March 13, 1978
Page 6607
A NEED TO REVIEW POLLUTION NEGOTIATIONS
Mr. MUSKIE. Mr. President, when the Third United Nations Conference on the Law of the Sea reconvenes March 28 in Geneva, negotiators may be faced with their last best chance to develop an effective legal regime for the protection of the global marine environment. Despite protracted negotiations and general agreement on draft treaty language on a number of issues, certain fundamental difficulties remain with respect to United States environmental interests at the Conference.
I feel a personal sense of urgency in resolving these difficulties because of two conceivable outcomes for the Conference:
First. Agreement on a fair and workable deep seabeds regime may compel states to rapidly formalize agreement on all other areas before the Conference. This rush to embrace consensus may result in a treaty which affords inadequate protection for certain U.S. interests in ocean law, not the least of which is marine environmental protection.
Second. A failure to reach accommodation between developed and developing states on deep seabeds issues may precipitate the collapse of the Conference, and with it negate a timely opportunity to build an adequate global system for the translation of our environmental aspirations into action.
In regard to the draft treaty's treatment of environmental issues, I see two major areas requiring our negotiators' persistent efforts in Geneva: First, a fundamental U.S. and global environmental objective for the Law of the Sea Conference has been to establish an enforcement regime for the control of polluting discharges from vessels, which goes beyond the existing, essentially self-policing and ineffective system based on flag-state enforcement. The draft treaty does not accomplish this.
Efforts on the part of our negotiators to achieve a balanced and effective system of port-state, coastal-state and flag-state jurisdiction extending beyond the territorial sea have been largely undone by one article. Article 229 of the draft treaty would enable flag states to preempt enforcement actions by coastal or port states for vessel discharge violations beyond the territorial sea except in certain serious cases. Proceedings by the United States to impose penalties for violations by foreign vessels beyond 12 miles off our coasts, for example, would have to be suspended should the vessel's state of ownership or registry institute proceedings of its own.
The codification of such a "right" in international law becomes particularly disturbing when one considers that the draft treaty would enable a flag state to preempt by virtually any action — including, one may assume a dismissal of charges. Not only would such a provision diminish the power of the United States to establish effective deterrents against routine and chronic polluting discharges by foreign vessels but this provision also serves to undermine what I had been led to believe was a major environmental objective at the negotiations — that of universal port-state enforcement.
Accordingly, I believe that one of the first, and most important matters for U.S. negotiators in Geneva should be to seek the deletion of article 229 from the draft treaty.
A second fundamental problem concerns the consistency of the pollution text of the draft treaty with powers established under existing United States pollution control laws. The U.S. Congress has fought long and hard to develop legislation affording a high degree of protection for U.S. coastal and marine areas. In particular, the 1972 Ports and Waterways Safety Act and the Water Act Amendments of 1972 and 1977 establish a sound jurisdictional basis to protect against environmental degradation. Implicit in such legislation is the sovereign right of the United States to set and enforce pollution control standards in our own territorial sea subject to the innocent passage of foreign vessels. In the case of prescriptive measures. we may, if necessary, set higher standards than those established internationally. With respect to enforcement, the United States may invoke civil and/or criminal sanctions for violations of our domestic regulations occurring in our territorial sea.
I would seriously question the wisdom of entering into an international agreement which could serve to undermine the effectiveness of such provisions.
As presently written, the pollution regime established by the draft treaty may be seen as preempting existing U.S. environmental legislation in certain important respects. States may not, for example, set design, construction, manning, or equipment standards for foreign ships in their territorial seas which are more stringent than generally accepted international rules or standards.
In addition, enforcement powers for violations of national and international discharge standards by foreign vessels in our territorial sea are weakened by the pollution text. Coastal States may enforce standards in this area only if it can be demonstrated that the violation was both serious and willful — thus placing the burden on the coastal State to impute a motive for the polluter.
The penalty provisions of the pollution text for violations of national laws and regulations, and applicable international rules and standards are also at variance with U.S. pollution control legislation. The draft treaty provides that only monetary penalties may be imposed for violations by foreign vessels beyond the internal waters of a coastal State. The United States could not. therefore, invoke criminal sanctions resulting in imprisonment for violations of certain key provisions of our domestic pollution control laws occurring in our own territorial seas.
I am particularly troubled by the effect the pollution text would have on the Clean Water Act of 1977 which was recently signed into law by the President. At the President's request, the Congress has been working with the administration to insure that certain aspects of this legislation which extend domestic jurisdiction over foreign flag vessels to the ocean beyond 12 miles achieve maximum consistency with applicable principles of international law.
There is full agreement within Congress and the administration, however, that notice and discharge penalty provisions of the Clean Water Act apply to foreign vessels for discharges of oil and other hazardous substances within our 12-mile territorial sea and contiguous zone. By narrowly limiting the enforcement powers of a coastal State within its territorial sea, from the standpoint of both arrest and penalty, the draft treaty would eliminate certain important deterrents in present U.S. law.
I have identified the more salient problems associated with the draft pollution text. Other environmental issues do remain, and will be a challenge to our negotiators. Ambiguities remain in the draft treaty with respect to the obligation of States to apply generally accepted international rules and standards. As has been the case in other discussions with representatives of our State Department, there are often no international standards. Those standards which do exist are inadequate. I am not willing to support any treaty which preempts U.S. rules for nonexistent or inadequate international rules and enforcement.
I recognize that I have outlined a rather ambitious agenda for our Law of the Sea negotiators. Moreover, the intense, perhaps timeless, preoccupation at the Conference with deep seabeds issues may provide a less than hospitable atmosphere for serious consideration of our environmental concerns. Nevertheless, I am convinced that should the United States bring the same dedication and persistence to bear on environmental issues as we have done for other important U.S. law of the sea interests, other nations will follow our lead and get down to the business of forging a sound regime for the protection of the global marine environment.
The alternative, which is preferable to submission of a single agreement which covers the spectrum of ocean issues, would be to negotiate pollution as a separate treaty. Not only would this result in a better ocean pollution agreement, but it would reduce the likelihood that a seabed agreement would be resisted as a result of environmental considerations.
Mr. President, I have raised these issues before in correspondence with Secretary of State Cyrus Vance. I ask unanimous consent that my letter to Secretary Vance dated March 21, 1977, be
printed in the RECORD.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
U.S. SENATE,
Washington, D.C.,
March 21, 1977.
Hon. CYRUS R. VANCE,
Secretary of State,
U.S. Department of State, Washington, D.C.
DEAR SECRETARY VANCE: I have followed closely, over these last five years, the progress at the Law of the Sea negotiations because of my deep interest in a variety of issues being considered. Since I have been actively involved in the development of U.S. environmental legislation and am the Chairman of the Environmental Pollution Subcommittee of the Senate Committee on Environment and Public Works. I have watched the formulation of the environmental provisions of the Treaty with particular interest.
I would like to bring you up to date on my position on the pollution issues involved in the Law of the Sea negotiations. I think my position is fully supported by the recent series of tanker accidents, the results of which may be long-term damage to marine ecosystems.
I am committed to seeing that this country takes measures to assure that our oceans and well-being do not continue to suffer this harm in the future. To this end, I have introduced legislation which would extend our pollution control jurisdiction out 200 miles, and I have also introduced other legislation to assure that effective standards are adopted for vessels entering United States ports or traveling near our coastline.
The Law of the Sea Treaty should be an instrument to establish a system to eliminate environmental degradation. Certainly such a Treaty should not include provisions which would impede our efforts to move in the direction of sound marine environmental policy. However, the current negotiating text does, in fact, include such provisions.
As such, the Revised Single Negotiating Text in the vessel source pollution area is not acceptable. In particular, it would preempt the rights of coastal states. like the United States. to establish and enforce standards relating to vessel source pollution of coastal areas. Another article would prevent the United States from promulgating national environmental requirements affecting vessels in the territorial sea with respect to design, construction, manning or equipment (and even other matters. such as discharges, if these are covered by international treaty unless coastal state standard setting is specifically authorized). Also, if a vessel were to cause substantial damage to the coast of Maine or any other seaboard state, the United States would not be able to enforce our own domestic laws or international laws against that vessel if the flag state were to commence enforcement proceedings.
If the above vessel source pollution provisions are permitted to remain, they would be inconsistent with existing United States environmental policy; they would be contrary to United States laws including the Ports and Waterways Safety Act and the Federal Water Pollution Control Act; and they could result in more pollution of United States coastal areas and the oceans. While other Members of the Senate and I will want to examine closely all aspects of any final agreed-upon Law of the Sea Treaty and would not, at this point, prejudge what our position on advise and consent to ratification should be, many of us will have serious reservations about the Treaty if the United States will be prevented from establishing and enforcing all standards in its territorial sea — that is, if the Treaty preempts existing U.S. environmental legislation. Many of us in Congress have worked long to secure enactment of meaningful United States environmental protection legislation. We would not be prepared to have those years of effort and success preempted by less than adequate international treaties.
Finally, with respect to the establishment of a 200 mile economic zone, it seems to me eminently sensible that the United States and other coastal states should have the right to enforce environmental standards for vessels within that economic zone. Such right should be exercisable when any pollution violations occur and should not be limited only to cases of imminent and severe environmental damage (since these are always difficult, if not impossible, to prove). Nor should this right be subject to preemption by flag states. In the past, our delegation, for reasons which I believe are not defensible, has not been prepared to advocate such extended enforcement. I believe that the United States delegation should insist on the inclusion of this right in the Treaty.
The Law of the Sea negotiations are important to the international community and the United States for a variety of reasons, not the least of which is the protection of the ocean environment. I hope that the United States delegation will vigorously seek the protection of coastal state environmental laws in order to assure fulfillment of that commitment.
Sincerely yours,
EDMUND S. MUSKIE, U.S.S..
Chairman, Subcommittee on Environmental Pollution..