230 



11) that the provisions of Alternative II to Article 4 are too stringent, and we 

 urge that the United States recommend retaining the mandatory requirements 

 to insure maximum effective enforcement of the Convention. 



Similarly, we believe that the obligation which subparagraph 2 of Alternative 

 II to Article 4 imposes on any Contracting State in whose territorial waters a 

 violation occurs is eminently sensible. Such states should be required either to 

 prosecute or to furnish to the Administration sufficient information and evidence 

 so as to allow such State to prosecute. The entire enforcement package is further 

 reinforced by the requirement in subparagraph 3 of this Alternative that, if 

 such information if furnished to the Administration of the offending ship, then 

 such Administration should inform the State whose waters are affected by the 

 violation of the enforcement actions taken. In this way, there is a clear check, 

 witliin the confines of the Convention, on enforcement actions taken by an 

 Administration. 



Tlie provisions of Article 4 are also improved by the addition of the language 

 suggested in Footnote 9. This provision would clearly increase the chances that 

 any particular violation of the Convention would be prosecuted by enabling 

 any Contracting State to cause proceedings to be taken against ships which enter 

 its ports or offshore terminals, regardless of the fact that a violation, i.e., a pro- 

 hibited discharge, might not have occurred within its territorial waters. Thus, 

 if a ship which violates the requirements of the Convention and which trades 

 on routes that bring it to several different Contracting States is not prosecuted 

 by one of those States, there is at least a strong likelihood that it will be jiToa- 

 ecuted by another. The threat of enforcement woilld be weakened, however, by 

 the qualifications to the language suggested in Footnote 9, which either allow 

 the Administration to preempt the prosecuting State or limit the prosecuting 

 State's jurisdiction over violations, and we would oppose the inclusion of any 

 such qualifications in the final Convention. 



Finally, we believe that the adoption of Footnote 10 or a similar alternative 

 should be supported, since to limit enforcement of a Contracting State to viola- 

 tions occurring within its "territorial seas" — presently, for example, only three 

 miles in the case of the United States — may constitute an unnecessary limitation 

 on its enforcement powers, especially if any law of the sea regime which is ul- 

 timately developed would provide for national, pollution control jurisdiction out- 

 side the area traditionally designated as the "territorial sea". Enforcement juris- 

 diction should be given to states for areas under "their national pollution control 

 jurisdiction" (or equivalent language) in order to insure that the enforcement 

 powers under the Convention are at least co-extensive with any jurisdictional 

 lines established in a future law of the seas agreement. 



(ii) Certificates and Inspections. — Control over ships required to hold Certifi- 

 cates under the Convention, achieved, in part, through broad inspection rights, 

 is also important to the effectiveness of the Convention. Article 5. para. 2. pro- 

 vides that a ship's certificate of compliance must be accepted by an inspecting 

 state unless there are "clear grounds" for believing that the condition of the 

 ship or its equipment does not correspond substantially with the particulars of 

 that certificate. As stated in our Fourth Draft Comments at p. 8. we believe that 

 "clear grounds" are too stringent a test as a precondition for inspection. A state 

 should be able to inspect and exercise control of ships in its ports or offshore 

 terminals without having virtually to establish a violation. Limitations of time 

 and personnel will serve to insure that inspections are not abused to disrupt cora- 

 mercia activity. Thus, we believe that the language suggested in Footnote 14. 

 i.e., "reasonable grounds", should replace the "clear grounds" standard in sub- 

 paragraph 2, and subparagraphs 4 and 5 of this Article as well. 



Stringent action should be taken when it is determined that a ship does not 

 have a valid certificate of compliance, and specification of action open to a ."^tnte 

 in such circumstances is appropriate. However, the action suggested, insuring 

 that the ship in violation shall not sail until it can proceed to sea without pre- 

 senting an unreasonable threat of harm to the marine environment, is not the 

 optimum solution to the problem. Rather, the alternative suggested in Footnote 

 ]5. namely, that a ship should not be permitted to sail "until such deficiency is 

 corrected", provides greater assurance of protection of the marine environment. 

 At the least, permission for a ship to leave the port or offshore terminal should 

 only be granted if the ship is required to proceed to the "nearest repair yard avail- 

 able", with the additional proviso that no such permission should be granted if 

 the ship would "present a significant threat of harm to the marine environment " 



Mandatory denial of access to ports and offshore terminals, with the added 

 exception that entry would be allowed if for repair purposes, as provided for in 



