137 



regardless of the injuries it may inflict on the environment, beyond vague state- 

 ments of concern and general obligation. And what we are confronted with m the 

 present law-of-the-sea negotiations is the danger that this principle will be efCec- 

 tivelv established at a constitutional level, both for actvities taking place on 

 land which are injurious to the ocean environment, and for activities taking 

 place within the one-fifth or so of the ocean area wiiere the great bulk of the 

 potentially injurious activities are likely to tak-e place in the foreseeable future. 



What is required in order to forestall this unhappy eventuality? What should 

 happen in the law of the sea negotiations, and what should the United States, 

 as a participant in those negotiations, do? 



First, I suggest, it should be clearly recognized hat a new constitution for 

 the ocean will not be sound or wise if the task of drawing it up is regarded 

 as essentially one of the resolving conflicts between tliose nations interested in 

 maximizing national territorial prerogatives in the oceans, and those interested 

 in preserving freedom of the seas to the maximum extent possible. Both of 

 these approaches, whatever may have been their historical role, are essentially 

 individualistic in laissez-faire. They leave each member of the international 

 community free to try to expand its own share of the benefits of a common 

 resource without the' restraint of community regulation designed to prevent 

 abuse of that resource, the only proviso being that its efforts must not injure any 

 other member in the exercise of a similar right of unregulated self-aggrandize- 

 ment. Surely what is needed, instead, is that we be farsighted enough to deal 

 with the whole ocean as a genuinely common resource of mankind. Negotiations 

 should proceed from the premise that no individual member of the community 

 can assert a claim of right to enjoy the benefits of a community resource except 

 pursuant to arrangements which that community has sanctioned. And this would 

 mean, at the very least, that no individual nation has the right to harm that 

 common resource simply because it is in the fact in an advantageous position 

 geographically, geologically, or technologically, to exploit it for its own benefit. 

 Rather, the community itself can exact compliance with standards designed 

 to protect the resource itself, in this case the world ocean, from injury. 



Such an approach is not unknown to the law-of-the-sea negotiations as they 

 have developed thus far. Indeed, the United States incorporates! elements of it 

 in its initial proiX)sal for an international regime governing exploitation of the 

 deep seabed. It underlies a comprehensive proposal for an ocean regime put 

 forward by Malta. But if this approach is to be effectively applied, even on the 

 one issue of en^'i^onmental protection, a fairly searching review and revision 

 of the general thrust of the negotiations will be required. 



More particularly, I would suggest the following elements, which very prob- 

 ably should be included in a law of the sea treaty emerging from the present 

 negotiations: (1) The treaty should establish state responsibility for injury 

 to any portion of the marine environment, whether wuthin national juri.sdiction 

 or not. 



(2) The treaty .should not only establish a basic obligation of states with 

 respect of the preservation of marine environment (which is, without more, a 

 pious wish), but should lay on them an obligation to conform both their con- 

 duct and their own national regulation to such minimum regulatory standards 

 as may be adopted through an international mechanism. 



(3) Such an international regulatory mechanism should be created, with the 

 authority to consider all forms of threat or injury to the ocean environment from 

 whatever source, and to develop and adopt regulations through one or another 

 of the established and familiar kinds of regulatory competence which have been 

 conferred on other international organizations in technical fields in the past. As 

 a practical matter, this agency might well be a thorough' y reconstituted and ex- 

 panded IMCO. Its regu'atory competence might well be like that already pro- 

 posed by the United States for IMCO with respect to vessel ix>Uution, but ex- 

 panded to cover all forms of environmental injury to the ocean. 



(4) Other international institutional functions now being developed with 

 resi>ect to ocean management should be joined in this same institution. These 

 won d inc'ude management of the exploitation of seabed resources, and effective 

 m"tbods of sett'ing (Msi)utes among nations, and between nations and the 

 international community authority, with respect to fulfillment of treaty obliga- 

 tions. 



(5) The treaty .should clearly provide, as a means of giving teeth to any 

 such dispute settlement mechanisms, that the rights of u.se of the ocean as a 

 whole are conditioned upon compliance with the obligations not to abuse it. 



