U.S. MISSION,

U.S. INFORMATION SERVICE,
Geneva, July 18, 1973.

STATEMENT BY JOHN NORTON MOORE, VICE CHAIRMAN OF THE UNITED STATES DELEGATION TO THE COMMITTEE ON THE PEACEFUL USES OF THE SEABED AND THE OCEAN FLOOR BEYOND THE LIMITS OF NATIONAL JURISDICTION

SUBCOMMITTEE III

Mr. Chairman: The problem of marine pollution extends to all of the world's oceans and directly affects each of us. The oceans are a major part of the global ecosystem and their degradation can threaten the health and well-being of everyone. Actions taken by the international community in recent conferences indicate a recognition of this fact and a pledge to take all necessary measures to prevent marine pollution. These actions also indicate increasing recognition that the problem of marine pollution is a global problem requiring a truly international solution. We must also recognize that the many new and intensified ocean uses to be considered by the Law of the Sea Conference may pose significant risks of environmental damage which must be dealt with promptly and effectively. To meet these needs, my delegation has prepared and distributed to this Committee in document number A/AC.138/SC.III/L.40 draft articles for the protection of the marine environment.

The Law of the Sea Conference can and must establish an adequate jurisdictional basis for a coordinated international response to global marine environment problems. Such an adequate basis requires an understanding of the diverse threats to the marine environment and the need for a response tailored to each. Problems raised by vessel-source pollution are fundamentally different from those raised by land based sources or seabed resource activities and they require different solutions. An adequate basis also requires that we differentiate between jurisdiction to set standards and jurisdiction to enforce such standards. For example, jurisdiction to set vessel construction standards may raise quite different considerations than jurisdiction to enforce such standards. Again, Mr. Chairman, these differences require different solutions. My delegation has sought in its draft articles to meet these points.

The first section of our draft articles refers to basic obligations to protect the marine environment. The second section states the competence of international organizations and States to establish standards for dealing with a variety of problems concerning protection of the marine environment. The third and fourth sections set out a general basis for enforcement with respect to these problems, including a system of cooperative enforcement involving flag States, port States, and coastal States. The fifth section gives the coastal States rights to take action in extraordinary situations to protect against environmental threats to their interests. Finally, Mr. Chairman, the articles contain important new procedural provisions, provisions relating to liability and provisions for compulsory settlement of disputes.

Taking up each of these sections in turn, the first section takes note of the work of the working group of this Subcommittee in dealing with the basic obligation to protect the marine environment. Thus, the draft articles build on the work already done by the Working Group.

In the second section dealing with jurisdiction to establish standards, we differentiate between pollution from vessels and pollution from activities under coastal State jurisdiction in the Coastal Seabed Economic Area, such as resource exploration and exploitation and construction and operation of offshore facilities.

As to seabed-source pollution, we provide that the International Seabed Resource Authority to be set up under the Convention should establish standards for activities under coastal State jurisdiction in the Coastal Seabed Economic Area and for those activities which the Authority controls in the area beyond. These standards will ensure effective measures to control such pollution. Since, of course, the coastal State will have primary responsibility for the management and control of seabed exploration and exploitation activities, coastal States should have the right to establish stricter standards for such acivities under their jurisdiction in the Coastal Seabed Economic Area. Mr. Chairman, during the March, April meeting of the Seabed Committee, my delegation introduced a working paper on the question of the competence to set standards for control of pollution from vessels. We have discussed in the Working Group the reasons supporting our conclusion in that paper that

standards for vessel source pollution must be internationally established and we need not elaborate those reasons again here. My delegation, however, would like to thank the members of the Subcommittee who have commented on our working paper.

Mr. Chairman, because of its technical competence and experience we believe that IMCO should be designated as the international organization responsible for establishing these international standards for vessel-source pollution. We are sensitive to the views expressed by some delegations who have felt that th IMCO treaty process has not always moved rapidly enough to deal with newly-emerging problems; that the environmental expertise of IMCO should be strengthened; or that the structure was not sufficiently open to concerned States who would like to participate. Recently, we have put forward in the IMCO Council a proposal for changing the IMCO structure to create a new Marine Environment Protection Committee for dealing with vessel-source pollution. This proposal would ensure that new technology and new problems are adequately and rapidly dealt with and that all nations interested in participating in the setting of such standards would have an opportunity to do so. There are two points I would like to stress in this connection:

First, membership in the Committee will be open so that any concerned State would be able to participate equally in the formulation of regulations; And second, the new Committee will be empowered to adopt regulations and to circulate them directly to Governments without the review or approval of the IMCO Assembly or Council. Such regulations would then come into effect automatically unless objected to by a specified number or category of States.

Returning to the draft articles introduced by my delegation today, Mr. Chairman, the articles also specifically provide for the international establishment of special standards for special areas and problems. We recognize the need for such special standards in order to cope effectively with special ecological circumstances of particular regions and thus we have emphasized the need to respond to these needs. Also, I should note that the proposed Marine Environment Protection Committee would have regional subcommittees to consider and develop solutions for regional problems. Of related interest, the articles also provide for cooperation among the various international organizations active in the environment field, including the United Nations Environment Program.

In addition to establishing international competence to make standards for vessel source pollution, the draft articles do provide for two situations in which States would also have the authority on their own to set stricter standards for such pollution. Port States, in accordance with their general right to regulate vessels entering their ports would be able to apply higher standards to such vessels and, of course, flag States would continue to be able to do so for their own flag vessels.

Turning to the problem of enforcement, the sections on enforcement, Sections C, D, E, and F, of the draft articles are intended to provide adequate enforcement authority to cope with the variety of pollution problems arising from seabed activities and from vessels.

With respect to pollution from seabed activities, the coastal State is given complete authority to enforce both its own and international standards for those activities under its jurisdiction in the Coastal Seabed Economic Area. Such activities are essentially under the management and control of the coastal State and it should thus also have the authority and responsibility to ensure that such activities do not pollute the marine environment. Since the coastal State is not the only State that may be damaged or affected by pollution from such seabed activities, we have provided for international inspection to ensure compliance with the international standards.

With respect to pollution from vessels. flag States, port States, and coastal States would all share specified enforcement rights and duties. Moreover, we have provided that States may, by agreement, authorize other States to act for them in carrying out these rights and duties.

First, the flag State would continue to have enforcement responsibility over its vessels although such authority would not be exclusive. It would also assume a specific obligation to enforce international standards against vessels flying its flag, subject to a right in other States to resort to compulsory dispute settlement procedures to make certain that this obligation is fully met.

Second, the port State could enforce pollution control standards against vessels using its ports. In this connection, I would like to emphasize that we

provide, in Article VII, that the port State can take enforcement action with respect to violations regardless of where they took place.

Finally, the coastal State will have rights and mechanisms that will fully protect its environmental interests. The draft articles contain methods for dealing with the four major marine pollution problems facing coastal States: serious maritime casualties off its coast; violations of international standards presenting imminent danger of major harmful consequences to the coastal State: persistent and unreasonable failure of a State to enforce the international standards with respect to vessels flying its flag; and, also, general violations of the standards.

Maritime casualties may threaten major harmful consequences to the coastal State. We feel that the coastal State should be able to take direct action to prevent, mitigate, or eliminae any such problem off its coast. The 1969 Intervention Convention provides such a right with respect to oil pollution and it is presently being expanded to apply to other substances. Certainly all coastal States must be able to act in such situations without delay.

There is also another type of situation in which coastal States should be able to take direct action. In the case of a violation of the international standards which is sufficiently serious to produce imminent danger of major harmful damage, the coastal State should also be allowed to take direct enforcement measures, including detention or, where absolutely necessary, arrest, in order to prevent, mitigate or eliminate the danger. This right goes substantially beyond that of the Intervention Convention since it is quite possible to have a serious pollution problem without the occurrence of a maritime casualty. To adequately protect coastal States, we must also eliminate persistent and unreasonable flag State failure to enforce the applicable standards. To achieve this, in addition to providin gfor general enforcement actions by other States, we provide a right for any State, coastal or not, to lodge a complaint with the dispute settlement machinery to the effect that a particular flag Sate has unreasonably and persistently failed to enforce the international standards. If the complaint is upheld, the dispute settlement machinery may then specify additional enforcement measures which may be taken by coastai States against all vessels of that flag violating the international standards. Such measures could include measures to be taken by coastal States on the high seas. Since such measures could be taken until the flag State itself undertakes continuing effective enforcement, the new right will create a strong inducement for flag states to effectively control their vessels.

Finally, we have set up a general system, in Sections D and F, to deal with ordinary violations in an effective manner. Under this system, any coastal State which suspects a violation of the international standards, for example an oil discharge, may request the suspected vessel to give information specifying its name, next ports of call and other relevant information. The vessel is required under the draft articles to supply the information. If the vessel is headed for a port in the coastal State, the enforcement vessel can then request an immediate on-board inspection and can deny port entry if the request is refused. If, however, the suspected vessel is headed elsewhere, the coastal State may forward evidence to a port of call of the vessel or to the flag State, whichever it wishes. Whichever State is notified, port State or flag State, is required to undertake an investigation in which the coastal State has a right to participate. If the investigation reveals a violation, then the port State may institute proceedings and if the port State does not do so, the flag State must. In this connection, we propose an article requiring adequate penalties. I would also like to emphasize again that the flag State obligations to institute proceedings and to ensure adequate penalties are enforcable through compulsory dispute settlement.

Mr. Chairman, we believe that this system will provide an effective enforcement regime which will ensure that violations are deterred. It will also provide effective protection for those States which may not have a large capability for offshore enforcement. At the same time, through reasonable procedures such as bonding, we ensure that voyages can continue after necessary investigations are carried out so long as there would be not unreasonable threat to the marine environment.

The draft also includes articles relating to the issues of State responsibility, penalties, liability for unreasonable enforcement measures, multiple proceedings and cooperation. Most of these articles are self-explanatory and we will

make any necessary additional comments on them when they are discussed in the Working Group.

Finally, the draft articles provide for compulsory dispute settlement so that all States, coastal and non-coastal, will have adequate remedies to ensure compliance with all aspects of these new procedures and responsibilities. A major interest which all nations shar is to reach agreement on a Law of the Sea Convention which will minimize uncertainty and potential conflict among nations. If the rights and duties of States to be elaborated in the Convention are to be meaningful, we must agree to settle all disputes peacefully. The United States could not, in fact, agree to many proposals we have made ourselves in the Seabed Committee if there is no general system of compulsory dispute settlement.

Mr. Chairman, I would like to add a few additional comments relating to the proposal recently made by the United States for establishing a new Marine Environment Protection Committee in IMCO. I have attached a copy of that proposal for the information of the members of the Committee.

First, the proposal does not in any way detract from the jurisdiction of the Seabed Committee or prejudice the options of the Law of the Sea Conference regarding the jurisdiction of States. The Law of the Sea Conference will be a Plenipotentiary Conference charged with determining the basic jurisdictional framework for protection of the marine environment and that competence cannot in any way be altered by actions in another forum. Regardless of our differences on coastal State jurisdiction, we all agree that there must be strong international standards. Our proposal in IMCO is designed to ensure that those international standards are expeditiously and effectively established and we believe that we should move vigorously in every forum to achieve these ends.

Second, the proposal marks a step forward toward a more open system of establishing international standards for vessel source pollution-a system in which States affected by such standards would be able to participate in setting them. Membership in the new Committee will be open so that any concerned State could participate equally in the formulation of standards. States representing all major community interests at stake including protection of the marine environment and navigational interests could thus participate in the decision process.

Again, Mr. Chairman, let me emphasize that the standards adopted by the new committee will be directly circulated to States party to the relevant convention and will not be subject to review by the IMCO Council or Assembly. Such standards would come into effect automatically unless objected to by a certain number or category of States. This is essential if standards and regulations are to be rapidly brought into force in response to changes in technology or new knowledge about the marine environment.

Third, there can be no question but that IMCO has broad authority to deal with vessel source pollution problems. The IMCO Charter clearly authorizes such activities and the historical practice of IMCO strongly supports it. IMCO has been active in the field of vessel pollution control since its inception. Conventions concluded under its auspices include the 1962, 1969 and 1971 Amendments to the 1954, Oil Pollution Convention, the Civil Liability and Compensation Fund Conventions, as well as the draft articles prepared for the October Marine Pollution Conference. Many States have participated in this work of IMCO and are parties to one or more of these Conventions.

In closing, Mr. Chairman, the Law of the Sea Conference will establish the basic jurisdictional framework for the protection of the marine environment well into the 21st Century. It is incumbent upon all of us to ensure a forward looking framework which will effectively protect that environment. My delegation has tabled today draft articles which we believe will ensure such a framework. We believe also that they will fully protect the interests of constal States as well as maritime nations and other members of the international community. We should remember in this connection that all nations, whether coastal States, maritime nations, or both, have a common interest in effective protection of the marine environment. And all nations have a common interest in avoiding unnecessary increases in transportation costs and unnecessary sources of potential disagreement among nttions. The challenge for this Committee, is to find a framework which will bring together all nations in recognizing these common interests. We hope, Mr. Chairman, that the draft articles which we have submitted today will assist in meeting this challenge.