recovery and 5% chance of re- covery respectively are 4-70 billion barrels of oil and 20-256 trillion cubic feet of natural gas. Most of these reserves are located in Federal lands, In 1976 the United States consumed over six billion barrels of oil and 25 trillion cubic feet of natural gas. SECTION 3. DEEPWATER PORTS To compensate for the disparity between domestic production and demand the United States imports over six million barrels of oil per day. The amount of imported oil has risen sharply in the last few years and with domestic production declining and energy demand still growing it is projected that imports will continue to increase. Supertankers, several times larger than any tanker existing only a few years ago, are rapidly be- coming the standard vehicle for transporting oil over long dis- tances. Although the United States has few ports deep enough to accomodate these tankers, supertankers are still used for oil delivery to the United.States. However, before these tankers enter the port part of the oil is pumped into several smaller ships. This decreases the draft of the tanker and allows it to proceed into the port. Transportation costs of imported oil would be greatly reduced if facilities that would enable super- tankers to directly transfer their cargo to onshore facilities were available. The development of deepwater ports presents a number of domestic and international legal questions. Congress resolved many of these issues in the Deepwater Port Act of 1974, 33 U. S.C. ��1501-24. That act is reproduced in Chapter Six and is accompanied there by a discussion of the regulatory scheme for 352 deepwater ports. Here the question of the use of the ocean beyond territorial waters will be considered. Approval for the construction of two deepwater ports on the continental shelf of the United States has been granted. One will be located 26 miles off the Texas coast and the other will be 19 miles off the Louisiana coast. CONVENTION ON THE HIGH SEAS 450 U.N.T.S. 82, 13 U.S.T. 2312, T.I.A.S. No. 5200 (In force Sept. 30, 1962) Article 2 The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is ex- ercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non- coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas. CONVENTION ON THE CONTINENTAL SHELF 499 U.N.T.S. 311, 15 U.S.T. 471, T.I.A.S. No. 5578 (In force June 10, 1964) Article 5 1. The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scienti- fic research carried out with the intention of open publication. 2. Subject to the provisions of paragraphs 1 and 6 of this article, the coastal State is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the ex- ploitation of its natural resources, and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection. 3. Neither the installations or devices, nor the safety zones around them, may be established where interference may be caused to the use of recognized sea lanes essential to international navigation. 353 CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE 516 U.N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639 (In force Sept. 10, 1964) Article 9 Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea. The coastal State must clearly demarcate such roadsteads and indicate them on charts together with their boundaries, to which due publicity must be given. DEEPWATER PORT ACT OF 1974. JOINT REPORT TOGETHER WITH ADDITIONAL VIEWS OF COMMITTEE ON COMMERCE, INTERIOR AND INSULAR AFFAIRS AND PUBLIC WORKS TO ACCOMPANY S. 4706 (Oct. 2, 1974) pp. 7-8. IXTER.NATIONAL LEGAL BASIS As far as can be determined, a U.S. deepwater port- constructed in international waters would be the first such facility located outside a nation's territorial limits anywhere in the world. A nation exercises nearly absolute sovereignty over its territorial waters by virtue of the International Convention on the Territorial Sea and Contiguous Zone. In atddition, the Convention on the Continental Shelf aulthorizes a coastal nation to erect structulres on its continental shelf for the pur- pose of exploring, and exploiting the mineral and non-living resources, anud provides coastal nations with jurisdiction over sedentary living species on or untlder the seabed. No existing internamtional lw, treaty, or g-reemrent specitically recognizes the construction and operation of detepwater pports as a permuissible use. of international writers. IIowever, the freedorl of alll nations to mtake reasonable use of vwatters beyond territorial holrndtaries is recognized by the International Convention on the High SeaLs. 'I estinony presented to the special joint subcornmmittee indicated thatl constructing and operating deepwater ports beyon(l a nation's touritorial limits would constitulte a "reasonable use" as contemllplated bv .Artic le 2 of the Convention on the High Seas. . e rUnder tlle atlthority of this Convention, a natilion illt Ilroperlv execllte j1isd(lictiofn on the Higlih Seas in order to license alld regullate sc.lh facilities. According to the U.S. Department of State an(l several ac:t(lenlic experts, the phrase inter alia implies that the aulthors of the (Co10,ventimn onl the Iigh Seas foresaw a need to plernit aL broader ran,:e of uses tlan the four speciftied in Article 2. Ifowever, ;ilthoulgh they consider development of deepwater port fil:ilities to be at reasonable use of the high seas ulnder international latw, tile State Department also believes trhat it is necessaryv to seek inultltler l agreernent las encollragedl in section 11 of the bill. I'll Uniteatl States is presently seeking clarifictttion of the legal status of (deepwaLter ports in the United Nations Latw of the Sea Colnference t11Vw itlllderwal. n t] lition, section 22 of the bill authorizes the ,utUslit of interntational agreements with Cantada and exico, espe- (cially xw-ith respect to enviroILmental concerns, since the resources .of those two nations will be most irnmediately affected by develop- mnent of deepwater ports off the coast of the United Sta:tes. 354 DEEPWATER PORT ACT OF 1974 33 U.S.C. �� 1501 et. seq. � 150t. Congressional declaration of policy (b) The Congress declares that nothing in this chapter shall be con- strued to affect the legal status of the high seas, the superjacent air- space, or the seabed and-subsoil, including the Continental Shelf. Pub.L. 93-627, � 2, Jan. 3, 1975, 88 Stat. 2126. � 1503. License for ownership, construction, and operation of deep. water port--Requirement; restrictions on utilization of deepwat.er port Conditions for lasuance (c) The Secretary may issue a license in accordance with the provisions of this chapter if- (4) he determines that the deepwater port will not unreasonably Interfere with international navigation or other reasonable uses of the high seas, as defined by treaty, convention, or customary inter- national law; � 1504. Procedure-Regulations; issuance, amendment, or rescission; scope AdditionlI regulationsi criteria for site evaluation and preconatruetion teating (bi The Secretary, in consultation with the Secretary of the Interior and the Administrator of the National Oceanic and Atmospheric Adminis- tration, shall, as soon as practicable after January 3, 1975, prescribe regulations relating to those activities involved in site evaluation and preconstruction testing at potential deepwater port locations that may (1) adversely affect the environment; (2) interfere with authorized uses of the Outer Continental Shelf; or (3) pose a threat to human health and welfare. Such activity may thenceforth not be undertaken except in accordance with regulations prescribed pursuant to this subsection. Such regulations shall be consistent with the purposes of this chapter. � 1509. Marine environmental protection and navigational safety- Regulations and procedures (a) Subject to recognized principles of international law, the Secre- tary shall prescribe by regulation and enforce procedures with respect to any deepwater port, including, but not limited to, rules governing vessel movement, loading and unloading procedures, designation and marking of anchorage areas, maintenance, law enforcement, and the equipment, train- ing, and maintenance required (A) to prevent pollution of the marine en- vironment, (B) to clean up any pollutants which may be discharged, and (C) to otherwise prevent or minimize any adverse impact from the con- struction and operation of such deepwater port. Safety sonema designation! construction period; permitted aetivities (d) (1) Subject to recognized principles of international law and after consultation with the Secretary of the Interior, the Secretary of Commerce, the Secretary of State, and the Secretary of Defense, the Secretary shall designate a zone of appropriate size around and including any deepwater port for the purpose of navigational safety. In such zone;, no installations, structures, or uses will be permitted that are incompatible with the opera- tion of the deepwater port. The Secretary shall by regulation define permitted activities within such zone. The Secretary shall, not later than 30 days after publication of notice pursuant to section 1504(c) of this title, designate such safety zone with respect to any proposed deepwater port. 355 � 1510. International agreements The Secretary, of State, in consultation with the Secretary, shall seek effective international action and cooperation in support of the policy and purposes of this chapter and may formulate, present, or support specific proposals in the United Nations and other competent international organ- izations for thedevelopment of appropriate international rules and regu- lationp relative to the construction, ownership, and operation of deep- water ports, with particular regard for measures that assure protection of such facilities as well as the promotion of navigational safety in the viclni- ty thereof. � 1521. Negotiations with Canada and Mexico; report to Congress The President of the United States is authorized and requested to enter into negotiations with the Governments of Canada and Mexico to deter- mine: (1) the need for Intergovernmental understandings, agreements, or treaties to protect the interests of the people of Canada, Mexico, and the United States and of any party or parties involved with the construction or operation of deepwater ports; and (2) the desirability of undertaking joint studies and investiga- tions designed to insure protection of the environment and to ellmi- nite any legal and regulatory uncertainty, to assure that the inter- ests of the people of Canada, Mexico, and the United Staes are ade- quately met. The President shall report to the Congress the actions taken, the progress achieved, the areas of disagreement, and the matters about which more information is needed, together with his recommendations for further action. UNITED STATES OF AMERICA: DRAFT ARTICLES FOR A CHAPTER ON THE ECONOMIC ZONE AND THE CONTINENTAL SHELF U.N. Doc. A/CONF. 62/C.2/L/47 (August 8, 1974) Article 28. Installations 1. The coastal State shall have the exclusive right to authorize and regulate on the continental shelf the construction, operation and use of arti- ficial islands and installations for the purpose of exploration or exploitation of natural resources or for other economic purposes, and of any installation which may interfere with the exercise of the rights of the coastal State. 2. The coastal State may, where necessary, establish reasonable safety zones around such off-shore installations in which it may take appropriate measures to ensure the safety both of the installations and of navigation. Such safety zones shall be designed to ensure that they are reasonably related to the nature and function of the installation. Ships of all nationalities must respect these safety zones. 3. The breadth of the safety zones shall be determined by the coastal State and shall conform to applicable international standards in existence or to be established by the Inter-Governmental Maritime Consultative Organization re- 356 ,garding the establishment and breadth of safety zones. In the absence of such additional standards, safety zones around installations for the exploration and exploitation of non-renewable resources of the sea-bed and subsoil may extend to a distance of 500 metres around the installations, measured from each point of their outer edge. 4. Due notice must be given of the construction of any such installations and the extent of safety zones, and permanent means for giving warning of the .presence of such installations must be maintained. Any such installations which are abandoned or disused must be entirely removed. 5. States shall ensure compliance by vessels of their flag with applicable international standards regarding navigation outside the safety zones but in the vicinity of such off-shore installations. 6. Installations and safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to inter- national navigation. 7. For the purpose of this section, the term "installations" refers to artificial off-shore islands, facilities, or similar devices, other than those which are mobile in their normal mode of operation at sea. Installations shall not afford a basis for a claim to a territorial sea or economic zone, and their presence does not affect the delimitation of the territorial sea or economic zone of the coastal State. THIRD UNITED NATIONS LAW OF THE SEA CONFERENCE REVISED SINGLE NEGOTIATING TEXT, Part 2 A/CONF. 62/WP.8 Rev. I/ Part II 6 May 1976 Article 44 1. in an area beyond and adjacent to its territorial sea, described as the exclusive economic zone, the coastal State has: ..(b) Exclusive rights and jurisdiction with regard to estab- lishment and use of all artificial islands, installations, and structures; _(c) Exclusive jurisdiction with regard to (i) other activ- ities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds; NOTES Compare the Deepwater Port Act with the present and proposed OCS regulatory structure. Section 1508(b)(1) of the Deepwater Port Act gives governors of adjacent states veto power over deep- water port development beyond the state submerged lands. Are there policy justifications for the different treatment of states in OCS and deepwater port decision-making? 357 SECTION 4. FLOATING NUCLEAR POWER PLANTS The ocean offers two scarce resources for nuclear power plants--space and water. Nuclear plants require a vast amount of water for cooling. Even if the coolant is recycled large quantities are lost through evaporation. In fact a nuclear plant can consume as much'water as a good size city. To meet this need for water and to supply energy to the large populations of the coastal zone, many existing and planned facilities are located near the coast and use brackish or saline water for cooling. Under present regulations a land based nuclear power plant requires a site of 400-500 acres. Such land is often scarce in the coastal area and public opposition to the construction nearby of a nuclear plant further reduces the number of avail- able sites. This opposition in part reflects the acute sen- sitivity of the coastal environment to the impact of construct- ion of such a facility and the subsequent thermal pollution from cooling operations. Many contend that the construction of floating nuclear power plants (FNNP) offers a solution to these problems and that it offers cost savings and fewer adverse environmental impacts than land based plants. The oceans would satisfy the demands of cooling water and a plant site. Costs are hoped to be lowered due to the potential for centralization of production and standardizat- ion of plants. By placing the plant some distance from the coastal urban areas and sensitive wetland areas adverse environ- mental impacts may be reduced. COASTAL EFFECTS OF OFFSHORE ENERGY SYSTEMS, ~ UNITED STATES CONGRESS OFFICE OF TECHNOLOGY ASSESSMENT November 1976, pp. 197-203, 230-237. i~~~ :Nothingldn bR l. powerplant' assemrbed &< Nothing 0n;.ltn,0le 0 ofte o"tt-sor';. .. plex of floati,:and pr:t 'et i. ea:i' .!~'0~:':y~ii~c ai ;-teg n ship':""" ' water has eter evt in 6iio'a ' et El; at" ashipy ' where in the' cu6r b the i "' siverr Fla.,:8- theind co4rnestt1p ~i~~ii~ hdSt joh fr es the east M. ete idsipeSpl': the Stwii ti' iat and concr eNA te w bri6Wate? 'th,;t 358. ,will create ''a la' "of calnf: In, 1 her'i h plants and shieild:id from' " tPii.'d" g Oif. ';Th-PafOrrn fr eaf- nt will be'a steel,. ocea!wavs ft"it, into ymajor"as "' feet square and 442 ocean wavesthan; m' in the United Stat:The gantry "?r 'i"n Vt" th "",,'i:[ikhead. tol f,':". ', iompartme~ oVfi Florida shipyard fero the planNts :wi Ii built pr:tii~}ni'omb:f a e could straddle th,'me of th"U S ':apitol "'R) :. 358 Westinghotie reactors now operating in land-; study finds that: based pow i.plants will be rhounted on each barge inside a 17-story domed containment . Although the costs of the first two float- structure W .fsteanm turbines, generators, and ing nuclear plants, AGS 1 and 2, are office builduig's cluLsteredl arouild it. about the same as the costs of a similar The dormnie conrtailllnenlt structur.e Mwi1i � he ; land-based plant, volume production and nearly 18 stoies above the oceai surface aldo standardization eventually could slow from the short will look mtuch likte the distain down the rapid escalation of capital costs skyline of a sminall city. of nuclear powerplants. While the floating plants are being built, Offshore siting of nuclear plants would construction workers will build the largest reduce thermal pollution and eliminate structure evin ocean water s disruption of marshlands and estuaries massive, curving breakwater of 5.6 million that would be associated with land-based tons of stone and cast concrete that will span or shoreline nuclear installations. 49 acres of ocean floor and rise 64 feet above the water surface. Routine operations would produce less Powerplants will be towed at intervals of 2 air pollution than would routine opera- years from Florida, moored, sealed in the tions of a coal-fired plant equipped with breakwater with a wall of concrete caissons, flue gas desulfurization and other ad- and connected to 4 miles of underwater cable vanced pollution control equipment. leading to shore and the power distribution grid. Public Service plans are to have the first The NRC has not evaluated and does not plant operational in 1985 and the second in plan to evaluate risks from accidents in 1987. floating nuclear plants comprehensively 4r a 4enough to permit either a general com- parison of the relative risks from land- The plants have a design life of 40 years, based and floating plants or an assess- after which they may be shut down and decom- ment of the specific risks associated with missioned. deploying Atlantic Generating Station , o a Units 1 and 2. In this study, OTA has analyzed available Several technical problems of design and information on costs, benefits, environmental operation remain to be resolved, includ- impact, safety, waste disposal systems, ing procedures for transporting nuclear transportation, and decommissioning ac- fuel to a floating plant and carrying tivities associated with the floating plants. The radioactive wastes to shore, the process study does not attempt to evaluate general of decommissioning a floating plant, and controversies about the safety and perform- the techniques of towing plants from ance of nuclear plants; these are beyond the Florida to the Mid-Atlantic coast. scope of the coastal effects analysis. It con- centrates, instead, on exploring differences be- There do not seem to be any significant tween the designs of floating and land-based differences between land-based and plants and comparing the advantages and dis- floating powerplants as to releases of advantages of each. radioactive material and other pollutants during routine operations. As a result of this comparative analysis, the 359 Although the nuclear rieactor steam sup- - ply and turbine generator systems and Consequences of a Core-Melt the floating barge are, separately, proven The OTA analysis indicates that the conse- technologies, the combination is not. In quences of a core-melt on a floating nuclear addition, there are unique features in- plant may be significantly different from those cluding the baige-to-cable connection, for a land-based plant. One reason is that in the breakwater, and the mooring system the case of a core-melt on a floating plant the that have not beenH tested by experience. core eventually would melt through the bot- Accid~ent Risks tom of the barge hull and release large quan- tities of radioactive material directly into the The most serious accident possible in an ocean, where it could contaminate beaches operating nuclear powerplant is overheating and be taken up into the food chain. While a that causes the fuel core to melt. If the upper core-melt in a land-based plant could also lead containment of a powerplant were to rupture to waterborne contamination, e.g., if the core as a result of a core-melt, the radioactive entered an aquifer after melting through the materials released into the atmosphere could bottom of the containment, such effects were have severe health and economic impacts. No not considered in detail in WASH-1400. Con- core-melt accident has occurred in any com- cern about this tye of release prompted the mercial light water reactor and the 1975 Reac- Advisory Committee on Reactor Safeguards to Advisory Committee on Reactor Safeguards to tor Safety Study (WASH-1400), commonly request a special study of the effects of acci- known as the Rasmussen Report, estimated dental releases of radioactive materials into the probability of such an'.accident in a land- water as part of its review of floating nuclear based reactor as 1 in 20,000 years of reactor powerplants. The NRC subsequentl decided operation. WASH-1400 also concluded that to conduct a Liquid Pathways Generic Study only about one in six pressurized water reac- to analyze the effects of such releases from tor core-melt accidents would lead to the effects of such releases from both land-based and floating nuclear plants. release of significant amounts of radioactive materials to the open air.~IUbJ LV ~11C VY~II ~11� ~ ~~ A second reason to expect different conse- Taking all .he differences that might alter quences for a floating plant is that it appears Taking all the differences that might alter that in case of a core-melt a release of that in case of a core-melt a release of the probability of a core-meltdown into ac radioactive materials to the atmosphere is count, OTA's preliminary analysis indicates about seven times more likely with the reactor that the probability of a core-meltdown acci- system used in the floating plant than with the dent in a floating nuclear powerplant is com- WASH-1400 land-based PWR plant. On the parable to the value of 1 in 20,000 per year of other hand, this may be offset to some extent reactor operation that was calculated for land- based plants in WASH- 1400, although sub- by design features of floating plants which based plants in WASH-1400, although sub- could reduce the amount of radioactive stantial additional effort would be required to material released in case of an accident. validate that conclusion. The effects of a tow- ing and continued operation in a marine en- , First, in the case of a vironment were not analyzed in detail because core-melt in a floating plant the core would that would require an examination of. in- eventually melt through the bottom of the dividual component failure rates that is platform and contact the water on which the beyond the scope of this study. plant was floating. This probably would pro- * - * duce large quantities of steam because boiling conditions could be expected to exist at the 360 surface of the core for a day or more after melt such secondary releases leads to a difference AP ~~through. This steam could in turn in the generic risks of land-based and floating transport into the atmosphere significant plants. quantities of radioactive material, including fine particles produted in the interaction of A second possible generic difference be- the molten core with water. While the possi- tween land-based and floating plants is the ble interaction of a molten core with ground- fact that floating plants can be located away water is a potential mechanism fog similar se- from shore, which guarantees a permanent condary atmospheric releases in some land- zone of zero resident population for several based plants, there are some factors that may miles around the plant. This could reduce the lead to differences in the effects of such expected consequences of an atmospheric releases on the generic risks of floating plants release compared to some onshore sites. as compared to land-based plants. For one However, this difference applies only to thing, the potential for such releases exists for offshore sites, and would not affect nearshore all plants located on water, and only for some sites as compared to land-based plants located land-based plants, depending on the site. In near the coast. addition, the release would occur later in time In summary, OTA's preliminary analysis after initiation of a core-melt sequence in a indicates that the conclusions of WA SH--1400 land-based plant because of the thicker con- about the expected consequences of at- tainment base mat that the core would have to mospheric releases cannot be directly applied melt through before encountering ground- to the floatin~g nuclear powerplant. Further- water; this coulId reduce the population at risk more, substantial additional analysis would by allowing additional time for evacuation. be required to enable a generic comparison of However, since WASH-1400 did not consider the types and effects of atmospheric releases this type of release, further analysis would be resulting from core-melt accidents in land- needed to determine whether the potential for based and floating nuclear plants. NOTES 1. Construction of a complex to manufacture FNPPs is presently underway as are procedures for the. licensing of two FNPPs off the New Jersy coast. The single assembly complex could produce over 50 *FNNPs over the.-next 20 years. 2. Although there are possible sites for FNPPs beyond territor- ial waters present proposals all involve sites within territorial waters. There is some doubt as to whether the Nuclear Regulatory Commission could license a plant beyond territorial waters under the present law. Section 2131 of the Atomic Energy Act, 42 U.S.C. 2131 et. seq. provides: It shall be unlawful except as provided in section 91 of this Act for any person within the United States to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use import, or expert any utilization or production facility except in accordance with a license issued by the Commission pursuant to section 103 or 104 of this Act. Section 103 states, inter alia, (d) No license under this section may be given to any personforT activites which are not under or within the jurisdiction of the United States.... 361l There is a similar question whether the Price-Anderson Act, which limits liability in the event of a nuclear accident, would apply to a FNNP outside of territorial waters. 3.There are several methods for states to oppose construction of a FNNP. Nuclear plants are subject to a number of laws. The two most important in the licensing procedure are the Atomic Energy Act and NEPA. The numerous hearings, licenses and permits required under these and other laws provide many opportunities for state intervention. Other powers of the state include the certification of consistency under the CZMA and the state's police power. These powers could be significantly reduced if the current question of Federal preemption of nuclear power plant regulation is resolved against the states. SECTION 5. DEEP SEABED MINING A. Ownership of the Resources UNITED NATIONS RESOLUTION 2'574 (XCXIV). Question of the reservation exclu- sively for peaceful purpo.ses of the sea-bed anxl the ocean floor, and the subsoil thereof, tlcdlerlying the high seas beyondl the linlits ot' present national jurisdiction, antI the luse of their resources in the interests of lmankitnd The General Assembly, Recalling its resolution 2467 A (XXIII) of 21 De- Recalling its resolution 2340 (XXII) of 18 iDecem- cember 1968 to the effect that the exploitation of the cember 1967 on the importance of preserving the sea- resources of the sea-bed and the ocean floor, and the bed and the ocean floor, and the subsoil thereof, be- subsoil thereof, beyond the limits of national jurisdic- yond the limits of national jurisdiction from actions tion should be carried out for the benefit of mankind and uses which might be detrimental to the common as a whole, irrespective of the geographical location of interests of mankind, States, taking into account the special interests and Declares that, pending the establishment of the needs of the developing countries, aforementioned international rEgime: Convinced that it is essential, for the achievement of (a) States and persons, physical or juridical, are this purpose, that such activities be carried out under bound to refrain from all activities of exploitation )Ef an international rgimne including appropriate interna- the resources of the area of the sea-bed a;nd oceln floor, tional machinery, and tile subsoil thereof, beyond the limits of national Noting that this matter is under consideration by the jurisdiction; Committee on the Peacefuld Uses of the Sea-Bed and the (b) No claim to any part of that area or its -e- Ocean Floor beyond the Limits of National Jurisdic- sources shall be recognized.- tion,. _1833rd pilenary ineeting, IS D)ecermber 196 . 362 UNITED NATIONS RESOLUTION 2749 (XXV). Declaration of Principles Govern- ing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of Na- tional Julrisdiction The General Assembly, Recalling, its resolutions 2340 (XXII) of 18 De- law, including the Charter of the United Nations cember 1967, 2467 (XXIII) of 21 December 1968 and the Declaration on Principles of International and 2574 (XXIV) of 15 December 1969, concerning Law concerning Friendly Relations and Co-operation the aie:, to which the title of the item refers, among States in accordance with the Charter of the Affirming that there is an area of the sea-bed and United Nations, adopted by the General Assembly the ocean floor, and the subsoil thereof, beyond the on 24 October 1970, in the interests of maintaining limits of national jurisdiction, the precise limits of which international peace and security and promoting in- are yet to be determined, ternational co-operation and mutual understanding. Recognizing that the existing legal regime of the 7. The exploration of the area and the exploita- high seas does not provide substantive rules for regu- tion of its resources shall be carried out for the lating, the exploration of the aforesaid area and the benefit of mankind as a whole, irrespective of the exploitation of its resources, geographical location of States, whether land-locked Convinced that the area shall be reserved exclusively or coastal, and taking into particular consideration- for peaceful purposes and that the exploration of the the interests and needs of the developing countries.. area and the exploitation of its resources shall be 8. The area shall be reserved exclusively for carried out for the benefit of mankind as a whole, peaceful purposes, without prejudice to any mea- Believing it essential that an international regime sures which have been or may be agreed upon in applying to the area and its resources and including the context of international negotiations undertaken appropriate international machinery should be estab- in the field of disarmament and which may be ap- lished as soon as possible, plicable to a broader area. One or more interna- Bearing in mind that the development and use of tional agreements shall be concluded as soon as the area and its resources shall be undertaken in such possible in order to implement effectively this prin- a manner as to foster the healthy development of the cip]e and to constitute a step towards the exclusion world economy and balanced growth of international of the sea-bed, the ocean floor and the subsoil thereof trade, and to minimize any adverse economic effects from the arms race. caused by the fluctuation of prices of raw materials 9. On the basis of the principles of this Declara- resulting from such activities, tion, an international r6gime applying to the area Solemnly declares that: and its resources and including appropriate interna- 1. The sea-bed and ocean floor, and the subsoil tional machinery to give effect to its provisions shall thereof, beyond the limits of national jurisdiction be established by an international treaty of a uni- (hereinafter referred to as the area), as well as the versal character, generally agreed upon. The regime resources of the area, are the common heritage of shall, inter alia, provide for the orderly and safe mankind. development and rational management of the area and its resources and for expanding opportunities in 2. The area shall not be subject to appropriation and its resources and for expanding opportunities in by2. The area shall not be subject to appropriation jthe use thereof, and ensure the equitable sharing by by any means by States or persons, natural or juni- States in the benefits derived therefrom, taking into dical, and no State shall claim or exercise sovereignty particular consideration the interests and needs of or sovereign rights over calny poarrt txherieof. sovereignparticular consideration the interests and needs of the developing countries, whether land-locked or 3. No State or person, natural or juridical, shall coastal. claim, exercise or acquire rights with respect to the area or its resources incompatible with the inter- n;altonal rdcgime to be established and the principles tion scienc research exclusively for peaceful of this Declaration. purposes: 4. All activities regarding the exploration and (a) By participation in international programmes exploitation of the resources of the area and other and by encouraging co-operatioln in scientific research rcnl:ltd activities shall be governed by the intcra- by personnel of different countries; tional r6gime to be established. (b) Through effective publication of research 5. The area shall be open to use exclusively for programmes and dissemination of the results of re- pcaceful purposes by all States, whether coastal or search through international channels; land-locked, without discrimination, in accordance (c) By co-operation in measures to strengthen with the international r6gime to be established. research capabilities of developing countries, includ- 6. States shall act in the area in accordance with ing the participation of their nationals in research the applicable principles and rules of international programmes. 363 No such activity shall form the legal. basis for any (a) The legal status of the waters superjacent to claims with respect to any part of the area or its the area or that of the air space above those waters; resourccs. ~~~~~~~~~(b) The rights of coastal States with respect to Ill.Withresect o ativiiesin te aea 'i~d measures to prevent, mitigate or eliminate grave and acting iii conformity with the international r~gime to imietdneXotercatieo eae neet be stalisedStaes hal tke pprprite easres frm pollution or threat thereof or from other ber esablishedl co-peates lin take appopriate and ,SMC hazardous occurrences resulting from or caused by foernienthallo ofoert inthernaotionalrls standad and any activities in the area, subject to the international procedures for, inter alia:reietbesabshd 14. Every State shall have the responsibility to (a) 71-ie prevention of pollution and contamina- ensure that activities in the area, including those ra- tion, and other hazards to the marine environment,. lating to its resources, whether undertaken by gov- including the coastline, and of interference %with the ernmental agencies, or non-governmental entities or ecolm~ical balance of the marine environment; persons under its jurisdiction, or acting on its behalf, (h) The protection and conservation of the na- shall be carried out in conformnity with the interna- tural resources of the area and the prevention of tional r6ginie to be established. The same respon- damage to the, flora and fauna of the marine, envi- sibility applies to international organizations and ronment. their members for act~ivities undertaken by such .12. In their activities in the area, including those organizations or on their behalf. Damage caused by relating to its resources, States shall pay due regard such activities shall entail liability. to the rights and legitimate interests of coastal States 15. The parties to any dispute relating to activities in the region of such activities, as well as of all in the area and its resources shall resolve such dis- other States, which may be affected by such activities. pute by the measures mentioned in Article 33 of Consultations shall be maintained with the coastal the Charter of the United Nations and such proce- States concerned with respect to activities relating dures for settling disputes as may be agreed upon to the exploration of the area and the exploitation in the international regime to be established. of its resources with a view to avoiding infringe- 1933rd plenary meeting, meent of such rights and interests. 17 December 1970. 13. Nothing herein shall affect: REPORT ON THE DEEP SEABED HARD MINERALS ACT, COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, No. 754 94th Congress (1976) pp. 5-14 OP ANGANESlE 3~ODULZ MM~t~ The area yIno ewr 6f the cont, eta mar" n f erivd to as Ithe Nep' seabed, is lutown to be rich nmniaroui~ loathe moment very little is l~inown abouti the wi 8ifib ~ tztW of the 'deep se~bed_ With respect to t1he surface. ofth ad o- ever, 'we knoiv. that extensiVe deposits ~f tanganes oulsct il,-over 20 metallie, elemients- are abundant.' I 1194ules w6iIl contain at least 25 percent mangaftese, I2 I Iu 1percent copper and 02 ecn oat IThere are thtree tye of ruining systems jprse eo4 for. manganese nodlule miningy: (a) Continuous path aredging ryle upne odjt that connects, a dredge head and the siwihtis m'filnp site, collecting ore over a, certai w~wdh (b) Fixed are adredgn is conutd.b cletn~4 hoecentral portion remains stationaryo h ca until ore lyinigrWithin the radius of the sweeping eie~e Coflietod. During th$ GOeess,"h~rae hi ~ ht~ maiI15 statioriary: a qve.y. (C) Contifnuousolfinebctdegw 1oo oils rope to which are atcc rdeices~s~esh sieays, the loop of deg ukt sdagdats lyittolin scoo xng 1floe.. T 364 pilot, tests Of the, continuous path dregn syt~ ;Aitltx'~ onis line buciket si-stem have been condutebu woftersWha 1)eort }u1 l i wl rekea,,(A. The techinologiatr pi tctin-f'l4~~ M11111jtr dfwices will ihalime. tem both elcs~ n ef~est~ to pati -ticilar txpes of "iibdiile, depositsnduronngtprpb. Sci-anai rrwictallurgicql procefsses have, been 'ex.pernt'ltie'i. fhe~ wvinnling of metals'fromn nviat~ganese nodules, howe er hnl v mct~jui ~iltechniques are, presently beingr ~on-sidered fOr ome-~ cildprocc ssing. The metallurgclpoesi peiial et 4 -ItC f etrs as the pIT&a thrctristics of thler1 nodules" ther p., 00ontv't, tinice ietalepuntont, as-ay or MMr adend detritrd Thi Tsacitical aispect of nodule mining-the degree to wul ol oquipmenlt deveiopmefitit'nd type of metallurgical -proce,`s~ 're dcj.~ ont, upon definite knowledgc of the minine site fto be deo eloped', NNItD-FOroi SEABED ~I-TNERAT4S heseabed ininerals aiie important Teiao-pout copper. inielm, maniganese, cobalt, and molybdef~num It iswell:lnw~I, that all of these metals are essential to a mTodern industrial 0ci~ ,M4anoi esc, is vital in the product-ion of all steel aind imrpaits rp i$ of toughness to certain steels. Nickel is teesn~a nein i a~' less steels and in high temperature-high perf~rmnance alloysCbl is of great utility in Making magnets and is es~sential in the iakvuo r steels. The uises of coppe-r for electrical ap~paratus'of- all kinds-'u4i PIjpxnw and liardlw~�are axwell known. :'''"" %ia't is not well know abu~hes li"la are!ehr '00~ s ufficient or entrl lak oestik OOiPPIie We haveolyoi sumption of nickel. Wer'liz.'v no d~omestic cobalt or mnaeepou tion aad are 100'percent"4depedent on new..pr1nr tplfomi1'' ports'. 'Athough'we are-the largest copper pr~dcri h okw ar 5o elf SW~ient, and 'our cper imnports have b. en~peitA~ ~IL T&. oday we ixnport,5 poicent of Ouitacpper., o hs irnports on ou' b)alaiic&'ol p,4,Ym-O,,ts is h~d n 175.imports, amounted to'aos 1,O0QQO'fit' venr ths i c'peeted to rise rapidly. FLecoN.ery of seabed najj ahen'te 111ology of seabed rsrcdelpitisat hand an~pp dixction is certain to occur bwetween now and'1980,if secure le~pl r ramiei~en-ts :ire acliiev~d by the passagre of this leg-islation. ~vrh eon pallic-, have dredlged nodtfles';fromn tire derocean in.substat~.~ quapta- NJ least two suc6cessful processes for extracting mnetafafon 4"h ) deep sabed ors manganese'iodl) haveh been tested in io' plants. Thie pace of teh~oyis further' illustrated by the recent or, -k- mtation of the'sprtit~ntoilconsortia to undertake nei developplent'o ~of f ~uerocovery.,"~*;'I~ T,,so considrations alone may'not' demoi rat .afi6~ for gey ir'trespect to the development of the deep seabeds; lh6weverti - f ictors do create"a'd~eg'ree oif urgency. These involve our lead inll'~ pectinig, te-ooy'aciaktna el*~~leneed*'to inaiiRAI&I industry initiative and rxi66iientum and the need to, encourage pioxiee~ i',~ ing ndutril ativity which may' ggive rise evemntually to even g-feltei Av~ 11116ral resources benefits in the oceans. axi' :wh on INVESTi~t[UNT GUARAWTFM -~. 'The' tech61`6'WInole, ev fpe or 11odUwi741 iis extremely2 sophiisti cated 'aid expensiv'e. The oceanogra"h' I') IeaZ amid -its equipment usedl ill the prospectiig phoeaoncncot Pi 365 ~OOper day,_while~ _.ecosts lump~ tQ P0 da "'Indce highly cope de-e o cut ~p~ rd~~ ~b~eratxon togeher ith grab, 6anijpfer, &1ospect44`1, reagF boi and(: Piston corersq,, frmhnfr e; Froin what. we la Four fec1,lology bo I~n. tsyn~~I JAUiSC be used t&Aiin napi.mt' i9Ofe of w~to ~ ttocsilnodules a-re found and in the nietalfgul.pess hc .W~dto win* 1, t1.gt rcsss ,tjle nletals, is adxrineedA beo th Uifth. German, I .mnc _6atYdtun nd the Sotiet ronkl~ huave a'lco showii "n " Qredate nBtistain. deep tsea Soviig ~l~on~ tehnolgica leadis fagil. I'otlaers deivelo ]ihd es before; w'e do and obtai nai~~i aktn tZkesource w~ill& o dcxi eke utatlat iiarkie tim o& wilstill be inxport~init Moreoe, we maysee our compame A -,theTihited States to ell,,age ini Jomt venti'M$41nder the flags of rAtics Th Gxoulcl de~creatse tle possibility that n gne n~ ~~ingwouldbecome~ a now united States lndy, ry. , 1tis therefore, incfunbed, uPon the b~ges oa~r h ~;PaiYkte' initiative and technological achliev'er t tare, n'ot" sti United Statesk~own actions.: indeed, it is imlp~d. ant corert tiatire be, encouraged. If it is, we may jei os~rdc~~~t ocean nodules as early, ~xs 1978 and substantial conlyerp-ial 101delerway not later, than 1982,- - -------i 4 d4~i thil *iksLn W;CiWtee 'iev tLaih tn' OF La ieve thati ne. ;~~~~tee ~ ~ ~ i prvson fS.11 a~neded and .r iti , ~ he tehnologyi's aliffiIe*thleUder exigtii~4'aw .the freed'rn 467~ V ule perxnisr.i-ineii 4opage toonup-e no~C. toda"I -,~t lrgecxtntthe -auceitam iitnre( 'ft&1~I, sitiatioll, w uhai i4 `~`ibiin-exploitation. .Lgir`e:nsofmn r rejdel to Oiaaryp $n4engineerino Work and tofffi~ I iee to aline a particul ai~o trcia ielng eiou'ltoei - IItr on. it's investileit. ' dsr nesteasir'~ta t 'if~ir La o th Se. teaY will not- in egect eporiat tez ~ ~~iii~nt and put them out i - eoon~ 'opeat' rIs r ~eisf proides thle 6surances that vAe -iecessir�ffoj Industrdt mvIi . anid at the taiemtneprovide's the -v g ta~inn~x~z hwill ensure that Severouento thdee se(d il A t n coformnce ith"i an express pq~biop It should 1 6 pl~ Unite Sthe that any Law of thle Sea treatsmt uanecs to ebdmnrl ~I- reasonable condition9Ii at tifs thek of preatV iafi tid LY the United St'ates~ tie w4 bI'ttle if &~iyiyii A~ idttvuder, this bill. $. Zlo Ile ni ~rvd ~ ~ a .i 1.~ rik f~ine nsne ti oely directed tow~ 114,11sting international law ageed tobthUntcSt.e i_. :71 is entirely cnsistent -with 6,iistinig jint tiaiton~.I ~a not 'in any way depirie othe stte e a4oTh eisig zit :fast S. 71. is grudd6 9~emenii Ix otiis.() fli'We~oi of the seas" (2') the f ari l~to stat to. reglil~t-e the conduct of Its nfatio ia, andi, 3 oi Aice2of the 968, Gen~p.Cnet0onheig that'the M7'g S A1seas r~easonable reoAi~t th Oets of Sfe'ttwiite' the edo ofte ih es S4t pitp4e J lides a.'statut(ly meaiis for U,$ nationals tv Oerclgse thiei o4 lIea tEy njoy, by vii tue'f their statuii as bear~ 3Wii~lot~ioii of the Uniit&lSteswil delibpratelv .n3 ndatia ~u~h exoei11*wil not, unre.asonably int~Arfere.-withl other, eii$ of the, high1 seas, its definedc by any treaty or conveilfiol to l et Sttes,1 ':~ SatOry or b customnary intemiationafl 366 ,Seco!i, S. ,1 ,, expressly limits its scope to the extraterritorial ligh se:te, Vlulaioon of U:.S. nationals. It does not lpurl)oit ill anlv nlanler to inipro:e reoglation by thle. United States of any kind upon thie antivi- ties of fol'ci,,'n ngionals onl the IHigh Seas, Finil1y, the bill incoriorates the international lna- loctine. (If comity by providing for recognition of the ri,ghts of reciprocatint states v,;i. est:!ljishl an intelim policy and prlactice conlParable to tlhlt (,sa;;l,liswllc by this leeisl.,tion. In thle erelvt that an internaftiollal ar, _c!: lbinadinl Imron thle LUnited States enters into folee' e.stablish- ing a reglme for the development of mineral resources of the deep seabed no licenses shall be issued under this Act inconsistent with the regime. Thus, far from constituting a unilateral act, this leislation inoeipo, rates careful and complete recognition of existing international law while anticipating a new international agreement and specificall,:, provi(lingr that such agreement will supersede this act. RELATONSHIIP TO LAWV OF THE SEA NEGOTIrTONS ' The Administration has continually taken the position tat 'enaet- mnent of S. 713 would "adversely affect progress on the deep seabeds pa well as other aspects of the Law of the Sea negotiation." The Committee completely supports the concept of a Law of the Sea': treaty. We have repeatedly indicated our support of the United States[ position in the current negotiations. The Committee recognizes that the Government must protect a I variety of important interests in the development of ocean law includ- ing our mineral resource interests. We agree that only through a suec- cessful Law of the Sea Conference will the ,world achieve harmorily and stability in the many new and'varied uses of ocean space, inct4,. ing deep sea mining, which are developing right now. Haphazar-a de- velopmlent of international law in this area may not adequately pro- tect our own or any other country's interests in navigation, pollution control, freedom of scientific research and the rational developlmnt of both living and mineral resources of the ocean and seabeds. ':.! Thle basic issue is whether we continue to wait for a treaty andl iisk a lass of American industrial initiatives. The Adminstration spokea- men have stated that a timely and satisfactory Law of the Sea treaty is obtainable. The facts do not bear this out. The United Nations Sea- bed Committee spent many sessions in preparatory work but failed to make significant progress toward agreement. The Law of the Sea Conference. now in session in New York, consists of some 150 nations of widely disparate views. The issues are not confined to the question of the deep seabed but include navigation rights of several kinds, fish- eries, Continental Shelf resources, and a multiplicity of subissues. As one might expect, there is no sign of inmminent agreement. The Administration has indicated that the portions of the single negotiating text developed at the 1975 Geneva Session dealing with seabed mining are totally unacceptable to the United States. The Comrn. mittee completely agrees. Two of the Congressional delegates to the New York session, Re'p resentatives MecCloske and Gilhnan. have filed a very comprehensive report on the first 4 weeks of the session. Their report points out the chances of final agreement by May 7, are very slim and the chances of ser.riols deadlock are very great. (The report is printed in full in ApInen(lix I of this report.) .. . The Committee has concluded that we can no longer delay in our own national efforts to create conditions conducive to the recovery of the resollrces of the deep senlbed. e cannot accept the same old .story from the treaty negotiators that pro(gress is greater than ti ap'pairs and that success is just around the corner. The Committee 'firmly; believes that S. 1134 i.s consistent with our national interest in deve6lop- ing new1 sourlces of minerals and is qwt in.aconsistent with our long-term national coal of a broad international agreement ofi a new system of Law of the Sea. 367 SENATE BILL 713 94th Congress 2nd Session Section 2. (a) FINDINGS.--The Congress finds-- 1 (1) that the Nation's hard mineral resource requirements will continue to expand in order to supply national industrial needs and that the demand for certain hard minerals will in- creasingly exceed available domestic sources of supply; (2) that, in the case of some minerals, the Nation is total- ly dependent upon foreign sources of supply and that the acqui- sition of mineral resources from foreign sources is a substantial factor in the national balance-of-payments position; (3) that the national security interests of the United States require the availability of mineral resources which are independent of the export policies of foreign nations; (4) that there is an alternate source of supply of certain minerals which are significant in relation to national needs contained in the manganese nodules which exist in great abun- dance on the ocean floor; (5) that to the extent that such nodules are located out- side the territorial limits and beyond the Continental Shelf of any nation, the nodules are available for utilization by any nation with the ability to develop them; (6) that United States mining companies have developed the technology necessary for the development and processing of deep seabed nodules and, given the necessary security of tenure, are prepared to make the necessary capital investment for suchi development and processing; and (7) that the increasing complexity of the world's problems has required the nations of the world to become more interde- pendent, especially in such matters as the resources of the land and the sea, transportation and communication, food, pop- ulation, human rights, arms control, world order under law and cultural relations; (8) that solutions to the problems of and linterdependent world requires a reciprocal recognition by all nations of the legitimate interests of one another; and (9) that it'is in the national interest of the United States to utilize existing technology and cpabilities by pro- viding for interim legislation which will authorize investment guarantees and insurance in order to encourage further efforts to insure national access to available deep seabed hard minerals and to provide the means whereby the national program may be merged into an international program which evolves from negot- iations on the Law of the Sea resulting in a treaty which is subsequently ratified by and becomes binding upon the United States. (b) PURPOSES--The Congress declares that the purposes of this Act are-- (1) to establish a national program to promote the orderly development of certain hard mineral resources of the deep sea- bed, pending the establishment of an international regime for that purpose; and (2) to insure the establishment of all practicable requirements 368 necessary to protect the quality of the marine environment to the extent that that environment may be affected by deep seabed hard mineral mining development. DEFINITIONS Section 3. For the purposes of this Act-- (a)"Secretary" means the Secretary of the Interior; (b)"deep seabed" means the seabed, and the subsoil thereof, lying seaward and outside the Continental Shelf of any nation; (c)"Continental Shelf" refers to the seabed and the subsoil of the submarine areas adjacent to the coast of any nations (including the coasts of islands), but outside the area of the territorial sea, to a depth of two hundred meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (e)"hard mineral" or "hard mineral resources" refers to nodules or accretions containg, but not limited to, iron, manganese, nickel, cobalt, and copper; (m)"reciprocating State" means any foreign State, designated by the President as a State with requirements and procedures comparable to those of the United States under this Act, and which has undertaken to recognize licenses issued under this Act; and ACTIVITIES PROHIBITED Section 4. (a) Except (1) as authorized pursuant to the pro- visions of this Act, including subseation (b) hereof, (2) as authorized under alicense issued by a reciprocating State, or (3) as may be authorized under a treaty, convention, or other international agreement, which is ratified by and binding up- on the United States, no person subject to the jurisdiction of the United States shall engage directly or indirectly in the development of hard mineral resources of the deep seabed. The prohibition of this subsection does not apply to equipment engi- neering development, prospecting, or scientific research, nor to the rendering of contractual engineering construction, or other service, not amounting to actual exploration or commercial recovery, nor to the furnishing of machinery, products, supplies, or materials to any organization or person lawfully engaged in such development. Provided, That the development does not infringe upon a license recognized as exclusive under the pro- visions of section 5(b) hereof. LICENSE TO DEVELOP Section 5 (a) GENERAL--Pursuant to the provisions of this Act, the Secretary shall accept applications from, and issue licenses to, eligible applicants for the development of hard meineral resources of the deep seabed....Before he may issue a license 369 the Secretary must first determine, in the consideration of each license application-- (1) that the applicat is financially responsible and has demonstrated the ability to comply with applicable laws, regulations, and license conditions; (2) that the operations under the license will not unrea- sonably interfere with other reasonable uses of the high seas, as defined by any treaty or convention to which the United States is signatory, or by customary international law; (3) that the issuance of a license does not conflict with any obligations of the United States, established by treaty or other international agreement: and (4) that operations under the license will not pose an unreasonable threat to the integrity of the marine environ- ment and that all reasonable precautions will be taken to minimize any adverse impact on that environment. (b) NATURE AND DURATION OF LICENSE--(l) Subject to the provisions of section 12 hereof, any license issued pursuant to this Act shall be exclusive as against all persons sublect to the jurisdiction of the United States or of any reciprocating State, and shall authorize development of the hard mineral re- sources of the deep seabed within specified blocks thereof: Provided, That in no event shall any license issued under this Act authorize the commercial recovery of such resources prior to January 1, 1977: And provided further, That, except to the extent that such licenses are authorized pursuant to the provisions of a future international aqreement ratified by and binding upon the United States establishing a regime for the development of the international seabed area beyond the limits of coastal State territorial or resource jurisdiction, no licenses shall be issued under this Act subsequent to the date on which such international agreement shall be ratified by and become binding upon the United States. INTERNATIONAL REGIME SECTION 12. At such time as a future international agreement, providing for the establishment of an international regime for the development of the hard mineral resources of the deep seabed, shall be ratified and become binding upon the United States, no additional licenses shall be issued pursuant to this Act, To the extent that they are consistent with the provisions of the international regime, licenses previously issued shall continue in effect, and, to the extent possible under the inter- national agreement, the United States shall exercise its rights and responsibilities under the agreement to insure their contin- uation under the international regime. 370 INVESTMENT GUARNATY SECTION 13. To the extent that a future international agreement, ratified by and binding upon the United States, shall differ from the requirements of this Act, the United States shall pro- vide the licensee with compensation in an effectively relizable form representing the reduction in value of the investment re- sulting form imposition of differing requirements or loss of rights granted under this Act: Provided, That-the liability for compensation shall, until after an authorization for commer- cial recoery has been granted, be limited to compensation in relation to equipment and facilities utilized for exploration purposes: Provided further, That the Secretary of Commerce shall determine in the first instance the amount owing on the claims for compensation under this section: Provided further, That after an authorization for commercial recovery has been granted, the value of the investment shall be determined by subtracting from the value of the original investment any gross profits realized from development and processing operations: And provided further, That the liability under this section shall terminate t~n years after commercial recovery has begun. INVESTMENT INSURANCE SECTION 14. (a) On annual payment by any licensee of a premium to be determined by the Skcretary of Commerce, utilizing stan- dard insurance practices and based upon the relative risks involved, the United States shall insure the licensee, in an amount not exceeding the value of the investment, for any damages suffered through the impairment of the insured invest- ment, or through the removal of hard minerals from the licensed block, by any other person against whom a legal remedy either does not exist or is unavailable in any legal forum to which the licensee has accesss. The Secretary of Commerce shall de- termine the amount owing on any claim for reimbursement under this section. (b) Insurance under this section shall be available solely upon the request of the licensee and after the Secretary of Commerce has determined that the insurance coverage requested is not readily available at a reasonable price elsewhere. RECIPROCATING STATES SECTION 19. (a) The Secretary shall, in promulgating regulations under this Act, attempt to harmonize his regulations with the laws, regulations, or other of ficail acts of any other State which has enacted legislation or regulations or taken, pursuant ti its own laws and procedured, equivalent official act-, for purposes similar to those of this Act. When the Secretary finds, in consultation with the Secretary of State, that the laws and regulations of the United States and similar actions by any other State are in essential harmony one with the other, such other State shall be deemed to be a reciprocating state for the purposes of this Act. 371 (b) Any license or similar legal entitlement issued by a reciprocating State shall be accorded equivalent legal status as though it were issued by the Secretary: Provided, That the reciprocating State accords the same legal status to licenses issued by the Secretary: Provided further, That sections 13 and 14 of this Act shall not apply to persons subject to the juris- diction of the United States in respect to mining licenses or similar legal entitlements issued to them by a reciprocating State. NOTES Bills similar to Senate Bill 713 have been introduced in the last several sessions of Congress. In the 94th Congress Senate Bill 713 and a comparable House bill were both reported out of committee but never came to a vote. Deep seabed legis- lation was again introduce in the 95th Congress. ADDRESS BY SECRETARY OF STATE HENRY KISSINGER TO THE 1976 ANNUAL MEETING OF THE AMERICAN BAR ASSOCIATION printed in, REPORT ON THE DEEP SEABED MINERALS ACT, COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, No. 754, 94th Congress (1976) pp. 35-41. The issues before the Law of the Sea Conference cover virtualy ever ara and aspect of man's uses of the seas, from the coastflne td th"erfa'rt'hest'deep seabed. Like the oceans themselves, tee~aiu issues are interrelated parts of a single entity. Without agreement.,,* all the issues. agreement onl any will be empty, for nations w'ill not 4- ~vept a partial solution-all the less so as some of the concessionis that ,117ve been made were based on the exectation of prors on the' 'issues which are not yet solved. TOe deep. webed-s ` -~' 4'h~thid.,andthemost complex Anvil isurmiigifo the ,Conference is the problemr of the deep seabeds. J-':- 'For decades, we have known that the dee p seabeds contain gre~i potential resources of nickell manganese, WIal adopper seoturc wle~cessiblitf ouldcontribute'significantfly to g- iobal ecotoi1- ~troth i th future. It Ls only-recently that the technology has eer aieve1loped. which can enable us to reach those deposits anadieta4t them.;- TheConerece as ot et-approdched agreement lon'the iseo h d~p-seubeds Ieas 6t a on~fronted serious philosophical disagrec- Rne"Ut&Some801 have ar;~ubt that commerciatl exploitation unfre~trainiecl by international ATrialy would be .,in the bbstint~erests of, the ThUteld Stites. Ini faet~this cot~ritty is'many years ahead of; any other in-the Itechnology of deep se nfinin, ad we are in all respects'preparedia protec't -our interestin. If the dIeip'seabeads are not subject to bitte~g-, tional agreement the United States can and -will proceed to exPlor...... mine on'its own. -_: 372 First., to ensure an equitable decisionmaking system, the United, States cofiiinuies to believe that the Treaty should authorize theP fo rmation i f an International Seabed Resource Authority to supervise exploration and development of the deep seabeds. ThIe Authort would be comprised, of four principal organs: An Assembly~ ofal member stae,Al to give, general policy guidance; a Council, to serve as the executive, policy-lv'el and main decisionmaking forum, setting operational ,aid environmental rules for mining, and supervising the contracts for deep seabed mining; a Tribunal, to resolve disputes throll'yl ],!-a processes; and a Secretariat, to carry out the day-to-day admulnirti .irve activities of the Authority. Tihe IUnited States proposes: ill order to preserve all those rights, regardingp the uses of the sea's. w~lch ".11 ntsdethe conipetplnce of the.;Aulthoritv dtoai ny.'i -jur isdict ion il overlap wvith. other international ortsraiiizatiojis; --h1at th 1W (011posit ion andl structure of the Council reflect thre pro- -ducecr and oonsaxaner interests of those states most concerned with se4ab:ed mining. All uations whose vital. national economic concerns; a re aflectedl by decisions of the Authority must have a voice and influence in the.Council commensurate with their interests; and Tht teprpsderaetsabed Tribunal acd'udieate quest ions - of inteijrotat ion of the Treaty and of the powers of the International4. Airthbraty rai.~ed by parttie to the Treaty or by private coxnpajiqkvs~"- engaged in sieabed mining. W~ithout~a Trib~unal, u~nresolved contentionl~~1 is a 4ertail~. Y. Such a body will be necessary if any seabed proposal is, to -W.in wide acceptancee.. Second, to finsure that all1 ijations, develol~d and developing, hate.> adequa4te acceess to seabed mining~ sites: The Tlnit,~tl States proposes that the' .Treaty should guarantee' nondliscrimrinatory access for states and their nationals to deep seabed re.sources. under, spec ified :and reasonable coiiditions. The 'lqireet Of guaraniteed af-ces,, will not be met if the Treaty containsaribritraiVv or restriet~v'e limitations onl the miumber of mainie sites which any nation mih.exploir. BAnd suc(1 restrictions are unnecessary because, deep seabe~d rn'ining cannot be~ monopolized. there -are many more produ-110 tive seabed -fining sites than conceivably can, he nmied for centuries to come.. The TViit(.l States accepts that an "EnterpriSe" should be estab- limishe as pairt of the Liternational Seabed 'Resource Authority~and ~ five th- riglt to exploit the deep seabeds under the san-I conditional na.; apply to ill nuaniang,. Tic I nied States could accept as part, of anl overhall settlement, . sx stem ill w Ii ih prinme mining Sites are reserved for exclusive ex- PlOitation Iy the Enterprise or by the dev-eloping~ countrie.9 directly- if this 'ipprcoael meets wvith broad support. Under this systeni. eacli indivjduarl oontnwltor would propose two inine sites for exploitations The limtioriiv wvould then select one of thiese( Sites wvhichi would be mined hs f Au~~.w thoritv directly or made atvailable to developing couli- trcq at. It 1i:s,-retion. The other site would be eauted by the (contractor oil his ow,! The TTr red stat pi,(POSOS that, the international -Authority, should .13p11.VITIS ft -.ston of r'uesharlng from minling~l ac-tivities, for the III(- of tin "aerrtl tioiial conifiumnlity. primnarily for the(, nleods of the l~u~cstconnntrcs.TIeso reeuswl o ny advtinve the grrow~th of deo c'opffrs '-onintries.- thev IN-ill provide tanlgible evidence that a fair 'hares mia Ylo'hal senoInic activ ity canl be achieved byI a policy of eo- (nperatlon. ltm-41111( sliming couldl be based either on royatlties or (on a, svstni d' roll' mhaiuzfrom conltract retilig Sitch a system wvould _,Vive 'fluthe (]Inigtation of the dle",p seab11eck as time comilonlIeil talge of l i kd Fiiily lic Uin Iited States is prepared to makrie a major effort to en-. hanc th ~klland ticoess of developing countries to. adlvnncedl deep'" seabed rining-, technnologrv in order to assist, their- cpabilities inl thils' fileld] For cxanmplc iincentives should i~e establishied for private, (,oanD- l'fIMMOS to J)Irtiv ipate il) agrpelllnts: to share technologgy anda ftrain pr-~ 373 But while such a course might bring us a short-term advantage1 it poses long-term dangers. Eventually any one country's technical skills, are. bound to be duplicated by others. A race would then begin, to earve -out deep sea domains for exploitation. This cannot but escalate into econoinic, warfare, endanger the freedom of navigation, and ulti, juately lead to tests of strength and military confrontatfons. America would niot he true to itselft or to its moral heritage, if it accepted -a world in which might makes right-where power alone decided th6: (iAdk of ilitcel~ts. Anld, from a practical standpoint, no one recognize4., 11101re cicarly than Americanl industry investment, access, adpB can best he protected in an establishing and predictable, environment. On tho other hand, there are those who would place all the deep seabed's n~wreoiu's uender an international authority. Su~ch a proposal %Yould rnot provide adequate incentives and guarantees for those na- riofis whwio technological achievement and entrepreneurial boldness are re(1luired if the deep seabes are to benefit allinankcind. It woold -i ve coi--' ro', to those who do not have the resources to undertake deep seabed milliag. 1,et in brelv riew the specific issues baf or6 us and then set forth.' Firnit, Cie decision-umak-ing machin~ry for nilanaging~the deep- sea.,,b' be (1.~There bti-s benconsderbl debate over the form and the po wer's of th decii~ n'~kng mchiney esal~lshedunde theTreaty. JI~-The i'"it States is In laed to accept international 1111c~hinery~ hut schel xnu'ch'inoy Triust beblneequitable, and ensure that thc" relative, (;cIonomie initeres~ts of the countries with Iimportant activities-- in tie deep~ Seabeds be prote-te-d, -even though those co-untries. may be Second, access to the deep seabeds. The Conference has been strug- gling. Aith the issues of -which nations, which firms, and"which initerna-' tional authorities'will have direct access to, and share in the benefits"' from the developing of deep seabed resources. 'The iUnited States understands the once ththe rice of the sea not be the eclusiv preserve of only the most powerful and technologically advanced na-. tions. We recognize that the world community should s'hare In 41 benefits of deep, seabed exploitation. What the Ijuited States cannot accept is, that the right of access tor seabed mninerals be given -exclusively to an international authority, or' be so severely restricted as effebtively to deny access to the firms of any1* individual nation including our own. We are gratified to note an in- creasing awarenes of the need to avoid such extreme positions and to move Inow to a genuine accommodation that would permit reasonable assurances to all states and their nationals that their access'to' these resources Nvill not be denied. Third, the effect of seabed mining on land-based produccrs.L; d; based producers of-seabed minerals are concerned that. searned pro- duction maty adversely :affect their national economies. This is an especially mierious problem since many of these producers are pool!" developing countries. We tako these concerns seriously. But at the safne time it must be recognfized that commercial seabed production of these metals. is At, least five years away. For many years thereafter, seabed production will amount to only a- fraction of total global production. Moreover,. global ne~tal. Markets are expanding and shouild easily be able toi accommodates additional produetioni., from the seabeds -without d versely afflicting revenues'of land-base'd producer iwountries The United States is prepared to make a major efdfort to resolve ' these issues equitably and to bring the Law, of the Sea Conference to' a swift ald successful conclusion. In this spirit, the United States~' offers the follIowing proposals. 374 Third, in response to the legitimate concerns of land-based proi', ducers of minerals found in the deep seabeds, we offer thle followings steps as an additional major contribution to the negotiations: The United States is prepared to accept a temporary limitation, for a period fixed in the Treaty on production of the seabed minerals tied to the projected groiwth in the world nickel market, currently esti.-; mated to be about 6 percent a year. This would in effect limit produo- . tion of other minerals contained in deep seabed nodules, ineludi, R copper. After this period, the seabed production should bed govi~rii by overall market conditions. The United' States prqposes that the International Seabed Au- thority have the right to participate in any international agreements : on seabed-produced commodities in accordance with the amount I: t, production for which it is directly responsible. The United Statesi'i-s' prepared to examine with flexibility the details of arrangements con- cerning the relationships between the Authority and any eventual commodity agreements. The United States proposes that some of the revenues of the Inter- national Seabed Resource Authority be used for adjustment assist.-i, ance and that the W'arld Bank, regional development blanks, aind o international institutions assist countries to improve their comlpeitifiei,- ness or diversify into other kinds of production if they are seriouslfy injured by production from the deep seabeds. An hrbent task of thelIn-: ternational Authority, when it is established, will be to devise an ad-0 4 justment assistance program in collaboration with Other international i institutions for countries which suffer economic dislocations a. a. re- s__ult of deep seabed mining The United States believes that-the wvorld community has befoire it a grave responsibility. Our country cannot delay in its efforts to% develop an assured supply of critical resources through our deep sea-t bed mining projects. ate strongly prefer an internatlInal agremelttie : to provide a stable legal environmnent before such (levelflynlelit blegins. one that ensures that all resources are managed for the good of tilhe global cormmlmity and that all can participate. But if an agree'neiit 's-! lot reached this year it will be increasingly diffcult to resist presstlre!i, to proceed unilaterally. An agreement on tlie deep sealbed can tiri. the world's interdependence from a slogan into a reality. A s.else :f;' communitvy hich nations have striven to achieve ou landt for cl'li ttllies cll](l lie realized in ._egime for the oceans. NOTES 1. The developing countries, earlier named the "Group of 77" but now consisting of over 115 members,are primarily interested obtaining a share of deepsea mining proceeds. They also desire to protect their members who are land based producers of the minerals found in the nodules. 2. The most difficult issue in the Law of the Sea Conference deep seabed negotiations has been the question whether an inter- national group would have authority to conduct mining operations and whether that authority would be exclusive. The developing countries are afraid that given the high capital requirements of deep seabed mining and the large technological advantage of the United States and a few other countries, mining will be monopolized by a few countries if individual States or private 375 companies are allowed to mine. 3. There are a total of almost 160 nations participating in the Law of the Sea negotiations. Each nation has one vote. Thus the developing countries could easily dominate any issues left to the Authorities discretion since the Authority will have the same voting arrangement. The industralized countries want many aspects of mining to be covered by provisions not subject to such voting. They also want a subgroup of the assem- bly! with voting power reflecting respective economic interests to be given primary decison making authority. 4. A deep seabed mining operation requires an investment of $350-650 million and annual operating costs of $100-160 million. Annual net revenues of $40-60 million per operation are expected. If individual States or private companies conduct operations a percentage of their revenues would go to the Authority. No specific royalty has yet been proposed. 5. Although the quality of mining sites varies, there are considered to many more productive sites than can be mined in many centuries. Mining companies presently plan to recover nickel, copper, cobalt and some manganese from the nodules. The lion's share of the economic return comes from the nickel recovery. The impact of these new supplies on the world market would be significant. Each full scale mining operation could produce almost 10% of the present world consumption of nickel. One of the important issues is the duration, and level of any production quota to lessen the impact on the developing countries that are dependent on exporting these minerals. 6. A two thirds vote of those nations present and voting is necessary for the adoption of any Law of the Sea agreement. Therefore approval on the part of a majority of the developing countries is required since they account for over two thirds of the total votes. 7. After the two negotiating sessions held in 1976 the countries were still at an impasse. Subequent to those sessions a work- shop was set up for futher efforts toward agreement. The fol- lowing are summaries of the proposals that were submitted: Groap of 77 Prosa I Under the paper submitted by the Group of 77acivit into, a contract had not ben concluded. covered by the contract and the extent of the participation The Authority Was. i`ipoWered to determine that, In of developing countries terein, as well as the proper finan- certain parts of the contract 'rea, activities should only cial arrangements. be conducted by it iethet? thrOugh the Enterprise or in Provisions were alio made to cover cases where more association with de noping cturies, the Enterprise having than one application Is received, whereby selection would the first right of irefusal. i considering applications be/on a competitive basi,' and any preference and priority for such area the Authority Was&5*quired to ensure that the would be accorded at a subsequent stage to an applicant developing country or countre would obtain substantial who had previously entered into a contract for a separate I benefits. Reference to the issle of a quota or anti-monopoly stage or stages of operations. The Authority could re- provision was maintained in the text of Workshop Paper initiate the procedure for selection of applicants if, after a No. 1. . '-r specified period and after negotiations had been entered - 376 Proposals by USSR Under the paper submitted by the USSR, the activities in, grated 'under art ! the Convention and must fully the area should be conducted both by States parties and safeguard su chnder Pat Conv eion an tic It directly by the Authority. The Authority would determine safeguard such rights ip'uuant to specificn ti In Part I of the Convention '~eating with scientific research. the part or parts of the area in which it would conduct Patt of the wit h scientific resea che its activities. The Authority's area would not exceed that Authority trasfoul d be:po ditributiven of revenusideration in which activities would be carried out by States parties. ito the interests and need rfi, 4evelopie g countries, partlcu- The activities of State parties would be conducted on the basis of contracts with the Authority and they would iarly the land-locked and ihically disadvantaged. Such come under its effective financial and administrative super vision. States parties might carry out activities through';- :ai, iA i .4I: ' State enterprises or juridical persons registered in and ; : i tle to the resources would be vested in the Contractor sponsored by States. States parties sponsoring such entities at , ffitoment the resourcei were recovered from the area would be responsible for taking all necessary measures to pursuant to a contract. A contract would be entered into ensure that such entities complied with the Convention, its by the Authority if the applicant was qualified by virtue of rules, regulations and procedure adopted by the Authority. his financial standing and technological capability. The All States parties would have equal rights to participate in 'Enterprise and States parties would be presumed to be so activities in the area irrespective of their geographical loca- qualified. An applicant would also he required to submit tion, social system and level of industrial development, and a work programme to the 'Atthprity which would fully take particular consideration would be given to the needs of into account the Authbrity,:rules and rcgulations. All developing countries, particularly the land-locked or geo- contractors would be requif accept the supervision of graphically disadvantaged. , '. the Authority. It was emphasized that the right of States to conduct Subject only to those tr~,ements, the Authority would exploration and exploitation activities in the area followed 1 award a contract; but f it had received simultaneously an naturally from the concept of "common heritage of man- ! application for a contract ln theic same area, the contract kind" since States are juridical representatives of mankind w Would be awarded on a cometitive basis. If no such under international law, and that those rights should there- . competing application were recelved, a properly qualified fore be guaranteed in the Convention itself and not left applicant nwould 'be granted ai.Ccontract within 90 days and to the discretion of the Authority' the Authority would not hay, the right to refuse to enter Furthermore, the system of exploitation would need into such a:,contract if tha;i ancial arrangements criteria to take account of the legitimate rights and interests of set forth in 'paragraph 9 (d) had been satisfied and the the socialist system, being one of the main systems in the ': contract was in all.other respects in strict conformity with world; no sea-bed regime and machinery would be viable the ,Convention and the Authority's rules and regulations. without taking that into account. Although the paper did It would be the obligtiton of the Contractor to provide not contain any qutota clause, it was emphasized that such the funds, materials, etquaipi!t, skills and know-how as a clause should none the less be an integral part of the .. necessary for the conduc:it 3i'erations under the contract.; system of exploitation as presented in the paper. The paper,.made clear tha procdural and substantive - -provisions of .Annex . I rlii to contracts would apply omutatis mutandis to the .nte prise. It was emphasized that the parallel system could6 i'y serve as the basis for a P' compromis if the Enterprii:ere on an equal footing with Proposals by Un4Wed'States I s t . othet appl.ants for Under the paper subimitted by the United States, there '.ii 'the area should be' exclusively by the Authority would be a parallel or dual access system. It was pointed .,: (1): directly thro ugh te rprise in accordance with a out that a parallel system could be a method of accommo- fermined by the dating the interests of /tl States and the international cornm- Autotit, thu a c between the Enter- munity in general,. so ais to best reflect the principle of pris d te i pursuant to a contract P the common heritage of 'mankind.: States parties or other- the purposeiof sectring:.i:t pliance at all times with the entities and the Enterprise would carry out activities in the relevant provisions and ini n the Authority should area directly by entering into contracts with the Authority. exercise land effeciVe, ro over the activities in the All such activities would be in accordance with Annex I areai . . - . and the rules, regulations and procedures adopted by the .,States rties sh the Authority by taking Authority, The Authority would have effective fiscal and measures necessary to se :such compliance. The paper administrative supevision over all activities in the area to t further provided that tei At�hority should avoid discrimi- secure effective comptlince with Part I of the Convention, nation in he exercise l;ti We and functions and that Annex I and the ?futes'and regulations of the Authority. all rights granted o fully safeguarded. Special States parties whd sponsor other entities would assist conslderalit0n fr dountries, includincluding the con- the Authority by taking all appropriate measures to ensure : duct of ctivities by the: in certain parts of ti such compliance. The Authority should promote and area solely in assocdiiat:wlIth them, should not be deemed encourage activities it the area and should avoid discrimi- discriminatr natioil in granting" access and in implementing its powers ' Plexiijlliy rWas : a:itai'd in the provision as to when and functions . title to 'lnerals and prosi'6i: substances could be passed 377 from the,4U$hOrity. The Authority would be required to* thereof. adopt p oj*teadilnistration pcdares, rules ani regu. 'the Au thorit 'eemn stwhen to conduct latlons for M M~dg an application and for the qualifications activities Ift the: ~rh~~scainwth enititles., 2With of ark a~ppicafzt" Such qualifications included financial stand- YesPbcrto, eetn pcns h Auhatywude ing, techrioldiltal capability and' satisfctr pefrac eipwrd on Its Or~ty woultate oruoheciiga under previous contracts with the Authority, if any, In 013pplicati, toit d&~to predres for applicants assessing the qualifications of a State party> its character and to Culs ldd1~konatm-limi11, for receiving as a State should be taken Into account. other npiclos.i '2 Every applicant should be treated on an equal footing Si Sject. t'd fthe boegv , the Authority should enter and would be 2rcequired to fulfil foh:r ;Peciflc requirements- 'Into ngttla ih41Wplcnt on this terms of a the undertakrig to comply with'andf ii cc'epi as enforceable contract, provided tha ant possessed the requisite all the obligations; acceptance oif control by the Authority,* qualifications arid c6 prcdures established satisfactory assurance of fulfilment of obligations in good for applications; that the' iiati on did not relate to thoe faith; the undertaking to promote the Interests of developing i parts of the area retaindd, soll for the conduct of activities countries by-'association or other means. In view of the by the Eirterprise at by" t ii association with the' developing two maln mnethods of operation embodied in article 22, one countries; and that thd,:, trct complied with the resource new paragraph Was added to provide that the procedures for policy and the 1relewaot dcsions of the Authority. The the Enterprise should be governed by such provisions as the terms of a contact f0leieoiated were clearly "act out Authority might 'establish In its rules and regulations and in the text. Thyicueiterespective contributIons of by the Statute of the Enterprise. Its activities should be the Authority'n tetx1ctor in association, including conducted In 'accordance with the resource policy and the the contribution offa4ae ls, equipment, skills and relevant decisions of the Authority in ImPlementation know-how as ~ he conduct of operations Vol. XII, No. 9, U.N. Monthly Chronicle, pp.3- 0(Ot 1976) B. Environmental impact and Regulation of Deep Seabed Mining FRANK, ENVIRONMENTAL ASPECTS OF DEEPSEA MIINING* 15 Virginia Journal of International Law, 815 (1975) , pp. 815-20. The red. cI&Y j~eiment discharged during deepsea manganese nodule cx 'itt6n Points a dasrt "Thufie i~" er ~f ig' ar&a t6 te 6cean a suriface. It 'has been estid 'rated that the sedlm~nt mytake'fiv&$ e'art to settle' 1600 yards downward. If,' 'as is forecast, many companies ultimately mine, the bflue of the ocean"will be turned reddish-brown' over to nis of thousands of square railes,, More importantly, the top layer of a- substantial portioi of the ocean, the so-called "euphotic zone",where photosynthesis gives blrth' to the primary~ organisms in the food charin.,-ma'y'be fundameritafij changed.' Bottom' layers 'might likewise be alteried In some heretofore un-- ktnown manner.2 No'one knows the ultimate implication of these Altera- 'tfions of ntsture,$. Because of the plume arnd various other effects, deepsea. mining will inevitably have a profound impact on the oceans environment. The' basic problem today is tha t neither government, .Industry, nor the environments I community has adequate information to make a'sound judgement of the consequences to the marine ecology'of this new activiIty: e~g., 'whether the consequences are so adverse as to, suggest mnining should not occur, or should be severely limited. I1.Amos, Garilde, Haines, & Roels, Effects of Surface-Discharged Deep-sam Mining IFlfuent, In PsfiAIOMNGANFSP DePPOSITS ON THP OCRANr FLOon 271 (D. Hoirn id. 1972); U.S. De~r T'r~IO, i~A~ 1NVIRONMVISTAL.STAUeMENT PISOPOSED11 FOR UNITFD STrATM INVOLVEMENTr IN LAWN OF 'rTO Z"'~"'MGOTTATIoNs 0ovERNtNa Tinc MWI,46N ot, D)ap SFAII4014AII MINRAL PEESOURCIRS SOA11),ITHP IAMrrS OF NATIONALdbituilpclioN 2.113 ~(1974)' chrl aftr cd', aas 9NvIfON4~,Titf O*AT STATEMPNTIl. 2 2.:tttet h oeslczng nAaedNo94toS18 eoetetbemno Minerala M41tialli And'Fuels of the Senate Comm,: on Interior antd Instane~ A'ffairi, 93d Cong., 2cf Sams, of; At 10192 (1974) [hereinafter cited as Seriate !4earin'sl. 3., Knauss, ocedmI,lAb wni". Status and PrIognostication, In LAW OFTE E INSTITLItTE, EIoii'ru ANNuAL CONPERENes PnocswwI~s 313, 326-27 (1973), *used with permission of the Virginia Journal of International Law Association 378 Unfortunately, no one now understands the environmental implications of mining the ocean's floor. According to the draftlenvironmental impact statement on deepsea mining prepared by the Depaitment of the Interior, there are gaps in techniques of observation of ecological baselines and of -,:; forecasting any natural or artificial change in the ocean environment. -i:' Deepsea fauna are relatively unknown, with a large fraction of species not : ever having been described.' Further, the state of the art of benthic sam : ~ii pling is inadequate to support intelligent decision-mnakiig."' The Depart?.l? ment of the Interior therefore concludes that "sufficient data is not avail '.K able to assess accurately the effects of many of the actions involved in deep? !: seabed mining at this time."" Part of the problem is the inherent difficulty of forecasting environmen- ,. . l tal consequences of a novel activity for which the equipment has not evenI been fully developed. But another aspect is that the executive branch of% the United States Government has not requested adequate funds to under-. :.i: take the necessary baseline studies and experimentation, Although the i:"- environmental impact statement strongly recommends study and experF . ri' mental work," and the National Oceanographic and Atmospheric Admini', .i istration of the Department of Commerce pressed for at least two years to,, seek $9 million of appropriations for a Deep Ocean Mining Environmental! t ' Study, other parts of the executive branch delayed the project. A modest i $3 milliolf appropriation for a more limited study has been requested this i year." In sum, while the government is promoting the development of i deepsea mining, inter alia through the negotiation of a Law of the Sea treaty mentioned below, it has not yet taken those steps necessary to learn Y1�i+ of the ecological consequences of the activity it is promoting.; These ecological consequences may not simply be dismissed because i' they are unknown. For although the adversity of its impact and the magni- ' tude of that adversity is uncertain, it is clear that deepsea nodule mining will have anm impact on the marine environment in various predictable ' ways. For exaiple, regardless of the technique used in mining, sediment i,4Hi 12. PINVIRNMaNTAL IMPACT STATEMENT, suprd note. 1, at 185. 6. : . .. , 13. Id. at 2.141 . ' 14. Id. at 3;:3., ' , A' 15. Id. at 6j;S. ' 16. E.g., i.it'3.7. 17. The strUtgle between NOAA and other parts of the Executive branch is well knowht to the industry and the environmental. communities. However, public documentation of this is unavailable. 379 from the ocean floor will be lifted with the nodules.I" Some sediment ma separate during the ascent to the surface, but most will probably be washed free on board the mining vessel and either discharged over thielide or possibly returned to the sea at intermediate depths through a disiarge: pipe.1 The discharge of sediment creates the dark plume referred Affi'ars lier, and could well fundamentally change the character of the euphot!c, zone in the area.2" One study concludes that mixing deep-ocean watei:and sediment with surface water may cause a stimulation of photoplankton and blooms of organisms which do not normally occur in the pelagic zone of areas overlying manganese nodule concentrations (perhaps because i sediment-associated vitamins).2' Some speculate that such a redistribtt of photoplankton species may be beneficial, or may be irrelevant sinceth 1 areas of the ocean in which presently-projected mining will occur appear to be the least biologically active.22 On the other hand, no one is aware , the full implications of tinkering with such basic elements in the life chaini' Furthermore, the esthetics of changing ocean color aside, aurfsae,. discharged deepsea sediments may well alter light penetration in l.owe' layers and reduce photosynthesis there, leaving effects which are also hee'r tofore.unknown. . : A second impact is likely to result from the disturbance to biologite activity and sediment on the ocean bottom caused by operation of either the auction or bucket system.2' One could argue'that such consequences will have an insignificant impact since bottom rcrrents naturally transfe'r sediment, since most of it will settle, and since ocean bottom areas"wherp. mining is likely to occur have little blologio"activity.2' But again, thej=~i of these fauna in the ocean environment is unclear;' the ocean bott.'~i# , some areas contains long-lived, late pubescent fauna - one benthi-c' i requires 200 years to reach sexual maturityn '- and if large areasmof.the ocean floor are exploited, then the Department of the Interior conclude: that a "serious concern may be found in the preservability of deep-ocean faubti''" and that some types of. mining "could diminish the probability :f soume species reproducing themselves thus leading to a more rapid eal,��' 18. ENVIRONMENTAI. IMPACT STATEMENT, supra note 1, at 3.16 et seq. 19. Id. at 3.21, 3.22. 20. Amos, supra note 1; ENVIRONMENTAL IMPACT STATEMENT, supra note 1, at 2.113. 21. Environmental Impact Statement, supra note 1, at 3.28-9 and 3.332. 22. Statement of O. Roels, Senate Hearings, supra note 2, at 1092, .' 23, ENVIRONMENTAL IMPACT STATEMENT, supra note 1, at 3.28. 24. Id. at 3.16 et seq. 25, Statement of O. Roels, Senate Hearings, supra note 2, at 1092; 26, See ENVIRONMENTAL IMPACT STATEMENT, supra note'l;"at 2.124-27. 27, Id. at 3.10. 28. rd. at 3.4. - 380 tion rate of this unique fauna."29 The Department of the Interior concludes regulation will be required to prevent the "potential damage" of too "ag- gressive" floor mining."? All U.S. mining companies, except one, will apparently extract only copper, nickel, and cobalt from nodules.' After the extraction process, a great deal of waste, including manganese tracings, will be disposed. The huge quantities of manganese tracings and other waste may be dumped on land or in the ocean, but neither the economic feasibility nor the environ- mental impact of either disposal method has been evaluated. An interest- ing analogy may be made to the problem created by the dumping in Lake Superior of low-grade iron ore waste by the Reserve Mining Company?3 Neither the Government nor, apparently, the company was aware that the:: waste contained asbestos elements which, it is now claimed, are carcino- genic.33 A fourth possible consequence could result from the processing of the nodules at sea. Most U.S. companies maintain that they will not process at sea during the early years of mining.34 But no existing regulation or law would prevent such processing, and at least one foreign company has stated it may engage in primary refinement or "beneficiation" of ore at sea because that reduces transport costs."5 Highly pollutive chemicals with heavy alkaline and acid bases are used in such processing, and they will undoubtedly be dumped at the mining site or in nearby areas. Assuming that processing will not be accomplished at sea, the fifth probable consequence might arise in a shift in the location of processing facilities from the "hinterland" to coastal areas. According to the Depart. ment of the Interior, the development of extractive plants near the shore- line will "increase the probability of adverse impact in these areas."" But the nature or magnitude of the adverse environmental impact on the' coastal zone has never been analyzed. 29. Id. at 3.10. 30, Id. at 3.40. 31. Senate Hearings, supra note 2, at 797. 32, See Washington Post, Feb. 23, 1976, at B2, col. 1; United States v. Reserve Mining Co., 380 F,Supp. 11 (D. Minn.), remanded, 498 F.2d 1073 (8th Cir.), continuation of stay of injunction denied, 380 F.Supp. 11 (D. Minn. 1974). 33. TrHIR) MEETING OF 'HE SECOND SErSION OF THE CONFERENCE IN THE MATTER OD POLLUTION OF LAKE SUP'REHIOH AND ITS TRIH1JTARY BASIN IN THE STATES OF MINNESOTA, WISCONBIN AN3n MICItIn;AN. PIoC'EEIEMN(IS (1972); N.Y. Times, Oct. 2, 1974, at 29, col. 1. 34. Statement of M. Dubs on behalf of the American Mining Congress and Keinneeptt Copper Corp., Senate Hearings, supra note 2, at 1016, 1021; ENVIRONMENTAt. IMPACT STATsMENT, supra note 1, at 1.81. 35. Statement of O. Roels, Senate Hearings, supra note 2, at 1094. SrP also Mero., Potential Fconornic Value of Ocean Floor Manganese Nodule Deposits, in FEROALNoANtPs. I)EPOSITS ON TI,, OCUAN FL.ooR 191 (D. Horn ed. 1972). 36(, ENVIRONMKNTAL IMPACr Sra'rEMENTI, supra note 1, at 5.2. 381 Mining systems require substantial amounts of power. The Department of the Interior opines that future systems with large energy requirements may need to utilize nuclear reactors at sea." The potential environmental hazard from reactors is well known; the risks of using reactors at sea for mining have never been explored. The seventh consequence herein exposed is also unknown, for the origin of deepsea nodules is unknown. However, it is most likely that the nodules will play a role in the interface process between ocean water and the ocean bottom." Therefore the removal of the metal nodules may itself have an effect on the basic ocean biologic system. A final environmental concern involves an andromeda strain type prob- lem. The ocean bottom is essentially a self-contained unit; its life does not mingle with the rest of the earth. Deepsea mining will bring up from that unknown world large amounts of ancient sediment containing ancient spores and organisms which may have created strange, alien antibodies which continue to survive. Scientists simply are unaware of what will happen when any such antibodies are set free 'in the new environment. It is possible that they will infect plant life or humans and that we will not have cures. II. THE LAW OF THE SEA R-EcIME In 1970, the General Assembly of the United Nations aclopted a resolu- tion calling for the convocation of a Law of the Sea Conference which would, inter alia, establish a regime covering the mining of mineral nodules in areas beyond national jurisdiction.3 After a series of preparatory meet- ings, the Conference held its first formal session in Caracas, Venezuela, in the summer of 1974 and has held a second eight-week session from March 1l to May 9, 1975, in Geneva. A stated United States objective at the Conference is to promote the establishment of a regin;e under which deepsea mining could commence.'0 The Conference has reached a consensus that there should be an interna- tional Seabed Authority which would regulate deepsea nodule mining.4 But the negotiators have not yet decided upon such basic attributes of the 37. Id. at 1.47. :38. Bonatti, Kraerner, & Rydell, ('Classification and Genesis of Submarine Ircn-Manganese Deposits, in Flil(lHOMAN(:ANESF Di'OSIrTS ON THE OCEAN FL.OoR 149 (D. Horn ed 1972). 39. G.A. Res. 2749, 25 U.N. GAOR Supp. 28, at 24, U.N.Doc. A/8028 (1970). NOTES Debate on both the national and international levels has centered on the economics of exploitation of deep seabed min- erals and the division of the proceeds. The burden of environ- mental protection falls to the following provisions: Senate Bill 713 Section 5....Before he may issue a license, the Secretary must first determine...(4) that operations under the license will not pose an unreasonable threat ot the integrity of the marine 382 environment and that all reasonable precautions will be taken to minimize any adverse impact on that environment. Section 7. The Secretary shall consult with appropriate Federal agencies and departments regarding environmental criteria and shall establish environmental standards based to the max- imum extent practicable on available technical date and scientific data, applied in a consistent manner under the rules and regu- lations of section 18, to which operations under a license issued under this Act shall adhere. The Secretary may from time to time, propose revisions of the rules and regulations regarding environmental standards as available data may warrant. THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA Revised Single Negotiating Text A/Conf.62/WP.8/Rev.1/Part I PROTECTION OF THE MARINE NVIROISeM NT ' With respect to activities in the Area, necessa'ry measur be taken in order to ensure .effective protection for the marine environmei;t . harmful effects which m0r arise from such activities., To, that end the AQ rity shall adopt appropriate rules,.regulations and prodeduresl for int, rli.l: (a) The prevention of pollution and conhtanination, and .:Ot h ,zards to thaY marine environtentt, including the coastline, and of interfereone i h the ecological balahce of the marine environment, particular atten eing paid to the need for protection from the consequences;:of such activiti'S rilling, dredging, exca$"aion, disposal of waste, construction and opi9 or maintenance of installatiotins, pipelines and other devices related,to such'.:ci ies; (b) The protection and' cobnsevation of -the natural resoir.; the Area and the prevention of'damage to the flora' and fauna ofP the marine e!ijri ent. SECTION 5. OTHER PROPOSED USES OF THE NONLIVING AND ENERGY RESOURCES OF THE OCEAN A. Energy from the Ocean The recent realization that fossil fuels are neithrer cheap nor unlimited and the recognition of the high economic and environ- mental costs of nuclear power have prompted a search for new energy sources. Many of the proposed new sources involve the use of the oceans. i.)ocean thermal energy conversion(OTEC)- OTEC facilities 383 would produce electricity by using the difference in temperatures between cold deep waters and the warm surface waters to drive a turbine connected to a generator. Ammonia in a closed system would be heated by the warm waters. This would cause the ammonia to boil. It would expand and pass through a turbine. After passing through the generator cold deep seawater would be used to cool and condense the ammonia. The ammonia would continuously cycle through the system. This is basically the same way that conventional generators work. They employ much more intense heat and convert water to steam to drive the tur- bine. Ammonia is used in lieu of steam in the OTEC facility since the difference between the warm and cold seawater as the temperature difference created in a nuclear or fossil fuel plant. OTEC facilities are presently designed to be movable but they will be anchored to the sea bed at the operating site and will be almost totally submerged. A pipe 25-50 meters in diameter and 500-1000 meters long will be necessary to transport the cold water up to the surface. Much of the present research is directed to the locating of potential sites. The areas off the Southeastern states have been identified as potential sites. The best sites appear to be in the tropics several hundred miles form shore. Two primary environmental effects are anticipated from OTEC facilities. The first is a slight reduction in the temper- ature of the surface waters around the plant. This change may have some secondary effects. For example, it has been suggested that down wind rain may be reduced due to the lower amount of evaporation from the cooled waters. The second impact results from the introduction of nutrients in the deep waters into the warmth and light of the suface. Observations of natural upwellings and experimentation suggests that this impact may provide an excellent setting for mariculture. (ii) wind-A strong and constant wind is needed for power production. A constant wind is important since it is expensive to provide back-up power for times when winds are calm. Wind velocity is important because the power content of wind is proportional to the cube of wind velocity. Thus when wind speed doubles, power output increases eight times. Good winds are found in several offshore areas and there have been several proposal for the construction of floating windmills. Particularily good winds are found at the edge of the Continental Shelf offshore from North Carolina to the Canadian border. It has been proposed that the country could meet a 384 large part of its energy demands by constructing about 3000 of these windmills along the Atlantic coast. It is claimed that the cost of the power would be one half that of nuclear plants. (iii) other proposals include the construction of devices to capture the energy of waves both along the shore and in deeper waters; the production of power by using salintiy differences; and plans to make use of the energy in tides and currents. B. Water Column Mining There are many minerals dissolved in seawater and the total amount of these minerals is almost unlimited. A common problem in the recovery of any of these minerals is that they are gener- ally present in such minute concentrations compared to land based ores that extraction costs are prohibitive. In the past some bromine, salt and magnesium were produced from seawater. Today only magnesium and a small part of salt production are derived from seawater. It would take a major breakthrough in technology to make seawater mining of other elements eco- nomically feasible. C. Other Proposals Other proposals for use of the ocean include floating airports, artifical islands, and cities at sea. 385 CHAPTER FOUR MARINE POLLUTION CONTROL SECTION 1. INTERNATIONAL LAW The international law of marine pollution is derived from several sources. The custom and practice of civilized nations is one such source. Where no convention or treaty controls, authorities look to custom and usage to determine international law. Principles of customary international law which pertain to marine pollution are found in two opinions. In the Trail Smelter Arbitration, 3 U.N. Rep. Intl. Arb. Awards 1905 (1949), 35 Am. J. Int'l. L. 684 (1941), the tribunal held that states had an obligation not to use their territory in such a way as might damage their neighbors. The International Court of Justice has likewise held that States have an obligation not to knowingly allow their territory to be used for acts which will be harmful to the rights of other states. Corfu Channel Case, (1949) 1 C. J., Rep. 4, 22. These principles would seem to prevent a nation pol- luting its waters to the extent that the polluting activity causes serious harm to the rights or territories of other nations. As the following materials indicate, the law of marine pollution control is now primarily governed by public international agreements. 386 UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT, REPORT, U.N. Doe. A/CONF. 48/14 (1972) "Principles"~ 7. States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human healIth, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea. 1958 GENEVA CONVENTION ON THE HIGH SEAS, April 29, 1958, 450 U.N.T.S. 82 (effective for United States Sept. 30, 1962). Article 24 Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject. Article 25 1. Every State shall take measures to prevent pollution of the seas from the dumping of radio-active waste, taking into account any standards and regulations which may be formulated by the competent international organizations. 2. All States shall co-operate with the competent international organizations in taking measures for the prevention of pollution of the seas or air space above, resulting from any activities with radio-active materials or other harmful agents. 387 Allegrone, MARINE OIL POLLUTION: THE EMERGING REGIME FOR THE ENFORCEMENT OF VESSEL SOURCES OF POLLUTION (unpublished seminar paper 1976) . . . The 1958 Convention on the High Seas, established at the First Law of the Sea Conference in Geneva, set out the basic rights of states to enforce oil pollution laws.4 The 1954 International Convention for the Prevention of Oil Pollution was amended twice, once in 1962 and again in 1969; these conventions established zones in which oil could not be discharged and set down standards for showing a violation.5 Also in 1969, two United Nations conventions were passed, the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties,6(the so-called Inter- vention Convention), which gave coastal states the right to intervene if such action was necessary to eliminate harm to its coastline, and the International Convention on Civil Liability for Oil Pollution Damage,) (the Civil Liability Convention), which was the first attempt by governments to adopt uniform international rules and procedures for determining questions of liability and providing compensation to persons affected by oil from ships. Growing demand for sufficient liability coverage for oil pollution damage lead to three significant agreements in the early 1970's. In 1971 the United Nations agreed upon the International Oil Pollution Compensation Fund, (the Fund Convention) which would serve to supplement the Civil Liability Convention. In the same year, the private sector entered the field with two agreements which would serve to provide liability coverage while the Civil Liability and Fund Conventions were being ratified; they were the Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution (TOVALOP)9 and the Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution (CRISTAL),10 where 4Article 24 states: "Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships . . . taking account of existing treaty provisions on the subject." 13 U.S.T. 2312, T.I.A.S. 5200. 5Council on Environmental Quality, Fourth Annual Report 332. 9 Int'l Legal Mat'ls 25 (1969). Entered into law 6 May 1975. 79 Int'l Legal Mat'ls 45 (1969). Entered into law 19 June 1975. 811 Int'l Legal Mat'ls 284 (1971). The Fund Convention has a two-fold purpose: l)to provide compensation to the victims of oil pollution who have suffered damage to the extent that they fail to be protected by the Civil Liability Convention, and 2) indemnifying shipowners and their insurers for the additional burdens which the Civil Liability Convention imposes on them. The Civil Liability Convention's maximum damage recovery is $14,112,000. The Fund Convention will extend compensation up to a maximum of $32,400,000 (or up to $64,800,000 if 2/3 of the IMCO Assembly so votes). For more detail see, L.F.E. Goldie, "Liability for Oil Pollution Disasters: Inter- national Law and the Delimitation of Competenses in a Federal Policy", 6 J. of Maritime L. and Gomm. 303 (1975). 9 8 Int'l Legal Mat'ls 497 (1969). 10 G. Houston Lay, New Directions in the Law of the Sea, Vol. II, Documents, (1973) at 646. 388 the cargo owners agreed to supplement the tanker owner's funds. Finally, and most importantly, the Inter-governmental Maritime Consultative Organization Convention for the Prevention of Oil Pollution by Ships was passed in 1973.12 This convention set new oil pollution standards and explicitly chose neither to permit nor forbid individual nations from passing stricter measures than the Convention.13 Upon entry into force it will replace the 1954 Convention as amended. 11 It is anticipated that both TOVALOP and CRISTAL will probably end when the Civil Liability Convention and the Fund Convention become law. The Civil Liability Convention entered into force on 19 June 1975 and the Fund Convention should receive a sufficient number of ratifications soon. 12 12 Int'l Legal Mat'ls 1319 (1974). 13 Dennis Livingstone, "Oil on the Seas", 16 Environment 38, (Sept. 1974) at 41. 389 !.ERiATIONAL CONFERENCE ON MARINE POLLUTION: INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS* [Done at London, November 2, 1973] INTERNATIONAL CONVENTION FORI THE PEJENPTI0N OF POLLUTION FFlOM SHIPS, 1973 TeXt of the Articles of the Convention as adoted by the Conference TDE PARTIES TO THE CONVEnTION, BEING CONSCIOUS of the need to preserve the hutLan environrlent in general and the marine environment in particular, RECOGNIZING that deliberate, ne-,liC;ent or accidental release of oil and other ha.aful substances from ships constitutes a serious source of pollution, RECOGNIZING ALSO the importance of the International Convention for the Prevention of Pollution of the Sea by Oil, 1954, as being the first nulti- lateral instrulent to be concluded with the prime objective of protecting; the environe~ont, and appreciating the significant contribution which that Convention has made in prcservinc the seas and coastal environment from pollution, DESIRING to achieve the complete elimination of intentional pollution of the marine environment by oil and other hanMful substances and the minimization of accidental dischar.;e of such substances, CONSID1TING that this object nay best be achioved by establishing rules not linited to oil pollution having; a universal purport, HALVE AG.ULMD as follows: *[Reproduced from I.M.C.O. Document MP/CONF/WP.35 of November 2, 1973. [The Convention will be opened for signature from January 15, 1974 through December 31, 1974. The Convention includes five annexes and two protocols. Annexes III, IV, and V are so-called "optional annexes", and a state may declare that it does not accept any one or all of these. Annex I (p. 1335) concerns the regulations for oil pollution prevention; Annex II (p. 1386) deals with the control of pollution by noxious liquid substances; Annex III (p. 1421) contains the regulations for the preven- tion of pollution by harmful substances carried in packaged forms; Annex Iv (p. 1424), the regulations for the prevention of pollution by sewage from ships; Annex V (p. 1434), the regulations for the prevention of pol- lution by garbage from ships. Protocol I contains the provisions for reports on incidents involving harmful substances, and Protocol II con- cerns arbitration. 390 ARTICLE 3 Application (1) The present Convention shall apply to: (a) ships entitled to fly the flag of a Party to the Convention; and (b) ships not entitled to fly the flag of a Party but which operate under the authority of a Party. (2) Nothing in the present Article shall be construed as derogating from or extending the sovereign rights of the Parties under international law over the sea-bed and subsoil thereof adjacent to their coasts for the purposes of exploration and exploitation of their natural resources. (3) The present Convention shall not apply to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on (;overrrent non-connmercial service. However, each Party shall ensure by the adoption of appropriate measures not impairing the operations or operational capabilities of such shins owned or operated by it, that such ships act in a manner consistent, so far as is reasonable mad practicable, with the present Convention. ARTICLE 4 Violation (1) Any violation of the requirements of the present Convention shall be prohibited and sanctions shall be established therefor under the law of the Administration of the ship concerned wherever the violation occurs. If the Administration is informed of such a violation and is satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, it shall cause such proceedings to be taken as soon as possible, in accordance with its law. 391 (2) Any violation of the requirements of the present Convention within the jurisdiction of any Party to the Convention shall be prohibited and sanctions shall be established therefor under the law of that Party. Wienever such a violation ocours, that Party shall either: (a) cause proceedings to be taken in accordance with its law; or (b) furnish to the Administration of the ship such information and evidence as nay be in its possession that a violation has occurred. (3) Where information or evidence with respect to any violation of the present Convention by a ship is furnished to the Ad.linistration of that ship, the APd:inistration shall promptly inforLi the Party which has furnished the information or evidence, and the Orjganization, of the action taken. (4) The penalties specified under the law of a Party pursuant to the present Article shall be adequate in severity to discourage violations of the present Convention and shall be equally severe irrespective of where the violations occur. "' ' # ltl~ultion - Control of Dischayrkof Oil (1) Subject to the provisions of lLcelations 10 and 11 of this Annex and p.rauirai,h (2) of this. Reulation, any discharge into the sea of oil or oily uixtures fron ships to which this Annex applies shall be prohibited except when all the following conditions are satisfied: (a) for an oil tankier, except as provided for in sub-paraLTaph (b) of this para;,Taph: (i) the tanker is not within a special area; (ii) the tanker is .oro than 50 nautical niles fror. the noaroest land (iii) the tanker is proceedin3' en route; isL . _ ., ...... _ ..._.__._- ..._ ..._..392 392 (iv) the instantaneous rate of Oischar~c of oil. content does not exceed 60 litres per nautical nilq; (v) the total quantity of oil disch'ar.r1'd into the sea 0.oes not excodt' for existinC tankers 1/15,000 of the total qumitity-of the particular oar~co of which the residue formee a part, anJ for new tanlkers 1/30,000 of the total quantity of the particular car,-o of which the residue forncd a part; andt (vi) the tanker has in operation, except as provided for in iie uation 15(5) of this 'Aiiex, an oil dischareo monitorinC ruW. control systom an(! a slop taic& arrangceent as required by RoLlation 15 of this Annex; from a ship of 400 tons Lross tonnna-,e and above other than an oil tanker and fron machinery space bilCvs oxcludinZ; car~o puap roorn bifces of an oil tanker unless mixed with oil crro residue: (i) the ship is not within a special area; (ii) the ship is more than 12 nautical niles from the nearest 1and; (iii) the shi]p is procecoina on route; (iv) the oil conVtnt of the effluent is luos t1vfnl 100 parts per ni~ii; (v) thc ship has in operation an oil dischar-;e nonitoring Mn., contn'l sy4tem, oily water separating equipment, oil filtcri .,- ssten.i or other installation as required by Re~ulation 16 of this Annex. (2) In the case of a ship of less than 400 tons -ross tonnaee other thwi an oil tanker whilst outsi'e the special' area, the Adijinistration shall oensure thai it is cquil)pod as far as practicable ane. reasonable with installations to onuurv the storxac~ of oil residues on 'board and their Llischar~o to reception facilities or into the soea in compliance with tho requirumonts of para!rph (l)(b) of this R c.ulat ion. (3) Wheonevr visible tracers of oil are observed on or balol',!the surface of thel water in the iimmediate vicinity of a ship or its Walk, Goveinenta of Parties to the Convention shouldO, to the extent they are reasonably able to Jo so, pror4ptly investigate the facts bearingi on the issue of whether there. Ms been V, violation of the provisions of this IRe-ulation or Re(tluation 10 of this AnneJc. The investiC-ation shoul" include, in particular, the wine. and sea conditions, Gho 't~ack and spcod _ _ _ _ _ -' *~ ~ ~ ~~~~~3 9 3 - ' . ' - . - - - -- of the shipg, other possi')le sources of the visible traces in the vicinity, and lily relevant oil dischar,-O recor"Is. ()The provisions of para,Tra,.h (1) of thio IRo-,1ation shall not ap'ply to the discharj;c of clean or se"=,,ated ballast. Vic provisions of sub-jiara~,rapb (l)(b) of this !'Lez~ulation shall not apply to the dischar.-,- of oily mixture which without ,Miutim-4 has an oil. contcnt not oxeoc,,ntC 15 parts per mi].2ion.. (5) alo dischar-L;,e into tlio sca shall contain chenicals or other substanocs in quanititics or 'concentrations which areo hazardous to the maxme onvironncnt or Chemicals or other substancos 'Untroduced for the pux'poso of circumvontin,-~ tho conditions of (Uscbnxz~u specified in this 1Re,~Liation. (6) Tile oil residues which cannot be dischar~.e,, into tho soa in coirpliancc: with pxa~,raphs (i), (2) an,1. (,A) of this fie~ulation shall be retainud on board or diaehar-;cd to reception facilities, 4prailatioI 10 Itctho,.s far th-c.'Lrcvontion of Oil Pollution �rnn-i hiU W'lr Speciliz -al- Ideas (i) I'ol the purposo of, t~Il' ,annex thie snecial areas are the- rMciitorrancan Sca arc~a theBaltc oa area,, the Black Sea -area, th ld e ra n h d(thlfs o~,xewl i~hioh are definerl a~s follofs~ (a) TEli Moditczrranoan Soe. area means the Moditorran~m Goa propcricldn the :xilfs a an sLas ther(in with the boundaxy Ibetwecn the NcdiLterracivaii and thec Black Sea constituted by the ila0N I~arallol and boundc"' to thic'.west by the Straits of Gilbralta-r at then 1-cridian of 5'36114. (b) The Baltic Soa aroa meaxs the Baltic Son proper with the Grulf of JBothniat tiC Gulf of FinlanC, and, tho entrance to the Baltic Sea zioundt.d by thu ar-allel of the. Sk-cir in thL, Sacrrat 57 44-WIV- (c) Tho Blaok Seca amre reano tho Blackc Sea p.roper with the boundary bot~ween'tho Moeditcrrranan -u-d the, Black Sca coxistitutod aiy this parallel 41 U. ( ')The Wid Sun area means tho AcIe Sea proper izicludiaiy; tho Gulfsa of Suoz and Aqaza :)oundled at the south by the xhiuab litio between iRas si Ano (12'8.5tN,. 43 1l%6?E anC im un Muraci l0o4N *',ai'' ()Thu sFGul~area" miaris the sca arva locatcd north W,.,t of the huV line between ilas al 1C.&I (22C)5011H. 59O4ejI w) and Rag hi Fasto'h. (25'04IN, 61025tHL) (2) (a) Subjoct to the provisions of Ilocation 11 of this Annex, any discheaxc into the e0a of oil or oily aixture fron any oii tanker and any ship of 400 tons Crzoss tonnau n,,n. abovo other than wn oil tanker sluall 1 prohibite&, whilb in a special area.. (1.:) Such shiis while in a special area shall retain on hoard anl oil rar~ina~ and oSldL:t, Ldirty ballast rnd tank washiinx waters and d~ischarze theri oitly. to reception facilitios. '(3) (a) Subject to the provioions of a;l,,ualati~onl of this annex, any rlischar.,- into the. sea of oil or oily uixture froe a shift of loss than 400 tune Lross tonna:o, other than an-oil tankvr, shall be prohibited while in a srecial area, except when the oil content of the effluent without dilution does not exceed 15 parts per moillion or alternatively whie all of the followinG condlitions are satisfied: (i) the ship is proceeding on route; (ii) the oil conteht of the effluent is loss than 100 parts per million; ancl (iii) tile aischaroe is made as far as practiceble fron the land, but in no case less thtain 12 nautical milis fron the nearest land' (b) ibo cischarc-e into the sea shall contain chemicals or other substancc in quantities or concontrationl which are hazardous to the marine onvironment or 'dhemio s o%* other subatancos intrOdu~oe, for the purpose of cirounvontinG the conriitions of discharge specific.; in this itcclationo (c) The oil residues which cannot be disoharced into thd.sea in oonp.iar;c~, with siuh-parajraph (a) of this paragraph shall be retained on boald or Oiscilrreed to reception facilities, The provisions of this Re.,ulation shall not applk.tov tbh dischecro df clean or sctye~ated ballait. (5) NothinC in this RoLlation shall prohibit a Ohip on'. a Voyaio only part of which is in -a special area fron disoharLinf outside thp.;Opeoial area in accordance wi'th Roeoulation 9 ot this annex, (6) Whonover visible traces of oil are observed on or belowi the aurface I. tho water in the immediate vicinity of a ship or its wake, thaleovoruients of Parti,. to the Oonventicn should, to the extent they -are reasonably- &blc to dO or - ---�- ~ -- i ----1395 ._ __~ , pronptly investigatc the facts bearing on the issue of whether there has been a violation of the provisions of this Relgulatic'n or Regulaticon 9 of this lnnax. Thu investigation should include, in particulair, the wind -nd soe conditicns, tho traok and speed of the ship, ,thcr possible sources of the visible traces in tlw vIc.Jhe t3?, rvn tz pa-y n .Lt0it l, 1 (clnchargo rcec.'As. Y) i~ecc.~tio~i cilitios withi2l special areas: (n) I~i~t~rranean Scr?, J~Black Sea and Baltic Sea aireas. (i) The Gnvernment of each Party to the Convention, tie coastline of which bnrdero on any given special area undertakes to ensure that not later than I January 1977- all oil loading tenrinals arid repair ports within the special area arc provided with facilities .adquate for thc reception and treatment of all the dirty ballast and tank washin- water from oil tankers. In addition all ports within the special area shall be provicdc with adequate reception. facilities for other rosidues and oily Mixtures fron all ships. Such facilities shall have adequate capacity to rectt the needs of the ships usino thenr without causin!, undue (relay. The Government of each Party havini under its jurisdiction entrances to seawater courses with low-depth contour which iitht require a reduction of draurht by the discharLgo of ballast undertakes to ensure the provision of the facilities referred to in sub-paraxaph (a)(i) of this paralyaph but with the proviso that ships required to discharge slops or dirty'ballast could be subject to some delay, (iii) flurinC. the poriod between the entry into force of the present Convention (if earlier than 1 January 1977) and 1 January 1977 ships while navicatinL; in the special areas shall comply with the roquiro~-.icnts of RIeculation 9 of this fLnncx, However the Governments r�f karties the coastlines of which border any of the special areas under this sub-paraf;raph raiay obtablish a date earlicr than 1 January 1977 but after the date of entry into force of the Present Convention, frerm which the requ�i9bients of this 1le~ulation in rsjepct of the special areas in quition shall take effects (1) if all the reception facilities required have been provided !)y the date so established; and 396-.,.__ .. (2)- provided. that the Pcarties concerned notify the Orgnuization of the date so established at least six months in advanie, for circulation to other .artios. (iv) After 1 January 1977, or the Cate estahllisheed in accorlance with su'-)-,araiaraph (a)(iii) of this para~xaph if earlier, each Party shall notify the Organization for transmission to the ContractinC Governnents concernedl of all cases where the facilities arc alleged to be inadcquatc. (b) Red Sea area and "Gulf area" (i)' The Government of each Party the coastline of which borders on the special' areas undertakes to onsure that as soon as possi'Ue All oil loacing, terminals and repair ports within those special areas are Providec with facilities adequate for the receptiou and treatrment of all the dirty ballast an(' tnk washin water froia tankers. In addition all ports within the special area shall bo provitled with adequate reception facilities for other resicuca and oily Mixtures from all ships. Such facilities shall havo V adequate capacity to uieet thu needs of the ships usiri; ther.1 without causin- undue delay. (ii) The Governtient of each Party having under its jurisdiction entranaet to seawater courses with low aepth contour which nicht require a reduction of drauc,-ht by the Cischar~o of ballast shall wIdortau to ensure the -provision of the facilities referrod to in sub- pararapLrh (b)(i) of this paracraph but with the proviso that ships required to dischari;e slops or dirty bnllast couldI be subject to some delay, (iii) Each Party concerned shall notify the Organimation of the measures taken pursueu-it to provisions of sul)-,IaracrTa-Plh (b)(i) an3. (iij of this Iparar;raphl Upon roccipt of sufficient notifications the Or., nizrtion $h3l. estabilish a datc fron which theI requirements of this fleulatior3 in respect of the area in question shall take effect. hq ',aniza tion shall notify all Parties of the date so esteb3L.1,ved no less than twelve months in advance of that date. f Is;~~ (iv) DurinC the perio2. botwceen thc antry into force of the, present Convention and the date so establishlee4 ships while naviatin& in the special area shall comply with thc rcq~ire-nants of ioRulation 9 of this Yinnex. (v) After such data oil tankers loading in ports in these speoial areas wMer= ouch faciJitios. are not yet avn-ilsble shall also fully conply with the requiremonts of this Roulation. However, oil tankers entcrinf; those special areas for the Imuroso of loadinu sha.l pcikce every effort to enter the area with only clean ballast on 'board. (vi) After tho date on which the requirements for the special area in question take'effect, each rarty haal.l notify the Or:ranization fo? tr tm szission. to the Parties eonoorned of all cases where the fEcilitics are arlle(-ed to be inadequat-u. (vii) At least the recetion facilities Is prescribed in llo lation 12 of this Anneox'hoal bLe provided by 1 January 1977 or,6119 year after the date 6S cntry into force of the preaenat.1 ,nvtion, whichvevr oocurc later. Ro.,ulation 11 Bxce't ion ?t Ye~rRulations 9 and 10 of this Anncx shallJ not apply tol. (a) the ~2ischar:7e into the sea of oil or oily rixiture' necssary for the purpose of securin,; the safety of a ship or savine; life at sea; or (b)- the discharge into the sea of oil or oily nixtu-o resulting froi daaaiae to a ship or its equipment; (i): provide, that all reasonable precautions have been taken after the occurrence of the Jeaxago or discovery-of the discharCe for the purpose of preventin(; or mlininizinG thv',2iachaiC;o-; and (ii) except if the owner or the Nanstor acted either with intent to cause damage, or recklessly and with knowldedge that damage would probably result; or (c) the discharge into the sea of substanoes containing oil, approved by the Administration, when being used for the purpose of combating specific pollution incidents in order to minimize the damage from 398~~~~~~~~~~~�51 pollution. Any such discharge shall be subject to the approval of any Government in whole jurisdiction it is contemplated the discharge will occur. Reflation 12 Reception Facilities (1) Subject to the provisions of Regulation 10 of this Annex, the Government of each Party undertakes to ensure the provision at oil loading terminals, repair ports, and in other ports in which ships have oily residues to discharge, of facilities for the reception of such residues and oily mixtures as remain from oil tankers and other ships adequate to meet. the needs of the ships using them without causing undue delay to ships. (2) Reception facilities in accordance with paragraph (1) of this Regulation shall be provided in: (a) all ports and terminals in which crude oil is loaded into oil tankers where such tankers have immediately prior to arrival completed a ballast voyage of not more than 72 hours or not more than 1,200 nautical miles; (b) all ports and terminals in which oil other than crude oil in bulk is loaded at an average quantity of more than 1,000 metric tons per day; (c) all ports having ship rpoair yards or tank claning facilities- (d) all ports and terminals which handle ships provided with the. sludge tank(s) requird by RIgulation 17 of this Annex; (e) all ports in respect of oily bilge waters and other residues, which cannot be discharged in accordance with Regulatiorn 9 of this Annex; and (f) all loading ports for bulk cargoes in respect of oil residues from combination carriers which cannot be discharged in accordance with Rogulation 9 of this Annex. (3) The capacity.for the reception facilities shall be as follows: (a) Crude oil loading terminals shall have sufficient recoption facilities to receive oil and oily mixtures whicht cannot be discharged in accordance with the provisions of Regulation 9(1)(a) of this Annex from all oil tankers on voyages as, descihbed in _ paragraph (2 ( aof this Rcgulation. 399 (b) Loading ports and torminals referred to in paragraph (2)(b) of this Regulation shall have sufficient reception facilities to receive oil and oily mixtures which cannot be1 discharged in accordance with the provisions of Regulation 9(l)(a) Of this Annex from oil tankers which load oil other than crude oil in bulk. (c) All ports having ship repair yards or tank cleaning facilities shall have sufficient reception facilities to reccive all residues and oily mixtures which remain on board for disposal from ships .xoer to entering such yards or facilities. (d) All facilities provided in ports and terminals under paragraph (2)(d) of this Regulation shall be sufficient to receive all residues retained according to Regulation 17 of this Annex from all ships that may reasonably be expected to call at such ports and terminals. (e) All facilities provided in ports and terminals under this Regulation shall be sufficient to receive oily bilge waters and other residues which cannot be discharged in accordance with Regulation 9 of this Annex. (f) The facilities provided in loading ports for bulk cargoes shall take into account the special problems of combination carriers as appropriate. (4) The reception facilities prescribed in paragraphs (2) and (3) of this Regulation shall be made available no later thin one year from the date of entry into force of the prusont Convention or by 1 January 1977, whichever occurs later. (5) Each Party shall notify the Organization for transmission to the Parties concerned of all oases where the facilities provided under this Regulation are alleged to be inadequate. Seqrcjatod Ballast Oil Tankers �.. .*. (1) Every new oil tanker of 70,000 tons deadweight and above shall be provided with segregated ballast tanks and shall comply with the requirements of this Regulation. (2) The capacity of the segregated ballast tanks shall be so determined that the ship may operate safely on ballast voyages without recourse to 400 the use of oil tanks for water ballast except as provided for in paragraph (3) of this Regulation. In all cases, however, the capacity of segregated ballast tanks shall be at least such that in any ballast condition at any part of the voyage, including the conditions consisting of lightweight plus segregated ballast only, the ship's draughts and trim can meet each of tho following requirementss (a) the moulded draught amidships (dm) in metres (without taking into account any ship's deformation) shall not be less than: dm = 2.0 + 0.02 L, (b) the draughts at the forward and after perpQndiculars shall correspond to those determined by the draught amidships (dm), as specified in sub-paragraph (a) of this paragraph, in association with the trim by the stern of not greater than 0.015 L, and (c) in m'j carus Th� drauoght at the after p'.pndicular shall not b- ]).ss than that which is necessary to obtain full immersion of-the pronellor(s). (3) In no case shall ballast water be carried in oil tanks except in weather conditions so severe that, in the opinion of the Ilaster, it is necessary to carry additional ballast water in oil tanks for the safety of the ship. Such additional ballast water shall be procoessed and discharged in compliance with Regulation 9 and in accordance with the requirements of Regulation 15 of this Annex, and entry shall be made in the Oil Record Book referred to in Regulation 20 of this Annex. (4) Any oil tanker which is not required to be providedtwith segregated ballast tanks in accordance with paragraph (1) of this Regulation may, however, be qualified as a segregated ballast tanker, provided that in the case of an oil tanker of 150 metres in length and above it fully complies with the requirements of paragraphs (2) and (3) of this Regulation and in the case of an oil tanker of less than 150 metros in length the coegregated ballast conditions shall be to the satisfaction of.thc Administration. Roglat ion 1, .{,~';,i Sosrogation of Oil and Water Ballalst . ..i. (1) Exccpt as provided in paragraph (2) of this negulMion, i in new ships of 4,.000. tons gross tonnare and above other thaw oil tarr4k, and in now oil tankers of 150 tons gross tonnage, and above, no ballast water shall be carried in any oil fuel tank. (2) Where abnormal conditions or the need to carry large quantities of oil fuel render it necessary to carry ballast water which is not a clean ballast in any oil fuel tank, such ballast water shall be discharged to reception facilities or into the sea in compliance with Regulation 9 using the equipment specified in Regulation 16(2) of this Annex, and an entry shall be ;Ladc in the Oil Record Book to this effect. (3) All ot: or ,i:. l- shall ccijlyr p witl t'h roquiremnots of para,-ph (1) 'nf this Re:-tlatioo as far as reasonable rutd practicable, Rgu~ation 15 Rutention of Oil on Board (1) Subject to the provisions of paragraphs (5) and (6) of this Reonlation, oil tankers of 150 tons gross tonnage and above shall be provided with arrangements in accordance with the requirements of paragraphs (2) and 5J) o�f tihi s Regulation, provided that in the case of existing tankers the requirements for oil discharge monitoring and control systems and slop tank arrangements shall apply three years after the date of entry into force of the present Convention. (2) (a) Adequate means shall be provided for cleaning the cargo tanks and transferring the dirty ballast residue and tank washings from the cargo tanks into a slop tank approvcd by the Administration, In existing oil tankers, any cargo tank may be designated as a slop tank. (b) In this system arrangements shall be provided to transfer the oily waste into a slop tank or combination of slop tanks in such a way that any effluent discharged into the sea will be such as to comply with the provisions of Regulation 9 of this Annex. (c) The arrangements of the slop tank or combination of slop tanks shall have a capacity necessary to retain the slops generated by tank washing, oil residues and dirty ballast residues but the total shall be not less than 3 per cent of the oil o rying capacity of the ship, except that, where segregated ballast tanks 402 are provided in accordance with Regulation 13 of thi Annex, or whore arrangements such as eductors involving the use of water additional to the washing water aro not fitted, the Administration may accept 2 per cent. New oil tankers over 70,000 tons dead- weight shall be provided with at least two slop tanks. (d) Slop tanks shall be so designed particularly in respect of the position of inlets, outlets, baffles or weirs where fitted, sO as to avoid excessive turbulence and entrainment of oil or emulsion with the water. (3) (a) An oil discharge monitoring and control system approved by the Adlinistration shall be fitted. In considering the design of tho oil content meter to be incorporated in the system, the Administration shall have regard to the specification recor.mondod by the Organization.* The system shall be fitted with a recording device to provide a continuous record of the discharge in litres per nautical rile and total quantity discharged, or the oil content and rate of discharge. This record shall be identifiable as to tir.e nd date and shall be kept for at least three years. The oil discharge monitor and control system shall come Into operation when there is any discharge of effluent into thle sea and shall be such as will ensure that any discharge of oily mixture is autom.atioally stopped when the instantaneous rate of discharge of oil exceeds that permittcr by Regulation 9(l)(a) of this Annex. Any failure of this monitoring and control system shall stop the discharge and. be noted in the Oil Record Book, A manually operated alternative method shall be provided and may be used in the event of such failure, but the defective unit shall be made operable before the oil tanker conmeoncuo its next ballast voyage unless it is proooeding to a repair port., Existing oil tankers shall comply with all of the provisions specified above except that the stopping of the dischaxge may be performed nmanually and the rate of discharge may be estimated froo the purwlp characteristic. * Reference is nade to Recommendations on International Perfor.lance Specifications for Oily-Water Separating Equipment and Oil Content' Motors adopted by the Organization by Resolution A,233(VII). ..............- - . ...... '403. (b) Effective oil/water interface detectors approved by the Administration shall be provided for a rapid and accurate determination of the oil/ water interface in slop tanks and shall be available for use in other tanks where the separation of oil and water is effected and from which it is intended to discharge effluent direct to the sea. (c) Instructions as , tih tt cpezation Cof thei system shall be in accordance with an oporctional I anrtal approved by the Adiministration. They shall cover :aLIual as well as automatic oporatibns and shall be intended to ensure tha[ at no tileo shall oil be discharged except in compliance with the conditions specified in Regulation 9 of this Annex.* (4) The requircnents of paragraphs (1), (2) and (3) of this Regulation shall not apply to oil tankers of less than 150 tons gross tonnage, for which the control of discharge of oil wuder Regulation 9 of this nnmex shall be effected -by the retention of oil on board with subsequent discharge of all contaminated washings to reception facilities. The total quantity of oil and water used for washing and returned to a storage tank shall be recorded in the Oil Record Book. This tqtal quantity shall be discharged to reception facilities unless adequate arrangements are made to ensure that any effluent which is allowed to be discharged into the sea is effectively monitored to ensure that the provisions of Regulation 9 of this Annex are complied with. (5) The Administration nay waive the requirements of paragraphs (1), (2) mnd (3) of this Regulation for any oil tandker which engages exclusivoly on voyages both of 72 hours or less in duration and within 50 miles from the nearest land, provided that the oil tanker is not required to hold and does not.hold an International Oil Pollution Prevention Certificate (1973). Any such waiver shall be subject to the roquiremr6nt that the oil tanker shall retain on board all oily mixtures for subsequent discharge to reception facilities and to the determination by the Aduninistration that facilities available to receive such oily mixtures are adequate. (6) Wllere in the view of the Organization equipment required by , Regulation 9(l)(a)(vi) of this Annex and specified in sub-paragraph (3)(a) of this Regulation is not obtainable for the monitoring of discharge o� light * Reforenco is made to "Clean Seas Guide for Oil Tankers", puolishe! by the International Chailbor of Shipping and the Oil Companies International Marine Forum,. . :, ,. 404 -.-. refined products (white oils), the Administration may waive oomplianoc with such roquirernent, provided that discharge shall be permitted only in conpliance with procedures established by the Organization which shall satisfy the conditions of Regulation 9(l)(a) of this Annex except the obligation to have an oil discharge monitoring and co.ntrol.system in operation. The Organization shall review the availability of equipment at intervals not exceeding twelve r.Lonths. (7) The requirements of paragraphs (1), (2) and (3) of this Regulation shall not apply to oil tadnkers carrying asphalts for which the control of discharge of asphalt under Regulation 9 of this Annex shall be effected by the retention of asphalt residues on board with discharge of all contaminated washings to reception facilities. Regulation 16 Oil Discharge Monitoring and Control S.YstCm and Oily Water Separating EQuiament (1) Any ship of 400 tons gross tonnage and above shall be fitted with an oily water separating equipment or filtering system complying with the provisions of paragraph (6) of this Regulation, Any such ship which cawsies large quantities of oil fuel shall comply with paragraph (2) of this Regulation or paragraph (1) of Regulation 14. (2) Any ship of 10,000 tons gross tonnage and above shall be fitted. (a) in addition to the requirements of paragraph (1) of this Regulation with an oil discharge monitoring and control systarl complying with paragraph (5) of this Regulation; or (b) as an alternative to the requirements of paragraph (1) and sub-paragraph (2)(a) of this Regulation, with an oily water separating equipment complying with paragraph (6):?f, this Regulation and an effective filtering system, complying with paragraph (7) of this Regulation. (3) The Adninistration shall ensure that ships of less than'400 tons gross tonnage are equipped, as far as practicable, to retain on board oil or oily mixtures or discharge them in' accordance with the requirbaenrs of Regulation'9(1)(b) of this Annex. .~~......... : ......... 405 (4) For existing ships the requirements of paragraphs (1), (2) and (3) of this Regulation shall apply three years after the date of entry into force of the present Convention. (5) An oil discharge monitoring aid control system shall be of a design approved by the Adinistration. In considering the design of the oil coenat--. neter to be incorporated into the system, the Administration shall have regard to the specification recoumended by the Organization.* The system shall be fitted with a recording device to provide a continuous record of the oil content in parts per million. This record shall be identifiable as to tine and date and shall be kept for at least three years. The monitoring and control system shall cone into operation when there is any discharge of effluent into the sea and shall be such as will ensure that any discharge of oily mixture is automatically stopped when the oil content of effluent exceeds that permitted by Regulation 9(l)(b) of this Annex. Any failure of this monitoring and control system shall stop the discharge and be noted in the Oil'Record Book. The defective unit shall be raacd operable before the ship conmonces its next voyage unless it is proceeding to a repair port. Existing ships shall comply with all of the provisions specified above except that the stopping of the discharge may be performed manually. (6) Oily water separating equipment or an oil filtering systemr. shall be of a design approved by the AdLlinistration and shall be such as will ensure that any oily mixture discharged into the sea after passing through the separator or filtering systems shall have an oil content of not more than 100 parts per nillion. In considering the design of such equipmont, the Administration shall have regard to the specification rocolmeonded by the Organization.* (7) The oil filtering systen referred to in paragraph (2)(h) of this Regulation shall be of a design approved by the Adbainistration and shall be such that it will accept the discharge from the separating system and produce ah effluent the oil content of which does not exceed 15 parts per million. It shall be provided with alarm arrangements to indicate when this level cannot be maintained. Rexulation 17 Tanks for Oil Residues (Slude): (1) Every ship of 400 tons gross tonnage and above shall be provided with a tank or tanks of adequate capacity, having regard to the type pf Laohinery and * Reference is made to the Recormendation on International Performanoe Specifications for Oily-water Separating Equipment and Oil emontontI4otera adopted by the Organization by Resolution A,233(VII). --~_;__- 40 -__: length of voyage, to' receive the oily residues (sludges) which cannot be dealt with otherwise in accordance with the requirenents of this Annex, such as those resulting from the purification of fuel and lubricating oils and oil leakages in the machinery spaces. (2) In newr sl:ip,- sulll tankr; s.all be designed anl. conrtr'ucted no ,as to facilitate thuir cllaniidn and the discharge of rU.siduus to ru:ception facilitieo~, Existing ships shall comply with this requirement as far as is reoaonablu aedr practicable. Rc, lation 1' Puuping, Pipiniz ant DischargE .rrzangcments of Oil _Tankers (1) In every oil tanker, a discharge manifold for connexion to reception facilities for the discharge of dirty ballast water or oil contaminated water shall be located on the open dock on both sides of the ship. (2) In every oil tanker, pipelines for the discharge to the sea of effluent which may be permitted under Regulation 9 of this Annex shall be lud to the open deck or to th,. ship's side above the waterline in the deepost ballast condition, Different piping arrangements to permit operation in thue imanner permitted in sub-paragraphs (4)(a) a.nd (b) of this Regulation may be accepted, (3) In new oil tankers means shall be provided for stoppirg the dischargeo of effluent into the sea from, a position on upper dock or above located so that the I-',anifold in use referred to in paragraph (1) of this Regulation and the effluent from the pipelines referred to in paragraph (2).of this Regulation m'ay be visually observed. MIeans for stopping the discharge need not be provided at the observation position if a positive col.aunication system such as telephone or radio system is provided between the observation position and the discharge control position. (4) All discharges shall take place above the waterline except as follows, (a) Segregated ballast and clean ballast may be discharged below the waterline in ports or at offshore terminals. (b) Existing ships which, without modification, are not capable of discharging segrogated ballast above the waterlie may discharoe segregated ballast below the waterline provided that an uxamination of the tank immediately before the aIscharge has established that no contamination with oil has t"aken place. 4.0 . 1Thc 11atin 20 Oil RecordJ Book (1) Every -o.o1 tanker of 150 tons gross tonnage and above And every 01"ip 'If 400 ton, '-raS tonnaZG anj above other than an oil tanker pbhll be proviCide wth an Oil Record B'x'k, whether as part iV the ship's official lo- book orepthexriOs in the form specified in Appendix III t* this Annex, (2) The Oil Record Book shall be completed on each occasion, on a tank-to-taauk basis, whenever any of the following operations take place in the shipt (a) For oil tankcers (i) loading of oil cargo; '(ii) internal transfer of oil cargo during voyage; (iii) opening' r closina beforehand after loading arid unloading operations of valves or similar devices whiten inter-connect cargo tanks, (iv) opening or closing of means of communication between cargo piping and seawater ballast piping, (v) opening or closing of ships' side. valves before, during and aftor loadine and unloading operations; (vi) unloading of oil cargo; (vii) ballastin- of cargo tanks~ (viii) cleaninZ of cargo tanks; (ix) discharge of ballast except from seoSjegatou ballast tankes (x), oischar3e of water from slop tankz!, () oisuosal of' xesidues;. *(.xii) dischargc overboard of bilge water w'jlichhas accumulatc& in ~iiachincry spaces whi].lt in cbort,, and thc routine discharge at soa'of bilj-c water which has accumulated in .-achiner-r spaces. 408 (b) For ships other than oil tankors (i)I ballas~tins or clcaaninj of fuel oil tank)-s Or Oil cargo spaces; (ii) discharLge of ballast or cleaning� water from tztnks zrefrrecl to lUnde.r (i) of this sub-paragraphs, (iii) disposal of resiciues; (iv) dischar~;e overboard of bilC~o water which has accunulated in inachinery t.pacocs whilst in port, and. the routizn e .ischarr~o at sea of ~il-o wator which has accumul~ated in~machinory spaces. (3) in theo event of such discharge of oil or oily mixture ac is refo'rroel to in Ro-,ulation 11 of this Annex or in the e-vent of accidOental or. other Cexceptional dischaxrge of oil not excepted by that Rc.,,ulatioii, a stator'ent shall be made in the Oil Record Book of the cir~uristaflces of, a'ncO. the reasons for, the dlischarge. (4) riach operation Jdoocribod in parac~aPb (2) of thia RQS-Lilati.on slhall 1)e full-y rccor'.eod without delay in tbe Oil Record Boolk so that all tllo entril:s in the book appropriate to that operation are comnilatc(L. ~ach sdation of the book shlall be si~pno.. lb~r the_ officer or officers in charg.e of th,~ oporations rornccrno,' anL'; shiall � cou'' t.zri",ed- ))y the I'Iatc.r of thc, MiP. Thc onti in -11i Rcecvr( Bo' salbe in an official lanruaVo of'-the Ste os flage the ship is entitlod to fly, and, far ships holdin,- an Intornational Oil P,,,llution Threvontion Certificate, (V~,73') in 31k~islho-r llzo-ac.i are'. olltriL .-.In an Official national lari-uvfce of the State N~ihoso fja,, thre shbir is $Entitled to fly shall pvilin ease of a dispute,- or UIscrqpancy. (5) The Oil RecorJ Dook shall i:eo ke(,pt in such a -.lace, as, to ccreadily availa'l-e for inspection at all reasonable timos and, except in the-case of uaivanrnCA chips unLIcer tow, shall be kept on b)oard the shipf. It shall :bo Presorved for a, pea-iod of three years after tho last entry haxs boon wmaa,-. (sic -there was no paragraph (6)] (~/The competent authority of thre Government of a Party to thd Oonv Intion may inspect the Oil Record Book on board! any shlip to which this Annex' applies while the ship is in its Port or offshore terminals and may make-1 a 00py of any entry in that book and maye require the IVaster-of the ship to certify that the copy is a true copy of such entry. Any copy so made which has been certified by the M~aster of the ship as a true copy of an entry in the ship's'''Ol'IRecord Book shall be made admissible in 'any Judicial proceedings 9,s eviladn'00,;f, the facts stated in the entry. The inspection of an Oil ReaordBo~d the taking of a certified copy by the competent authority under this e'." ap shall be performed as oxpoditiously as possible without causing the,~ihip to be undluly delayed. 0 Remulation 21 and other Platforms Fixed and floating drilling rigs when engaged in the exploration, exploitation and associated offshore processing of sea-bod mineral resources and other platforms shall comply with the requirements of this Annex applicable to ships of 400 tons gross tonnage and above other than oil tankers, except that: (a) they shall be equipped as far as practicable with the installations required in Rcgulations 16 and 17 of this Anne x; 410 CONVENTION FOR THE PREVENTION OF POLLUTION FROM LAND-BASED SOURCES Opened for signature June 4, 1974, reprinted in 13 Int'l Legal Mat'ls 544 (1974). ARTICL E 2 The present Convention shall apply to the maritime area within the fo]low'ing l.imits : a) those parts of the Atlantic and Arctic Oceans and the dependent seas which l ies North of 360 north latitude and between 420 west lonlitude and 510 -ast lont;itude, but ec luding : 1.) the Baltic Sea and Belts Lying to the south and eaL,t of lines drawn from Hasenore Head to 6niben Point, from Korshage to Spodsbierg and from Gil.b.iero }Head to Kullen, and ii) the Moediterranean Sea and its dependent seas as far as the point of intersection of the parallel of 360 north latitude and the meridian of 50360 west longiitude b) that part of the Atlantic Ocean north of 59� north latitude and between 440 west longitude and 420� west longitude 411 ARTTCLF 3 for the purpose of the present Convention a) 11MI-tritiiP(, area" m eans the high seas, the territorial seas of Contracting Parties arnd wiaters on the .landward s ide of' the base lines fromi which the breadth of the territorial sea is measured, extending, in the case of watercourses up to the freshw,-ter limit unless otherwiso decided Un~der Article 16 of the present Convention; b) "F~reshwator limit" -meat-s the place in the watercourse where, at low tide and in a period of low freshwater flow, ther~e is an appreciable increase in salinity due to the presene of sea-water. c )"Pul1 lution from 1 nba;dc.ourcors'I means the polluti or of t ho uVt ec e 1. ) troughwa t,,rcoursesp ii.) from the coast, including introduct ion thro ugh underwater or other pipelines, lii) from mant-made structures placed under the jurisdiction of a Contracting Party within the li.mits of the area to which the present Convention applies. 412 ARTICLI.E 10 The Contr-tiiing Partics agree to establi r.h comppenmentary or joint programmes of scientific and technical -research, ijcluding research into trhe best methods o'f oliminatingt or i-ojIlaciri noxious substances so as to reduce marine pollution from land-based sources, and to transmit to each other the ioformation so obtained0 In doing so they will have regard to the work carried out, in these fields, by the appropriate international Orga'nizations and Agencies. The wrugra'im3 will. take into account similar proqr'1.i!''r pursued in accordance with Conventions already in force Lindi. thte a-pprapriat.(, interinational organj.,sations and Aqencies. ARTICLE 13 The Contractilm Parties undertake to assist one anotherT. ap'propriate to prevent incidents which may result in pol.'41M frow la-nd-ba--.d sources, to minimiz.6 and eliminate the cm bequences of such incidents, and to exchange information-to that end. 413 1972 CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING.OF WASTES AND OTHER MATTER reprinted in 67 Am.J.Int'l. Law 626 (1973) ARTICLE II a. The dumping of wastes. or other matter listed in Contracting Parties shall, as provided for in the follow- Annex I is prohibited; b. The dumping of wastes 'or other matter listed in Annex 11 requires a prior specili, permit; Irg Articles, lake effective measures individually, accord- c. The dumping of all othe'r wastes or matter requires llg It, tllir scientilic, technical and economic capabilities, a prior general permit. anld collectively, to prevent marine pollution caused by 2. Any permit shall be issued only alter careful conl dunmping alld shall harmonize their policies in this regard. sideration of all the factor's set forth in Annex Ill, including prior studies of the ch'aracterislics of the dump- ARTI('Ll. Ill ing site, as set forth in Sections 13 and C of that Annex. For thle purposes of this Convention: 3. No provision of this Convention is to be inteip)rted I. (a) "Dunping" means: as preventing a Contracting Party froln prohibiting, inso- (i) any deliberate disposal at sea of wastes or other far as that Party is concerned, the dumping of wastes or matter Iromn vessels, aircraft, platforms or other man-made othermatter not mentioned :n' Annex i. That Party shall slructulres at sea; notify such measures to the rganisation. (ii) any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures at sea; (b) 'I)upilniig" does not include: ARTICLE VII (i) tile (isposal at sea of wastes or other matter 1. Each Contracting Party shall apply the measures incidlertal to, or derived from the normal operations of rec(uired to implement the present Convention to all: vessels, aircraft, platforms or other man-made structures a. vessels and aircraft registered in its territory or at sea arid their equipment, other than wastes or other Ilying its flag; matter transported by or to vessels, aircraft, platforms or b. vessels and aircraft loading in its tcrritory or teri- other nman-made structures at sea, operating for the torial seas matter which is to be dumped; purpose ofi disposal of such matter or derived from the c, vessels and aircraft and fixed or floating platfornms tIrelnilitcl of sutch Wastes or other mnatter on such vessels, under its jurisdiction believed to be engaged in dumping. aircraft plat foerms or structures; 2. Each Party shall take in its territory appropriate (ii) placement of mlatter for a purpose other than the measures to prevent and punish conduct in contravention nere disposal thereofl', provided that such placement is of' tile provisions of' this Convention. riot contrary to the aims of this convention; 3. The Parties agree to cooperate in tile development (c) The disposal of wastes or other matter directly of procedures for the effective applicalion of' this ('Conven arising ftroim, or related to tile exploration, exploitation tion particularly onl the high seas, including plocedules anrid ssociated of f-shore processing of seabed mineral for the reporting of vessels and aircral'l observed dunlping resoulces will riot be covered by the provisions of this in contravenltion of tlhe Convention. Collventiioll. 4. This Convention shall not apply to those vessels and 2. "Vessels ard aircraft" means waterborne or airborne aircraft entitled to sovereign immunity under international craft of any type whatsoever. This expression includes air law. lowever each party shall ensure by the adoption of cushionedl crai't and floating craft, whether self-propelled appropriate measures that such .yesscls ald aircr;afl'owiled or not. or operated by it act in a manner consistent with tie 3. "Sea" means 'all marine waters other than the object and purpose of this'Convention, a nd shiall inf'rm internal waters of States. the Organisation accordingly. 4. "Wastes or other matter" means material and sub- S. Nothing in this Convention shall Illect hie lighl of stance of any kind, form or description. eachl Parly to) adopt other nrneasurcs, III acctIdaniec wilJI 5. "Special permit" means pernmission granted specifi- the princil)les of intenlaltionl law, to preveril dullpilln! al cally oil applica;lion in advance and in accordance with sea. Annex II and Annex Ill. 6. "General permit" means permission granted in advance arid in accordance with Annex III. 7. "The Organisation" means tle organisation desig- ARTICLE X nated by the Contracting Parties in accordance will In accordance with the prin]iplcs or irleriratihnal law Article XIV2. regarding Stale responsibility' for damage to tIhe cnvirltn- ARTICLE IV ment of other States or to 'iay olher area of tile environment, caused by dumping if w;aslcs and oilier In accordance with the provisions of this Conven- matter of all kinds, the Contracting I'artits undertake t, lion Contracting Parties shall prohibit tile dumping of any develop procedures lor the asscssmcill f ti';lbility uard tlc wastes or other matter in whatever form or condition ofd except as otherwise specified below:- 414 ANNEX I 1. Organolhalogen compounds. 2. Mercury and mercury compounds. 3. (Cadmium.i and cadmiumt compounds. 4. Persistent plasltics and other persisteil synthetic mIalerials, fnir examplh, netting and ropes, which may lotll of may remain in suspenision in thc sca ill such a manner as lo inleriore materially with fishing, naviga;ltion, 0o other legitimate uses of thie sea. 5. ('rude oil, fuel oil, heavy diesel oil, and lubricalling oils, hydraulic I'luids, and any mixtures containing any of these, takenl onI board for the purpose of dumlping. 6. lighi-level radioactive wastes or other high-level radioactive matter, defined on public healllh, biological or other grounds, by the compctent international body in this field, at present the International Atomic Energy Agency, as unsuitable for dumping at sea. 415 7. Materials in whatever form (e.g. solids, liquids, cs) and biological (e.g. presence of viruses, bacteria, serni-liquids, gases or in a living state) produced for yeasts, parasites). biological and chemical warfare. .4. Toxicity. 8X. The preceding paragraphs of this Annex do not 5. Pcrsistence: physical, chemical and biological. apply to substances which are rapidly rendered hIarmless r. Accumulaliorl and biotransformlation in biological by physical, chemical or biological processes in the sea materials or sediments. provided they do not: 7. Susceptibility to physical, chemical and biochemical (i) make edible marine organisms unpalatable, or changes and interaction in the aquatic environrent with (ii) endanger human health or that of domestic other dissolved organic and inorganic materials. aniinals. 8. Probability of production of tairits or other changes Thlle consultative procedure provided for ulnder Article reducing marketability of resources (fish, shellfish, etc.). XIV should be followed by a Plarty Ji' there is doubt B. CHARACTFRISTICS OF L)MPING SITE AND abhout the harmlessness of the subs;tance. MlTtOI) Ol: DPOSIT 9. Thlis Annex does nol a;pply to wastes or other 1. Location (e.g., co-ordinates ol Ithe dumping area, material� (e.g. sewage sludges arid dredged spoils) conltain- depth and distance from the coast), loc:tion il relation- to irg the matters referred to in paragraphs 1-5 above as otlier areas (c... amenity areas, spawring, nursery and trace contaminants. Such wastes shall be subject to tlhe fishinl areas and exploitable resources). provislions of Annexes 11 alnd III as appropriate. 2. Rate of disposal per specific period (e.g., quantity ANfNEX 11 per day, per week, per monlh). 3. Methods of packaging arid con tainient, if any. The following substances and materials reqTirilng special 4. Inilial dilution achieved by proposed rncthd of care are listed for the puiposes of Article VI la. release. A. Wastes contairing sig nilicait aimnoints ol the nait- 5. I)ispersal characteristics (e.g., cffects of currents, ters listed below: tides arid wind on horizontal transport and vertical mix- arsenic iig). lead 6. Water characteristics (e.g., temperature, pH, salinity, copper anid tlheir compounds stratification, oxygen indices oft' ,iluit io - dissolved zinc oxygen (IX)), chemical oxygen demand (COI)), biochlem- orgatiosilicon compounds ical oxygen demand (BOD) - nitrogen present in organic cyanides and ninmeral I'orni including ammonia, suspended mratter, flourides other nutrienls and productivity). pesticides antd their by-producls riot covered in Annex 1. 7. Bottoni characteristics (e.g., tilography, geochem- B. In the issue of pIxerinis for the dumping of large cal arind geological characteristics and biological produc- quantities of acids and alkalis, consideration sli;il be given tivity). to the possible presence in such wastes )f' the substances 8t. Existence and ceffects of' other dJumpings which have listed in paragraph A aid to tile following additional been made in the dumlping area (e.g., heavy metal back- substances: ground rea;ding arnd organic carbon contleit). beryllium 9. In issuing a permit fjor dumping, ('othtracting Parties chromniuml and their comlpounds should consider wheiLher an idequaIle sclentliic basis exists nickel for assessing tile consequences of suIch dutiping, as oit(- vanadiui ) lined in this Annriex, lakinr into ;Iccoulnt seasonal C. Containers, scrap metal and othler bulky wastes variations. liable to sink to the sea bottomll which may present a C. GENERAl. CONSIDERATIONS ANU (ONDI)- serious obstacle to fishing or Inaviglti)lon. TIONS D. Radioactive wastes or other radioactive matter not 1. Possible effects on amenities prcsclce ol tfoal. included itt Annex I. In thle issue of permlits for thc ing or stranded material, turbidity objectionable odour, dumlpirig of this matter, tIhe Contracting Parties should discolouration and foaming). take full accoUlnt of the recomlrendations of tile corn- petent interriatioral body in this field, at preseni the 2. Possible eftccts on fmilite Irk Iishw and siell fis International Atomic Energy Agency. culture, fish stocks and fisheris., settweed harvesting adll culture. ANNEX III 3. Possible effects on other uses of ihe sea (e.g Provisions to be considered in establishing criteria impairmecnl of water quality tfkr indiustrial use, uniderwater governing the issue of permits for the dillmping of matter corrosion ,ft structllres, interfereilce with ship operatlions at sea, taking into account Article IV 2 include:- rom Iloalitig materials, interfercnce with fishing or A. C1HARACTERISTICS AND ('OMPOSITION OF navigation through deposit of waste or solid objects on T111. MATTER thie sea floor and protection of areas of special import- 1. Total amount and average composition of matter ance for scientilic or conservatiolo purposes). dumped (e.g., per year). 4. The practical availability- of alternative land-based 2. Form, e.g., solid, sludge, liquid, or gaseous. methods of treatment, dispos Ia or elimination, or of 3. Properties: physical (e.g., solubility and density), trcatnienil to render the matter!less harmful for dumping chiemical and biocthemical (e.g., oxygen demand, nutri- at sea. 416 SECTION 2. U.S. LAW A. Oil Pollution and Spillage OIL AND HAZARDOUS SUBSTANCE amount not to exceed $50,000, except that where the United States call show that sutch discharge was a result of Willfual negligencve or will- LIABILITY, 33 . S. C. �1321ful misconduct within (he prlvity and l%,wledt of the owni-r, sc LIABILITY, 33 U.S.C. �1321 ~owner or operator shall be liablet tlim jied 0'ates for a, civil pen- alty in such Smount as thle Administrator shall establish. based upon Ole V, 1975) . toihcity,~~~d de adbility, and dispersal characteristics of such subsitance. (Supp.~~~~~~~~~~~ "(iii Atr the expiration of the tmio-year period referred to in - ~~~~~~~~~~~~~~~~~~~~~~~~~clause (ii) bf this suprgahteownter or operators of ally vessl, onshore facility, or offshore facility. froixiwhichi there is discharged sany hazardous subsitance determined not j'removable under claulse (i) of this sub~paritgraph shall be liable, subjigt to thet defenses to liabilit~y provided in subsecetion (f) of this section, to the United States *for either one or the other of thre following peitalties, thle deterninzition of "81-w. 8 I1. j i) Fox- thet puirpose of diis se~ctionl, thle term-- which shall be !i the discretion of the Adiiiinistrator: "(I) 'oil' metans oil of anty kind orl in any formn, including. but c"(as) a, penalty in such. amount -i4ha Administrator shall, ]Lot, linited to. petroleumn, frel] ofl, sludge, oil ieftiise, and oilimixed etatblish, based onl thle toxicity, degwradbility, and dispersal char- with wastes other than dredged spoil ~acteristics of the substance, but riot less than $500 nor more than "(2) 'discharge' includes, but is not. limliteri to, ainy spilling, $.5,000 -, or leaking, p)un )inig, pouinger, eniitiiog, emiptying oi- dumpinkg; "(bb) a penalty determined by the number of units discharged "(p '0 vese' menuils every diesriptionI of watercraft or other reualtiplied by the- amount established for such frnit under clause artioAeial contrivance used,' or, capab~le of being uised. as a, meanls (iv) of this subparagraph, but such Penalty shall not be more than Of' 0-1an1portatioll on water other thanl a public, vessel; $5,t0lO,t00 ill thle case of a, discharge fromt a vessel aind $500,000 "(4) 'public vessel' means a vessel owned or bareboat-chartered in thle case of Ft discharge fromt anl onshore or offshore facility. and 4Aperated by the United States, or, by it Statc, or- political sulb- ..(iv) 'The Administrator shall establish by regulation, for reach division thereof, or by .a foreign nation, except when suche vessel hazardous substance designated under subpragraph (A) of thilsiparia- is enigaged in conmmter giriphi. and within 11(0 days of the date U ~fsc esignation, a uit of "(5) 'United States' means the States, thle District, of Columbia, mneasuirement based upon the usual traalisUqtice and, for thle purpose the Commonwealth of Puerto Rico, thle Canal Zone, Guamt, Anmer- of determining thle penalty uider clause~ (fiii (bb) of thils subpara. loan Samroa, them Virgin Islands, end the Trust Territory of tha graph, shall establishK for each such, uniut. a �xed monetory amount Pacific Islands; %which shall be not less than $100 nor niore than $1,000 pat- unit. H~e " (6) 'ownier or ope'rator' mleans1 (A) in thle case~ of a1 vemssl, anly shtall establish such fixed amount based on the toxicity, diigradability, person owninig. operating, or chartering by deniise, suchl vessel, and dispersal characteristics of the substean&e and 11) n th cas ofan on~sho faility,anod anl offshore facil- "(3) The discharge of oil or hazardous substances into or upon the ity, any person owning or operating sauch onshore facility or aigbl waesofhenite tts donn hrlieoino or offshore facility, and (C) in the case of any abandoned offshore potewarsftecntuu oeinharmful Runttesa facility, thle person who owned or operated such facility irmmedi- deemndb hePeietud rparaga (4) of thie ubetin is afatepior tosuhaadnntprhbtdecp(Ainheae of,.s*, discharges of oil intoth " T7 'prson'l includes anl individual, firm, corporation, associa- waesopi otgossn.weeink~lted under article IV of the rtaion an4t a partnership; nentoa Cnetonfrth enfoa Pollution of the Sea "i(8) 'remove' or 'remova' refers to, removal of the oil or halz- by Oil, 1951. as amended, an B hr ~lItdn quantities and - er~~~~~ldons subhstanceps f rom the water amid shorelines or, the taling of at timets and locations or udrsccie*tneorconditions as the such other act1ios as May be, neceMSsary to minlimtize or nitiggate, President may, by reguaion, teerni x)itt be harmfu~l. Any regu- damageto th publi healh or elaincuig u o iie lations issued under this sseio h e4 ..ollsistent with matititmm to, fl~, shllfis, willifeand ulcadniaepoetsoe safety amid with marinre and naiait-~sadregulations and (9) 'cntiguos zone'means Imeetir znesalhdort '(4) The Pieidn salb eutonobe issued as soon as poesta- be esabhil~edby th Unied Satesunder article 24 of the Con- bIe aier the dat of eallment ofths pqragrpi. determine. for the venton n th TeritoialSea midthe (Contiguous Zone; purposes of this section. those quntiio oil and any hazardous sub- "(10) 'onshore, facility' niemar ally facility (including, but not stiinco thle discharge of which, ait such tie~locations, ciroulmstsifces, limited to, moqtor vehicles and rolling stock) of any kind located aild comiditions, will lie harmful to the pulchealth or welfar of tile ilk, onl, or- under, aaiy land within the United States othner than rlanted States, including, but not liitd to, fish, shellfilsh, Wildlife, submerged land; fiiid public and pirivate property, shorin, and beaches except that in I"(II) 'offshore facility' metans ainy facilit~y of ainy kinid locate'd thle ease of the discharge of oil into or upon the waters of the contig- inl, on1, or Underi, any of the navigaible waters of thle United States 11ous zone, only those discharges whidi~t~hreaten thle fishery resources of other thluu a vessel or a public vessel; the contiguous zone oi' threaten tof li~qenrbt otepollutio "(112) 'act of God' means an aict occasioned by an unanticipated of the territory om' the territorja sM-4#, Unte States umay be grave natural disaster; leteriniued tobe harimful. ~ aUie * "(li) 'barrel' mleans'42 United States gallonis at 60 degrees "()Any person in charge of a es~&f anl onshore facility or Falmi'enheit; ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~Il 'i ffh faiit hal as soon as )ihehs I -owledge of any discharge "(14) 'hazardouissubstance' imeans any substance designated of oil or- a hazardous substance from sudi*lyeel or facility i ilts purstuantto subsection (b) (2) of this sect ion, of paragraph (P,) of this Subsection, iminmedlately nortiyteap- "(b) (I) The Congrs hereci dec~lares that it, is thle policy of praeaency of the United States-Oovernment ofsuhdcare thle United S~tates that, threre, should be no dischatrges of oil or hazard- rAny suhperson who fails to notifty JplTwtdiltoly such aec fsc Otis substances; into or- upon the navigable waters of the ITuiited States, d iscag shluo Iovictionl, be fiiiod not mome te 1,0,o adjoining shorelines, or into or up1101 thle waiters of the contiguous imprisoned for not more than one yeari ~r'both. Notificainrcie zone. .pursuant to thils paragiraph, or inforzr~atiotifobtaijitd by theiple ia "1(2) (A) The Admintistrator shall develop, piomulgate, and revisie ntio of such. rioti~cation shall not bf, ' .~ W iinst anly sutch peisoll lin as may he appropriate, regulations designating as 'hazardous sub- any criminal case, except a roetii~pruyor, fomr giving at stances, other thtan oil as definled in thissecinsuhemnt and fasettmn. compounds which, when 'dischargd In ally qunantity into or upon the 11(I) Any owner of' operaitor of an~~'~'t~,'~o' aii or off. navigable wvaters of thle Unied States or inljoining shoreinso the shorefclty frmwi8olo 9aad1s~asa'i icagdi waters of the contiguous zona, present. anl imminent and suibstantial violation of'paragrlaphl (3) of this silet8 msal easse a civil danger to thle puilhic health or welfare, inicludinig, but not liniited to, penalty by the Secretary of tilte departtri iwhcteCoast Guard fish, hellfih, wdlifeshore inelad beaches, Is (peritting of not. moore inthan$,tlt for esebq offirime. No pelialty shiall "(11) (i) Thel Administrator shall includec in anly designation uinder li' sesd unless30 I1111 the ONVtier WI , opi' boargv(d shmilel have metaim gi~'eu siibara~apli(A) f ths susecion at deterominiation whether ainy mIotirnz nod oporuit for ti helaring on suich ('lurgtm. Each violtnfimi ig suchdesinate hazrdou subtanc canactually be removed, I a sema e t ofeseinysc civil pienalty m~ay be voinpmomiletd by suchef "(ii) ie owneror opertor of iiy ves e~l, orslie. facility, or off- Secretary. In d teruing thle amlounit- f tOle penalty, or' thled aiinoint shor faclityfromwhic thee isdiscarge diningthe. two-year agreed upoln in compromise, the~ appropriateness of suche penalty to the periodbeginnng on he dat of eaictmnto WtheFdrlWter 14ol- si-ze of the bustiness of rthe, owner or op. .0A l~~harged, thle effect on thea lot in Cotrol ct Aendmets o 1972 anyhazardous substrance owner or operator's ability to 0ontinl&u'Win Isi ne aild thile gravity of determined not removable under clas Ii fiis subparagraph shall thle violation, shall be considered by sutVartr.The Secretary of be liable, subject to the defenses to Iliablt ]iroie une uscIon te raiysalwthl at tlIe requ~atf suchl 'Sticretary the c lear (f) of thils section, as approprliate, to th ntdStates for a civil Pell- alice rquirI'ed by secv-,m 4197 of the R~i~sed Statutes of thee IUnaited. elty per dischagesaMshed by the' Administrator based on toxicity, Stalt'es, s amended (46t U.S.C.01 ),o011, .v -VvP.sel tilt ownre.r oi'vrt AT' degradability, nan dispersal characteristics of such substance, in all of which is subject to the for-egoing penlalty Che(,oiia.. 'nmay begraiiimud 417 in 91u0h cases upon tile filing of a bond or other surety snt~isfactory to courts of the United States shall have jurisdiction to grant such relief su. Sc'tar. s public inlterest nd il te equities of Ithe ease nusy require. "(c) (.1) WVhenever any oil or a hazardous substance is discharged, NOf (1) Except where an owner or Operator can p rove thsat a dis- into or upntol te uavigrible waters of the United States, adjoining charge w-,s Maused solely by '(A) it] act of Giod, (13) an act of war, shore~lines, or into or upon the wvaters of thep contiguous zone0, theo Presl- (C) nlegligelce, oil the part of the I'llited States Government, or (D) dlent is auiitlorized to act to remove or arranged for' the removal of such an not or omission of a third party without regard to whether any oil or substance at any time, unless lip determines; schal removal will be Such art ol. oulissioll wasn or was not negligent, or ally eomnbiluitiol of dlone properly by the owner or operator of the vessel, onshore facility, tle foregoing clause,811 we pfo hc oroiffshore facility from whlich til icageIocus ol o hzrlu substance isdlscharged in vioai ofsbeti o "1(2) Witllin sixty days after the effective date of this section, the (b) (3) of this section shall, not withlstanding anly oth'er provision of President s11all propare arid publish a National Contingency Plan for law, be liable to the Ililitedl States (Goverunmnet for tIle actual Cocsts removal of oil anid hazardous substances, plirslant to this subsection. mncls([red el IIIC'slubsectioll (c) for tile lell1oval of sitch oil 01 substance= Such National Contfingency Plan shall provide for efficient, coordi- by thle Uinited States Governmrent in LLD amnount riot to exceed $100 tiated, andf effective action to minimize damnage from oil cr~ld hazardous per gross toll of s11(11 vessel~or $14,000,000, whlichiever is lessor, except substance discharges, including containment, dispersal, and removal of that welertie the Unit ed States can -show that allell discharge was the oil anid hazardous squbstances, and shall include. but not be limited to-- reslult of willful negligence or willful misconduct winthin the privity "&(A) assignment of duties and responsibilities among Federal lul1d knowledge of tile owner, such owner oir operator shall be liable departments and agencies inl coordination with State and local to the Inlited States Government for the full amnount of ouch costs. agencies, including, but not limited to, water pollution control, Suche costs SlildI constitute a Ianaritie lien) on suche vessel wthich way von.selrvation,Iand port authorities; be recovered in ane action in remt in tile dlistrict court of the Untited! 14.(B) iden *fication, procurement, maintenance, and storage, of States for alny district wvithinl which allyl vessel ulay be foud. il equpmetand [upieOl1nted States may also bling attaction against thie Owner or operator "9(C) establishment or designation of a strike force consisting of such vessel ill any court of ebmpetent, jurisdiction to recover stlch ofjcprsonnel wrho shall be trained, prepared, and available to pl'o- costs. vide necessary Services to carry out the Plan including the estab- "i(2) Except where anl owauer, or operator of anl osllaore facility can lishment ast major ports, to be determined by the President, of prove that at dischar-e wNas caused solely by (A) an act of 0od, (13) enlergency task for-cesof trained personnel, adieqiatcoil anidhaz- atnact of war, (C) neg]igen0' oil thec part of thle United States Gov- ardot~s substance pollution control equipmellt anid material, and ermient, or (D) an acot or on:JJ00,4 of a third party without regatd to adetailed oil and hazardolls substance pollution prevention and whether, any Such act or, ozqalxon w as or -as not negligent, or ally removalfilkil;*. comlbinlationl of thoe fovOlik.o1Jl uses, such owner or oeriiator of any a syst"i of surveillance and notice designed to insure such facility fromt wiic oi lazardous substance is dliscaargmi il earliest possible notice of discharges of oil an d hanzardous sub- violation of subsection (b) (3),oilttids section shall he liable ito the United stances to the appiropriate Federal agency; States Government for the actual costs incurred under subsection (c) for tho It(Ei') establishmnent of a national center to provide coordination removal of suclI oil or substance by the United Slates Govecrmomen In all and diectio for peratons incarryn g o u thePlan;amount not to exceed $8,000,000, except that where the United Statos can illid direc ion f r ope atio s in arryi g out the P an.;show that such discharge was the result of willful neglig ence or willful "(F) procedures anid techniques to be employed in idelstifying, misconduct within the PrIviihgaid'kilwledge of tile owner, such owne~r Or containing, dispersing, and removing oil aiid hazardous operator shall be liable to lhci', I~t~jtts Gvrmn h ulaon substances; . .of such costs, Tile Unitdh spiitybiga c~naiii h owner or ti()a schedule, prepared in cooperation with the States, idell- operator of such facility In'~afeur of competent jurisdiction to recover tifying (i.) dispereants arid other chemicals, if any, that may he such costs. The Administrator Is atllorized, by regulation, after consultation load inl carp ing Lout the Platt, (ii) the waters in w~hich such dis- with the Secretary of Commerce asllthe Small Business Amnsrtoto pe$ Tchemicals may be used, and (ii) the quantities of establish reasonable and cquitablo,16WaIficatiolns of those onshore facilities such disPersant! br cllelicatl which can be used Waely in such having a total fixed storage cqoaclt~ of 1,000 barrels or less which fie wates, wtici beiedle sall rovde i th cas *nydisersjnt, determines be cause Of size, typei'aid location do not present a substantial chemical, or waters not specifically identii Ae) n~ic scedll e that risk of the discharge of oil or a, hazardous substance in violation of tihe PresidWent, or Ilis delegate, may, on it case-by-case baisis, Wme- subsection (b) (3) of ibis section, said apply with respect to stuci classifie- tify the dislbersants and Other chemicals which maIy be used, the lions differing limits of liability which, may be less than the amount waters ill w lie the~y may be used, and the quantities which can contained in this paragraph. be used safely ill suchl waters; and "()9 cp1hr0nowoo prtro 1 ofhsefclt a "() systehn 'whereby thle State or States affected by a diB- prove that, a dischlarge~ was caiused sololy by (A) an not of God, (11) charge of oil or hazardous substrance rriay act where necessary to an not of war, (C) negligence on tile pltrt of till United States Gov- remove such discharge and such State or States may be reimbursed ernimeit, or (D)) all act oronlmiasion of a Il1i rd iplllty w ithout regard to fromt tile fundoestablfished under subsection L~k) of this scetion wlletller any such act or emission wvas or wvas lnot nlegligent, Or Iany forthiereasonable costs Incuirredixinstich realoval, comnbination of thle foregoing,"clatises, suvih owncr or Operator of any The President may, from thaw to time, as fie deems advisable, revise or shlfn facility frotn wh'lichl Oil Or J haZArdous SlubStllNe is disellarged inl otherwise ariened the National Contingency Plan. After publication violation of subsection11 (b) (3) 'f this gecti oll shatll, notwithsftanlding of the National Contingency Plan, the removal of oil and hazardous all Othler provision of lai, heiIUble to thle United States Governilntin substances anid actions to minimize damage from oil and hazardous forythe a~ctulal cosiat innrlrrd nudler silbscetion (c) 1`11r tile remloval Of substance discharges shall, to the greatest extent possible, be in accord- such oil or substitute by the. t1aitod States (lovernulent in anl anlount anlce with the National Contingelicy Plan. nlot to exceed $8,OtlO,0itt, excerpt that whlere t lie United States call show Oi(td) Whenevefj m arine disaister in or upomi thle Iavigable waters that slleb dischal'g was the fesulitlf willful negligence or willful rling. of (h Uusted Sateshas cucateed a substantial tisreat of a pollution codr ibiltepivity find knowledge of the owner, etleb owber Ilazardl to tile public health or welfare of tile United States, includimlg, or operator shall be liable to'tho United,( States Government for th~e but niot limited to, fish, sh~ellfish, anid wildlife and thte public asld pri- full].amount of s1111cosh ieUie States meay britlg al lattiomi vate shorelines and beaceles of Clio United States, because ot a dis- against tile owner or operatt~r of such a facility in tiny court, of conk. charge, or all imminent udischarge, of large quamitities of oil, Or of a potent jlurisdit-tion to recovev sucih costs. hrazerdolis substance from a vessel the United States may (A) coordi- `(g) it allty case wvher~. lv'.o~!nr or oLberator of a vessel, of an lists and direct all public and private efforts directed at te) removal Onshore faiilo fo noffsldtfacility, from whbichtoil or a hazard- ()1 elillnlation of such tilleat, and (13) summarily remove, and, if Gus substance'Jis dsardJ)iotfnofsubsection (b (3) of ulecessary, destroy such vessel by whatever Ineans are available with- tilis section, proves that ouchi iil utmrge of oil or hlazardotus substance olut regard to any' provisions of law governinig the employment of wits callsed solely by an fact oroffluselon of a third party, or was caused persolitel or the exp'erditul'e of appropriated hi~nds. Any expense solely by such anI act or oij~inconlllluatioll Willi an net of God, ,llcurred under ~hiia subsection shall be a cost incurred by tise United an act of war, or ilegligence minlie pltrt of tOm United States Govern- States Goverinment for the purposes of subsertion (f) in the removal ment such third party shh owtsaligany other provision of of oil or- hazardous substance, law, be lio'ble to tIle 'Unitvd statces 'overlnleut (or the nctutuul co~st er:u0Q) uullddition1oany other action taken by it State or local gov- illclrred uindel' subsection (el for removil of sucb oil or substance by emetwhen th ivient determines tilere is an imminent and sub- tilie U~nited States lover-mneseit, except "Ill-r -h,1 third part ca stantial tllreat to the public health or welfare of the United States, prove tliati suit discharge was Caused solely by (A) all Alat of God, including, but notlhimnited to, fish, shellfish, and wildlife and public and (,B) an act of war, (C) neglig~eace Onl the part. of thle United istanus wrivat property, shorelines, and beaches within tile United States, Grovernment, or (I)) an~ act or omission of another party %without ec'jailse of anl acttual or tilrcatened discharge of oil or- hazardous, sub- regard to whlletllel such act or Omsidsion Was or was not. negligent, or stance ilnto or upon thle na~vigable waters or Clip United States from an any combination of the foregof laues Ifsc hrd pusrty'iwas oloslilor or offshore facility, tile President snay relluire tile United Clio Owner or Oplerator of a, veoo.wluich caused the discharge of olil or states llttorlley of tile histuict inl which thle tllreat ocelirs to secu~re a hazardous sltaci voet of subsection (b) Q~) of this see- sstel relief as tmay IN necessary to abate sisch threat, asid the district tioll, the liability of such iMhird ~i'Y under this subsection shall not 418 exceed $100 per gross toil of such vessel or $14,000,000, whichever is the waiter's of thre reil iguous zone, (11) withI or' without a& warrant. arrest. V. ~~~~lessr. In any othier case thre liability of such third p arty shall not rurry person who violates the provisions of this section or, any regyulat- exceed thle limitation which would have been rapplicable to the owner tion issued tirereundor in his presence or- viewv, and (C) executo any. or. oer-atoir'ofthe Vessel oi. tho~onishlore or' Offshroir reailit~y from which. warrant or Othenr process i~ssued by anf offivor or court of comopetent hle risellargo arctual ly ocer ired if Suchi Ownerc or opler'ator' were liabletr. 'jurisdiction. If tre, Unlited statrck'call slow t cit thre rlisclarrge of oiil ora ha Irzardorrs, `(n) The several district courts. of tilt, United states are ifivested arlsubsanice in v iolrt ir ot' (in soiso't iou (b) (3) of this stct ior Was the with Jrrrisdictiorr for ainy notions, Otherr thnrri actions pursuanlt, to Sul) resrilt of, wilill frlnegdiwigerck. or' willfill irrisconluct within tile pr'ir'ity sectionl (i) (I), arising under this -ection. In thle casei of (Inoama and :1,r0 kite nirilgo of slirr' thi ird par ty, -Lir'le thirdr party shrrl Iibe liable the Trrrst Territory of the Pacific Islandsr, sucrl aret ions uniriy ble h)rolobt toi the utriitc'd states (ir'rrrrtfor' tihe full arrrorrrt of sudi' r'emoval ir tile district. r'orrt of (4utrun, aind ir tire. case of trell Virgin leilanitnt costs. Thre Uniteld States Anra y br'irg all Let iorr agauinst tire thrirdI irrry in such actions wray ire brought in the district court of thet Virgin IRslads. rury courrt of crrrpeterrt, jurrisdir'tiorr to rveover sircir removal costls. In tile carse of Arnr'riearr Samoa and tIre Trust Territory of tIts Pacific (it.) TI'le liablilities ost ablrislwed ry I Iris Sect iorrsra in r ro way ritfect I-slands. srrchr riiorts nirry lie brough t. in tirle I istriet Courrt of thre tirry righrts wlricir ( t) thle uwrrer or' oplecrator' of at vessel or of tit onslrore United states for' tile District of Halrwaii reinn such court slrail have (rei lit y or' Atli Otffshrore facility rrrrry Iravi 1e c-'ri rrst a rry thinrd airtiy' wlrose j trrrisdict iorr of Srrclr rrtions. ID tilt'.case of t Ile ell nall Zone., srrclr actirrns act,, rray irt arry way hrave carrsed or' vnrtribrited to srrc'li dischargeor' rrr ay hea lrorrglit, in tirle JUnited States D~istr'ict court for tire District ('2) Th~e UnTited States (Iuve'rlnrrrrrt; rrraly lirave trgainr rt ally thIirdi parrty of tile ('aurrii Zonec. wI oseto'icrrs rry h aiy wry rire auted ii orr rinutedto ireci s-(o) ( 1) Notbir g in this section shlril atfea t nr modify in anly wNiry wlrarg aofli oi l y or allyrzr'drr sr lrstrrrcalqdo. tcre olligrrtiorrsl ofs -iart ownr Orperator' of arny vessel, or' of arty owner " 1l() tit ar ry crise! N01ree artl 0 wrer' dr' opt' corrr of at vessel or all or ollrpector orf rirry orrssrore facility oi, offahnirre facility to rriny person or' or rshl rolfraci lity or '11rr otislroro facility frorrr wilrrrlr oil or' a harzar'dous rrgerrcy Unrder -trry provision of I aw for' dlamages to rrruy publicly srrlstanceo is clrstbr'lrged ilr Violat ion of-srrlnSOr'rinrr (b) (3) oftlrissectiron owned or privately owned property r'esrultinrg fromt rr discharge of any actsr to r'errove srrnh oil orc srlstrurce irt atc'ordarne, wit II regrulrationrs oil or irasrrdorus surbstance or from thel rerioval of any srnr'l oil or pnr'orrrliated luruit'arrt toi this sRection, sttc.h (Nvrrer' or- (wrcrator' seirc ille haz~ardotrs substance. ontititld to recover' th rsorrarile n( siiu'(di r'rtitvlrpr "(2I) Nothing ill tinls lveioshlbe Construed its proffnrptirig airy ('sta1blislnIrg, in rsrit SftWinch lricy hle br'onglrt against. the U~nited Stattesr State or politicail Subdivision thereof froir imposing anly requhsnrent fiover'irrrent, in thre'Unrited States Courr't of Clrrirns1, that such dischirare or liability wvithr respect to the disclinirge of oil or Ileart rdann Substance wits caused solely, by (A) art act. of (led. (ii) arr act of Warr, (6) bitoanly writers within srrch'stitte. negligerre oil thre prirt of tIre Urritecl States Gorvenrmnert, or' (D)) art "(8)'Nothing in this section Ehlla] be corustrrred ats affecting or' niodi- act or' oril issiron of a tlrirc partiy Withourt regard to wiretier suich act fying arty other exist irg authority of Iarry Fedierail departnrent, agency, rrr orrrissiorr was Or was3 rot rr'igeariat., or. of artly corrabirratiort of tIre or inst'ruorerntrlity. relatlive to ai-whiore ire offsirore itreilities kunder this t'rrrngeing causes. Act or airy other' provision of law, or-to afe rty tt o'lcallwnt "&(2) 'rile previsiocts of thIs surbsection shrall rrot applyl irt any enise ineoniflict withthiissoctin. at tueo a o whor liailiy isestblisted rrrsrract o tie tirtnn' (orr irrrtal'Sirf ' (p) (1) Arty vessel over' three. irrrrrdredC gross totis, incrdirrg all Lareds Act. bat-go of equrivaleiut sive, brit not irteirdirig arty barge that is trot FAl 4(3) Any amiount paid in aacoirdrrrre with a Jrrdgrrtent. of tire, United [)'peltdiriltrt.derotcry ro'irra'losrhtrnsase' "tat-es Courrt of Clarims prrr'scrrlnt to tins Setirrrr Sharll Ire prtid from or' ople. rsirng rtnry irort or' place in the United States or tits niavigabile tile f inids established pursuant to subsection (k). Water's of tile I'lit(it 'Statos for tany pr'rn'srl salstrn an 01(j)() Consistent With tIle Natiortal Corrirtngertcvip Plait r'equrir'cd tarirt urd'r' regurlationis to be prescr'rhcd froun tinne to thuse by thle Pres~i- by srrrs'tiori (c) (2) of this section, as sroonrits pr'ruti'rrlrle nIfter tire, denet, evidencre oIf firrarlicial responisibility of $100 per gross ton? or'- effective date Of this Section, rurd froni tirite to trirrre itlerpefter,, tIre, $14,tt00t,0tt0 wbirirever is tire! leester, t osrr't tire liability to the UIrt11d - . ~~~~~Presidernt sIrall issue r'egrrlatiorrs consirtenrt. Wit][Illrrrtitirrre stifety arid Stattes whielte snich vessel could be subjected under this section. In cases withl mrarince and niavigationt laws (A) estabilishirng riteflors andi lrr'r- wirere rrr owrrer' or rrper'rterr owns, operrites, oir- chrarters mor'e tiran on aedurres for' removal of disdirarged oil arid lrazar'dorrs Srubstrances. (11) stich vessel. firrancirtl responlsibility need emily be established to nreet estrablishing criteria for' tire cldelcrpntru'rrt r4l inrlrlerrteclrrtiorr orf loern thre rnirnudmr lirshility to which the lanrgest 'of snitra vessels corried be rind rcgicrrrrl oil and itazar'rlcas sctlstartce r'erroval c'orrtirrgertr'v plaits, sunbjected. Firrrnttciai r'esporrsibility nifty bar established by any erie of, (C.) .establishing prnrcerlurres, rretlirords, ann eqrirrirrrn't arid Otherr or' a corrrbinnnrtor lif. tire following nietirods acceptable to thle Presi- reqtirt'rrertsfor eqrripmrenrt to prrrvrcrt dischar~r'ges of oil rrnrl hazard~'c- denit: (A) (evidence, of irisirancee, (13) Surcety bonds, (C) qrralificatialr outs surbstances fr'ort vessels arid frorr crrshlrrre farcilities rnrd ririlslor' its a self-irsrsiei', or' (D) other eviderree of fulinancia r'esponsibility. Ally fixcilities, aird to cortlair sticit discharges, anrd (D)) Lrover'irirg tire borrd fhied shall be. issrred by a bondirtg comipany anithorised to. 4l butrsr irrspeet ionl of Ve'ssels ra rr'yi rrg cargoes rrf oil andir Ira zrrrdlor s risi trilters [less tfin Uh nritedl States. and tine itrshection of suclr ciurgies itt ordclr' to redrccci tire likealihtoodc "(2) 'fire pr'ovisionrs of par'agrripl (1) rif this subsection Shall be of discharges of oil f rorri vessels iii violiertirn irf tins section. v'trective April I3, 197 1, with respecttmA oil arid one year' aftortlredato of "i(2) Arty owner or operrituir of Et vessul cii tint onshore facility or' sri enactuireirt of (iris section with respect toi Iraar'dorrs Stubstances. Tile offshore facility and any other person subject toe arty regrilrtionr issued lProsidu'rt shrill delegate the responnnibihity to clarry out thre provisions under prLr'rugrrlph (1) Of this rtirSeC-tior Oil W l f ailIs cii' refrice's to ctnriphv of thIs subsection to tire appropiriat agency head withrir sixty dirys with tire provisiours of any such regcrlatirrrs, shall be liable tor a civil fiter' tire date of enactment of this fuection. Regulat~ions necessary to penalty of not more thtan $5,rttt for' each ,;rrub viorlationt. Ear'lr virriat ion iriplemnenit this suursectiori shall be issued weithrin six months aftelr tire sirall be at separatteotleuuse. 'Flit) Presidenot niray irselss and coorproririse (late oif eriretnilenrt of tlis sectiont. such peiialty. No pertalty shall be asse'ssedl urt~il the cine't', o1)lre'rtoc, "(3) Ally r'lrilnr foil cosits irteurrerl by ucrai vnqserl nitty be br'orughrt or other peison perar'ged Shall ir'efe beert give'n notice raunrd air (pot.i11tn- directly urgkinirst t1re rntsur'e' or' ally otitr'r' person providing evoidene of nity for a hietning onl such cliarnge. In detcrinrinitig t, le rumounit cof thre fluuriitial r'espcrrsibility nrs reqtived under this subsection. itn tire case penalty, or tire amorrnt agreed ripoit inn comipromiise, thre grarvity of 'if rairy iart ion plnn'srrarrt to this snubsectiomn such tinimuer or' othnlv er'orr thre violatiort, and tire, denirnostrated( griod fanithr of tire own'er', opt'r'zttor', smith] be cittitieni to invoke till rigitstrai ard efeutacs wviich wonrid lrivn' or' other' persort charged it antennnpin,, to achrieve rapidici'ortrialitnie, been'n'iinu ilinhle it) thre owner pr' operator if air actioir had been broughit after notificatiora of a violat ion, Shall i7re conrsicer'ed tr.y tile Presicdent. rgarnist. Itii byN the chirinant, rind whi'hr would have been available to "(k:) There is hereby auithorized to bun approcpriatted tor a revcolvingi Irinti if runt recticnr hind leen'bi'right. agrninst Thim by tire owner or fund to be established in thre 'r'enrstr'y mnot tin 'x~r'c'i $35t,r000titfl to oli er'ror'. carirry out tlie pvisirt o sinsectionis (C). (,I), ( Ki) tid (I) of' thins "(4)Ary crwnci' inn' Opertator of ai vessni subject to this surbiretirin, section. Any otiere flunds n'cceived try thre lrictic statn's rlidrlt'1 this %V1no fails if) conriphy With thrrtiprovisiorts of thius subhecetion or nunry cog' section shall also be depnisitcr i it saind fuid for't~ s uch l-Iiit'nsns. All sirns Ui nt iurt issarrd mu' r'entdrt'', tShall be snibji Itno a fute, of noct nirure than appropriated to, or deposited irr, snuid fun ltiti 81 remaCI1in l.aviilahnhe $t,~ until expenrdedi. "(fr) Tire Secretnry of tine Tr'easur'y mniry refuse the clearantuuc' "(I) Tire Pr'esidentt is rtnubirc'izotl tin rlc'egrttc tire nrulriliristirrtinii rqurdm etiort49 of thellerviseclSntne rturUie tts r this sectiern to tire he'ads oft those F~edleral clepatitiiterns, ;rrurc'nrins. ruil altrnaennun (4 U.S.CO. 01) ,to arty vessel snnljr'nt. tin thIs submeetiri, rvlrichn C ~~~~~~irttriuiknnrtruit~ies witich Ire clnter'rninuenrt Icrle, nrippri'priitte. A AINy nntnnnev,v Atom rct. Ialve evidence fnnm'ishsrd by tihe Presiionlrt that tire intrfaruiut inl the finrrc establishred by snnlrsr'ctimnr (Ik) of thins sectfinn slighrll Ir nviui- responsibility p'ov'isionns of panrrgrruph ()of (Iris nubtisrctiorn hravi' hnri able to surrit Federal depart rrn'rnts, atgemn'ts.mci irt'rner~ Ites, an o rcomplied witir. carry ort, tIre provisionis of sinisectionrs (o) amrd ( i) nif (Irissr'ctinnrr. Eachi " i(6) Tire Secr'etarry of tire Dpr'nrnr.in whnich thle Corneit QuainrrI surcirf departmnert, agencey. atind irnstrumnnrntarlity, iii ornir Inn ar'rnidclrirpili is operate na A et entry to allry poll oi- prlace in the I'ritt'sh cation of elfor't, shall, Whenever' rrppr'oprirute, utfilize trine per'sournnel, States or ie irnrvigable 41v wa ns of tire hTrritod Staten, to, annul (13) Aletaini services, anmd facilities of mnthrer' Feuleral dleprur'tnenrts, ugenreit's, runic litt tile po~rt or PhIr ce in tb5 r itJV dj Stati-M fr'orr Which it is unairnu to A* ~~~~inist~rumenettrlities. riepirti for' runry oilier por't. or place in the UnRrIt Stnrtes, any veerrind sitm- " (nt) A nyonre aitnthoi'izu' by tile Pi'utsidei'rt to nnrforur'e tIe in 'criirri t to 014ii surhisectioni, which iuponi rnujrnnrst., doe's riot. pr'unilo I t eurvirdrnc'u, of this secticin oray, except as to Irublic vessels, (A) boardurr itrn itnspn(t; fur'nishedc Iry tire- i'retridrst that, tire t~~innnrial ruisporrerbility prnr'vcigiirr arty vessel upon tile, niavigalble wirter's of tire United Stirtes Or' t~rie of par'agn'itph (I) of tiris subsection harvu' beenk corapilienl with1. 419. U.S. v. BOYD, and regulations and applicable ,water quality standards. (Emphasis .ad,.) 1163 (9th Cir. 1973) Paragraph (3) provides for the issuance of regulations by the President to,# elin- eate those quantities of discharges which will be "harmful to the'p!ppblic health pr welfare .of the United. Sttes, WEIGEL, District Judge:' including, but not limited to, fish, asell- This case presents a question of first fish, wildlife, and public and p property, shorelines, and beaclis'.;. impression as to the validity of Regula- ' ; tions of the Department of the Interior These provisions were enacted a5s part prohibiting discharges of oil into the of the general statutory scheme 'erljod- navigable waters of the United States. ied in section 1161 for the control 6f oil As applied to the facts in this case,,we pollution. Section 1161 is, in turn, part have concluded that both the regulations of the Water Quality ImprovementAct and the statute upon which they are of 1970 (Pub.L. 91-224, Title I, � 102, based are valid. 84 Stat. 91, 97-117, codified in 33 U.S.C. Appellant Robert Blaine Boyd was � 1151 et seq.), which amended, inter charged by information with violation of alia, section 11 of the Federal Water 33 U.S.C. � 1161(b)(4) which declares it Pollution Control Act of 1956 (Ch. 518, to be a crime for any captain of a vessel � 1, 70 Stat. 498). in United States navigable waters to fail Pursuant to subsection 1161(b)(3), to notify immediately the "appropriate" the President by Executive Order (Exec. federal agency in the event of a known Ord. #11548, July 22, 1970, 3 C.F.R. "discharge of oil from such vessel." 539 (Supp.l972)) delegated to the Secre- Conviction may result in a fine of not tary of the Interior his regulation-mak- more than $10,000 or imprisonment for ing duties. On September 9, 1970, Sec- not more than one year or both. The retary Hickel issued the Regulations type of discharge which brings the pro- which were duly noticed and eventually visions of paragraph (4) into operation codified as Environmental Protection is defined therein by reference to para- Agency, Regs., Discharge of Oil1,40 C. graph (2) of subsection 1161(b) which F.R. Part 110. Of these Regulations, plovides: - subsections 110.3 and 110.6 are salient The discharge of oil into or upon to this case. the navigable wate(rs of the United States, n harmful quanti- 110.3 Discharge into navigable wa- ties as determined by the President ters harmful. under paragraph (3) of this subsec- For purposes of Section 11(b) of tion, is prohibited, except . . . the Federal Act [i, e., subsection (B) where permitted in quantities and 1161(b)], discharges of such quanti- at times and locations or under such ties of oil into or upon the navigable circumstances or conditions as the waters of the United States or adfoin- President may,. by regulation, deter- ing shorelines determined to be harm- mine not to be harmful. Any regula- ful to the public health or welfare of tion issued under this subsection shall the United States include disciarges be consistent with maritime safety which: . . . (b) cause a film or and with marine and navigation laws heen upon or discoloration of the sur- 420 tfuc lof the water or adjoining shore- prior decision was erroneous. He de'--: lines. . . . (Emphasis added) dcared that the sheen test was a "proper determination" of harmfulness of dis .i � 110.6 Exception for vessel engines. charge . . and must stand n- charge " and must stand un- i, For purposes of Section 11(b) of less shown to have been: arbitrarily ir .: the Federal Act, discharges of oil capriciously concluded. No such show- from a properly functioning vessel en- ing has been made." 2 The motion to gine are not deemed to be harmful. dismiss was thus finally denied, and (Emphasis added.) only thereafter did the parties enter into Reading the statute and regula- the stipulation of facts as set out aboveI.: tions together, a discharge of oil from a Since a dismissal motion raising the is- ship is "harmful" and prohibited, if it sues of law had been denied, the stipula- produces a sheen on the water's surface tion concludes: "[T]he facts set forth, -: and if it does not come from a properly above, without more, provide a suffi' functioning vessel engine. Under cient basis from which the Court can subsection 1161(b)(4), any ship captain find, beyond a reasonable doubt, that who does not immediately notify the ap- Boyd is guilty of the offense propriate agency of such a discharge charged. may be criminally prosecuted. (The ad- ministrative determination of discharges After trial to the court, the judge con- vieted Boyd, suspended Sentence, and "in harmful quantities", stated in Regs. �� 110.3, 110.6, will hereafter be re- placed him on probation for one year. ferred to as the "sheen test".) Boyd's major contention on appeal is.' This brings us to the facts of this this: The sheen test improperly defines as case. Just before trial the parties stipu- as "harmful" a broader class of oil dis- lated that: On September 4, 1971, Boyd charges than Congress intended; the di- was captain of the merchant ship M/V rect-result is to make criminal a failure MERCATOR, a crab processing vessel to report a discharge in cases where it is which was then moored at a wharf on not harmful; therefore, the entire regu-: the Salmon Bay Waterway in Seattle. latory scheme (originally codified in 18 A crewman on'the ship was transferring C.F.R. �� 610.1-610.9, and now codified : diesel fuel oil from the port to the star- in 40 CF.R. �� 110.i110.9), of which board fuel tank by means of a hose. lie the sheen test is the: eo',ertone, is in- accidentally knocked the hose out of the valid as an abuse of the,: rule-making starboard tank, and "approximately thir- power which Congress gaveIto the Exec- ty gallons" of oil vwere discharged into utive Branch.. Boyd also argues that the water, causing a visibly iridescent subsection 1161(b)(4) is-void for vague- slick or sheen on the surface. Captain ness. ; . ' Boyd knew of this spill at the time, but turn rst e attac on he failed to notify the U. S. Coast Guard firs t to th e attack on the Regulations' the'lseI Wher"e a or any other government agency. The statute specif heeles Whe a next morning a Coast Guard safety pa- ministrative agency the tower to make trolman noticed the oil slick around the rules, courts recogn' "- presumpton MERCATOR and reported it. ege apresumption that such rules,'when dUlY noticed, are Upon being charged with a failure to valid. See, e. g., Gray v. dowell, a14 U report under subsection 1161(b)(4), S. 402, 411-412, 62 S.Ct`326, 86 L.Ed Boyd had moved to dismiss the informn; 301 (1941); A.T. & T. Co. v. United tion on two grounds. His first cl/ai,'. States, 299 U.S. 232, 236-237, 57 S.Ct. was that it did not state facts suffici!? 170, 81 L.Ed. 142 (1986); Pacific to constitute an offense against the:; States Box & Basket Co. v. White, 296 United States; his second, that parsa U.S. 176, 186, 56 S.Ct. 159, 80 I.Ed. 1'38 graphs (2) and (4) of subsection`{ (1935). The presumed validity of a 1161(b) are unconstitutional. After tlevi general regulation, in contrast to that of filing of extensive briefs and aftei,"S, an individual adjudication, does not re- hearing, the district judge granted the : quire special findings. Pacific States motion to dismiss. The prosecutionf Box & Basket Co. v. White, supra, at filed for reconsideration, and after an-M, 186, 56 S.Ct. 159, This presumption is other hearing the judge again granteda rebuttable, particularly where the gov- the dismissal. However, on May 2;' erning statute is penal, upon a showing 1972, the judge wrote a letter to the'' that the challenged regulation is an utn- parties stating that he had decided hi la 421 reasonable. exercise of the delegated that Boyd might have standing to corn- power-i.e., inconsistent with the stat- plain of hypothetical applications of the ute. See, e. g., Commissioner v. Acker, sheen test, he cannot rely upon judicial 361 U.S. 87, 90-92, 80 S.Ct. 144, 4 L. notice as to the effect of oil spills. See Ed.2d 127 (1959) ; United States v. Cal- 9 Wigmtore, Evidence, � .2571, pp. 547- amaro, 354 U.S 851, 358-359, 77. S.Ct. 550 (3rd ed, 1940). Boyd's argument is, 1188, I LXEld X,304 (1957). The bur- therefore, speculation, unsupported by den placed on. Captain Boyd is thus a the record. heavy one, for he must show that the Aplatnx otnsta h sheen test determination of harmfulness Appellnt next contedevse tn ordert cannot beconsi~erd a reasoable ex-achieve workable administration, ther'e- peioofthoug CongressIonas gill ven th xc-by subverting Congressional intent. l~e though Cogress ha given te Execu-quotes from the affidavit of Kenneth tive broad authority to make that Biglane, an Interior' D"prmn dnn determination: . ~~~~~~~istrator whose self-doici'ibcd duties in- [61 To meet this borden, Boyd eluded the formulation and direction of argues at the outset thiat (Congress did "national programs to respond to dis- not intend all oil discharges to be charges of oil and hazardous niaterials deemed "harmful", and the'refore there and to prevent such discharges, pursuant is a certain class of de mifniriM8 dis- to sections 11 and 12 of the Federal Wa- charges to which the sanctions of ter Pollution Control Act fi. e., � subsection 1 161 (b) (4) do not apply. We 1161-1162], as amended. . agree. If Congress had meant the re- Concerning the sheen tstthe Biglane porting requirement to apply to all dis- affidavit states: charges, it could have said so in plain A major purpose of [this regula- language, rather than delegate determi- tion] is to jdefine dischargil of oil nation of a "harmful" spill to the Presi- for the purposes of the notifica- dent as it did in'paragraphs (2) andj tion requirement of section 1161(b)(4). For thi&, put-pose the Z ~ ..r1e question before us is whether or film or sheen test "Is' especially well not the sheen test, on the particular suited, since its effect is to require facts in this case," is a valid basis for - of1 ; 4.jj _T distinction between those discharges -woeefc a~~l aafl which are harmful and those which are she 3f oL up .trac f no~~~~~~~~~~~~~~wt.r Thslt~)j e matter fo Arguing agdnst validity, Boyd a responsibW- p91s Inow wh asks the Court to Ijudicially notice' that discharges must Wke,.ted. t- a. not every quantity of oil creating a been my. experiedd, fwn ',investigatin ,' sheen or discoloration on a water sur- oil spills that persons at the scene, a ad`~ face is "harmful"; that, for example, a persons responsjlel~foi' the spill, a~ single drop is~ not harmful. Here the 'frequently unawa're:. o how much oil prosecution was fore a spill of some thir- has been discharged:, .Ad its effect on~ ty gallons. The facts in this case, not the Environment, -dyen ,within ver hypothetical situations, should govern bro4a limits. U.~ifcton~ our decision. See United States v. iljglrmeznent be'a- 'mutds Raines, 362 U.S. 17, 21-23, 80 S.Ct. 519, - 'harged i~ou-ldb~i4 'al in an", 4 L.Ed.2d 524 (1960). Even assuming cases. On the bg~b hs bev. 5. Te oninalhous bil, H.. 418, would tions by Biglane, a'plal oten ds that hay"f reilairc'I reCporting only with, respect t e s e n t s ar r ne to ,liscitavges "in sjtrnji 1ittes. h he etscii~~sauoyitn (Etatilinsis fl~lfl4'd) c'onf~ltcr.No.91440,on the altar of "workae i While the 91st Cong., 2d Sess., 1970 U.S.Code Cong. Biglane affidavit 'does' .,q'0w that. one and Adnain-News, pp. 2712, 2713-e�1 reason for the sheen ieit'wa wktbe (Ii) of H.Rt. 4148, The Sein~te ni"end- administration, this ielbys no moans aA cept wiuro 1,ei~nitted by l'rMi utial reg- irrational factor or,tbeDepartmont to 1lainf s Oli,dtent withi iarititne lawsa consider', As a p 'cicalMatter,th nnd water quality standavds. hi. Lit p. sheen test is more appropriate than, for 2711)-re N 12(b) (1) of S. 7. svetiofl 102 e x m l , a n e rcltsoradtmi of the( conference substitute struck down exationtha a n SubeiJtstn orl amodetermi- both veri'onS and was eventuall enact- natilldoi ishartul A. "substanical amutest edl into law. This history at least ,lemon- spilled olishrful.f nm icul tys .ofl spill 011t rv',uA~s al 110 _L creates not only the inhern difclV oilSplltobe a "harmful" one, since of accurate observatidri ,as to the quanti- the hngsin, the legislation from orig- ty disclfirged, it alsomay spawn anj6-, inal introduction to final enactment were centive to be inaccurate so as to avoid- not insignificant. 422 the obligation of reporting. Moreover, tions at the behest of Congress. When if the term "substantial" were used, the Regulations were originally pro- there would be endless confusion over its Posed, after passage of the Act, the meaning. In any case, ease of adminis- sheen test did not contain the exception. tration is not an "impermissible factor"ing committee hearings on the pro- in theDeprtmentsdeter i. During committee hearings on the pro- in the Department's determination. Cf: Environmental Defense Fund, Inc. v. posed- 'Regulations; 'Senato" Muskie 're- Ruckelshaus, 142 U.S.App.D.C. 74, 439 marked:' "i' ' . F.2d 584, 597 (1971). . . . At a minimum the Presi- There is no evidence that the sheen dent can and should immediately by test was devised to alter the meaning of regulation prohibit the discharge of oil which exceeds the amount normally the statute, or to avoid making a deter-. anticipated in operation of a vessel. mination of harmfulness. On the' con anticipated n peratin f a vessel. trary, the Biglane affidavit expressly states that "smaller spills (10 barrels or>. It is obvious, then,/.that both com- less) 6 have a seriously degrading effect mittees [the House 'and Senate c=- on the. environment particu- mittees working on the bill] felt that larly . . . [in areas] near the the minimal amounts of oil discharged coastline. .. Where -a discharge in the normal operation of a prope.l of oil is large enough to cause a film or functioning vessel engine ought not to sheen on the surface of the water, it is be subject to the notice requirements large enough to cause significant harm of the law. (Emphasis add- to thed.environment.'!. This- statement is ed.) supported:'byr;efeirence to summaries of Hearings on Propqsed, Regulations scientific studies httached as exhibits of the Department of the Interior and is not refuted by appellant. Thus on Oil Pollution under the Water the Biglane affidavit evidences the De- Quality Improvement Act of 1970, partment's administrative assessment of before the Subcommittee on Air and enforcement problems as well as its in- Water Pollution, Senate Committee vestigation and determination of what on Public Works, 91st Cong., 2d constitutes a harmful discharge.' The Sess. at 34 (Aug. 4, 1970). two considerations are not mutually ex- After these hearings, the exception was elusive. . adopted by the Department. As quali- Appellant further contends' that the fled thereby, the sheen test met no fur- exception to the sheen test-i. e., "dis-ongressional objections. charges of oil from a properly function- We now briefly address Boyd's ing vessel engine . . "-demon- contention that the statute, construed to- strates the irrationality of the sheen gether with the Regulations, violates test itself. He points out that this ex- Fifth Amendment due process of law. ception allows a ship captain to escape This claim rests on the premise that the nonreporting penalty for any amount subsection 1161(b)(4), when coupled of oil spilled from a properly function- with the sheen test, is void for vague- ing engine, whether or not it is enough ness. See, Connally v. General Con- to create a sheen. In other words, the struction Co., 269 U.S. 385, 391, 46 S.Ct. harmfulness' of the spill is made to de- 126, 127, 70 L.Ed, 322 (1926) (classic pend on its source. While at first blush statement of vagueness doctrine). How- this may seem a curious result, we are ever, as has been discussed, one salutary persuaded that the exception is reason- aspect of the sheen test is the simplicity able. The exception relates to a specific of its application. The statute and Reg- class and, as the trial judge wrote in his ulation read together amount to a clear letter denying Boyd's motion to dismiss, command to a ship captain: "If you can "is necessary and proper if there is to see the spill, report it!" That duty of be traffic upon the seas and inland navi- reporting, depending as it' does simply gable waters." Footnote 2, supra. on one's sense of sight, is anything but vague. No man "of common intelligence ublDetermination or welf harmfulness "to the United must necessarily guess at [the statute's] Stpublic health or welfare ofncing the compUnited meaning and differ as to its application. States" requires balancing the compet- " Id ing interests of environmental protection - and unrestricted passage on navigable WAters,. It is precisely this balancing Which "the'. "properly functioning en- gifies" exception reflects. Indeed, the exception was included in the Regula- 423 A spill of approximately thirty: gallons may seem small to sdme, particularly in convictions are based, states in ree comparison to the 1967 Torrey Canyon part: casualty off the shores of England and Any person in chargeof France, or the Santa Barbara blowout in an onshore facility'' *, �p ! 1969. However, Co0nres 'enacted a law soon as he has knowl;ge of ar. d of broad application when it caused the charge of oil * '' : "frm !u provisions of subsection 1161(b) to he * * * facility inviolation of par. triggered by any oil discharge in a graph (3) of this ubection immo "harmful" quantity. Nothing has been ately notify the appropriate agency of shown, 'on the facts in this case, to indi- the United States Government of such cate that the Department's Regulations discharge. Any such person who faa determining harmfulness go beyond the to notify immediately such agency go statutory mandate. '.such discharge oshaliupon convictio, Judgment affirmed. be fined not more than $10,000, or ia. __~, prisoned for not more than one year, or both. Notification received puts,. ant to this paragraph or information obtained by the'"exploitation of such APEX OIL v. UNITED STATES ' notifications shall not be used against 530 F,2d 1291 any such person in any criminal case, (8th Cir. 1976), cert. denied, -excepr. a, jAUyof.'dFl 45 U.S.L.W. 3250 (Nov. 5, 1976) giving a false statement. The appellant arguestbi_ only an inrdi yidual, or natural person; and not a cor. poration, can be a "person in charge' within the meaning of the statute and, hence, it cannot be prosecuted. A "person," as defined by the Act, "in- eludes an individual, firm, corporation, association, and a partnership[.]" 33 U.S.C. � 1321(a)(7) (Emphasis supplied.) Before HEANEY, ROSS and WEB- Apex Oil, thus, raises a distinction be- STER, Circuit Judges. tween the meaning of "person" when used alone and its meaijng. when used in HEANEY, Circuit Judge. conjunction with the words "in charge., Apex Oil Company, a Missouri corpo- It is a distinction which the Act does not ration whose business includes the trans- itself make. United States v. Houg1.4.. portation and storage of various types of Barge Line, Inc., 387 F.Supp. 1110, 111il fuel oil, appeals from a final judgment (W.D.Pa.1974). See 33 U.&C. � 1321(sa of conviction on two counts of a three- It is, moreover, a distinction that cannot count indictment for failing to notify be supported by the purposes of the Ac an appropriate agency of the United States government of a known oil spill Section 1321(b)(5) prdiscovery e time. in violatioli of the Water Pollution Con- reporting and discovery of il dis ath' trol Act, 33 US.C. � 1321(b)(5). It wasto facilitate the iitigatol finedl a total of $20,000 and placed on of pollution damage. it is desiged to probation for three years. The execu- insure, so far as possible, that smll d1 tion of $15,000 of the fine was stayed on insure, so far as possible, that am 0 the condition that the corporation not charges will not go undetected and ter violate any law relating to pollution dur- the possibility of effective abat ing the probationary period. Two issues wvill not be lost. U--iit $tates v. are raised on appeal: (1) whether the Oil Corporation, 464 F;Jd.1124, 1127 (5th corporation is a "person in charge" with- Cir. 1972); United,! State:s v. General in the meaning of 38 U.S.C. � 1321(b)(5), American Transport tipoa Corp., 367 and (2) whether the evidence was suffi- F.Supp. 1284, 1288 (D.N.J,1973). The cient to support the conviction. We af- purpose is best served :.y holding the corporation responsibl:'~under the provi- sion of the statute. We agree with the analysis of the Fifth Circuit: Section 1321(b)(5) of Title 33 of the United States Code, upon which the 424 The owner-operator of a vessel or a "[O]wner or operator" means (A) in vacility [sic] has the capacity to make the case of a vessel, any person own- timely discovery of oil discharges. ing, operating, or chartering by de- The owner-operator has power to di- mise, such vessel, and (B) in the case rect the activities of persons who con- of an onshore facility, and an offshore trol the mechanisms causing the pollu- facility, any person owning or operat- tion. The owner-operator has the ca- ing such onshore facility or offshore pacity to prevent. and abate damage. facility, and (C) in the case of any Accordingly, the owner-operator of a abandoned offshore facility, the person facility governed by the WPCA, such who owned or operated such facility as the Mobil facility here, must be re- immediately prior to such abandon- garded as a "person in charge" of the ment[] facility for the purposes of � 1161. A The phrase "owner or operator" thus more restrictive interpretation would designates persons of a particular pro- frustrate congressional purpose by ex- prietary class as does the phrase "person empting from the operation of the Act in charge." There is no inconsistency. a large class of persons who are The corporation, being a "person" within uniquely qualified to assume the bur- the statutory definition, is included with- dlen imposed by it. in the'meaning of both.8 We conclude that an owner-operator The appellant also places reliance upon is "in charge" of his facility within the its reading of the legislative history and meaning orf 1161i. l't necessarily foa the regulations of te Coatst Guandl. lows that a corporate owner, a. "per- ti Coast Guard. ows within at a corporstatutory definition, is Both speak in terms of an individual as son" within the statutory definition, IS being a "person in charge." a "person in charge" of the facilities it owns and operates[.] But the legislative history is, at best, inconclusive and does not provide the United States v. Mobil Oil Corporation, support necessary to depart from the supra at 1127. Accord, United States v. conclusion, based upon the statutory def- Republic Steel Corporation, 491 F.2d 315 inition of "person" and, the purposes of ~(6th Cir. 1974) (per curian). the Act, that a corporation is a "person in charge" under' � 1321(b)(5). Morc- over, it must be observed that corporate The contention of Apex Oil, premised actions necessarily require the conduct of on United States v. Skil Corporation, 351 individuals. The corporation acts no less F.Supp. 295 (N.D.I11.1972), that only an through its supervisor at the oil facility individual or natural person can be a than it does through a director or offi- "person in charge" under the statute, re- c r, To the extent Ltt. guidance can he moves an important incentive for a cor- gleaned from the legislative histot i poration to train and supervise its em- suggests that liability under the statt ployees on the reporting requirements of is to be limited to those responsibe- Air the Act. Indeed, such a construction of the operation of the oil facility.:.,,,W; the statute would, in the case of a corpo- corporation is certainliyithin thatil, ration bent upon evading the civil penal- United States v. Mobtil:'i1 .Corpfi ty of � 1321(b)(6)( provide an incentive supra at 1128; United States v. GenerN not to report all small spills that are not American Transportation Corp., supr at, likely to be detected or traced to their 1288. See Conference :Report No, 9X_ origin. It would pit the employee, on 940, 1970 U.S.Code Cong. & Admin.Newa pain of fine or conviction under p. 2719. Finally, we,.ote that the appe � 1321(b)(5), against his employer.' The lant argues solely from the language at appellant's contention is counterproduc- the House Bill which used the phram tive to the purposes of the Act. "individual in charge" and which' iwa Nor do we agree with the argument of abandoned for 'thq ,,exate .i broader Apex Oil that the inclusion of the corpo- phrase "person in charge:" See United ration within the meaning of "person in States v. Mobil Oil Corporation, supra at charge" is inconsistent with the use in 1128. the civil penalty provision of � 1321(b)(6) The regulations of the Coast Guard of the' words "owner or operator." The are equally unpersuasive. It is true that fallacy of the argument is exposed by they define "person in charge" as being the definition of "owner or operator." an individual. See 33 C.F.R. � 153.01(g). Section 1321(a)(6) states: But it is also true that they do not ad. dress the issue before us. The purpose 8. We do not suggest that the class of persons included within the-meaning of "owner or op- erator" and "person in charge" are identical. 425 of the regulations is to proscribe the The facts surrounding Count three of manner in which the reporting duties of the indictment are substantially similar. the statute will be fulfilled in daily prat- On January 14, 1972, two hundred nine- tice,'" See 33 C.F.R. � 158.100(b). This ty-four gallons of No. 6) oil spilled into purpose necessarily requires that the the Mississippi River. 'Ihe spill was dis- re{ulations speak to the individuals who covered the same morning by a Coast act for the corporation. See Ritchie Gro Guard Port Safety Team. The employee cer Co. v. Aetna Casualty & Sur. Co.,426 in charge of the facility at the time of F.2d 499, 500 (8th Cir. 1970) (per cu- the spill, James Washington, did not no- riam); Parker v. United States, 126 F.2d tify the Coast Guard or the Environmen- 370, 374 (1st Cir. 1942). It does not fol- tal Protection Agency. No officer or di- low, however, that only individuals can rector of Apex Oil had knowledge of the be liable under the criminal provisions of spill prior to its discovery by the Coast � 1321(b)(5). When the administrative g;uard. expertise 'is not' addressed to the issue From these facts, the appellant argues under consideration, there is no occaslon that the government failed to prove that to defer to its determination. More- it was "in charge" at the time of the over, were we convinced that the regula- S.pills and that it had knowledge of their tions spoke to the issue, we would find Occurrence. that they erroneously interpreteda.be Each argument is meritless. The cor- meaning of the statute. See WIilderness Poration is noqlessi"in charge" of the oil Society v. Morton, 156 U.S.App.D-C facility than. io . Se 479 F.2d 842, 865 (en bane), cert. delo ;ck Central & H.R.R. Coo. v United 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d States, 212 U.S. 481, 494, 29 S.Ct. 304, 309 (1973). 306, 53 L.Ed. 613, 621 (1909); United , ' ' States v. Hilton Hotels Corporation, 467 F.2d 1000, 1004 (9t:, Cir. 1972), cert. de- q . II nieda, 'BOQ409 .U.'S S ,.X,}h, 409 93 S.Ct. 38, 35 [6, 71 Apex Oil also argues that the L.Ed.2d 256 (17i 'Further, the knowl- proof, wis- -insufficient to support the edge of the employees is the knowledge convictions. The case was tried on stipu- of the corporation. See United States hated facts, the pertinent portions of v. A & P Trucking Co., 358 U.S. 121, 125, which we repeat. 79 S.Ct. 203, 206, 3 L.Ed.2d 165, 169 Count two of the indictment arose out (1958); Ritchie Grocer Co. v. Aetna Cas- i of an offloading operation at one of the ualty & Sur. Co., supra at 500. appellant's facilities located at the foot The judgment of conviction on Counts of Mullanphy Street in St. Louis, Missou- two and three is affirmed. ri. During that operation, on the morn- ing of January 12, 1974, approximately ten gallons of aromatic No. 2 oil spilled into the Mississippi River. Robert J. i Smith, an employee of Apex Oil, was in charge and is the only known 'witness to ' the spill. He notified neither the Coast . Guard nor the Environmental Protection Agency. The spill was later traced by the Coast Guard, upon the report of a third party, to the Apex Oil facility. No officer or director of the corporation had knowledge of the spill prior to the deter- mination by the Coast Guard of the spill's origin. 426 U.S. v. LE BEOUF BROS. TOWING priations Act of 1899 (Refuse Act), 33 CO., INC., 537 F.2d 149 (5th U.S.C �� 407 et seq. (1970), which prohibits the discharge of refuse into navigable alters, id. � 407, makes any violation of the CAct by a person or corporation a misde- meanor punishable by a fine or imprison- Supreme Court, No. 76-1075 45 inment, id. � 411, and authorizes an in remin .Stlion for the amount of the fine against U.S. L.W. 3543 (Jan. 7, 1977). ;aly vessel used in the violation, id. � 412. Ruling that the statutory immunity provi- i'ns-- section 11(1l_(4.)4n Le Beouf, alnd its virtually identical successor, section 311(b)(5) in T/B CTCO-should be inter- preted to bar imposition of any monetary sanction that is what they deemed "criminal in nature," both courts reasoned that allow- GEE, Circuit Judge. ing use of evidence derived from a party's compliance with the compulsory reporting These two cases, which were consolidated requirement would implicate the fifth on appeal, require us to determine the scope amendment privilege against self-incrimi- of the statutory immunity entailed when a* nation and frustrate the purpose of the corporation's agent reports an oil spill to immunity provision by discouraging disclo- the Coast Guard in the manner required by sure of spills. section 11(b)(4) of the Water Quality IM- Both courts unnecessarily con- proveacent Act of 1970 (WQIA), 33 U.S.C. provement Act of 1970 (WQIA), 33 U.S.. cerned themselves with the nature of the � 1161(b)(4) (1970), and section 311(b)(5) of monetary penalties imposed. Such inquif - its successor statute, the Federal Water Pollution Control Act Amendments of 1972 s are necessary only when some constt- Polltio Control Act Amendmntso 1972 tional protection is implicated by the impo- (FWPCA), 33 U.S.C. � 1321(b)(5) (Supp. sition of a penalty or the statutory lan- 1974). The lower courts in both cases guage is ambiguous. In this case, no consli- tutional right is involved. The fifth amend- from any statutorily-imposed penalties that ment privile against self-incrimination are "criminal in nature." We disagree and does not extend to corporations. claifor- reverse in both cases. does not extend to corporations. Califor- nia Bankers Association v. Shultz, 416 U.S. Both the 1970 and 1972 statutes require 21, 55, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); "any person in charge" of a vessel or an George Campbell Painting Corp. v. Reid, onshore or offshore facility to notify the 392 U.S. 286, 88 S.Ct. 1978, 20 L.Ed.2d 1094 Coast Guard - of any oil discharge into the (1968). If appellees were individuals, then water in quantities determined harmful by we would of necessity examine the nature the President, provide a criminal penalty of the so-called "civil penalties" to deter- for failure to make the required notifica- mine if the immunity~provision as it applied tion, and prohibit use of information report- to them required a broad interpretation in ed or derived from that report arainst the order to pass constitutional muster, ef. reporting person "in any criminal case." Kastigar v. United States, 406 U.S. 441, 92 Both cases here concern oil spills that the S.Ct. 1653, 32 L.Ed.2d 212 (1972), or even lower courts found were properly reported to decide if the penalties are unconstitution- I,. agents of the appellees under the man- al as applied. But sinde these corporate datloay disclosure provisions. In Le Beour, dfi;tory disclosure provisions. In Le Beouf, defendants cannot claim a pertinent consti- the lower court granted summary judgment tutional protection, the issue is purely one against the gQvernment's suit to recover a of statutory construction, and appellees are $2,500 penalty aissessed by the Coast Guard foreclosed by the clear statutory wording. under section 11(b)(5) of the WQIA, 33 The immunity provision, by its terms, ex- U.S.C. � 1161(b)(5) (1970), which imposes tends only to "criminal" cases, while Con- strict liability for a penalty, denominated gress in the very next paragraph expressly "civil," of up to $10,000 on the owner or labeled the sanction in 33 U.S.C. operator of any vessel or facility from � 1161(h)(5) about which Le Bcouf com- which oil is knowingly discharged in harm- plains a "civil penalty." Only the most jful quantities. In T/B CTCO, the lower compelling demonstration of a contrary leg- (lrurt dismissed the government's in rem islative intent would persuade us to ignore action against appellee CTCO's barges for the plain words of the statute. The word- violation of the Rivers and Harbors Appro- ing is unequivocal; by it Collgress cannot 427 have intended to extend immunity to civil sino h e~ Avt are less clear---ince cases, regardless of their "nature."' Like- the funds d" I4fOM it. ai'e not ear- wise, forfeiture actions brought in rem un iparked'- to -**~*c* p e O expenses-..-tho der the 114s eAct are civil-.proce~dings-' multipurpose staUtIrY framework of the see United','tates v., T/B kNM'W a30F.Supp~f' FWP.CA'deserihWdA#ove suggests that Con 781, 782 (S.D.TeX.1971) (Be9~ Simngessi thought ftmoVing the threat of criml- V. United States, 309 F.Supp. 441, 442 (E.D ii. nal prosec~tiaj, ~Ijufficicnt inducement for Va.1970) (citing cases), and thus do not trig.'~ the "Person i~i~"to report spills. 'We ger the, immunmity provision. conclude that ift`i-did not intend to extend K~ ~ ~~~ta imunt te~nrem forfeiture proceed. Appellees suggest that the interpre-; JO ings. tation which we adopt thwarts the statuto- '4REVERSED "i REMANDED for pro- ry purpose'of assuring prompt notification ~ceig o no~setwt hsoiin of oil spills. But congressional schemes 2 need not seem to courts symmetrical, con -____ sistent, or even effective to be valid. Fur- thermore, appellees and the lower courts misconceive the multipurpose nature of the statutory. scheme. Congress intended both *to. prevenwliai'hful ~pl~and to. minimize' the damage caused by such spills. The notice/iimwit seto eie l A urdi Ary purp~s;o'' encouragifik~ t Prif cation dt ~spllwitotirngigli pro- - tection against self-incrlmiin.-ftij~~t~h same-tIlie~,the section imposin.bea ties iokei at ,least in part4,",%~ rcla argue that enforcing civil penalties 'against those Who 'give notice of spills discourages reporting Iof smaller, less-noticeable spills tha mihtothrwse*goundscvered. But theyforgt1 tat te pealt assessment functio and atthe sa e tim gives the Coast Guard discretion to reduce the penal- tv where warranted. The criminal penal- ties for f allure to report _a.spill should styffi- ciently encourage corporate: employees 'to report spills, even if their corporate employ- ers thereby incur fines. - Thus, the statute has internal consistency, even though its Provisioins occasionally-and necessarily, ]in view of the'Act's multiple objectives-work aL cross purposes. As for T/B CTCO, while the policies underlying the forfeiture provi- 428 Notes 1. 1. Under the Ports and Waterways Safety Act of 1972, 33 U.S.C. �� 122-27, Congress, anticipating the 1973 IMCO Convention, authorized the Coast Guard to adopt regulations relating to ship design, structure, and operation applicable to any vessel entering United States navigable waters. R~gulations adopted in late 1975, require segregated ballast systems for oil tankers and safety rules similar to IMCO standards. 40 Fed. Reg. 48,280 (1975). The Argo Merchant oil spill incident in December, 1976, as well as other spillages of Liberian registered tankers caused deep concern over the adequacy of these standards. Reaction to those developments was proceeding along two fronts in early 1977. First, heavy pressure was brought to bear on the Coast Guard to promulgate and enforce more stringent ship design and navigation standards than those developed by IMCO. Second, the Senate Commerce Committee held hearings on new proposed legislation that would provide a 200 mile pollution enforcement zone, standards for vessel equipment and design, and improved vessel traffic control systems. 2. Under the Limitation of Liability Act of 1851 (46 U.S.C. ��183-189), which was passed to allow the American merchant marine to compete on equal terms with their European counterparts, the liability of ship- owners for personal injury or property damages is limited to the value of the vessel after the accident. How is that Act affected by the liability provisions of the 1972 Act? 3. Suppose the United States is guilty of negligence in clean-up operations or in maintaining buoys; is the United States liable for damage to on-shore property, state wildlife resources or commercial fishermen? See Burgess v. N/V Tamano, 373 F. Supp. 839 (D. Me. 1974). 429 which was ajpprovea 1S th~o-dIstrict, court. This ~Stipulatfonite po vided for the donsioidatinq e~z cases, attorneys' feeg, theueq~~a UNIONi OIL COMPANY at al., masters,-" the Vl~~loeation.o uhrt Appellants, among counsel for the vaiu pl~tfs v. ~~~~~~~with respept t~ cont~ro n f a~y xdgatia- James J. OPPEN and John J. Master. tions a~nd theprsvtino4ean sou et al., Appellees, ri-glts'onn bel o. oh~lit~e~hd defendants. For the purposes, ot the present. ap- peal, homr~ver, *the most imfpoitaht provi- sions in this. Stipulation are those which k .hfacts and with the etn }j Te ieendants have -a? eed to - pkk -theipf[aintiffs for te~dgs 501 E. 2d. 558(9th Cir. 1.974) Terlvnpotnofthe Sti~uiiwton *relating to the facts reads ~as fofllws: OPINRYN ' ~~~~~On or about January 28, 1969,' 01 b- Before ELY and SNEED, Circuit gan to escape under and near Union Judges, and SOLMON,* District. Oil Company of California's Platf orm Judge.C.. "A" located onl the Outer Continental, Shelf of the.United States in the San- SN~EED, Circuit Judge:- ta Barbara Channel. The undersigned This s anoher ase go~in out f agee~ that the following is 4,'f air the Santa !~rbara oil spill of 1969. The.saeeto h acswt ePtt plaintiffs are commercial fishermen. *the S~tB r'PCanel ~ e Each of thei complaints alleges that the (hriatrocuene) cause 'of action has been brought under A. Certain operations conduacted oil thle provisions of the Outer Continental Platform "A" resulted in the r~e F~se Shelf Lands Act of 1953, ~43 UJ.S.C. � of unascertained amounts of crude 1:131 et seq.; that the defendants joined oil from the ocean floor underneath in an enterprise, the day-to-day opera- and near Platform "A". t~ion of which was within the control and B. Such. crude oil release wasV cat- under the management of defendant Un- ried by'n~atural forces of winds :,ind ion Oil Comipany, to drill for oil in the tides to various areas of the 6an's Watersg of the Santa Barbara Channel; surface and towards and in ~omcn that during the period commencing on instances to tile ~ddacent coast lines. or about January 28, 1969, vast quanti - ties of. raw crude oil were released and C.A unsetnd i6to subsequently, carried by wind, wave and damage, has resulted from s4oc- tidal curv~ens over vast stretches of the currenc6. coastal waters of Southern California; Paragraph 3 of the Stipuaion' Wch' trnd that kg a consequence the"p~i~,t out the, defendants' undertakin~ to have suffet'ed various injuries fo'r Which pay daiiiages~, provides as follows:' damages are sought. Jurisdiction rests In order to provide a basis for'the enOi 28 U.S.G. � 1333 and 43 U.S.C. � disposition ofteaove referenced claims it ip'Agreed 'by the unde".4gpyed On May i,1970, counsel for all parties defendants that they will pay to' the to this suit entered into a Stipulation. above refere g persons'-an'd/Or * Ionorable Gus J. 14oloiort. Senior Unite 8tates District Judge, D~istrict of Oregon, mittilag 1JY (lsigillntion. 430 plaintiffs who are, or who by reason Does the alleged diminution of t of subsequent joinder herein become, aquatic life. dfi ths Santa Barba'!'i parties hereto, all legally compensable Channel claimed to have resulted from., damages arising from a legally cogni- the occurrence constitute a legallyiz?' zable injury caused by the aforemen- compensable injuryito the CommetrciJ,,!/, tioned occurrence as such damages are Fishermen claimants? determined pursuant to the following The district judge then'went on to h61i , provisions; provided however, that that such a questiofn must be answerW.' the payment assumed hereby will not in the affirmative.; This result, he", exceed such amount and such claim as pointed out, is in no way dependent o i said defendants or their contractors whether the plaintiffs have a proprie. wotidd be responsiblue for in the case of tary interest in, or ownership of, the sea. negligence. Payment of said damages life in the Santa Barbara Channel. As. persuant hereto shall operate as an the district judge saw it, "the loss of a; assignment of said claims to said de- prospective economic advantage occa. fendants. No claim for punitive or sioned by the alleged diminishment of exemplary damages shall be asserted the quantities of available sea life., and no such damages shall be award- formed a sufficient basis for the recov. ed. (emphasis added). ery under the law of negligence." In May of 1972, the defendants moved The district judge certified 'be order for partitfi summary judgment befolre as a proper subject for an interlocutory the special masters to strike from plain- appeal, and the defendants petitioned tiffs' prayers "that item of damage this Court for leave to appeal under 28 usually denominated as 'ecological dam- U.S.C. � 1292(b). The petition was age'." More specifically, the defendants granted, and the issue now before us is sought to eliminate from the prayers whether the district court properly de- any element of damages consisting of nied the defendants' motion. We hold profits lost as a result of the reduction that the district court properly inter- in the commercial fishing potential of preted paragraph 3 of the Stipulation, the Santa Bbarbaa Channel which may and that its action in denying the de- have been caused by the occurrence. fendants' motion W'as proper. According to the defendants, such long- term ectological damage is not compensa- hlke under the law and thus is not within their undertaking as set forth in the The Applicable Law Stipulation. Determination of the proper law by The motion was denied by the special which the defendants'.motion for partial masters; int a brief order, which recog- summary judgment is to be judged turns nized that injuries resulting from "an out to be analytically complex but less; interference by defendants with [plain- significant functionally than one would: tiffs'] economic right to fish in public have imagined. As the plaintiffs assert- waters" were legally compenisable. The in their complaints, these cases are defendants then went into district court brought under the Outer Continental to object to this order, and again moved Shelf Lands Act ( Inds Act"), 43 U.-S., for a partial summary judgment. C. � 1331 et seq Pursuant to Section Once more the motion was denied. In 1333(a)(1) of this, Act, federal law.is .. his order the district judge first ob- made applicable ''to- the subsoil and-, served that paragraph 3 of the Stipula- seabed of the Outer. Continental ShelfI. tion, although carefully phrased, had the arid to all artificial islands and fixed. *s practical effect of a confession of liabili- structures which may be erected thel? aI ty for tort negligence. Continuing, the on. .. " Hdwever, as the SU'?-' judge accepted the defendants' statement preme Court has pointed out in Rod�'�!, of the issue, viz: rigue v. Aetna Casualty Company, 396 431 U.S. S52, 365, 89 S.Ct. 1835, 23 L.Ed.2d nized that tLe "activity'!Whose relation- 360 (1969), state law is adopted as a :ship to traditional �aaritime activity was surrogate for federal law under the Act to be examined was that of the injured to the extent that such state law is "ap- party, not that of the*feasor. For plicable and not inconsistent with this reason, the fact that ilriling for oil other Federal laws." See 43 from fixed platforms loated over the U.SIC. � 1333(a)(2). Thus, when ap- outer Continental $hel.f iot in itself a plied in the context of the Act, state law traditional maritime-.a,!ty was held becomes federaJ law-federally enforced, not to constitute a bia'I- for refusing to o95 U.S. at 365, 89 S.Ct. 1835. classify the wrong as ai maritime tort. It is apparent from the briefs of the It follows that in order to determine parties that their analysis did not ad- the applicability of admiliMty law to the vance beyond the point of concluding facts of this case, it is necessary to in- that, since there appeared to:,be no in- quire whether a reducti~oi;in plaintiffs' consistent federal law, the law of Cali- anticipated profits, caused by what for fornia was controlling, However, this present' purposes we iuassume to be Court's opinion in Oppen v. Aetna In- the negligent condudt:i; defendants, surance (Company, 485 F.2d 252 (9th bears a significant relationiship to tradi- Cir., 1973), makes clear that the parties' tional maritime activity, Were it neces- analysis is not necessarily determinative sary for this issue to be decided to dis- of the issue before us. There remains pose of this case, our inclination would yet a third possibility-i. e. that admi- be to hold that such a relationship does ralty law is exclusively applicable to the exist. In numerous ways, the fishing present controversy. As was said in -industry is clearly a part of traditional Aetna Insurance, the Lands Act does not maritime activity; 'and tg assert other- eliminate this possibility. wise would amount to .a repudiation of The Supreme Court in Executive Jet much of maritime history. For exam- Aviation, Inc. v. City of Cleveland, 409 pie, fishermen have been treated as sea- U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 men for purposes of enforcing their (1972), has instructed us that the deter- rights against the fishing,.yessel and its mination of whether the admiralty juris- owner; see e. g., Old Point Fish Compa- diction of the federal courts embraces a ny v. Haywood, 109 F.2d 703 (4th Cir., tortious act depends, not only on the 1940); The Z R-3, 18 F.2d 122 (W.D. place of the tort, but also on whether Wash.1927). See also 46 U.S.C. �� the wrong bears a significant relation- 531-534; Gilmore and Black, The Law ship to a traditional maritime activity. of Admiralty 257 (1957). ..(hereinafter Id. at 268, 93 S.Ct. 493. Acting on this cited as Gilmore and Biadk), P Robinson, instruction, this Court in Aetna Ins.ur- Admiralty 281 (1939); and the vessels ance held that an 'injury to maritime themselves have been the object of fed- vessels and an interference with their eral legislation designed.to afford their right of navigation, resulting from the owners many of the benefits which the same oil spill which is involved here, law otherwise provides to maritime ves- constituted a maritime tort cognizable in sels generally. See, e. g., 46 U.S.C. � admiralty. In so holding, it was recog- 922 (The Ship Mortgage Act). 432 Gu plreference for marluiinle Idw as numerous jurisdictions and secondary the law by which the defendants' motion sources, in order to reach what we re- for partial summary judgment is to be gard as the proper iesolution of this dis- measured is strengthened when Section pute. In that the same authorities and 1333(a)(2) of the Lands Act is closely sources must be examinetl alnievaluated examined. The use of state law as a without regard to whether this process surrogate for federal law is limited to is characterized as an examination of ad- "that portion of the subsoil and seabed miralty law or thelaw of lfon we of the outer Continental Shelf, and arti- are convinced that under eithi-r body of ficial islands and fixed structures erect- law the actions of the special masters ed thereon, which would be within the and the district judge in denying the de- area of the State if its boundaries were fendants' motion for partial summary extended seaward to the outer margin judgment were correct. of the outer Continental Shelf . ..." Moreover, maritime law itself fre- (emphasis added). 43 U.S.C. � 1333(a) quently looks to both the statutory and (2). The sea, as such, is not mentioned decisional law of the states for sources in the Act; nor in our view was it in- from which to fashion its principles. tended to be. Quite understandably state See Moragne v. States Mlarine Lines, law, which' can intrude only to a limited Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed. extent in matters traditionally subject to 2d 389 (1970) (new maritime cause of admiralty jurisdiction, see Askew v. action for wrongful.death to be imple- American Waterways Operators, Inc.. mented by referefe`toe other federal law 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d and state statutoryand decisional law); 280 (1973); Skiriotes v. Florida, 313 Shutler, Pollution of the Sea By Oil, 7 U.S. 69, 76--77, 61 S.Ct. 924, 85 L.Ed. Houston L.Rev. 415, 434 (1970); Com- 1193 (1941); Manchester v. Massachu- ment, Oil Pollution of the Sea, .10 setts, 1:39 U.S. 240, 11 S.Ct. 559, 35 L.Ed. Harv.Int. L.J. 316, 347 (1969). Al- 159 (1891), was not intended to embrace though in some instances this derivative traditionalmaritime activity.. i assistance may entail the application of As the Supreme Court in Rodrigue v. state law prinrig.;unlike our diversty Aetna Casualty Company, supra, has in- jurlsdicti.n i 'f.0P-requirement-al belt some Seholars have suggested such a dicated, in enacting the Lands Act Con- ars have suggested such a gress chose to treat drilling platforms as -coursv for lertain b reas ilk admiralty- artificial islands rather than as ships son, Admiralty and Federalism 194-201 subject to admiralty jurisdiction in or- (1970) and the anttdFedties cited therein. der to afford the workers on such is- lands the protections to which they In any eyent, we shall proceed in a would otherwise be entitled by reason of manner that we believe is faithful to the their citizenship in the adjacent states spirit of California tort law in disposing -subject,'of course, to federal enforce- of the issue before u. For this reason ment and tfie power of the federal gov- we are conte-t t' that for purposes of this case we lr~egd it as irrelevant ernment to' make inconsistent laws and of this case we ,red it as irrelevant whether oureff0~ve designated as an regulations. However, in order to serve this purpose, it is not necessary for us exposition of admiralty law or the law to read ieg Act as requiring that state law be treated as federal law for pur- ..A: poses of determining the consequences ' '. of torts which occur in and on the sea Recovery for Pti~�eonomic Loss in and -whlch have the required nexus with Negligence: iThe General Rule, traditional maritime activity. 'Thuiis; 'i: Defendants sutpart their motion for would appe.kr that an injury which oc-i partial summary judgmeat by pointing curs:- int the sea, as is the case here', to the widely reeognized principle that should not be held to be properly cogni- : no cause of actioi liesa against a defend- zable under the provisions of the Lands: ' ant whose negligelie prevents the plain- Act. . tiff from obtaining a prospective pecuni- We are, 'however, not driven' to thil,..' : ary advantage. See, e. g., Prosser, Law choice between maritime law and the :, of Torts 952 (4th ed. 1971) (hereinafter law of California. So far as our re-. ',' Prosser); Harvey, Economic Losses and search reveals, neither forum has made Negligence, 50 Can.Bar Rev. 580 a definitive ruling on the precise issue li " (1972); Note, 49 Can.Bar Rev. G19 before us. As a consequence, it has be- come necessary for us to examine a fair-. :t ly large body of authorities, drawn from 433 (1971); Note, Negligence and Economic Loss, 117 The Solicitors' Jour. 255 third party, cut Lwi, vowel iX. upoL (1971); Note, Negligent Interference which the plaintiff's presses depended. with Economic Expectancy: The Case Byrd v. English, 11' G&;191, 43 S.E. for Recovery, 16 Stan.L.Rev. 664 (1964). 419 (1903); contra, J. W. Moore (North See also Restatement (Second) of Torts, Shields) Ltd. v. Sharp, 108 Sol.J. 453 Tent.Draft No. 14, � 766B. As the de- (1964). But see S. C. Clt (U. K.) v. W. fendants see it, any diminution of the J. Whittall & Sons, Ld.A [19701 3 All E. sea life in the Santa Barbara Channel R. 245; SeawayI Hotels :Ltd. v. Gragg, caused by the occurence, which, it must [1959] Ont; 177, 17ai5.T;:2d 292 (High be remembered, is attributable to the de- Ct.), aff'd [1959] Ont. 581, 21 D.L.R,2d fendants' negligence by reason of the 264 (Ct.App.1960). A :defendant who parties' Stipulation, consists of no more negligently injures a third person enti- than the loss of an economic advantage tled to life-care med.eal:services by the which is not a "legally cognizable inju- plaintiff is liable to the thiid person but ry" and thus not "legally compensable."3 not to the plaintiff. Fifield Manor v. Finston, 54 Cal.2d 632, 7 Cal.Rptr 877, rests upon the proposition th a con-It 354 P.2d 1073 (1960) (subrogation also rests upon the proposition that a con- denied because third party's claim not trar rule,4hich would allow compensa- denied because third party's claim not ~~~~~~~~~trary ru$�iie wud asiJgnable). The operators of a dry tion for all losses of economic advan- are not liable in dmiralty to chr- tages caused by defendant's negligence, terers of a ship, i pacedmy its owners in would subject the defendant to claims s the dry dock, for negligent injury to the based upon remote and speculative inju- the dry dock, for wnglet injury to the ries which he could not foresee in any ship's propeller W he. injur de prived the charterer of the use of the practical sense of the term. According- p ried the charterer of the use of the ly, in some cases it has been stated as ship. Robins Dry Dock & Repair Co1- the general rule that the negligent de- pan . li 275 U.S. 03, 4 S. 134 fendant owes no duty to plaintiffs seek- 7olms, in writing this opinion, oh- ing compensation for such injuries. In Ht to the lli- other of the' cases, the courts have in- that ". . . a tt to the voked the doctrine of proximate cause to son or property o(,oie:man does not -make the tort-feasor0 liable to another reach the same result; and in yet a merely because the injrled p('1'to wat third class of cases the "remoteness" of merly because the injit potshr was the economic loss is relied upon directly under a contractr of the oolle." 275 known 'to the doer of the wronig." 275 to deny recovery. The consequence of .. at , 48 S.C. t135. these cases is that a defendant is nor- mally relieved of the burden to defend The citation of cases applying the against such claims, and the courts of a general rule could be extended, but this class of cases the resolution of which is abridged collection is sufficient to em- particularly difficult. phasize the point that it operat.es in a The general rule has been applied in a wide variety of . wide variety of situations. Thus, the of our analysis, however, one further negligent destruction of a bridge con- setting in which tli e has been ap- necting the mainland with an island, plied requires mention-that bein the which caused a loss of business to the area of the law dealing with products plaintiff who was a merchant on the is- usually couched in terms of whether': ~ land, has been held not to be actionable. Rickards v., Sun Oil Company, 41 A.2d purchaser can reco1in tort from "li}g negligent manufaci i' with whom the i 267, 23 N.JMisc. 89 (1945). A plaintiff negligent manatr with whom the engaged in commercial printing has been purchaser is not in ity, for conomic ; losses caused by thelailure of the pur.:-�! held unable to recover against a negli- losses caused by the'f.ilure of the pure ~~gent contractor who, ~in ~chased article to perform in accordance > excavation purs twho, whilacengaged wit with the purchaser's reasonable expectas.4 excavation pursuant to a contract with a tions. Defendants i the present action tions. Defendants in' the present action,-i% rely heavily on California cases which" Ai indicate that no such recovery is possi- ble. 3. Wve (de(lille to reach the issue of whether dhfCendalnts' oil Ir liling operatiollns lfistitute all "iilitrallazartlos activity" and exples;s 11o olpinohll as to the alllllicalility of this dloc- trirne to the facts presently before uIs. 434 In Seely v. White Motor Company, 63, ,A:3 Cal.2d at 18, 45gal.Rptl:. at 2:1, 1(0 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145-8w P.2d at 151. (eniSi added). (1965), for example, the plaintiff, who had purchased a truck for use in his Two things should be said concerning business,, sought to recover from the s the court's referenc.to the seope of lia- manufacturer damages representing lility in negligence.'`The filst is that it both the cost of repairs and lost profits mst be understood aswnavinbgl bein made attributable to defects irha;he perform i n th context of a navoiable ude- ance of the truck as well as that portion taking to fix the spheres in the field of of the purchase price which he had pre- e aoducts liability within which owaran- viously paid. The manufacturer had ex- ties and.strict liability were to operate. pressly warranted the truck "to be free Too much should npthbe made of a re- from defects in material and workman- raint imposed on the.scope of liability for.negligence when!i;'has been devel- ship under normal use and service" and had limited its liability thereunder "to oped for the purpose' of presevving an making good at its factory any part or area within which )warralties can parts thereof. " The trial function, The second's that this ye- court permitted a recovery of the lost.. straint. has been:,cogently criticized as profits' and the previously paid portion being unnecessary'toan appropriate ac- of the purchase price, but denied recove:i "{ ', miodation of W *ty and tort lia- cry for the cost of repairs. On appeal, :: . hee iiyihen Worlds Col. the manufacturer contended that the lide: LiabilityiL n Disclaimers damage award allowed by the trial court': . inefctive . , 18 Stan.L. had exc6eded that permissible under the Re. :974, 1002'Ot ' 6). The recov- theory of strict liability in tort, which ery of economic loss:e*ustained by an theory had superseded the law of war-. ultimate consumer, even absent privity ranty in California by reason of Greeri ' with a negligent manu/acturer, may or man v. Yuba Power Products- Inc., 59, may not be desirable; but its allowance, Ca~l2d 057,47 Cal.Rtpr. 697ikSet P.2d 82. $'in any' event wouke warranty (i962). A' ., The Supreme Court of California'd: ."h ld' that the abandonment of warranty did not extend-to tho conrmnieal 'aspects of Some Exceptions to the General Rule, a transaction, As to those.aspects, it Doubt concerning the scope of Seelu was held that recovery must b'hased on dictum is strengthenedthenll the numer. the principles of warranty law'and not ous exceptions or quahli:ications to the on strict liability in tort. Inasmuch as general rule are considered. the defendant in Seely had warranted Plobsser recognizes that a reeovery for that the truck was "free from defects in pure economic losses..ir negligence has material and workmanship under normal been permitted in ii ces in which' use and service," the damages allowed there exists "sne l relation be- by the tdial ou4rt were held to have been tween the partie':';'' sser at 952. proper. This was true, observed the The failure of the plaintiff to obtain a court, even 'though they would not have contract because of a telegraph compa- been had the doctrine of strict liability ny's negligent transmission of a message in- tort been applicable. The court's ob- has been held to be legally cognizable, servation was bolstered by dictum, upon and is cited as an exai't of the "spe- which thee'defendants in this case place cial relationship.' .E;lqieation. Id., at great relianrce, which stated that under 952, n. 79. See als:Qilkin v. Postal California law pure economic losses are Telegraph Cable-.Cortpan, 27 Cal.App. not recoverable in an action based on 698, 151 P. 21 (1915)1.(fnjuri from lost negligence. The dictum consists of the advantageous contrafiiiist not be re- following ; Vstatement: mote and uncertaIfither examples A consui'er should not be charged at which have been cite1)r' the negligent the will of the manufacturer with failure to perforni a gtuitous promise bearing the risk of physical injury to obtain insurance, and the negligent when he buys a product on the mar- delay in acting upon an application for ket. . .. Even in actions for insurance. See Prosser, at 952, n. 80, negligence, a manufacturer's liability 81. is limited to damages for physical in- . , more recent development in Califor-,. juries and there is no recovery for nia'law involves the right.to reovers ab- economic loss alone. 435 priyity, from a defendant whose 49 _Cal.2d ~at 650, -890 Flat 19 igigen't failure t0obtain&' proper at- I~ii thfas obvious a that,.,Califrniado; testation of the will of a third party has not blindly follow thek~,gentral 1-1le upo< deprived the ,plaintiff of a bequest which the defendants hei sl~y. which had been granted in the improper- ly attested. will. Biakanja v. Irving, 49 I sbtasotse a hs California cases to a bdo'$~of law 0~1istj, Cal.2d 647, 320 P.2d 16 (1958). On ap-igbt nti on~~i'i h rt peal to the, Supreme Court of California, isComnelhn''bcdenat. the plaintiff's pure economic loss Ia enae incrti po1sin, uina 1 jield to be a legally cognizable injury, a position which h a s b~eensubeunl e ., or trades have been!:held liable ,for posiionwhih hs ben ubsquetlyre- economic losses resulti~ij~rom the affirmed in Luras V'o HomImpi 6 Ca,2 eroglice f 583, 15 Cal.Rjtv-821 ~4 1 VT' Q' t pramnc ft wti h (1961) (recovery denied beeause of the' er o'teiviii4ineCnni: absence of negligence).wethscorha' tt"i:& propel. case a pes~'ru eover eco- The approach adopted by the Califor- nmclosauebyti ieignef nia Supreme Court in Biakanja. nois lo- esos uchaus bakicmissine ticularly instructive,. After stating that agents, real estate agents, accountafit$; the question before it was ".whether de- surveyors, valuers, anally4_, insurance fendant was under a duty to exercise brokers, stock brokers, governmmnt am- due care( to protect plaintiff fro'm inDjury poe~4os r and was liable for ddmages eauopd pii ' "toh aesh fi~ff"by his negligence elain: thug th ave;s red car even tdugh tey testers", " and drawer2:~~ cheques.", were not in Privity ~f contract," the .larvy cnmcL~ .dNgi. court stated: gence, 50 Cari.Bar Rev, 580, 603-04 The determination whether in a spe- (1972). See also, Hedley Byrne & Co. cific case the defenidant will be held Ltd. v. Heller* & Partners* Itd, 11964] A.~ liable to a third person not in privity C. 465. is a matter of policy and involves the balancing of yarious factors, among The American cases reflect a similar which are the extent to which the development. There are-numerous cases transaction was intended to affect the in-diatii~ that: 1cnb~ 1~es may -be plaintiff, the foreseeability of harm to recovered for the negligeS of lpension-'~ .him, the degre ofcranyta h onsultants, accountantsIA -hltects, dt- ,"Pla~intiff suffered injury, the' closeness torneys, notaries Oubli4,; hlAdj~- of the connection betweeji the defend- er's, title abstractors, tirniite insp~e-" ant's conduct and 'th'e injury suffered, tors, soil engineer~,s'iayeo real the moral blame attached to the de- estate brokers,; draweri---,bi"' chcks, di- fendauvt's conduct, and the policy of rectors' of corporations, tu ustees, balilees-' preventing future harm. and public weighers. 436 Recovery for pure economic loss legai- ;that :case was weheti the owners of Iy attributable to the defendant's negli-.. cargo, shipped o lxVessel which ulti- gence has also been recognized in tradi-' mately collided with' defendant's vessel, tional maritime settings. Thus, fisher- could recover for;thir. general average men in Scotland who worked under a contribution when ;vi;essels were at profit-sharing arrangement with :thee fault and both were!'/naged. The Su- owner of a trawler damaged by the de- preme Court held in';!the affirmative; fendant's-neiligence have been permit- Although the cargoQas',physically dam- ted to recover their portion of the antic- aged by the collision; this fact appears ipated profits of the fishing venture even to have had no bearing on the Court's though they suffered no physical injury. resolution of the issue. Rather, the Main v. LeaskC 1910]. $iC:,771..,(Ct. ofQ.Court recognized. thatthe right of the Session). More: important, however,?L:s 7,ea.go' ownersi to X their general the fact that this Circuit has reache; d v: erage ntri'i4i e'red sprang di- precisely the same conclusion in an ad- rectly from the as in no sense miralty proceeding, Carbone v. Ursich, derivative or !"pairasitically dependent The Del Rio, 209 F.2d 178 (9th Cir.,. upon the presence of a:physical injury. 1953). In so doing, we refused to apply The right to recover for economic the teaching of Robins Dry Dock andomic the teaching of Robins upry Dock and losses which are parasitic to an injury Repair Company v. Flint, supra, to the occurring to person roproperty is not situation with which the fishermen weres confronted, and observea: -' e b. , meicn - ' : sf and Savings. This long recognized rule [the right Association, 53 Cal %4 345 P.2d 926 of fishermen to recover their share of (1959) (loss of use o 4lplane destroyed the prospective catch] is no doubt a by defendant's negligence held to be re- manifestation of the familar principle coverable). Furthermore, this is the that seamen are the favorites of admi- case even though frequently the magni- ralty and their economic interests en- tude of the economic ios's o far overshad- titled to the fullest possible legal pro- 'ows that of the physical injury as to tection.' These considerations have: .Warrant the assertion that the general given rise to a special right compara-i. ule, baing recovery absent a physical ble to that of a master to sue for the injury"is but a'fo See Harvey, loss of services of his servant, or the supra at 585 594A' right of a husband or father to sue .:.: ND , for the loss of services of wife or This much abridg.talogue of ex for tchild oss of services of wife or ceptions and qualifications to the gener- child. al rule can be brought to a close for pur- 209 F.2d at 182. poses of our analysis by calling attention Another instance in which a claim for to several cases in which pollution of a economic loss, unaccompanied by any stream has enabled one. .hose business physical injury to the person or proper- is injured thereby t-,iover his lost ty of the claimant, has been recognized profits. For example', ifi:'ort Worth & under admiralty law is illustrated by Rio Grande RailwayOompany v. Han- Aktieselskabet Cuzco v. The Sucarseco, cock, 286 S.W. 835 (Tex.Civ.App.1926) 294 U.S. 394, 55 S.Ct. 467, 79 L.Ed. 942 the plaintiff, who operated a :wimming ,(X935). The issue before the Court in pool in the channel of Al'ver, was per- 437 rnitted to'recover lost 'ptr' ftitwhich"h~d, ~*Illing, operations;wi% odc e resulted from the .d~edo.ndgi ~smbl-y an fo'8ea % cud haebn pollution of th~'jer . anticipated to cause a 'di Itrutoi o h stream riparian--owners, engaged ii op" equat'ie life in the Sattai:;#arbaraCa crating a business dependent upon fish,.. nell area and thus cause,"hi~jurytth ing, have been' ~permfitted i6 're ov i 'fr P14intif fs' business. the injury to -their bsi-Aess caused by the pollut~~~~~~~ ~~~iooftesra.SeMon n finding that suc h '' tyexists, we,' the olltio ofthe steam See'Mson are influenced by the rtianiier ini which, ite Corporation v. Steede, 198 Miss. 530, th Surm Cor f afriahsa 547, 23 So.2d 756 (1945) ; Hampton v. prahdtedt ssei tr a.I North Carolina Pulp' Compa~ny, 223 N.C. poce h uyr a'I 535,27 .E.d 58 (943., ~ soul ~e holding that the mother of achild, killed nded that in ~~~~ by, 'the defendant's negligent operation ~ p1~intiff ws a ri~a~iai" ~ bf~to obile, cott d.,r#cover for em- the latter two there. -.'~ ~ tkai i rac' ,~ a - soc ee that the defendant's C~oni~uct Me' nrely thu ae-nt~4~h oSo % and notintentinal. "Hwever, physical "impact, the, 1u60 Dillon v. negligent adntintninl fWw,' egg, 68 Cal.d 728, 60 .'dl."Rptr, 72, 441 in neither Masonite nor Hampton does there appear any' recognition that mere P2 1 16)sae ht negligence would have 'absolved the de- Defendant owes a hty, in tile sense "- fendants. Both assumed" the -,existence of a potential liability for damages, of a nuisance which could well have; test- ..njy wth, respect to 'those risks or edu pon the defendants' negligent cdrlz " Uzirds :Whose I'k~h 0& made the du.ct, See Prosser at55.' ' odc nesn~~grous, and 41oreo\'er, the plaintiffs' ststus as ri: ec elgn,'nte~'s instance. parians does not make improper th e (See Keeton, Legal CkOse in the Law classification of these cases as excep- of Torts (1963) 18-20; Seavey, Mr. tions to, or (lualifications of, the general Justice Cardozo and the'Law of Torts rule which is relied 'upon by the defend- (1939) 52 H'arv.L.Rev. I 72; Seavey, ants inthe preent acion. Thie injury Principles of Tot (142' 56 Harv.L. for which damages were sought. in each' Rev. 72.) case was the loss of anticipated profits . Harper and James state the prevail- ---a puric economic loss as that term is ing: view. ..The -a41-1gat~op turns on normally understood. To permit ripari- whether 'the ofe141'" dc oe ansbip to transmute this loss into an or- seeably involved~ fore- "tI "TIPireP.iaby great '. dinary property loss for the purpose of risk of harm to the intei'yests of some- ~~ allowing recovery does no harm. How- one other than the actor. ever, harm would be done if the fact [Tihe obligation ' to le'frin -from that the plaintiffs in this case are not -particulate ao duct is owed riparian owners was held to deprive only'-Ito' those who al'e foresecably en- them of the comfort these authoritie's d agrdb h odc only with whose likelihood,~~ete odc un- IV. ' resnbydneous it in other The Instant Action. ' . 'words, is 'measured by, ~he ocope of the It is thus apparent that we are not risk which negligent ~onduct foreseea- forclosed by precedent from examnining bly tentails.' (2 Hapr' aeThe on. its merits the issue presented by' the iLaw of Torts, ~zpa '' 1018; fns. defendants' motion for partial summary omitted.) judgment. As we 'See.' it, the issue is ' ' 4 * 4 S whether the defendants owed a duty to Sific6 the chief element in deterinin- the plaintiffs, commercial fishermen, to ing whether defendant owes a duty or refrain from negligent conduct in their an o~bligation to plaintiff 'is the fore- , 438 seeability of the risk, that factor will number of scholis have suggested that be of 'prime, concern in every case. liability f~or :..: occasioned by torts Because it is inherently intertwined should be ap' pied in a manner that with foreseeability such duty or obli- will best contri]l'to the achievement of gation must necessarily be adjudicated an optimum alloetion of resources. gee. only upon a case-by-case basis,. ( ; e. g., Calabresi, The Cost of Accidents,' 68 Cal.2d at 739-740, 69 Cal.Rptr. at 79 69-73 (1970) ";(:hinafter Calabresi); 441 P.2d at 919-920. l ' ' Coase, The P9o9 of Social Cost, .3 J. While it is true that the earlier' deci Law & Econ. 1(t 60). This optimum, sion of the California Supreme Court in' in theory, ;yould 'hat which would be Biakanja does not accord "foreseeability achieved "y' 'a `pierfect market system. of the risk" the commanding position In determining'.whether the cost of an which it was' afforded in Dillon v. Legg, accident should !'borne by the injured we can not escape the conclusion that party or be shifted, in whole or in part, under California law the presence of a this approach requires the court to fix duty on the part of the defendants in the identity of the party who can avoid this case would turn substantiall~y;on the costs most cheaply. Once fixed, this foresceability. That being the ctclial determinationten controls liability. determinant, the question must be asked It turns o e ver, that fixing the whether the defendants could reasonably identity of ti :??st or cheapest cost- have foreseen that negligently conducted avoider is more difficult than might be drilling operations might diminish imagined. In order to facilitate this de- aquatic life and thus injure the business termination, Calabresi suggests several of commercial fishermen. We believe helpful guidelines. The first of these the answer is yes. The dangers of pol- would require: .a rough calculation de- lution were and are known eveq by :: signed to exli' S potential cost-avoid- school children. The defendants iunder'- ~ers those 'g .;itivities which could stood the risks of their business and avoid ay at an extremely should reasonably have foreseen the high expense, 5: alabresi at 140-43. scope of its responsibilities. To assert While not easy Hioapply in any concrete that the defendants were unable to fore- sense, this guideline does suggest that see that negligent conduct resulting in a the imposition of oil spill costs directly substantial oil spill could diminish upon such groups as the consumers of aquatic life and thus injure the plain- staple groceries is not a sensible solu- tiffs is tos suppose a degree of general tion. Under this guideline, potential lia- ignorance of the effects of oil pollution bility becomes resolved into a choice be- not in accord with good sense. tween, on t.j- te level, the consum- An examination of the other factor s eof fishr e of products derived mentioned in Biakanja only strengthens from the defendnts' total operations. our conclusion that the defendants in To refine this choice, Calabresi goes this case owed a duty to the plaintiffs. on to provide. additional guidelines Thus, the fact that the injury flows di- which,, in, th innstance, have proven rectly from the action of escaping oil on ffone too helpful. For example, he sug- the life in the sea, Askew v. American gests an evaluatiW,,of the administrative Waterways Operators, Inc., 411 U.S. at costs whichtarty would be forced 333 n. 5, 93 S.Ct. 1590,' the public's deep to bear in: o':ito avoid the accident disapproval of injuries to the environ- costs. Calabresi at 143--44. lie also ment and the strong policy of preventing states that an attempt should be made to such injuries, all point to existence o: a avoid an. ilo which will impose required duty. some costs on thl;e groups or activities The same conclusion is reached when which neithe;coasume fish nor utilize the issue before us is approached from those products df the defendants derived Lhe standpoint of economics. Recently a from their operations in the, Santa Bar- 439 nution reduced the profits the plaintiffs:'? bara Channel. Calabresi at 144-50. On would have realized-flrom their commer ". the record before us, we have no way of cial fishing in tlie$ence of the spill,. evaluating the relative administrative This reduction of profits must be estab;_ costs involved. However, we do recog- lished with certainty and must not bei^,, nize.that it is probable that by imposing remote, speculative or conjectural. Se, 7 liability on the defendants-some portion McCormick, Damages, 97-101 (1936), of the accident costs in this case may be These are not smill burdens, nor can b6tne by those who neither eat fish -nor they be eased by our abhorrence of mas- -',c use the petroleum products derived from sive oil spills. All that we dafhere is to the.defendants' operations in Santa Bar- permit the plaintiffs-Atd attempt to prove bara.' their case, and to redact the idea urged Calabresi's final guideline, however, upon us by the defendants that a barrier unmistakably points to the defendants as to such an effort exists in the form of the best cost-avoider. Under this guide- the rule that negligent interference with line, the loss should be allocated to that an economic advantage is not actionable. party who can best correct any error in Finally, it must be understood that allocation, if such there be, by acquiring our holding in this case does not open the activity to which theparty has been the door to claims that may be asserted made'liable. Calabresi at 150-62. The by those, other than commercial fisher- capacity "to l)uy out" the plaintiffs if men, whose economic or personal affairs the burden is too great is, in essence, were discommoded by the oil spill of the real focus of Calabresi's approach. January 28, 1960, 'The general rule On this basis there is no contest-the urged upon us by defe"6dants has a legit- defendants' capacity is superior. imate sphere within which to operate. Our holding that the defendants are Nothing said in this opinion is intended under a duty to commercial fisherman to to suggest, for example, that every de- conduct their drilling and production in dine in the general commercial activity a reasonably prudent manner so as to of every business in the Santa Barbara avoid the negligent diminution of aquat- area following the occurrences of 1969 ic life is not foreclosed by the fact that constitutes a legally,:cognizable injury the defendants' negligence could consti- for which the defeiidants may be respon- tute a public nuisance' under California sible. The plaintiffs in the present ac- law. Contrary to the situation that ex- tion lawfully and directly make use of a. isted in Oppen v. Aetna Insurance Com- resource of the sea, viz. its fish, in the pany, supra, in which we held that an ordinary course of their business. This interference with the public's right of type of use is entitled to protection from navigation in the navigable waters of negligent conduct by the defendants in California did not vest a private cause their drilling operations. Both the of action in those who lost the use of plaintiffs and defendants conduct their their private pleasure craft, in the case business operations aiay from land and :-.j now before us the plaintiffs assert an in, on and under-. ea, Both must injury to their commercial enterprises, carry on their co 'reinclal enterprises in . not to their "occasional Sunday pisca- areasonably prudent mallnc. Neither torial pleasure." Id. at 260. The right should be permitted n-gwItlly to inflict of commercial fishermen to recover for commercial injiri!6;~1i'' other. We de- injuries to their businesses caused by cide no more than this.- pollution of public waters has been rec- Affirmed. ogniz'ed on numerous occasions. .See . , Masonite Corporation v. Steede, supra; EY,Cir Judenculring); Hampton v. North Carolina Pulp Compa- I concur in the result. Since, how- ny, aspra; Prosser, Private Action' for ever, the writte-brpef-filed by the par- Public Nuisance, 52 Va.L.Rev. 997, ties contaii no'diieii: n of admiralty 1013-16 (1966). _The_ injury here as- law, I conclude thtl the parties be- serted by the plaintiff is a pecuniai'_ - lieved that, uid't:thistipulation, the loss dfia particular and special nature controversy would be!:resolved by appli- limited to the class of commercial fshe cation of Califori law relating to men which they represent . - -, torts. I therefore 'disassociate myself Thisinjury must, of course, be estab , from that portion of my, Brother Sneed's' liihedini the proceedings that will follow '4 opinion which deals with the law of ad-* this appeal. To do this it must bef xiliralty. I view those Comments as con- shown that the oil spill did in fact di-i, stituting dictum unnecessary to our dis- minish aquatic life, and that this dimi- position of the appai i' 440 Note Oppen v. Aetna Ins. Co., 485 F.2d. 252 (9th Cir. 1973) was another of the many lawsuits which arose out of the Santa Barbara oil spill. It was brought by the owners of private pleasure crafts who sought re- covery for impairment of their navigation rights in the channel and for damages to their boats through contact with the oil. In determining that both claims were maritime torts within admiralty jurisdiction (28 U.S.C. 1333), the Ninth Circuit applied the "Executive Jet" test, which requires that the tort have a maritime situs and maritime nexus. The Court then dismissed the claim for impairment of navigation since it was not compensable under Federal maritime law because the spill interfered only with the public right to navigation and the plaintiffs could show no special damage. The claim for the physical damage to plaintiff's crafts were upheld. Problem The Warwick is a small river in Virginia which empties into the James River a short distance from the city of Hampton Roads. The City of Newport News (the City) has for many years operated pumping stations to pump sewage to sewage plants operated by the Hampton Roads Sanitation District Commission (the Commission). Because of pumping station overflows, raw sewage is fre- quently discharged into the river, causing the closing of oyster beds leased from the state of Virginia by William Moore. Moore brings an action against the City and the Commission charging them with negligence and nuisance. The Commission has not been shown to have violated any statutory or regulatory provision with regard to its dis- charges. Should the City and the Commission be held liable? See Moore v. Hampton Roads Sanitation District Commission, ____F.2d.____ (4th Cir. 1976). 441 ASKEW V. AMERICAN WATERWAYS OPERATORS, 411 U.S. 325, 93 S. Ct. 1590, 3G L. E1. 2d 280 (1973) Mr. Justice DOUGLAS delivered the. and its progeny that the controversy opinion of the Court. turns. The District Court held that the This action was brought by merchant Florida Act is an ,uncnstitutional intru- shippers, world shipping associations, sion into the federal maritime domain. members of the Florida coastal barge It declared the Florida Act null and void and towing industry, and owners and op- and enjoined its enforcement. 335 F. erators of oil terminal facilities and Supp. 1241. heavy industries located in Forida, to [1] The case is here on direct ap- enjoin application of the Florida Oil- peal. We reverse. We find no consti- Spill Prevention and Pollution Control tutional or statutory impediment in per- Act, L.Fla.1970, c. 70-244 (hereafter re- B n eti ~' /~r F Porida,, in ipresent setfinf ferred to as the'Florida Act). Officials his ae, to establish any "requirement responsible for enforcing the Florida or libity' concerniithe impact of oil Act were named as defendants, but the a Fterests orcon- State of Florida intervened as a party t ora- defendant, asserting that her interests n to dmiralty iuris- were much broader than those of the dicti to of the police named defendants. A three-judge court 'f the St.t...i.i. oil-spill.gB-.n tiff ic~onivied pursuant--to '28, U.SC;& �I'0 insidious form of:pollition of vast con- 2281 :' ,[, :. ". :;'.' '--' . ceOrn to ever: coastal city or port and to ' The Florida Act 'imposea strict liabili- a all the estuaries' 0; lwhich the life of the ty for any damage incurred by the State . " cean and the lives of the coastal people or private persons as a result of an oil are greatly dependent. - spill iJnL,;ite State's territorial waters'' ' from an:"'waterfront facilty: used for, ' ' i drilling.:0, or handling the transfei,-r:' storagl"gf oil ("terminag lfacii transfer :r - It is clear at the outset that the Fed- stormag. of oil ("terminal , Jaility" .a.nad., eral Act does not preclude but in fact al- such facility. Each owner or operator prlows state regulation. Section 1161(o) of a' terminnal facility or ship subject to provides that: the Act' must establish evidence of-fi-: '" "(1) Nothing in this section shall nancial responsibility by insurance or a ' affect or modify in any way the'obli-' surety bond.1. In addition, 'the Florida gations of any owner or operator of Act provides for regulation by the State any vessel, or of any owner or opera- Department of Natural Resources with tor of any onshore facility or offshore respect to containment 'gear and other facility to any person or agency under equipment which must be maintained by any provision of law for damages to ' ships and terminal facilities for the pre- any publicly-oined or privately-owned vention of oil spills. property resulting from a discharge of any oil or from the removal of any Several months prior to the enactment such oil. of the Florida Act, Congress enacted the Water Quality Improvement Act of 1970, "(2) Nothing in- this section shall 33 U.S.C. � 1161 et seq. (hereinafter re- be construed as preempting any State ferred to as the Federal Act). This Act or political subdivision thereof from subjects ship owners and terminal facili- imposing any requirement or liability ties "to liability without fault up to with respect to the discharge of oil $14,000,600 and $8,000,000, respectively, into any waters within such State. for cleanup costs incurred by the Feder- "(3) Nothing in this section shall al Government as a result of oil spills. be construed' . . , to affect any It also authorizes the President to pro- State or local law not in conflict with mulgate regulations requiring ships and this seEmphas added.) terminal facilities to maintain equip- ment for' the prevention of oil spills. It According to the Conference Report, is around that Act and the federally pro- "any State would be free to provide re- tected tenets of maritime law evidenced quirements and penalties similar to by Southern Pacific Co. v. Jensen, 244, those imposed by this section or addi U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, 442 tional requirements and penalties. Section ao2tlhe Florida Act These, however, would be separate and makesall licenie trminal facili- independent from those imposed by this ties 'liable to theostae for all costs of section and would be enforced by the 'cleanup or. other damage incurred by States through its courts."I The Flori- the state and foa ges resulting da Act -covers a wide range of ."pollu' ,'from injury to ' not being nec- tants," � 38(7),' and a' restricted' defini essry for' thad or prove tion of pollution. � 3(8). We havenegligence.4 - There:tm?. o conflict be- here, however, no question concerning tween 12 fd'thePlierida Act and. � any pollutant except oil. i? . 1161v of the Federal': twhen it comes "- :," .-~'/ . ~ ,- ; ' ~' ;g'i '~to damages to property interests, for the The Federal Act, to be sure, contains Federal Act reaches!.iny. costs of clean- a pervasive system of 'federal Jcontr.o ing up.' As respect/')'iiages, � 14 of over discharges of oil "into or upon theloridaAct requires evidence of fi- the Florida Act requires evidence of fi- navigible wa ters of the U~nited States nancial responsibility 'of a terminal fa- adjoining shorelines, or into or upon themi cility or vessel-provisions which do not waters of: the contiguous : zone." ' conflict with the Federal Act. 1161(b)(1),, So far' as liability is coiioreneral ay that while cerned, an'6 owner or operator of a' vess~gThe Solicitor General says that while is liabl e to the United States for actuaU the Limitation of' Liability Act, so far costs incurred for the removal of oil di d as vessels are concerned, would override charged in violation of � 1161(b) (2) ll\ 1� 12 of the Florida Act by reason of the an amount "not to exceed $10o per gro't Supremacy Clause, the Limitation of ton of such vessel or $14,00000, whieh 'j Liability Act has no bearing on "facili- ever is lesser," � 1161(f)(1), except ties" regulated by the Florida Act. discharges caused solely by an act~ 'b' Moreover, � 12 has not yet been con- God, act of war, negligence gtf the Ud i"strued by the Florida courts and it is ed States or act or omission' of anoth susceptible of an interpretation so far as party. With like exceptions the owne'-. ' vessels are concerned which would be in or operator of an onshore or offshore I harmony with the Federal Act. Section cility is liable to the United States fo? 12 does not in terms provide for unlimit- the actual costs incurred by the United ed liability. States in an amount not to exce Moreover, while the Federal Act $8,000,000. � 1161(f)(2-3). But : determines damages measured by the each case the owner or operator is lia~b cost to the United States for cleaning up to the United States for the full amoIun d oil pollution, the damages specified in of the costs where the United States e a 1 the Florida Act relate in part to the cost show that the discharge of oil was to the State of Florida in cleaning up result of willful negligence or willage. Those two sections are misconduct within the privity and k harmonios parts of an integrated edge of the owner." Comparable prv whole.- Section 1161(c)(2) directs the sions of liability spell out the obligatioI President to prepare a National Contin- of "a third party" to the United State~S' jgency for the containment, dispersal and for its actual costs incurred for the '~t removal of oil. The plan must provide moval of the oil. � 1161(g). that federal agencies "shall" act "in co- So far as vessels are concerned. 4'j ordination with State and local agen- federal Limitation of Liability Aet;l$ cies?. C t tin iti '-th& U.S.C. �� 181-189, extends to dama: States is' also .onte'mpl/ated by � 1161(e), 'c X.i: Swhich provides that :-'[i]i addition to caused by oil spills even where the If > | any other action .take-i by a State or lo- ry is to the shore. Richardson v. ; cal government"- t he'President may, mon, 222 U.S. 96, 106, 32 S.Ct. 27, 8 -P when. there is an i tl and substan- L.Ed. 110. That Act limits tial threat tthiic health, or welT ties of the owners of vessels to the fare, direct the nhiOit States Attorney ue of such vessels and freight penal of the district in question to bring suit 46 U.S.C. � 189. 'I to abate the'threat.'- 'The reason for the 443 provision in � 1161(o)(2) stating that in the absence of conflicting federal ie nothing in � 1161 pre-empts any State islation, is within the police power. "from imposing any requirement or lia- the State." Id., at 75, 61 S.Ct. at 928;i bilitjr with respect.to the discharge of - oil Into any waters within such State" is Similarly, in Manchester v. Massachu-' that the scheme of the Act is one which setts, 139 U.S. 240, 266, 11 S.Ct. 559:, allows--though it does not require-co- * 565, 35 LEd. 159, we stated that if Con operation of the federal regime with a gress'fails to assume oitrol of fisheries state regime. in a bay, "the right to control'such fiish i eries must remain with the state whi'ch If Florida wants to take the lead contains such bays." in cleaning up oil spillage in her waters, she can use � 12 of the Florida Act and Florida in her brief accurately states recoup her costs from those who did the that no remedy under'the Federal Acet' damage. Whether the amount of costs exists for state or private property ownen, she could recover from a wrongdoer are ers damaged by a massive oil slick suiCY~ limited to those specified in the Federal as hit England and France in 1967' in"., Act and whether in turn this new Feder- the Torrey Canyon disaster. The Toi. al Act removes the pre-existing limita- rey Canyon carried 880,000 barrels. tions of liability in the Limitation of crude oil. Today not orht is more oi' Liability Act are questions we need not being moved by. sea.each year bat 'the reach here. Any opinion on them is pre- tankers are much larger. � mature. It is sufficient for this day to age tnker during hold that there is room for state action World War II had'iaeapaeity of 16,000 in- cleaning up the waters of a State and tons, but by 1965 that'average hadrisen recouping, at least within federal limits to 27,000 tons, and l:ew tankers deliv- so far as vessels are concerned, her ered in 1966 averaged out 76,000 tons. costs. A Japanese cornpany.,.as launched a Beyond that is the potential.claim un- 276,000'ton tanker, and other Japanese der � 12 of the Florida Act for "other yards have'orders for,tankers as large damage incurred by the state and for as 312,000 tons. More than 60 tankers damages resulting from injury to oth- of 160,000 tons or more are on order ers." The Federal Act in no way touch- throughout the world, tankers of 500,000 es those areas. A State may have public to 800,000 tons are On the drawing beaches ruined by oil spills. Shrimp, boards, and those of indre than one mil- clam, oyster and scallop beds may be lion tons are thought to be feasible. On :i"ilied and the livelihood of- fishermen the new 1,010 foot British tanker 'Esso imperlled.4 The Federal Act takes no Mercia' two officers have been issued cognizance of those claims but, only of bicycles to help patrol the decks of the costs to-the Federal Government, if it 166,890 ton vessel. 4desthe cleaning-up. "The size of the tanker fleet itself is ~ Wa helbd ' in: Skrisiotes, v2. Florida, - 313 growing at a rate that rivals the growth IX.S.69;, 61 S.Ct. 924, 8WL.EL '1193, that in average size of new tankers. In 1955 while;Congress had regulated the size of the world tanker fleet numbered about commercial sponges taken in Florida wa- 2,500 vessels. By 1965 it had increased ters, it had not dealt with any diving ap- to 3,500, and in 1968 it numbered some paratus that might be used. Florida 4,300 ships. At the present time nearly had such a law and was allowed to en- one ship out of every five in the world force it against one of its citizens. merchant fleet is engaged in transport- Chief Justice Hughes, speaking for the ing oil, and nearly the entire fleet is Court, said: "It is also clear that Flori- powered by oil." da has an interest in the proper mainte- nance of the sponge fishery and that the Our Coast-Guard reports that while statute so far as applied to conduc~t lin 1970 there were 3,711 oil spills in our within the territorial waters of Florida, waters, in 1971 there were 8,736. The damage to state interests already caused 4. Se 12 rovies that te Iflot by oil spills, the increase in the number or thSe mastr of anl y rvessel or pierson in of oil spills, and the risk of ever-increas- eharge of any liiensee's terminal facility 1ing damage by reason of the size of who fails "to give immediate notification I modern tankers underlie the concern of of a discharge to the port manager and j Coastal States. the nearest coast guard station" may be imprisoned for not more than two years or fined not more than $10.OX). 444 (2)(a) of the Florida Act would be pr'r While the Federal Act is con- se invalid because the subject to be reg- cerned only with actual clean-up costs ulated requires uniform federal regula- 1lcurred by the Federal Governmeit, the tion. Cf. HIuron Portland Cement Co. v. State of Florida is concerned :with its Detroit, 362 U.S. 440, 80 S.Ct. 81:3, 4 L. Wwn clean-up costs. Hence there need be Ed.2d 852. Resolution of this question, tno collision between the Federal Act and as well as the question whether such the Florida Act because, as noted, the regulations will conflict with Coast elpderal Act presupposes a coordinated Guard regulations promulgated on I)e- %ffo:t$ t. he Stites- ad any,- fedeta cember 21, 1972, pursuant to � 1 atim o t of: Liabiiy runsates4sels' 1161(j)(1) of the Federal Act, 37 Fed. *no to~sore "Plifcniie> 'tha& is ;;o f Reg. 28250, should await a concrete dis- .the ,,reason, whyr the"-Corngrea .d'eided: pute under applicable Florida regula- ;iat thte-deral Actd:oe~s noAt, prennpt tions. Finally, the provision of the the fSrbom erstablishi~ngeither ~"anr Florida Act requiring the licensing of "'reqlui.~ 4 Bor 'iability'!,'respe'ting. [l terminal facilities, a traditional state concern, creates no conflict per se with . ,.,%:::.~ . ~...: ....federal legislation. Section 1171(b) (1 ' 5pgreover, s~ince 'Ciogress Walt of the Federal Act provides that federal .onrly Witit i'cleans-up",osts, it left: the permits will not be issued to terminal fa- States:ftre to impose "liabilti'y in dame:. cility operators or owners unless the ap- agies i'o1sses Suffereds bath by the plicant first supplies a certificate from .,Stat + -by Jprivat ierests.X The the State that his operation "will be *vol- .Flrida iAct imposes liability: 'wihut ducted in a manner which will not violate fault.S':: -.far as liability- without fault applicable water quality standards." for damages to state and private inter- And Tit. I, � 102(b), of the recently en- ests' is' concerned, the police power has acted Ports and Waterways Safety Act been held adequate for that purpose. of 1972, Pub.L. 92-340, 86 Stat. 426, 33 State statutes imposing absolute liability U.S.C. � 1222(b) (1970 ed., Supp. II), on railroads for 'all property lost provides that the Act does not prevent through :fires causeda by sparks emitted "a State or political subdivision thereof from locomotive engines have been sus- from prescribing for structures only tained, St. Louis & San Francisco R. higher safety equipment requirements Co. vi.VIathews, 165 U.S. 1, 17 S.Ct. 243, or safety standards than those which .41 L.40i ' 611. The Federal Act, how- may be prescribed pursuant to this ti- ever, while restricted to clean-up costs tie." incurredby the United States, imposes .limited, liability for those costs and pro- II vides ceirtain exceptions, unless willful- And so, in the absence of federal pre- ness is established. Where liability is emption and any fatal conflict between imposed by � 1161(f)(g), previously the statutory schemes, the issue comes summarized, the United States may re- down to whether a State constitutionally cover the full amount of the costs where may exercise its police power respecting the oil spillage was the result of "willful maritime activities concurrently with negligence or- willful misconduct." If the Federal Government. the coordinated federal plan in actual operation leaves the State of Florida to do ,, , l ean-up w r, te me fi trict Court to the Florida Act are South- do the clean-up work, there might be fi-en Pacific o. v. Jensen 24 U.S. 2 ern Pacific Co. v. Jensen, 244 U.S. 205, nancial burdens imposed greater than 37 S.Ct. 524, 61 L.Ed. I086, and its would have been imposed had the Feder- progeny. Jensen held tlit a maiti al Government done the clean-up work. worker on a vessel in navigable walt'es But it will be time to resolve any such could not constitutionally r eeive an conflict .between federal and state re- award under New York's workmen's conm- gimes When it arises. pensation law, because the rem'tndy in ad- 'miralty was exclusive. I,atr, in Knick- .,Nor can. we say at this point erbocker Ice (o. v. Stewart, 2,53 U.S. 149, that regulations of the Florida Depart- 40 S.(t. 438, 64 L.Ed. 834, after Congress menrt of Natural Resources requiring expressly allowed the States in such cases 'containment gear" pursuant to � 7 to grant a remedy, the Court held that Congrecss had no such power. 445 But those decisions have been limited and cannot be subject to defeat or im- by subsequent holdings of this Court. pairment by the diverse legislation of As stated by Mr. Justice Frankfurter in the States, and hence that Congress Romero v. International Terminal Oper- alone can make any needed changes in ating Co., 358 U.S. 354, 373, 79 S.Ct. the general rules of the maritime law. 468, 480, 3 L.Ed. 368, Jensen and its But these contentions proved uinavailing progeny mark isolated instances where and the principle was maintained that a "state law must yield to the needs of a State, in the exercise of its police powver, uniform federal maritime law when this may establish rules applicable oil land Court finds inroads on a harmonious and water within its limits, even though system." Mr. Justice Frankfurter add- these rules incidentally affect maritime ed, however: "But this limitation still affairs, provided that the state action leaves the States a wide scope. State- 'does not contravene any acts of Con- created liens are enforced in admiralty. gress, nor work any prejudice to the State remedies for wrongful death and characteristic features of the maritime state statutes ploviding for the survival law, nor interfere with its ,loper hair- of actions, both historically absent from mony and uniformity in its itnternational the relief offered by the admiralty, have and interstate relations.' It w\as decided been upheld when applied to maritime that the state legislation encountered causes of action. Federal courts have none of these objections,. The many in- enforced these statlutes. State rules for stances in which state action had created the partition and sale of ships, state new rights, recognized and enlforced in laws governing the specific performance admiralty, were set forth in The City of of arbitration agreements, state laws Norwalk, and reference was also made to regulating the effect of a breach of war- the numerous local regulations under ranty under contracts of maritime insur- state authority concerning the naviga- ance-all these laws and others have tion of rivers and harbors. There was been accepted as rules of decision in ad- the further pertinent observation that miralty cases, even, at times, when they the maritime law was not a complete conflicted with a rule of maritime law and perfect system and that in all mari- which did not require uniformity." Id., time countries there is a considerable at 373-374, 79 S.Ct., at 480-481. body of municipal law that underlies the Moreover, in Just v. Chambers, 312 maritime law as the basis of its admin- U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903, we istration. These views find abundant gave our approval to The City of Nor- support in the history of the maritime walk, D.C., 55 F. 98, written by Judge law and in the decisions of this Court," Addison Brown, holding that a State 312 U.S., at 389-390, 61 S.Ct., at 692. may modify or supplement maritime law Mr. Chief Justice Hughes added that even by creating a liability which a our' decisions as of 1941,'the date of Just court of admiralty would recognize and v. Chambers, gave br9ad-"recognition of enforce, provided the state action is not hostile "to the characteristic features of rights and liabilities with res to con- rights and liabilities with respect to con- the maritime law or inconsistent with duct within thei federal legislation," 312 U.S., at 388, 61 action does not run counter to federal S.(Ct., at 691. lMr. Chief Justice Hughes laws or the essential -features of an ex- alWtcrII citing Ste1mLoat Co. v. ('hanse, 16 elusive federal jurisdiction." Id., at 391, [Wall. 522, 21 L.Ed. 369, and Sherlock v. - 3 S.Ct., at 693. Ailing, 93 U.S. 99, 23 L.Ed. 819, wenti ol to hold that, while no suit for wrongful Historically, damages to the death would lie in the federal courts vun- shore or to shore facilitieswere lot cog- der general maritime law, state statutes nizable in admiralty. See, e. g., The giving damages in such cases were valid. Plymouth, 3 Wall. 20, 18 L.EEd. 1265; He said, "The grounds of objection to Martin v. West, 222 U.S. 191, 32 S.Ct. the admiralty jurisdiction in enforcing 42, 56 L.Ed. 159. Mr. Justice Story wrote liability for wrongful death were similar in 1.813, "In regard to torts I have always to those urged here; that is, that the understood, that the jurisdiction of the Constitution presupposes a body of mar- admiralty is exclusively dependent upon itime law, that this law, as a matter of the locality of the act., The admiralty interstate and international concern, re- has not, and never (I believe) deliber- quires harmony in its administration ately claimed to have any jurisdiction 446 over torts, except such as are maritime peared that, while Congress had pro- torlts, that is, such as are committed on vided a comprehensive system of inspec- the high seas, or on waters within the tion of vessels on navigableJwaters, ebb and flow of the tide." Thomas v. id., at 4, 58 S.Ct., at 89, the State of Lane, 2:.; Fed.(Cas. 957, 960, No. 13,902 Washington also had a comprehensive (CC Me.). code of inspection. Some of those state standards conflicted with the federal re- On June 19, 1'348, Congress uenacted qu.irements, id., at 14-15, 58 S.Ct.. at 94; the Admiralty Exteunsion Alct, 46 U.S.C. but those provisions of the Washington � 740."' The Coult considered the Act law relating to safety and seaworthiness in Victory Carriers, Inc. v. Law, 404 U. wele not in conflict with the federal S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383. In law. So the question was whether the that case, the Court held that the Ad- absence of congressional action and the miralty Extension Act did not apply to a need for uniformity of regulation barred longshoremani perfolming loading and state action. Mr. Chief Justice Hughes, unloading services on the dock. The writing for the Court, ruled in the nega- longshoreman was relegated to his reme- tive, saying: dy under the state workmen's compensa- tion law. Id., at 215, 92 S.Ct., at 426.A vesse which is actually usafe and The Court said, "At least in the absence unseaworthy in the primary and com- of explicit congressional authorizon, monly understood sense is not within of explicit congressional authorizLon, we shall not extend the historic bounda- the protection of that principle. The ries of the maritime law." Id., at 214, state may treat it as it may treat a 92 S.Ct., at 426."1 diseased animal or unwholesome food. In such a matter, the state may pro- The Admiralty Extension Act has sur- tect its people without waiting for vived constitutional attack in the lower federal action providing the state ac- federal courts t" and was applied without tion does not come into conflict with question by this Court in Gutierrez v. federal rules. If, however, the state Waterman S. S. Corp., 373 U.S. 206, 83 goes farther and attempts to impose S.Ct. 1185, 10 L.Ed.2d 297. The Court particular standards as to structure, recognized in Victory Carriers, however, design, equipment, 'and operation,-- that the Act may "intrude on an area which in the judgment of its authori- that has heretofore been reserved for ties may be desirable but pass beyond state law." Id., 404 U.S., at 212, 92 what is plainly essential to safety and S.Ct., at 425. It cautioned that under seaworthiness, the state will encounter these circumstances, "we should pro- the principle that such requirements, ceed with caution in construing consti- if imposed at all, must be through the tutional and statutory provisions dealing action of Congress which can establish with the jurisdiction of the federal a uniform rule. Whether the state in courts." Ibid. While Congress has ex- a particulal matter goes too far must tended admiralty jurisdiction beyond the be left to be determined when the pre- boundaries contemplated by the fram- cise question arises." Id., at 15, 68 ers, it hardly follows from the constitu- S.Ct., at 94. tionality of that extension that we must sanctify the federal courts with exclu- That decision was rendered before the sive jurisdiction to the exclusion of pow- Admiralty Extension Act was passed. ers traditionally within the competence Huron Portland Cement Co. v. lDetroit, of the States. One can read the history 362 U.S. 440, 80 S.Ct. 818, 4 L.Ed.2d 852, of the Admiralty Extension Act without however, arose after that Act became ef- finding any clear 'indication that Con- fective. Ships cruising navigable waters gress intended that sea-to-shore injuries and inspectedl and licensd [mun r iItraL be exclusively triable in the; federal acts were charged with violating I)e- courts.' troit's Smoke Abatement (Code. The company and its agents were, ind eed, Even though Congress has act- criminally charged with violating that ed in the admiralty area, state regula- Code. The Court in sustaining the state tion is permissible, absent a. clear con- prosecution said: flict with the federal law. Thus in Kel- ly v. Washington ex rel. Foso Co., 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3, it ap- 447 "The ordinance was enacted for the gable waters, and to their crews. The manifest purpose of promoting the fact that a whole system of liabilities was health and welfare of the city's inhab- established on the basis of those two itants. Legislation designed to free cases, led us years ago to establish the from pollution the very air that people "twilight zone" where state regulation breathe clearly falls within the exer- was permissible. See Davis v. Depart- cise of even the most traditional con- ment of Labor and Industries of Wash- cept of what is compendiously known ington, 317 U.S. 249, 252-253, 6: S,Ct,. as the police power. In the exercise 225, 227, 87 L.Ed. 246. Where there was of that power, the states and their in- a hearing by a federal agency and a con- strumentalities may act, in many clusion by that agency that the case fell areas of interstate commerce and mar- within the federal jurisdiction, we made itime activities, concurrently with the its findings final. 'lbid. Where there federal government." Id., at 442, 80 were no such findings, we presumed S.Ct., at 815. state law, in terms applicable, was con- The Court reasoned that there was stitutional. 317 U.S., at 257-258, 63 room for local control since federal S.Ct., at 229. That is the way the "twi- inspection was "limited to affording light zone" has been defined. protection from the perils of maritime navigation," while the Detroit ordinance Jensen thus has vitality left. was aimed at "the elimination of air But we decline to move the Jensent linle pollution to protect the health and en- of cases shoreward to oust state law hance the cleanliness of the local commu- from any situations involving shoreside nrity." Id., at 445, 80 S.Ct., at 817. T~he injuries by ships on. navigable waters, Court, in reviewing prlior decisions, not- The Admiralty Extension Act does not ed that a federally licensed vessel was not exempt () "from local ilotae pre-empt state law in those situations. lawo8"; (2) "local quarantine laws"; (o ) See Nacirema Operating Co. v, Johnson, "local safety inspections"; or (4) "local X56 U.S. 212, 90 S;Ct. 347, 24 L.Ed2d regulation of wharves and docks." Id., 371. at 447, 80 S.Ct., at 818. The judgment below is reversed. It follows, a fortiori, that sea- Judgment reversed. to-shore pollution-historically within the reach of the police power of the States--is inot silently taken away from the States by the Admiralty Extension Act, which does not purport to supply the exclusive remedy. As discussed above, we cannot say with certainty at this stage that the Filolrida Act conflicts with any federal Act. We have only the question whether the Nwaiverllf pre-emption by Congress in � 1161(o)(2) concerning the imposi- tion by a State of "any requirement or liability" is valid. It is valid unless the rule of Jensen and Klnickerbocker Ice is to en- gulf everything that Congress chose to call "admiralty,' pre-empting state ac- tion. Jensen and Knickerbocker Ice have been confined to their facts, viz., to suits relating to the relationship of ves- sels, plying the high seas and our navi- 448 PORTLAND PIPE LINE CORP. v. ENVIRONMENTAL IMPROVEMENT COM'N. 307 A. 2d 1 (1973). Like many other coastal states, Maine enacted a comprehensive statute designed to create liability for damages due to pollution discharges from ships. The act establishes a damage fund created by a tax levied on the oil being transported. Terminal facility operators are made strictly liable vicariously for damages caused by vessels using thier facilities. The oil industry challenged the Maine Act alleging that it violated both the Maine Constitution and the United States Constitution on numerous grounds. The Maine Supreme Court sustained the Act against the constitutional challenges and then went on to consider whether the Act invaded the Admiralty jurisdiction of the Federal courts. 449 /Ill Admiralty Plaintiffs next contend that, al- thllough the arbitration procedure is the sole PlaindArtiffs contend the Act unconstitn- state forum available for the resolution of tionally abridges Article III, Section 2, oil spill damages and that those injured by Clause 1, of the United States Constitution. oil spills are' free to se in a edyr- oil spills are free to seek relief in a Feder- That clause provides: al Court, the concurrent state remedy is "The judicial Power shall extend . . not "saved to suitors" because it is not to all Cases of admiralty and mari- "a common law remedy." time jurisdiction." The relief granted to suitors under the It is asserted that the Act "purports to Act is a monetary award based upon damn- make radical changes in substantive mari- ages and is the traditional form of relief at time law." common law. It is the method of determining danmages, The Admiralty Clause does not i.e., by a board of. arl)itration rather than permit either Congress or the States to de- ly a judge or a jury, to which plintiffs prive the Federal Courts of admiralty ju- objectu risdiction. Panama R.R. Co. v. Johnson, 264 U.S. 375, 44-1 S.Ct. 391, 68 L.Ed, 748 Plaintiffs rely upon Southern Pacific (1024). This Court has recognized as Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, much in Warren v. Kelley, 80 Me. 512, 15 61 L.Ed. 1086 (1917). In Jensen an em- A. 49 (1888). Sec also, Berry v. M. F. ployee was killed while engaged in the un- Donovan & Sons, 120 Me. 457, 115 A. 250 loading of his employer's steamship. The (1921). Workmen's Compensation Commission of New York awarded funeral expenses and 38 M.R.S.A. � 551 (2)D provides that periodic compensation to the widow and claims arising under the Act shall be re- _ coverable only in the manner provided by two children of the deceased. This corn- the Act and that the remedies provided to pensation was related by formula to the those harmed by oil spills under the Act deceased's weekly wage. - The Comlnis- are to lie "exclusive." sion's award was based upoll absolute lia- bility and was predicated upon the "arising The doctrine of presunlptive con- out of" and in "the course of" require- merts of the Workmen's Compensation stitutionality of statutory enactments ists of the Workmen's Compensatio given full effect in challenges lbased on the Admiralty Clause. Ihuron Portland Cement While the Jensen Court was concerned Co. v. Detroit, 362 U.S. 4-0, 80 S.Ct. 813, 4 with the absolute liability issue, such issue L,.Ed.2d 852 (1960) ; Davis v. Dept. of La- is not relevant to the specific question now bor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. before us. We are here concerned only 246 (1942). with the state forum and procedure and Applying this presumption, we do not will discuss substantive issues infra. find that the Legislature intended to pre- The Court in Jensen held: clude those injured by oil spills from seek- ing relief in a Federal Court. "The remedy which the Compensation Statute attempts to give is of a character Section 551 nowhere refers to Federal wholly unknown to the common law, in- Courts. capable of enforcement by the ordinary processes of any court and is not saved We hold that the Legislature in- to suitors from the grant of exclusive tended to acP' within its constitutionally jurisdiction." (Emphasis added) 244 limited area "of power. The forum pro- U.S. at 218, 37 S.Ct. at 53(). vided by the. Act, the board of arbitration established by Section 551(3), is intended The remedy provided by the New York to lie the "exclusive" state forum for re- statute required an application of a system solving damage claims arising from oil of dalnages unknown to the colimop law. spills. It also required continuing jurisdiction of 450 the ( onmmission because the awards were .. if one thing is clear it is ,t o hec altered or ceas~ed in the event of cer- that the source of law in saving-clause la~ill Ceontitngenicies. Wh~at seems of fore- actions cannot be described in absolute most importance is that the remedy pro- terms. Maritime Law is not a monistic vitlded ly the State of New York could not system. The State and Federal Govern- have been provided by an admiralty court. tnents jointly exert regulatory powers to- 'ihe remedy provided by the Act to those day as they have played joint roles in the development of maritime law htl-rned by oil spills is not like the remedy the development of maritime law il Jelnscnl. throughout our history." 358 U.S. at 374, 79 S.Ct. at 481. The remcedy is provided by determining No federal interest is infringed upon by actual damages. the creation of a board of arbitration to ' he rellef is afforded aby a lump sum decide those damage questions presented in payment. This remedy, a typical common a state forum. law remedy could easily he enforced by an ~~~~~~admiralty court. ~On the other hand, the State's objective of providing prompt resolution of those Neither the savings clause nor the hold- claims is a valid interest, inasmuch as it ing of Jensen were concerned with the na- facilitates the rapid clean-up of private ture of the forum. The concern was, rath- property and provides support to those er, that the remedy offered to suitors by whose means of employment have been de- the state was not of a type, "known to the stroyed as a result of an oil spill. common law," a remedy which an admiral- ty court could enforce. For these reasons the plaintiffs' claim that the Act seeks to divest the federal Since the remedy provided by the Act is courts of admiralty jurisdiction, and that one that is enforceable in an action in a the Act has established a procedure of ar- common law court, it falls within the sav- bitration for resolving damage claims ings clause. Panama R.R. Co. v. Vasquez, which is not authorized )by the "savings 271 U.S. 557, 46 S.Ct. 596, 70 L.Ed. 1085 clause," must fail. (1926). Even if Jensen were construed to forbid l It is the position of the plaintiffs * states affording a common law remedy in that the Act creates substantive admiralty a forum not known to the common law, law which is either novel or which con- it appears that holding has been limited flicts with existing admiralty law. to the specific facts of that case. Jensen The permissible role of the states in cre- has no remaining vitality beyond that ating substantive maritime law was recent- which may continue as to State W\ork- ly considered in Askew v. American Wa- men's Compensation lawrds. Standard terways, 411 U.S. 325, 93 S.Ct. 1590, 36 L. Dredging Corp. v. Murphy, 319 U.S. 306, Ed.2d 280 (1973). Relying upon Just v. 63 S.Ct. 1()67, 87 L.Ed.' 1416 (1943). In Chambers, 312 U,S. 383, 61 S.Ct. 687, 85 Standard Dredging the Court refused to L.Ed. 903 (1941) and The City of Nor- extend Jensen into the area of state unem- walk, 55 F. 98 (S.D.N.Y.1893), the Court ploy ment insurance. stated the law to be that The State. urges that in the wake of.the of confusion caused by Jclnscn, the Supreme a State, in the e.r Court has interpreted the savings clause in its police pover, may eatelth ruleslp- a manner so as to accommodate state ande on land and water within its lim- federal interests. The touchstone of the its, even though these rules incidentally analysis is the federal interest in a uniform affect maritme affairs, provided that the law of admiralty. See, Standard Dredging state action 'does not contravene any Corp. v. Murphy, supra, and Iavis v. Dept. acts of Congress, nor work any prejulice to the characteristic features of the mar- itime law, nor interfere with its proper , In Romero v. International Terminal harmony and uniformity in its interna- Operating Co., 358 U.S. 354, 79 S.Ct. 468, tional and interstate relations."' 411 U. 3 l.Ed.2d 368 (1959), the court stated that S. at 339, 93 S.Ct. at 1509. 451 the contention that the state may not away from the States by the Admiralty create "new" maritime law is untenable. Extension Act, which does not purport The role of state created rights and obli- to supply the exclusive remedy." 411 gations in the maritime area was discussed U.S. at 343, 93 S.Ct. at 1601. at length in Romero v. International Ter- The rigid requirement of uniformity minal Operating Co., supra. stated in Jensen and Knickerbocker Ice Co. "Although the corpus of admiralty law v. Stewart, 253 U.S. 149, 4) S.Ct. 438, 64 is federal in the sense that it derives L.Ed. 834 (1920), was held not to preempt from the implications of Article IIT state action in the area of controlling oil evolved by the courts, to claim that all pollution. enforced rights pertaining to matters The opinion of the Court in A..skew has maritime are rooted in federal law is a resolved the qupestion of whether or not the destructive oversimplification of the regulations and absolute liability imposed highly intricate interplay of the States upon terminals violates the uniformity re- and the National Government in their quirement of the Admiralty Clause against regulation of maritime commerce. It is plaintiffs. true that state law must yield to the The issue raised here that was not be- needs of a uniform federal maritime law fore the Court in Askew is whether the fore the Court in Askewz is whether the when this Court finds inroads on a har- imposition of vicarious liability Upon I lainl- monious system. But this limitation still tiffs is barred by the need for uniformity. leaves the States a wide scope." 358 U. S. at 33 79 S.Ct. at 481)0. Plaintiffs cite Somes v. White, 65 Me. .542 (1876), for the proposition that vicari- Included in this "wide scope" is the es- ous liability may not be applied in maritime tablishment of a state regulatory system law. In Somes this Court refrained from antl the imposition of absolute liability adopting, for reasons of policy, a form of upon these plaintiffs to protect Maine's vicarious liability upon an ownlr of a ship. coast froth this 'insidious form of pollu- The fact that our Court did not believe lion." Askew v. American Waterways. that public policy required the adoption of 'l'he UCoutrt there stated that vicarious liability on the facts before it in Somwcs is no basis for deciding that a leg- "Historically, damages to the shore or islative policy decision on different facts to shore facilities were not cognizable in cannot stand. admiralty." 4111 U.S. at 340, 93 S.Ct. at Plaintiffs' argument seems to be, [rely- 15099. ing upon Jenscn and Knickcrbh,cker Ice Co.] that uniformity of admiralty law is an Suits to recover such damages were end in and of itself. brought within the scope of admiralty ju- risdiction by the enactment, in 1948, of the .- In our view of the cases, uniform- Admiralty Extension Act. (46 U.S.C. � ity is rquired only when there is a nation- 741)). The Supreme Court considered that al interest at stake. Act in Victory Carriers, Inc. v. Law, 404 Plaintiffs have cited no national interest U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 which would be affected by the imposition (1971). The Court held that the exclusive upon oil terminals of vicarious liability. jurisdiction of the Federal Courts in admni- On the other hand the state interest in rI;llty should not Ie extended lbeyond that having an entity over which it can exercise extenldel liy the framers of the Conistitu- jurisdiction in recovering costs and dam. tion unless Congress clearly states such an ages resulting from oil spills is both practi- intention. cal and compelling. In considering the effect of the Admiral- The imposition of vicarious liability does ty Extension Act upon an oil conveyance no violence to any federal interest and thus law similar in many respects to the Maine does not offend the uniformity requirement Act, the Askew Court stated that of the Admiralty Clause. ". . sea-to-shore pollution-his- Since the Act does not violate the dor- torically within the reach of the police mant Admiralty Clause, plaintiffs' claim of power of the State-is not silently taken substantive violation of admiralty law must 452 fail unless they can demonstrate that the Imrsed. The Senate Committee took care Act conflicts with specific federal enact- to point out that no provision of the Fed- nments. cral Act should be read to affect the right Plaintiffs contend that the Act is incon- of a state to establish "absolute liability l'laintiffs contend that the Act is incon- .. ,ithout limits" for oil discharges. S.Rep. sistent with existing maritime law and thus ito limits" for oil discharges. S.Rep. violates the Admiralty Clause They also No. 91-351,.91st Cong., 1st Sess. 20 (1969). violates the Admiralty Clause. They also *r .(Emphasis added:) The conference report contend that the Act is inconsistent with. The conference report on this issue declared that a state is "free other Congressional enactments in viola- on this issue declared that a state is "free to provide requirements and penalties simi- tion of the Supremacy Clause. lar to those imposed by this section or ad- \,Ve shall treat these alleged conflicts ditional requirements and penalties." 1-I. vwvith federal lawv individuallv. R.Rep. No. 91-940, 91st Cong., 2d Sess. 42 1970). Plaintiffs recognize that the "presently operative" Congressional enactment in this We hold that Congress did not area is the Water (Q)uality Improvement illtellnd to restrict the states to the eight Act of 1970. This Act was discussed at million dollar limit imposed on reimburse- length by the Supreme Court in Askcw. ment of federal clean-up costs. The Court upheld the waiver of preemp- The Legislature has not created a con- tion contained in the Federal Act. This flict with the Federal Act by failing to so waiver allows the states to impose unlimit- limit liability under the Act. ed, strict liability on terminals for "losses suffered both by the State and by private This conclusion also resolves interests." Since the Federal Act contem- plaintiffs' contention that the Act conflicts plated State-Federal cooperation, the Court with the Water Quality Improvement Act held that the recovery of Federal clean-up by providing fewer defenses to a reinm- costs did not preclude the State from re- (lursement suit. covering the moneys it expended in clean- The State waives reimbursement of the up operations. p operations. sts of its clean-up operation in instances The Askew decision left two questions where the spill is the result of an act of unanswered. They are: i od, war or government. "whether the amount of [clean-up] The Federal Act waives reimlitrsenient costs [recoverable by a State] . . . when the spill is the fault of third persons. are limited to those specified in the Fed- Tthe Maine Act, in addition, imposes vi- leral Act and whether in turn th is new carious liability upon an oil terminal for Federal Act removes the pre-existing sill casely vessels destind for r de- limitations on liability in the Limitation partiln from that terminal. We believe tpatrtinlg from that terminal. WVe bvelieve of Liability At" the waiver of preemptioi 'found in 33 U.S. Plaintiffs argue that inasmuch as the C. � 1321(o) is broad enough to allow the Act provides no limit on the amount of State to impose liability in instances where clean-up costs recoverable by the State, it liability is not imposedib ' the federal law. conflicts with the limit established in the That provision when construed with the Federal Act. Section 1321(o) of the Fed- statements of Congrsional intent, cited eral Act limits the liability of an onshore supra, indicates to Congress left oil facility for costs of federal clean-up the states to dese whatever stand- the states free to devise whatever stand- procedures to an amount not to exceed ards of liability were deemed necessary to eight million dollars. realize the State's objectives. The Federal Act refers specifically to Since the liability imposed by the Act federal clean-up costs. does not violate due process it is a valid In light of the contemplated federal-state legislative act not in conflict with the fed- cooperation in containing and cleaning-up eral statute. oil spills, it is unlikely that if such a joint effort resulted in the Federal Government Plaintiffs next 'contend that the spending eight million dollars, that Con- Act, inasmuch as it does' not limit the lia- gress intended the State to go unreim- bility of vessels, is in conflict with the fed- 453 eral Limitation of Liability Act:, The This is hardly a "repugnance or conflict" liability of owners of vessels is limited to which cannot be reconciled. the "value of such vessels and freight pend- ing." 46 U.S.C. � 189. This limitation ex- In any event, the regulations promulgat- tends to damages caused by oil spills even ed by the Commission render plaintiffs' ar- when the injury is to the shore. Richard- gument on this point moot. Article XlA son v. Harmon, 222 U.S. 96, 32 S.Ct. 27, of those regulations provides: 56 L.Ed. 110 (1911). "In the case of any conflict of these We note that the Act, by its terms, does regulations with Federal Law or with a 'Lot provide for unlimited liability. In fact mandatory rule, regulation or order fo the Act does not seek to define the limits (sic) the Federal Government or its of the liability of vessels. It merely states agencies, such Federal Law, rule, regula- that they "shall be liable . . . for all tion or order shall govern." -t costs of clean-tip or other damage incurred In light of this provision a facial attack of liy the State." 38 M.R.S.A. � 552(2). conflict with federal regulations must fail. This language is identical to that con- Plaintiffs' final contention is that tainedl in the Florida Act before the Su- the Act interferes with the conduct of for- preme Court in Askew. (Fla.Stat. � 376.- eign affairs and conflicts with internation- 12, I".S.A.). al treaties. *The State acknowledges in its The supremacy of the federal govern- The .State acknowledges in its lbrief that any suits against vessels for ment in the area of foreign affairs is reimbursement, whether in a state or fed- unquestioned. intes v. IDavidowitz, 312 cral forum, must lie decided by applying fixed maritime law. This would include, When the federal government has by of course, an application of federal liability treaty established rights and obligations, limits. the treaty is the supreme law of the land. Plaintiffs argue that the regulatory pow- No state can add to or take from the ers of the Commission under 38 M.R.S.A. force and effect of such treaty. Missouri v. HIolland, 252 U.S. 416, 410 S.Ct. 382, 64 � 546(4) attempt to set tp a "conflicting, L.Ed. 641 (1920). We have recognized as inconsistent and duplicative" system of TL. Ed. 641 (1920). We have recognized as inconsistent and duplieative" system of much in Opinion of the Justices, I55 Me- reguilationl. nlmttch in Opinion of the Justices, 155 Me. 141, 152 A.2d 173 (1959). Plaintiffs' burden in this instance is a heavy onc. The 1954 International Convention for the Prevelntion of Pollution of the Sea by They must show "repugnance or Oil -allows certain discharges of oil, i, e., contlict . . . between the federal and to save a life or to secure the safety of the state regulations" such that these provi- vessel. Plaintiffs urge that the Act, by sions cannot "ble reconciled or consistently imposing liability for all spills, contravenes stand together." Kelly v. Washington, 302 the terms of the treaty. U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937). However, Article XI of the treaty makes plain the intent of the Convention not to The one specific conflict set forth by plaintiffs concerns the establishment of affect rules governingterritorial sea, anchorage areas by the Commission. The That Article provides that nothing in the pertinent federal law directs the Secretary Convention should be construed as derogat- of Transportation to define anchorage ing from the powersmof any of the parties grounds when required by "maritime or to take measures within its jurisdliction comnmercial interests." This power was concerning matters to which the Conven- granted to the Secretary in 1915. 38 Stat. tion relates. In ratifying the Convention, 1053. the United States specified that its accept- As yet no anchorage grounds have been ance was subject designated in Maine by the Secretary of "to the understanding that Article XI ef- 'Transportation. fectively reserves to the parties to the 454 (Conventioln frecdonl of legislative action Our research has disclosed no such pro- in territorial waters . . . anything vision. in the Convention which may appear to be contrary notwithstanding." [1961] 3 be contrary notwithstanding. [1961] (Emphasis This being so, we cannot say the provi- .S.T. 3024 T.T.A.S. 4900. ,(Emphasis sion of this statute which extends jurisdic- tion over tidewaters to a point 12 miles from the Maine coast is invalid. This freedom of action was granted to the states by Section 11 of the Water Quality We have carefully examined the provi- rImprovemcnt Act. sions of 38 M.R.S.A. �� 541-557, to deter- The issue then becomes whether the ju- mine whether or not, as the plaintiffs con- risdiction of the Commission extends only tend, the Act or any part thereof offends to territorial waters. against either the Constitution of the State of Maine or the Constitution of the United 38 M.R.S.A. � 544(1) extends the juris- States. While doing so, we have been diction of the Commission 12 miles from mindful of the words of Mr. Justice Story, the coastline of the State. written for a unanimous Court, in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) This plaintiffs claim is an overreaching 304, 4 L.Ed. 97 (1816): of the 3-mile limit historically recognized by the United States. "This constitution unavoidably deals in general language, It did not suit the In State v. Ruvido, 137 Me. 102, 15 A.2d purposes of the people, in framing this 293 (1940), this Court said, quoting Com- great charter of our liberties, to provide monwealth v. Manchester, 152 Mass. 230, for minute specifications of its powers, 240, 25 N.E. 113, 116 (1890): or to declare the means by which those powers should be carried into execution. "We regard it as established that as It was foreseen that this would be a per- between nations the mtizinium limit of a ilous and difficult, if not an impractica- nation over tide waters is a marine ble, fask. The instrument was not in- league [3 miles] from its coast tended to provide merely for the exigen- ." (Emphasis supplied) cies of a few years, but was to endure through a long lapse of ages, the events Tn State v. Richardson, Ale., 285 A.2d of which were locked up in the inscruta- 842 (1972), we stated in reference to R1u- ble purposes of Providence. It could not *,ido that be foreseen what new'changes and modi- fications of power might be indispensa- "By this principle the Court decided that the territorial waters over which ble to effectuate the general objects of Mlaine has jurisdiction and sovereignty the charter; and restrictions and specifi- embraces a three mile limit." 285 A.2d cations, which, at the present, might at 844 n. 3. seem salutary, might, in the end, prove the overthrow of 'the system itself. Since the United States has by treaty re- Hence its powers are expressed in gener- served the right to legislate in territorial al terms, leaving to the legislature, from waters alone, and has entered into an in- time to time, to adopt its own means to ternational agreement concerning the seas effectuate legitimate objects, and to beyond its territorial waters, the freedom mould and model the exercise of its pow- of the State of Maine to act in this area is ers, as its ow ers, as its own wisdom ~ and the public limited to that area considered by the Unit- .. (I ed States to be within its territory. , sh ould ui" 14 U.S.. I Wheat.) at 326-327. : Our attention has not been called to a The Legislature ofMaine in passing the provision of any treaty, Act of Congress, or decision of the Supreme Court of the United States, limiting territorial jurisdic- It has molded and modeed the exercise tion of the United States to tidewaters of its powers as its wisdom and the public within 3 miles of the coast of the United its wers as its wisdman the public States. ~- ~ ~interest required. 455 ATLANTIC RICHFIELD COMPANY v. EVANS, No. C75-648M (D. Wash. Sept. 23, 1976) Probable jurisdiction noted, U.S. Supreme Court, 45 U.S.L.W., 3586 (Feb. 28, 1977) sub nom. Ray v. Atlantic Richfield Co., No. 76-930. Per curiam (Goodwin, C.J.. ...McGovern & East, JJ.): Sound under hazardous conditions. 33 U.S.C. �1221(3)(iv). And Atlantic Richfield Company (Arco) and Seatrain Lines, Inc., the Coast Guard has considered doing this. Department of sued named officials of the State of Washington to enjoin enforce- Transportation, Coast Guard, Final Environmentai lmpact State- menl of a 1975 Washington law regulating oil tankers operating in ment [on the] Regulations for Tank Vessels Engaged in the Car- the Puget Sound. Jurisdiction is conferred by 28 U.S.C. ��1331 and riage of Oil in Domestic Trade 71 (Aug. 15, 1975). We believe that 1337, and this three-judge court was convened in accordance with the tugboat-escort provision of the Tanker Law has also been 28 U.S.C. ��2281, 2284.1 preempted by the federal law. Al the outset, the State of Washington challenges our jurisdic- Arco and Seatrain also argue that �2 of Washington's Tanker tion, asserting sovereign immunity under the Eleventh Amrend- Law (requiring a local pilot on all tankers larger than 50,000 dwt) nient, Aware of the rule in Ex parte Young, 209 U.S. 123 (1908), the has been preempted. Insofar as the Tanker Law prohibits a tanker State invites us to "overrule" it, or at least to restrict the scope of "enrolled in the coastwise trade" from navigating Puget Sound mcases faling wit.hi the Young "exception"s to the Elerivelnth Amend- unless it has a local pilot, the statute is void; it conflicts with clear ment. The invitation is attractively and persuasively argued, but we federal law on that subject. 46 U.S.C. ��215, 364 (1970) decline it. The Supreme Court, if it chooses to do so,' will have am- Recogniin the difficulty of its position the State of Wash- Recognizing the difficulty of its position, the State of Wash- pie opportunity to reconsider 1'otolg. The challenged statutes are found in Chapter 125, Laws of ington argues that its Tanker Law is part of a comprehensive Washington, 1975, Ist Extra Sess., codified at R.C.W. ��88.16.170 et coastal management plan, and that it should be upheld on that seq. (The Tanker Law). The Tanker Law regulates oil tankers ground.. "Cooperative federalism" has been the congressional operatinginPugetSound. ction theTankerLawrequiresany pollcy"for designing a United States environmental policy. The tanker in excess Of 50,000 deadweight tons (dwt) to employ a Congress-funded and encouraged the coastal states to design com- locally licensed pilot. Section 3(1) absolutely prohibits "super- prehensive and forward-looking coastal management plans. 16 tankers," that is, those larger than 125,000 dwt. And �3(2) pre- U.S1C. �1451 et seq. Congress has invoked "cooperative federal- scribes some minimum design specifications (shaft horsepower, tsrLr at least some state involvement-in virtually al of its twiscrewsdoublebot nsndtwinradars)fortankersbetween water-related regulatory programs: The Federal Water Pollution 40,000 and 125,000 dwt. A proviso in �3(2) waives these design spec- Control Act, 33 U.S.C. I 161 el seq.; the ('can Air Act, 42 U.S.C. ilications for tankers accompanied by an appropriate complement 185 the Esuarine Act of 1968, 16 U.S.C. ��1221 et sq.; and the of tugboats. Deepwaler Ports Act of 1974, 33 U.S.C'. ��I1501 et .seqy. Arco and Seatrain contend that the state's restrictions are Congress has used "cooperative federalism" in forming en- preempted by federal regulation in the field, are violative of the virdnnfltil regulations. But the State of Waslinglon fails to note commerce clause, and invade the foreign affairs powers of the that in thbse'statutes Congress explicitly invited state participation Ulnited Slates. in varibus phases of the formation of the regulatory scheme. The We are persuaded that federal law has preempted the field. Ti- ,PWSAI,'"n ihe other hand, does not invite such state participation; tie l of the Ports and Waterways Safety Act of 1972 (the PWSA), 33 it doesinot share regulatory authority over oil tankers with the U.S.C. ��1221 er sey.. establishes a comprehensive federal scheme S for regulating the operations, traffic routes, pilotage, and safety Supporting its position, Washington cites ,lAkw v..linerican design specilicalions of tankers. Under the PWSA, the Coast Guar:l Wate bperatorS, Inc. 411 U.S. 325 13 LLR 20362] (1973), and can create traffic-control systems for Puget Sound, and it has done HuronPortland Cement v. Cli.o Detroit. 362 I.S. 440 (1960). The sol. 33 C.FR.R. pt. 161, subpt. B. The PWSA gives the Coast Guard Askewtcase upheld Florida's law imposing strict liability in tort on authoritv to restrict and even exclude tankers from Puget Sound oil spillers. The Court held that the state regul;tory schene did not tinder adverse or hazardous conditions. 33 U.S.C. �1221(3)(iv). conflict with federal regulation of oil tankers. But that Florida Title II of the PWSA amended the Tank Vessel Act of 193\, qv, statute did not attempt to regulate the design of the tanker or tanker U.S.C' �391a. It empowered the Coast Guard to regulate design, operations, which were already federally regulated. The Askw case construction, and maintenance of tankers operating in Uniied involved the Fedbral Water Quality Control Act, not the PWSA, States waters. See proposed regulations, 41 Fed. Reg. 15859 (Apr. and the holding of the Court was in part reflective of the congres- 15, 1976). sional policy ,of "cooperative federalism" in the Federal Water ,'he purpose of the original Tank Vessel Act, and of Title 1l of Quality Controf Act, PWSA, was to establish a uniform set of regulations governing the In the Hutin Portland Cement case, a city's smoke-control ordi- types of ships permitted within the coastal waters of the United nance was applied.against a vessel engaged in interstate commerce. States and the conditions under which they would be perrritt.d t The Court observed that the environmental purpose of I)etroit's operate. Balkanization of regulatory authority over this mo:. inler- ordinance was not preempted by federal safety inspection regulau- state, even international, of transportation systems is forecloscd b1'; tions. There was "no overlap between the scope of the federal ship the national policy embodied in the PWSA. The PWSA has inspection laws and that of the municipal ordinance," 362 U.S. at preenlpted �3(2) of Washington's Tanker Law. 446. Since the PWSA introduced environmental considerations into Washington asserts that the minimum design specificationi, ,-,- quired by �3(2) of the Tanker Law were not preempted,. u; ,:. they can be avoided if the tanker has a tugboat escort. Consre:,s has:, given tile ('Coast iuard authority to require tugboat es:or.:; in ['ug:?t 456 the federal tanker regulations,' the State of Washington cannot say that there is "no overlap" between the state and federal laws. Finally, the State of Washington asserts that the Commerce Department's approval of its coastal management plan (to which the Tanker Law is related) somehow waives federal preemption of the area. The Secretary of Commerce can approve a state's coastal management plan (thereby making it eligible for federal funding) only if "the views of Federal agencies principally affected by such program have been adequately considered." 16 U.S.C. �1456(b) (1970). The Secretary may or may not have "considered" the views of the Coast Guard. The Secretary may or may not have noticed the preemptive effect of the PWSA on Washington's Tanker Law. That is not before us. We cannot read the Secretary's approval of a coastal management plan, to which the Tanker Law is only col- laterally related, as foreclosing our inquiry into the federal preemp- tion of oil tanker regulations. Finally, the state and the other states filing amici briefs have argued with some conviction that a state's officials, responsible to its voters, are better able to protect the state's shoreline environ- ment than is the Commandant of the Coast Guard, headquartered on the other side of the continent. This argument presents legisla- tive, rather than judicial, policy considerations. Because the Washington Tanker Law conflicts with federal law preempting the same subject matter, the state law is void. The plaintiffs have asserted a number of other grounds for declaring the statute void. It is unnecessary to reach these other points. It is likewise unnecessary to grant an injunction. It is presumed that the responsible officials of the State of Washington will not un- dertake to enforce the statute pending such further appeals as may be taken. The clerk will enter judgment. Neither party'shall have costs. ORDER This matter came before the undersigned, one of the three judges empanelled to hear and determine the above-entitled cause, in accordance with Title 28 U.S.C. ��2281 and 2284 and in furtherance of the unanimous opinion of the said three judges which has now been filed herein. It is hereby ordered, adjudged and decreed that Chapter 125, Laws of Washington, 1975, Ist Extra Ses- sion, codified at R.C.W. ��88.16.170 et veq. (The Tanker Law) be and the same is hereby declared null and void and of no Ibrce and effect. It is further Ordered that the application of the plaintiff for an order en- joining the responsible officials of the State of Washington from en- forcing the said statute pending any appeal of this matter be and the same is hereby denied; and it is further Ordered that no party to the cause shall recover costs. 457 B. OCEAN DUMPING MARINE PROTECTION, RESEARCH AND SANCTUARIES ACT OF 1972, 33 U.S..C.. �1401 et seq. � 1401. Congressional finding, policy and declaration of (f) "Dumping" means.a disposition of material: purpose. Provided, That it does not mean a disposition of (a) Unregulated dumping of material into ocean any effluent from any outfall structure to the ex- wnaters endangers human health, welfare, and amen- tent that such disposition is regulated under the lics, and the marine environment, ecological sys- provisions of the Federal Water Pollution Control terns, and economic potentialities. Act, as amended, under the provisions of section (b) The Congress declares that it is the policy of 407 of this title, or under the provisions of the," the United States to regulate the dumping of all Atomic Energy Act of 1954, as amended, nor does It types of materials into ocean waters and to prevent mean a routine discharge of effluent incidental to or strictly limit the dumping into ocean waters of the propulsion of, or operation of motor-driven any material which would adversely affect human equipment on, vessels: Provided further, That It health, welfare, or amenities. or the marine environ- does not mean the construction of any fixed ment, ecological systems, or economic potentialities. structure or artificial sland nor the intentional (c) It is the purpose of this chapter to regulate (1) placement of any device in ocean waters or on or the transportation by any person of material from in the submerged land beneath such waters, for a the United States and, in the case of United States purpose other than disposil, when such construc- vessels, aircraft, or agencies, the transportation of tion or such placement IS otherwise regulated by material from a location outside the United States, Federal or State law or occurs pursuant to an au- when in either case the transportation is for the pur- thorized Federal or State program: And Pro- pose of dumping the material into ocean waters, and vided further, That it does not include the deposit (2) the dumping of material transported by any of oyster shells, or other materials when such de- person from a location outside the United States, if posit is made for the purpose of developing, maln- the dumping occurs in the territorial sea or the con- tainlng, or harvesting fisheries resources and Is tiguous zone of the United States. (Pub. L. 92-532, otherwise regulated by Federal or State law or � 2, Oct. 23, 1972, 86 Stat. 1052, amended Pub. L. 93- occurs prsuant to an authorized Federal or State 254, � 1(1), Mar. 22, 1974, 88 Stat. 50.) program. (g) "District court. of ithe United States" in- 1102. Definitiolls. cludes the District Couro of Guam, the District For the-purposes of this chapter the teft~m- .. Court of the Virgin Islands, the District Court of (a) "Administrator" means the Administrator Puerto Rico, the District Court of the Canal Zone, of the Environmental Protection Agency. and in the case of American Samoa and the Trust (b) "Ocean waters" means those waters of the Territory of the Pacific Islands, the District Court open seas ying seaward of the base line from of the United States for the District of Hawaii, which the territorial sea is measured, as provided which court shall have Jurisdiction over actions for in the Convention on the Territorial Sea and arising therein. (h) "Secretary" rhones the Secretary of the the Contiguous Zone (15 UST 1606; TIAS 5639). the Secretary of the (c) "Material" means matter of anyklind or de- Army. scription, including, but not limited to, dredged ca) "Dredged materllheans any materal ex- material, solid waste, incinerator residue, garbage, the cavated or dreded fro the navigable ters of sewage, sewage sludge, munitions, radiological, i chemical, and biological warfare agents, radio- '(j) "High-level radioactive waste" means the chemical, and biological warfare agents, radio- aqueous waste resulting' from the operation of the active materials, chemicals, biological and labora- aqueous waste resulti nsy the oeration of the toy waste, wreck or discarded equipment, rock first cycle solvent exti'action system, or equivalent tory waste, wreck or discarded equipment, rock, sand, excavation debris, and industrial, municipal, and the concentrated ' aste from subsequent ex- agricultural, and other waste; but such term does traction cycle or ea nt, in a facility for rradiated not mean sewage from vessels within the meaning processing irradiated r toruels, or of section 1322 of this title. Oil within the meaning fuel from nuclear power refactors. of section 1321 of this title shall be included only (kt "Transport' ore "transportation" refers to to the extent that such oil is taken on board a the carriage and related handling of any material vessel or aircraft for the purpose of dumping. by a vessel, or by any other vehicle, including rd) "United States" includes the several States, aircraft. i : the District of Columbia, the Commonwealth of () "Convention" means,the Convention on the Puerto Rico, the Canal Zone, the territories and Prevention of Marine Pollution by Dumping of possessions of the United States, and the Trust Wastes and Other Matter. Territory of the Pacific Islands. (Pub. L. 92-532, � 3, Oct. '23, 1972, 86 Stat, 1052, (e) "Person" means any private person or amended Pub. L. 93-254,' I1(2), Mar. 22, 1974, 88 entity, or any officer, employee, agent, department, Stat. 50.) agency, or instrumentality of the Federal Gov- ernment, of any State or local unit of government, or of any foreign government. 458 SUBCHAPTER I.-REGULATION (D) The effectif'atich dumping on marine � 1411. Prohibited acts. ecosystems, particularly with respect to- (1) the transfer, concentration, and disper- (a) Except as may be authorized by a permit sion of such materil and itsbyproductsthrough issued pursuant to section 1412 or section 1413 of this biological, physical"tnd chemical processes. title, and subject to regulations issued pursuant to (iD potential changes in marine ecosystem section 1418 of this title, '. "'._ diversity, productivity, and stability, and (1) no person shall transport from the United (iii) species; and community population States, and dynamics. (2) in the case of a vessel or aircraft registered (E) The persistence and permanence of the in the United States or flying the United States effects of the dumping. flag or in the case of a United States department,; (F) The effect of- dumping particular volumes agency, or instrumentality, no person shall trans- and concentrations of such materials. port from any location ; (G) Appropriate locations and methods of dis- any material for the purpose of dumping it into ., posal or recycling, [iiuding land-based alterna- ocean waters. tives and the probaMbl impact of requiring use of (b) Except as may be authorized .by a permit A such alternatelocations or methods upyn consid- issued pursuant to section 1412 of this title, and sub- : erations affecting thepiblic interest. ject to, iegulations issued pursuant to section 1418 , (H) The effect onaternate uses of oceans, such of this title, no person shall dump any material scientific stuy fishing, and other living re- transported from a location outside the United States . source exploitation, and non-living resource (1) into the territorial sea of the United States, or exploitation. ' (2) into a zone contiguous to the territorial sea of ' I) In deignatineoene sites, the A- the United States, extending to a line twelve nautical nistrator shall utilize wherever feasible loca- !ai mtnistrator shall utiitze wherever feasible loca- miles seaward from the base line from which the tions beyond the ed of the Continental Shelf, breadth of the territorial sea is measured, to the extent that it may affect the territorial sea or the T establishing or revisirig such criteria, the Admin- territory of the United States; (Pub. L. 92-532, title T, istrator shall consult with Federal, State, and local � 101, Oct. 23, 1972, 86 Stat. 1053, amended Pub; ifcials, and inteXte&uembers of the general pub- 1974, 88 S; 81.) liC, as may appear appropriate to the Administrator. 9324, 1 ar. 22, With respect to such 'cri ria as may affect the civil ,,,worksprogram of the 'a)partment of the Army, the �1412. Dumping permit program. i,:A';?i' . " i Administrator shal!also consult with the Secretary. (a) Environmental ProtectioAgeny mits.' " reviewing apil i for permits the Admns- Except in relation to dredged shall make 'suq`rovision for consultation vided for in section 1413 of this title, aid In rEBltPon with interested FePie4 and State agencies as he to radiological, chenmical, fad. boloIgic wartarf �4lemsuseful or nep$ , No permit shall be issued agents and high-level radioactive waste, for which du in which will ifjlate appli- no permit may be issued, the Admlnistrator may issue 1b water To the exe that he permits, after notice and opportunity for public 'may do so teratg the requirements of this hearings, for the transportation from the Unitedbchapter the trator n establishing States or, in the case of an agency or instrumentality revising such crltei,'bhll apply the sta ndards and of the United States, or in the case of a vessel or criteria binding tp te United States under the aircraft registered in the United States or flying the United States flag, for the transportation from a lo- , *. cation outside the United States, of material for the ' lb) Permit categories, ,; purpose of, dumping it into ocean waters, or for the i The Admlnistrat/r'r y establish and Issue vari- dumping of material into thewaters described in ous categories of permits, including the general per- section 1411(b) of this title, where the Administrator ,nts described in sectloi 1414(c) of this title. determines that such dumping will not unreasonably 1'() Sites and times for dupmping. degrade or endanger human health, -welfare, or "' The Admlnistratormrny, considering the criteria amenities, or 'the marine environment, ecological established pursuant ,t subsection (a) of this sec- systems, or economic potentialities. The Adminis- ' tion, designate recommended sites or times for trator shall establish and apply criteria for review- sdumping and, when he finds it necessary to protect ing and evaluating such permit applications, and, 'critecal areas ll, af erconsultatlon with the Sec- in establishing or revising such criteria, shall con- retary, also designate sites ur times within which sider, but not be limited in his consideration to, the , certain materials may eot be dumped. following: : . (d) Fish wastes.' '. ii j " , (A) The need for the proposed dumping. No Permit is recuiedt under this subchapter for (B) The effect of such dumping on human the transportation for dumping or the dumping of health and welfare, including economic, esthetic, fish wastes, except whein deposited in harbors or and recreational values. other protected or eiel)sed coastal waters, or where (C) The effect of such dumping on fisheries re- the Administrator f ithat such deposits could en- sources, plankton, flsh, shellfish, wildlife, shore danger health, the nironment, or ecological sys- lines and beaches. terns in a specific ioqpt:io Where the Administrator 459 makes such a finding, such material may be de- (d) Waiver of requirements. posited only as authorized by a permit issued by the If, in any case, the Secretary finds that, in the Administrator under this section. disposition of dredged material. there is no econom- (e) Foreigna State permits; acceptance. ically feasible method or site available other than a In the case of transportation of material, by a dumping site the utilization of which would result vessel or aircraft registered in the United States or in non-compliance with the criteria established pur- flying the United States flag, from a location in a suant to section 1412(a) of this title relating to the foreign State Party to the Convention, a permit effects of dumping or with the restrictions estab- issued pursuant to the authority of that foreign lished pursuant to section 1412(c) of this title relat- State Party, in accordance with Convention require- ing. to critical areas, he shall so certify and request ments, and which otherwise could have been issued a waiver from the Administrator of the specific re- purusant to subsection (a) of this section, shall be quirements Involved, Within thirty days of the accepted, for the purposes of this subchapter, as if receipt of the waiver request, unless the Administra- it were issued by the Administrator under the au- tor finds that the dumping of the material will result thority of this section. (Pub. L. 92-532, title I, � 102, in an unacceptably adverse impact on municipal Oct. 23, 1972, 86 Stat, 1054, amended Pub. L. 93-254, water supplies, shell-fisl beds, wildlife, fisheries (in- � 1 (4), Mar. 22, 1974, 88 Stat. 51.) eluding spawning and breeding al:eas), or recrea- tional areas, he shall [lant the waiver. � 1413. Dumping permit program for dredged material. (e) Federal projects involving dre(d!ed materinl. In connection with Federal projects Involving (a) Issunnce by Secretary of the Army. dredged material, the Secretary may, in lieu of the Subject to the provisions of subsections (b), (c), permit procedure, Issue regulations which will' require and (d) of this section, the Secretary may issue the application to such procects of the same criteria, permits, after notice and opportunity for public other factors to be evaluated. the same procedures, hearings, for the transportation of dredged material and the same requiretnents which apply to the Is- for the purpose of dumping it into ocean waters, suance of permits under subsections (a), (b), (�), where the Secretary determines that the dumping and (d) of this section. (Pub. J. 92-532. title I, I 103, will not unreasonably degrade or endanger human Oct. 23, 1972, 8 Stat. 1055.) health, welfare, or amenities, or the marine environ- ment, ecological systems, or economic potentialities. (b) Independenlt deiermillaion of need for dumping. � 1414. Permit conditions, , other methobds of disposal, and appropriate (n) Desigllnfedandinlel4d colditions. ~~~~~~~~locations,,~~~. -Permits issued under thlis subchapter shall desig- en making the determination required by subsec- nateand include th ty of terial athoriz tion (a) of this section, the Secretary shall apply to be ansported for du mping or to be dumped; (2) those criteria, established pursuant to section 1412 the amount of material author to be transported (a) of this title, relating to the effects of the dump- for dumpng or to be lumped the location ing. Based upon an evaluation of the potential effect where suh transport for duin) will be terminated of a permit denial on navigation, economic and in- dustrial development, and foreign and domestic o r wh ich the pengwil ar e vald and th commerce of the United States. the Secretary shall make an independent determination as to the need expiration date: 5) any special provisions deemed necessary by the Administrator or the Secretary. as for the dumping. The Secretary shall also make an the case ma be, after consulttion withe Secrer the case may be, after consultation with the Secre- independent determination as to other possible tary of thle Department in which the Coast G~uard is methods of disposal and as to appropriate locations for the dumping. In considering appropriate loca- the transportation o r dmping and (6) such ot tions, he shall, to the extent feasible. utilize the tions, he shall, to the extent feasible, utilize the matters as the Administrator or the Secretary, as the recommended sites designated by the Administrator pursuant to section 1412(c) of this title., (b) Permit processing fees: reporting requirements. (c) Disagreement of Administrator with determiaa- The Administrator or the Secretary, as the case tion of Secretary of the Army. Prior to issuing any permit under this section, the may be, may prescribe such processing fees for per- Secretary shall first notify the Administrator of his mits and such reporting requirements for actions intention to do so. In any case In which the Admin- 'taken pursuant to permits issued by him under this Istrator disagrees with the determination of the subchapter as he deems appropriate. Secretary as to compliance,with the criteria estab- (c) General permits. lished pursuant to section 1412(a) of this title Consistent with the requirements of sections 1412 relating to the effects of the dumping or with the and 1413 of this title, but In lieu of a requirement ior restrictions established pursuant to section 1412(c) specific permits in such case, the Administrator or of this title relating to critical areas, the determina- the Secretary, as the case mny be. may issue general tion of the Administrator shall prevail. Unless the permits for the transportation for dumping, or Administrator grants a waiver pursuant to shlbec- dumping, or both, of specified materials or classes tion (d) of this section, the Secretary shall not of materials for which he may issue permits, which issue a permit which does not comply with such he determines will have a minimal anerse environ- criteria and with such restrictions. mental impact. 460 (d) Review. in the appropriate district court of the United States Any permit issued under this subchapter shall be for such relief as may be appropriate. reviewed periodically and, if appropriate, revised. The (h) Criminal penalties. Administrator or the Secretary, as the case may be, In addition to any action which may be brought may limit or deny the issuance of permits, or he may under subsection (a) of this section, a person who alter or revoke partially or entirely the terms of knowingly violates this subchapter, regulations permits issued by him under this subchapter, for promulgated under this subchapter, or a permit the transportation for dumping, or for the dumping, issued under this subchapter shall be fined not more or both, of specified materials or classes of materials, than $50,000, or imprisoned for not more than one where he finds that such materials cannot be dumped year, or both. consistently with the criteria and other factors re- (c) Separate offenses. quired to be applied in evaluating the permit applica- For the purpose of Imposing civil penalties and tton. No action shall be taken under this subsection criminal fines under this section, each day of a con- unless the affected person or permittee shall have tinuing violation shall constitute a separate offense been given notice and opportunity for a hearing on as shall the dumping from each of several vessels, such action as proposed. or other sources. (c) Information for review and evaluation of appli- (d) Injunctive relief. cations. The Attorney General or his delegate may bring The Administrator or the Secretary, as the case actions for equitable relief to enjoin an imminent or may be, shall require an applicant for a permit under continuing violation of this subchapter, of regu- this subchapter to provide such information as he lations promulgated under this subehapter, or of may consider necessary to review and evaluate such permits issued under this subchapter, and the dis- application. trict courts of the United States shall have juris- M(f) Public information. diction to grant such relief as the equities of the Information received by the Administrator or the case may require. Secretary, as the case may be, as a part of any (e) .inability of vessels in rem. application or In connection with any permit granted A vessel, except a public vessel within the mean- under this subchapter shall be available to the pub- ing of section 13 of the Federal Water Pollution lic as a matter of public record, at every stage of Control Act, as amended, used in a violation, shall the proceeding. The final determination of the Ad- be liable in rem for any civil penalty assessed or ministrator or the Secretary, as the case may be. criminal fine imposed and may be proceeded against shall be likewise available. in any district court of the United States having (g) Display of issued permits. jurisdiction thereof; but no vessel shall be liable A copy of any permit issued under this subchapter unless it shall appear that one or more of the owners. shall be placed in a conspicuous place in the vessel or bareboat charterers, was at the time of the viola- which will be used for the transportation or dumping tiona consenting party or privy to such violation. authorized by such permit, and an additional copy (f) Revocation and suspension of permits. shall be furnished by the issuing official to the Secre- If the provisions of any permit Issued under sec- tary of the department In which the Coast Guard is tion 1412 or 1413 of this title are violated, the Ad- operating, or its designee. (Pub. L 92-532, title I, ministrator or the Secretary, as the case may be, � 104, Oct. 23, 1972, 86 Stat. 1056.) may revoke the permit or may suspend the permit for a specified period of time. No permit shall be revoked or suspended unless the permittee shall � 1115. Penalties. have been given notice and opportunity for a hear- (a) Assessment of civil penalty by Administrator; re- ing on such violation and proposed suspension or mission or mitigation; court action for appropriate revocation. relief. Any person who violates any provision of this sub- (g) Civil suits by private persons. (1) Except as provided in paragraph (2) of this chapter, or of the regulations promulgated under this subsection any person may commence a civil suit on subchapter, or a permit issued under this subchapter his own behalf to enjoin any person, including the shall be liable to a civil penalty of not more than United States and any other governmental Instru- $50,000 for each violation to be assessed by the Ad- mentality or agency (to the extent permitted by the ministrator. No penalty shall be assessed until the eleventh amendment to the Constitution), who is person charged shall have been given notice and an alleged to be in violation. of any prohibitlon, Ilmita- opportunity for a hearing of such violation. In deter- tion, criterion, or permit established or issued by or mining the amount of the penalty, the gravity of under this subchapter. The district courts shall have the violation, prior violations, and the demonstrated jurisdiction, without regard to the amount in con- good faith of the person charged in attempting to troversy or the citizenshlp of the parties, to enforce achieve rapid compliance after notification of a vio- such prohibition, limitation, criterion, or permit, as lation shall be considered by said Administrator. For the case may be. good cause shown, the Administrator may remit or (2) No action may be commenced- mitigate such penalty. Upon failure of the offending (A) prior to sixty days after notice of the vlola- party to pay the penalty, the Administrator may tion has been given to the Administrator or to the request the Attorney General to commence an action 461 Secretary, and to any alleged violator of the pro- hibltion, limitation, criterion, or permit; or tion shall not apply to actions taken before the (B) if the Attorney General has commenced (B) If the Attorney General has commenced effective date of this subchapter under the authority and is diligently prosecuting a civil action In a of the Rivers and Harbors Act of 1899, as amended. court of the United States to require compliance (c) Prior to issuing any permit under this sub- with the prohibition, limitation, criterion, or per- chapter, if it appears to the Administrator that the mit; or m(C) f the Administrator has commenced notion disposition of material, other than dredged material, may adversely affect navigation in the territorial sea to impose a penalty pursuant to subsection (a) of of the United States, or in the approaches to any this section, 'or if the Administrator, or the Secre- harbor of the United States, or may create an artlfl- tary, has initiated permit revocation or suspension c island on the Outer Continental Shelf, the Ad- proceedings under subsection (f) of this section; ministrator shall consult with the Secretary and no or permit shall be issued if the Secretary determines (D) if the United States has commenced and that navigation will be unreasonably impaired, is diligently prosecuting a criminal action in a (d) After the effective date of this subchapter, court of the United States or a State to redress a no State shall adopt or enforce any rule or regula- violation of this subchapter. tlon relating to any activity regulated by this sub- (3) (A) Any suit under this subsection may be chapter. Any State may, however, propose to the brought in the Judicial district in which the viola- Administrator criteria relating to the dumping of tion occurs. materials into ocean waters within its Jurlsdiction, or (B) In any such suit under this subsection in Into other ocean waters to the extent that such which the United States is not a party, the At- dumping may affect waters within the jurisdiction of torney General, at the request of the Administrator such State, and If the Administrator determires, or Secretary, may interyene on behalf of the United after notice and opportunity for hearing, that the States as a matter of right. proposed criteria are not inconsistent with the pur- (4) The court, in issuing any final order in any poses of this subchapter, may adopt those criteria suit brought pursuant to paragraph (1) of this sub- and may Issue regulations to implement such cri- section may award costs of litigation (including terla. Such determination shall be made by the reasonable attorney and expert witness fees) to any Administrator within one hundred and twenty days party, whenever the court determines such award of receipt of the proposed criteria. For the purposes is appropriate. of this subsection, the term "State" means any (5) The injunctive relief provided by this' sub- State, Interstate or regional authority, Federal terri- section shall not restrict any right which any person tory or Commonwealth or the District of Columbia. (or class of persons) may have under any statute or (e) Nothing in this subchapter shall be deemed to common law to seek enforcement of any standard affect in any manner or to any extent any provi- or limitation or to seek any other relief (including sion of the Fish and Wildlife Coordination Act as relief against the Administrator, the Secretary, or , amended. (Pub, L. 92-532, title I, � 108, Oct. 23, 1972, a State agency). 86 Stat. 1058.) (h) Emergencies, No person shall be subject to a civil penalty or to a criminal fine or imprisonment for dumping mate- 1417. Enforcement rials from a vessel If such materials are dumped (a) Utilization of other departments, agncies, and in an emergency to safeguard life at sea. Any such instrumentalities. emergency dumping shall be reported to the Admin- The Administrator or the Secretary, as the case istrator under such conditions as he may prescribe. may be, may, whenever appropriate, utilize by agree- (Pub. L. 92-532, title I, � 105, Oct. 23, 1972, 86 Stat. ment, the personnel, services and facilities of other 1057.) Federal departments, agencies, and instrumental- ities, or State agencies or instrumentalities, whether on a reimbursable or a nonreimbursable basis, in car- � 1416. Voiding of pre-existing licenses; impairment in out his responsibilities under this subchapter. of navigation; consistent State programs; exist- of41- navigation; ofnsis-xtsent St'ate programs-, exist- rying out his responsibilities under this subehapter, ing conservation program not affected. (b) Delegation of review and evaluation authority. (a) After the effective date of this subchapter, all The Administrator or the Secretary may delegate licenses, permits, and authorizations other than responsibility and authority for reviewing and eval- those issued pursuant to this subchapter shall be uating permit applications, including the decision void and of no legal effect, to the extent that they as to whether a permit will be issued, to an officer of purport to authorize any activity regulated by this his agency, or he may delegate, by agreement, such subchapter, and whether issued before or after the effective date of this subchapter. 462 responsibility and authority to the heads of other �1420. Authorization of appropriations. Federal departments or agencies, whether on a re- lmbursable or nonreimbursable basis. There are hereby authorized to be appropriated not to exceed $3,600,000 for fiscal year 1973, not (c) Surveillance and other enforcement activity .. The Secretary of the department in which the to exceed $5,500,000 for each of the fiscal years 1974 Coast Guard is operating shall conduct surveillance and 1975, not to exceed $5,300,000 for fiscal year and other appropriate enforcement activity to pre- 1976, and not to exceed $1,325,000 for the transition vent unlawful transportation of material for dump- Period (July 1 through September 30, 1976), for the ing, or unlawful dumping. Such enforcement activity purposes and administration of this subchapter, and shall include, but not be limited to, enforcement of for succeeding fiscal years only such sum as the regulations issued by him pursuant to section 1418 Congress may authorize by law. (Pub. L. 92-632, of this title, relating to safe transportation, han- title I. �111, Oct' 23, 1972, 8B Stat. 1060, amended dling, carriage, storage, and stowage. The Secre- Pub. L. 93-472, Oct. 26, 1974, 88 Stat. 1490; Pub. L. tary of the Department in which the Coast Guard 94-62, 1, July 25, 1975, 89 Stat. 303.) is operating shall supply to the Administrator and to the Attorney General, as appropriate, such informa- tion of enforcement activities and such evidentiary material assembled as they may require in carrying �1421. Annual report to Congress. out their duties relative to penalty assessments, The Administrator shall report annually, on or criminal prosecutions, or other actions involving before June 30 of each year, with the first report litigation pursuant to the provisions of this sub- to be made on or before June 30, 1973 to the Con- chapter. (Pub. L. 92-532, title I, � 107, Oct. 23, 1972, gress, on his administration of this subchapter, in- 86 Stat. 1059.) eluding recommendations for additional legislation if deemed necessary. (Pub. L, 92-532, title I, � 112, Oct. 23, 1972, 86 Stat. 1060.) �1418. Regulations. In carrying out the responsibilites and authority conferred by this subchapter, the Administrator, the, Secretary, and the Secretary of the department in which the Coast Guard is operating are authorized to issue such regulations as they may deem appro- priate. (Pub. L. 92-532, title I, � 108, Oct. 23, 1972, 86 Stat. 1059.) �1419. International cooperation. The Secretary of State, in consultation with the Administrator, shall seek effective international ac- tion and cooperation to insure protection of the ma- rine environment, and may, for this purpose, formu- late, present, or support specific proposals in the United Nations and other component international organizations for the development of appropriate international rules and regulations in support of the policy of this chapter. (Pub. L. 92-532, title I, � 109, Oct. 23, 1972, 86 Stat. 1060.) 463 o Test Case on Ocean Dumping: Must Philadelphia Move Toward On-Land Disposal of Sewage Sludge?* Manl hls becen 1um' inl his W;..s- illo Ihe OCa1l"S - Thi-e newrequir ennt stunlned Philadelphia officials, since time i mml orial, but the quantity and toxicity ol who were raced with the task of designing and iniplc- these dischllrgesbas ifncreasel steadily as our industrial menting a system to replace dumping within six years. socicety lIas bcCa'the more complex. Though scientists Philadelphia Water Commissioner Carmilen F. Guarino hatve juit begun to study the cnvironmcntal imlpact ol angrily declared that compliance with the I:'PA order thlcse perlsonal arnd i*dtustria~l wastce. andi though tlrack- would be impossible. Predictably, the city filed to have ing the paths ol discharged metals ;and bacteria throuIgIl the regional decision reviewed by Environmental Pro- shifting occ;m currents is a frustrating and diflicult task, lection Agency Administrator Russell Train. An ad- tlhe resultS thus arobtained trosm Sluch invcstiga;tionlar. judicatory hearing held in May of this year produced not enicourgl.ling. C11ommon1 se nsel alone sulggcsts that Ithe seven volumes of testimony, and Train is expected to ocean's ability to absorb poisornious wastes is not in- release his ruling in early lall. 'ilitc. '-The Marine Protection, Research and Sanctuaries Inl resplonse to this problemn, Congress passedl the Act of 1972 authorizes the Administrator to issue it per- Marlkine l'lrotectin, cesearch, andi Sanctluwlries A\ct of' mit only where he "determines that such dumping will 1I72. Ilhe Act declares that the policy of the Ulnited not unreasonably degrade or endanger hiini health, Staltes shalll he o"regulltt Ithe dumrping of all typles e welflare, or amenities, or the marine envirotlment, mIaterials into oQian walers and to prevent Or strictly ecological systems or economic polenlialities." In lilit the dumpifnginto 'ocean waitcrs of alny material order to ensure lhat long ranlge dumlliling- will not unreasonably degrade the environmenint, thile t!PA which vuld aidvermsel ill t hlllinul11 heialth, welflare or regulations provide thai the Administrator can grant aLi ell snifii~ t~h~tne m iiir ~n vi ru~nmenelt. ecological - only a one year non-renewable interinl prmlit fr ocean systclms ti i cconomic t poI 6 [illilies." Ulnder the linal dumping of' sewage sludge, with or without imposed regtulltiollns uld crFteria purtmulgalted by the i:nviron- conditions such as plhascsutls, when "blacklisted" nma- menaltall rI'l, ttlth ti Agftncy in 1h'73. pdursreant to ithe terials such as the heavy metals cadmiulml :tnd mercury. siltllt. lh' *ndimnitsti lt' h~as. the daiscreCtion to iSStlC and "graylisted" materials' such as other metals and tc! ycalr mll :rin jpecrnmils" folr dulplling toxic wastes min biodegradable organic matter, are present in the sludge Ihc pclC;ln ;l vided tlhat Ihe durnper either dejsigns an ilin high concentrations. In applications for all permit nplw:,ilemiilul o basediwis ris aos el proitectsthat tilell types, both Train and, former Administrator Ruckelshaus have interpreted the Act as rClUqiring the tloXit cinilulicents of its waslte so 0si to qlua;lifry (Ir ta applicant to clearly prove that no unreasonable degrada- specil cnhit." w'hich must prescri be stricter nuimeri - tion will result from the proposed dumping. cal Stalld:lrlIs For allowable discharges. Afrter several use Philadelphia siewae apli.T.s tlcaL a large f eairs (of' I;u I i rforilrwarice, the FPA has recently taken a amount of inl usIlrial waste, the resultalnt sltdllgc is Csl)e- Vigool'lls stlid 1ozn sutoil aii inII plemIMen1taliOl pmIocedtire ill cially toxic. Not onl!y does the sludge conlai n unacceplll- the Casci hil ad' dli lphiia s iltdvge." B1eca use other1 l majolr ble quantities o1' leiall, copper, iron, zinc, arlscnic and seacoaslt cics, including, Boston1 and New Yvork would bacteria, but, it exceeds the maximum limit for cald- prefer to go to sea..with sewage sludge, whatever the en- mium by nmore than 175 times and the mercury level by vironmental costs, the Philadelphia story is an impor- more than six times. Respondents FPA Region Ill, the tant test casc. National WildliFe lFederation, the Elnvironmcntal In' 1973 ant 1974, Philadellphia routinely applied for ODefense Flund and the State of Maryland claimed thall and received interim permits from the EPA authorizing continued ocean dumping by Philadelphia wou1J. the city annually to dump 150 million gallons of in- degrade and cndanger both human health and the dustrial and humad.t'sewage sludge from two treatment marine environment. Though scientists fill([ it harl(d to pllants into the Atlantic Ocean at a dumpsite 40 miles pinpoint the exact uptake of heavy metals and bacteria off the Marylandr:coast. Philadelphia applied for its by the clams, quahogs, sea scallolps and crabs tllat in- third annual permit inearly 1975, expecting to obtain habit the general area of the dumpsitc, all of' these as a matter of course. On February 13, the Region III organisms arc known to) be contaminated and to present Administrator granted another interim permit, but this a health hazard to huLIans who eat them. Wcathcr con- time it included language ordering Philadelphia to halve ditions have orcedl targe captains to discharge lull all ocean sludge dumping by 1979, and to terminate it by loads of sewage belore reaching the markcel illlig Tlirl. : � area on at least two occasions; because the captairis did not, report 'the short dtimps immedli alely, fishermen * Reprinted by permission of the Environmental Law Institute, 1346 Connecticut Ave., N.W., Washington, D.C. 20036 [footnotes omitted] 464 wcrc not warned that these normally salfe waters were applying a totally new system of regulations to In age- pollutid. Scientific u ruises have not yet traced exactly old disposal method. HoWever, the regulations also sug- whcl C currents send Ihe released sludge, or how the mela- gest that any successive interim permits be issued only terial breaks clown in water, but cruise data has docu- "upon satisfactory completion of each phase of the Inented statistically significanl buildups of metals development and implementation of the plan." Thus, it ;liaicteristiC of illiadlphia; sludge at stations within appears that Philadelphia was fortunate to receive sec- ndil seaward ofl the hoiundaries of tile Philadelphia ond and third interim permits at all, since Water Com- dunlmpsite. missioner Guarino failed to design an implementation lBecause ocean dlunmping studies are new and their plan, much less to advance one. 0oni1clusions uncerltain, the city ol' Philadelphia con- Faced with almost certain defceat on the issues of the tendced that "the fIacts now available present only the environmental harm of the dischalrges and the legality most tcinuous and plrcliminary suggestion that the Cilty's of the order, Philadelphia turned predictably to eco- oceanc. dumpling is having ally affect on the marin en- nomic and technical feasi:bility objhections. Its main con- vironment. - But despite this attemltc to reverse the tention on appeal was:that the six year,phase-out hurden ofl proof established by the Marine Protection scheme was too short to allow Philldelphia to ldo the Act, the Regional Administrator found that the city did res'arch and monitoring necessary to determine the nt)t clearly show that its prospective dumlping would 110o : most environmentally beneficial land-based system. degrade or endanger the environment, and ruled that he Even environmentalists expressed little sympathy with therefore had no choice but to deny an interim permit this position, for if Commissioner Guarino had or grantl one with limited scope. followed the interim perrmit requirements in the regula- When Train grantcd Philadelphia's request 1for an ad- tions, he woull have been prepared with some kind of judicatory heart ng, he warned city officials that they not feasible alternative by the time of the hearing lIc cre- only had to convince him that Philadelphia s dumping ated fuirther doubt about his good faith when he hired a causCed no unreasollnahle elivironmientlll damage. utl consulting firm in Chicago to studyl possible plans, well also had to overcoine the presumptive validity of tile aware that the chosen firm specialized in sanitary engi- Region Ill Admnitiatl;llor's imposition of (he land treat- neering and had no experience with ocean dumping or ment reqtlirement. IBeause the Marine I'rotection Act land application problems. Meanwhile, the Commis- providLes that tile Adminisltrator "maly" garant a )peniL sioner failed to utilize thewilling resources of Pennsyl, wh.en. pr.ol.oscd dli.tling wcoild .not ictra.dc thle en- vania's own university- entists, or the expertise ol the vironment, he also has full discretion to deny a permit United States Department of Agriculture Biological even when plaintifl'fs ulfill their burden of proof, and Waste Managemefft Lato'atory at Beltsville, Maryland. Philadelphia faced a difficult task in attempting to. Even on the question of feasibility, Philadelphia's prove any abuse of such wide discretion. position proved weak ir the hearings, as a number of In view of permit evaluation criteria, the Regional promising and pre-tested'alternatives for land based Administrator's action appears beyond challenge. treatment were unveild',First, witness after witness Given that he has full discretion to grant or deny an in- urged that sludge be appli'ed to strip mined land for terim permit whenever maximum "blacklist" and reclamation purposes, beause of its outstanding soil "graylist" levels are exceeded, or to impose coriditiqns building properties. Though the reclaimed land might such as phase-outs on a granted permit, the Region III not be safe to use for fobd crops, any vegetation cover Administrator acted fully within the limits of' his over 1Pennsylvania's hundteds ol thousands of acres of powers in setting a six year limit on Philadelphia clump- i stripped land would be an aesthetic and environmental ing. improvement. This alternative would actually help the In addition to setting toxicity levels, the regulations state mining industry, for Pennsylvania's Surface Min- outline several conditions that an applicant must fulfill ing Conservation and rReclaimation Act'3 imposes before receiving an interimni permit.'" Each application reclamation requirem/ents on strip miners. The same is to include an environmental assessment of the poten-: statute authorized creatiob. of a frundl which could be tial en'vironmental impact of the proposed du(mping, as B used to study and impletent the sludge application well as a thorough review of the actual need for clump-' plan. ing and a discussion ol possible alternatives. An interim A second promising proposal was the Barber-Colman permit technically requires that a recipient develop and PURETEC acilified wet'air oxidation process, a high actively implemenlt a plan either to eliminate ocean dis- temperature and pressure.proLcess for destroying sludge posal entirely or to limit dumping to wastes that meet organics and recoveringe',sludge nutrients and heavy permissible toxicity levels. Though Philadelphia did not' metals. Philadelphia has ,iready begun testing this pro- fullill any of these requirements in its first permit ap- gram on a small scale, with successful results. Not only plication, the EPA was willing to issue a permit,, would recycling of precious heavy metals be an en- perhaps because the Agency chose to be conservative in- yvirol!mental bc,lefit, butthe nrocessingcosts of ten dol- 465 lars per dry :ton of sludge would be much less than As a last resort, Philadelphia contested the "arbitrari- ocean dumping costs. ness" of the Regional Administrator's imposing a flat lPhiladelplila could also digest, compost or heat-dry ban on ocean dumping at a set date, particularly in view slud(ge for Teas fertilizer on ornamental gardens and of EPA's provision of financial and scientific assistance highway nimetdin'strips and municipal parks. Ironically, in New York City's flexible three-stage study of'sludge the city haSi'actually bought this same material from disposal alternatives. But the position of the cities is dilf- other cities for its own use. Philadelphia would not have ferent. New York City owns an entire fleet of ocean todo virgin research, fora USDA composting operation going barges, while Philadelphia lcases a1 single barge. has been performed successfully at Beltsville, Mary- Moreover, not only does New York have miore sewage land, where the high grade finished product remains to dispose of, it also has far fewer strip mines to reclain muIch in demand. The Beltsville plant actually corn- and ranches to fertilize. posted lagooned Philadelphia sewage sludge in May of If the Philadelphia phase-out order is to be compared 1974 without difficulty and that experience proved that to any other SPA decision, it should be the I )upont caise a site of only 25 to 40 acres could handle Philadelphia's of October 3, 1974. In that situation, as in entire sludg: output of 190 dry tons per day. Philadelphia's, there were major uncertainties about the Testiri'ony at the adjudicatory hearing uncovered environmental effects of proposed dumping, though several other land alternatives in addition to ihe ones studies had identified the chemical nature of the waste mentioned above, from simple disposal plans to major to be dumped. In ruling on Dupont's iermit request, recycling efforts. The overall benefits of a land-based Administrator Train summed up his view of the Ad- project appeared impressive. The land environment ministrator's role: surpasses the ocean environment in its ability to protect the biosphere from contaminants because soil organ- Under the S;ltute, it is the Administrator's rcspon- .- sibility to determine that dumping will not result in isms break down organic compounds and metals are unreasonable environmental degradation rlat dete r- unreasonable environmental degradation. That deter- bound to soil particles and retained by plants in their mination cannot he made in good faith without reasona- roots. Problems that arise are more easily contained and ble conf'idnce in the suftliciency and reliability of' the analyzed on land; for example, if' future research found available scientific dlata. I have no suCh confidence in the a sludge component to be carcinogenic, scientists would infirmat;ion lresented in this case . I:luriller tcchnical know where to go to recover the material. Though some 'or oces il disosal or thre l)uporit uld be g meltals such as cadmium do eventually rise up the stems to the leaves of plants, grazing animals do not incorpor- This statement alone indicates what Train's decision ate the metals in muscle or milk, but only in waste pro- should be in the Philadelphia case. Indeed, as the Na- ducts. tional Wildlife Federation pointed out in its brief, the )cespite all the apparent benefits, Philadelphia raised Dupont waste was a better candidate for ocean dumping several objections to the feasibility of the aind-based than Philadelphia's sewage sludge because, first, the programs, arguing for example that development of any Dupont dumping was to take place 200 rather than 40 alternative sewage sludge project would be expensive. miles from land, aind second, bio-assay tests fo)und the Ilut, as resppndents pointed out, the four million dollars Dupont wastes to be of relatively low toxicity, while necessary to buy the city a barge and tug, which it now Philadelphia presented no such evidence. leases, would also finance 133 $30,000 tank trucks with In summary, Philadelphia had no solid ground on flotation tires to transport the sludge to land application which to base its objections to the Region III Adminis- sites. In response to Commissioner Guarino's constant trator's phase-out of water disposal. This order was in objection that six years was not enough time to phase no way arbitrary, but lfollowed both the letter and spirit out all ocean dumping, the respondents contended that, of' the Marine Protection, Research, and( Sanctuaries first, many of the proposed alternatives had been ade- Act. The PI'A regulations and criteria implementing quately tested elsewhere, so Philadelphia could utilize statutes were not unreasonable in requirinig an;1 applicant available research; and second, Philadelphia could use for an interim permit to develop antd implement a plan double shifts if necessary on experimentation and con- to replace occan dumping with a lJand-based alternative. struction projects in order to meet the deadlines. i After all, by allowing municipalities LI) continue dump- F-:inally, Philadelphia officials raised the spector of' ing extremely toxic wastes while developing land a]p- public outrage, citing the recent refusal of' the rural plication procedures, the interim permriit scheme was an town of' Letterkenny, Pennsylvania, to accept a munici- i administraltively-developedl conipronise thai leaned pal sludge project. I-owever, Philadelphia oflicials heavily toward tile economic needs ol cities.' Iailed to add that no public education efforts had been While the nation's long range goal should be to undertaken before the finished proposal was presented mrinimize the qiuantity of wastes and maximize our to the town. Indeed, the Letterkenny illustration was a recycling skills, short term realities are such that we straw man, since the owners of' the 10,000 acre Kings mlList dump wastcs somewhere--and land-based dis- Ranch outside of Philadelphia were willing to accept posal and treatment of sludge appear environmentally hall' of Philadelphia's annual sludge immediately, in its superior to ocean dumping. Philadelphia was an ap- liquid f'orm, to fertilize pasture land. propriate place for the EPA to begin to enf'orce specific 466 phase-out plans I'or ocan dumping, a policy which should be extended to other coastal cities in the near future On July 181h, while Train was still deliberating on Philadelphia's appeal, the Region Ill Administrator ordered a five year phase-lout dumping plan lor the city of' Camden, which uses the same dIump site as Philadelphia. i['lhe message is clear. Interim permits are no longer to hbe used to excuse pollution. Cities are to comply with Ihe regulations of' the Marine Protection Act byhv developing and implementing phase-out plans- or be denied pcrmits altogelther. One way or the other, the F.nvironmental P'rolection Agency finally seems determined to clcan up the oceans. This article was taken from 5 ELR 10144. The Administra- tor of the E.P.A. has upheld this decision. 5 ELR 10213. 467 C. Ocean Outfalls OCEAN OUTFALL: THE ANSWER TO COASTAL PROBLEMS? DARE COUNTY MAY BE N. C. TESTING GROUND, University of North Carolina Sea Grant College Newsletter (March, 1977). Dare County may be the first testing grounds for an ocean outfall in North Carolina. Two years ago the Dare County Board of Commissioners began grappling in earnest with plans for a municipal sewage treatment plant for the larger communities in the county. In October 1976 a pro- posal to study the possibility of an outfall in the county was completed by Henry von Oesen Associates, a Wilmington engineering firm. William E. Burnett, one of the firm's engineers, is convinced that Dare County is one of the best sites for an outfall in North Carolina. "There is no other way of disposing of the wastewater in Dare County that is environmentally sound and cost effective,"he said. The engineering firm's study 'plan has now passed the approval of the state's reviewing agency, the Division of Environmental Management of the Department of Natural and Economic Resources. Dare County officials are waiting for EPA approval before they proceed with the study. Once the final study is complete, approval of both agencies will be required before actual construction is begun. The preliminary plan calls for construction of an outfall which would ultimately serve Kitty Hawk, Nags Head, Kill Devil Hills, Manteo and the Wanchese H{arbor fisheries complex. According to Burnett, the outfall would be built either in Nags Head or Kill Devil Hills. The plan is based on a projected flow of 3.5 million gallons of treated wastewater per day for the year 1990. The outfall pipe would reach out into the ocean about a mile and discharge would be into 45 or 50 feet of water. The tentative plan also proposes that domestic sewage be treated to a secondary level at a treatment plant located on about 15 acres of land near Kill Devi~l Hills. Secondary treatment removes about 90 percent of the sus- pended solids from the wastewater and the majority (but not all) of the bacteria and viruses. In selecting an ocean outfall as the most promising plan for Dare County, the engineering firm rejected three other alternatives commonly used in the United States. One possibility would be to discharge the wastewater from a regional treatment plant into the estuarine waters of the Currituck, Albe- marle or Pamlico Sounds. The water in those areas, Burnett points out, is shallow. Disposal of sewage into the sounds could eventually upset the balance of plant and animal life in the estuaries. Burnett also fears that the discharge might aggravate the problem of milfoil, an aquatic plant whose rapid growth has clogged parts of Currituck Sound. And, finally, Burnett was concerned that pollution of the estuaries might mean the closing of more of the state's shellfishing waters. 468 A second alternative, land disposal, would involve spraying treated waste-water over about 900 acres of land. Peat soils and a water table that is almost at the soil's surface make the land on the mainland of Dare County unacceptable. About 85 percent of the land on Dare County's Outer Banks is environmentally sensitive park land. Burnett was unable to find a suitable area large enough for land disposal on the islands. He felt that using several smaller plots would have made the cost of the project prohibitive. A third option which has been unsuccessfully tried once in North Carolina is deep well injection. It requires piping treated wastewater into wells drilled into the earth's surface. Since 1973, North Carolina law has prohibited deep well injection. "You really don't know what happens to the effluent and whether it might mix with drinking water," said Burnett. 469 CITY OF NORTH MIAMI V. TRAIN, 377 F. Supp. 1264 (S.D. Fla. 1974) MEHIRTENS, District Judge. the parties entered into a stipulation, The City of North Miami, Florida, approved by the Court, designed to ple- brought this action seeking a declarato- serve the status quo pending an agreed ry judgment, mandamus and injunctive expeditious disposition of this cause relief against the Environmental Protec- upon cross motions for summary judg- tion Agency (EPA) and various admin- ment. The City of North Miami and istrators to prevent the EPA from ap- the intervenors moved for summary proving applications by Metropolitan judgment on June 24, 1974, on which Dade County for funds to construct date responses to outstanding requests three regional treatment facilities. The for discovery were served by the federal complaint by the City of North Miami defendants. challenges the EPA for failure to com- Having considered the motion for ply with the requirements of the Water summary judgment and supporting affi- Pollution Control Act Amendments of davits by the federal defendants, filed 1972 (WP(CA), Public Law 92-500, 86 on May 29, 1974, it appealrs that there Stat. 816, 33 U.S.C. � 1251 et seq. are no genuine issues of material fact,' (1972), and the National Environmental and that the federal defendants are enti- Policy Act of 1969 (NEPA), Public Law tied to judgment as a matter of law, 91-190, 83 Stat. 852, 42 U.S.C. � 4321 et based on the following facts and concll- seq. (1970), in reviewing applications sions of law, for funds for the implementation of the Dade County Water Quality Manage- FINDINGS OF FA('T ment Plan (Master Plan). Material Facts as to Which There Is No The intervenors defending the chal- Genuine Issue lenge to the EPA are Metropolitan Dade 1. On September 25, 197(, Secletary County, a political subdivision of the of the Interior, Walter B. IIckel, at the State of Florida, also representing its request of Governor Claude R. Kirk, Jr., Water and Sewer Authority and a non- of Florida, convened a con ference con- profit coalition consisting of the follow- cerniong polru tion of the navigable Wa- ing non-governmental organizations: ters including tributaries, emrbayments Tropical Audubon Society, League of and coastal waters of Dade ( ounty, Flor- Women Voters of Metropolitan Dade ida, pursuant to Section l of the Fed- County, Progress for Dade, Inc. Builders Ass)ciation of South Florida, Izaak Wal- cral Water Pollution Conltol Act, s ton League of America, Miami Building amended, 33 U.S.C. � 1151 et seq. on and Construction Trades Council, Great- October 20, 1970, the first session was er Miami Chamber of Commerce, and En- held in Miami. Agencies attending 'ere gineering Contractors Association of the Florida Department of Air and Wa- ter Pollution Contrpol, the UInited States South Florida, Inc. Also intervening is Department of the Interior and the Fed- the City of Miami, a potential indirect eral Water Quality Administration, beneficiary of federal funds as they 2. The final Federal Report conclud. would finance the additional sewage ed that (1) the 1,00 miles of canals of treatment necessary to allow completion Dade County were grossly polluted and of its internal sewage collection system. in violation of theCou nty were grossly pollted and The complaint by the City of North ter quality standards; (2) widely use( Miami originally was filed in the Dis- septic tanks were a public ealth haza trict Court for the District of Columbia , septic tanks were a public health hazard triand Coursuant t District of Columbia, that contributed to overl-enrichment and and pursuant to the order of Judge John algae nuisances in adjacent waterways; J. Sirica was transferred to the South- al g ae nuisances in adjacent waterways ern District of Florida on May 29, 1974. constituted a potentially significant A temporalry restraining order entered source of anic and ctril oll- by Judge Sirlica preserved the status quo tion; (4) present methods for disposal until June 13, 1974, when plaintiff's through ocean ou thos for dspoa Motion for Preliminary Injunction was treatment required modification because considered and denied. On June 13, 1974, of public health hazards and detrimental ___ __ _ 47_O of public health hazards t0d detritmntal 470 effects of water quality; and (5) the construction, arrangements for financ- major cause of poor water quality in ing and consideratipn of water ru8se. Dade County was inadequately treated These shortcomings were then treated in municipal sewage effluent. The confer- the County's 1972"Interim Water Quali- ees further concluded that pollution ty Management 'PIan for Metropolitan which endangers the health and welfare Dade County, Florida". This plan was of Dade County residents was occurring, structured largely by the conclusions and that existing anti-pollution mea- and recommendations of the three con- sures were inadequate. ference sessions. 3. The conferees recommended that 6. Subsequently, the EP1'A and the the Metropolitan Dade County Commis- federal Department of Housing and Ur- sion present a master plan for abate- ban Development issued planning grants ment of pollution from all sources in to Dade County. Dade (County by November 1, 1971. A 7. On June 2, 1972, the Board of time schedule for constrluction, for fi- County Commissioners of Dade County, nancing, for preparation of preliminary plans and specifications, for award of Florida, selected several consulting contracts, and for operation of such fa- firms to prepare W vi entrl as- sessment of the Ihterim Water Quality cilities was required. Management Plan"; The firms selected The conferees also recommended (1) included local pri.vate consulting agen- cessation of all waste water discharges cies, as well. as: co"mpanies or agencies int6-the inland canal system of Dade from New Yorkraid Missouri. On Sep- County not later than January 1, 1973; tember 1, 1972, the "Environmental As- (2) providing a minimum of secondary sessment" was completed. treatment (90% BOD removal and 8. On December 22, 1972, the EPA year-round chlorination) for all ocean released a draft environmental impact discharges not later than January 1, statement entitled "Ocean Outfalls and 1974; (3) that all new construction be Other Methods of Treated Wastewater connected to adequate sewage collection Disposal in Southeast Florida" (herein- and treatment systems; and (4) that after "Disposal Methods EIS"). Public the County prepare an action plan to hearings were held on the Disposal control additional"'sources -of pollution Methods EIS .on:- January 24-27, 1973, during the period of design and con- and the final EIS encompassing approxi- struction of the pollution abatement pro- mately 343 pages of text and 389 pages gram. They further recommended the of appendices, was released on March 21, prohibition of additional waste water 1973. discharges to lower Biscayne Bay, its On April 13 and 27, 1973, draft envi- tributaries and canals that drain to the ronmental impact statements were also Everglades. Removal of discharge to released on South, Central and North these waters was to be accomplished as Dade County; projects. Public hearings rapidly as possible, but not later than were held on MBay 14, 1973, and final January 1, 1974. statements were,ipsued on September 10 4. As a result, the County applied and October 9, 1X7. The final Environ- for a planning grant under Section 3(c) mental Impact Statements for North, of the Federal Water Pollution Control Central and South Dade County encom- Act in February of 1971. passed 206, 100 and 192 pages of text 5. An "Amended Supplement to the and 245, 177 and 128 pages of appendic- 1961 Master Plan" set forth the concept es, respectively. Public hearings were of three regional waste water treatment also held on May 22, 1972, in connection and collection systems to be located in with a draft EIS for the Palm Beach North Dade County, Central Dade Coun- County Sewage Treatment Program, ty and South Dade County, Florida. which hearings were published on De- cember 20, 1972 and were incorporated The conferees found Dade County's within the Disposal Methods ETS at Ap- amended interim regional plan was ac- pendix H. Public notice was given and ceptable as a first step in the develop- public commentfrwere received with re ment of the "Master Plan" but found it spct to all Written comments lacked an adequate time schedule for were printed a'ptart of the final state- '"471 ments. ' (B) Central Dade-upgrading of the 9. Applications were filed with the existing Virginia Key sewage plant and EPA on behalf of the North, Central construction 'of :e' .econ(lary plant and South Dade County projects for fed- resulting ia-a t'ta' capacity of 115 mil- eral funding under Title II of the Feder- lion gallons per day with 90% removal; al Water Pollution Control Act as - the existing ocean outfall would be ex- amended in 1972. Approval of these tended and enard sludge Will jbe projects was certified by the State of treated at Virginia Key together 'vith Florida by including them within the and in the same manner as tliat from project priority list for fiscal year 1973 North Dade. and 1974 funds pursuant to federal reg- (C) South Dade-construction of a 5 ulation 40 C.F.R. � 35.915. Approxi- million gallons per day area-wide second. mately $14 million of fiscal year 1973 ary treatment plant replacing nine funds were earmarked by priority list smaller plants; treated effluent will he for Central ])ade; additional federal discharged by injection in deep wells funds for fiscal year 1974 amounting to within the "boulder zone" of the, Florida about $73 million were earmarked for Aquifer; sludge.will be treated and, di- the three projects. Both project priori- posed of as land fill or soil conditioner. ty lists were subsequently approved by EPA.' Fiscal year 1973 and fiscal year [1] 12. Havig 'reviewed the envi- 1974 lists were consolidated by action' of ronmental impact': statements filed in the Florida Pollution Control Board on this cause, the Court finds that the fed- April 2 1974. eral defendants 'adequately studied the 10. At present Dade County is the potential adverse environmental effects number one polluter within the entire of the proposed ocean disposal of second- eight state southeastern EPA region. ary treated effluent, as well as the po- Every day Dade County discharges tential adverse impact of deep well dis- through three ocean outfall lines approx- posal of treated wastes. imately 94 million gallons of sewage into 13. Similarly, the following alterna- the Atlantic Ocean at depths as low as tives to deep well and ocean disposal 18 feet below the surface. Of this total were adequately considered: amount of sewage, approximately 22 (a) Dischargeiito the canals and in- million gallons per day consist of com- tracoastal waterway; pletely raw sewage, while some 25 mil- (b) Land disposal; lion gallons per day are only "skimmed" of "floatable solids". (c) Septic tank disposal; (d) Shallow well disposal; 11. The environmental impact state- ments, the Water Quality Management (e) Discharge to the Florida Ever- Plan and Environmental Assessment of glades; the Water Quality Management Plan (f) Advanced;,- t,ertiary waste treats recommend substantially the following ment; - treatment systems for the three seg- (g) Use of recycled effluent in eon- ments of Dade County: nection with coo0liig of power plants; (A) North Dade--construction of (h) No action' '. a new area-wide secondary treatment 14. The alternative of land disposai plant capable of handling 80 million gal- itself received kikximately 123 pages Ions of sewage per day and providing of discussion of ':its varying aspets 90% removal of suspended solids and within the four Environmental tmplit biochemical oxygen demand, to be locat- Statements, and reference materials fo ed on an 80-acre site within the Intera- the discussion indicated sixty-five (65) ma tract 2 of North Miami, Florida; technical works aid publications of ex- treated effluent is to be discharged perts in various*.technical disciplines. through a new ocean outfall beyond the The Environmental Impact Statemeniit': seaward reef to a point approximately 3 revealed that the lnd disposal alterna- miles from shore, 90 feet below the sur- tive was rejected for Dade County, Flor-- face of the ocean; sludge will be ida, due to the tollowing tactors pumped to Virginia Key for further (ae the iand por osity treatment and reuse by land application.(a) The M g and r 472 of the soil; 1361 (mandamus); 42 U.S.(. � 4321 et (b) The large land area required seq. (NEPA) and 33 U.S.C. � 1151 et (12,000-1]5,0(00 acres for 80 million gal- seq. (The Federal Water Pollution ('on- Ions per day) ; and associated high costs trol Act). The amount in controversy of land acquisition; exceeds $10,000 exclusive of interest, (c) The occurrence of sudden large costs and attorneys' fees. rainfalls; 2. Plaintiff claims that the environ- (d) The high salt content of the waste- mental impact statements prepared by water; the EPA in connection with the North Dade project ("Ocean Outfalls alnd Oth- (e) The secondary effects of draining er Methods of Treated Wastewater is- large areas of wetlands adjacent to the posa in Southeast Florida", hereinafter Everglades and conservation areaposal in Souheast Florida", herean "Final fter "Disposal Irethods EIS", and "Final En- (f) The need for large storage areas vironmental Impact Statement, North for periods when additional water and Dade County, Florida", hereinafter nitrogen cannot be taken up by the "North Dade EIS") are inadequate in crlops; that certain alternatives to ocean dis- (g) The need for a "safety valve" in posal of treated waste, particularly land any event to accommodate large quanti- application, were not explored in suffi- ties of wastewater during periods of cient detail.4 Plaintiff further alleges malfunction; that the statements and other (loculuments (h) The advisability of secondary and deposition testimony of federal of fi- treatment in any event prior to pumping cials evince a "predisposition" against effluent to western areas for recharge land application and in favor of ocean and reuse; and disposal which runs contrary to the in- (i) The adaptability of secondary tent of NEPA. Finally, plaX liff con- treatment to upgrading to future ad- tends that Russell Train, the Adminis- vanced waste treatment or land applica- trator of the Environmental Protection " tion; Agency, has failed to: "encourage" the (j) Possible public healthihazard of use of alternative Waste treatment sys- (j. Possiblse Pblic health hazard of tems involving land application and such a systcem. wastewater reuse asw required by Section 15. The Environmental Impact State- 201 of the Federal Watbr Pollution Con- ments also specifically directed com- trol Act, 33 U.S.C. �71281. ments to the views of Dr. John R. Defendants, on the other hand, con- Sheaffer, a proponent of the land dispos- tend that the environmental impact al alternative, as well as local advocate statements prepared by the EPA satisfy of this alternative. (Disposal Methods all the requirements of NEPA as inter- EIS at 287-291, 306-308, 330-331, 334- preted by the courts and furthermore, 335, 341, F1; North Dade EIS at 191- that a decision to fund the proposed 199, 310-312) projects cannot and should not be en- lti. Tne ionutl .Ul,, , .U....IU,--II'- joined by this Court utnder the standard Statements filed in this cause reflect of review permitted of substantive agen- written comments and responses thereto cy decision. on the significant facets of the Master Plan for Dade County and alternative 3. The standard of judicial re- proposals as well.3 view under NEPA of an EPA decision to fund or embark upon a plarlticular CONCLUSIONS OF LAW project is limited to whether the deci- sion is arbitrary, capricious or an abuse 1. The Court has jurisdiction pursu- of discretion. Citizens to Preselrve Over- ant to'the following federal laws: 5 U. ton Park, Inc. v. Volpe, 401 U.S 402, 9 S.C. �� 701--706 (Administrative Proce- S.Ct. 814, 28 L.Ed.2d 136 (1971). The dure Act) ; 28 U.S.C(. � 1331(a) (Feder- Fifth Circuit Court of Appeals recently al Question); 28 U.S.C. �� 2201-2202 pointed out in Environmental Defense (Declaratory Judgment); 28 U.S.C. � Fund, inc. v. corp. of Enginer]s, 492. 473 F.2d 1123, 1138, 1139, (5th Cir. 1974), standard. The courts have noted that that while substantive review of agency the discussion of environmental effects decisions is required, that review is of alternatives need not be exhaustive, "limited" and exceedingly "narrow". but must only permit ki'easonable choice The Court noted that it is not empow- of alternatives so far as environmental ered to substitute its judgment for that aspects are concerned, Natural Re- of the agency. On the contrary: sources Defense Coundil, Inc. v. Morton, "[Ilts function is only to assure suprre. that the (Impact) statement sets forth The "Disposal Methods EIS" alone de- the opposing scientific views, and does voted one complete section of thirty-two not take the arbitrary and impermissi- (32) pages to the land disposal alterna- ble approach of completely omitting tive for sewage effluent. Disposal from the statement, and hence from Methods EIS at 209-241. That section the focus that the statement was in- of the-EIS examined the (1) walter qual- tended to provide for the deciding of- ity goals effected by the proposal; (2) ficials, any reference whatever to the the various types of land disposal sys- existence of responsible scientific tems; (3) the comparative characteris- opinions concerning possible environ- tics of the basic systems; (4) the envi- mental effects." Committee for Nu- ronmental impacts of public health sig- clear Responsibility v. Seaborg, 149 nificance: (5) soil responses to the sys- U.S.App.D.('. 380, 463 F.2d 783, 787 tem: (6) vegetation responses: (7) the (1971) preliminary design of such a system: It is further clear that: (8) the impatshic llld not "so.. I . at obe avoided in the $yft"; and (9) the ha"Sve iog :as the officials ook' agencies irreversible and irretrievable commit- have tifken a 'hard look' at environ- mental consequeInces mandated by ments of resources implicit in such a ('onz~ress, th&u toulrt loutes n~ot: seek to system. Reference material for the sec- tion included sixty-five (65) technical inject itself within th area ifs of xperts in of discretion of the executive as to the works and publicatins of xpers in choicetion of action to be taken." NRDC various technical disciplines. [Iisposal v. Morton, (1971), 148 U.S.Appt.ND.C Methods EIS at 236-241.] The state- ment informed the reader of both the 5, 458 F.2d 827, 838. possible benefits and/etriments of such With these principles as a guide:the systems. Rather thaiithe "slanting" or Court examines the impact statements "bias" alleged by plaintiff, the state- and the procedures followed by defend- ment recognizes many of the benefits of ants in preparing them. such a system (Disposal Methods EIS at 4. The four Environmental Im- 221). However, there are many reasons pact Statements are, on their face, both advanced by the EPA for its decision to complete and detailed. Source materials reject this alternative. These too are relied upon are extensive and referenced. spelled out in considerable detail in the Competing points of view are discussed EIS. in the statement and the agency's as- Two reasons are particularly persua- sessment, in cases of divergent views, is sive to the Court because neither could fully articulated. It is also clear that have been ignored by a responsible deci- EPA took the required "hard look" at sion maker. First, the potential public the alternatives to the master plan in- health danger in land disposal that is eluding "the principal focus of Plain- discussed by Dr. Flora Welling, Admin- tiff's concern", "recycling alternatives to istrator of the State of Florida Depart- ocean disposal and deepwell injection". ment of Health [Noirth Dade EIS at 2751. The requirement of NEPA "to 275]. study, develop and describe appropriate "In summary thef; I do believe that alternatives to recommended courses of using secondary wauewater for spray action" has been fully and extensively irrigation, except 'der rigly con- met in a detailed manner. 42 U.S.C. � trolled conditions, i ,c threat to public health not only through aerosol inlre- 4332(2) (D). This requirement has not been construed as being an unbending tion of man but also through virus ......... contamination of the aquifer. There- . 474 fore, only virus free wastewater ef- (j) The need to discharge to stream fluents should be used for spray irri- irrigation drainage pumped from the gation with careful monitoring of the area; treatment system. If even minor treatment system. If even minor (k) The problem of harvesting and breakdowns should occur, an alterna-he o tive disposal method, preferably an outfall pipe into the Gulf, should be land; available. (l) The probable need t'or the coolnty to own and operate a farm; "As additional research results be- (m) The irrigation scheme would be come available, hopefully, more defini- far more expensive to construcl and op- tive answers will be forthcoming. IHowever, until that time, we must ap- erate than the disposal systems recon- proach wastewater spray irrigation very cautiously in my opinion." (n) The necessity of pumping el- Second, the hulge land area required fluent long distances to get land of suf- for plaintiff's proposed system and the ficicnt area and reasonable cost. astronormical cost of such land. Even Each of these factors is discussed at plaintiff's expert, Dr. Sheaffer, indicat- length in the EIS. They provide sound ed that 48,000 acres of land might be re- support for the EZA's decision. quired for a county-wide system and 15,000 acres would be required for After an exhaustive examination of North D)ade County alone. The cost of the land disposal alternatlive, the state- land alone would be $288 million dollars ments summarized the findings of the or double the entire project's present agency: (Disposal Methods EIS at 14- projected cost. In addition, the Admin- 16, North Dade EIS at 215 217) istrator of EPA had to consider many "Land disposal of treated wastewater other facts generally adverse to plain- can plovide additional water purifica- tiff's system, including: tion (after waste treatment), conserve (a) The separation of high saline freshwater, and utilize nutrients and waste waters from coastal areas from other constituents for productive pur- the fresher waste water from the west- poses when applied to crops. Studies ern areas; on the health risks of land disposal in. (b) The utilization of existing farm dicate a continuing concern, while still land, including either direct governmen- drawing the general conclusion that it tal control through purchase or condem- is safe and acceptable if soil, hydro- nation or legal controls over private en- logic, and climatic conllitions are fa- terprise farm practices; vorable. However, this method of (c) The conversion of undeveloped waste water disposal has limited ap- land; plications in Southeast Florida be- cause of the -high ground water table (d) The replacement of natural vege- and thheunuigbility of the sab of tation with year-round harvestable crops some available: unurbanized land." which cannot be used for direct human consu mption; The facts concerning, these and other (e) The provisions for disposal of the problems of such a system convince the natural vegetation and harvested crop in Court that the decision of the Adminis- such a manner as not to violate water or trator of EPA wad neither arbitrary nor air quality standards; capricious and did not constitute an (f) The control of the water table to abuse of discretion since it was based upon a "record upon which a decision permit hydraulic loading and survival of maker could arrive at all informed deci- sion". Environmental Defense Fund, (g) The conversion of wet-lands to Inc. v. Corps of Engineers of the United dry-lands to prevent ground water con- States Army, 342 F.Supp. 1211 (E.ID. tamination; Ark.1972), aff'd, 470 !'.2d 289 (Sth (h) The provisions for storage of ex- Cir.), cert. denied, 412 U.S. 931, 9)3 S.Ct. cess waste water during wet seasons and 2749, 37 L.Ed.2d 160 (1973-). Moreover, harvest times; the Court believes that the four Eulvi- (i) The provisions for disposal of ex- . ronnlental Impaic' St.ate.tielt.s prel)ared cess reclaimed irrigation water; 475 by EPA herein sufficiently "alert the (4) Extension of ,ocean outfalls will public, other 'interested agencies, the enable more rapid assimilation of dis- Council of Environmental Quality, the charge by the action of the Florida cur- , President and the Congress of possible rent of the Gulf Stream. environmental consequences of proposed agency action". Sierra Club v. Froehlke, It is not this Court's function to 486 F.2d 946 (7th Cir. 1973). This the intervene in battles between experts, or Court believes, sufficiently meets the re- to "rule on the relative mterits of com- quirements of NEPA "to the fullest ex- peting scientific opinion" but rather tent possible." only: "to assure that the statement sets Furthel, the EPA was entitled FrhthEP waenildforth the opposing scientific views, to reject land application on the basis of and does not take the arbitrary and the overriding environmental factors ~~noted a itou prfomig e-impermissible approach of completely noted above. without performing de- omitting from the statement, and tailed on-site surlveys. A statement of hence from the focus that the tate- this principle is found in Cape Henry ment was intended to provihle for the Bird Club v. Laird, 359 F.Supp. 404, 421 deciding officials, any reference what- (W.D.Va.1973), aff'd, 484 F.2d 453 (4th Cir. 1973 ): *ever to the existence of responsible scientific opinions concerning possible "NEPA, however, does not require adverse environmental effects." Corn. mass studies and compilations and mittee for Nuclear Responsibility v. computations of data for an alterna- Seaborg, supra, at 787. tive, the feasibility of which could be detemine afte. onl minoTherefore, the conflicting points of sci- determined after only minor study. While the plaintiffs desire detailed entific opinion are not material issues of studies and collections of such data, the court believes that the Corps need collect only as much data as will be 6. Plaintiff cites the acquisi- necessary for the Corps to determine tion of the Interama site by lade Coun- that the alternative is either infeasi- ty as evidence that the federal agency ble or walrrants furlther attention. was predisposed against land application bNEPA does not preclude a aagentcy and' in favor of ocean disposal prior to NEPA does not preclude an agency from relying on past experience, judg- the EIS preparation. The site acquisi- from relying on past experlience, judg- tion does not constitute a significant ment, and knowledge of the area whenfr federal action before which tthere must it makes a determination about the feasiit makeso a determirna tion about the be full compliance with Section 102 of feasibility of a project's alternatives." NEPA. The Interaa site was a large NEPA. The Interama site was a large Cape Henry Bird Club, supra, at 421- block of land well situated for a second- 422. ary sewage treatment plant and subject 5. Plaintiff has filed controverting to adaptation to either advanced waste affidavits in an attempt to'raise issues treatment or land application; it was of fact to defeat summary judgment in chosen for a number of reasons noted favor of the federal defendants. Plain- above. (See NortiDade EIS at 136- tiff specifically contests the following 146, response to comnent 5 at 196) The opinions of the defendants' experts: courts have held that the fact that' cer- tain actions weretaiken prior to the EIS (1) Discharges from septic tanks, w p t is not a fatal erior See, e. g., Jicarilla package treatment plants and ocean out- Apache Tribe v Mtn, 71 F.2d 1275 falls presently threaten the health and (9th Cir. 1973). .turther, the County's welfare of citizens of Dade County in to- contractual comrtiitent for the pur- tal loadings of contaminants to the chase is expressly:' conditioned on ulti- ocean ;: mate federal apprQval. (2) Major reductioni's in total loadings 7. In this case,' or 1,700 pages have of contaminants to the ocean, consider- been printed and filed concerning the ing future growth, will be accomplished; environmental impact of the three major ) "anti-pollution" facilities. The court in (3) Implementation of the proposed Maryland National Capitol Planning system will largely eliminate, the present Commission v. Schulz, 5 E.tol. 1340 threats to the nearshore coastal waters; 1343 (D.C.D 'C.197S3, makes an impor- .....476 .1343 !D.C.C.19. )m es an impr- 476 tant point: "anti-pollution" master plan was not ar- "The plaintiffs have ably dissected bitrary, capricious or an abuse of discre- the statement and have directed their tion. In sum, in, the opinion of this attack to many of the conclusions Court, defendants have done to the full- reached therein and, because the con- est extent possible everything the NEPA clusions are not to their liking, have and the WPCA require them to do be- suggested that the statement is in the fore proceeding with the "major Federal nature of an 'after the fact rationali- action significantly affecting the envi- zation' rather than a good faith effort ronment". Accordingly, it is at weighing the various environmental Ordered and adjudged that: consequences. That the plaintiffs do disagree with some of the conclusions 1. The motions of defendants and comes as no surprise. On the con- trary it would be surprising if any judgment be and the same are hereby concerned party could concur fully in granted. In the absence of a genuine all the conclusions reached in a docu- dispute of material fact and defendants ment comprising more than 300 pages being entitled to a favorable judgment requiring subjective assessments of as a matter of W, sumary final judg- each problem involved. That, how- ment is hereb eired in favor of de- ever, is hardly ground to disregard fendants and ;idant-intervenors and the pro and con discussions in the against the City North Miami. statement of the various issues in- 2. Plaintiff's evotion for Summary volved in the project. It is certainly Judgment be and the same is hereby de- not grounds for assuming that the nied, there being no material facts in subjective conclusions are merely aft- dispute as to defendants' compliance er-the-fact rationalizations. In the with the National Environmental Policy eyes of many proponents of various Act of 1969 or the Fedelral Water lollu- points of view which have been down- tio Control Amendments of 1972. graded or discarded in an impact statement that statement may well seem to be imperfect, but '[I]t is doubtful that any agency, however objective, however sincere, however well-staffed, and however well-fi- nanced, could come up with a perfect environmental impact statement in connection with any major project.'" Here, with a series of impact state- ments, the same point is even more no- ticeable. 8. The Court notes that the compli- ance with the master plan will enable Metropolitan Dade County to comply with the July 1, 1977, requirements of 33 U.S.C. � 1311(b)(1), the date by which all publicly owned treatment works must achieve secondary treat- ment. Metropolitan Dade County is also past the January 1, 1973, deadline pro- vided in Section 403.086, Florida Stat- utes, F.S.A. for achieving secondary treatment by municipal treatment facili- ties. It is the Court's view that the EPA and the Intervenors have demon- strated with substantive competent cvi- dence that the decision to fund the 477