222 



age ocean resources, and balance both conservation and development interests. 

 In addition, the ISRA should be required to appoint and hire i>ersons with the 

 highest competence in marine environmental matters. These criticisms apply not 

 only to the U.S. draft seabed convention, but to similar inadequacies in the pro- 

 posals of other nations. 



All of these problems can and must be confronted and resolved without further 

 delay before the U.N. Conference on the Law of the Sea. Unlike conventions on 

 endangered species, ocean dumping, and Antarctic seals, there are no existing 

 environmental problems from seabed mineral development because it has 

 not actually commenced, and it may not become commercially profitable for 

 several years. Commercial interests, then, have not vested. In contrast to man"s 

 usual lack of foresight which results in unnecessary environmental disasters, 

 the oceans present a rare opportunity for global cooperation by all nations to 

 avert further marine pollution by a careful, prior scrutiny of the environmental 

 consequences of seabed resource extraction. Unless this challenge is met, the 

 oceans become man's last industrial wasteland, resulting in the death of oceaiiic 

 life, thereby endangering the survival of terrestrial sp-ecies, including man. 



These problems should be immediately discussed and reviewed by the new 

 U.N. Secretary on the Envix'onment, and by a thorough NEPA analysis within 

 the United States. 



5. Other Lam of the Sea Issues 



Other law of the sea issues may affect the oceans' environmental quality, in- 

 cluding "flags of convenience," -enforcement of convention provisions on pollu- 

 tion, and international marine preserves. 



(a) "Flags of Convenience": Under present international law, a ship has the 

 nationality of the flag it flies. This is true even though the owners are citizens 

 of a nation other than the flag state or state of registry. The state of the ship's 

 registry has the exclusive jurisdiction to regulate the ship's conduct. Consequently 

 many states, the so-called "flags of convenience," are chosen because of weak 

 or non-existing shipping laws. The principal "flags of convenience" states are 

 Panama, Liberia and Honduras, known as the "Panlibbon" group. The "flags of 

 convenience" is thus a law avoidance device. 



Its principal use is to circumvent U.S. labor laws. However, the fact that the 

 state of registry has exclusive jurisdiction over the ship's offenses alsct has 

 environmental consequences. Under the 1954 London Oil Pollution Convention, 

 only the state of registry may punish a vessel making prohibited discharges of 

 oil unless the oil should damages a state's territory or territorial sea. Obviously 

 the flag state has little interest in prosecuting any offenses. By comparison, it 

 would be an anomaly in domestic law if polluters were prosecutors of their 

 own violations of pollution control laws. One writer has warnetl that : 



"Indeed world-wide acquiescence in flags of convenience could greatly 



stultif.v, if not render completely ineffective, an international regime for 



controlling pollution from tankers, pipelines, deeivsea mining and high 



seas mineral extraction from seawater. All that is needed for the avoidance 



of the regime is that some state (no matter how small) should remain 



outside the regime, freely register ships and mining corporations under its 



domestic laws and irrespective of the nationality of their management and 



the sources of their capital, and rely on its rights (and hence those of the 



ships and enterprises it registers) under customary international law to 



treat the high seas as a common (and thereby 'capture' hydrocarbons, hard 



minerals and chemicals in suspension in sea water through nceupntio res 



nullius as fish are captured today, dump tailings and refuse, lay pipelines, 



and generally treat the high seas as an infinite sink)." 



Thus the flags of convenience principle in international law should be 



abandoned at the law of the sea conference and a ship should have the nationality 



of the state with which it has the closest nexus or most efftx^tive connection. 



If this principle cannot be entirely abandoned, then a significant exception to 



the rule must be created for pollution and environmental matters. The two 1969 



Brussels Conventions allowing a coastal state to proceed against a tanker on the 



high sea which threatens an oil cntastrojjhe indicates a departure from the 



flags of convenience approach, which should be further expended at the law of 



the sea conference. 



(b> Enforcement — The Universality Principle: There is a need for effective 

 enforcement measures to redress violations of marine iX)llution articles in law of 



