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Reprinted from The International Lawyer, Vol.6, No. 4, October 1972
Page 706
Copyright 1972 American Bar Association
THE
INTERNATIONAL LAWYER
Are Ocean Polluters Subject
to Universal Jurisdiction -
Canada Breaks the Ice
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.
International Lawyer, Vol, 6, No, 4
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.
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