136 



(4) Unlikely to create any international regulatory authority, the treaty 

 appears also unlikely to create any international enforcememt capaicity, such 

 as the power to inspect acti^^ties to determine compliance, to investigate 

 complaints, to compel determination of complaints, or to deprive violators of 

 treaty obligations of benefits under the treaty regime. There may be an exception 

 as to seabed exploitation activities in the area beyond the zone of coastal state 

 control. 



What does all this add up to, as concerns the risks and opportunities for pro- 

 tection of the environment of the ocean which the law-of-the-.sea negotiations 

 present? At the outset, I called attention to the historic conflict, in the develop- 

 ment of ocean law and practice, between the principle of freedom of the seas 

 and the principle of national territoriality, recalling how, in the generation 

 since World War II. there had been growing pressure to extend the concept 

 of national territory in whole or in part farther and farther into the open ocean. 

 The Canadian legislation unilaterally claiming jurisdiction over wide coastal 

 area for environmental purposes is only a further and recent example. 



It is clear that the conflict between these two contending approaches continues 

 in the present negotiations. There is an equally clear danger that it will be re- 

 solved by a compromise which would preserve the essence of the traditional 

 freedom of the seas — namely, free navigation — while effectively nationalizing a 

 wide coastal strip for most, if not all, other important purposes That is to say. 

 as I have already indicated, it would turn a coastal strip of perhaps 200 miles 

 into something very closely approximating national territory for a very wide 

 range of purposes, including exploitation of all resources, and regulation respect- 

 ing all or most forms of environmental threats. 



Now, I am not at present concerned with the merits of the question whether 

 this coastal area should be thus "nationalized" for purposes of economic ex- 

 ploitation or other purposes. I am concerned with environmental protection, and 

 what such an outcome would mean for environmental protection must be assessed 

 in light of two facts about the sources of injury to the marine environment : 

 first, the fact that the bulk of marine pollution — estimates range from over 50 to 

 90 percent — we are now told is traceable to activities taking place on land and 

 producing effluents which enter the ocean through runoff in rivers, direct In- 

 troduction into the ocean from land, or diffusion into the atmosphere. Second, 

 the area which may be effectively nationalized, while by no means geographically 

 insignificant (amounting to perhaps as much as one-fifth of the area of the 

 entire ocean) is, nevertheless, likely to be of a greatly disproportionate impor- 

 tance in.sofar as injury to the marine environment is concerned. For it is in this 

 area that the bulk of mineral exploitation activities will take place for the time 

 being. And it is in this area that the greatest potential for harm exists, not 

 only for the obvious reason of its adjacency to the coasts, but also because it con- 

 tains the bulk of the commercially exploitable living resources of the ocean. 



As to this "nationalized" area, the treaty may leave the international com- 

 munity in approximately the same position, insofar as concerns protecting the 

 commimity interest in the jnarine environment, as it now occupies with respect 

 to activities on land which are injurious to the land environment. That is to 

 say, the international community can, on an ad hoc basis, from time to time, 

 through the United Nations or some other international agency, seek to get 

 states to come together to cope with particular problems as thfy arise. But it must 

 do so without any preexisting and continuing basis for the claim that it is really 

 any of the international community's business what injuries are being inflicted 

 on the environment within this area, since the area is essentially national in 

 character. And it mu.st do .so without any preexisting mechanism for doing any- 

 thing al)Out those injuries even if its legitimate concern is recognized. 



The effectiveness with which any interest of the wor d community as a whale 

 in maintaining the environment may be protected from such a position can be 

 surmised by recalling only one sentence from the Declaration of Principles on 

 the Human Environment adopted by the Stockholm Conference. The very sen- 

 tence of that Declaration which proclaims the responsibility of states to ensure 

 that activities in their jnri.sdiction do not damage the environment of other states 

 or the area>; beyond natiim.il juri>di(*ti'<n. i>roc'aim>-- a'sn thnt states hove "the 

 sovereign right to exploit their own resources pursuant to their own environ- 

 mental policies." Tills now famous qualifier. whicJi might reasonably be taken 

 to negate the other half of the proixisition of whicli it is a part, was but one 

 particularly clear exi)ression of the view of many countries that what goes on 

 within national territory is really no business of the international community, 



