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other conventions on preservation of the marine environment. The United States delegation reported that while the text included meaningful obligations to protect the environment, some states continued reluctant to accept such obligations. It stated that on vessel source pollution, no final agreement was reached, although there was a trend toward international standard setting in the economic zone.
An excerpt from the U.S. delegation report follows:
The Informal Working Group on marine pollution, chaired by Jose Vallarta (Mexico) devoted its efforts to nonvessel sources of marine pollution, on the understanding that contentious jurisdictional issues would be negotiated in the Evensen Group. ... general agreement was reached on texts of articles on monitoring, environmental assessments and land-based sources of pollution. The monitoring article, taken in conjunction with the U.S.-proposed article on environmental assessments, should ensure that states assess in advance the environmental impacts of activities which may cause substantial marine pollution, and follow up with reasonable monitoring efforts. Both articles require appropriate communication of results to competent international organizations.
The article on land-based sources of pollution requires states to establish national regulations and includes special mention of toxic and persistent substances. The first of two alternate texts on the third paragraph would require states to endeavor to establish global and regional rules to control land-based pollution, but the second would modify such efforts by requiring consideration of economic factors.
The Working Group discussed but did not reach complete agreement on pollution from the Continental Shelf and from dumping. On shelf pollution standards, an impasse was reached on the jurisdictional issue with a few coastal states (notably Brazil) taking the position that the article should reflect their view that all seabed activities within the economic zone would be under the jurisdiction of the coastal state, ... On dumping, agreement was close, but was prevented by India's insistence on submitting an alternative to the chairman's suggested text. India opposed a binding obligation to accept international standards for dumping in its economic zone, reserving in effect the right to apply less stringent standards to such dumping.
The single negotiating text produced by the Chairman of Committee III at the Geneva session of the U.N. Law of the Sea Conference is at A/CONF.62/WP.8/ Part III, May 7, 1975. For the text and the report of the U.S. delegation, see Hearings on Status Report on Law of the Sea Conference before the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 94th Cong., 1st Sess., June 4, 1975, Part 3, and The Third U.N. Law of the Sea Conference, Geneva Session, March-May 1975, Report to the Senate, 94th Cong., 1st Sess.
Marine Vessel Pollution
In a legal opinion (G-LMI 5922) of February 13, 1975, Rear Admiral R. A. Ratti, Chief Counsel of the Coast Guard, Department of Transportation, concluded that statutory authority existed under Section 311 of the Federal Water Pollution Control
Act, as amended (33 U.S.C. 1321), for the Coast Guard to respond to a pollution incident in the United States which had originated in Canada. He also said that the revolving fund authorized by the Act could be used as a source of reimbursement for removal costs. His opinion stated, in part:
Section 311(cX1) of the FWPCA authorizes the President to act to remove any oil which is discharged "into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone.” This authority has been delegated to the Coast Guard for the coastal waters of the United States. In broad terms, the congressional mandate is to protect the waters and the coastline of the United States from damage resulting from pollution by oil and other hazardous substances by (1) preventing the discharge of these substances, and (2) authorizing the removal of any substances which are discharged. It is my opinion that Congress intended to authorize under Section 311(c) the removal of any oil which is discharged, either directly or indirectly, into or upon the navigable waters, adjoining shore lines, or into or on the waters of the contiguous zone, regardless of where the original pollution incident occurs.
Section 311(k) authorizes the establishment of a revolving fund to carry out the provisions of Section 311(c). It, therefore, follows that the revolving fund can be used as a source of reimbursement for the cost of any removal effort authorized under Section 311(c), including the situation outlined.
Dept. of Transportation, Coast Guard Law Bulletin, No. 411, July 1975, p. 36.
President Ford transmitted to Congress on July 9, 1975, proposed legislation entitled the “Comprehensive Oil Pollution Liability and Compensation Act of 1975." The legislation (H.R. 9294; 94th Cong., 1st Sess.) would establish a comprehensive and uniform system for fixing liability and settling claims for oil pollution damages in U.S. waters and coastlines. It would also implement two international conventions dealing with oil pollution caused by tankers on the high seas: the International Convention on Civil Liability for Oil Pollution Damage, signed at Brussels on November 29, 1969, and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, done at Brussels on December 18, 1971. In his message to Congress, the President stated, in part:
This legislation would help protect our environment by establishing strict liability for all oil pollution damages from identifia
ble sources and providing strong economic incentives for operators to prevent spills. Equally important, the bill will provide relief for many oil-related environmental damages which in the past went uncompensated. For example, State and local governments will be able to claim compensation for damages to natural resources under their jurisdiction.
This legislation would replace a patchwork of overlapping and sometimes conflicting Federal and State laws. In addition to defining liability for oil spills, it would establish a uniform system for settling claims and assure that none will go uncompensated, such as in cases where it is impossible to identify the source of the spill. The legislation provides for a fund of up to $200 million derived from a small fee on oil transported or stored on or near navigable waters.
This legislation would also implement two international conventions signed in 1969 and 1971—which provide remedies for oil pollution damage from ships. These conventions provide remedies for U.S. citizens under many circumstances where a ship discharging oil that reaches our shores might not otherwise be subject to our laws and courts. Protection of the international marine environment is basically an international problem since the waters, currents, and winds that spread and carry ocean pollution transcend all national boundaries.
In proposing implementation of the conventions, I am mindful of the fact that the Senate has not yet given its advice and consent to either of them. I urge such action without further delay. The 1969 convention came into force internationally on June 19, 1975, without our adherence, and the continuing failure of the United States to act on such initiatives may weaken or destroy the prospects of adequate international responses to marine pollution problems.
A summary of the proposed legislation follows:
. Establishes a domestic fund.
amount of the fee to be at the discretion of the Secretary of Transpor
tation. 2. Provides specific damages recoverable by broad classes of claimants.
- Damages recoverable:
-loss of tax revenue for up to one year.
-any agency of the U.S. Government, for oil removal cost;
significant economic loss because of an oil spill; -any State or political subdivision for loss of up to one year's tax
revenue; -certain foreign claimants in limited situations. 3. Establishes strict liability for the discharger with varying limits and
-Limits of liability:
-vessels and ships the lesser of the $150 per gross ton or $20,000,000; -onshore or offshore facility-not to exceed $50,000,000, to be deter
mined by the Secretary of Transportation; -in cases of gross negligence or willful misconduct, liability would be
-act of war, civil war, or insurrection;
-any combination thereof.
procedures established by the Secretary of Transportation. Secretary formally designates discharger, if known. Claimant files initial claim against designated discharger. discharger has 90 days to make settlement; or
-he can deny designation.
-file claim against fund.
1971 international conventions, claimant files against fund:
-in some cases, appeal may be made to U.S. District Court.
-the damages paid;
-Deepwater Ports Act liability and $100 million fund.
The President's message to Congress is published in full in Weekly Compilation of Presidential Documents, Vol. 11, No. 28, July 14, 1975, pp. 721-722; Cong. Rec., Vol. 121, No. 107, July 9, 1975, pp. S12097–12098 (daily ed.); and H. Doc. 94–214. The summary quoted in part above is from a fact sheet issued by the Office of the White House Press Secretary on July 9, 1975.
United Nations Conference on Law of the Sea
At the Geneva session of the Third U.N. Conference on the Law of the Sea, March 19_May 9, 1975, the Chairman of the Third Committee produced an informal single negotiating text, the second part of which was entitled "Marine Scientific Research," and the third part “Development and Transfer of Technology.” It would provide that all states, whether coastal or landlocked, as well as appropriate international organizations would have the right to conduct marine scientific research, subject to the provisions of the Convention. Those provisions, as currently included in the negotiating text, would include, inter alia, the conduct of marine scientific research for the benefit of the international community and exclusively for peaceful purposes, noninterference with other legitimate uses of the sea, and compliance with regulations established in conformity with the Convention, for the preservation of the marine environment. States would be obligated to promote the transfer of marine sciences and technology at fair and reasonable terms, conditions and prices.
Ambassador John R. Stevenson, U.S. Representative to the Geneva session of the Conference, in a statement to the Conference on May 9, 1975, deplored continuing attempts by some states to place restrictions on the conduct of marine scientific research and urged that there be concentration on means to insure that all would enjoy the fruits of science, rather than on means to restrict science for fear it would only benefit the few. In a statement to the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, on June 4, 1975, Ambassador Stevenson summarized the Conference outcome with respect to scientific research, as follows:
There was a continuation of the debate between those states that demand consent for all scientific research conducted in the economic zone and those, such as the United States, that support the right to conduct such research subject to the fulfillment of internationally agreed obligations. A new approach sponsored by the Soviet Union attracted considerable attention. It requires consent for resource-related research and compliance with internationally agreed obligations for non-resource-related research.
The U.S. delegation report included the following details:
Marine Scientific Research During this session the four main trends developed in Caracas evolved into three approaches which the chairman ultimately considered in producing the unified text. These three different approaches are: (1) the proposal of the Group of 77, which provides that all scientific research in areas under coastal state jurisdiction shall be conducted only with the explicit consent of the coastal state (L. 13, Rev. 2); (2) a proposal by many Western European countries, with amendments by a group of landlocked and geographically disadvantaged states, that marine scientific research can be conducted if a list of internationally agreed obligations are fulfilled, subject to dispute settlement procedures (L.28, an amendment to L.19); and (3) the Soviet proposal, later incorporated in a formal proposal by Mexico and others, which distinguishes between research concerning resources and non-resource-related re