The following piece was written by me in 1972 as a part of my studies for my Master's Degree in International law.of International Law degree at New York University. In concerns the prospect of prosecuting ocean polluters as for international crimes just as we prosecute pirates. The first section: The Death of the Ocean the Mother of life seems particularly relevant to environmental crisis we face today that now threatens the humanity with an "Apocalypse of Selfishness."
Reprinted from The International Lawyer, Vol.6, No. 4, October 1972 Page 706
Copyright 1972 American Bar Association
Are Ocean Polluters Subject to Universal Jurisdiction: Canada Breaks
the Ice
By John C.
Klotz*
A. The Death of the Ocean - Mother of Life
Until now, human
development has proceeded on the assumption
that the earth and its resources were created for the use and exploitation by mankind, and were so
plentiful that little thought need be
given to their ultimate exhaustion.(Nte. 1) In terms of ecology, man's economic theories have
advanced little beyond those of the
Stone Age: "slash and burn" agricultural communities who roam the world's tropical forests,
slashing and burning trees to create
small plots for cultivation, and when the soil is soon exhausted, moving on to another part of the
forest to slash and burn again.
Similarly, modern
man has exploited the resources of the
earth with such reckless abandon, that the human race is now faced with an ecological crisis of
unbelievable complexity. We now know
that the earth's resources are limited, with the points of exhaustion of many of the most basic
resources near at hand, and that
exploitation and industrialization are exacting such a fearful toll that life, as we now know it,
may be doomed to extinction.(Nte. 2)
Perhaps the most
obvious of the world's endangered ecological
systems is the ocean.(Nte. 3) Ocean waters cover four-fifths of the earth's surface. Its
interaction with the atmosphere
determines weather and climate and each influences in many ways the composition of the other.(Nte.
4) Over 70 percent of the atmosphere's
oxygen was created by ocean organisms.(Nte. 5) The ocean is
707
an integral part of
the world's food supply and an important
communications link between the continents. Thus, the destruction or alteration of the ocean's ecosystems would
threaten the earth's supply of oxygen,
lead to the possibility of seriously
altered climates and threaten destruction of an important source of the world's present and future food
supply.(Nte. 6)
Yet, the
evidence seems conclusive that serious, destructive pollution of the ocean has occurred, is
continuing virtually unabated and will
become worse in the future. It may very well be
that the future of the ocean will be a replay of the destruction and death of many smaller bodies of fresh
water, such as Lake Erie.(Nte. 7)
Indeed, some of the ocean's constituent parts such as the Baltic and the Mediterranean are well
along the road to becoming dead
seas.(Nte. 8) Even the huge expanse of the Atlantic was found by members of Thor Heyerdahl's Ra expedition,
to be "one big garbage
dump."(Nte. 9)
One of the most
persistent pollutants now entering the ocean
in large quantities is oil. Estimates as to the quantity of oil added to the marine environment vary from
about 4.5 million tons to no less than
10 million tons.(Nte. 10) Although the effects of oil pollution have not I been completely
determined, it is apparent that
continuing, unabated pollution of the oceans by oil threatens the functioning of many of the
oceans' important life-supporting
ecosystems. At the least, oil pollution has
succeeded in destroying much of the enjoyment and recreation that man has traditionally found in the ocean, and
has reduced the ocean's capacity to
produce fish fit for human consumption.
Not all the oil
found in the ocean is of human origin. In
addition to the millions of tons added by man, a nearly equal amount of hydro-carbons may be added by
natural processes.(Nte. 11) However,
nature has evolved, over millions of years, methods of coping with the dangers caused by natural
pollutants. The sudden addition by man
of vast quantities of unnatural pollutants
overwhelms the natural processes, and takes away from nature its most important asset-time. In the modern
world, the expanding activi-
708
ty of man, the
polluter, has destroyed time and there is precious little left.(Nte. 12) Despite the
well-documented prophesies of disaster
and the catastrophes already endured, it is not likely that mankind will voluntarily curtail its
pollution-causing activities. The
immediate prospect is for increased oil pollution as the worldwide search for oil causes
further exploitation of off-shore wells,
and increased reliance on ocean shipping of
oil.(Nte. 13) Thus, the battle lines are being drawn between "economists" who feel the need for
further exploitation and regard the
environment as a subsidiary concern, and
the "ecologists" who feel that
the survival of the race is dependent on
placing primary concern on environmental problems.(Nte. 14)
B. The
International Community and Oil Pollution
Although the
efforts of the international community to cope
with oil pollution date back to at least 1926, the extent of the present crisis is a measure of its failure.
In 1926, a convention relating to
international oil pollution was drafted but not
ratified. However, in 1954, an International Convention for the Prevention of Pollution of the Sea by Oil was
adopted.(Nte. 15) Although it was
subsequently amended, its inherent weakness was
such that in 1969, the Intergovernmental Maritime Consultative Organization (IMCO) promulgated at its
Brussels Conference two new conventions:
the "International Convention on Civil Liability for Oil Pollution Damage"(Nte. 16) and
the "International Convention
relating to Intervention on the High Seas in Cases of Oil Pollution Casualties."(Nte. 17)
Despite the fact
that the IMCO convention followed by forty
years the initial pollution control efforts of 1926, and despite the fact that by 1969, maritime oil pollution
was clearly a major world problem, the
net result of
709
the conventions was
to impose limited civil liability on the
owners and operators of oil tankers, require insurance to cover such damages, and authorize limited intervention
on the high seas after maritime
casualties. The shallowness and limited utility of this approach was argued forcefully by the
Canadian government at Brussels. In light of the structural
domination of lMCO by maritime states
with a vested interest in ocean commerce, it is
not surprising that the Canadian arguments did not carry the day.(Nte. 18)
C. The
Canadian Action
1. The
Frustrations of the Multi-Lateral Approach
... The Canadian
experience was rather unfortunate when they explored possibilities of action
within the U.N. apparatus. At the same time there was a rather diffuse interest
in the various organs and agencies, there was also, clearly, almost a
pre-emption of the possibility of early and direct action by lMCO, which was
clearly not an agency, in view of its interest in facilitating maritime
commerce, that could take the sort of broad approach that was necessary for
this type of problem. Canada was not only rebuffed at the Brussels Conference held
last year, but actually received clear indications of reluctance on the part of
some governments to assume any responsibility or become involved in this issue.
Consequently, Canada
felt obliged to take unilateral action that would meet the need of protection
in the Arctic environment. It was partly conceived as a goad to the
international community to take constructive action.(Nte. 19)
The problems of
ocean pollution are intensified by the
extreme climate of the Arctic region. While 50 percent of spilled oil in a temperate zone might be oxidized
within a week, oil spilled in the Arctic
may persist as long as fifty years.(Nte. 20)
Thus, events in the Arctic led to Canada's
desperate attempts at Brussels to put teeth into the international
community's attempts to combat oil
pollution.
In the summer of
1969, the oil tanker U.S. Manhattan
successfully navigated the Northwest Passage
through the Canadian Arctic to the new
oil fields on the Alaskan north slope. The
conflict between the economists and the ecologists was brought into sharp focus. Alaskan oil was regarded as
vital by oil interests in the United States
and ocean shipping would result in a
cost saving of nearly $600,000 a day.(Nte. 21)
Meanwhile, the
ecologists foresaw the devastating results a
major oil
710
spill might have on
the Arctic environment. Shortly after the
Brussels conference, an oil spill
occurred in northern waters off Nova Scotia when the
tanker Arrow grounded. Although only a small
spill, the potential for a larger disaster was clear, and Canada's apprehensions were not
eased when the owner of the Arrow was
found to be a corporation that was little more than a Bahamian filing cabinet.(Nte. 22)
In the spring of
1970, Canada
felt compelled to enact far-reaching
pollution control legislation entitled "Act to prevent Pollution of Areas of Arctic Waters
adjacent to the mainland islands of the
Canadian Arctic."(Nte. 23) The Act authorized detailed regulation of activity in Arctic
areas previously regarded as high seas.
The Act was promptly attacked as an
unjustified unilateral extension of jurisdiction in violation of international law.(Nte. 24) To those
sympathetic to Canada's
action, the question was aptly framed by
Justice Douglas of the United States
Supreme Court:
... Is Canada's new
act suggestive of the law the world needs to safeguard the estuaries and oceans
of the world from the almost certain
degradation they face under present pressures?(Nte. 25)
2. The
Canadian Legislation
On June 26,
1970, the Arctic Waters Pollution Prevention
Act, received Royal Assent and became law.(Nte. 26) By that Act, Canada asserted jurisdiction to
regulate activities in its Arctic Waters
through a national regime which governs everything, from penalties for polluters to the actual
construction of ships of any nation
traversing the international waters of the Canadian Arctic.
Under the Act,
"Arctic Waters" were defined as all those waters above latitude 60 north within 100
nautical miles of shore plus continental
shelves or other substrata that Canada had the
right to exploit.(Nte. 27) The objective of the Act was not just oil pollution but included any substance
(including detrimentally altered water)
detrimental to the use of the Arctic Waters by
men, or fish and plants men use.(Nte. 28)
Any individual
who deposits such waste is subject to severe
civil and criminal penalties and is liable to any person damaged.(Nte. 29) However, in
711
order to prevent
pollution before it occurs, the act gives the
Canadian government the power to regulate in great detail the construction of ships using Arctic Waters and
requires that such ships use Canadian
qualified pilots and lookouts.(Nte. 30) The Canadian government disclaimed any intention of
claiming sovereignty over the Arctic
Waters, and insisted that it was simply regulating pollution-prone activities on behalf of all
mankind.(Nte. 31)
Yet, if the
powers which Canada
has appropriated for itself are not
sovereignty over the Arctic Waters, what are they? Has Canada defined a new kind of
contiguous zone in the high seas? Under
the provisions of the Convention on the Territorial Sea and the Contiguous Zone, in the zone of high seas
contiguous to its territorial seas, a
coastal state had the right to exercise
control in order to enforce, and punish infringement of customs, fiscal, immigration or sanitary regulations
within its territorial sea or
territory.(Nte. 32) However, the
Convention specifically limited that
zone to no more than twelve miles from
the baseline for measuring the territorial sea. In both the scope of regulation, and the breadth of zone, the
Canadian Act goes far beyond the
contiguous zone envisioned by the Convention.
Canada, however,
found no lack of precedent for its
assertion of jurisdiction to regulate activities on the high seas to protect its vital interest in the Arctic,
and also took the position that the
usual high seas regime had little meaning in
its Arctic Waters, where much of the high seas were permanently covered by ice and inhabited by Eskimos who
live their entire lives on the ice
without ever touching land.(Nte. 33) Prudently,
Canada withdrew from its acceptance of the mandatory jurisdiction of the International Court of Justice, the
question of the validity of its Arctic
Waters Act.(Nte. 34)
D. The
Canadian Arctic Waters Act and International Law
Even before
formal enactment, the mere proposal of the
Arctic Waters Act by the government of Prime Minister Trudeau caused a barrage of criticism, much of it
from the United States.(Nte. 35) It was
assailed by some as an act of unilateral
law-making, and a grievous impingement of the freedom of the seas. Canada, on its part, admitted lack
of precedent, and in reply to
712
a protest from the
government of the United
States made pointed reference to the Truman Declaration of the
Continental Shelf as ample precedent for
its actions and a prime example of a "unilateral
jurisdiction assertion."(Nte. 36)
By Canada's own
definition, it was not claiming sovereignty
over the Arctic Waters, but merely asserting a special kind of jurisdiction to prevent pollution. To
evaluate the lawfulness of the Canadian
action, we must therefore examine the customary
jurisdiction of national states, and whether Canada's action is fundamentally at odds with the customary
basis.
There are five
customary bases of national jurisdiction.(Nte. 37) They are:
(a) The
Territorial Principle
A State has
jurisdiction to prescribe rules and regulation
with respect to conduct, things, status, or other interest within its territory. Some scholars would list as a
separate basis the floating territory
principle, which includes jurisdiction over
vessels or aircraft subject to national jurisdiction.38 Under the territorial principle, a State has
jurisdiction over its territorial seas,
subject to the right of foreign vessels to
transverse the territorial sea in "Innocent Passage."
Likewise, the concept of the contiguous
zone is an application of the
territorial principle.
(b) Protected
Interest Principle
A State has
jurisdiction to prescribe rules of law to
conduct outside its territory that threatens its security as a State. Thus treason and counterfeiting
committed abroad may be punished by the
State wronged, and a State may take other
measures reasonably necessary for its defense.
(c)
Nationality of Offender
A State may
regulate the conduct of its own citizens, no
matter where they may be.
(d) Nationality
of Victim
A State may also
assert jurisdiction, because the victim of
criminal conduct outside of its boundaries, is a citizen.
(e) The
Universality Principle
A State may also
have jurisdiction to take enforcement
action to protect
713
certain universal
interests and punish offenses against the law
of nations. Thus piracy, slavery and war crimes may be prosecuted by any state which obtains custody of the
perpetrator regardless of any other connection
the state may, or may not, have with
offense.(Nte. 39)
As noted above,
the territorial principle by itself is an
insufficient basis for the Canadian legislation, since the previous definitions of the contiguous zone
were usually more limited in scope than
claimed by Canada.
However, a state has considerably more
latitude when taking measures of self-defense.
These broad
powers were recognized by the Supreme Court of
the United States in
the leading case of Church v. Hubbart, which
involved the seizure of a ship off the coast of Brazil by Portuguese authorities. The Court, in
determining the validity of the seizure
noted:
... The
authority of a nation within its own territory is absolute and exclusive. The
seizure of a vessel within the range of its cannon by a foreign force is an invasion
of that territory and a hostile act which it is its duty to repel. But its
power to secure itself from injury may certainly be exercised beyond the limits
of its own territory. Upon this principle the right of a belligerent to search
a neutral vessel on the high seas for contraband of war is universally admitted,
because the belligerent has the right to prevent the injury done to himself by
the assistance intended for his enemy: so too a nation has a right to prohibit
any commerce with its colonies. Any attempt to violate the laws made to protect
this right, is an injury to itself which it may prevent, and it has a right to
use the means necessary for its prevention. These means do not appear to be
limited within any certain marked boundaries, which remain the same at all times
and in all situations. If they are such as unnecessarily to vex and harass
foreign lawful commerce, foreign nations will resist their exercise. If they
are such as are reasonable and necessary to secure their laws from violation,
they will be submitted to.(Nte. 40)
Moreover, in
support of its action, Canada
has pointed to actions by the United States,
including the creation of Air Defense
Identification Zones 300 miles in depth, and the banning of shipping from large areas of the high seas
in connection with hydrogen bomb
tests.(Nte. 41)
In reviewing the
legality of such actions, a test of
reasonableness which echoes the language of the Supreme Court in Church v. Hubbart has been applied. Is the
object of the regulation reasonable and
are the means used reasonable? If so,
then the action is lawful even though it does temporarily interfere with the freedom of the seas. (Nte.
42)
Whatever the objection
raised to Canada's
action, it must be judged in
714
light of the Lotus
case, decided by the International Court of
Justice in l927.(Nte. 43) The Court, in considering the validity of Turkish legislation with supposed
extra-territorial effect, laid down the
rule that an exercise of jurisdiction by a state will always be valid in the absence of a clear
prohibitory rule of international law.
Since the only prohibitory rule applicable is
the so-called "freedom of the high seas," and we have
already seen that this rule is clearly
subject to reasonable restrictions in
the protection of legitimate State interests, the burden on those attacking Canada's action is heavy indeed.
Moreover, the
power to regulate pollution activity asserted
by Canada has already
found echoes in the United
Kingdom.
Following a particularly offensive oil spill in April, 1971, Parliament enacted extensive new legislation
governing oil spills in English
territorial waters.(Nte. 44) The government was given broader powers to regulate shipping and the
penalties for oil spills were
considerably increased. In addition, the government was authorized to extend the effect of the
act to ships outside territorial waters
by special decree.(Nte. 45) This additional authority has not yet been exercised, but by
enabling the government to do so,
Parliament has taken a long step down the
new trail in pollution control, blazed by Canada.
E. The
Canadian Legislation as Protecting Universal Interests.
Canada has not
seen fit to rest the case for its Arctic
Waters legislation on the narrow ground of self-protection but has consistently maintained it was acting to
protect the interests of all mankind, in
the absence of sufficient rules of
international law. Thus Prime Minister Trudeau has said:
... where no law
exists, or where law is clearly insufficient, there is no international common
law applying to the Arctic
Seas, we're saying
somebody has to preserve this area for mankind until international law
develops.(Nte. 46)
In light of our
previous discussion of the danger of
ecological catastrophe, this appeal certainly strikes a responsive chord, but does it add any further
legitimacy to Canada's case? If there is an
interest to protect, does Canada have the right to protect it, or ought
protection of international interests be
left to the international community? We
have previously noted the right of states to punish offenses against the law of nations, in order to
protect universal interests. Is
pollution a violation of the law of nations?
Early in the
development of international law, it was
recognized that states had the right to punish individuals who violated the Law of Nations
715
even though the crime
had no direct effect on the State seeking
to exercise jurisdiction.(Nte. 47) One of the first examples of the exercise of this jurisdiction were laws
against piracy, Any state which
apprehended a pirate could, under the rules of
international law, exercise jurisdiction and punish him for his crimes, whether or not directly affected by
his conduct.(Nte. 48)
Gradually, by
treaty and custom, the classifications of
international criminals expanded to include slave traders, brigands (pirates of the land), and offenders
against the laws of war.(Nte. 49) The
principle seems well established that 'any person who commits an act which constitutes a crime
under international law is responsible
therefore and liable for punishment."(Nte. 50) This first principle of Nuremburg, has undergone
rapid expansion in recent years so that
the perpetrators of Genocide and Apartheid
have now been branded as international criminals by proposed conventions.
One general
definition has been offered as an offense
against the law of nations, which brings the status of the polluter into sharp focus:
... any
violation of an elemental individual, group, nation, or international value so
basic and permanent in its importance, that the necessity of its protection is
recognized by most of the recognized actors on the international scene.(Nte.
51)
An international
crime has also been defined as:
... such an act,
universally recognized as criminal, which is considered a grave matter of
international concern and for some valid reason cannot be left within the
exclusive jurisdiction of the state that would have control over it under
ordinary circumstances.(Nte. 52)
Certainly, under
these definitions, the characterization of
the environmental polluter as an "international criminal"
begins to assume credibility, provided
it can be determined that the pollution
of the environment violates a right whose importance is universally recognized.
We began by
noting the evidence of extreme peril to the
environment, and the concern of many for the survival of mankind, Is this regard for the quality of the
environment universal and a matter of
'grave concern"? One result of the United Nations Stockholm Conference on the environment will
be a "Declaration on the Human Environment."
According to recent conferees at
preparations for the conference, this declaration should be a document of universally recognized
fundamental principles recommended for
action by individuals, states and the
international community. The
716
declaration could in
view of some delegations to the
committee: ". . . make an
important contribution by universally
recognizing the fundamental need of the individual for a satisfactory environment which permits the
enjoyment of his human rights."(Nte.
53)
In addition, the
declarations of the United Nations
concerning the seabed, clearly indicate that the sea is res communis, the common heritage of all
mankind.(Nte. 54) Is it not logical to
maintain that those who through their polluting activities befoul the "common heritage of
mankind" are committing a crime
against mankind?
Furthermore,
many nations and municipalities have labeled
the polluter a criminal in their local laws, indicating that concern for the environment is universal and
a very grave matter indeed.(Nte. 55) Add
the fact, that protection of the environment
cannot be left within the "exclusive jurisdiction" of national States, which may be unwilling to accept the
economic results of enforcement, then
the classification of pollution as an offense
against the law of nations becomes a matter of necessity.(Nte. 56)
F. The
Application of Universal Jurisdiction to Polluters
Insofar as the
Canadian Arctic Waters Act imposes severe
civil and criminal penalties on those who pollute Arctic Waters, then it appears to be a valid exercise of
jurisdiction to protect a recognized
universal interest. The all-encompassing nature of the regulatory scheme, while founded in part
on the same desire to protect the environment,
may be difficult to justify on such a
universal basis since Canada appropriates to itself the right to regulate activities not just on the high seas
but in many different localities
throughout the world.
Certainly, the manner
in which ships are constructed in local
shipyards in Japan,
the United States and Europe, should not be
subject to a single state's judgment of what constitutes proper construction. If the penalties for pollution
are severe enough, then the attempt to
regulate construction may not be necessary. A
ship owner facing criminal penalties would hesitate before sending an improperly constructed ship
through Arctic Waters.
717
If many States
were to enact comprehensive regulatory
schemes unilaterally, chaos would result. Suppose for example, the United
States and Denmark
followed Canada's
lead, but came up with different
standards? Would the interest of justice
necessarily be served by giving the nation that enacted the toughest standards the last word? These
considerations argue forcefully, that
the only appropriate vehicle for preventive
regulatory schemes is multilateral agreement rather than unilateral action.
One cannot
expect, however, that effective international
regulation of pollution activities will arrive full-born overnight. On the contrary, only when enough
nations have expressed forcefully their
impatience with the present situation
will others act. Standards of conduct normally precede the development of the regimes to enforce them,
since the developed standards are
necessary for the achievement of a sufficient
consensus for action. Thus, speaking in the context of a proposed world habeus corpus, Dean Roscoe Pound wrote:
...It has been
assumed that to have world law, we must have a world state; that universal
political organization must come before universal law. May it not be rather
that universal law must precede the universal state which will undertake to put
any required force behind it.(Nte. 57)
In this way,
Canada has broken important new ground in the
battle to preserve the earth's ecology. Those who would continue exploitation of the earth's resources with
only slight reference to the
environment, are on notice that their depredations will not go permanently unchallenged.
As more States
come to the Canadian view of the environment,
and the right of all nations to prosecute polluters as offenders against the law of nations is increasingly
recognized, momentum may well develop
that will lead to the effective international
regulation so desperately needed.(Nte. 58) In the interim there may
be chaos, but it will be a chaos with
hope-hope that mankind may at last be
coming to grips with the crisis that threatens its very existence on this planet.
NOTES
*LL.B (1960).
Syracuse Univ., Candidate for LL.M. (International Law). June, 1972, New York Univ., member,
American Association of International
Law, American Bar (International Law Section) and New
York State Bar Associations, Association of the Bar of the City of New York.
(1) THE BIBLE,
Genesis, 1:28.
(2) FaIk, Toward
Equilibrium in the World Order System, 64 AM.
SOC. INT'L L. PROC 217-18(1970).
(3) Schacter and
Serner, Marine Pollution and Remedies, 65 AM. J. lNT'L L. 84 (1971).
(4) Stewart. The
Atmosphere and the Ocean. SCIENTIFIC AM., p. 76, (Sept., 1960).
(5) Schacter and
Serner, supra note 3. at 87. (6) The
inter-related components of a natural system are sometimes called an ecosystem. The sum total of all
ecosystems is the ecosphere. CaIdwell,
The Ecosystem a Criteria for Public Land
Policy, 10 NATURAL RESOURCES JOURNAL 203 (1970). One example of an ecosystem in action is the
inter-relationship of the ocean and the
atmosphere in determining the composition and actions of each other. See Stewart, The Atmosphere and the
Ocean, SCIENTIFIC AM., p. 76, (Sept.
1969). (7) Harwood, We Are Killing the
Sea Around Us, N.Y. Times (Magazine). p.
35 (Oct. 24, 1971).
(8) N. Y. Post. July
27. 1970, p. 4; N. Y. Times, (Oct. 23,1971) p.
9.
(9) N.Y. Post. (July
15. 1970) p. 9. (10) Schacter and
Serner, supra note 3, p. 89.
(11) Id. (12) The process was described by RACHEL
CARSON in her classic work, SILENT
SPRING, at p. 6:
It took hundreds of millions of years to
produce life that now inhabits the
earth-eons of time in which developing and evolving and diversifying life
reached a state of adjustment and balance with its surroundings. The
environment, rigorously shaping and directing the life it supported, contained
elements that were hostile as well as supporting. Certain rocks gave out
dangerous radiation; even within the light of the sun from which all life draws
its energy, were short wave radiations with power to injure. Given time - time
not in years but in millenia-life adjusts, and a balance has been reached. For
time is the essential ingredient; but in the modern world there is not time.
(13) Risk Conceded in
Offshore Rigs, N. Y. Times, Sept. 4, 1971); Spill Danger Said to Increase, N.
Y. Times (Dec. 16, 1969) p. 9.
(14) Henderson,
Economists v. Ecologists, N. Y. Times, (Oct. 24, 1971) F, p. 14.
(15) For an excellent
review of the effort of the international
community to control oil pollution of the oceans see Sweeny, Oil Pollution of the Oceans, 37 FORDHAM L. REV.
115 (1968).
(16) 9 INT. LEGAL
MATERIALS 45 (Jan. 1970). (17) 9 INT.
LEGAL MATERIALS 25 (Jan. 1970). (18)
Gold, Pollution of the Sea and International Law: A Canadian Perspective, 3 J. MAR. L.& COMM. 13,27,28
(1971).
(19) Prof. Gerald L.
Morris, as reported in 64 AM. SOC. lNT'L.
LAW, PROCEEDINGS 52 (1970).
(20) Schacter and
Serwer, supra note 3, at 89.
(21) Keating, North
For Oil, Manhattan Makes the Historic
Northwest Passage, 137 Nat. Geographic 374-76 (1970). (22) Gold, supra note 18, p. 32. (23) Hereinafter cited as ARCTIC WATERS
POLLUTION PREVENTION ACT, 9 INT. LEGAL
MATERIALS 543 (1970).
(24) Henkin, Arctic
Anti-Pollution: Does Canada Make or Break
International Law?, 65 AM. J. lNT'L. L., 131(1971). (25) 7 TEXAS lNT'L L. J. 3 (1971).
(26) For a thorough
study of the law see Wilkes, International Due
Process and Control of Pollution - The Canadian Arctic Waters Example. 2 J. MAR. L. & COMM. 499(1971).
(27) ARCTIC WATERS
POLLUTION PREVENTION ACT, Supra note 23,
3(1) and (2). (28) Sec. 2(h).
(29) CIVIL LIABILITY
6(1) (2), PENAL PROVISIONS 18, 19,
23, and 24. (30) Sec. 12.
(31) " ... it is
not an assertion of sovereignty, it is an
exercise of our desire to keep the Arctic free of pollution." Press conference of April 8, 1970, of Prime
Minister Trudeau, 9 INT. LEGAL MATERIALS
600 (1970). (32) Convention on the
Territorial Sea and The Contiguous Zone,
ART. 24. U.N. DOC. A/CONF. I3/L. 52, April 28, 1958.
(33) Beesley. Rights
and Responsibilities of Arctic Coastal
States: The Canadian View, 3 J. OF MAR. L. & COMM. 1 (1971); Pharand, Oil Pollution Control in the
Canadian Arctic, 7 TEXAS lNT'L J. 45
(1971).
(34) 9 INT. LEGAL
MATERIALS 598 (1970). (35) Department
of State Release. April 15, 1970. 64 AM. J. lNT'L. L. 928 (1970). (36) CANADIAN NOTE of April 16, 1970. 9
INT. LEGAL MATERIALS 607 (1970).
(37) RESTATEMENT
(SECOND) FOREIGN RELATIONS LAW OF THE UNITED
STATES, Ch. 2. 10 et seq.; George, Extraterritorial Application of Penal Legislation, 64 MICHIGAN L. R. 609
(1966); Cowles, University of
Jurisdiction Over War Crimes, 33 CALIF. L. REV. 177 (1945); Carnegie, Jurisdiction Over
Violations of the Laws and Customs of
War, 39 BRIT. Y. B. lNT'L. L. 402 (1963).
(38) George, supra
note 37, at 614. (39) Cowles, supra
note 37.
(40) Church v.
Hubbart, 2 CRANCH 187, 234 (1804).
(41) CANADIAN NOTE,
supra note 36.
(42) Mac Dougal, The
Hydrogen Bomb Tests and the International
Law of the Sea, 49 AM. J. INT'L. L. 356 1955).
(43) P.C.I.J., Series
A., No. 10 (1927).
(44) THE OIL IN
NAVIGABLE WATERS ACT of April 17. 1971.
(45) Id. 8(1O).
(46) Supra note 31,
at 601.
(47) Cowles, supra
note 37.
(48) Id.
(49) Id.
(50) Report of the
International Law Commission, 2nd Session,
1950.
(51) Bloom, Steps to
Define Offenses Against the Law of Nations,
18 W. RESERVE L. REV., 1572 (1967).
(52) Case No. 47,8
LAW REPORTS OF TRIALS OF WAR CRIMINALS 34, 35. (53) Report of the Preparatory Committee
for the United Nations Conference on the
Human Environment, 2nd Session, p. 16, 26
February, 1971, A/CONF. 48/P.C. 9.
(54) Report of the Ad
Hoc Committee to Study the Peaceful Uses of
the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, U.N. DOC, A/7230 (1968).
(55) Young Italian
magistrates are making aggressive use of criminal proceedings, in an attempt to alleviate
Italy's notorious pollution problems. N.
Y. Times, (News of the Week in Review)
May 23, 1971, p.8.
(56) Commerce Sec.
Maurice Stans of the United States has made it
perfectly clear, that "in the national interest, economic considerations must be considered before
setting environmental standards."
N. Y. Times, July 16, 1971, p. 62.
(57) As quoted in Bloom,
supra note 51 at 1593.
(58) Falk, supra note
2.
