UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Liability for marine pollution by ships Young, Charles A. 1976

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata

Download

Media
831-UBC_1977_A64 Y68.pdf [ 11.17MB ]
Metadata
JSON: 831-1.0077636.json
JSON-LD: 831-1.0077636-ld.json
RDF/XML (Pretty): 831-1.0077636-rdf.xml
RDF/JSON: 831-1.0077636-rdf.json
Turtle: 831-1.0077636-turtle.txt
N-Triples: 831-1.0077636-rdf-ntriples.txt
Original Record: 831-1.0077636-source.json
Full Text
831-1.0077636-fulltext.txt
Citation
831-1.0077636.ris

Full Text

LIABILITY FOR MARINE POLLUTION BY SHIPS CHARLES A.B., U n i v e r s i t y LL.B., U n i v e r s i t y of A. YOUNG • . of Michigan, 1972 B r i t i s h Columbia, 1975 A T H E S I S ' S U B M I T T E D I N R E Q U I R E M E N T S M A S T E R P A R T I A L F U L F I L M E N r O F T H E FOR THE • DEGREE OF OF LAWS in THE FACULTY OF GRADUATE STUDIES Faculty of Law We accept t h i s t h e s i s as conforming to the required standard THE UNIVERSITY OF BRITISH COLOMBIA. November, 1976 Copyright Reserved Charles A. Young, 1976 In presenting t h i s t h e s i s i n p a r t i a l f u l f i l m e n t of the requirements for an advanced degree at the U n i v e r s i t y of B r i t i s h Columbia, I agree that the Li b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r reference and study. I further agree that permission for extensive copying of t h i s t h e s i s far s c h o larly purposes may be granted by the Head' o f my Department or by h i s representatives. It i s understood that copying or p u b l i c a t i o n of t h i s thesis f o r f i n a n c i a l 'gain s h a l l not be allowed without my wr i t t e n permission. Faculty of Law The U n i v e r s i t y of B r i t i s h Columbia 2075 Wesbrook Place Vancouver, Canada V6T 1W5 November 5, 1976 ABSTRACT One aspect o f the i n t e r n a t i o n a l problem of marine p o l l u t i o n i s p o l l u t i o n by ships. As an i n t e r n a t i o n a l problem, p o l l u t i o n by ships demands action at a l e v e l above the na t i o n a l . Many i n t e r n a t i o n a l agreements have been reached, but th i s t h e s i s argues that a comprehensive l i a b i l i t y regime i s now necessary. To find the p r i n c i p l e s upon which such a l i a b i l i t y regime should be based, decisions of i n t e r n a t i o n a l t r i b u n a l s , acts of state p r a c t i c e , and e x i s t i n g conventional arrangements are canvassed. "Reasonableness" i s found to be the c e n t r a l c h a r a c t e r i s t i c , and is given more s p e c i f i c meaning through the survey. A convention i s proposed i n general o u t l i n e only, but a r e g i o n a l framework i s suggested, and p r i n c i p l e s on which to base the convention are summarized. i i TABLE OF CONTENTS Chapter I 1 Scope of Study 3 Footnotes Chapter I 6 Chapter TJ 8 Harmon Doctrine 8 Absolutist 10 Equitable U t i l i z a t i o n 11 Conclusion • 12 Footnotes Chapter II 14 Chapter I I I 17 T r a i l Smelter Tribunal Decision 17 The Lake Lanoux A r b i t r a t i o n 24 Corfu Channel 33 Nuclear Test Case 35 Conclusion 41 Footnotes Chapter III 43 Chapter I? 56 Fukuryu Maru A f f a i r 56 Cherry Point 58 S t e l l a Maris 59 Torrey Canyon 60 Circe 64 Conclusion 66 Footnotes Chapter IV 67 Chapter V 74 i i i L i s t of Factors 77 Substance 78 Circumstances Excusing L i a b i l i t y 91 Person Liable 97 To Whom I l l Conclusion 113 Footnotes Chapter V 115 Chapter VI 136 J u s t i f i c a t i o n .136 Regionalism 138 Problems 145 The Regime 150 Footnotes Chapter V I 155 Bibliography 164 A r t i c l e s , Speeches, and Notes 164 Books and Monographs 168 Cases 170 Statutes and Conventions ....172 i v ACKNOWIEDGBME NT I wish to thank my advisors, Professors Bourne, McRae, and Zacher, f o r the guidance and suggestions that they have provided. The Donner Foundation and the Law Foundation of B r i t i s h Columbia have both provided funding without which t h i s study could not have been undertaken. For general i n s p i r a t i o n and ideas, I owe much to my o f f i c e partner, Ronald S. Ashton. And my deepest thanks are to my friend, and wife, Lucy Fox, who did everything a f r i e n d could do to help. C H A P T E R I INTROnJCTION M a r i n e p o l l u t i o n i s i n c r e a s i n g l y r e c o g n i z e d a s a m a j o r i n t e r n a t i o n a l p r o b l e m , a n d p a r t i c u l a r m e a s u r e s , t o d e a l w i t h p a r t i c u l a r a s p e c t s , h a v e h a d a d e g r e e o f s u c c e s s . T h e 1 9 5 4 C o n v e n t i o n f o r t h e P r e v e n t i o n o f P o l l u t i o n 2 o f t h e S e a b y O i l w i t h i t s c o n c e r n f o r i n t e n t i o n a l d i s c h a r g e i s m o s t n o t a b l e . B u t t h e p r e v e n t i o n o f a c c i d e n t a l d i s c h a r g e h a s a l s o b e e n a t o p i c o f i n t e r n a t i o n a l c o n c e r n a n d l e g i s l a t i o n . S u c h a g r e e m e n t s a s t h e C o n v e n t i o n g o n S a f e t y o f L i f e a t S e a , e s p e c i a l l y i n t h e r e v i s i o n s o f I 9 6 0 , t h e C o n v e n t i o n 4 5 f o r t h e P r e v e n t i o n o f C o l l i s i o n s a t S e a , t h e C o n v e n t i o n o n L o a d L i n e s , a n d t h e C o n v e n t i o n o n t h e C a r r i a g e o f G o o d s b y S e a a l l e v i n c e a n i n t e r e s t i n p r e v e n t i n g a c c i d e n t a l d i s c h a r g e s . I n f a c t , t h e m o s t e f f e c t i v e m e a s u r e s f o r p r e v e n t i n g a c c i d e n t a l d i s c h a r g e i n t h e s e a - l a n e s a r e m a d e p u r s u a n t t o t h e 7 S O I A S n a v i g a t i o n r u l e s . B u t t h e p r i m a r y a i m s o f e a c h o f t h e s e c o n v e n t i o n s a r e o t h e r t h a n d i s c h a r g e p r e v e n t i o n , a n d t h o s e a i m s , o f p r e s e r v a t i o n o f l i f e , o r c a r g o , a r e n o t n e c e s s a r i l y c o i n c i d e n t w i t h s u c h p r e v e n t i o n . T h e d i v e r g e n c e g i s r e c o g n i z e d i n t h e l i a b i l i t y c o n v e n t i o n s , a n d i t s e e m s u n r e a l i s t i c t o r e l y o n c o n v e r g e n c e i n a l l m a t t e r s i n t h e f u t u r e : m e a s u r e s d e s i g n e d e x p l i c i t l y f o r a c c i d e n t a l d i s c h a r g e p r e v e n t i o n s h o u l d b e f o r m u l a t e d . O f a l l t h e m e a s u r e s 9 r e l e v a n t t o p r e v e n t i o n , o n l y t h e 1 9 7 1 a m e n d m e n t s t o t h e 1 9 5 4 c o n v e n t i o n , d e a l i n g w i t h t a n k s i z e a n d p l a c e m e n t , a r e d i r e c t l y a i m e d a t a c c i d e n t a l d i s -c h a r g e . T h e a r g u m e n t a g a i n s t c o n c e r n f o r a c c i d e n t a l s p i l l a g e h a s b e e n s i m p l e : i t i s r e l a t i v e l y u n i m p o r t a n t , s o e f f o r t m u s t b e c o n c e n t r a t e d e l s e w h e r e . B u t t h i s a r g u m e n t l o s e s f o r c e f o r t h r e e r e a s o n s . F i r s t , e f f o r t s f o r m o r e d i r e c t c o n t r o l a r e b e c o m i n g l e s s a n d l e s s e f f i c i e n t . T h e l a t e s t c o n v e n t i o n , t h a t o f 1 9 7 3 , e x c e p t i n d e t e c t i o n t e c h n i q u e s , d i f f e r s l i t t l e f r o m p r o v i s i o n s i n t h e 1 9 7 1 L o n d o n O c e a n D u m p i n g C o n v e n t i o n , 1 0 a n d t h e l a t e s t a m e n d m e n t s t o t h e 1 9 5 4 C o n v e n t i o n . 1 1 S e c o n d , t h e a r g u m e n t i s r e s t r i c t e d t o o i l , u p t i l l n o w t h e m a j o r p o l l u t a n t b e i n g c a r r i e d i n o c e a n t r a n s p o r t . O i l h a s s e v e r a l p e c u l i a r q u a l i t i e s : i t i s b i o - d e g r a d a b l e , a n d t h e r e f o r e w i l l n o t p e r s i s t 1 2 i f d u m p e d i n s m a l l e r a m o u n t s . F u r t h e r , a l l b u t t h e l i g h t e r f r a g m e n t s a r e r e l a t i v e l y n o n - t o x i c , s o c a r r i a g e o f m o s t o i l , w h e t h e r c r u d e o r b u n k e r , d o e s 1 3 l i t t l e d a m a g e t o m a r i n e l i f e a n d t h o s e w h o e a t i t . A s m a r i t i m e s h i p p i n g 1 4 o f o t h e r s u b s t a n c e s w h i c h d o n o t s h a r e t h e s e f o r t u n a t e p r o p e r t i e s g r o w s , c o n c e r n f o r a c c i d e n t a l s p i l l a g e m u s t i n c r e a s e . W h i l e t h e p e r c e n t a g e o f t h e t o t a l p o l l u t a n t " l o a d " o n t h e o c e a n m a y r e m a i n l o w , t h e p r o s p e c t i v e d a m a g e w o u l d r i s e . T h i r d , i n c r e a s e d k n o w l e d g e h a s s h o w n t h a t t r a c e a m o u n t s o f p r e s e n t l y i n t r o d u c e d m a t e r i a l s m a y h a v e h a r m f u l e f f e c t s n e v e r b e f o r e , 1 5 s u s p e c t e d . T h e a r g u m e n t f o r a l i a b i l i t y r e g i m e c a n b e m a d e o n t w o g r o u n d s . F i r s t , a l i a b i l i t y r e g i m e s e e m s m o r e l i k e l y t o g a i n i n t e r n a t i o n a l a c c e p t a n c e . T h e 1 9 6 9 C o n v e n t i o n o n C i v i l L i a b i l i t y f o r O i l P o l l u t i o n D a m a g e i s i n f o r c e , 1 6 w h e r e a s t h e 1 9 6 7 a m e n d m e n t s t o t h e 1 9 5 4 C o n v e n t i o n a r e n o t . T h e d i f f i c u l t i e s o f a t t a i n i n g p a r t i c u l a r s p e c i f i c a g r e e m e n t o n a l l t h s p o i n t s i n h e r e n t i n a p r e v e n t i v e r e g i m e s e r v e t o d e l a y . B y c o n t r a s t , t h o s e p o i n t s n e e d n o t b e d e c i d e d o n i n t h e c a s e o f a l i a b i l i t y r e g i m e , w h e r e t h e y m a y b e l e f t t o t h e a d j u d i c a t i n g b o d y . T h u s , t h e b e n e f i t s m a y b e e n j o y e d e a r l i e r . S e c o n d , l e s s i n f o r m a t i o n i s n e e d e d a t t h e r e g i m e ' s i n c e p t i o n . W h e n p r e s e n t m o n i t o r i n g p r o v i d e s n e w i n f o r m a t i o n , a n y s y s t e m , w h e t h e r o f p r e v e n t i o n o r l i a b i l i t y , w i l l h a v e t o c h a n g e . A s y s t e m o f p r e v e n t i v e m e a s u r e s w o u l d r e q u i r e n e w a g r e e m e n t ; a s y s t e m o f l i a b i l i t y w o u l d r e q u i r e o n l y t h a t t h e a d j u d i c a t i n g b o d y r e c o g n i z e t h e n e w i n f o r m a t i o n a n d i m p l e m e n t i t . 3 B u t l a w b u i l d s o n p r e v i o u s l a w , a n d a s t u d y o f a n e w l i a b i l i t y r e g i m e m u s t d e p e n d o n w h a t h a s g o n e b e f o r e . H o w e v e r , t h e r e i s o n e p o s s i b l e d e p a r t u r e h e r e f r o m p r e v i o u s w o r k : t h e d e f i n i t i o n o f l i a b i l i t y . I t i s n o t u s e d i n t h e n a r r o w s e n s e o f " c o s t s i m p o s e d b y a n a u t h o r i t a t i v e a d j u d i c a t o r , " b u t i n t h e w i d e r s e n s e o f " b e a r i n g o f c o s t s . " T h e d i f f e r e n c e i s s m a l l , b u t i t b e c o m e s i m p o r t a n t w h e n d e a l i n g w i t h s u c h t o p i c s a s t h e OECD*s " P o l l u t e r -1 7 P a y s P r i n c i p l e " w h i c h m a y n o t c o m e w i t h i n l i a b i l i t y a s i t i s l e g a l l y d e f i n e d o r d i n a r i l y . I n g e n e r a l t h o u g h t h i s s t u d y w i l l f o c u s p r i n c i p a l l y o n i n t e r -n a t i o n a l l e g a l e x p e r i e n c e w i t h p o l l u t i o n , p r i n c i p a l l y t h e m a r i n e , a n d w i l l c o n c e r n i t s e l f w i t h t h e f o l l o w i n g a r e a s . F i r s t , w h a t i s t h e i n t e r n a t i o n a l l a w o n m a r i n e p o l l u t i o n ? W h i l e " p o l l u t i o n " h a s b e c o m e a n e x p l i c i t t o p i c o f i n t e r n a t i o n a l i n t e r e s t r e l a t i v e l y r e c e n t l y , v a r i o u s p o l l u t i o n p r o b l e m s h a v e b e e n a d d r e s s e d , a n d , t h o u g h t h e r e e x i s t s n o c l e a r c o d i f i c a t i o n , s u c h a b o d y o f l a w s h o u l d h a v e p r i n c i p l e s i n h e r e n t i n i t . S e c o n d , a r e t h e r e c o n t r a d i c t i o n s or i n c o n s i s t e n c i e s i n t h a t b o d y o f l a w w h i c h m u s t b e f a c e d a n d c h a n g e d o r r a t i o n a l i z e d i n f o r m u l a t i n g a n e w r e g i m e ? A n d t h i r d , g i v e n t h e e x p e r i e n c e i n i m p l e m e n t a t i o n o f o t h e r r e g i m e s , w h e t h e r l i a b i l i t y r e g i m e s o r o t h e r t y p e s o f m a r i n e r e g i m e s , a r e t h e r e a v e n u e s o r m e t h o d s t o b e p r e f e r r e d i n i m p l e m e n t i n g a n e w r e g i m e ? I n a n s w e r i n g t h e s e q u e s t i o n s , e x i s t i n g m o d e s o f t h o u g h t o n , a n d d i v i s i o n s o f , i n t e r n a t i o n a l m a r i n e p o l l u t i o n w i l l b e f o l l o w e d . C h a p t e r I I w i l l s e r v e a s a n i n t r o d u c t i o n t o t h e a r e a , c o v e r i n g t h e t h r e e t r a d i t i o n a l s c h o o l s o f t h o u g h t o n i n t e r n a t i o n a l p o l l u t i o n . I t w i l l b e s u g g e s t e d t h a t , a f t e r c a r e -f u l t h o u g h t , o n e o f t h e s c h o o l s c a n b e d i s m i s s e d , a n d t h e t w o o t h e r s a r e r e a l l y t w o w a y s o f s t a t i n g t h e s a m e p r o p o s i t i o n , a l b e i t w i t h d i f f e r e n t e m p h a s e s . 4 C h a p t e r i n w i l l d e a l w i t h t h e m o s t c o m m e n t e d u p o n c u s t o m a r y l a w , d e c i s i o n s o f t r i b u n a l s . U n f o r t u n a t e l y , o n e c a n n o t r e s t r i c t t h e i n v e s t i -g a t i o n o f c u s t o m a r y i n t e r n a t i o n a l l a w t o t h a t o f t h e s e a a l o n e . T h e r e i s a d e a r t h o f s o u r c e s . O n e c o u l d e n d l e s s l y p u r s u e t h e r a m i f i c a t i o n s o f t h e 1 8 N u c l e a r T e s t s C a s e , b u t e v e n t h a t i s l i m i t e d s i n c e t h e m a j o r i t y o f t h e c o u r t n e v e r r e a c h e d t h e s u b s t a n c e o f t h e d i s p u t e i n a n y b u t a p r e l i m i n a r y w a y . S o , o n e m u s t c o n s i d e r t h e v a r i o u s i n s t a n c e s i n w h i c h l i a b i l i t y h a s b e e n i m p o s e d , i n a r e a s o t h e r t h a n t h e m a r i n e . E x p a n s i o n t o a r e a s b e y o n d t h e o c e a n i t s e l f i s s a n c t i o n e d i n t h e l e a d i n g 1 9 c a s e , t h e T r a i l S m e l t e r A r b i t r a t i o n , i t s e l f d e r i v e d f r o m t h e p r i n c i p l e s r e g a r d i n g r i v e r s a n d p r i n c i p l e s r e g a r d i n g a i r . I f t h e e n t i r e " b i o s p h e r e " i s o n e w h o l e , t h i s m a k e s s e n s e , f o r t h e r u l e s f o r o n e a r e a s h o u l d d e r i v e f r o m t h e s a m e p r i n c i p l e s a s t h o s e f o r a n o t h e r . I t w i l l b e f o u n d t h a t i n t h e " b a l a n c i n g " t h a t t h e l a w r e q u i r e s , i n d i c a t i o n s a r e f o u n d o f w h a t l e v e l s o f d i f f e r e n t r i s k s a r e t o l e r a b l e , a n d w h a t l e v e l s d e m a n d d a m a g e s . C h a p t e r I V w i l l d e a l w i t h a n o t h e r s o u r c e o f c u s t o m a r y l a w , s t a t e p r a c t i c e . I t w i l l b e l i m i t e d t o f o u r i n s t a n c e s , e a c h d i r e c t l y r e l a t e d t o t h e s e a . S p e c i a l i n t e r e s t s o f c o a s t a l s t a t e s , a n d l i m i t s o n t h e i r r i g h t s t o p r o t e c t t h e m s e l v e s f r o m e n v i r o n m e n t a l d a m a g e w i l l b e d i s c u s s e d . I n a d d i t i o n , a s u b s t a n c e o t h e r t h a n o i l w i l l b e c o n s i d e r e d , a n d t h e c o n c e p t o f r e g i o n s o r s p e c i a l a r e a s w i l l b e i n t r o d u c e d . C h a p t e r V w i l l d i s c u s s t h e l a r g e s t b o d y o f l a w , t h e c o n v e n t i o n a l l a w . F i r s t , t h e r e i s a g e n e r a l i n t r o d u c t i o n t o t h e a n a l y s i s , w i t h a t a b l e o f c o n s i d e r a t i o n s t o b e b a l a n c e d , t o p r o v i d e a n o v e r v i e w . T h e n , t o m a k e t h e m a s s o f m a t e r i a l m a n a g e a b l e , i t w i l l b e b r o k e n i n t o f o u r t o p i c s : 5 1. S u b s t a n c e : W h a t s u b s t a n c e s o r a c t i v i t i e s s h o u l d a t t r a c t l i a b i l i t y ? 2 0 2 . U n d e r w h a t c i r c u m s t a n c e s : A r e t h e r e s t a n d a r d s w h i c h o u g h t t o b e m e t o r o c c u r r e n c e s w h i c h m i g h t a r i s e , e x c u s i n g l i a b i l i t y ? 3 . F r o m w h o m : W h o s h o u l d b e a r t h e l i a b i l i t y , i f i t i s n o t t o b e i m p o s e d o n a l l a c t o r s i n t h e a c t i v i t y , a n d w h a t d u t i e s s h o u l d b e i m p o s e d a m o n g a c t o r s ? 4 . T o w h o m : % o s h o u l d r e c e i v e t h e l i a b i l i t y p a y m e n t ? W h i l e t h e p r i m a r y p u r p o s e i n i n t r o d u c i n g t h e s e c a t e g o r i e s i s t o o r g a n i z e t h e c o n v e n t i o n a l l a w , t h e y a r e a l s o t h e e l e m e n t s t h a t m u s t b e f o u n d i n a l i a b i l i t y r e g i m e , a n d , a s s u c h , s h o u l d b e k e p t i n m i n d w h i l e r e a d i n g d i s c u s s i o n s o f o t h e r s o u r c e s o f l a w . T h e r e r e m a i n s t h e p r o b l e m o f i m p l e m e n t a t i o n . W h i l e t h e a f o r e s a i d c h a p t e r s d e a l w i t h t h e f i r s t t w o t o p i c s o f t h i s d i s c u s s i o n s , w h a t i s t h e l a w , a n d d o e s i t c o n t a i n i n c o n s i s t e n c i e s , C h a p t e r V I w i l l d e a l w i t h p r o b l e m s o f i m p l e m e n t a t i o n . A f t e r f i r s t j u s t i f y i n g a s e p a r a t e r e g i m e f o r m a r i n e l i a b i l i t y , i t p r o p o s e s a p a r t i a l s o l u t i o n i n t h e e m e r g i n g c o n c e p t o f r e g i o n a l i s m . W i t h i n t h a t s e c t i o n i s a s h o r t d i s c u s s i o n o f t h e p r o b l e m s o f e n f o r c e m e n t o f i n t e r -n a t i o n a l j u d g m e n t s . . N e x t i s a n e x a m i n a t i o n o f t h e p r o b l e m s t r a d i t i o n a l l y a s s o c i a t e d w i t h m a r i t i m e a d m i n i s t r a t i o n . T h e t h e s i s c o n c l u d e s w i t h a p r o p o s a l f o r a l i a b i l i t y r e g i m e . 6 F O O T N O T E S C H A P T E R I ^-See, f o r e x a m p l e , t h e p r e a m b l e t o t h e 1 9 7 3 C o n v e n t i o n o n t h e P r e - v e n t i o n o f t h e P o l l u t i o n o f t h e S e a b y S h i p s a n d A i r c r a f t , ( 1 9 7 3 ) 1 2 I n t e r n a t i o n a l L e g a l M a t e r i a l s 1 3 1 9 . 2 ( 1 9 5 4 ) 1 2 U S T 2 9 8 9 ; T I A S # 4 9 0 0 ; 3 2 7 U N T S 3 . 3 ( 1 9 6 2 ) 1 4 U S T 6 2 3 ; T I A S # 5 1 7 2 . 4 ( 1 9 6 4 ) 1 6 U S T 7 9 4 ; T I A S # 5 8 1 3 ; 5 3 6 U N T S 2 7 , a n d s e e E . J . N e w b o u l d , "New I n t e r n a t i o n a l R u l e s o f t h e R o a d , " ( 1 9 6 5 ) 1 9 J A G J o u r n a l 1 3 5 . 5 ( 1 9 7 3 ) 1 2 I n t e r n a t i o n a l L e g a l M a t e r i a l s 7 3 5 . 6 ( 1 9 6 6 ) 1 8 U S T 1 8 5 7 ; T I A S # 6 3 3 1 . S e e L e s t e r K u s h n e r , " T h e 1 9 6 6 L o a d L i n e C o n v e n t i o n , " ( 1 9 7 2 ) 3 J o u r n a l o f M a r i t i m e L a w a n d C o m m e r c e 3 7 5 . 7 ( 1 9 3 7 ) 1 3 0 L N T S 1 5 5 . S e e A d m i r a l t y L a w I n s t i t u t e , " S y m p o s i u m o n C a r r i a g e o f G o o d s b y W a t e r , " ( 1 9 7 1 ) 4 5 T u l a n e L a w R e v i e w 6 9 7 . 8 S 0 L A S , R u l e s 1 7 - 2 6 , ( 1 9 6 2 ) 1 4 U S T 6 2 3 ; T I A S # 5 1 7 2 . q I n f r a , C h a p t e r V . 1 0 ( 1 9 7 2 ) 1 1 I n t e r n a t i o n a l L e g a l M a t e r i a l s 1 2 9 1 . n ( 1 9 7 2 ) 1 1 I n t e r n a t i o n a l L e g a l M a t e r i a l s 2 6 7 . • ^ T h e r e s e e m t o b e t w o c r i t i c a l f a c t o r s : f i r s t , t h e o i l s u r f a c e , t h e l a r g e r t h e s u r f a c e t h e m o r e b a c t e r i a c a n d i g e s t ; s e c o n d , t e m p e r a t u r e , t h e b a c t e r i a w o r k i n g m u c h m o r e s l o w l y i n l o w e r t e m p e r a t u r e s . T h e f o r m e r i s a f a c t o r i n l a r g e s p i l l s i n h e a v y s e a s o f c r u d e o r h e a v y b u n k e r o i l , f o r t h e w i n d a n d w a v e a c t i o n f o r m s a n " a e r o s o l , " a s p o n g e - l i k e m i x t u r e o f a i r , w a t e r , a n d o i l , t h e r e b y d e c r e a s i n g t h e s u r f a c e - a r e a d r a m a t i c a l l y , a n d s l o w i n g d i g e s t i o n . T h e s e c o n d i s t h e m a j o r c o n c e r n i n t h e A r c t i c , a n d o n e o f t h e a r g u m e n t s f o r t h e A r c t i c W a t e r s P o l l u t i o n P r e v e n t i o n A c t . - * - 3 L a n c e B . W o o d , " A n I n t e g r a t e d I n t e r n a t i o n a l a n d D o m e s t i c A p p r o a c h t o C i v i l L i a b i l i t y f o r V e s s e l - S o u r c e O i l P o l l u t i o n , " ( 1 9 7 5 ) 7 J o u r n a l o f M a r i t i m e  L a w a n d C o m m e r c e 1 . 1 4 T h e m o s t n o t a b l e e x a m p l e i s p r o b a b l y t h a t o f r a d i o a c t i v e s u b s t a n c e s . W h i l e m u c h o f t h e c o n c e r n s h o w n i n t h e t r e a t i e s d e a l i n g w i t h t r a n s p o r t o f r a d i o a c t i v e m a t e r i a l s i s f o r t h e l i k e l i h o o d o f d e t o n a t i o n , t o x i c i t y h a s l o n g b e e n r e c o g n i z e d a s a p r o b l e m . S e e M o n a c o S y m p o s i u m o n N u c l e a r L i a b i l i t y . I ^ S e e , f o r e x a m p l e , " M i n a m a t a " d i s e a s e , a n d t h e e f f e c t s o f t r a c e a m o u n t s o f o t h e r h e a v y m e t a l s . 1 6 U N D o c A / l e g x x v i i / 3 . 7 1 7 " O E C D D e c l a r a t i o n : t h e P o l l u t e r - P a y s P r i n c i p l e , " ( 1 9 7 4 ) 1 3 I n t e r - n a t i o n a l L e g a l M a t e r i a l s 2 3 4 . 1 8 ( J u r i s d i c t i o n a n d M e r i t s ) { " l 9 7 4 * } I n t e r n a t i o n a l C o u r t o f J u s t i c e  R e p o r t s . 1 9 ( I n t e r i m ) ( 1 9 3 8 ) 3 U N R I A A 1 9 3 5 ; ( 1 9 3 9 ) 3 3 A m e r i c a n J o u r n a l o f I n t e r - n a t i o n a l L a w 1 8 2 . ( F i n a l ) ( 1 9 4 1 ) U N R I A A 1 9 3 8 ; 3 5 A m e r i c a n J o u r n a l o f I n t e r n a t i o n a l L a w 6 8 4 . 2 0 S i n c e a l l o f t h e l i a b i l i t y r e g i m e s a s s u m e s o m e f o r m o f " s t r i c t l i a b i l i t y , " o n e i s r e d u c e d t o a d i s c u s s i o n o f t h e c i r c u m s t a n c e s i n w h i c h l i a b i l i t y d o e s n o t a r i s e . 8 C H A P T E R I I S C H O O L S O F T H O U G H T T h r e e s c h o o l s o f t h o u g h t e m e r g e i n c o n s i d e r a t i o n o f t h e i n t e r n a t i o n a l l a w o f p o l l u t i o n . T h e f i r s t , t h e " H a r m o n D o c t r i n e , " w i l l b e f o u n d t o h a v e l i t t l e s u p p o r t , a n d i s c o v e r e d m a i n l y f o r i t s h i s t o r i c a l i m p o r t a n c e . T h e s c h o o l s r e m a i n i n g , t h e " a b s o l u t i s t s , " c l a i m i n g t h a t a n y " p o l l u t i o n " o f t h e n a t u r a l e n v i r o n m e n t a c r o s s f r o n t i e r s g i v e s r i s e t o l i a b i l i t y , a n d t h e " e q u i t a b l e u t i l i z a t i o n " s c h o o l , c l a i m i n g t h a t l i a b i l i t y s h o u l d b e i m p o s e d o n l y a f t e r b a l a n c i n g o f a l l r e l e v a n t f a c t o r s , s e e m , a t f i r s t , t o b e o p p o s e d . B u t i t w i l l b e s e e n t h a t t h e c a u s e o f t h e a p p a r e n t d i f f e r e n c e i s t h e p r o b l e m o f " f i n e - t u n i n g , " t h e t r e a t m e n t o f c a s e s w h i c h a r e n o t c l e a r l y t o b e p r o -h i b i t e d o r c l e a r l y t o b e e n c o u r a g e d . H a r m o n D o c t r i n e I n t h e 1 8 8 0 ' s a n d L S ^ ' s , a c o m b i n a t i o n o f a s e r i e s o f d r y y e a r s a n d i n c r e a s e d s e t t l e m e n t i n t h e S o u t h w e s t e r n U n i t e d S t a t e s l e d t h e U n i t e d S t a t e s t o d i v e r t m o r e w a t e r f r o m t h e R i o G r a n d e t h a n h a d b e e n c u s t o m a r y . T h i s w a s d o n e f r o m p o r t i o n s o f t h e r i v e r e n t i r e l y w i t h i n t h e U n i t e d S t a t e s , b u t i t d e p r i v e d M e x i c a n s d o w n s t r e a m o f t h e u s e o f w a t e r a n d c a u s e d c r o p d a m a g e . M e x i c o c o m p l a i n e d f o r m a l l y t o t h e U n i t e d S t a t e s S e c r e t a r y o f S t a t e . I n a n o p i n i o n o n t h e v a l i d i t y o f M e x i c o ' s c o m p l a i n t , A t t o r n e y - G e n e r a l J u d s o n H a r m o n s t a t e d t h a t " J t^he f u n d a m e n t a l p r i n c i p l e o f i n t e r n a t i o n a l l a w i s t h e a b s o l u t e s o v e r e i g n t y o f e v e r y n a t i o n , a g a i n s t a l l o t h e r s , w i t h i n i t s o w n t e r r i t o r y . " 1 H e c o n c l u d e d f r o m t h i s t h a t M e x i c o c o u l d n o t c o m p l a i n o f a c t s d o n e w i t h i n t h e U n i t e d S t a t e s , e v e n t h o u g h e f f e c t s w e r e f e l t i n M e x i c o T h e a r g u m e n t s a g a i n s t t h e H a r m o n D o c t r i n e a r e f o u r . F i r s t , i t i s n o t c l e a r t h a t t h e o p i n i o n i t s e l f s t a n d s f o r c o m p l e t e t e r r i t o r i a l p r e d o m i n a n c e . 9 In the opinion, Attorney-General Harmon noted: It is not suggested that the injuries complained of are or have been in any measure due to wantonness or wastefulness in the use of water or to any design or intention to injure. The inference is that wanton, wasteful, or intentionally injurious use of water would give rise to liab i l i t y under international law. While this criterion for l i a b i l i t y is narrower than any modern test, i t dees show that territorial sovereignty was never given the primacy sometimes thought.4 Second, subsequent history has shown that, even in the Mexican-American border area, State practice has not followed the doctrine. When agricultural practices in the area, in the I960*s, caused the salinity of the water of the Colorado River to rise, making the water unusable for Mexican irrigation, the United States agreed to negotiate and in the negotiation agreed to desalin-ation steps to be taken in the United States.5 This act is not enough to establish a rule of international law through state practice: i t is an iso-lated event, and the intentions of the parties were not unambiguous. But it is evidence of the weakness of the doctrine. Third, a country has authority to regulate activities outside its borders c i f those activities have substantial effects within them. While..the furthe.st, and most debated, extension of this proposition is in the field of anti-trust law, it does have application in environmental law, for i t recognizes that effects in one country may override the interest of another country in its territorial sovereignty. Finally, the doctrine flies straight in the face of Principle 2 1 of the Stockholm Declaration on the Human Environment.9 Whatever the meaning of that principle, 1 0 it at least destroys territorial sovereignty as a defence to li a b i l i t y for transnational pollution. 1 0 Absolutist This is the position chiefly associated with Professor L.P.E. Goldie. 1 1 He argues that two kinds of maritime activity have now emerged: "those 12 that are unusually dangerous and those that are unusually vulnerable."-"' As a consequence he sees emerging " a principle. . .whereby an enterprise, which in the course of its business engenders the possibility of injuries. . . 1 3 is liable for damage from the risks i t creates." He bases this on the principle of channelling, the placement of liab i l i t y exclusively on one actor, found in the nuclear material conventions,14 and on three cases, Trail Smelter,15 Lake Lanoux,16 and Corfu Channel.17 Somewhat more content can be given to this concept of "risk" by exam-ination of the domestic analogue Professor Goldie finds in American law, that of the ultra-hazardous activity. A municipal system has sufficient authority to prohibit ultra-hazardous activities which are:not socially beneficial (emphasis added).18 Professor Goldie argues that prohibition is not possible in an international context, so imposition of li a b i l i t y must be substituted. But the change to liability from prohibition should retain the f u l l formulation. Thus he is speaking of absolute liab i l i t y for activities which cannot be justified socially. Some Problem exists in making the social calculus where the risk is to be borne in one country and the benefit enjoyed in another,19 but given that i t can be done to some acceptable level of accur-acy, this problem merges into that seen by the "equitable utilization" school. 8 0 This limitation is overlooked, for the rest of his argument is concerned largely with carriage of nuclear substances, where the danger is great, without a corresponding increase in social benefit. 2 1 11 Much effort has been expended applying a part of the formulation, the 2 2 part dealing with the ultra-hazardous activity. But i t should be seen that part of the definition of such an activity is a lack of social u t i l i t y . This thesis will attempt to extend that argument, claiming that the truly important comparison is of total u t i l i t y under different l i a b i l i t y regimes: for example, strict, absolute, fault, or none. Equitable Utilization Given that activities with a high level of risk and a low level of benefit attract absolute li a b i l i t y under Professor Goldie's scheme, there arises the question of how to consider other activities. Classifying them 2 3 only as "ultra-hazardous" or "non-ultra-hazardous" seems unnecessarily restrictive. It acknowledges only one type of liability regime, although 2 4 there is an entire range of possibilities. Further, it provides no treat-ment for other activities at a l l , when some form of liability regime might be appropriate. Certainly, there must be activities which are desirable, and thus not deserving of prohibition or its lia b i l i t y equivalent, but which should be maintained at a lower level, or in different places. The line of thought sometimes called "equitable utilization" or "reason-able" use" avoids these problems. Although i t is sometimes characterized as opposing the "absolutist" position, i t can now be seen that only its emphasis is different. Instead of concentrating on the "ultra-hazardous activity," i t focuses on the method used in deciding what is ultra-hazardous and how to treat a l l other activities. The method chosen is a balancing of factors. Article II of the Draft 2 5 Rules for Marine Pollution of Continental Origin l i s t s factors to be con-sidered, which may be grouped into social, economic, and physical categories. 1 2 2 6 F o l l o w i n g t h e H e l s i n k i R u l e s , i t d i s t i n g u i s h e s b e t w e e n e x i s t i n g a n d n e w p o l l u t i o n . T h o u g h u n o f f i c i a l , d r a f t e d b y t h e I n t e r n a t i o n a l L a w A s s o c i a t i o n , 2 7 t h e y a r e c l a i m e d t o b e b a s e d u p o n t h e e x i s t i n g s t a t e o f i n t e r n a t i o n a l l a w . T a k i n g i n t o a c c o u n t a l l r e l e v a n t f a c t o r s r e f e r r e d t o i n A r t i c l e I I I , a s t a t e ( a ) s h a l l p r e v e n t a n y n e w f o r m o f c o n t i n e n t a l s e a - w a t e r p o l l u t i o n o r a n y i n c r e a s e i n t h e d e g r e e o f e x i s t i n g c o n t i n -e n t a l s e a - w a t e r p o l l u t i o n w h i c h w o u l d c a u s e s u b s t a n t i a l i n j u r y i n t h e t e r r i t o r y o f a n o t h e r S t a t e o r t o a n y o f i t s r i g h t s u n d e r i n t e r n a t i o n a l l a w o r t o t h e m a r i n e e n v i r o n m e n t , a n d ( b ) s h a l l t a k e a l l r e a s o n a b l e m e a s u r e s t o a b a t e e x i s t i n g c o n t i n e n t a l s e a - w a t e r p o l l u t i o n t o s u c h a n e x t e n t t h a t n o s u b s t a n t i a l i n j u r y o f t h e k i n d r e f e r r e d t o i n p a r a g r a p h ( a ) i s c a u s e d . 2 8 S p e a k i n g o f t h e H e l s i n k i R u l e s , P r o f e s s o r B o u r n e h a s s t a t e d , " T h i s s o f t t r e a t m e n t o f e x i s t i n g p o l l u t i o n r e f l e c t s h a r d e c o n o m i c , a n d n o d o u b t , p o l i t i c a l r e a l i t i e s . " 2 9 W h i l e h i s c o m m e n t w a s d i r e c t e d t o t h e a b s e n c e o f s a n c t i o n s i n t h e H e l s i n k i R u l e s f o r f a i l u r e t o a b a t e e x i s t i n g p o l l u t i o n , i t h a s r e l e v a n c e t o t h e D r a f t R u l e s , w h e r e t h e r e a r e s u c h s a n c t i o n s . T h e s e p a r a t e t r e a t m e n t oft n e w a n d e x i s t i n g p o l l u t i o n i m p l i e s t h a t d i f f e r e n t t e s t s o f " s u b s t a n t i a l i n j u r y " a r e n e c e s s a r y . S i n c e o n l y " r e a s o n a b l e m e a s u r e s " t o a b a t e a r e r e q u i r e d , t h e d u t y t o a b a t e m u s t a c c o u n t f o r t h e c o s t o f d i s -l o c a t i o n . " S u b s t a n t i a l i n j u r y " d u e t o e x i s t i n g p o l l u t i o n , t h e r e f o r e , m u s t i n v o l v e g r e a t e r i n j u r y t h a n w h e n a p p l i e d t o n e w p o l l u t i o n . T h u s , a n e w f a c t o r i s i n t r o d u c e d , t h e " c o s t , " i n a l a r g e s o c i a l s e n s e , 3 ^ 0 f t h e n e w s c h e m e . 3 ^ C o n c l u s i o n O n e o f t h e s c h o o l s o f t h o u g h t , t h e H a r m o n D o c t r i n e , c a n b e d i s m i s s e d a s d i s c r e d i t e d . S i n c e r e a s o n a b l e n e s s i s t h e c e n t r a l c h a r a c t e r i s t i c o f b o t h t h e " a b s o l u t i s t " a n d " e q u i t a b l e u t i l i z a t i o n " s c h o o l s o f t h o u g h t , i t i s n a t u r a l t o 1 3 r e d u c e t h e m t o t h e s a m e f o r m u l a t i o n . T h i s f o r m u l a t i o n h a s b e e n c h a r a c t e r i z e d a s a " r e a s o n a b l e m a n " t e s t , 3 2 a n d , l i k e t h i s t e s t m a y b e c r i t i c i z e d f o r 3 3 v a g u e n e s s . T h e t r e a t m e n t f o l l o w i n g a i m s t o d e t a i l t h e f a c t o r s t o b e c o n s i d e r e d i n e x a m i n a t i o n o f f i r s t , c u s t o m a r y , a n d s e c o n d , t r e a t y l a w , a n d t h u s u l t i m a t e l y t o m a k e a m o r e d e t a i l e d a n d c o m p l e t e s t a t e m e n t o n i n t e r -n a t i o n a l p o l l u t i o n l a w . O n e m a y t h e n c o n s i d e r h o w t h e o c e a n a n d s h i p p i n g s h o u l d b e t r e a t e d . 14 FOOTNOTES CHAPTER II if 1895) 21 Opinions of the Attorney-General 274, 281. 2Two problems would seem to arise. First one must consider the prob-lem of "flags of convenience," that is, flags chosen far an ulterior reason, such as lower taxes or lower inspection standards, and the requirement of a "genuine link" between the flag and the ship. Article 5(1) of the 1958 Geneva Convention on the High Seas. (1958) 13 UST 2312; TIAS #5200; 450 UNTS 82. Second is the problem of the nature of the "sovereignty" itself: is it the same as mainland territorial sovereignty and, as such, can support the doctrine? The answer would seem to be that i t is at least sufficient for the application of the doctrine. See Article 6(1) of the 1958 Conven-tion: "Ships sail under the flag of one State only." Also see the decision of the Permanent Court of International Justice in the S. S. Lotus, G9271 Permanent Court of International Justice, Series A, no. 10. 3(1895) 21 Opinions of the Attorney-General 283. *For an opposite view of liability, but based on the same primacy of territorial sovereignty, see Principle 21 of the Stockholm Declaration: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and tb3 responsibility to ensure that activities within their jurisdiction or control do not cause f. damage to the environment of other States or of areas beyond the limits of national jurisdiction. (1972) 11 International  Legal Materials 1420. 5Colorado River Salinity Agreement. (1974) 24 UST 1968; TIAS #7708. See Herbert Brownell and Samuel D. Eaton, "The Colorado River Salinity Problem with Mexico," (1975) 69 American Journal of International Law 255. ^Restatement of the Foreign Relations of the United States, section 18(b). 7U.S. v. Aluminum Company of America, 148 F. 2d 416 (2d Cir. 1945). But see, as a limit, Ivan R. Feltham, "The Canadian Radio Patents Case," (1960) 1 University of British Columbia Law Review 340. 8As the Tribunal said in the Lake Lanoux Arbitration: It has been contended before the Tribunal that these modifications should be strictly construed because they are in derogation of sovereignty. The Tribunal could not recognize such an absolute rule of construction. Territorial sovereignty plays the part of a presumption. It must bend before a l l international obligations, whatever their origin, but only before such obligations. (1959) 53 American Journal of International Law 156, at 159. 15 9Supra, note 4. 10lt is not clear that it should be taken at face value, as support for the "absolutist position, see infra, p. 89. ^Goldie, "Liability for Damage and the Progressive Development of International Law," (1965) 14 International and Comparative Law Quarterly 1189. And Goldie, "Liability for Oil Pollution Disasters," TI975) Journal  of Maritime Law and Commerce 303, Goldie, "International Principles of Responsibility for Pollution," (1970) 9 Columbia Journal of Transnational  Law 281. 1 2Goldie, "International Principles of Responsibility for Pollution," (1970) 9 Columbia Journal of Transnational Law 281. I 3Ibid., 312. l*Di scussed infra, p. 94. ISSupra, Chapter I, note 18. 16(1959) 53 American Journal of International Law 156. I 7fl949l International Court of Justice Reports. •^Goldie, "Liability for Damage and the Progressive Development of International Law," (1965) 14 International and Comparative Law Quarterly 1189. l^The problem is one of international u t i l i t y comparisons. See Ralph C. D'Arge, "Observations on the Economics of Transnational Environmental Externalities," Problems in Transfrontier Pollution 147. SOfial ow. 2 1This will be discussed at length when the thesis turns to treaty law; see Chapter Y. 2 2Goldie, op. cit., supra note 12. 2 3As has been done with transport of o i l by "supertankers." 2 4Infra, Chapter V. 25(1972) 55 International Law Association Conference Reports xvii, at x v i i i . 26(1966) 52 Internat ional Law Association Conference Reports 484. 27C.B. Bourne, "International Law and Pollution of International Lakes and Rivers," (1971) 21 University of Toronto Law Journal 193, at 198. 16 28(1972) 55 International Law Association Conference Reports xvii, 29C.B. Bourne, op. cit., supra note 27, at 198. 3 % h i l e i t may be traditional to think of costs as economic concepts, that is not necessary. It is simply the loss, on whatever scale, monetary, utility, or bubblegum wrappers, incurred by the engagement, or failure to engage, in a particular activity. "-"-This should be compared to the "administrative cost" discussed in connection with the Lake Lanoux. infra, p. 35. 32Bourne, op. cit., supra note 27, at 195. 3 3Ibid. 17 CHAPTER III CUSTOMARY LAW—TRIBUNAL DECISIONS An investigation of customary international law, as shown in decisions of tribunals, has two purposes. First, one must see i f such decisions comport with the union of the "absolutist" and "equitable utilization" schools of thought advanced in Chapter II and, second, i f they provide further insight into the increased clarity of factors. Trail Smelter Tribunal Decision The seminal decision is that of the Trail Smelter Arbitral Tribunal. Although three other decisions discuss the problem, in the Trail Smelter p Arbitration international "pollution" was the primary issue. In 1896, a smelter was started under American ausp_ices near the locality known as Trail {[British Columbia, Canada]. In 1906, the Consolidated Mining and Smelting Company of Canada, Limited. . .acquired the smelter plant at Trail. . . . Since that.time, the Canadian Company, without interruption, has operated the Smelter. . . . In 1925 and 1927, two stacks of the plant were erected to 409 feet in height and the Smelter greatly increased its daily smelting of zinc and lead ores. From 1925, at least,. . .damage occurred in the State of Washington, resulting from the sulphur dioxide emitted from the Trail Smelter. Being Canadian, Cominco was prohibited by Washington law from acquiring a "smoke easement" as had been done before in the area by the "Breen Copper Smelter," operated by the LeRoi Mining and Smelting Company and its successor, the Northport Smelting and Refining Company.4 The International Joint Commission found $350,000 of damage to January 1, 1932, an amount accepted by both Canada and the United States.^ The Commission further recommended that the parties agree on the amount of any further damage. Instead, however, the issue was submitted to a three-person arbitration tribunal. The Tri-bunal awarded #78,000 for a l l damage caused between January 1, 1932 and 18 7 October 1, 1937. In the period from October 1, 1937 to October 1, 1940, the Tribunal found that, "£i£lo damaged caused by the Trail Smelter in the Q State of Washington has occurred." Although the decision is cited as authority on the rules of l i a b i l i t y q for international pollution, it is not clear on what basis liability was imposed. The Tribunal had to interpret Article 111(1) of the Convention:10 Whether damage caused by the Trail Smelter in the State of Washington has occurred since the f i r s t day of January, 1932, and, i f so, what indemnity should be paid therefor. 1 1 This was found to involve consideration of three points, viz., "the existence 12 of injury, the cause of the injury, and the damage due to the injury." Those who argue for "absolute l i a b i l i t y " note that the question of indemnity •I r* was determined solely by proof of causation. They argue that this means the Tribunal applied a strict liability rule. In fact, it seems that the point was never argued, implying that Canada conceded lia b i l i t y . But, even in its application of this rule, the Tribunal limited i t . The United States requested its investigation expenses as part of the award, but the Tribunal disallowed them, primarily because they were not damage within 14 the convention: There is a fundamental difference between expenditure / incurred in mending the damageable consequences of an injury {which distinguishes the award in the I'm Alone arbitration] and monies spent in ascertaining the existence, the cause and extent of the latter. These are not part of the damage, any more than other costs involved in seeking and obtaining a judicial or arbitral remedy, such as the fees of counsel, the travelling expenses of witnesses, etc. In effect, i t would be quite impossible to frame a logical distinction between the costs of preparing expert reports and the cost of preparing the statements and _ answers provided for in the procedure [of arbitration or t r i a l ] . Professor Goldie's principle of "absolute l i a b i l i t y " places liability for 1 9 t h e " e x t e r n a l i t y , " t h e s i t u a t i o n c a u s i n g t h e d a m a g e , u p o n t h e e m i t t e r , n o t t h e v i c t i m . Y e t h e r e , t h e c r e a t o r o f t h e e x t e r n a l i t y d o e s n o t b e a r p a r t o f t h e e x p e n s e , i n v e s t i g a t i v e e x p e n s e s . T h u s i t s e e m s t h a t f u r t h e r c o n s i d e r a t i o n s e x i s t b u t a r e u n a r t i c u l a t e d . U n a r t i c u l a t e d , t h a t i s , i n t h e 1 9 3 8 j u d g m e n t . I n t h e f i n a l j u d g m e n t t h e r e i s s o m e w h a t m o r e d i s c u s s i o n o f t h e p r i n c i p l e s g o v e r n i n g a w a r d o f 1 7 d a m a g e s . T h e T r i b u n a l s p o k e o f a v o i d i n g " u n p r o v e n o r u n w a r r a n t e d c l a i m s . " T h e f i r s t r e q u i r e m e n t , t h a t o f p r o o f , s e e m s a n o b v i o u s r e q u i r e m e n t i n a l e g a l p r o c e e d i n g . T h e s e c o n d , t h a t t h e c l a i m s m u s t b e w a r r a n t e d o r j u s t i -f i a b l e , i s m o r e i n t e r e s t i n g , a l l o w i n g s o m e t h i n g t o b e p r o v e n i n b o t h c a u s a -t i o n a n d v a l u a t i o n , y e t t o b e d e n i e d a s u n w a r r a n t e d : u n w a r r a n t e d i f i t i s n o t p a r t o f a " j u s t s o l u t i o n . " S t a t e d e x p l i c i t l y : I t w o u l d n o t b e t o t h e a d v a n t a g e o f t h e t w o c o u n t r i e s c o n c e r n e d t h a t i n d u s t r i a l e f f o r t s h o u l d b e p r e v e n t e d b y e x a g g e r a t i n g t h e i n t e r e s t s o f t h e a g r i c u l t u r a l c o m m u n i t y . E q u a l l y , i t w o u l d n o t b e t o t h e a d v a n t a g e o f t h e t w o c o u n t r i e s t h a t t h e a g r i c u l t u r a l c o m m u n i t y s h o u l d b e o p p r e s s e d t o a d v a n c e t h e i n t e r e s t o f i n d u s t r y . T h u s t h e r e i s s o m e b a l a n c i n g o f i n t e r e s t b e t w e e n a c t i v i t i e s i n t h e r e g i o n . T h i s i d e a i s r e i n f o r c e d b y t h e i n t r o d u c t i o n o f a n u i s a n c e c o n c e p t . 2 0 S i n c e t h e b a l a n c e i s b e t w e e n t w o c o u n t r i e s t h i s w o u l d a p p e a r t o c o i n c i d e w i t h O p p e n h e i m ' s " e q u i t a b l e n a t u r e o f i n t e r n a t i o n a l l a w . " 2 1 O n e f i n d s f u r t h e r s u p p o r t f o r b a l a n c i n g o f i n t e r e s t s i n t h e d e c i s i o n n o t t o r e q u i r e t h e s m e l t e r t o c l o s e d o w n . T h e T r i b u n a l c o u l d h a v e o r d e r e d t h a t t h e s m e l t e r c e a s e o p e r a t i o n , b u t i n s t e a d i t c h o s e t o c o n s t r u c t a n e l a b o r a t e s c h e m e o f m o n i t o r i n g t o a l l o w i m p l e m e n t a t i o n o f a r e a s o n a b l e l e v e l o f a c t i v i t y . 2 2 I t f o u n d t h a t s t a t e s h a d a n o b l i g a t i o n t o p r o t e c t o t h e r s t a t e s 23 f r o m " i n j u r i o u s a c t s " c o m m i t t e d w i t h i n t h e i r j u r i s d i c t i o n s . A f t e r r e j e c t i n g 24 a d e f i n i t i o n t h a t w o u l d i n c l u d e a l l p o s s i b i l i t y o f h a r m , t h e T r i b u n a l 25 c o n c l u d e d t h a t t h e c a s e m u s t b e o f " s e r i o u s c o n s e q u e n c e . " I t t h e n p r e s c r i b e d 20 a regime which prohib i t e d those harms of serious consequence. Now, while t h i s was a d e c i s i o n f o r a requirement of p o s i t i v e action, an i n j u n c t i o n to use the domestic analogy, and not f o r damages, the issues are not unrelated. I f the smelter was to act i n conformity with the r e -quirements, then there would be no future l i a b i l i t y . 2 6 In f a c t , conformity with the interim order d i d not lead to l i a b i l i t y . 2 7 In both cases there probably was some adverse e f f e c t , but not one s u f f i c i e n t l y great to con-s t i t u t e an " i n j u r i o u s e f f e c t . " An assessment of the importance of the dec i s i o n for i n t e r n a t i o n a l law shows i t s e f f e c t to be weakened by the divergence between the seeming a p p l i -cation of a s t r i c t l i a b i l i t y p r i n c i p l e and the l a t e r concern for a balancing of e q u i t i e s . This would seem to mean that the e a r l i e r , and more cursory, s t r i c t l i a b i l i t y i m p l i c a t i o n was unintentional, onls'- a consequence of the p a r t i e s ' f a i l u r e to argue the l i a b i l i t y issue. A f u r t h e r r e s e r v a t i o n must be entered, for i t i s not c l e a r whether the dec i s i o n r e s t s on municipal or i n t e r n a t i o n a l l a w . 2 8 A r t i c l e IV of the Convention provided: The Tribunal s h a l l apply the law and pr a c t i c e followed i n dealing with cognate, questions i n the United States of America, as w e l l as International Law and P r a c t i c e . . . . Central to i t s d e c i s i o n that only acts of serious consequence are i n j u r i o u s 29 acts, i s a series of decisions of the United States Supreme Court. At one point the Tribunal stated that any reference to American law was pur-3 0 suant to the Convention d i r e c t i o n ; that i s , as municipal law. But at another point i t suggests another basis: There are, however, as regards, both a i r p o l l u t i o n and water p o l l u t i o n , c e r t a i n decisions of the Supreme Court of the United States which may l e g i t i m a t e l y be taken as a guide i n t h i s f i e l d of i n t e r n a t i o n a l law, f o r i t i s reasonable to follow by analogy, i n i n t e r n a t i o n a l cases, precedents established by that court i n dealing with controversies concerning the quasi-sovereign r i g h t s 21 of such States, where no contrary rule p r e v a i l s i n i n t e r n a t i o n a l law and no reason f o r r e j e c t i n g such precedents can be adduced from the l i m i t a t i o n s o f sovereignty inherent i n the C o n s t i t u t i o n of the United S t a t e s . 3 1 The Tribunal was correct i n asserting that i t could look to analogous muni-3 ? c i p a l law, f o r the determination of the applicable i n t e r n a t i o n a l law, but i t i s not c l e a r i n what way t h i s comports with i t s e a r l i e r statement. Canada's concession to be judged according to American municipal law could be an act of state p r a c t i c e helping to e s t a b l i s h those municipal r u l e s i n i n t e r n a t i o n a l law. It seems more l i k e l y , however, that i t i s a "choice of law" concession, analogous to the lex l o c i d e l i c t i choice of law r u l e , formerly applicable i n the United S t a t e s . 3 3 What general p r i n c i p l e s , then, can be taken from the T r a i l Smelter  A r b i t r a t i o n ? The q u a l i f i c a t i o n on the l e g a l meaning of the award makes such p r i n c i p l e s d i f f i c u l t to a s c e r t a i n . The approach adopted here i s a search for " f a c t o r s , " p r i n c i p l e s that impliedly underlie the decision, ^hey are i n d i -cations of preference, i n d i c a t i o n s of what elements the Tribunal saw as necessary for a l e g a l s o l u t i o n . The approach w i l l be used i n the d i s c u s s i o n of the following decisions as w e l l . The decision, then, seems consonant with the equitable u t i l i z a t i o n school of thought, or, as was suggested i n Chapter II, the union o f the equitable u t i l i z a t i o n and the a b s o l u t i s t schools of thought. But a further purpose was to be served by the i n v e s t i g a t i o n of these decisions: the e l u c i d a t i o n i n greater d e t a i l of f a c t o r s l i s t e d i n the H e l s i n k i Rules. At the base of the d e c i s i o n i s the placement of l i a b i l i t y on the emitter, the smelter. One i s tempted to view t h i s as a simple r e f l e c t i o n of causation: the smelter caused the damage. * But, as Professor Coase has shown, i t takes two p a r t i e s t o create an e x t e r n a l i t y . Without the.farmers and the f o r e s t s , 22 there would have been no damage and no need for compensation. Fa c t u a l l y , t h e i r existence caused the e x t e r n a l i t y just as much as did the emissions. Not s u r p r i s i n g l y t h i s resembles the treatment o f s i m i l a r problems i n the law of nuisance. The purpose at th i s time i s not t o follow any of the analysis of t h i s a p p l i c a t i o n of l i a b i l i t y , but rather to determine what factors have been considered. Although i t has been said that o l d eco-systems, per se, have no p r i o r -i t y over newer ones, one of the more fundamental precepts of nuisance law i s that he who comes to the nuisance cannot be heard to complain. This preference for e a r l i e r states of a f f a i r s i s r e f l e c t e d again i n the d i s t i n c t i o n 39 m , i n the H e l s i n k i Rules between old and new p o l l u t i o n . This concern may again be seen i n t h i s judgment, for the Tribunal considers, i n some d e t a i l , 40 the development of the region. It f i n d s that settlement i n the area began in 1892, but that formal complaint about the smelter was not made u n t i l 41 1926. That f a c t , combined with the great r i s e i n emissions between 1924 42 and 1926, leads one to the conclusion that farming and f o r e s t r y established AIL themselves r e l a t i v e l y free from interference by s u l f u r emissions, ^ and that increased a c t i v i t y 4 4 brought r a p i d increase of such interference. This approach is sensible i n many cases, for the cost of changing an e x i s t i n g system for the benefit of a new a c t i v i t y w i l l often outweigh the benefit to be gained by the d i v e r s i o n of resources to the new a c t i v i t y . ^ Thus the Tribunal was correct i n considering t h i s p a r t i c u l a r aspect of nuisance law. Another concern sometimes voiced i n the assignment of l i a b i l i t y i s for an incentive to improve e x i s t i n g knowledge and technology. For Calabresi, t h i s concern forms a part of primary cost avoidance, the desire to decrease 23 the loss involved in accidents themselves, and secondary cost avoidance, 46 the desire to decrease more remote costs. It is a component of Diamond's and Mirrlees'4''' care effectiveness, 4^ incentive to care, 4 9 and marginal 50 cost of altruism. The Tribunal recognized it as a component when recom-mending measures to follow the Tribunal's decision: ^The Tribunal] is strongly of the opinion that it would be to the clear advantage of the Dominion of Canada, i f . . .the Dominion of Canada would continue, at its own expense, the maintenance of experimental and observational work by two scientists. . . . It seems probable that a continuance of investigations. . .would provide additional valuable data both for the purpose of testing the effective operation of the regime now prescribed and for the purpose of obtaining information as to the possibility or neces-sity of improvements in i t . The Tribunal felt that information gathering could be best done in Canada, the location of the smelter. Thus one of the reasons for the imposition of liability there was to ensure that the information would be gathered. The argument in international situations is probably less clear than in purely domestic ones, for the technological ability may lie in. the country injured. Lastly, there are what economists call "transactions costs;" in other words, the costs of gathering the information in order to make the transaction. 53 A fundamental principle of the "Coase theorem" is that the same level of resource allocation will obtain under both polluter's and pollutee's rights 54 schemes. But the cost of gathering information from, and of organizing, the farmers around a smelter is greater than that of the smelter's cost in discovering at what level i t is more profitable to pollute and pay than to restrict production. This argument has less force in an international context, for some of the organizing is done automatically when one state decides to espouse the claims of its nationals. But that is s t i l l a concern. When 55 discussing the disallowal of the investigation expenses, the Tribunal 24 considered the relationship of costs of nationals and the concept of "dam-age • When a State espouses a private claim on behalf of one of its nationals, expenses which the latter may have incurred in prose-cuting or endeavouring to establish his claim prior to the espousal are sometimes included.and, under appropriate conditions, may legitimately be included in the claim. They are costs, incidental to damage, incurred by the national in seeking local remedy or redress, as i t is, as a rule, his duty to do, i f , on account of injury suffered abroad, he waists to avail himself of the diplomatic protection of his State • Recognition that these expenses are part of the damage necessitates that a proper regime would minimize them. The Tribunal evidenced concern on three grounds: First, a desire to minimize disruption of existing relationships and activities. Second, that the assignment of liab i l i t y create proper incen- <•> • tives to minimize emissions and develop new technologies. Third, that costs of administration be minimized. The Lake Lanoux Arbitration The second case normally considered in the law of international l i a -57 bility is the Lake Lanoux Arbitration. : The French governmental electri-58 city corporation proposed in 1950 to dam the River Font-Vive, to increase the capacity of Lake Lanoux to 70 million cubic meters of water and divert the drainage of the lake to the River Ariege, where a drop of 780 meters could be used for the generation of electricity. A l l of this was to take place within France. But the River Font-Vive is a source of the River Carol which flows into Spain and provides water for Spanish agriculture. To pacify Spain, water was to be returned from the River Ariege to then River Carol by a tunnel. The amount was originally to be only that amount actually in use at the time by riparians, but was increased to the entire 25 Kg volume diverted, in response to Spanish opposition to the project. Finally it was guaranteed to he at least 20 million cubic meters of water per year and regulated to coincide with the needs of the Spanish users. Spain would have allowed hydroelectric development to take place, but under a scheme which reduced generating capacity by ten percent. It objected to the French plan on three grounds. First, it was an alteration of the natural condition of the river system, continuance of which was now dependent on "the will of man"; that is, technology was necessary, and machines could f a i l . Second, such an alteration placed Spanish interests totally within French control. This could have presumably altered the relationship be-tween the countries, giving France a new weapon, the stoppage of diversion to the River Carol, in any negotiation or confrontation between the coun-tries. While diversion could have been achieved before by the French, now it was to be easier, and both parties would know that. Third, Spain ar-gued that this development had such a large impact on the area that only the two countries jointly could undertake i t . This argument was buttressed by the existence of common pasturages or faceries, open to nationals of both countries, a remnant of the condominium of the 19th century. These pasturages were claimed to be examples of the important interdependencies, and thus, although such undertakings would not require both governments in most areas of the world, they would here in the Pyrenees. The Tribunal dismissed a l l three arguments in the course of follow-62 ing each one to the conclusion that i t saw as logical. It found that the first was not a sufficient reason for impeding French aims. This is the place of the famous quotation about pollution: 26 It could have been argued that the works would bring about a d e f i n i t i v e p o l l u t i o n of the waters of the Carol or that the returned waters would have a chemical composition or a temper-ature or some other c h a r a c t e r i s t i c which could injure Spanish i n t e r e s t s . Spain could then have claimed that her r i g h t s had been impaired i n v i o l a t i o n of the Ad d i t i o n a l Act. Neither the dossier nor the debates of t h i s case carry any trace of such an a l l e g a t i o n . 6 3 Since much emphasis has been placed on t h i s quotation, i t seems worth-while to investigate i t i n some d e t a i l . F i r s t , one should notice that some injury i n fac t i s necessary. This i s c l e a r l y i n contrast to the p o s i t i o n that any a l t e r a t i o n constitutes a v i o l a t i o n of sovereignty.^ 4 Second, any a l t e r a t i o n or p o l l u t i o n would have given r i s e to a claim of v i o l a t i o n . This does not decide that damages l i e or that some form of i n j u n c t i o n should issue. It just decides that there i s an issue and then i t i s neces-sary to apply whatever t e s t e x i s t s . To argue that t h i s helps form that t e s t i s to beg the question. Third, the Tribunal spoke of a v i o l a t i o n of the "Additional Act," and thus one must consider the i n t e r - p l a y between A r t i c l e 12 of the A d d i t i o n a l Act and the p r i n c i p l e s of customary i n t e r n a t i o n a l law. To the second argument, the Tribunal based i t s answer on the assurance of the French Government: On the other hand, the proposals of the French Government which form an i n t e g r a l part of i t s project carry "assurance that i n no case w i l l i t impair the regime thus established" (Annex 12 of the French Memoire). The Tribunal must therefore r e p l y to the question posed by the Compromis on the basis of t h i s assurance. It cannot be alleged that, despite t h i s pledge, Spain would not have a s u f f i c i e n t guarantee, for there i s a general and well-established p r i n c i p l e of law according to which bad f a i t h i s not presumed. While i t i s not the purpose of t h i s discussion of the Lake Lanoux A r b i t r a t i o n to c r i t i c i z e the dec i s i o n of the Tribunal, something should be noted i n t h i s formulation. While the Tribunal was r i g h t i n r e l a t i o n to bad f a i t h , i t 27 ignored more subtle r e a l i t i e s created by the d i v e r s i o n of water. This c l e a r l y does change r e l a t i v e strengths of bargaining i n the Pyrenees. French and Spanish negotiators would eome to a future bargaining table with f u l l knowledge that control of much Spanish a g r i c u l t u r e i s , i n some degree, held by France. Further, i t i s not c l e a r that an assurance that a country w i l l not impair the present regime extends to modifying the regime and i t s t e c h n i c a l implementation to meet future demands and future t e c h n i c a l 66 achievements. The h i s t o r y of the Mexican-American dispute over waters 67 i n the southwestern United States i l l u s t r a t e s that needs and technologies may change. It has been argued that one o f the reasons f o r the d e c i s i o n i n the T r a i l Smelter A r b i t r a t i o n was p r e c i s e l y to make sure t h i s incentive to improve exi s t e d . Here i t was ignored as being not of s u f f i c i e n t impor-tance . As was stated, t h i s i s not meant by way of c r i t i c i s m of the d e c i s i o n , only to point out that the conclusion i s not as obvious as the Tribunal would seem to i n d i c a t e . The T r i b u n a l makes i t c l e a r that sovereignty w i l l be honoured, unless there i s a c l e a r reason to encroach upon i t : To admit that j u r i s d i c t i o n i n a c e r t a i n f i e l d can no longer be exercised except on the condition of or by an agreement between two States i s to place an e s s e n t i a l r e s t r i c t i o n on the sovereignty of a state, and such r e s t r i c t i o n could only be admitted i n the presence of c l e a r and convincing evidence. While that statement deals with the q u a l i t y of the evidence, and not types of issues, the T r i b u n a l , i n i t s following consideration, made i t clear that the same sort of t e s t applies to what sort of issues may be raised to l i m i t sovereignty. The works were to take place e n t i r e l y w i t h i n France, and to place a r e s t r i c t i o n on the works i n France for reasons so marginal was not to be allowed. 28 In dealing with the t h i r d argument, the answer the Tribunal reached 69 was the same. The project was not of s u f f i c i e n t importance to j u s t i f y an encroachment on the sovereignty of a State. The Tribunal dealt with the problem by s t a t i n g that the e q u a l i t y of nations requires only l e g a l e q u a l i t y 7 0 and not e q u a l i t y i n f a c t . While that i s not d i s p o s i t i v e , f o r i t does not define l e g a l equality, i t does eliminate one possible d e f i n i t i o n , which would have allowed sovereign encroachment i n t h i s instance. For e q u a l i t y i n fact i s not achieved, f o r the reasons just discussed. The existence o f special,,, c h a r a c t e r i s t i c s i n the area may give r i s e to a higher duty to con-s u l t , " 7 1 one which requires something beyond mere n o t i f i c a t i o n , 7 2 although the Tribunal expressly stated that t h i s did not amount to a duty to subor-dinate "the exercise of t h e i r competences to the conclusion of OinQ agree-73 ment." Thus the encroachment on sovereignty i s minimized. One l i m i t a t i o n on the general a p p l i c a b i l i t y of the widely quoted por-t i o n of the judgment has already been described: The existence of p o l l u -t i o n only invokes the process for assigning l i a b i l i t y ; i t does not decide the l i a b i l i t y issue i t s e l f . There i s a second l i m i t a t i o n , on the d e c i s i o n generally. More c l e a r l y than i n the T r a i l Smelter A r b i t r a t i o n , the T r i b u n a l excluded general p r i n c i p l e s of i n t e r n a t i o n a l law from i t s consideration. Relying on the d e c i s i o n of the Permanent Court of International J u s t i c e on 7 4 The Diversion of Waters from the River Meuse, the Court l i m i t e d the law on which i t could base an award: Since the question presented by the Compromis r e l a t e s s o l e l y to the Treaty and to the Additional Act of 1866, the Tribunal w i l l apply the following r u l e s for each p a r t i c u l a r p o i n t : The c l e a r p r o v i s i o n s of t r e a t y law do not require any i n t e r -pretation; the text provides an objective r u l e which covers e n t i r e l y the subject matter to which i t applies; when the p r o v i -sions c a l l f o r i n t e r p r e t a t i o n t h i s should be done according to 29 i n t e r n a t i o n a l law; i n t e r n a t i o n a l law does not sanction any abso-lut e and r i g i d method of i n t e r p r e t a t i o n ; we may therefore bear i n mind the s p i r i t that guided the framing of the Pyrenean^Trea-t i e s as we l l as the ru l e s of customary i n t e r n a t i o n a l law. Since the Tribunal decided that no spe c i a l r i g h t arose i n t h i s case 76 by v i r t u e of a sp e c i a l regime i n the Pyrenees, and since i t seems that the Treaty was i n conformity with the p r i n c i p l e s of customary i n t e r n a t i o n a l 77 law with respect to the only r i g h t that was found, consultation, d i f f i -c u l t i e s with the l i m i t a t i o n to the tr e a t y are reduced. Spain, at most, got more r i g h t s under i t , but those r i g h t s are minimally above those given by customary law as seem to be shown i n the T r a i l Smelter A r b i t r a t i o n . With the exception of the mention of the requirement of "actual use" i n 78 A r t i c l e s 9 and 10, there i s no mention of the tr e a t y as creating p r i n c i -p les f o r the decis i o n . One i s thus l e f t with the impression that the text of the tr e a t y i s s u f f i c i e n t l y vague so as to make the de c i s i o n depend upon customary i n t e r n a t i o n a l law. If the existence and text of the tr e a t y give few problems, the " s p i r i t of framing" of which the Tribunal speaks cannot add many. The Tribunal does not s p e c i f i c a l l y avert to i t and one f e e l s r e l a t i v e l y safe discounting i t s importance as minimal. The most important fact i n the eyes o f the Tribunal seems to have been 79 the ownership of the area i n which the a c t i v i t y was to take place. Indeed, t h i s was made very e x p l i c i t : As a matter of form, the upstream State has, procedurally, a r i g h t of i n i t i a t i v e ; i t i s not obliged to associate the down-stream State i n the elaboration of i t s p r o j e c t s . I f, i n the course of discussions, the downstream State submits p r o j e c t s to i t , the upstream State must examine them, but i t has the r i g h t to give preference to the solution contained i n i t s own project, provided i t takes into consideration i n a reasonable manner the in t e r e s t s of the downstream State. 30 Unfortunately, i f one t r i e s to apply t h i s preference for the sovereign of the place where the work i s to be located, to cases involving works and/or a c t i v i t i e s located at the sea, d i f f i c u l t y a r i s e s . For, beyond i n t e r n a l waters and the t e r r i t o r i a l sea, there i s no sovereign. States making use of the high seas have only uses or freedoms there, p a r t i a l l y enumerated 81 in the 1958 Geneva Convention On The High Seas, and more re c e n t l y i n A r t i c l e 75 of Part I I of the Informal Single Negotiating Text of the T h i r d Law of the Sea Conference, Geneva session: 1. The high seas being open to a l l nations, no State may v a l i d l y purport to subject any part; of them to i t s sovereignty. Free-dom of the high seas i s exercised under the conditions l a i d down by these a r t i c l e s and by other r u l e s of i n t e r n a t i o n a l law. It comprises, i n t e r a l i a , both f o r c o a s t a l and non-coastal States: a) freedom of navigation; b) freedom of o v e r f l i g h t ; c) freedom to lay submarine cables and p i p e l i n e s . . . ; d) freedom to construct a r t i f i c i a l i slands and other i n s t a l l a -t i o n s permitted under i n t e r n a t i o n a l law. . . ; e) freedom of f i s h i n g . . . f ) freedom of s c i e n t i f i c research. . . ; 2. These freedoms s h a l l be exercised by a l l States, with due consideration f o r the i n t e r e s t s o f other States i n t h e i r exer-cise of the freedom of the high s e a s . 8 2 83 The point at issue i s the nature of each of these freedoms. And the discussion of the common pasturages i n the Tribunal's award has some r e l e -vance. But one could not go any further; i t i s impossible to extend the regime of co-pasturages beyond the l i m i t s assigned to them by the t r e a t i e s , or to deduce therefrom a notion of generalized "communal r i g h t s " which would have a l e g a l content of some s o r t . 8 4 Thus i t would seem that the freedoms of the high seas are just that, f r e e -doms, and not aspects of sovereignty. 8^ If the c r i t e r i o n of ownership i s then to be applied to a contest between one who exercises a freedom and the sovereign owner of the shore, or i n t e r n a l waters 9 r the t e r r i t o r i a l sea. 31 the balance would c l e a r l y f a l l to the owner. Subject to the e a r l i e r q u a l i f i c a t i o n about the importance of the l a n -guage i n the treaty, preference was given to present uses over future uses. Before speaking of the d i v i s i o n of "surplus waters," the Tribunal spoke of 87 the r i g h t s of the "guaranteed users" as i f to give them p r i o r i t y . These "guaranteed users" are the actual present users. A problem a r i s e s when pre-sent users, protected by the Act, expand and demand more water, decreasing the surplus. Further, one wonders i f t h i s preference would extend to an enormously worthwhile future project and a rather minor present use, perhaps one that i s not to be g r e a t l y a f f e c t e d . The f a c t that doubt would seem to e x i s t leads one to suspect that the protection i s not absolute, but i n -volves some preference to the present over the future. It w i l l be argued that t h i s can be made more precise by equating t h i s preference to a " d i s -count f a c t o r . " 8 8 For the discussion of l i a b i l i t y f o r accidents, perhaps the most i n t e r -esting part of the award i s the discussion of r i s k . The Tribunal seems to imply that there are degrees of r i s k 8 9 that are generally accepted i n i n t e r -national law, and to which no one may object: But i t has never been alleged that the works envisaged present any other character or would e n t a i l any other r i s k s than other works of the same kind which today are spread a l l over the world. It has not been c l e a r l y affirmed that the proposed works would e n t a i l an abnormal r i s k i n neighborly r e l a t i o n s or i n the u t i l i z a t i o n of waters. 9 And, again, on a p o l i t i c a l note: But we must go s t i l l further; the growing ascendancy of man over the forces and the secrets of nature has put into h i s hands i n -struments which he can use to v i o l a t e his pledges just as much as for the common good of a l l ; the r i s k of an e v i l use has so f a r not l e d to subjecting the possession of these means of ac-t i o n to the authorization of the States which may p o s s i b l y be threatened. Even i f we place ourselves s o l e l y on the ground of 32 neighborly relations, the political risk alleged by the Spanish Government would not present a more abnormal char-acter than the technical risk which was discussed supra. Thus there are political risks which must be accepted if the world is to continue, and there are technical risks which must be accepted for the same reason. Risk is not truly a factor, but the fundamental premise upon which a consideration of factors for accidental li a b i l i t y must rest. Once i t is accepted that there are to be no absolutes, that there must be risks, the question becomes what risks are to be allowed, that is, what factors may be introduced. Ferhaps a more subtle point is the effect of risks taken by others. The Tribunal seemed to look upon them as part of customary 92 international law. While this may be criticized, it does help to give concreteness to otherwise vague criteria, and is at the basis of the later discussion of the synthesis of factors. In its concern for risk, the Tribunal may have been influenced by another factor, that referred to earlier as "transactions cost.** This 94 involves what Calabresi terms tertiary cost, the cost of administration. The Tribunal may have accepted a present level of risk because higher guar-antees would have required more expensive supervision. When it stated, ". . .the technical guarantees for the restitution of the waters are as OK satisfactory as possible," i t would seem to have been speaking of both the technology used to create the diversion, and the technology and manpower used to monitor i t . To require more extensive use of the latter would not have gained sufficient reward for either France or Spain to justify its imposition. This case, then, emphasizes three concerns. First, ownership is im-3 3 portant, but ownership of" the sea i s d i f f i c u l t to determine, and t h i s concern i s of l i m i t e d importance. Second, d i s r u p t i o n of present a c t i v i t i e s i s to be minimized. Third, there e x i s t acceptable l e v e l s of r i s k , both techno-l o g i c a l and p o l i t i c a l , which, i f followed, help to minimize administrative costs. Corfu Channel The t h i r d case considered i n r e l a t i o n to t r a n s f r o n t i e r p o l l u t i o n i s the Corfu Channel Case: On October 22nd, 1946, a squadron of B r i t i s h warships. . . l e f t the port of Corfu and proceeded northward through a channel pre-v i o u s l y swept for mines i n the North Corfu S t r a i t . Outside the Bay of Saranda, [one of the ships] struck a mine and was heavily damaged. 9 6 9' The damage had been done i n Albanian waters, but i n an i n t e r n a t i o n a l s t r a i t , so the United Kingdom claimed compensation from the Albanian government. While the thrust of the d e c i s i o n i s to the d e f i n i t i o n of innocent 98 99 passage, i n p a r t i c u l a r through an i n t e r n a t i o n a l s t r a i t , i t i s c i t e d as authority f o r the environmental r e s p o n s i b i l i t y of states to each o t h e r . 1 0 0 R e s p n s i b i l i t y had to be discussed i n d e t a i l since the B r i t i s h government f a i l e d to prove that Albania l a i d the mines h e r s e l f , 1 0 1 an act for which i t i s implied, l i a b i l i t y would have followed. Instead i t was necessary for the Court to f i n d an a l t e r n a t i v e basis on which l i a b i l i t y could r e s t . A f t e r concluding that Albania had c a r e f u l l y surveyed the waters f o r the e n t i r e relevant period and. must have observed the mining operation, i t held that she then had a duty to inform ships using the s t r a i t : The ob l i g a t i o n s incumbent upon the Albanian a u t h o r i t i e s consis-ted i n n o t i f y i n g , f o r the benefit of shipping i n general, the existence o f a minefield i n Albanian t e r r i t o r i a l waters and i n warning the approaching B r i t i s h warships of the imminent danger to which the min e f i e l d exposed them. Such obl i g a t i o n s are based, not on the Hague Convention of 1907, No. VIII, which i s applicable i n time of war, but on c e r t a i n general and well-recognized p r i n c i * 34 pies, namely: elementary considerations of humanity, even more exacting i n peace than i n war; the p r i n c i p l e of the freedom of maritime communication; and every State's o b l i -gation not to allow knowingly i t s t e r r i t o r y to be used for acts contrary to the r i g h t s of other S t a t e s . 1 0 2 The l a s t phrase i s the one that i s quoted. But to use i t to e s t a b l i s h the extent of the " r i g h t s " of which i t speaks has a c i r c u l a r i t y s i m i l a r to 103 the one noted i n the Lake Lanoux A r b i t r a t i o n . It has been attempted to paraphrase that statement as "the o b l i g a t i o n not to allow knowingly i t s t e r r i t o r y to be used f o r acts which w i l l cause any e f f e c t i n other States." The statement only speaks of an o b l i g a t i o n not to allow acts contrary to the r i g h t s of others, but i t does not define those r i g h t s . 1 0 4 More s p e c i f i c a l l y , i t does not define them to include a "freedom of e f f e c t s of external cause." To state i t more baldly, i t does not define them to include "freedom of i n j u r y from external cause." Although i t does not deal with an environmental problem, the case does have some import f o r the area. I t deals with the element of i n t e n t i o n . Although i n T r a i l Smelter, l i a b i l i t y was found i n the a c t i v i t y on Canadian s o i l by Canadian nationals, the T r a i l Smelter r u l e , alone, does not decide the issue i n the Corfu Channel Case. The T r a i l Smelter r e s t s on the respon-s i b i l i t y of states f o r a c t i v i t i e s undertaken within t h e i r c o n t r o l . 1 0 5 While the acts complained of i n the Corfu Channel case d i d take place i n the t e r r i -t o r i a l waters of Albania, i t was never proven that Albania knew who had 106 mined the channel. L i a b i l i t y did not rest on the act of mine-laying; i t arose by the f a i l u r e to act when one had knowledge. 1 0 7 I f one. be permitted the domestic analogy, l i a b i l i t y i n the Corfu Channel i s personal, l i k e that of the master who i s sued i n negligence f o r f a i l i n g to supervise h i s servant a d e q u a t e l y . 1 0 8 In other words, Corfu Channel recognizes the p r i n -c i p l e of l i a b i l i t y f o r breach of duty by nonfeasance, the f a i l u r e to inform. 35 Further, the Court based, i n part, the duty on what Albania "ought to have known." Again to use the domestic analogue, the p r i n c i p l e of l i a b i l i t y adopted by the Court seems l i k e l i a b i l i t y f o r negligence. It i s not argued here that Corfu Channel i s authority f o r imposition of l i a b i l i t y on states f o r every act of negligence that causes marine dam-109 age. But i t i s argued that l i a b i l i t y f o r accidents i s possible, that i s , i n t e n t i o n i s not necessary f o r l i a b i l i t y . The comparative e f f e c t s of t h i s for private i n d i v i d u a l s and f o r states are l e f t f o r l a t e r d i s c u s s i o n . 1 1 0  Nuclear Test Case The l a s t d e c i s i o n by a t r i b u n a l c i t e d f o r authority i n i n t e r n a t i o n a l marine p o l l u t i o n i s the Nuclear Tests C a s e . T h e di s c u s s i o n w i l l focus almost s o l e l y on the award of in t e r i m measures, since the f i n a l d e c i s i o n , i n the main, deals only with the question of mootness. Professor Goldie 112 finds approval of h i s i n t e r p r e t a t i o n of the previous three cases i n the 113 International Court of Just i c e d e c i s i o n to order i n t e r i m measures under A r t i c l e 41 of the Statute of the Court. x In an e f f o r t to develop an independent nuclear force, the French Govern-ment c a r r i e d out a seri e s of atmospheric nuclear t e s t s (in the P a c i f i c on the Incidental to the t e s t i n g programme was an exclusion from the high seas surrounding the a t o l l of a l l ships during the t e s t i n g p e r i o d s . 1 1 7 Both A u s t r a l i a and New Zealand applied to the International Court of 36 Justice to have the t e s t i n g halted. France maintained that i t was not subject to the compulsory j u r i s d i c t i o n of the Court, and hence refused to argue the case formally; i t merely communicated i t s contest of the Court's 119 j u r i s d i c t i o n by a l e t t e r handed to the Registrar of the Court. The Court, 120 following i t s d e c i s i o n i n the F i s h e r i e s J u r i s d i c t i o n Case, found that i t had prima f a c i e j u r i s d i c t i o n , and that, unless interim measures were ordered, the rights- of the p a r t i e s would get so prejudiced that the judjpr ment of the Court when i t came could be rendered meaningless. 1 22 France d i d explode one nuclear device, but, before the case could be argued, announced that the s e r i e s of explosions was to be discontinued. The International Court of Justice held that the case was then moot: The' Court. . .finds that the claim of A u s t r a l i a no longer has any object and that the Court i s therefore not c a l l e d upon to give a d e c i s i o n t h e r e o n . 1 2 3 There were several dissents, but a l l of them addressed themselves p r i m a r i l y to the question of mootness. Thus, i n most ways, the f i n a l de-c i s i o n i s of l e s s help than was the preliminary one. But S i r G a r f i e l d Barwick, the A u s t r a l i a n judge, d i d consider the merits i n l i s t i n g those questions that were not moot although France had discontinued the t e s t s . He alluded to the nature o f the harm under consideration: It might be noticed that the objection to the t e s t i n g of nuclear weapons i n i n t e r n a t i o n a l discussions i s placed on a twofold ba s i s : there i s the danger to the health of t h i s and suc-ceeding generations of the human race from the dissemina-t i o n of r a d i o - a c t i v e f a l l o u t , but there i s also the a n t i -pathy of the i n t e r n a t i o n a l community to the enlargement of the destructive q u a l i t y of nuclear armaments and to the pro-l i f e r a t i o n of t h e i r possession. Thus, i t i s not only nuclear explosions as such which are the suggested objec-t i o n s of the p r o h i b i t i o n , but the t e s t i n g of nuclear weapons as an adiunct to the increase i n the extent of nuclear wea-ponry. 37 Limited though t h i s i s , as the dissent of only one member of the Court, i t does lend some credence to the argument below that the "common property" nature of the problem may demand p r o h i b i t i o n when consideration o f the pre-sent harm i s not s u f f i c i e n t to j u s t i f y i t . It has been argued that the award of interim measures i n t h i s case i s support for a s t r i c t l i a b i l i t y p r i n c i p l e , and that i t extends the region protected from those of national j u r i s d i c t i o n , as was the case i n the T r a i l Smelter A r b i t r a t i o n , to that of the communal, the high s e a s . 1 2 5 While only i n t e r i m measures were allowed, and the majority was c a r e f u l to state that the d e c i s i o n given i n the present proceedings i n no way prejudges the question of the j u r i s d i c t i o n of the Court to deal with the merits of the case, or any questions r e l a t i n g to the admissi-b i l i t y of the Application, or r e l a t i n g to the merits themselves, and leaves unaffected the r i g h t of the French Government to submit arguments i n respect of those questions, the f a c t that interim measures were granted does giVe some prima f a c i e support to t h i s argument. As Judge Forster said i n diss e n t : • • • C?3ne order, by recommending the cessation, even the tempo-rary cessation, of the French nuclear t e s t s i n the P a c i f i c , may suggest that the Court has already formed a d e f i n i t e opinion on the lawfulness, or rather the unlawfulness, of the said t e s t s . . . .^A u s t r a l i a * s i n t e n t i o n ^ i s to obtain, by means of a request f o r the i n d i c a t i o n of in t e r i m -measures of protection, an a c t u a l judgment on the l e g a l i t y , or rather the i l l e g a l i t y , of further nuclear t e s t s . While i t i s suspect, perhaps dangerous, to attach substantive weight to a preliminary decision, i t has been done. Further, some of the a l l e -gations i n the A u s t r a l i a n a p p l i c a t i o n lend themselves to such an i n t e r p r e t a -t i o n . While these are only part of the arguments of the a p p l i c a t i o n , they are r e c i t e d i n the judgment of the Court as forming part of the conditions i n l i g h t of which the measures were ordered, and i f the order has substantive 38 legal content, as Judge Forster fears, they must have some place. Australia alleged three things. First, it asserted a general right •I pQ to be free of nuclear tests. Second, it argued that the introduction of 130 foreign radioactive fall-out violated Australia's sovereignty. And, lastly, it asked that the tests be enjoined to protect the freedoms of the high seas, 131 most notably that of navigation. But, although these are allegations mentioned by the Court, there is another that adds content to the abstract "violation of sovereignty." . . . £t)he Government of Australia also alleges that the atmos-pheric nuclear explosions carried out by France in the Pacific have caused wide-spread radio-active fall-out on Australian territory and elsewhere in the southern hemisphere, have given rise to measurable concentrations of radio-nuelides in food-stuffs and in man, and have resulted in additional radiation doses to persons living in that hemisphere and in Australia in .particular; that any radio-active material deposited on Australian  territory will be potentially dangerous to Australia and its  people and any injury caused thereby would be irreparable. (Emphasis added. ) The Court seemed to rely on the possibility of injury, and not on the certainty of "violation of sovereignty" in ordering the interim measures. . . .the information submitted to the Court. . .does not exclude the possibility that damage to Australia might be shown to be caused by the deposit on Australian territory of radio-active fall-out resulting from such tests and to be irreparable. 1 3 3 If the central harm done by the nuclear tests were the violation of sovereignty, by the introduction of any particle, qua particle, the Court 1 3 4 would not have needed to consider the question of damage to Australia. 135 The same concern for damage is evinced by Judge ad hoc Sir Garfield Barwi ck: . . .the material before the Court. . .provides reasonable grounds for concluding that further deposit in the Australian territorial environment of radio-active particles of matter is likely to do harm for which no adequate compensatory measures could be provided. But that does not go the whole way toward the qualification of the 39 " a b s o l u t i s t " school, asserted above. While i t i s contrary t o an absolute of sovereignty, i t i s not n e c e s s a r i l y contrary to an absolute standard for damage. It would s t i l l be possible to argue that any damage gives r i s e to i n t e r n a t i o n a l r e s p o n s i b i l i t y , and hence l i a b i l i t y . In i n v e s t i g a t i n g t h i s p o s s i b i l i t y , one must look at the degree of dam-age that was required. The a l l e g a t i o n s and the judgment speak of damage that could not be compensated, great damage.a Now while t h i s i s p r i m a r i l y f o r the purpose of gaining the interim measures, far i f the damage could be compensated, there would be no necessity far the interim measure, i t could also stand far the type of damage which a t t r a c t s l i a b i l i t y , or at 137 l e a s t a subset of i t . It w i l l be remembered that the q u a l i f i c a t i o n placed on the a b s o l u t i s t p o s i t i o n was that s o c i a l benefit must be balanced against harm. In New Zealand's a l l e g a t i o n , exactly that argument was made: . . .the basic p r i n c i p l e s applied i n t h i s f i e l d by i n t e r n a t i o n a l a u t h o r i t i e s are that any exposure to r a d i a t i o n may have irreparable and harmful, somatic and genetic e f f e c t s and that any a d d i t i o n a l exposure to a r t i f i c i a l r a d i a t i o n can be j u s t i f i e d only by the  bene f i t which r e s u l t s ; that, as the New Zealand Government has  rarguecQ the radio-active f a l l - o u t which reaches New Zealand has  no comgensating benefit to j u s t i f y New Zealand*s exposure to such  harm. (Emphasis added. ) Thus there i s evidence that the p r i n c i p l e being applied i s not the absolute one, but a r e l a t i v e one i n an area where c a r e f u l balancing s t i l l gives the absolute r e s u l t . One of the more intense c r i t i c i s m s of the reasonable use approach i s i t s over-emphasis of the economic with regard to aesthetic or other f a c t o r s , and that must be answered by more c a r e f u l i n c l u s i o n of f a c t o r s not thought of 140 as economic. But the Nuclear Test Case helps to determine the point where that i n c l u s i o n must stop. When New Zealand claimed that there i s "no b e n e f i t " 40 accruing from the weapons t e s t , i t was wrong. There i s benefit, increased weapons knowledge, and i f one i s worried about comparison of d i f f e r e n t f a c -t o r s , even t h i s one can be reduced to economic terms. The existence of nuclear spying shows that there i s a market for such information, and, subject to problems of market imperfections which may d i s t o r t the p r i c e , the p r i c e of the information i s what nations are w i l l i n g to expend to gain i t . It i s d i f f i c u l t to think of a more "free e n t e r p r i s e " market. Yet, the New Zealand claim seems compelling, f o r one does want to say that nuclear t e s t s have no b e n e f i t . 1 4 1 The apparent paradox i s a r e s u l t of the "common property" problem. When the French Government begins nuclear t e s t i n g , i t breaks the moratorium, and a l l those nations not bound by the 143 Limited Nuclear Test-Ban Treaty are more l i k e l y to proceed with t h e i r own t e s t i n g . In a world i n which a nation could be sure that no other na-t i o n would undertake the t e s t s , the r a t i o n a l country would not undertake them eit h e r , for the benefit gained i s l e s s than the l o s s of every nation beginning t e s t i n g . Thus there seems to be recognition of areas i n i n t e r -national law where the "common property" nature o f the benefit, l i k e world o r d e r , 1 4 4 requires abstinence. This i s confirmed by the existence of another i n t e r n a t i o n a l document t r y i n g to bar the camel's nose of t e s t i n g , the Nuclear 145 Non-Proliferation Treaty. Translated into l i a b i l i t y terms, that would be an amount high enough to e f f e c t i v e l y discourage any a c t i v i t y . Now the a p p l i c a t i o n of a l i a b i l i t y regime may seem rather f o o l i s h when considering weapons t e s t i n g , f o r sovereigns w i l l not pay w i l l i n g l y . But i t w i l l have a p p l i c a t i o n i n economic a c t i v i t i e s where owing to some quirk of 1 4 6 economics, psychology, or biology, no one but a sole owner would behave so that s o c i a l b e n e f i t s outweigh s o c i a l costs. 41 Conclusion This chapter has shown that there i s l i t t l e u t i l i t y i n speaking of "absolute l i a b i l i t y . " Each de c i s i o n i s a r e s u l t of the weighing of many d i f f e r e n t f a c t o r s , and thus i s based on the concept of "reasonableness," which has been said above to be common to the " a b s o l u t i s t " and "equitable u t i l i z a t i o n " schools of thought. But what are the f a c t o r s that go into the "reasonableness" of an a c t i v i t y ? The o v e r a l l goal i s the minimization of cost, or, a l t e r n a t i v e l y phrased, the maximization of benefi t . To accomplish t h i s , i n both the T r a i l Smelter  A r b i t r a t i o n and the Lake Lanoux A r b i t r a t i o n , costs of d i s r u p t i o n were min-imized. While t h i s i s not a blanket endorsement of present a c t i v i t i e s , i t does not mean that contemplated changes must be viewed i n terms of the d i s r u p t i o n they cause, as w e l l as the benefit they bring. Benefits can be maximized i f proper incentives to improve are incor-porated i n the d e c i s i o n on l i a b i l i t y . Thus i f those engaged i n an a c t i v i t y seem to have the means to improve, consideration must be given to imposition of l i a b i l i t y on them. A scheme of any sort has costs of i t s own, administrative costs, and the T r a i l Smelter A r b i t r a t i o n and the Lake Lanoux A r b i t r a t i o n both show that these are to be minimized. In the Lake Lanoux A r b i t r a t i o n , a method suggested was acceptance of widely-seen l e v e l s of r i s k . Two l a s t f a c t o r s remain. Ownership was seen as important i n the Lake  Lanoux A r b i t r a t i o n , but i s of l i m i t e d s i g n i f i c a n c e at sea, where there i s no owner, at least no c l e a r one. More important i s the consideration of "com-mon property" problems i n the Nuclear Tests Case. Concern must be shown for long-run costs, a f t e r accounting for the d i r e c t i o n of the system. 42 Lastly, the Corfu Channel Case i l l u s t r a t e s the possible bases of l i a -b i l i t y . While not going to reasonableness, a greater number of p o s s i b i l i t i e s makes implementation of reasonableness seem more f e a s i b l e . 43 FOOTNOTES CHAPTER III 1(Preliminary) (1938) 3 UNRIAA 1905; (1939) 33 American Journal of International Law 182. (Final) (1941) 3 UNRIAA 1938; 35 American Journal  of International Law 684. 2 In the Nuclear Test Case (Jurisdiction), (1975) 12 International Legal  Materials 749, the pollution issue was squarely faced, but in conjunction with an argument regarding "freedom of the seas." 3(1939) 33 American Journal of International Law 189-190. 4Ibid.. 190. 5Ibid., 207-208. 6Convent ion for the Settlement of Difficulties Ari si ng from Operation of the Smelter at Trail. B.C., (1945T~49 Stat. 3245; TS #893. 7(1939) 33 American Journal of International Law 195. 8(1941) 35 American Journal of International Law 712. 9See Goldie, supra. Chapter II, note 11. pra, note 6. -^Quoted at (1939) 33 American Journal of International Law 193. 12(1939) 33 American Journal of International Law 193. x uThere is a slight ambiguity in the Tribunal's third point, "damage due to the injury." That could mean either "damage which we care to recog-nize and which there is legally due," or "valuation of damages caused by the injury." The Tribunal followed ths latter course. See (1939) 33 American Journal of International Law 198-207. 14 There is a suggestion at (1941) 35 American Journal of International Law 710 that investigation expenses were incurred by United States Federal Agencies and therefore throughout the United States. Since the Convention spoke only of damage in Washington, these damages could not be allowed. It is best to read this as a secondary argument in developing the definition of damage. Otherwise the Tribunal would be drawn into consideration of such questions as, "where are Federal employees paid," from what accounts, and the difficult questions regarding negotiable instruments in the conflict of laws. 15(1941) 35 American Journal of International Law 709, 710. 16 Professor Goldie uses the term "risk," which is inappropriate when discussing intentional acts, although it is useful when discussing acci-dents. "Externality" is suggested as a general term, meaning the cost 44 that a person in an activity does not bear, although there are good social reasons for imposing i t . While there is disagreement and confusion on its precise definition, see J.M. Buchanan and W. Stubblebine, "Externality," (1962) 29 Economica 371, clarification will not be attempted here. 17(1941) 35 Amerlcan Journal of International Law 685. i eIbid. 1 9 I b i d . 2 0Ibid. 21 AL. Oppenheim, International Law. 22-23. See Diversion of Waters  from the Meuse. Permanent Court of International Justice Reports, Series A/B, n. 70. 22(1941) 35 American Journal of International Law 685. 2 5Ibid., 713, quoting Eagleton, Responsibility of States in Inter- nat ional Law. 2 4Relying on a decision of the Federal Court of Switzerland dealing with a "shooting establishment" used by the Canton of Argovia and endan-gering the Canton of Soleure: in D. Schindler, "The Administration of Justice in the Swiss Federal Court in Intercantonal Disputes," (1921) 15 American Journal of International Law 172, 714. 25(1941) 35 American Journal of Internat ional Law 716. 2 6There was a possibility that liability could occur: ibid., 733; but the process was cumbersome and would require re-opening the investi-gation, and was, thus, unlikely. 2 7Ibid., 709. 2 8See Goldie, "International Principles of Responsibility for Pollution," (1970) 9 Columbia Journal of Transnational Law 281, 307: "If Trail Smelter is to be viewed as an application of public international law, rather than common law. . . . " 2 % i s s o u r i v. Illinois. 200 U.S. 496. Kansas v. Colorado. 185 U.S. 125. New York v. New Jersey, 256 U.S. 296. City of New York v. New Jersey, 283 U.S. 473. 30(1939) 33 American Journal of International Law 184. 31(1941) 35 American Journal of International Law 714. 3 2See, for example, Article 38 of the Statute of the International Court of Justice: 45 1. The Court. . .shall apply: c) the general principles of law recognized by civilized nations; d) judicial decisions of the various nations, as a subsid-iary means for the determination of rules of law. 3 3A problem in comparison arises because i t i s necessary to determine the place of the tort. See Ehrenzweig, Conflict of Laws, 541. For an opposite choice of law rule agreed between the same two countries, see Article II of the Boundary Waters Treaty, (1909) 36 Stat. S448; TS #548. 3 4This is the reasoning behind much present thinking in problems of transfrontier pollution. See, for example, "The OECD Declaration of Princi-ples, the Polluter Fays Principle," (1974) 13 International Legal  Materials 234. 35R.H. Coase, "The Problem of Social Cost," (1960) 3 Journal of Law and Economics 1. 5 6Ibid., for a brief description of the workings of the law of nui-sance in dealing with problems of assignment of li a b i l i t y for externalities. '•"The writer is indebted to Professor A.D. Scott of the UBC Department of Economics for the phrase. This is not a blanket prohibition on the action, but rather goes to the reasonableness, in the neighbourhood, of the defendant's conduct. See Bliss v. Hall, (1838) 4 Bing. N.C. 193; Khyatt v. Morgan. 0.961] N.Z.L.R. 1020; Bove v. Danner-Hanna Coke Corporation. 236 App.Div. 37; 258 N.Y.S. 229 (1932); and Beuscher and Morris, "Judicial Zoning through Recent Nui-sance Cases," £l95!0 Wisconsin Law Review 440. 39 n "JSupra, Chapter II, n. 29, and accompanying text. 40(1939) 33 American Journal of International Law 187-190. 4 1At that time, one J.H. Stroh formally complained: ibid., 190. 4 2 4,700 tons of sulphur in 1924, and 9,000 tons in 1926: ibid. 43Although the Tribunal does speak of some earlier evidence: ibid. 44Harm may have been exacerbated by the increase in stack height occasioned by the increased production: ibid. 4 5Thus the preference for the present type and level of activity. 4 6Guido Calabresi, The Costs of Accidents. Primary costs are those of the accident itself. Secondary costs are the costs of the consequences, for example, lost person-hours due to hospitalization, and increased state 46 subsidies to the hospital. Calabresi's search is for the "cheapest cost avoider." He must have the best information about alternatives, in this case, technologies. See Calabresi and Hirschoff, "Towards a Test for Strict Liability in Torts," (1972) 81 Yale Law Journal 1055, 1060. Thus he has the incentive to create better alternatives since the saving w i l l be his. 47P.A. Diamond and James A. Mirrlees, "On the Assignment of Liability: the Uniform Case," (1975) 6 Bell Journal of Economics 487. 48 Care effectiveness is the relative size of the decrease in accident costs effected by increased care in one activity, compared with the size of the decrease caused by an increase in care in another activity. Mathematically, when x and y are levels of care in two interacting activities, x° and y° the levels of care achieved when there is no legal liability, and S is the sum of costs in both activities: If for t*0, S(x^ t,y° )£S(x°,y°+t), and the external costs are: 1. economies and 2. transferable, that is D3), then it is more ' efficient to place liability on activity one than on activity two. 49 Incentive to care is the most apposite, for it is the marginal return to the individual of his increased care. Where A is the sum of costs in activity 1, and B is the sum of costs in activity 2, and C the possible transferred costs, legal damage: > If for t*) S(x0^t,y°)_S(x°,y04t) for tX) A' (x°-ft )+C, (x,y° )<0 for x>x°, then liability in activity one is more efficient. Where primes are derivatives, and subscripts are partial derivatives with respect to that argument. 50 The marginal cost of altruism is the cost of the measures necessary in one activity to achieve a unit change in costs elsewhere: Where r(x,y)i -A,(x,yH-C>(x,y) B\(x,y) and t(x,y)=-B^(x,y)-hCi.(x,y) At(x,y) Where r and t are the marginal costs of altruism. 52 .... . . . (1941) 35 American Journal of International Law 731. 5 2 I n the externality context, see T.D. Crocker, "Externalities, Property Rights, and Transactions Costs: An Empirical Study," (1971) 14 Journal of Law and Economics 451. 'Supra, note 35. 47 5 4That is, in the short-run. For long-run allocation efficient concerns, see V.L. Smith, "Optimal Costly ^irm Entry in General Equili-brium," (1974) 9 Journal of Economic Theory 397, and William Schulze and R.C. D'Arge, "The Coase Proposition," (1974) 64 American Economic Review 763. And for a special instance in which the same result does not obtain in the short-run, see H. Shibata, "Pareto Optimality and Gains from Trade: A Further Elucidation," (1974) 41 Economica 71. S^Supra, n. 14 and accompanying text. (1941) 35 American Journal of International Law 711. 57(1957) 12 UNRIAA 281, summarized (1959) 53 American Journal of International Law 156. 5 8Electricite de France. 3 9Spain had objected to the proposed project, and requested that it be submitted to the "Mixed Commission of Engineers," a body formed in 1949 to study any proposal to use the waters of Lake Lanoux. 50Although rise of this weapon would clearly violate international law, as i t would both the Treaty of Bayonne, and the "Additional Act." See Article 12 of the Additional Act, quoted at (1959) 53 American Journal of  International Law 157: Downstream lands are subject to receiving from the higher lands of the neighboring Country the waters which flow naturally from it together with what they carry, without the hand of man having contributed thereto. There may be constructed neither a dam, nor any obstacle capable of harming the upper riparians, to whom it is likewise forbidden to do anything which might increase the burdens attached to the servitude of the lower lands. &1That is, joint ownership. This is to be distinguished from co-imperium in which only the government is shared, -For an example of the difference, see J.A. Frowein, "Legal Problems of the German Ostpolitik," (1974) 23 International and Comparative Law Quarterly 105. 62(1959) 53 American Journal of International Law 163. 6 3See, for example, Goldie, "Liability for Damage and thB Progressive Development of International Law," (1965) 14 International and Comparative  law Quarterly 1189 at 1229. *>4See the Australian and New Zealand Memoirs in the Nuclear Test Case (Jurisdiction), (1973) 12 International Legal Materials 749. 65(1959) 53 American Journal of International Law 162. 6^There is, too, the issue of technological incentive, notes 45-49 and 4 8 accompanying text. As in the Trail Smelter Arbitration, the nation in control of the works probably has the best opportunity to improve them. Since the benefit of the improvement, at least regarding the diversion itself, would accrue to Spain, and not France, the incentive is foregone. 67Supra, Chapter II . 6 8 ( 1 9 5 9 ) 5 3 American Journal of International Law 1 6 3 . CO In fact, the above quotation deals with the relevance of the faceries to the Lake Lanoux project. ? 0 ( 1 9 5 9 ) 5 3 American Journal of International Law 1 6 3 . 7 1See Article 1 6 of the Additional Act: The higher administrative authorities of the bordering Departments Qn Franc£] and Provinces Q n Spain] w i l l act in concert in the exercise of their right to set up regulations for the general interest and to interpret or modify their regulations whenever the respective interests are at stake, and in case they cannot reach agreement, the dispute shall be submitted to the two governments. Quoted at ( 1 9 5 9 ) 5 3 American Journal of International Law 1 5 7 . 7 2 w h i c h is provided for in Article 1 1 of the Additional Act: When in one of the two States it is proposed to construct works or to grant new concessions which might; change the regime or the volume of a watercourse whose lower or opposite part is being used by the riparians of the other Country, prior notice will be given to the highest administrative authority of the corresponding authority i n the jurisdiction where such projects are proposed. Quoted ibid. Generally, see C.B. Bourne, "Procedures in the Development of International Drainage Basins," ( 1 9 7 2 ) 1 0 Canadian Yearbook of Inter- national Law 2 1 2 . 7 3 ( 1 9 5 9 ) 5 3 American Journal of International Law 1 6 4 . 74Permanent Court of International Justice Reports, Series A/B, n. 7 0 . 7 5 ( 1 9 5 9 ) 5 3 American Journal of International Law 1 6 0 . For a broader view of the award, see the comment at ( 1 9 5 9 ) 5 3 American Journal of Inter- national Law 1 7 1 : ". . .nor did the French actions in relation thereto contravene any rule .of international law." 76Supra, notes 6 7 - 5 8 , and accompanying text. 49 7 7 "Bourne, op.cit., supra, note 71, at note 72. 78(1959) 53 American Journal of International Law 160. 79Supra, notes 68 and 69 and accompanying text. 80(1959) 53 American Journal of International Law 170. 81(1958) 13 UST 2312; TIAS #5200; 450 UNTS 82. 82UN Doc A/Conference 62AfP. 80 Part II, p. 30. 8 3This is related to the res communis-res' nullius debate. See James A. Hargrove, and Anthony D'Amato, Environment and the Law of the Sea. That debate spoke to common ownership of the sea or no ownership at a l l . Clearly common ownership implies some limited sovereignty, albeit shared with others, for the state undertaking the activity at sea. ^(^Sg) 53 American Journal of International Law 164, 165. 85Compare this, however, with the "Pardo Resolution" of the United Nations General Assembly, which declares that the resources of the ocean floor are "the common heritage of mankind." Extension of rights in the bottom to rights in the superjacent water column is attempted in Stephen R. Katz, "Issues Arising in the Icelandic Fisheries Case," (1973) 22 International and Comparative Law Quarterly 83. 8 6Article I of the Informal Single Negotiating Text, suprat n. 82, provides: 1. The sovereignty of a coastal State extends beyond its land territory and internal waters, and in the case of an archipelagic State, its archipelagic waters, over an adjacent belt of sea described as the territorial sea. 8 7This was not a necessary conclusion, based on the Additional Act alone. Article 9 does not go that far, on its face: For watercourses which flow from one Country to the Other, or which" constitute a boundary, each Government recognizes, subject to the exercise of a right of verification where appro-priate, the legality of irrigation, or works and enjoyments for domestic uses currently existing in the other State, by virtue of concession, t i t l e or by prescription, with the reservation that only that volume of water necessary to satisfy the real needs will be used, that abuses must be eliminated, and that this recognition will in no way injure the respective rights of the Governments to authorize works of public utility, on con-dition that legitimate compensation is paid. (1959) 53 American Journal of International Law 156, 157. 50 An ambiguity arises in the phrase "recognizes. . .the legality." It could mean that no compensation will be demanded, or retributive measures taken. 8 8The present value of a future benefit must account for time prefer-ence, risk, and the "opportunity cost" lost, that is, what benefit would be gained by present, rather than future, payment. In the case of money that is the return on the money i f i t had been invested. In the case of a chair, i t is the benefit that could be gained by having the chair for the period. "For the purist, "risk" is not being discussed here. Rather, "un-certainty" is. The distinction generally made is that risk is actuarially predictable, whereas uncertainty is not. Clearly, at least at this time, the actions of nations are not actuarially predictable, although there are efforts in that direction. But neither are the chances that a maritime transport will accidentally discharge a substance. Now, there are no data on which actuarial tables can be based. 90(1959) 53 American Journal of International Law 161. 9 1Ibid.. 162, 163. ^Particularly one wonders i f the countries accepting risks, perhaps in their totally internal matters, for the Tribunal does not restrict itself to consideration of only international risks, have the "intention to be bound." Without that, the custom of accepting risk at a certain level could not become part of customary international law. This becomes particularly difficult when one encounters misperceptions about the ex-tent of the risk. In the case of maritime carriage see the more elabor-ate protection given to o i l than to, for example, the other Annex I sub-stances in the London Ocean Dumping Convention. (1972) 11 International  legal Materials 1291. '^Additionally this approach does facilitate commerce. One objection raised to unilateral state action on the high seas is that differing rules are harder to follow than a single one. See R.B. Bilder, "Canada's Arctic Waters Pollution Prevention Act—New Stresses on the Law of the Sea," (1970) 69 Michigan Law Review 1. Hence there are limits on what sort of actions states may take in regulating traffic in transit passage in Article 39 of the Informal Single Negotiating Text, UN Doc. A/Conference 62/WP. 80/ Part I. 9 4Calabresi, op.cit., supra, n. 46, at 145-147. 9 5Ibid., 161. 9 6The Corfu Channel Case (Merits), Q.949] International Court of Jus- tice Reports 12. y The Albanian government. . .denies that this Channel belongs to the class of international highways through which a right 51 of passage exists. . . . Ibid., 28. ^However] the Court has arrived at the conclusion that the North Corfu Channel should be considered as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace. Ibid., 29. 9 8 I t is, in the opinion of the Court, generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without previous authorization of a coastal State, provided that the passage is innocent. Ibid., 29. 99Supra, note 98. lOOsee Goldie, "Liability for Damage and the Progressive Develop-ment of international Law," (1965) 14 International and Comparative Law  Quarterly 1189. 1 0 1 I n fact, although the United Kingdom Government never abandoned its contention that Albania herself laid the mines, very li t t l e attempt was made by the Government to demonstrate this point. Q.949] International Court of Justice Reports 15. 1 0 2 I b i d . , 31. 1(^3Supra, Chapter I E , note 79, and accompanying text. 1 0 4Except by implication. It does imply that those rights include that of innocent passage. 1 0 5 A t least that seems the reasonable interpretation to be placed on the words of the court. Strictly it speaks of responsibility for "activities by persons within its jurisdiction." If the last phrase does not modify both "persons" and "activities," it would seem that states would be fixed with responsibility for acts done outside their jurisdiction but by their nationals. Thus Canada would be responsible for lumbering activities of MacMillan-Bloedel in the United States. 1 0 6 In the light of the information now available to the Court, the authors of the mine laying remain unknown. 1^94S[) International  Court of Justice Reports 17. 1 0 7 . . .Albania QiadH knowledge of minelaying in her terri-torial waters £and liability arose] independently of any connivance on her part in this operation. Ibid., 189. 1 0 8The distinction is made in tort law when the relationship giving rise to the duty to adequately supervise does not give rise, at common law, to vicarious l i a b i l i t y . See, for example, the duty of a parent to super-vise a child. Kuhns v^ ^ rugger, 390 Pa. 331; 135 A.2d 398 (1957). 52 1 0 9 I t will be argued later that lia b i l i t y might exist for states i f they do f a i l to supervise in accordance with their obligations under Article 24 of the 1958 Geneva Convention on the High Seas. Infra, Chapter V. 1 1 0 r n f r a , Chapter V. Hl/1.974] International Court of Justice Reports; (1973) 12 Inter- nat ional Legal Materials 749. l 1 2Goldie, "Liability for Oil Pollution Disasters," (1975) 6 Journal  of Maritime Law and Commerce 303. ll 3The Governments of Australia and France should each of them ensure that no action of any kind is taken which might aggra-vate or extend the dispute submitted to the Court or prejudice the rights of the other Party in respect of the carrying out of whatever decision the Court may render in the case; and, in particular, the French Government should avoid nuclear tests causing the deposit of radio-active fall-out on Australian terri-tory. (1973) 12 International Legal Materials 755. 1 1 4 A r t i c l e 4l{l) provides: The Court shall have the power to indicate, i f i t considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. H^In fact, France exploded a nuclear device in the atmosphere over Mururoa on 21 July, 1973. (1973) 12 International Legal Materials 749. H6See the map of zones of interdiction, ibid., 772,773. H7The International Court of Justice, quoting from the Australian allegation. Ibid., 753. Australia asked for the following interim measures: The provisional measures should be that the French Govern-ment should desist from any further atmospheric nuclear tests pending the judgment of the Court in this case. Ibid., 750. 119ibid., 750-751. The controversy turned on the status of the General Act of the Permanent Court of International Justice of 1928, under which -the French Government submitted, without reservation, to the jurisdiction of the Permanent Court. France contended that it was not bound by the Gene ral Act as i t was "an integral part of the league of Nations system and, since the demise of the League of Nations, has lost its effectivity and fallen into desuetude." Ibid., 751. Instead, France contended that its submission to the jurisdiction of the Court was governed by its accep-tance of compulsory jurisdiction under Article 36 of the Statute of the 53 Court. Under that declaration, France excepted itself from compulsory-jurisdiction in "disputes concerning activities connected with national defense." 1 2 0 j l 9 7 2 * l International Court of Justice Reports; (1973) 12 Inter- national Legal Materials 7 43 . 1 2 1Separate opinibn of Judge Nagendra Singh, ibid., 756 . 1 2 2Supra, n. 117 . 1 2 3 J JL974J International C 0 Urt of Justice Reports 2 3 . I 2 * Ibid., 179 . 1 2 5Goldie, "Liability for Oil Pollution Disaster," ( 1975) 6 Journal  of Maritime Law and Commerce 3 0 3 . 126Paragraph 3 3 , ( 1973 ) 12 International Legal Materials 754 . 1 2 7 I b i d . . 758 . 1 2 8Paragraph 22 , ibid.. 7 52 . 1 2 9Goldie, op.cit., supra, note 125 . (i) The right of Australia and its people, in common with the other States and their peoples, to be free from atmospheric nuclear weapons tests by any country is and will be violated. 1 3 0The deposit of radioactive fall-out on the territory of Australia and its dispersion in Australia's airspace without Australia's consent: a. Violates Australian sovereignty over its territory; b. Impairs Australia's independent right to determine what acts shall take place within its territory and in particular whether Australia and its people shall be exposed to radiation from a r t i f i c i a l sources. ( 1973 ) 12 International Legal Materials 7 52 . Oae may wonder what violation of sovereignty a. covers that b. does not. 131 The interference with ships and aircraft on the high seas and in the superjacent airspace, and-the pollution of the high seas by radioactive fall-out, constitute infringements of the freedom of the high seas. This interpretation of this allegation is not without doubt. The interference with ships and aircraft is, arguably, an infringement of the freedom of navigation. But the pollution "infringement" must be something wider. As was discussed before in connection with the Lake Lanoux 54 Arbitration, supra, notes 79-86 and accompanying text, the freedoms of the high seas are enumerated, and to allege infringement of the freedom of the seas, i t is necessary to allege infringement of a particular free-dom. "Fishing," e. of Article 75, and "scientific research," f., suggest themselves here, but they do not extend to some more general right. The French Government might s t i l l be liable for a violation of an obligation under Article 25 of the 1958 Geneva Convention on the High Seas, for it did release nuclear material, but that is not a violation of a general "freedom of the seas." 1 3 2(1973) 12 International Legal Materials 753. 1 3 3Faragraph 29, ibid., 754. 1 3 4 I t might be argued that damage need only be considered for pur-poses of establishing "irreparability" to gain the interim measures, but this ignores the fact that any supposed "damage to sovereignty" is even more irreparable, for the physical damage can conceivably be remedied; one just needs the proper technology. But repair to damaged sovereignty is impossible, for the act cannot be undone. 1 3 5Under Article 31 of the Statute of the Court, each litigant has the right to appoint a judge ad hoc i f none of its nationals sit on the Court. 1 3 6(1973) 12 International Legal Materials 757. l 3 7France drew attention to the difficulty of ascertaining what level of damage is cognizable, and sought to rely upon i t as a ground for con-trolling the interim measures: . . . i f the infraction of the law was alleged to consist in a violation of a legal norm concerning the threshold of atomic pollution which should not be crossed, i t is hard to see what was the precise rule on which Australia relied. Ibid., 754. 138Paragraph 28 of the order between New Zealand and France, ibid., 753. 1 3 9Supra, Chapter II. 140Compare Article X of the Helsinki Rules, (1966) 52 International  Law Association Reports 484, and Article III of the Draft Rule s for Marine  Pollution of Continental Origin, (1972) 55 International Law Association  Reports xvii. l 4 1See the notes circulated at the 28th Session of the United Nations General Assembly, which forced the French Government to issue a white paper defending its position. (1973) 12 International Legal Materials 1546. 1 4 2See, generally, Garrett Hardin, "The Tragedy of the Commons," (1968) 162 Science 1243. 55 x"*014 UST 1313; TIAS #5433. 1 4 4Even i f one disagrees with his conclusions, i t must be admitted that Professor McDougal was correct in seeing world order as the basic question involved in weapons testing. See Myres S. McDougal and Norbert Schlei, "The Hydrogen Bomb Tests in Perspective," (1955) 64 Yale Law  Journal 648. 1 4 5(1970) 21 UST 483; TIAS #6839. 1 4 6 A sole owner is an entity which receives a l l costs and a l l benefits from an activity, although it does not necessarily control an industry; compare "monopolist." See Anthony D. Scott, "The Fishery: Objectives of Sole Ownership," (1955) 63 Journal of Political Economy 166. 56 CHAPTER IV CUSTOMARY LAW—STATE PRACTICE In addition to the decisions of international tribunals, there are four incidents of state practice 1 which deserve attention. While it is not claimed that these incidents are sufficiently widespread, or even similar enough among themselves, to form a rule of customary international law, they do help to illustrate a few more of the principles of lia b i l i t y . Further, a rule of "reasonableness" can be supported i f the acts of states comport with i t , although the acts by themselves do not have sufficient force to establish a rule. These incidents have the further advantage of dealing with the sea, thus moving the discussion away from air and river pollution. Fukuryu Maru Affair During March and April, 1954, the United States carried out a series of nuclear tests at the Pacific Proving Grounds in the Marshall Islands. As a result of miscalculations, some Japan-ese fishermen and some of the inhabitants of the Marshall Is- g lands were injured by hydrogen bomb tests carried out on March 1. To be specific, 23 fishermen were injured, one fatally. The United States tendered, and Japan accepted, two million dollars, "without reference to the question of legal li a b i l i t y " on 4 January 1955. No firm conclusion may be drawn from the incident, for the United States expressly tendered the sum "ex gratia" thereby showing that it had no in-tention to be bound by this sort of practice. Further, even i f lia b i l i t y did exist, it could have been based either on the negligence inherent in the miscalculations or upon the "ultra-hazardous" nature of the activity, and its lack of social benefit. However weak its authority, the payment did take place. If it were based 57 upon a concept of strict liability, then it is the first authority for the proposition. If it were based upon negligence, it is certainly a further refinement on the concept of duty than was invoked in the Corfu Channe1 Case. There the failure was to perform an act, the notification, but here the failure was in the performance of an activity. Thus i t goes further than the Corfu Channel Case, for i t imposes standards on what might otherwise be lawful state conduct. Second, the payment recognized a hierarchy of values. If one were to balance factors strictly economically, there would be no higher or lower values, only ones worth more or less. An<i i f the cost of two conflicting values, one worth more and one worth less, varies, with each getting mar-ginally more dear,' there might come a time when the value of higher worth, originally, decreases below the value of lower worth. For example, i t might be agreed that religion is more valuable than bread, but if one is forced to give up a l l but a crust of bread, it is probably more valuable than a l l the religion the beggar could be given.9 But in Fukuryu Maru, recognition was given to the primacy of human lif e and human suffering. 1 0 Although nuclear material does do damage to the "living resources of the sea," and hence Japan, as a major fishing nation, was damaged by the tests, no mention was made of compensation for that damage.11 The concern shown was for the physical injuries of the fishermen: Your Excellency knows of the deep concern and sincere regret of the Government and people of the United States of America have manifested over the injuries suffered by Japanese fisher-men in the course of these tests. . . . The Government of the United States of America has made clear that it is prepared to make monetary compensation as an additional expression of its concern and regret over the injuries sustained. 1 2 58 Thus, the character of the damage was recognized, not just in pure monetary terms, but on some other scale of unexpressed values. This ivill become more important in dealing with conventional attempts to define and 13 deal with pollution. Cherry Point On Sunday, June 4, 1972 at 6 a.m. a spill from the Liberian registered tanker World Bond occurred at the Cherry Point Refinery of Atlantic Richfield (ARCO), built specifically to utilize Alaskan o i l . This spill, estimated at between 4,000' and 12,000 gallons, had serious international implications. Oil from the spill quickly spread out into the Strait of Georgia and damaged adjacent beaches near Tongue Point, Birch Point, Birch Bay in the United States. . . . The worse fears £of Canadians] were confirmed on Monday nieht, June 5, 1972 when o i l hit Canadian shores at Crescent Beach. Later, in a note to Washington, the Canadian Government requested the 1 United States to make "prompt payment of damages and cleanup costs." However, nothing came of the note since ARCO promised the municipality of 1 g White Rock "to pay for a l l cleanup costs and damages." Thus the demand 17 from Ottawa for payment became moot. Conclusions are thus difficult to draw from one unanswered demand for payment. Apart from a reference to negligence again, for the act was not inten-tional, and there was not duty to warn, greater interest lies in the importance of the identity of the substance spilled. Although i t has been recognized that crude oi l has relatively l i t t l e impact, when compared with other pollutants 18 such as heavy metals, it has been the centre of international concern. Most of the conventional law dealing specifically with marine pollution deals with 1 9 oi l , and while the costs of clean-up and damage to amenities at the share-20 line can be considerable, this one particular substance, o i l , seems to have attracted attention out of proportion to its danger. 59 So a new element is introduced into the calculus, that of the identity of the substance. While one may quarrel with the rationality of the inclu-sion, it is true that certain substances or practices attract condemnation, out of proportion to their danger, ^hile this is not correct the rationality of the Canadian demand, it does seem .that demand and payment were effected more easily with this o i l spill than would have been the case with, for example, an escape of a trace amount of mercury. It was argued above that, at least in the area of nuclear weapons, the strict benefit-cost analysis had to be abandoned because of the common property nature of world order, but in dealing with oi l pollution there seems to be no similar justification. Oil must s t i l l be transported,2-'- and so the imposition of liab i l i t y of an inordinate amount is not going to end ocean transport of the substance. Stella Maris Together with the character of the substance, one must consider the character of the place where emission occurs. This is best seen perhaps 22 in an example of intentional "dumping." The danger of dumping into the seas was revealed by the case of the Dutch tanker Stella Maris: 600 tons of waste from a vinyl chloride plant at Rotterdam were to be dumped in deep water, first, west of Halter Bank some 110 kilometres from the Norwegian coast, and then, after vigorous representations by the Scandinavian governments, the Stella Maris was deviated to an alternative dumping ground in the mid-Atlantic, about 1000 kilometres south of Iceland and west of Ireland but this evoked protests from the Icelandic, Irish and British governments. The tanker was refused permission to refuel by these governments and was obliged to return to Rotter-dam to unload its cargo of toxic waste, which will be container-stored on land until it can be incinerated. The identity of the substance is not surprising. Vinyl chloride, because of its toxicity and persistence, is included in Annex I of the London 24 Ocean Dumping Convention, the so called "black l i s t " of substances which cannot be dumped, under Article IV 2 5 of the Convention. What is important 60 to note the discrimination effected in the place of disposal. Incineration of vinyl chloride creates hydrochloric acid and other compounds, which will 26 he carried by air, many into the ocean. Thus the particular areas of the 27 28 ocean must be the concern. Prevailing currents or proximity of fish stocks are considerations which might vary the conclusion, but the important thing is the differentiation of place. The character of the area, be i t caused by nearness to coast or peculiar resources, is to be considered. This would seem to be implicit in the comparison of costs and benefits of any parti-cular action, but deserves explicit attention, to assure that it is not ignored. For i t was downplayed in another connection, the debate on the 30 legality of the Canadian Arctic Waters Pollution Prevention Act, and might be overlooked in another context where it has undoubted importance. Torrey Canyon There are no other acts of state practice concerned with lia b i l i t y to which this thesis will address itself. But a discussion of the customary law of pollution of the sea would be incomplete without reference to the customary right of intervention and the Torrey Canyon disaster. It must be included for i t was central to the formation of the present l i a b i l i t y regime for o i l pollution, the 1969 Convention on Civil Liability for Oil Pollution 31 Damage. Also the factors governing application of the right of intervention of a coastal state are similar to the factors governing liability, and should be considered with them for better understanding. On 18 March, 1967, the Torrey Canyon, a 120,000 deadweight ton o c jumboized oil tanker, ran aground on the Seven Stones Reef, 17 miles off the Cornish coast. 3 4 Oil escaped and fouled the beaches of France and the United Kingdom. After nine days, the United Kingdom attempted to solve the problem by bombing 61 the ship, and setting the o i l on fire. The ship was bombed, but the o i l was crude and therefore not very combustible, and did not ignite. The incident took place on the high seas, and therefore the legality 36 of the British action can be questioned. Professor Bilder has stated the problem this way: The absence of broad international condemnation of the British bombing of the Torrey Canyon is probably due to the fact that its action, while technically very questionable under existing law, was generally regarded as reasonable. As the risks of environ-mental harms become better defined, and as the practical impact of unilateral actions to control these environmental risks becomes clearer, international law will probably move towards a more precise articulation of standards of reasonableness in the form of explicit norms. It is argued here that there are "more precise articulations," and those are what is sought by way of analogy to the li a b i l i t y problem. But first there is a technical quibble of some import. Bilder states that nations acquiesced in the bombing because i t was reasonable. That would seem to lead to a conclusion of legality for the act. This is the position 38 taken by, inter alia, Professor Danzig. It is difficult to ascertain much on that basis in this instance, other than that the action taken was legal. But assistance can be found in the 39 1969 Convention Relating to Intervention on the High Seas. While this Chapter does not deal with treaty law, i t is generally accepted that the 1969 Convention does l i t t l e more than codify the customary law. 4 0 The most interesting aspect is the primacy given to the maintenance of commercial relations. No action may be taken until after the accident: Article 1 Parties to the present Convention may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interest 62 from pollution or threat of pollution of the sea by o i l , following upon a maritime casualty or acts related to such, a casualty, which may reasonably be expected to result in major harmful consequences. While the concept of "maritime casualty" is somewhat wider than accident, 4-p at least of Torrey Canyon dimensions, clearly there must be some act beyond the mere appearance of the ship. Freedom of navigation is upheld over pro-tection of the coast for fear that any other interference would cause unjust-43 ifled disruption of world-wide commerce. This preference highlights the desire to maintain the activity, i f at a l l possible. It must be remembered that the Trail Smelter Arbitration award did not shut down the smelter, but 44 instead attempted to create a regime which would allow continued operation. This concern must place an upper limit on the li a b i l i t y which would otherwise be imposed, for in most cases, i t should not be more than that which would 45 make the actor indifferent between operating and shutting down.1 There is another reason for demanding some higher standard before inter-vention is justified: the desire to avoid wasting resources, that is, the resources must go to the actor who will put them to the most productive use. This is illustrated by one of the explanations given for the British waiting period, nine days. Hovanesian argues that the wait was necessary to avoid claims of wrongful intervention, not by the owners of the ship, who had no 46 47 further use for i t , but by the Dutch salvage company. The possibility of 48 salvage would mean that not only would o i l normally be contained, but the vessel could also be put to some use, scrap i f no other. This brings one to the second qualification on the right of intervention: the first was one of time, and the second is of proportionality. Article V provides: 63 1. Measures taken by the coastal State in accordance with Article 1 shall be proportionate to the damage actual or threatened to i t . 2. Such measures shall not go beyond what is reasonably-necessary to achieve the end mentioned in Article 1 and shall cease as soon as that end has been achieved. . . . 3. In considering whether the measures are proportionate to the damage, account shall be taken of: a. the extent and probability of imminent damage i f those measures are not taken; and b. the likelihood of those measures being effective; and c. the extent of the damage which may be caused by such measures. Reasonableness is the key. The element that is added to the earlier weighing of factors is that of probability. Probabilities of both damage and success of the measures are included in the calculus. Unfortunately the analysis is incomplete: what is the relationship between probability of damage and the extent of damage done by either the maritime casualty or the preventive measures? Second, the notion of costs of the action is expressly included. Here it is the extent of the damage of the actions taken, by analogy to liability, the effect of imposing liability on the shipping industry and mercantile community. But one should be able to see some content by viewing the situation which is supposed to be an application of this rule, the Torrey Canyon. Can it really be said that the response was proportionate, especially in view of 50 the low toxicity of the o i l itself? There ere three factors which do explain why the response should be viewed as proportionate. First, knowledge at the time of the Torrey Canyon disaster was very limited. This was the first big spill in open sea, and experience, either in the real 64 world or in the laboratory, had not yet developed the fully array of tech-niques available later, and, more importantly, i t had not generated know-51 ledge about the efficacy of techniques or the danger of spills. This led 52 to the second factor, the panic which followed from the massive fouling. While the existence of an emergency should not constitute a licence, it does mean that the test propounded in Article V(l) is prospective: "Measures. . . shall be proportionate to the likely damage." By definition, measures are 53 taken "to prevent, mitigate or eliminate" the damage, and thus the only judgment that can be made is on the likelihood of damage or of effectiveness of the measures. In the circumstances of 1967, i t would have seemed likely 54 that the bombing would mitigate the damage. The third factor was the special nature of the area. While, with regard to this as a defense of the legality of the Arctic Waters Pollution Prevention 55 56 Act, the special character of the Arctic has not been universally accepted, the position of waters close to coastline is different. The Informal Single 57 Negotiating Text would have allowed Britain to claim the waters over Seven 58 Stones as territorial sea, and many states now claim that same limit of 12 miles. Unlike the special character of the Arctic, the special character of these off-shore areas is recognized. Circe ^hile the Torrey Canyon incident is attended with reasonableness and caution, the incident involving the Circe in the Mediterranean seems, at first sight, to lack both: Similarly in the case of France, several weeks after the wrecking of the Torrey Canyon, a Liberian tanker, the Circe, was cut in two on the high seas, in the Mediterranean; the bow was towed to Marseilles; as for the stern, i t was 60 miles from Corsica; the French Government sent a telegram to the 65 shipowner, and without waiting for a reply, had the wreck sunk by gannon shot, and then sent the owner the b i l l to be paid. While the concern for salvage is s t i l l there, the arguments about elapsed time and special character of coastal waters do not hold. But the timing is important. The Circe incident took place immediately after the Torrey Canyon, when the dangers loomed even larger. By this time, France had sustained 60 over $8 million worth of damage in clean-up costs from the Torrey Canyon, and, no doubt, wanted to avoid a repetition. In short, the reasonable view of the circumstances permitted immediate action. This possibility is expressly allowed in Article IH(d) of the Convention Relating to Intervention  on the High Seas: In cases of extreme urgency requiring measures to be taken immediately, the coastal State may take measures rendered necessary by the urgency of the situation, without prior notification or without continuing consultations already begun. The great lesson of the Circe then, is that "extreme urgency" must be in light of present knowledge and present conditions. No doubt i t would have to be interpreted differently, and more strictly, now with greater know-61 ledge of possible measures and of the effects of o i l . A special coastal state interest is more difficult to find in the case of the Circe than i t was in the case of the Torrey Canyon. The stern was sunk 60 miles off the coast of Corsica, a distance not recognized as widely 62 as 12 miles. But i t must be remembered that this incident took place in the Mediterranean, not the North Atlantic. The peculiar problems of "semi-63 enclosed" seas have been noted generally, and the problem of the Mediter-64 ranean has been noted particularly. These seas have smaller water volumes and less "flushing" by trading their water for the water of a larger body. 66 In the case of the Mediterranean, the only route to a large body of water is through the Strait of G-ilbraltar. Thus, introduction of a large quantity of pollutant, a comparable distance from shore, has more serious effects here than it would in the North Atlantic since dispersal and biodegradation are slowed. Thus the French act is distinguished from many and does not "open the door" to indiscriminate sinkings. Conclusion Reasonableness is the characteristic central to a l l of these acts. In the commentary on the Torrey Canyon, i t was seen that this has been recog-nized explicitly. From the Torrey Canyon, it can be seen that reasonable-ness gains meaning from the immediate circumstances, subjective as well as objective. The press of the moment must be recognized, but i t will not excuse every act. Qualifications remain. Activities of clear value, such as shipping, must be maintained, and resources should be used, not wasted. And the objective circumstances include the physical area, the proximity to places of possible damage. This concern for an area was repeated in the Circe, where the area was the Mediterranean, and in the Stella Maris. Thus, one is introduced to the concept of special areas needing special protection. And last, two present biases, against o i l , and for land disposal, were seen in Cherry Point and the Stella Maris, respectively. These biases are inconsistent with the general principle of reasonableness and must be accounted for in developing a liability regime. FOOTNOTES CHAPTER IV 67 •••State practice is the process by which acts of states, i f done with the intention to be bound and are widespread throughout the community, can form part of customary international law. 2Goldie, "International Principles of Responsibility for Pollution," (1970) 9 Columbia Journal of Transnational Law 281 at 307, 308. 3(1954) 31 United States Department of State Bulletin 492. 4Text of the United States Note tendering payment, |jL95§] 1 D"ST 1; TIAS #3160; 32 United States Department of State Bulletin 490. 5Ibid. 6See the discussion of the French nuclear tests, supra. Chapter III. 'That is, that worth of the last unit is rising higher and higher with less of that value. For example, i f one has two chairs, the value of the second chair might be higher than the value of the third of three chairs. 8An example is Calabresi* s Mount Blanc tunnel, where human li f e is traded off against commercial convenience: Thus we build a tunnel under Mount Blanc because it is essen-ti a l to the Common Market and cuts down the traveling time from Rome to Paris, though we know that about one man per kilometer of tunnel will die. Calabresi, The Costs of Accidents 17, 18. 9The writer is indebted to Professor Paul G. Bradley of the Univer-sity of British Columbia Department of Economics for the example. 10The primacy does not hold for the entire range of the variables, see preceding footnote, and Calabresi, op.cit., supra, note 8, at 17. "Our society is not committed to preserving li f e at any cost." To be perfectly accurate, he should have said " a l l life at any cost," for it would seem that part of the explanation for the Mount Blanc example is the decreasing marginal value of human l i f e . That is, society may not value that one life per kilometer highly enough to stop the tunnel, but the second li f e taken wil l probably be worth more than the fi r s t : public outcry would more than;,double. And, at some point, the value of the lives becomes infinite, and that life will be preserved at any cost. The most obvious case is the last person on earth. Since there is no one left to benefit from anything i f this l i f e i s spend on some worthy cause, this li f e must have infinite value. -^Although, the note from United States Ambassador John M. Allison speaks of fu l l settlement of any and a l l claims against the United States of America or its agents, nationals, or juridical entities, 68 on the part of Japan and its nationals and juridical enti-ties for any and a l l injuries, losses, or damages arising out of the said nuclear tests. (1955) 32 United States Department of State Bulletin 91. That broad language is probably best explained by the then recent mem-ory of Hiroshima, Nagasaki, and the problem of "latent injuries." The United States would have wanted to foreclose any future claims of that nature. 1 2Text of the United States Note, ibid., 90. 1 3Infra, Chapter V. 1 4William M. Ross, Oil Pollution as an International Problem 222. 1 5Ibid., 225. 1 6Ibid.. 223. 1 7 l b i d . . 224. 18Report of the Third Session, Joint Group of Experts on the Scien-t i f i c Aspects of Marine Pollution, 13 May, 1971. The danger of crude o i l pollution seems confined to "despoiling coastal amenities and killing myriad seabirds." Lance D. Wood, "An Integrated International and Dom-estic Approach to Civil Liability for Vessel-Source Oil Pollution," (1975) 7 Journal of Maritime Law and Commerce 1. And Ross, op.cit., supra, note 14, at 9. This should be compared, too, with the lighter grades of o i l , which are more easily absorbed and more highly toxic. 1 9Infra, Chapter V. 2 0The costs of clean-up by France and the United Kingdom alone, in the Torrey Canyon incident, were over Il6 million, in 1967 dollars. 21V.P. Nanda, "Oil Pollution in the Sea," (1969) 10 Harvard Inter- national Law Journal 316. 22"Dumping" is defined in the London Ocean Dumping Convention, (1972) 11 International Legal Materials 1291. Article 111(1) a. "Dumping" means: i . any deliberate disposal at sea of wastes or other mater-ia l from vessels, aircraft, platforms or man-made structures at sea; i i . any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures at sea; b. "Dumping" does not include: i . the disposal at sea of wastes or other matter incidental to, or derived from the normal operations of vessels, 69 aircraft, platforms or other man-made structures at sea and their equipment. . . . E. du Pontavice, "Stella Maris," Marine Pollution Bulletin, August 1971, 115 at 126. 24(1972) 11 International Legal Materials 1291. 2^In accordance with the provisions of this Convention Contracting Parties shall prohibit the dumping of any wastes or other matter in whatever form or condition, except as otherwise specified below: a. The dumping of wastes or other matter listed in Annex I is prohibited. 2 ^ I t is estimated that over 90$ of marine pollution comes from atmospheric fall-out. Michael J. Hardy, "International Control of Marine Pollution," (1971) 11 Natural Resources Journal 296. 2 7As was the case in the original zones in the Oil Pollution Con-vention. See the Faulkner Report, Report of the Committee on the Preven- tion of Pollution of the. Sea by. Oil. 2 8This is, after a l l , near the scene of the "Cod War." See the Fisheries Jurisdiction Case, [1.974] International Court of Just ice Reports. 2 9See Bilder, op. cit., supra, Chapter III, note 93. 30RSC 1970, 1st Supp., c. 2. 31 See Records of the Conference on Marine Pollution Damage 7: Following the Torrey Canyon disaster of 1967, the Council of IMCO adopted an eighteen point programme of measures and studies in relation to marine pollution arising from mari-time casualties. The Torrey Canyon incident had given rise to legal complications of a particularly delicate nature. It had soon become evident that existing maritime legislation was inadequate to solve the numerous legal problems arising out of catas-trophes of that kind, in the fields of both public and private law. That was what had led IMCO to submit to the conference two draft conventions designed to limit the consequences of such catastrophes in the future. 32 Dead weight tonnage is the weight of the cargo and stores that a ship is designed to carry. It is "dead weight" for i t does not assist in the propulsion or navigation of the vessel. See Edward C O W S E, Oil and  Water—The Torrey Canyon Disaster. 70 ^"Jumboizing" is the technical term which refers to the alteration of the vessel to increase its cargo capacity, in the case of the Torrey  Canyon, and its sister ship, the Lake Palourde, from 67,000 dwt. (470,000 barrels of oil) to 117,000 dwt. (850,000 barrels). The standard technique was either to cut a vessel in half amidships and insert a new section or to lap off her bow and stern and attach them to a new "midbody," where the tanks are. For the Union Oil ships, "a more severe alteration" was planned: "An entire new midbody and bow wil l be built," O^nion Oil's] announcement said. "Then the aft end of the present ships— which includes a l l propulsion machinery and cargo pumps—will be cut off and joined to the larger, wider forward section. The amidships houses and bridges will be transferred to the new ships." Ibid., 10. 5 4 l b i d . , 45. 3 5That is, at the time. The Seven Stones Reef is between the Scilly Isles and Land's End. The channel is less than 24 miles wide. In the light of movement toward appropriation of what was formerly the high seas by states, one may question whether*a similar accident would happen on the high seas any longer. Such shallow water is normally found in nar-rower expanses of the sea and Articles 2, 4, and 5 of the Informal Single  Negotiating Text, UN Doc. A/Conference 62/WP. 80/Part I, would place the Seven Stones Reef within the territorial sea. As such, the ship would be subject to British jurisdiction. See Articles 24, 25, and 26. 3 6Except for piracy or slave-trading, no purpose is normally thought sufficient for interference by any nation other than the flag state, with a ship on the high seas. See Case of the S.S. Lotus, [l92£l Permanent  Court of International Justice. Series A, n. 9, and Article 5(l) of the 1958 Geneva Convention on the High Seas. 3 7Richard B. Bilder, The Role of Unilateral State Action in Pre-venting Internetional Environmental Injury.16. 3 8Aaron L. Danzig, "Marine Pollution—A Framework for International Control," (1973) 1 Ocean Management 347. 39(1969) 8 International Legal Materials 45. 4 0Danzig, op.cit.. supra, note 38, V.P. Nanda, "Oil Pollution in the Sea," (1969) 10 Harvard Journal of International Law 316. G. Sutton, "Pollution Prevention in the Arctic," (1972) 5 Ottawa Law Review 32; for the general legality of rights exercised beyond the territorial juris-diction/ see William W. Bishop, "The Exercise of Jurisdiction for Special Purposes in the High Sea-Areas Beyond the Outer Limit of Territorial Waters," Paper presented at 6th Inter-American Bar Association Conference (1969). 71 41 This should be contrasted with the so-called "preventive" approach. See the Canadian defence of the Arctic Waters Pollution Prevention Act, text of the Canadian note to the Uaited States, 0-970] House of Commons  Debates 6027; J.A. Beesley, "Rights and Responsibilities of Arctic Coastal States," (1971) 3 Journal of Maritime Law and Commerce 1 at 8. The dis-tinction is made by Sutton, op.cit., supra, note 40, at 56. 4 2 A r t i c l e n ( l ) "Maritime casualty" means a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to i t , resulting in material damage or im-minent threat of material damage to a ship or cargo; Thus the death of the master, i f he possessed special knowledge necessary for navigating in those particular waters, so there was an "imminent threat," would constitute a maritime casualty. This is not terribly im-portant in view of the requirement of "proportionality." 43 See the discussion of this effect in a somewhat different context, that of differing o i l discharge standards; P.A. Cummins, D.E. Logue, R.D. Tollison, T.D. Willett, "Oil Tanker Pollution Control: Design Criteria vs. Effective Liability Assessment," (1975) 7 Journal of Maritime Law  and Commerce 169 at 171. 4 4Supra, Chapter III. 4 5This is sometimes termed a problem of "non-convexity" in the pro-duction function. That is, the "social optimum is not achievable because shutting down makes more money for one of the producers in a two-party externality situation than does any level of production. See K.I. Inada and K. Kuga, "Limitations of the Coase Theorem on Liability Rules," (1972) 6 Journal of Economic Theory 606. 4^Indeed, destruction, as long as it was not an "act of war," and thus within an exception, of the ship and cargo would probably facilitate f u l l recovery on the insurance policies since there would be no possibility of mitigation of damage. 4 7Archie Hovanesian, Jr., "Post Torrey Canyon: Toward a New Sol-ution to the Problem of Traumatic Oil Spillage," (1970) 2 Connecticut  Law Review 632. According to this argument the time allowed for salvage by convention was allowed to elapse, after which time, the salvors* rights would terminate. Compare, the "inadequacy of planning" explanation: that the British had never contemplated such a possibility and, therefore, had to use the time to formulate a response. V.P. Nanda, "The Torrey  Canyon Disaster: Some Legal Aspects," (1967) 44 Denver Law Journal 400. This interpretation is supported by the general ineptitude of the res-ponse. See Ross, op.cit., supra, note 14, at 30, for example. 4 8Joseph C. Sweeney, "Environmental Protection by Coastal States," (1974) 4 Georgia Journal of International and Comparative Law 278. 72 Normally the salvor would attempt to keep as much of the vessel intact as possible, for preservation of the vessel and ease of towing. "This should be compared with the British attempt to legalize, ex post facto, its bombing on the Torrey Canyon, the Oil in Navigable Waters  Act, [ 1 9 7 0 J 19 & 20 E l i z . 2, c. 2 1 : Section 8 ( 1 ) defines the occurrences to which the Act applies: 1. The powers conferred by this section shall be exer-cisable where— a. an accident has occurred to or in a snip» and b. in the opinion of the Secretary of State the use of the powers conferred by this section is ur-gently needed. The most drastic measures are allowed pursuant to 8 ( 4 ) : If, in the opinion of the Secretary of State Q>ther measures are inadequate), the Secretary of State may, for the purpose of preventing or reducing o i l pollution, or the risk of o i l pollution, take, as respects the ship or its cargo, any action of any kind whatsoever, and without prejudice to the general-ity of the preceding provisions of this subsection the Secre-tary of State may— b. undertake operations for the sinking or destruction of the ship, or any part of i t , of a kind which is not within the means of any person to whom he can give directions. st of the long-term marine damage was caused by the methods used to clean up the s p i l l : In the Torrey Canyon case, studies showed o i l itself accounted for destruction of 30$ of the plankton while deter-gents used in attempting to dissipate the o i l killed off 95$ of the remaining plankton along the British coast. Ross, op.cit., supra, note 14, at 9 . 51 For comparison, see the relatively sophisticated knowledge which was brought to bear on the sp i l l in Chedabucto Bay by the Arrow. P.D. McTaggart-Cowan, H. Sheffer,- and M.A. Martin, Report of the Task-Force: Operation Oil, especially Volume II. 52see the picture entitled "French peasants try to clean up Brittany beach," in Cowan, op.cit., supra, note 3 2 , opposite 115 . This incident comes as close as environmental questions have come to being within Daniel Webster's formulation of the right of self-defense in the Caroline, that the necessity be instant, overwhelming, leaving no choice of means and no moment for deliberation. 5 3Article 1 (1 ) of the Convention Relating to Intervention on the  High Seas. 73 54 This corresponds to the municipal doctrine in the law, of negli-gence, that the standard of conduct in an emergency is that of the reason-able person acting in the emergency. He or she is expected to take reasonable precautions, but in conformity with the urgency of the sit-uation. Ghaman 7. Glasgow Corporation, 1950 S.C. 23; 1950 S.L.T. 2. 55RSC 1970, 1st Supp., c. 2. 5 6See R.B. Bilder, op.cit., supra. Chapter HI, note 93; Donat Pharand, "Innocent Passage in the Arctic," (1968) 6 Canadian Yearbook of  International Law 3, expanded in his book, The Law of the Sea of the Arctic. Contrast Jeffrey J. Sherrin, "International Law and Canadian Arctic Pol-lution Control," (1974) 38 Albany Law Review 921. 57 UN Doc. A/Conference 62/WP. 80. 5 8The channel between Seven Stones Reef and Land's End is less than 24 miles. Cowan, op.cit., supra, note 32. 59E. du Pontavice, "Pollution," in L.J. Bouchez and L. Kaijen (ed. ), The Future of the Law of the Sea 104, 114. ovC.A. Haberbusch, "Constitution of the Torrey Canyon Limitation Fund," (1969) 1 Journal of Maritime Law and Commerce 146. 61Supra, note 17. 62A1though see, for example, the Arctic Waters Pollution Prevention Act, and the Declaration of the President of Ch ile Claiming Jurisdiction over the Seas to a Distance of 200 Miles, in Internet ional Law Documents 48. 63 Alexander argues that recognition of the special rights and interests in semi-enclosed areas would solve most of the marine pollution problems and save the high seas from unwarranted subjugation to national juris-diction. Lewis M. Alexander, "Regionalism and the Law of the Sea: The Case of Semi-Enclosed Seas," (1975) 2 Ocean Development and International  Law 151. 64Convention fflr the Protection cf the Marine Environment of the Mediterranean Sea AreaTT1975) 14 International Legal Materials 481. See also the Final Act of the European Security Conference, (1975) 14 Inter- national Legal Materials 1292, 1308. 74 CHAPTER V CONVENTIONAL LAW The most voluminous body of international law regarding pollution is not the customary law, but the ever-growing number of agreements, beginning with the 1954 Convent ion for the Prevention of Pollution of the Sea by Oil. The purpose here is not to survey a l l of these conventions, as they relate p to the sea, nor is it to concentrate on any one of them. The focus will be on a liab i l i t y regime, and thus the conventional law must be seen in its relation to such a regime. There are four topics that a liability regime should include, and so the treatment of the conventions should centre around them. An effort will be made to determine the state of international law on each topic, and the factors explicit or implicit in i t . The topics are: 1. Substance: What substances or activities should attract liability? 3 2. Under what circumstances: Are there standards which ought to be met or occurrences that might excuse liability? 3. From whom:. Who should bear the liability, i f it is not to be imposed on a l l actors in the activity, and what duties should be imposed among the actors? 4. To whom: Who should receive the liab i l i t y payment? The aim is to develop a less abstract definition of reasonableness in the field of marine pollution, and to see if the law really does demand a balancing of social benefit and social cost, the "union" of the equitable utilization and absolutist schools. The key characteristic of each of the legal elements canvassed is rea-sonableness, whether explicitly as in the Helsinki Rules, or implicitly as in the criteria in the London Ocean Dumping Convention. But each factor must 75 be considered i n r e l a t i o n to a p a r t i c u l a r l e g a l problem, as i n the case of maritime casualties, or solution, as i n the case of a p a r t i c u l a r convention. The following table i s provided to give . an overview of the process. But f i r s t , there i s a general overview of the process by which reasonableness i s determined. Then the f a c t o r s to be discussed w i l l be l i s t e d as they f i t into the process. The reader should not attempt to read the e n t i r e table. Its purpose i s not to provide information, but to show the framework into which the rest of the chapter w i l l f i t . A d d i t i o n a l l y , c r i t i c i s m s made and l i m i t a t i o n s noted w i l l be summarized under the heading " Q u a l i f i c a t i o n s . " To f a c i l i t a t e further e l u c i d a t i o n , the f a c t o r s w i l l carry references to l a t e r portions of the text so that the reader may r e f e r to them for context and c l a r i f i c a t i o n . General Scheme F i r s t , one must r e a l i z e that the actions described do not take place i n the laboratory. They occur i n the r e a l world, and that world v / i l l impinge upon whatever decision i s to be made. Emergency, both r e a l and perceived, and values, both physical and psychological, comes into play. While some of the perceptions of a given s i t u a t i o n may seem strange to a dispassionate observer, they cannot be c r i t i c i z e d , except f o r inconsistency with more basic goals, inconsistency which should have been r e a l i z e d i n spite of those circumstances. One cannot demand that the B r i t i s h Government have acted with perfect know-ledge and calm dispassion i n the wreck of the Torrey Canyon. Urgency and misperceptions n e c e s s a r i l y involved i n a determination must be accepted. Against t h i s back-drop of valuation and circumstances, a calculus r e -sembling benefit-cost a n a l y s i s 4 takes place. But the valuation may be influenced by the same subjective element seen i n the evaluation of circum-76 stances. Valuation i s psychological at base; thus seeming absu r d i t i e s are as v a l i d as seeming truths, as long as they do not create a net los s of value, subjectively perceived. In concrete terms, i f one r e a l l y wants to place a very high value on dead seabirds, p o s s i b l y to the point of i n t e r -f e r i n g with shipment of goods or production of food, that v a l u a t i o n cannot be challenged. It i s open to question, however, i f i t stands only because i t s r a m i f i c a t i o n s have not been r e a l i z e d . The comparison of values may involve comparing d i s s i m i l a r objects or ends, dead seabirds and a r i s e i n the p r i c e of f e r t i l i z e r , for example, but i t i s nevertheless done i m p l i c i t l y . As w e l l , comparisons are made across time and between countries, there-by complicating the comparison. Certain determinations are frozen by the l i s t i n g of c h a r a c t e r i s t i c s or even substances, l i s t s which necessitate a p a r t i c u l a r decision. Others are l e f t to case by case determination based on a l i s t of f a c t o r s . L a s t l y , the comparison i s often extended to consider benefits and costs beyond the obvious l i m i t s of the a c t i v i t y . Common property problems are an obvious example. 77 List of Factors Table 1 Factors Qualifications Circumstances Urgency^ Existing State of Knowledge Costs and Eenefits Characteristics of Substance Toxicity Persistence rate of decay 10 reversibility 1 1 Effect on existing of pollutants Characteristics of Flace stocks Territorial importance 13 Proximity of resources of value Avoidance of ocean Value Harmed (or Benefited) 21 Human li f e pre-eminent Fishing 2 3 Navigation Equity Political independence28 1? Aesthetic Balancing Tools 31 Risk' 33 Benefits 35 Visible overemphasized 8 Freedom of others Growing dependency 14 15 Not licence 1 6 Political or <; Precipitation* }|jher value 18 Not at any co|t'' On what basis Definition 27 29 Presumption o f good faith Alternative o g g C O o p e r a t i o n Or v i s i b i l i t y Subjective a s s e s s m e n t 3 4 International u t i l i t y comparisons 36 Mode of Implementing Incentive s/Disincentives' 37 Administrative Cost 39 Maintenance of Activity Certainty of Effect 4 3 Direction of System45 Avoidance of Cost 4 7 41 Particular Legal Arrangements, Personal and National Lack of Information Amount of Dislocation Perverse Incentive 42 Countervailing Opinion Pressure Misallocation 46 78 Substance In many of the conventions there is no attempt made to select substances. For example, the Convention for the Protection of the Marine Environment of the Baltic Sea Area provides: Article 2 ( 1 ) "Pollution" means introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, resulting in such deleterious effects as hazard to human health, harm to living resources and marine l i f e , hindrance to legitimate uses o f the sea, including fishing, im-pairment o f the quality for use of sea water, and reduction of amenities. One cannot rely on such general s t a t e n E n t s for development of a regime of specific liability. Indeed, this definition, propounded by the Joint Group of Experts on the Scientific Aspects of Marine Pollution (GE3AMP),50 has been criticized by Michael Hardy on the ground of legal usefulness. He argues that implementing such a definition requires that choices be made among the values that the definition protects, and that making such a choice is the hardest problem in present international environmental law. Thus the defini-tion begs the question. This same failure to account for the differences between substances and activities is found in Principle 21 of the Stockholm Declaration on the Human  Environment: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right, to exploit their own resources pursuant to their own envi-ronmental policies, and the responsibility to ensure that acti-vities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. 5 53 In an attempt t o embrace the global problem, the Stockholm Declaration seemed to go beyond the GESAMP definition, and treat everything alike: 54 anything causing damage is to be treated equally. 79 This type of definition would have l i t t l e importance in the develop-ment of a liab i l i t y regime, but for the use of this Principle and the GESAMP 55 definition by some of the "absolutist" commentators. It is argued by some that the lack of categorization for substances, activities, or damage is intentional, being a recognition that liability must lie for al l activities and a l l substances. Such a principle would strike at the heart of a system of liability which sought to make those distinctions, and many more. That interpretation of Principle 21 has been attacked. Professor Handl goes further than most and argues that it was meant only to recognize •57 l i a b i l i t y for negligence, based upon the statement of a member of the committee which drafted Principle 21. One need not go that far, and other commentators argue that i t is a recognition of the maxim of international law, sic utere tuo ut alienum non laedas,5^ one should not use one's property so as to injure one's neighbour, that is, one's use must be "reasonable in the neighbourhood." Thus, while this line of inquiry does not frustrate the desire to formulate rules of liability, it does not further i t either, for i t leaves one with a general rule of reasonable use and nothing more. One can go slightly beyond this in considering the Nordic Environmental 59 Protection Convention, concerned with the management of "environmentally harmful activities," which are defined as: the discharge from the soil or from buildings or installations of solid or liquid waste, gas or any other substance into water-courses, lakes or the sea and the use of land, the seabed, buildings or installations in any other way which entails,or may entail environmental nuisance by v;ater pollution. . . . Thus the domestic notion of nuisance is imported into international law. That is somewhat more helpful than the general reasonable use criterion, for it 8 0 does bring with i t national experience and decisions. This notion may have tremendous impact, but using national experience means canvassing national 61 laws, a time consuming task. ~ The Organization for Economic Cooperation and Development (OECP) goes somewhat further i n attempting to develop a general c r i t e r i o n i n i t s " P o l l u t e r Pays P r i n c i p l e . " While the emphasis i s s l i g h t l y d i f f e r e n t , cost i n t e r n a l -i z a t i o n instead of adjudicating l i a b i l i t y , both come within the expanded d e f i n i t i o n of l i a b i l i t y i n Chapter I. The Polluter-Pays P r i n c i p l e , as defined by the Guiding P r i n c i p l e s concerning International Economic Aspects of Environ-mental P o l i c i e s , which take account of p a r t i c u l a r problems p o s s i b l y a r i s i n g for developing countries, means that the p o l l u t e r should bear the expenses of carrying out the measures, as s p e c i f i e d . . . to insure that the environment i s i n an acceptable state. In other words, the cost of these measures should be r e f l e c t e d i n the cost of goods and services which cause p o l l u t i o n i n the pro-duction and or consumption.^ While t h i s approach can be c r i t i c i z e d , the Declaration does give two c l e a r p r i n c i p l e s or f actors on which l i a b i l i t y should r e s t . The f i r s t i s f a c t o r a l l o c a t i o n . Presumably the cost of p o l l u t i o n or pollution-abatement should be r e f l e c t e d i n the cost of an a r t i c l e so that the r a t i o n a l purchaser w i l l be forced to consider a l l costs of the product. Thus the r e a l thrust of the p r i n c i p l e i s not that the consumer must pay, but rather that the d e c i s i o n -maker must react to a l l costs. The aim i s neither prevention nor compen-64 sation, but rather that both short- and long-term factor a l l o c a t i o n be e f f i c i e n t . The second factor i s equity, i n t e r n a t i o n a l equity i n p a r t i c u l a r . The " p a r t i c u l a r problems. . .for developing countries" bedevil the "cost i n t e r -65 n a l i z a t i o n " advocates. Both on the output side and on the consumption side, 81 equity between nations i s recognized. In dealing with marine p o l l u t i o n , t h i s should have great impact since imposition of l i a b i l i t y could tead to higher p r i c e s f o r third-world countries to face. The more general approaches taken, then, indicate a d i r e c t i o n i n the search for substances to which l i a b i l i t y w i l l attach, but the conventional law has been much more s p e c i f i c i n two p a r t i c u l a r areas, the f i r s t of which i s o i l . O i l O i l i s the substance having the most nearly complete scheme of control 67 for i t s transportation. The Faulkner Report i n the United Kingdom, and the convention which re s u l t e d , the 1954 Convention for Prevention of P o l l u t i o n of the Sea, by O i l . f i r s t recognized o i l as a p a r t i c u l a r concern. Instead 70 of rather vague c r i t e r i a as there are for the discharge of other substances, very s p e c i f i c discharge standards for o i l have been developed. 1 7 1 Enforcement no provisions have received an emphasis not seen elsewhere. And o i l i s the only substance f o r which there i s an i n t e r n a t i o n a l l i a b i l i t y regime i n force, the 1969 Convention on C i v i l L i a b i l i t y for O i l P o l l u t i o n Damage. 7 3 Addi-t i o n a l l y i t was one of two substances s p e c i f i c a l l y mentioned i n the 1958 74 Geneva Convent ion on the High Seas. What c h a r a c t e r i s t i c s of o i l make i t the subject of such thorough l e g i s -l a t i o n ? It was suggested above that inadequate knowledge and the v i s i b i l i t y of damage from o i l are a p a r t i a l explanation; however, i t seems u n l i k e l y that such i s the e n t i r e answer. There are other f a c t o r s , one i m p l i c i t i n the conventions themselves. Not a l l o i l i s covered by the 1969 Convention. It i s r e s t r i c t e d to 82 any persistent oil such as crude oi^g fuel o i l , heavy diesel o i l , lubricating o i l and whale o i l . 76 While there is some difficulty in giving content to the definition, i t does evince a concern for oils which "stay around." This would mean concern far the lower fractions, although there is some evidence that the higher fractions are more dangerous since they may be passed up the food chain more 77 easily, and are more easily digested. Persistence is most closely related 78 to problems with aesthetics, beach-front property, and sea-birds. Thus part of the concern for persistence is tied to the visibility of damage: a seabird, dead of exposure, is more visible than the reduced productivity of a fish stock or the increase in the rate of cancer occurrence in the human 79 population that feeds on that stock. Part of that concern is probably the unreasoned panic mentioned above, but perhaps another part is an increasing 80 awareness of the importance of pollution damage to aesthetics. The latter would indicate recognition of non-economic, or non-monetizable, values, ignored before and a change in the relative importance to be attached to each of the various activities involved in "sea-use." x Another reason for concern with persistence is the finite capacity of the ocean as a dumping ground. If one of the uses of the oceans is as a 82 disposal for wastes, preference should be given to wastes for which .the ocean is a more efficient disposal unit. Wastes subject to more rapid bio-degradation are more efficient, for, with the passage of time, mare can be 83 added as the original deposit disappears. This reason for concern is supported by the inclusion of persistence as a criterion in determining the substances in Annex I, to which o i l belongs, of the London Dumping Convention. 84 the so called "black l i s t " of substances which are to be kept out of the 83 85 ocean. There the problem of sea-birds and petroleum aerosols cannot be a concern, so only the second reason remains. The second characteristic of o i l is toxicity. Through cardiovascular 86 damage to different species, be they fish or bottom-dwelling marine l i f e , 87 o i l can k i l l . While there are other substances more toxic, none of them is 88 as widely distributed through different marine eco-systems as o i l . The concern for toxicity is shown in the qualification to the exception for non-persistent substances in Annex I: . .provided they do not: i i ) en-89 danger human health or that of domestic animals." One other factor is implicit in the definition. It does not deal with the characteristics of the substance, but rather with the efficiency of the scheme. In the definition of o i l in the 1969 Convention, whale o i l is in-90 eluded. But in the Convention on a Compensation Fund for Oil Pollution 91 Q? Damage ^ only petroleum is included in the definition of o i l . * Exclusion was clearly more efficient in an administrative sense. The Fund is to be 93 fille d by levies on o i l imported by sea, an operation which would have to be duplicated for another series of importers and transporters if whale o i l were to be brought within the scheme.94 Nuclear Material As: mentioned above, oi l was one of two substances mentioned in the 1958 Geneva Convention on the High Seas: the other was nuclear waste. Every State shall take measures to prevent pollution of the seas from the dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organization.9^ As with o i l there is a liability scheme. Unlike that of o i l , this one consists of four conventions: the Paris Convention for Third Party Liability 84 for Nuclear Damage.96 the 1963 Supplementary Convention.97 the Vienna Con- vent ion for Third Party Liability for Nuclear Damage.98 and the Convent ion 1 99 far Civil Liability in the Maritime Carriage of Nuclear Material. Additionally, there is the Nuclear Ship Operators Liability Convention. 1 0 0 and the Savannah treaties, which the United States signed in exchange for the use of port facilities by the N.S.S. Savannah.101 But they add nothing to 103 the discussion of substances and are limited to one very specific activity. Moreover, there is l i t t l e likelihood that the mare general convention will ever come into force; 1 0 3 i t was really a private agreement10* between the only nations operating such ships, the United States and the Soviet Union, and 105 neither has shown any inclination to bring i t into force. Although there is some difficulty in ascertaining the relationships between the four conventions, 1 0 6 for present purposes i t is sufficient to note that they impose a lia b i l i t y stricter than the "strict l i a b i l i t y " found elsewhere: 1. The liability of the operator 1 0 7 for nuclear damage under this Convention shall be absolute. 2. If the operator proves that the nuclear damage resulted wholly or partly either from the gross negligence of the person suffering the damage or from an act or omission of such person done with intent to cause damage, the competent court may. . .relieve the operator. . .in respect of the damage suffered by such person. 1 0 8 3. (a) No lia b i l i t y under this Convention shall attach to an operator for nuclear damage caused by a nuclear incident directly due to an act of armed conflict, hostilities, c i v i l war or insur-rection. (b) Except in so far as the law of the Installation State may provide to the contrary, the operator shall not be liable far nuclear damage caused by a nuclear incident directly due to a grave natural disaster of an exceptional character. This is stricter than liab i l i t y found elsewhere, for there are two common 85 exceptions missing: intentional acts by a third party, 111 and negligence . . 112 by the authority responsible for maintaining navigational aids. Why then, was there this special concern for such damage? Is there sonBthing in the nature of the substance which differentiates it from other substances? As the definition of o i l assisted in answering that question for that substance, so the definition of "nuclear damage" assists for nuclear material: "Nuclear damage" means— (i) loss of l i f e , any personal injury or any loss of, or damage to, property which arises out of or results from the radioactive properties or a combination of radioactive properties with toxic, explosive or other hazardous properties of nuclear fuel or radio-active products or waste in, or of nuclear material ccming from, originating in, or sent to, a nuclear installation. Thus it is clear that the concern i s for the radioactive, not the chemically toxic, properties of the substance. And the latter, in individual cases, can be more important than the former. In 1968, the Havskar was carrying non-enriched uranium fluoride. It collided with the Runswich and six con-tainers of uranium fluoride were lost at sea far four days. Schlayer charac-terizes the danger as one of toxicity: . . .because. . .the risks involved would have been only of a chemical nature and not of a nuclear one. The cargo would have been transformed into acid with negligible radioactivity and radiotoxicity. 4 As to the .criticality risk Tjiad the cargo national Atomic Energy Agency rules. This fear of radioactivity is probably partly associated with the radio-active nature of atomic weapons. Most of the escapes of radioactive material with which one is concerned are the result of weapons testing. 117 And the connection is not irrelevant for liab i l i t y imposition. The placement of 86 liabi l i t y labels an activity suspect. In Professor Coser* s terms, that sus-activity as suspect, the international community helps to define the bounds of accept able behaviour . A related reason is a lack of knowledge. As in the case of supertankers of o i l , a lack of knowledge leads to a desire to err "on the safe side." This seems especially reasonable when the possible harm is to that one value, 119 human li f e , which has been previously identified as pre-eminent. The Inter-Governmental Marine Consultative Organization has found l i t t l e by way of analogy (from o i l pollution l i a b i l i t y 3 in the sphere of the nuclear conventions. A fundamental differ-ence is that the element of menace to human lif e is virtually without significance in situations of large-scale o i l pollution, even though the results of the latter may involve a grave fin-ancial burden for the victim. But even with nuclear material, there are no true absolutes. There are the exceptions to liability mentioned above, and more importantly, there is provision for exempting small amounts of material from the coverage of the Convention: An Installation State may, i f the small extent of the risks involved so warrants, exclude any small quantities of nuclear material from the application of this Convention, provided that— a. maximum limits for the exclusion of such quantities have been established by the Board of Governors of the International Atomic Energy Agency; and b. any exclusion by an Installation State is within such estab-lished l i m i t s . 1 2 1 A similar exception, regarding "venting," escape of radioactive material, from underground explosions has been implied by the actions of the parties to the Limited Nuclear Test Ban Treaty, fbofessor Bechhorfer.has shown that both th© .Waited States and the Soviet Union have ignored "technical violations" of 122 the "no venting" rule, in spite of the absolute wording of the Treaty. picion has a "boundary-defining" function; .118 That is, by labelling an 87 This is explicable i f part of the reason for prohibition is the direction of the system, the common property nature of world order. Testing is prohibited because one test leads to another and another. In the case of the Soviet and American tests, there is l i t t l e danger of such slipping. Nuclear testing, 123 if detected, i s internationally condemned. The strength of the reaction deters increasing the scale of the testing programmes. It is paradoxical that the imposition of the prohibition broadly, and the acceptance of its boundary-defining effect as the norm, may be successful enough to eliminate its need in specific instances. The size of the exceptions allowed depends upon the trade-off between the utility of allowing the conduct and the cost of decreased deterrence. Detergent s Lest one think that a l l such restrictions are totally rational, one 124 must consider the European Agreement to Restrict Detergents. Article I bans the use of detergents which are not "80$ biodegradable." But the problem with detergents is bi ode gradation; they provide more nutrients than a particular ecological community can absorb, and algae begin to grow on the increased nutrient base. This, as well as being not aesthetic, uses 125 oxygen in the water, and species requiring high oxygent levels die. Thus the problem might seem to be exacerbated by the requirement. There is a limitation on the use of biodegradable detergents: their use "must not result in the usage of detergents which;- under conditions of normal use, 126 might affect adversely human or animal health." However this limitation seems aimed at problems similar to those encountered in the United States 127 when phosphate content was lowered, and not at problems of biodegradation 88 of the phosphates themselves. The existence of such an agreement must be attributed to the political S 128 visibility of the topic. uch visibility has been canvassed before, but then special concern for particular substances could be rationalized or explained: there were physical facts, in combination with value preferences, which could support special concern, ^hus the agreement on detergents highlights the problems of dealing with, and interpreting documents which deal with, such topics. General Criteria for Substances Specific agreements have not been reached on every possible polluting substance. The problem of dealing with a large number of substances was 1 pQ faced in the dumping conventions, the Oslo Ocean Dumping Convention. and - r-TI 3Q the London Ocean Dumping Convention. The technique developed to deal with the problem is the "black/grey" distinction. "Black" substances are those which, generally speaking, cannot be "dumped.1" "Grey" substances 132 require a "special permit," and, consequently, each dumping of "grey" substances requires special consideration. All other substances may be 133 dumped under a "general permit." Thus the three categories should form 134 a progression from most dangerous to least dangerous. This technique has been adopted in the Paris Convention for Third Party Liability for 135 Nuclear Damage. the Helsinki Convention on the Protection of the Environ-136 ment of the Baltic Sea Area, the Convention for the Protection of the 137 Mediterranean Sea Area. the 1973 Convent ion for Prevention of Pollution 138 of the Sea-by Ships.' and endorsed in the Final Act of the European Secur-139 ity Conference. 89 The success of these conventions depends on the utility of the 140 "black" and "grey" categories. Although "dumping" is not entirely a 141 future phenomenon, its present use for disposal is minimal, relative 142 to other uses of the sea. It should be easier to deal with than activities presently widespread, for there should be l i t t l e disruption, and attendant cost. Thus one would hope that the Convention would deal boldly with the problem. But it did not. 1 4 3 The criteria behind, and in, the categories differ l i t t l e from those already discussed. Extreme 144 145 toxicity, concern for human health, uncertainty and consequent sus-146 147 picion, discouragement of activities of a common property nature, 148 1 4 9 and persistence have a l l been mentioned before. Somewhat more useful i s the new mention of more remote effects: 7. Susceptibility to physical, chemical and biochemical changes and interaction in the aquatic environment with other dissolved organic and inorganic materials. 8. Probability of production of taints or other changes reducing marketability of resources (fish, shellfish, etc.). It has been mentioned that often more subtle effects like trace amounts of substances do not receive the recognition given very visible direct effects like oil-covered birds. This provision mitigates that myopia. Unfortun-ately i t does not address the elements of the limits of remoteness, that is, how far away in time or place the taint may occur. Questions of time, how far ahead one must look for the effect, and the standard for comparing present value and future harm, are not discussed. 1 5 1 Also interesting is the primacy given to fishing over other uses 152 of the sea; the dominant concern throughout the annexes is for fishing. 153 Along with navigation, it is mentioned specifically in Annex I and 9 0 1 5 4 A n n e x I I , a n d i s m e n t i o n e d m o r e o f t e n t h a n o t h e r u s e s . T h e c o n s i d e r -a t i o n o f r e m o t e e f f e c t s , a b o v e , c l e a r l y f o c u s e s o n f i s h i n g w h e n i t s p e a k s o f " p r o d u c t i o n o f t a i n t s . " w h i l e i t i s n o t p o s s i b l e h e r e t o i n v e s t i g a t e 1 5 5 w h e t h e r t h i s o n e u s e s h o u l d h a v e a p o s i t i o n o f p r e - e m i n e n c e , i t i s c l e a r f r o m t h e C o n v e n t i o n t h a t i t d o e s . S o m e w h a t m o r e c a n b e s e e n i n t h e L o n d o n P r o t o c o l t o t h e 1 9 6 9 C o n v e n -t i o n R e l a t i n g t o I n t e r v e n t i o n o n t h e H i g h S e a s . A f t e r e x t e n d i n g t h e c o a s t a l S t a t e ' s r i g h t o f i n t e r v e n t i o n t o s u b s t a n c e s o t h e r t h a n o i l i n 1 5 7 A r t i c l e I ' ( l ) , t h e P r o t o c o l l i s t s t w o c a t e g o r i e s o f s u b s t a n c e s w h i c h m a y g i v e r i s e t o t h e r i g h t . T h e f i r s t i s m a d e u p o f t h o s e s u b s t a n c e s w h i c h 1 5 8 a c o m m i t t e e o f e x p e r t s s e e s f i t t o a d d . B u t t h e s e c o n d c a t e g o r y i s o p e n -e n d e d : A r t i c l e 1 ( 2 ) b . t h o s e o t h e r s u b s t a n c e s w h i c h a r e l i a b l e t o c r e a t e h a z a r d s t o h u m a n h e a l t h , t o h a r m l i v i n g r e s o u r c e s a n d m a r i n e l i f e , t o d a m -a g e a m e n i t i e s o r t o i n t e r f e r e w i t h o t h e r l e g i t i m a t e u s e s o f t h e s e a . T h i s s h o u l d l o o k f a m i l i a r , f o r i t i s t h e G E S A M P d e f i n i t i o n o f p o l l u t i o n . T o b e u s e f u l i n d e f i n i n g t h e l e g a l i t y o f s a n c t i o n s s o d r a s t i c , a n d d e t e r -1 5 9 m i n i n g c o m p e n s a t i o n f o r v i o l a t i o n , l i m i t a t i o n s h a d t o b e i n t r o d u c e d . T h e l i m i t a t i o n c h o s e n i s i n A r t i c l e 1 ( 3 ) : W h e n e v e r a n i n t e r v e n i n g P a r t y t a k e s a c t i o n w i t h r e g a r d t o a s u b s t a n c e r e f e r r e d t o i n p a r a g r a p h 2 ( b ) a b o v e , t h a t P a r t y s h a l l h a v e t h e b u r d e n o f e s t a b l i s h i n g t h a t t h e s u b s t a n c e , u n d e r c i r c u m s t a n c e s p r e s e n t a t t h e t i m e o f t h e i n t e r v e n t i o n , c o u l d r e a s o n a b l y p o s e a g r a v e a n d i m m i n e n t d a n g e r a n a l o g o u s t o t h a t p o s e d b y a n y o f t h e s u b s t a n c e s e n u m e r a t e d i n t h e l i s t r e f e r r e d t o i n p a r a g r a p h 2 ( a ) a b o v e . W h i l e o n e m a y w o n d e r w h a t a n a l o g o u s d a n g e r i s , 1 ^ 0 t h e t h r u s t o f t h e P r o t o -c o l i s t o l i m i t t h e e x e r c i s e o f t h e r i g h t . T h i s m u s t r e f l e c t t h e p r e f e r e n c e 9 1 f o r f r e e d o m o f n a v i g a t i o n m e n t i o n e d e a r l i e r . C i r c u m s t a n c e s E x c u s i n g L i a b i l i t y T h e n e x t q u e s t i o n t o b e c a n v a s s e d i s : " U n d e r w h a t c i r c u m s t a n c e s i s t h e r e l i a b i l i t y ? " F o r t h e s a k e o f c o n v e n i e n c e t h i s w i l l b e s u b d i v i d e d i n t o p h y s i c a l l o c a l e , a n d , m o s t i m p o r t a n t l y f o r a c c i d e n t a l l i a b i l i t y , e x c u s i n g c i r c u m s t a n c e s . L o c a l e A l l p r o v i s i o n s o f a l l t h e c o n v e n t i o n s i m p l i c i t l y s p e a k t o t h e q u e s t i o n o f l o c a l e . T h e h i s t o r y o f t h e 1 9 5 4 C o n v e n t i o n s h o w s t h a t p r o x i m i t y t o s h o r e -l i n e w a s o r i g i n a l l y t h e p r i m a r y c r i t e r i o n f o r a l l o w i n g o r p r o h i b i t i n g d i s -161 168 c h a r g e . A l t h o u g h m u c h e m p h a s i s h a s s h i f t e d t o " p o l l u t i o n o f t h e s e a s , " 1 6 3 p r o x i m i t y t o l a n d i s s t i l l p r i m a r y . S i m i l a r l y t h e p r e s e n c e o f f i s h s t o c k s i i i ^ a l o c a l i t y r e c e i v e s a t t e n t i o n . B u t t h i s g o e s l i t t l e b e y o n d t h e e a r l i e r d i s c u s s i o n o f a c t i v i t i e s a n d f r e e d o m s t o b e p r o t e c t e d . A m o r e c o n c r e t e l o c a l i t y p r e f e r e n c e i s f o u n d i n A n n e x I I I o f t h e L o n d o n O c e a n D u m p i n g C o n v e n t i o n : C . 4 . T h e p r a c t i c a l a v a i l a b i l i t y o f a l t e r n a t i v e l a n d b a s e d m e t h o d s o f t r e a t m e n t , d i s p o s a l o r e l i m i n a t i o n , o r o f t r e a t -m e n t t o r e n d e r t h e m a t t e r l e s s h a r m f u l f o r d u m p i n g a t s e a . W h i l e o n e m a y q u a r r e l w i t h t h e r a t i o n a l i t y o f t h i s p r e f e r e n c e f o r l a n d -b a s e d d i s p o s a l , t h i s d o e s c o m p o r t w i t h d e c i s i o n s l i k e t h a t i n t h e S t e l l a 1 6 4 M a r i s . w h e r e l a n d - b a s e d i n c i n e r a t i o n o f v i n y l c h l o r i d e w a s p r e f e r r e d o v e r d u m p i n g i n t h e A t l a n t i c . P e r h a p s t h e p r i m a r y p o i n t t o b e t a k e n f r o m t h e s e d e v e l o p m e n t s i s t h e n e e d t o c o n t r o l f o r a " l a n d p r e f e r e n c e " i n d e v e l -o p i n g a r a t i o n a l r e g i m e . E x c u s i n g C i r c u m s t a n c e s E x c e p t i o n s t o l i a b i l i t y h a v e b e e n c a n v a s s e d i n o n e p a r t i c u l a r a r e a , 9 2 n u c l e a r w a s t e s , i n o r d e r t o a s c e r t a i n p a r t i c u l a r p r o b l e m s o f t h e a r e a , b u t t h e y d e s e r v e a t t e n t i o n m o r e g e n e r a l l y . T h e e x i s t e n c e o f a n e x c e p t i o n d e f i n e s a t w h i c h p o i n t t h e s o c i a l c o s t s o f p r o h i b i t i n g e m i s s i o n a r e t h o u g h t t o b e l e s s t h a n t h e s o c i a l b e n e f i t s . T h e r e h a s b e e n n o t i c e a b l e e v o l u t i o n i n t h e f o r m u l a t i o n o f e x c e p t i o n s t o s c h e m e s o f p o l l u t i o n c o n t r o l . T h e e a r l i e r f o r m u l a t i o n i s f o u n d i n t h e 1 9 6 9 C o n v e n t i o n o n C j y j i L i a b i l i t y f o r O i l P o l l u t i o n D a m a g e ; A r t i c l e I I I 2 . N o l i a b i l i t y f o r p o l l u t i o n d a m a g e s h a l l a t t a c h t o t h e o w n e r ( o f t h e s h i p ] } i f h e p r o v e s t h a t t h e d a m a g e : a . r e s u l t e d f r o m a n a c t o f w a r , h o s t i l i t i e s , c i v i l w a r , i n s u r -r e c t i o n o r a n a t u r a l p h e n o m e n o n o f a n e x c e p t i o n a l , i n e v i t a b l e a n d i r r e s i s t i b l e c h a r a c t e r , o r b . w a s w h o l l y c a u s e d b y a n a c t o r o m i s s i o n d o n e w i t h i n t e n t t o c a u s e d a m a g e b y a t h i r d p a r t y , o r c . w a s w h o l l y c a u s e d b y t h e n e g l i g e n c e o r o t h e r w r o n g f u l a c t o f a n y G o v e r n m e n t o r o t h e r a u t h o r i t y r e s p o n s i b l e f a r t h e m a i n -t e n a n c e o f l i g h t s o r o t h e r n a v i g a t i o n a l a i d s i n t h e e x e r c i s e o f t h a t f u n c t i o n . 3 . I f t h e o w n e r p r o v e s t h a t t h e p o l l u t i o n d a m a g e r e s u l t e d w h o l l y o r p a r t i a l l y e i t h e r f r o m a n a c t o r o m i s s i o n d o n e w i t h i n t e n t t o c a u s e d a m a g e b y t h e p e r s o n w h o e s u f f e r e d t h e d a m a g e o r f r o m t h e n e g l i g e n c e o f t h a t p e r s o n , t h e o w n e r m a y b e e x o n -e r a t e d w h o l l y o r p a r t i a l l y f r o m h i s l i a b i l i t y t o s u c h p e r s o n . T h u s t h e r e a r e t h r e e d i f f e r e n t k i n d s o f e x c e p t i o n s , ^ h e f i r s t i s o f e x c e p t i o n a l c i r c u m s t a n c e s : w a r a n d A c t s o f G o d . ^be s e c o n d i s t h e i n t e r v e n i n g t o r t f e a s o r . A n d t h e t h i r d i s c o m p a r a t i v e n e g l i g e n c e , a l t h o u g h w i t h t h e c o m p a r i s o n g o i n g t o d a m a g e a n d n o t t o f a u l t . T h i s s e r i e s o f e x c e p t i o n s i s n a r r o w e d i n t h e 1 9 7 1 L o n d o n O c e a n D u m p i n g C o n v e n t i o n : 9 3 A r t i c l e V 1 . T h e ^ p r o h i b i t i o n o f d u m p i n g s u b s t a n c e s f o u n d o n t h e b l a c k l i s t ] s h a l l n o t a p p l y w h e n i t i s n e c e s s a r y t o s e c u r e t h e s a f e -t y o f h u m a n l i f e o r o f v e s s e l s , a i r c r a f t , p l a t f o r m s o r o t h e r m a n - m a d e s t r u c t u r e s a t s e a i n c a s e s o f f o r c e m a j e u r e c a u s e d b y s t r e s s o f w e a t h e r , o r i n a n y c a s e w h i c h c o n s t i t u t e s a d a n g e r t o h u m a n l i f e o r a r e a l t h r e a t t o v e s s e l s , a i r c r a f t , p l a t f o r m s o r o t h e r m a n - m a d e s t r u c t u r e s a t s e a , i f d u m p i n g a p p e a r s t o b e t h e o n l y w a y o f a v e r t i n g t h e t h r e a t a n d i f t h e r e i s e v e r y p r o b a b i l i t y t h a t t h e d a m a g e c o n s e q u e n t u p o n s u c h d u m p i n g w i l l b e l e s s t h a n w o u l d o t h e r w i s e o c c u r . O n e s h o u l d n o t b e d i s t r a c t e d b y t h e r e f e r e n c e t o h u m a n l i f e . S i n c e t h i s d e a l s w i t h i n t e n t i o n a l d i s c h a r g e , t h e r e i s a d e c i s i o n t o b e m a d e , a n d a b a s i s f o r t h e d e c i s i o n m a y f a i r l y b e s p e c i f i e d . W h e n d e a l i n g w i t h a c c i -d e n t a l s p i l l a g e , n o s u c h d e c i s i o n w i l l t a k e p l a c e , a n d t h e r e i s n o r e a s o n t o s p e c i f y a b a s i s . O n e r e l a t i v e l y m i n o r n o t e i s t h e s l i g h t n a r r o w i n g o f b a s e s f o r d e c i s i o n f r o m t h o s e . * i n t h e 1 9 5 4 C o n v e n t i o n . T h e r e h u m a n l i f e , s a f e t y o f t h e v e s s e l , o r p r e s e r v a t i o n o f p r o p e r t y w e r e a l l s m f f i c i e n t . N o w t h e t h i r d h a s b e e n e l i m i n a t e d . B u t a m o r e g e n e r a l n a r r o w i n g o c c u r s . W h i l e t h e c a t e g o r i e s h a v e b e e n w i d e n e d t o " a n y c a s e " f r o m t h e s p e c i a l c i r c u m s t a n c e s o f w a r , A c t s o f G o d , a n d s o f o r t h , 1 6 7 a g e n e r a l l i m i t a t i o n h a s b e e n i n t r o d u c e d . T h e l i m i t a t i o n h a s t w o p a r t s : t h e d u m p i n g m u s t b e t h e o n l y w a y o f a v e r t i n g t h e t h r e a t , a n d i t m u s t b e a l m o s t c e r t a i n t h a t t h e d a m a g e c o n s e q u e n t w o u l d b e l e s s t h a n o t h e r w i s e . T h i s n a r r o w s t h e s c o p e o f t h e e x c e p t i o n t o c a s e s i n w h i c h t h e r e g i m e n o l o n g e r a c h i e v e s i t s d e s i r e d e n d . T h e l i m i t a t i o n i s p a r t i c u l a r l y i n t e r e s t i n g , f o r i t p r o v i d e s a p l a u s i b l e d e f i n i t i o n f o r r e a s o n a b l e n e s s . I n t h o s e c a s e s w h e r e t h e a i m o f t h e l i a b i l i t y r e g i m e h a s b e e n m a d e c l e a r , r e a s o n a b l e e x c e p t i o n s c a n b e d e f i n e d a s t h o s e w h i c h p r o m o t e s u c h e n d s . T h e r o l e o f t h e e x c e p t i o n , t h e n , i s t o d e a l w i t h 94 situations in which the factors which dictated the creation of the regime in the first place have shifted so dramatically that dispensation must be granted. If this shift of factors could be foreseen by the drafters of the regime i t should be drafted explicitly, rather than left to case by case decisions which may have to be made during emergencies or with in-169 adequate information. But, for those cases in which the shift cannot be foreseen, the exception could prevent subversion of the aims. This narrowing of exceptions is shown in a slightly different way in the 1973 Convention: [The prohibition of o i l discharge]] shall not apply to: a. the discharge into the sea of o i l or oily mixture neces-sary for the purpose of securing the safety of a ship or saving life at sea; b. the discharge into the sea of o i l or oily mixture re-sulting from damage to a ship or its equipment; i . provided that a l l reasonable precautions have been taken after the occurrence of the damage or discovery of the dis-charge for the purpose of preventing or minimizing the dis-charge ; and i i . except i f the owner or the Master acted either with intent to cause damage, or recklesslv and with knowledge that damage would probably result. . . . The first line goes to intent again, although it is not as narrow as is the similar provision in the London Ocean Dumping Convention. The rea-171 sonable precautions were required by the 1954 Convention, but the second half was not. The exception for unintentional discharges has been narrowed to force reasonable behaviour at a l l times, not just after the accident causing the s p i l l . The formulation, "recklessly and with knowledge" sounds much like some formulations of gross negligence. Also, there is no se-95 quential requirement; that is, the reckless acts can take place before the damage occurs, for example, the decision to change course without proper charts and without a local pilot in the Torrey Canyon, could be included in this narrowing. So the exception does not depend on a myopic attention to intent, but has been broadened to reflect the rational management of a l l marine activity. The next exception is implied by paragraph D of Annex II to the London Convention. In defining those substances requiring a special permit for dumping, i t treats radioactive wastes: Radioactive wastes or other radioactive matter not included in Annex I. In the issue of permits for the dumping of this matter, the Contracting Parties should take f u l l account of the recommendations of the competent international body in this field, at present the International Atomic Energy Agency. Annex I established the duty of the International Atomic Energy Agency to create standards for substances prohibited to be dumped. That was not a departure from the role of the Marine Environmental Protection Committee under the Protocol to the 1969 Convention Relating to Intervention on the 172 High Seas, already discussed. But the provision in Annex II allows stan-dards to be set for disposal of waste. From here, it is easy to see the util i t y of standards of packaging and carrying, standards designed to min-imize damage in the event of accident. In fact that is already done by the 173 IAEA, and there is some evidence that i t has been effective. Exemption from liability when recognized standards are met could serve to enforce the standards, -perhaps more cheaply than by inspection. There is a hint of the use of the exemption from li a b i l i t y to enforce standards in Article V(2) of the Convent ion on Civil Liability for Gil Pol-96 lution Damage: If the incident occurred as a result of the actual fault.; or privity of the owner, he shall not be entitled to avail himself of the limitation provided in paragraph 1 of this Article. But as an attempt to enforce a standard, this provision falls short, for it contains no explicit standard. "Actual fault or privity" can describe behaviour neither for the courts nor for the insurer. Although there has 174 been some use of the liabi l i t y incentive in the United States, there i s no explicit use of it internationally. That is not necessarily bad. One of the advantages of using l i a b i l i t y imposition as a tool is that i t allows the actor to find the cheapest means 17*5 of reducing the undesirable output. To write standards, and enforce them by means of lowered liability, is to forego that advantage. Globally, where costs and utilities will differ greatly, ° the imposition of stan-dards will not necessarily move toward "Pareto-optimality." Next is the remoteness of damage problem. The 1969 Convention creates lia b i l i t y for "pollution damage," which is defined in Article 1(6): "Pollution damage" means loss or damage caused outside the ship carrying o i l by contamination resulting from the escape or dis-charge of oil from the ship, wherever such escape or discharge may occur, and includes the costs of preventive measures and further loss or damage caused by preventive measures. Governmental measures are to be included. The Convention reflects a concern that certain measures, preventive measures, might not be taken to be "caused" by the emission. The measures were specifically added to the definition. This reflects the problem that in creating the regime usual definitions of causation, both legal and lay, may be unduly restrictive. They may stop 177 short of including a l l costs that should be "internalized." One may 97 criticize the completeness of internalization here, since only the mare T 78 remote governmental costs are included. The extent of internalization elsewhere is left to future definition. But the principle is recognized. Person Liable Next one must consider on whom lia b i l i t y should be imposed. This consideration must have two parts, the number of persons, or rather the number of types of persons, and the identity of those persons. In dis-cussion of the number of persons, the central principle is that of "chan-nelling. " The concept first appeared in the nuclear conventions of the early 1960's: Article II 1. The operator of a nuclear ship shall be absolutely liable for any nuclear damage upon proof that such damage has been caused by a nuclear incident involving the nuclear fuel of, or radioactive products or waste produced in, such ship. 2. Except as otherwise provided in this Convention no person other than the operator shall be liable for such nuclear damage. Channelling is the principle that only one person be liable for the damage. Whi le its first widespread recognition was in the 1960's, i t has since been developed further and spread into other areas. By 1971, i t had become evident that the 1962 Convention was not going 180 to come into force, and that a similar fate awaited the Vienna Convention. But th® principle of channelling was thought sufficiently important to de-serve preservation, and the Convention for Liability in the Maritime Trans-1 ftp 183 port of Nuclear Materials x o , s was drafted. Now in force, it provides: 98 Article I Any person who by virtue of an international convention or national law applicable in the field of maritime transport might be held liable for damage caused by a nuclear incident shall be exonerated from such liability: a. i f the operator £as defined in the Paris Convention for Third Party Liability for Nuclear Damage and the Vienna Con- vention for Third Party Liability for Nuclear DamageJ of the installation is liable for such damage under either the Paris or the Vienna Convention, or b. i f the operator of a nuclear installation is liable for such damage by virtue of a national law governing the liability for such damage, provided that such law is in a l l respects as favourable to persons who may suffer damage as either the Paris or the Vienna Convention. Although on cursory reading, the shift to operators of installations from the operators of maritime transport seems to remove liability from those engaged in maritime activities, i t must be remembered that, in most cases, the operator of the ship will be deemed an operator of an installation, and thus remains liable. Further, the concept appears in Article 111(4) of the Convention on Civil Liability for Oil Pollution Damage in a slightly modified form: No claim for compensation for pollution damage shall be made against the owner otherwise than in accordance with this Convention. No claim for pollution damage under this Con-vention or otherwise may be made against the servants or agents of the owner. There are two modifications. First, the class of those exonerated is smaller: of special importance is the place of the operator of the ship. Unless he is an owner, or the servant of an owner, he is not protected. Second it limits the liab i l i t y to that under the Convention. The first deals strictly with numbers, but the second deals with the related question, the types of lia b i l i t y . 99 Although the original reason for the second type of channelling was 185 to encourage shipping, which otherwise could not have endured, it now is the same as that of the first, efficiency in obtaining insurance cover.•LO° The first type of limitation prevents possible overlaps in coverage that provide no additional gurantee of compensation, but require additional cover 187 to be purchased. In economic terms this makes sense. One of the requirements for "Pareto-optimality," that is, having the proper amount of a l l goods and 188 services so that no one may gain without someone else losing in any change, is that each factor of production bear its true cost. Since no damage can be twice as great simply because two individuals are liable for i t , the cost of the extra coverage can be either waste or the cost necessary to assure that a l l plaintiffs have defendants they can sue easily. The latter would seem to be mere easily served by a financial responsibility requirement for 189 the one person to whom liability is to attach. At least for o i l , there is some evidence that the implementation of 190 this channelling concept has resulted in lower insurance premiums, and thus this aspect of efficiency is borne out. But there is another aspect to efficiency, the incentive to improve the existing state of knowledge, methods, and technologies. This is the same concern voiced in the Lake Lanoux Arb- itration, where the Tribunal was concerned with the cost of administering any monitoring scheme. The concern has two aspects, that li a b i l i t y be not so divided that costs outweigh benefits for individuals when they do not for 191 society, and that the person with the best ability to reduce accidents is fixed with l i a b i l i t y . 1 9 2 The application of the first is speculative 1 0 0 u n t i l o n e h a s a g o o d e s t i m a t e o f t h e s i z e o f t h e c o s t o f t h e t e c h n o l o g y 1 9 3 o r m e t h o d s , a n d t h e c o s t t h a t l i a b i l i t y r e a l l y i m p o s e s , t h a t i s , i n s u r -a n c e c o s t s . I t m u s t b e r e m e m b e r e d t h a t i m p o s i t i o n o f l i a b i l i t y d o e s n o t 1 9 4 m e a n t h a t t h e p e r s o n s o f i x e d w i l l e v e r f a c e t h a t a m o u n t ; i n s t e a d i t m e a n s t h a t h e m u s t o b t a i n i n s u r a n c e c o v e r f o r t h a t a m o u n t . T h e c o s t o f t h e l i a b i l i t y t o a n i n d i v i d u a l i s t h e c o s t o f t h e i n s u r a n c e p r e m i u m t o t h a t i n d i v i d u a l , a n d a n y d e c r e a s e i n t h a t b y i n c r e a s e d u s e o f t e c h n o l o g y w i l l b e 1 9 5 d e t e r m i n e d , i n t h e c a s e o f s h i p s , b y t h e R a t i n g A s s o c i a t i o n s . A n d t h e r e i s s o m e r e a s o n t o b e l i e v e t h a t s u c h a d e c r e a s e w i l l b e m i n i m a l s i n c e i t w i l l b e n e w , a n d t h e m a r i n e i n s u r a n c e i n d u s t r y h a s r e a c t e d t o t h e n e w w i t h c a u t i o n . 1 A l t h o u g h t h e r e i s r e c o g n i t i o n e l s e w h e r e o f t h e i m p o r t a n c e o f t h i s t e c h -1 9 7 n o l o g i c a l i n c e n t i v e , a n d t h e r e i s c o n s i d e r a b l e m e n t i o n o f i t i n c o n -1 9 8 n e c t i o n w i t h m a r i n e p o l l u t i o n , a n y i n c e n t i v e m u s t d e p e n d o n t h e r e a c t i o n o f t h e i n s u r a n c e m a r k e t t o c h a n g e s a n d h e n c e c h a n g e s i n t h e r a t e s t r u c t u r e . L i m i t a t i o n o f l i a b i l i t y w a s m e n t i o n e d b r i e f l y a b o v e , b u t d e s e r v e s f u r t h e r d i s c u s s i o n . T n e e x i s t e n c e o f t h e l i m i t a t i o n s h o w s t h a t c o m p e n -s a t i o n i s n o t t h e o n l y e n d t o b e c o n s i d e r e d . A t t h e 1 9 6 9 C o n f e r e n c e , t h e B r i t i s h g o v e r n m e n t m a d e v e r y c l e a r t h e p u r p o s e o f t h e l i m i t a t i o n : T h e U K p r o p o s e s t h a t t h e l i m i t s h o u l d b e 1 2 5 d o l l a r s p e r t o n w i t h a c e i l i n g o f 1 4 m i l l i o n d o l l a r s r e p r e s e n t i n g i n P o i n c a r e f r a n c s 1 9 0 0 a n d 2 1 0 m i l l i o n r e s p e c t i v e l y . We b e l i e v e t h a t i n s u r -a n c e u p t o t h e s e l i m i t s i s o b t a i n a b l e o n t h e L o n d o n m a r k e t i f , -b u t o n l y i f , t h e " B r i t i s h e x c e p t i o n s " t o l i a b i l i t y a r e a d o p t e d . T h e p u r p o s e i s t o a s s u r e i n s u r a b i l i t y , t h a t i s , t o a s s u r e t h a t t h e a c t i v i t y c a n g o o n . I n a m o d e r n s h i p p i n g w o r l d t o p r o h i b i t i n s u r a n c e i s t o p r o h i b i t t h e a c t i v i t y . T h i s i s t h e s a m e c o n c e r n t o m a i n t a i n t h e a c t i v i t y w h i c h w a s s e e n i n t h e T r a i l S m e l t e r A r b i t r a t i o n . 2 ° ° a n d t h e C o n v e n t i o n R e l a t i n g t o 1 0 1 I n t e r v e n t i o n o n t h e H i g h S e a s . S o f a r , t h e p r e l i m i n a r y q u e s t i o n s o f n u m b e r s , p e r s o n s , a n d a m o u n t o f l i a b i l i t y h a v e b e e n d i s c u s s e d , b u t t h e c e n t r a l q u e s t i o n r e m a i n s , t h e i d e n t i t y o f t h e p e r s o n o n w h o m l i a b i l i t y i s t o b e f i x e d . T h e a n s w e r g i v e n i n t h e 1 9 6 9 C o n v e n t i o n o n C i v i l L i a b i l i t y f o r O i l P o l l u t i o n D a m a g e i s t h e o w n e r o f t h e s h i p . 2 0 1 B u t t h a t i s n o t t h e o n l y p o s s i b i l i t y . T h r e e o t h e r s w i l l b e c o n s i d e r e d h e r e : t h e o p e r a t o r o f t h e s h i p , t h e o w n e r o f t h e c a r g o , t h a t i s , t h e u s e r o f t h e s h i p ' s c a r r i a g e c a p a c i t y , a n d t h e s t a t e o f t h e s h i p ' s f l a g . O w n e r T h e c h o i c e o f t h e o w n e r r e f l e c t s a c o n c e r n f o r c e r t a i n t y , n o t j u s t t h a t t h e i n j u r e d w i l l b e c o m p e n s a t e d , b u t t h a t s o m e o n e w i l l p a y . T h e f i r s t i s s i g n i f i c a n t , b u t t h e s e c o n d i s m o r e i m p o r t a n t f o r t h e p u r p o s e o f c o s t " i n t e r -n a l i z a t i o n . " I f i t i s d e c i d e d t h a t l i a b i l i t y s h o u l d r e s t o n a p a r t i c u l a r a c t i v i t y , t h a t d e c i s i o n s h o u l d n o t b e d e f e a t e d b y a n i n a b i l i t y t o i d e n t i f y t h e p a r t y f i x e d w i t h l i a b i l i t y . T h e r e w a s s u p p o r t a t t h e 1 9 6 9 C o n f e r e n c e f o r 2 0 2 i m p o s i t i o n o f l i a b i l i t y o n t h e o p e r a t o r o f t h e s h i p , b u t s u c h i m p o s i t i o n 2 0 3 i n v o l v e s s e r i o u s p r o b l e m s w h e r e t h e r e i s n o r e g i s t e r e d o p e r a t o r . S e e , f o r e x a m p l e , t h e c a s e o f t h e T o r r e y C a n y o n , w h e r e B a r r a c u d a T r a n s p o r t , t h e o w n e r , c h a r t e r e d t h e v e s s e l t o i t s p a r e n t c o m p a n y , U n i o n O i l , o n a " h y b r i d d e m i s e - t i m e c h a r t e r , " a n d U n i o n O i l c h a r t e r e d i t t o B r i t i s h P e t r o l e u m o n a 2 0 4 v o y a g e c h a r t e r . T h i s i m p o s i t i o n o f l i a b i l i t y o n t h e o w n e r s h o u l d w o r k f e w d i s t o r t i o n s 2 0 5 s i n c e t h e m a r k e t i n c h a r t e r i n g i s c o m p e t i t i v e , a s l o n g a s t h e i d e n t i t y o f t h e o p e r a t o r , t h e p e r s o n m a n n i n g a n d o p e r a t i n g t h e v e s s e l , i s k n o w n a t t h e 2 0 6 t i m e t h a t i n s u r a n c e p r e m i u m s a r e c a l c u l a t e d . W h e r e c a r g o e s o n a s h i p a r e h o m o g e n e o u s o v e r t i m e , t h e l i k e l i h o o d o f d a m a g e i s n o t g o i n g t o c h a n g e 102 markedly. S i n c e o i l tankers, after once carrying o i l , can carry l i t t l e 207 else, the cargo will not change without expensive cleaning. Perhaps this particular feature must be modified when common shipping of other substances makes changing the type of cargo more feasible. There was some sentiment expressed for combining liability of the oper-ator with liability of the owner, creating certainty, and direct incentives for the operator. But this suggestion was rejected, for it would entail a duplication of insurance costs, insurance for both the owner and the operator, , , 208 the very consequence avoided by Article 111(4). Operator The position taken in the case of o i l is to be contrasted with that taken in the case of nuclear materials in the Paris Convention, the Vienna Convention, and the Nuclear Ship Operators Liability Convention. A l l of these conventions place the liability upon the operator. rjChe reason for the difference is 209 simple: a l l of them have provisions that yield an ascertainable operator. In the absence of a certainty problem, the reasons for choosing the operator are strong, ^hey were put forth by the Union of Soviet Socialist Republics at the 1969 Conference: While considering the two alternatives in the draft as to whether liab i l i t y for pollution damage should f a l l on the owner or on the operator, preference should be given to li a b i l i t y of the operator. Firstly, the burden of liability must induce a person to take a l l measures for prevention of pollution and for mini-mizing a loss when pollution has occurred. Such measures can be taken only by the operator as the person exercising control of operation and management of the ship. On the other hand, the owner of the ship in many cases (when the ship is under demise charter etc. ) has.no control over the operation and management of the ship. 103 This is, again, the same concern for the incentive as was seen in the Trail Smelter Arbitration. It is correct in dealing.with the management of the ship, for no one but the operator can be responsible for that, but i t is not clear that i t remains true far the equipping of the ship. If it were true that the most effective technology had to be installed at the building of the ship, then the owner would be the person on whom one would wish to 2 1 1 place the incentive. This would be true, for example, for technologies 212 like the construction and placement of tanks. For others, like guidance 213 equipment, the owner is in no special position. Shipper A third possibility is the user of the means of transport, the o i l consignor or consignee. 2 1 4 This is the approach followed in the convention supplementary to the 1969 Conventions, the Convention on a Compensation 215 Fund for Oil Pollution Damage. Article 4(1) imposes li a b i l i t y on the 2 16 international fund in three cases: The Fund shall pay compensation to any person suffering pollution damage i f such person has been unable to obtain f u l l and adequate compensation for the damage under the terms of the pConvent ion on  Civil Liability for Oil Pollution Damage'], a. because the owner liable for the damage. . .is financially in-capable of meeting his obligations in f u l l . . .; an owner being treated as financially incapable of meeting his obligations. . . i f the person suffering damage has been unable to obtain f u l l satisfaction of the amount of compensation due. . .after having taken a l l reasonable steps. . .; c. because the damage exceeds the owner's liab i l i t y under Cthe Convention on G i v i l Liability for Oil Pollution DamageT]. . . . Thus, the Fund is to serve as a back-up, supplementing compensation up to 217 its own limitation. The person on whom liability is fixed must be deter-mined by looking at the source of contributions to the Fund: 104 Article 10(1) Contributions to the Fund shall be made in respect of each Contracting State by any person who. . .has received in total quantities exceeding 150,000 tons: a. in the ports or terminal installations in the territory of that State contributing, o i l carried by sea to such ports or terminal installations; . . . There are other provisions, dealing with the exact method of calculation, but the heart of the matter is the imposition of liabi l i t y on the importer of o i l . This imposition was a result of a compromise reached at the 1969 Conference. There, both IMCO and CMI submitted draft conventions placing liability on the owner of the ship, albeit with different bases of liability.21® This met opposition from nations desiring imposition of liability on the 2 1 9 o i l owner. As a result, a compromise was reached with primary liability on the ship owner, but with secondary li a b i l i t y on a Fund to be created at 220 a future date. Three arguments were advanced for imposition of liability on the o i l owner. First, enforcement would be easier, since o i l companies have assets around the world. That reason is not apposite for the creation of the Fund, since lia b i l i t y is of the Fund, and compensation would be achieved by the cooperation of the Directors of the Fund, not the existence of o i l company assets. Further, i f liability were imposed on the o i l owners, one would expect large oil companies to create subsidiaries for the express purpose 221 22 2 of importing o i l , leaving no other corporate assets available for execution. Second, the risk was said to be part of the o i l companies' operation. It was moreover indisputable that the risk of damage stemmed from the dag|grous nature of o i l and not from it s carriage as such. . . . 105 That argument is specious, for the risk of damage stems equally from the nature of the substance, the fact that it is being carried, and the exis-tence of things that can be harmed. The third factor was hinted at in the original Irish proposal: The ownership of large cargoes of o i l moving on the oceans of the world is likely to be confined to relatively few companies.224 This is the ease of implementing factor. It must be conceded that it is difficult to reach agreement internationally and even more difficult to im-225 plement the agreement. Thus the likelihood of implementation is an impor-tant consideration. Here, this factor has two components. First, there was the belief among some at the Conference that it would be easier to fix lia b i l i t y on o i l companies than on ship owners, since that would involve fewer nations, and 226 therefore would be more likely to achieve international acceptance. A second component, related to the first, is the belief that this method of 227 imposing liability would not cost very much. The first cannot be evaluated any further. If i t is true that impos-ition on the o i l companies would be more acceptable to the international community, particularly the shipping nations, then that does begin to argue for such liability, assuming that the world is a better place with the 228 lia b i l i t y scheme than without i t . But the second is a l i t t l e more dif-ficult. If one of the reasons for imposing l i a b i l i t y on en activity, or group of activities, is to assure that the pricing of the final product of 229 that activity reflects a l l costs of production, any scheme which seeks to reduce that price increase defeats that end. It may be true that con-siderations of international equity 2 3 0 mean that the cost must be shifted, 106 so that countries least able to afford it will not be burdened, but that 231 concern deserves explicit consideration. Imposition of liab i l i t y on the owner of the o i l was not accepted, at least as regards primary liability, at the 1969 Conference, and the reason was the same, but here successful, as that for imposing liability on the operator, the desire to create^incentives to minimize damage by placing li a b i l i t y on those with control. 2 3 2 And the owner of the o i l has little 233 control over its shipment. State The last possibility is fixing l i a b i l i t y on a state, normally the state of the flag of the vessel, ^his solution received l i t t l e attention at the Conference,234 but does deserve discussion here. Although this Chapter deals with conventional law, for the sake of simplicity and completeness, some mention should be made of the implications 235 of the customary law discussed above. The Corfu Channel Case did speak of liability of states when they allow their "territory to be used for acts 236 contrary to the rights of other States." If this were the exclusive test for state liability, its applicability in the field of marine pollution 23V P^ft would be limited. But this "territorialist bias , , , 5 , J O must be due to the nature of the liab i l i t y imposed. It must be remembered that the liability in the Corfu Channel Case was vicarious. To use the municipal analogy, one cannot be liable as the occupier of land unless one is the occupier of that land. The Trail Smelter Arbitration was wider, for i t spoke of acts of persons within the territory or jurisdiction of the state. This includes, then, acts 107 done in the territorial sea and national-waters, as did the earlie? for-mulation. The thorny question is that of the ship flying the flag of the state on the high seas. It is clear that the flag state can assert juris-239 diction, but does this mean that the ships are within the jurisdiction for purposes of the Trail Smelter rule? It would seem that it would not, 240 m for consider the case of the ship which flies the flag of a state. The state's liability must be based on some responsibility i t has in allowing its flag to be flown. The mere act of flying the flag should not be enough to attribute lia b i l i t y to a state, any more than the mere assertion that a person is the agent of another party should bind the supposed ''principal.n It was argued above that control was a key part of the lia b i l i t y formu-lation in the Trail Suiter, and thus one must search for control or an obligation to exert control. If there is liability, i t must be in the failure to perform some act which is required of international persons; that is, the liability must be per-sonal,^ nke the l i a b i l i t y in the Corfu Channel Case. Little more can be said, however, without turning to conventional law to define that duty. Liability has been explicitly imposed on the state of registration, although not in the marine f i e l d . 2 4 1 The Convention far Damage from Space Objects 2 4 2 provides that there shall be strict liability for both the "launching State" and the state from whose territory the space object is launched. Again, this is simply liability for acts done within a state's territory, in the case of the state providing the launching site, and acts of the state itself in the case of the launching state. But liability has also been implicitly imposed, and in much wider circum-108 stances. It wil l be remembered that liability in the Corfu Channel Case rested on the failure of a state to perform a duty. Thus, if one can find duties imposed, li a b i l i t y would lie in the failure to perform them. A general responsibility is recognized in the preamble to the London Ocean Dumping .Convention: Recognizing that states have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction; 2 4 3 And the Convention itself imposes a duty: Article 1 Contracting Parties shall individually and collectively pro-mote the effective control of a l l sources of pollution of the marine environment. . . . In the case of ships, the type of responsibility specifically discussed here, the 1958 Geneva Convent ion on the High Seas provides: in particular, the [flag] State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its f l a g . 2 4 4 This provision takes on special importance since the Geneva Conventions are said to codify customary law, and thus the obligation exists for a l l , includ-245 ing non-signatory nations. Special concern is shown for actions which 246 247 248 could damage submarine cables, as well as o i l , and radioactive matter. Thus there can be state liability for breach of these duties, but its desirability as an option is influenced by three factors. This is fault liability, for the state is liable for failure to perform a duty. Thus a l l 249 of Calabresi's criticisms of the fault system appljr. Additionally, they are exacerbated by the cost of international transactions, that is the 109 difficulty of accomplishing them. Related to this is the fact that the damage must be causally connected to the failure to observe the duty to regulate. This may be of l i t t l e consequence when dealing with the example of the "tramp steamer" which is allowed to fly the flag of some nation, with no conditions attached, for every accident which occurred would probably be related to some inadequacy in procedures or equipment which should have been required. But in many cases, where the accident was clearly a matter of misjudgment, as the Board of Inquiry found it to be in the Torrey Canyon, where no better regulation could have avoided i t , there would be no state liability. The third factor is the matter of the standard imposed. A l l of the duties mentioned are couched in vague, indeterminate terms, and the exact standard would have to be determined by reference to some reasonableness standard. This factor should not rule out t3ae possibility of state lia b i l i t y , for more content can be included in such a reasonableness rule, but i t does 250 require a separate determination. As such, a rule of state liability increases the tertiary costs. Finally, one must look at the other reasons for aid against state liability. As a preliminary point, it should be noted that the problem of OCT "double-insurance" and consequent inefficiency, A is not a concern here, as it was in the other cases of double liability, for states neither insure activities, and thus pay premiums, nor set aside capital as a reserve for such losses, and thus forego the return. Two of the concerns used in evaluating other alternatives seem apposite here as well: the incentive, and compensation. Concern for ; -: 110 i n c e n t i v e s , f o r b e h a v i o u r , f o r t e c h n o l o g i c a l i m p r o v e m e n t , f o r i n f o r m a t i o n g a t h e r i n g , o n b a l a n c e l e n d s w e i g h t t o t h e a r g u m e n t a g a i n s t s t a t e l i a b i l i t y . S t a t e s h a v e l i t t l e c o n t r o l o v e r t h e d a y t o d a y o p e r a t i o n o f m a r i t i m e a c t i -v i t y a n d c a n o n l y a f f e c t t h e m c r u d e l y w i t h s t a n d a r d s . I n d e e d , t h e i n c e n -t i v e w o u l d b e t o d e v e l o p b e t t e r s t a n d a r d s , b u t t h a t i n c e n t i v e i s l i m i t e d , f o r i t i s o n l y n e c e s s a r y t o r e m a i n a b o v e t h e l e v e l r e q u i r e d b y c u r r e n t 2 5 2 i n t e r n a t i o n a l p r a c t i c e . T h e e f f e c t o f c o n s i d e r i n g c o m p e n s a t i o n i s a l s o c l e a r - c u t . T h e r e a r e n o " o n e - t a n k e r c o u n t r i e s " a s t h e r e a r e " o n e - t a n k e r c o r p o r a t i o n s , " s o t h e p r o b l e m o f l i m i t e d a s s e t s d o e s n o t n o r m a l l y a r i s e , ^ a l t h o u g h t h e p r o b l e m o f f i n d i n g a s s e t s i n a g i v e n J u r i s d i c t i o n r e m a i n s . B u t t h e p r o b l e m o f l i m -i t e d a s s e t s i f r e p l a c e d b y t h e p r o b l e m o f s o v e r e i g n i m m u n i t y . E v e n u n d e r „ 2 5 4 t h e s o - c a l l e d " r e s t r i c t i v e t h e o r y " o f s o v e r e i g n i m m u n i t y , i m m u n i t y w o u l d h o l d , f o r t h e l i a b i l i t y a t t a c h e s f o r t h e f a i l u r e t o g o v e r n e f f e c t i v e l y , c l e a r l y t h e a c t o f t h e s o v e r e i g n , i u s i m p e r i l . A n d , i f t h i s h u r d l e i s o v e r -c o m e , e v e n u n d e r t h e r e s t r i c t i v e t h e o r y , t h e s o v e r e i g n i s s t i l l i m m u n e f r o m 2 5 5 e x e c u t i o n a g a i n s t t h e s o v e r e i g n ' s p r o p e r t y . ^ I f a s o v e r e i g n r e f u s e s c o n -s e n t t o b e s u e d , i t i s d i f f i c u l t t o s e e w h y c o n s e n t t o e x e c u t i o n u p o n s t a t e p r o p e r t y w o u l d b e g i v e n . T h u s , c o n s e n t t o t h e j u r i s d i c t i o n o f a n a t i o n a l 2 5 6 c o u r t , t h e I n t e r n a t i o n a l C o u r t o f J u s t i c e , o r a s p e c i a l i n t e r n a t i o n a l t r i b u n a l , w i l l b e n e c e s s a r y f o r s u c c e s s f u l c o m p e n s a t i o n b a s e d o n s t a t e l i a b i l i t y . I n a l l , i t s e e m s t h a t s t a t e l i a b i l i t y i s i m p o r t a n t o n l y a s a " b a c k - u p " s e c o n d a r y l i a b i l i t y , f o r i t n e i t h e r p r o v i d e s p r o p e r i n c e n t i v e s n o r c o m p e n s a t e s . I l l T o W h o m T h e l a s t q u e s t i o n t o b e a d d r e s s e d i s w h o s h o u l d b e c o m p e n s a t e d . A l l o f t h e c o n v e n t i o n s s u r v e y e d s e e m t o a f f o r d c o m p e n s a t i o n t o p r i v a t e p a r t i e s . T h e 1 9 6 9 C o n v e n t i o n o n c i v i l L i a b i l i t y f o r O i l P o l l u t i o n D a m a g e i m p l i e s t h i s w h e n i t s p e a k s o f p e r s o n s c l a i m i n g . 2 5 7 " P e r s o n " i s d e f i n e d i n A r t i c l e 1 ( 3 ) : " P e r s o n " m e a n s a n y i n d i v i d u a l o r p a r t n e r s h i p o r a n y p u b l i c o r p r i v a t e b o d y , w h e t h e r c o r p o r a t e o r n o t , i n c l u d i n g a S t a t e o r a n y o f i t s c o n s t i t u e n t s u b d i v i s i o n s . T h e s e p a r a t e m e n t i o n o f s t a t e s a n d i n d i v i d u a l s i m p l i e s t h a t c o m p e n s a t i o n t o s t a t e s w o u l d b e f o r d a m a g e t h a t t h e s t a t e s u s t a i n e d i n a p e r s o n a l , r a t h e r t h a n r e p r e s e n t a t i v e , c a p a c i t y , f o r e x a m p l e , c l e a n - u p c o s t s . 2 5 8 B u t t h e r e s u l t t h a t f o l l o w s u n d e r t h i s s c h e m e i s n o t u n a m b i g u o u s . C o n s i d e r , f o r e x a m p l e , d a m a g e t o a n o y s t e r f i s h e r y i n s t a t e - o w n e d w a t e r s . T h e o y s t e r -m e n l o s e l i v e l i h o o d w h e n t h e f i s h e r y i s d e s t r o y e d , b u t t h e o w n e r o f t h e f i s h e r y , t h e s t a t e , i s a l m o s t d a m a g e d p e r s o n a l l y . I n f a c t , o n e w o u l d g u e s s t h a t a l a r g e p a r t o f t h e d a m a g e w o u l d b e t h e v a l u e t h a t t h e s t a t e c o u l d r e a l i z e e a c h y e a r , t h a t i s , t h e l i v e l i h o o d o f t h e o y s t e r - m e n . T h e m a t t e r i s n o t j u s t a n a c a d e m i c o n e . I t m a y b e t r u e t h a t s u i t c o u l d n o t b e b r o u g h t i n t h e s t a t e o f t h e d a m a g e , f o r r e a s o n s o f e n f o r c e a b i l i t y , 2 5 9 a n d a n o t h e r s t a t e ' s c o u r t s w o u l d h a v e t o d e c i d e b e t w e e n t h e s t a t e o f t h e d a m a g e a n d i t s n a t i o n a l s . T h i s p a r t i c u l a r p e r s o n a l l i a b i l i t y , h o w e v e r , i s l i m i t e d t o t h e l i a b i l i t y e x p r e s s l y p r o v i d e d f a r i n t h e c o n v e n t i o n s . T h e t y p e o f l i a b i l i t y t h a t w a s j u s t s u g g e s t e d , l i a b i l i t y o f s t a t e s f o r f a i l u r e t o p e r f o r m s o m e i n t e r n a t i o n a l 260 d u t y , w o u l d b e t o a n o t h e r s t a t e , f o r o n l y i n t e r n a t i o n a l p e r s o n s c a n e s p o u s e c l a i m s i n t e r n a t i o n a l l y , i n t h e a b s e n c e o f i n t e r n a t i o n a l a g r e e m e n t 112 to the contrary. 2 6 1 Article 34(1) of the Statute of the International Court of Justice provides: "Only States may be parties in cases before the Court." The correctness of this decision for personal compensation may be questioned on two grounds. Wood argues that compensation to the indivi-duals injured is inefficient for those individuals have neither the means ggo nor the incentive to undo the damage done, to reconstruct. This, however, must be qualified. *ne individuals who receive compensation do have the means to reconstruct i f the compensation is just and adequate, I"he lack of means really refers to the costs of organization and relatively costless 263 access to materials and processes necessary, on the part of the government. But this is not necessarily true; especially in the case of relatively small damage, which can be remedied by the use of local technology, a larger apparatus may only generate inefficiency. 2 6 4 Nor is the question of incentive clear. If one could assume away the difference in transactions costs, i t would not be clear which way the incentive for the individuals would l i e . Presumably perfectly adequate compensation would be equal to the capitalized value of the stream of future earnings. 2 6 5 If the individuals do not spend a l l the money in present con-266 sumption, they should be indifferent to investment in the destroyed 267 industry or any other. If there are any costs to entry and exit, they should then choose their own industry for investment. A slightly greater problem is the intergenerational one. Adequate compensation would include capitalizing a stream of earnings to infinity, h^e individuals receiving the compensation would not be able to enjoy those earnings, and so would 113 prefer to spend them now, instead of reinvesting when they will not receive the entire return. A n exception would occur i f they planned to sell some proprietary interest upon retirement, in which case the selling price would include the capitalized value of future earnings. Thus the in-centive will depend on particular national tenure arrangements. Perhaps the greatest argument along this line can be made in terms of safety. It was important for the individual that the compensation be exact. If i t were less, he would not have the means, and if it were too much, then he would prefer to abandon the indu stry. Presumably a govern-ment would have no such problems, being able to make up a difference, or absorb a surplus without distortion. The second reason for questioning this assignment of compensation is OC.Q the factor allocational one already canvassed. There is some evidence that payment to the party injured introduces long-run inefficiencies in allocation, although this has not been proven conclusively. Conclusion The discussion of conventional liability has involved four topics. First was the substance. Oil and nuclear matter were seen to have attracted special attention. The reasons were not simple: common property problems, the visibility of o i l , and a concern for aesthetics were mixed together. One was forced to suspect the calm rationality of the choices because of the treatment of detergents which is, at best, counter-productive. The most important idstinction is the "black/grey" one of the dumping conven-tions, but unfortunately the distinction i s not carefully delineated, so its explication is left to the future. It was noted, however, that 114 fishing and navigation are pre-eminent among the uses of the sea. And finally i t was seen that there is a preference for land-based activities causing pollution over similar ones at sea. The effects of the activities, though, make the distinction suspect. Second were circumstances excusing liability, ^hey were seen, in the main, to protect other interests, those not harmed by pollution. An example is shipping, the exemption from liability allowing maintenance of the activity. Proximity to land and the special nature of certain marine areas also were important. Ana, last, are those peculiarly legal exceptions dealing with different forms of the problem of causation. Third was the question of the person liable. Although much is seen in the literature on pollution about the need to impose liability on the person who :• can do the most to minimize the total costs, in practice the more powerful concern is for certainty, that the defendant be ascertainable. This can properly be seen as an attempt to minimize administrative cost, an aspect of which is the principle of channelling. Fourth, and last, was the problem of to whom lia b i l i t y should flow. This was seen to depend on the ability to reconstruct, and on the effect of two distortions, political and temporal. FOOTNOTES CHAPTER V 115 !(1958) 12 UST 2989; TIAS #4900; 327 UNTS 3. 2For a good, short survey of the law up to 1973, see E.D. Brown, "The Conventional Law of the Environment," (1973) 13 Natural Resources  Journal 203. 3Since the conventions of liability purport to adopt strict liability, that is, liability without proof of fault, a l l that is left to discuss in circumstances are exceptions to this liability. See Article 111(1) of the 1969 Convention on Civil Liability for Oil Pollution Damage. (1972) 11 Internat ional Legal Materials 277. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an accident. . .shall be liable for any pollution damage caused by o i l which has es-caped or been discharged from the ship as a result of the in-cident. Much discussion has focused on whether this is really anything but a fault system with a reversed burden of proof, the original formulation of the Comite Maritime International. See Records of the Conference on Marine  Pollution Damage 437 et seq. Wood suggests that fault l i a b i l i t y or strict l i a b i l i t y makes l i t t l e difference for o i l since there is nearly always negligence. Wood, op.cit., supra, Chapter 17, note 18, at 40. The re-joinder to that argument is that proof for the victim is made easier by strict l i a b i l i t y . See Joseph C. Sweeney, "Oil Pollution of the Ocean," (1968) 37 Fordham Law Review 155. In any event, it does make a differ-ence conceptually, and so the discussion must focus on exceptions rather than imposition directly. 4Benefit-cost analysis is the process by which gains and losses are balanced against each other, necessarily after being translated to some common measure. See A.R. Prest and R. Turvey, "Cost/Benefit Analysis: A Survey," (1965) 75 Economic Journal 683. 5p. 62. 6p. 62. 7p. 81. 8pp. 82, 89. 9p. 81. 1 0p. 81. n p . 81. 12p. 81. l 0pp. 28, 91. 14. p. 27. 1 5p. 27. 1 6p. 27. l ?p. 57. 18p. 82. 1 9p. 91. 2 0p. 92. 2 1p. 57. 22 p. 57. 2 3p. 89. 2 4p. 90. 25 26 27 'p. 90. pp. 81, 106. pp. 81, 106. 28. 'p. 27. 2 9p. 31. 3 0p. 31. 3 1p. 82. 3 2pp. 82, 89. 3 3p. 32. 34. pp. 32, 62. 3 5p. 11. 56 p. 137. 37 38 pp. 98, 103. 'p. 113. 39 p. 101. 116a 4 0p. 114. 4 1p. 2 1 . 4 2pp. 2 1 - 2 2 . 4 3pp. 105, 102. 4 4p. 112 . 4 5p. 86 . 4 6p. 8 8 . 4 7p. 110. 4 8p. 110. 49Convention for the Protection of the Marine Environment of the  Baltic Sea Area, ( 1974 ) 13 International Legal Materials 546 . 5 0GE SAB/IF. 5 1Michael J. Hardy, "International Control of Marine Pollution," (1971) 11 Natural Resources Journal 296 . 5%N Doc. A/Conference 48/14 ; (1972) 11 International Legal Materials 1416. 5 3The basic principle of ecology is indivisibility. To achieve long-term stability, it is essential that ecological solutions be integrative, holistic, systemic, that they operate at least on the whole of a particular ecosystem i f not on the global ecosphere. Any level below the total-ity of the system cannot succeed. F.H. Knelman, "What Happened at Stockholm," Q 9 7 3 ] International Journal 2 8 . at 3 4 . 54While the GESAMF definition has no priorities explicitly, it does at least recognize different categories of damage. Implicit in that re-cognition is a further recognition that different categories of damage, and thus the categories of substances causing them, must be treated dif-ferently, on the basis of some priority system. 5 5See, for example, Goldie, op.cit., supra, Chapter II, note 1 2 . 56Gunter Handl, "Liability for Pollution of International Water-courses," (1975) 13 Canadian Yearbook of International Lav; 156. 5 7Ibid,. One would suppose that this includes unintended conse-quences of intentional acts, even when they would not be classified municipally as negligence. 117 5 Indeed, Handl seems to support this position. Ibid. See M. Ann Murphy, Betty B. Bennett, Donna M. Ismael, "Caracas 1974: International Regulation of Ocean Ecology," (1975) 5 Golden Gate Law Review 325, at 332-333; Lucius Caflisch, "International Law and Ocean Follution: The Present and the Future," (1972) 8 Belgium Review of International Law 1; Victor Petaccio, "Water Pollution and the Future Law of the Sea," (1972) 21 International and- .Comparative Law Quarterly 38. Caflisch argues that, independent of the Principle, the maxim is a general principle of law recognized by civilized nations. 59(1974) 13 International Legal Materials 591. 6 0Article I, Nordic Environmental Protection Convention, (1974) 13 International Legal Materials 605. Additionally,. Article III provides that such activities shall be treated as domestic nuisances. 6lAnd,.even after canvassing the relevant national laws, there re-mains the problem of what to do with disagreements and discrepancies; another series of priorities is needed. Thus the greatest help can come only in areas of complete agreement. 62noECD Declaration: The Folluter-Pays Principle," (1974) 13 Internat ional Legal Materials 234. ^Principle criticism should be directed to the principle's in-attention to the dual nature of an externality, that is, the true "Coase theorem" problem, supra, Chapter III, note 35, and accompanying text. It is not clear, a priori, whether the laundry or the factory next to i t causes the externality. Further, international trade effects are not discussed in the OECD Declaration. 6 4Short -run factor allocation deals with the allocation of factors of production, labour and capital, between existing firms. Long-run factor allocation deals with the number of firms in differing industries, that is, different sectors of the economy. On the divergence, see V.L. Smith, op.cit., supra, Chapter III, note 54, and William Schulze and R.C. D'Arge, op.cit., supra, Chapter III, note 54. 6 5That is, the production of goods and services. Internalization of cost where some nations have already had the opportunity to develop productive capacity in the absence of such cost may keep out new national entrants to an industry. This is the thrust of Principle 23 of the Stockholm Declaration: . . . i t will be essential in a l l cases to consider the systems of value prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries. (1972) 11 International  legal Materials 1416. Similarly to production problems, internalization of cost to a 118 product which is necessarily consumed by individuals who cannot afford the true cost of the item may involve social costs greater than those of inefficient factor allocation. 67Supra, Chapter 17. 68(1954) 12 UST 2989; TIAS #4900; 327 UNTS 3. Amended in 1962: 17 UST 1523; TIAS #6109; 600 UNTS 332; 1967: (1968) 7 International Legal  Materials 652; 1971: (1972) 11 International Legal Materials 267. 6 9There were earlier unsuccessful attempts, chiefly associated with efforts of the United States. See Joseph C. Sweeney, op.cit., supra, note 3, 7 0 'See the criteria imposed by Annex III of the London Ocean Dumping  Convention, (1972) 11 International Legal Materials 1291. ^Discharge standards first occurred in the 1962 amendments, and have been reworked almost continuously. The latest reworking is found in the Convention for the Prevention of Pollution from Ships, (1973) 12 Inter- national Legal Materials 1319. 72 See the evolution from the oil-record book to required segregation of ballast and other, more easily enforced, measures. See Joseph D. Porricelli, Virgil F. Keith, Richard L. Storch, "Tankers and the Ecology," (1971) 7 9 Transactions of the Society of Naval Architects and Marine  Engineers 174. 73(1969) 8 International legal Materials 45. 74(1958) 13 UST 2312; TIAS #5200; 450 UNTS 82. Article 24 provides: Every State shall draw up regulations to prevent pollution of the seas by the discharge of o i l from ships or pipelines or resulting from exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject. 7 5Article 1(5). 7 6The term "persistent o i l " has no recognized technical meaning, but will be defined by the courts as they decide cases under the two Conventions. In a l l probability, however, the more highly refined petroleum products, including gasoline, naphtha, and kerosene, would not be subject to the two Conventions, since these volatile distillates leave relatively l i t t l e res-idue after evaporation and emulsion with water. Wood, op.cit., supra, Chapter TV, note 18, at 51, 52. 77Samuel Bergman, "No Fault Liability for Oil Pollution Damage," (1973) 5 Journal of Maritime Law and Commerce 1, at 2. 7 8For a description of the problems associated with persistence, 119 aerosols, etc., see McTaggart-Cowan, et al.. op.cit., supra, Chapter IV, note 51. This is the same concern that was shown in Canada's defense of the Arctic Waters Pollution Prevention Act. See J.A. Beesley, op.cit., supra, Chapter IV, note 41, and R. Warner, Environmental Effects of Oil Pollution in Canada 7. 7 9 ,i7For the possibility of carcinogenic properties see Wood, op.cit., supra, Chapter IV, note 18, at 30, quoting P. Yevich of the National Water Quality Laboratory at Narragansett, R.I. 80See Goldie, "Amenities Rights—Parallels to Pollution Taxes," (1971) 11 Natural Resources Journal 274. 81UNEP Action Plan for the Mediterranean, Paragraph 24, (1975) 14 International Legal Materials 481. 82Mendelsohn, "Maritime Liability for Oil Pollution—Domestic and International Law, " (1969) 38 George Washington Law Review 1. 83Proceedings of the Symposium on the Biological Effects of Oil. 8 4J.A. Beesley, "Statement Delivered at the IMCO Conference on the Dumping of Wastes at Sea," 31 October, 1972. 8 58. The preceding paragraphs of this Annex do not apply to substances which are rapidly rendered harmless by physical, chemical, or biological processes in the sea. . . . 8 6Studies released by the National Water Quality Laboratory at Narragansett, R.I. show that tiny quantities of polluting oi l can k i l l shellfish through cardiovascular damage. Wood, op.cit., supra, Chapter IV, note 18, at 31. 8 7For example, different radioactive metals. See Monaco Symposium  on Nuclear Liability. 8 8Paul G. Bradley, "Marine Oil Spills: A Problem in Environmental Management," (1974) 14 Natural Resources Journal 337, at 340. 89Annex I, paragraph 8. 9 0Article 1(5). 91(1972) 11 International Legal Materials 284. 9 2Article 1(3). 9 3Articles 16-34. 94The industries are not carried on by the same firms, or at the same places. Hunter, "The Proposed International Compensation Fund for Oil Pollution Damage," (1972) 4 Journal of Maritime Law and Commerce 117. 120 9 5Article 25(1). 96, '(I960) 55 American Journal of International Law 1082; entered into force 1966. 97(1963) 2 International Legal Materials 685; entered into force 1974. 98(1963) 2 International Legal Materials 727. "(1972) 11 International Legal Materials 277, entered into force 1975. 1 0 0(1962) 57 American Journal of International Law 268. -l-01See, for example, the one entered into with Italy, (1964) 15 UST 2155; TIAS #5699; 532 UNTS 133. I°2They are further limited since most nuclear ships are warships and thus entitled to sovereign immunity, under a l l theories. Article 9 of the 1958 Geneva Convention on the High Seas, (1958) 13 UST 2312; TIAS #5200; 450 UNTS 82. 1 0 3The Paris Convent ion was a creation of EUHAT0M, the European Atomic Energy Agency. The Supplementary Convention was drafted to in-crease the limits of lia b i l i t y and to provide a scheme of payment. The Vienna Convention was an attempt to apply the principles of the Paris  Convention to the international community. The Maritime Carriage Con-vention was an attempt to further the "channelling" principle, that is, that only one entity be responsible at any one time, by cutting off lia b i l i t y outside the Convent ion or applicable municipal law designed solely for nuclear material. For the problems involved in fitting the conventions together, see Monaco Symposium on Nuclear Liability. I04Michael Hardy, "The Liability of Operators of Nuclear Ships," (1963) 12 International and Comparative Law Quarterly 778. 1 0 5Although there are other signatories. The "private" nature of the treaty becomes apparent when looking at the formula for bringing the treaty into force. At least one of the nations which operate nuclear ships, that is, the Soviet Union or the United States, has to ratify. 106 Hardy, op.cit., supra, note 104. I°7At sea, the "operator" would normally be the "carrier" of the nuclear material. Article 11(2) provides that the state from which the material is shipped may designate the carrier as an "operator." Thus normal problems of ascertaining the identity of the carrier through the forest of sales, leases, and charters do not arise because of the desig-nation. See Edgar Gold, "Marine Pollution and International Law," (1971) 3 Journal of Maritime Law and Commerce 39. This designation has oc-curred as a matter of course and it is thought that i t will continue at 121 ship owner insistence, as ship owners must compete for business, and covering a l l the costs of transportation is one method of competing. Hardy, op.cit., supra, note 104. 1 0 8 T h i s corresponds to Article 111(3) of the 1969 Convention on  Civil Liability for Oil Pollution Damage, (1969) 8 International Legal  Materials 25. However it is discretionary in the Vienna Convention and mandatory in the 1969 Convention. 1 0 9 T h i s corresponds to Article 111(2)(a) of the 1969 Convention. 1 1 0 A r t i c l e IV of the Vienna Convention, (1963) 2 International Legal  Materials 727. m A r t i c l e III(2)(b) of the Convention on Civil Liability for Oil  Pollution Damage, supra, note 108, excepts damage "wholly caused by an act or omission done with intent to cause damage by a third party." 1 1 2 A r t i c l e 111(2)(c) of the 1969 Convention excepts damage "whol-ly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other na-vigational aids in the exercise of that function." 1 1 3 A r t i c l e 1(1 )(k) of the Vienna Convention, supra, note 110. 1 1 4That is, toxicity due to radiation. This must be contrasted with chemical toxicity. ll 5The risk that the cargo would have "gone critic a l , " that is, begun a self-sustaining chain reaction. 1 1 6K.F. von Schlayer, "Marine Insurance Aspects of the Carriage of Nuclear Substances," Monaco Symposium on Nuclear Liability 291. -L17Bernard G. Bechhorfer, "The Nuclear Test Ban Treaty in Retro-spe ct," (1973 ) 5 Case-Western Reserve Journal of International Law 125. See also the Limited Nuclear Test Ban Treaty, (1963) 14 UST 1313; TIAS #5433; 480 UNTS 43. The Antarctic Treaty, (1959) 12 UST 794; TIAS #4780; 402 UNTS 71, Article V, and the Treaty Regarding the Moon and Space  Objects, (1967) 6 International Legal Materials 386. 1 1 8Lewis Coser, The Functions of Social Conflict 21. H 9See the discussion of the Fukuryu Maru Affair, supra, Chapter IV. 1 2 0T.S. Busha, "The Work of IMCO," Monaco Symposium on Nuclear  Liability 171 at 172. 1 2 1 A r t i c l e 1(2) of the Vienna Convention, supra, note 110. This possibility might raise difficult choice of law problems when combined with the rules in Article II for ascertaining the operator liable at any time. 122 1 2 2 A r t i c l e I Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: b. in any other environment Q..e., underground] i f such explosion causes radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion is conducted. 1 2 ^ x & uBechhorfer, op.cit., supra, note 117. See also E.D. Brown, "International Law and Marine Pollution," (1971) 11 Natural Resources  Journal 221, at 223. 1 2 4Supra, Chapter IV. 125see the reaction to the French nuclear tests, supra, Chapter IV. 1 2 6(1968) European Treaty Series #64; Great Britain Treaty Series #23. 1 2 7 Richard Vollenweider, The Scientific Fundamentals_ of Eutrophica- tion of Lakes and Flowing Waters. 1 2 8 A r t i c l e II. 1 2 9The workers in the factories producing the detergents started to develop severe skin irritations, caused by the component used to replace the phosphate compounds. 1 3 0 x See discussions of o i l and of nuclear substances, supra, p. 81. 131 (1972) 11 International Legal Materials 262, entered into force 1974. This convention seeks to protect one particular marine region, the North Sea. 1 3 2(1972) 11 International Legal Materials 1291. This convention attemptsto protect the marine environment generally. However, it does not apply directly to internal waters. Article 111(3) defines "sea" as " a l l marine waters other than the internal waters of States." 133 See the discussion of "exceptions," p. 98. 134"Special permit" means permission granted specifically on application in advance and in accordance with Annex II and Annex III. Article i n ( 5 ) . 1 3 5"General permit" means permission granted in advance and in accordance with Annex III. Article 111(6). x36"Gonvention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter," (1974) 6 Law and Policy in International Busi-ness 575. 133 (1973) 12 International Legal Materials 1319, Articles 4 and 5. 1 3 8(1974) 13 International Legal Materials 546, Article DC. 1 3 9(1975) 14 International Legal Materials 481. 1 4 0(1973) 12 International Legal Materials 1329. 1 4 1(1975) 14 International Legal Materials 1292, at 1308: Qrield of co-operation includ^J protection of the marine environment of participating states, and especially the Med-iterranean Sea, from pollutants emanating from land-based sources and those from ships and other vessels, notably the harmful substances listed in Annexes I and II to the London Convention. . . . 142Much discussion has focused on the lack of enforcement proced-ures, that application of the criteria of the annexes is left solely within the discretion of the participating states. It is feared that the criteria will not be strictly followed. See "Convention on the Pre-vention of Marine Pollution by Dumping of Wastes and other Matter," op.cit., supra, note 136. Contrast Albert E. Utton, "International Aspects of Environmental Policy," (1971) 11 Natural Resources Journal 513. But this debate assumes there is something worthwhile to enforce. If the criteria and the categories are not properly drafted, no improved enforce-ment jurisdiction is worthwhile. 143 See the Stella Maris incident, supra, Chapter 17. 144 "Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter," op.cit., supra, note 136. 1 4 5Robert McManus, writing on this convention said, "For better or worse, the protocols and general conservatism of the international com-munity seldom impel i t to giddy actions." Robert McManus, "The New Law on Ocean Dumping, Statute and Treaty," (1973) 5 Oceans 24. 1 4 6See Annex I, items 1, 2, and 3. 1 4 7See Annex JJ, paragraphs A and B. See also Article V(2). 148 x "Annex I, item 6, and Annex II, paragraph?D. Materials in whatever form (e.g., solids, liquids, semi-liquids, gases,,or in a living state) produced for biological and chemical warfare. 149 See Annex I, item 4, and Annex III, item A.5. 150 This may be partially due to the difficulty of creating stan-dards to apply to widely disparate areas. Article VIII provides: 124 In order to further objectives of this Convention, the Contracting Parties with common interests to protect in the marine environment in a given geographical area shall en-deavour, taking into account characteristic regional fea-tures, to enter into regional agreements consistent with this Convention for the prevention of pollution, especially by dumping. See also Bourne, op.cit., supra, Chapter II, note 27, at 201-202. But this explains only the lack of description of particular sub-stances. It does not explain a lack of clear preferences for particular uses, which will change l i t t l e from area to area i f the uses are de-fined carefully enough. 15iAnnex III, paragraph A. 1 5 2 T h i s is the "present value" problem to economists. The normal answer has been to apply a "discount" factor to future costs or benefits. The discount factor then allows comparisons over time. At a discount of 10$ per annum, a $90 present benefit justifies a $100 cost one year in the future. This process becomes highly suspect when the identity of the individuals is not the same at both times. See W.S. Baumol, "On the Social Rate of Discount," (1968) 58 American Economic Review 788. x 5 3Possible effects on other uses of the sea. For example, im-pairment of water quality for industrial use, underwater corrosion of structures, interference with ship operations from floating materials, interference with fishing or navigation through deposit of waste or solid objects on the sea floor and protection of areas of special im-portance for scientific or conservation purposes. 154 4. Persistent plastics and other persistent synthetic materials, for example, netting and rope, which may float or may remain in suspension in the sea in such a manner as to interfere materially with fishing, navigation or other legitimate uses of the sea. 155c. Containers, scrap metal and other bulky wastes liable to sink to the sea bottom which may present a serious ob-stacle to fishing or navigation. x 5 6This investigation would be important. If it is a symptom of the ever-increasing need for food, primacy must be tempered when other uses of the ocean, extraction of petroleum on which to grow yeast, or cultivation of plankton, for example, become important. If it is a measure of the political importance placed upon fishing as an economic activity, then no such change would occur. 1 57(i974) 13 International Legal Materials 605. 125 Parties to the present Protocol may take such measures on the high seas as may be necessary to prevent, mitigate or elim-inate grave and imminent danger to their coastline or related interests from pollution or threat of pollution by substances other than o i l following upon a maritime casualty or acts re-lated to such a casualty, which may reasonably be expected to result in major harmful consequences. 1 5 9 A r t i c l e 1(2) provides: "Substances other than o i l " as referred to in paragraph 1 shall be: a. those substances enumerated in a li s t which shall be estab-lished by an appropriate body designated by Q M C O J J and which shall be annexed to the present Protocol. The Marine Environment Protection Committee has been so designated, (1974) 13 International legal Materials 480. 1 6 0 A r t i c l e VI of the 1969 Convent ion on Cfvil Liability for Oil Pollution Damage, supra, note 108, provides: Any Party which has taken measures in contravention of the provisions of the present Convention causing damage to others, shall be obliged to pay compensation to the extent of the damage caused by measures which exceed those reason-ably necessary to achieve the end (of abating damage by such a casualty]. See also Article I. 163-Presumably, the Protocol was meant to cover damage of similar magnitude, but "analogous damage" would seem to mean "damage which occurs in the same manner." 1 6 2See Ludwik A. Teclaff, "International Law and the Protection of the Oceans from Pollution," (1972) 41 Fordham Law Review 59; Mendelsohn, op.cit., supra, note 82; Sweeney, op.cit., supra, note 3. 163Nanda, op.cit., supra, Chapter IV, note 21. 1 6 4See, for example, Regulation 9 of Annex I of the 1973 Convention, supra, note 71, which allows discharge of 60 litres per nautical mile for o i l tankers, i f they are not within 50 nautical miles of the nearest land. There is a limitation of "special areas" in which this discharge is not allowed, for example, the Mediterranean Sea, Regulation 10, but the most important criterion for a special area is proximity of land, as well as special conditions making damage to shoreline more likely. 1 6 5Supra, Chapter IV. 1 6 6A question exists whether this formulation of the Act of God de-fence comports with existing municipal formulations. The American 126 formulation, for example, stresses only the unforeseeable nature of the occurrence. "Unforeseeable" is clearly different from "exceptional," and the other criteria are missing. See VJood, op.cit.,. supra, Chapter IV, note 18. launder Anglo-Canadian law, i t is not clear when the comparison is made, or on what basis it rests. Sometimes i t is clearly a comparison of cause of damage, as when a motorist who did not use a seat-belt is found to be 25% at fault for his injuries. At others, it is less clear, as when the same motorist is found 25% at fault for failing to stop at a stop sign, before being hit by someone travelling 75 miles per hour, in excess of the speed limit. 1^80ne can even argue this change in phrasing is a narrowing also i f the phrase "or in any case" were to be interpreted ejusdem generis; then the circumstances would be limited to those like force majeur, that is, Acts of God in spheres other than weather. 1 6 90ne particular application of the limitation shows that i t must have only one part, not two. If dumping were not the only way of averting danger, but a l l others caused more damage, dumping would surely be allowed. A better formulation would be: " i f any other course of action.would, in a l l probability, result in greater damage than would dumping." I 7 0Th e Torrey Canyon disaster provides two good examples. First is the decision of the master to go east of the Scilly Isles without a chart of those waters in order to deliver his cargo on time. Second is the ac-tion of the British Government in using detergents to disperse the o i l . Cowan, op.cit., supra, Chapter IV, note 32. 171Annex I, Regulation 11. 1 7 2 A r t i c l e IV(b). 1 7 5Supra, Chapter IV, page 86. 1 7 4An analogous use of l i a b i l i t y is found in the exception for saving life at sea. There, one plausible reason for the existence of the ex-ception is to assure that li f e w i l l be preserved, without an explicit weighing of costs and benefits, a weighing which, accurately or inac-curately, may not give the desired answer. l75see Maxine Lipeles, "Oil," Environmental Policy Institute Energy  Information Project 17. 17^Cummins, et_ al., op.cit., supra, Chapter TV, note 43. 1 7 7John H. Cumberland, "Establishment of International Environmental Standards," in Problems in Transfrontier Pollution 213. 178Compare this to the first agreement for o i l pollution liability, the Tanker Owners Voluntary Agreement for Liability for Oil Pollution, 127 TOTALOP, (1969) 8 International Legal Materials 497, where only govern-ment clean-up costs are covered. x 7 9That is, attributed to a party, so they are no longer externalities. 1 8 0 I t is possible that a private individual would take "preventive measures," and be compensated for them. But i t seems unlikely that a private individual would take actions of such a scale, and at such causal remove, as to invoke causal problems. There is another dimension to inclusion of preventive measures in pollution damage. Inclusion of the damage done by preventive measures by the ship-owner will not give rise to additional liability, i f ori-ginal liability equalled or exceeded the amount of the limitation fund. Thus, the apparent "internalization" is, in reality, an "externaliza-tion." The reason given is the need to establish an incentive to take prompt action. 1 8 1Nuclear Ship Operators Liability Convention, (1962) 57 American  Journal of International Law 268. The provisions are nearly identical to those in the Paris Convention and the Vienna Convention. That is not surprising since the 1962 Convention was copied from the Paris Convention. See Hardy, op.cit., supra, note 104. 182 T.S. Busha, op.cit., supra, note 120. 1 8 3The Paris Convention is in force, but is limited to EURATOM and a few other European states. 1 8 4(1972) 11 International Legal Materials 1319. 1 8 5(1975) 14 International Legal Materials 1353. 1 8 6There is a possibility that an operator could become an owner of the ship, at least technically. In a world where charters are drafted peculiarly for tax reasons, i t is difficult to decide the status of any one operator with regard to any one ship. See Re Barracuda,Transport, 409 F.2d 1013 (2nd Cir. 1969). The problem is lessened for Article 1(3) provides that the owner is the registered owner, i f one exists. There is a second way in which an operator becomes an owner, though. Article 1(3) also provides that, i f the owner of a ship is a state, and the ship has a company as a registered operator, that company is to be deemed the owner of the ship. Presumably the limitation to companies reflects the object of the Article: to deal with Soviet ships, which are operated by such companies. 1 8 7Consider the development of the Limitation of Liability Conventions, the current one being that of 1957, British Shipping Laws,- vol. 8, 1342. (Although the United States retains an older version in 46 USC s. 183 et seq. ) Originally they were to encourage capital for ship-building, just as charters for companies encouraged commerce, by assuring the owner that he could be liable for no more than his capital investment. 128 188R.M. Stein, "The Legal System Applicable to the Carriage of Nuclear Matter," in Monaco Symposium on Nuclear Liability 1. 189Ibid. 190yor a brief, but more detailed treatment, see F. Bator, "The Simple Analytics of Welfare Maximization," (1957) 47 American Economic  Review 22. i 9 1See, for example, Article VII of the Convention on Civil Liability  for Oil Pollution Damage, supra, note 108. There is an exception, how-ever. Compulsory financial responsibility assumes some adequate means of enforcement. Article VII(ll) provides: Subject to the provisions of this Article, each Contracting State shall ensure, under its national legislation, that in-surance or other security to the extent specified in paragraph 1 of this Article is in force in respect of any ship, wherever registered, entering or leaving a port in its territory, or arriving at or leaving an off-shore terminal in its territorial S0Q.» • • • This does not affect ships in innocent passage. There was a proposal at the Conference to include innocent passage, but it met with great oppo-sition, principally by Lord Devlin. Even the final compromise was ac-cepted only grudgingly. That seems to parallel the difficulty in finding acceptance for "port state", jurisdiction generally. See Informal Single  Negotiating Text, supra, Chapter IV, note 35, part II, Article 25. If financial responsibility cannot be enforced effectively, then, perhaps, multiple liability is the only answer. l92Wood, op.cit., supra, Chapter TV, note 18. 193 xs^Consider a case where liability is imposed on both the operator and the owner, but the cost of technology needed to reduce the liability for both is greater than the benefit to be gained by either. In the absence of agreements between the parties, there will be no technological improvement. l 9 4 :This is Calabresi's cheapest cost avoider. would expect it to be considerable. See Cummins, et al., op.cit., supra, Chapter TV, note 33, for an estimate of the cost of implementing some existing technologies. Methods are included, for some of the more effective pollution pre-vention devices, like the "Load on Top" system, where o i l is pumped on top of ballast water, see Porricelli, et al., op.cit., supra, note 72, are only different ways of using the same technology. 1 9 6There is one exception. The owner, in the case of the 1969 Con- vention on Civil Liability for Oil Pollution Damage, supra, note 108, is 129 only required to have cover for 2,000 poincare francs per ton, up to a maximum of 210 million francs. (The precise amount of money that repre-sents is difficult to ascertain. Article V(9) of the convention pur-ports to define "franc" in terms of gold and set the amount, but it was written before the rise in the price of gold. For a time, it was thought, because of the United States Department of State's inadvertent omission of the phrase "on the basis of the official value," that the value of the gold franc was to be determined by the world market price. That is not now believed, but the question of which "official value" to use is difficult. Only France and the United States have official prices and they are radically different. Although originally meant to be near #14 million, the maximum has been calculated as high as #75 million. See Wood, op.cit., supra, Chapter IV, note 18, at 37. ) That is logical enough since the owner's liability is, usually, similarly limited. But there is an exception, Article V(2): If the incident occurred as a result of the actual fault or privity of the owner, he shall not be entitled to avail himself of the limitation. . . . The words "actual fault or privity" have a long history, but now they have a very flexible interpretation. See Gilmore and Black, The Law of  Admiralty, at 695-696. Thus it is not unlikely that such a finding might be made. In that case, the only person liable for the amount above the limitation figure is the owner: Article V(ll) The insurer or other person providing financial security shall be entitled to constitute a fund in accordance with this Article on the same conditions and having the same effect as i f it were constituted by the owner. Such a fund may be con-stituted even in the event of the actual fault or privity of the owner, but its constitution shall in that case not preju-dice the rights of any claimant against the owner. 197Wood, op.cit., supra, Chapter IV, note 18. l 9 8Lipeles, op.cit., supra, note 175, at 29. Additionally, there is a problem with the ini t i a l accuracy of the ratings. There is some evi-dence that classification societies do not properly account for a l l fac-tors. A most famous example is the Torrey Canyon, which had the highest rating, 100 Al. Coxvan, op.cit., supra, Chapter TV, note 32, at 9. 1 9 9See the discussion of the Trail Smelter Arbitration, supra, Chapter III. 200Cummins, et al., op.cit., supra, Chapter IV, note 33. ^OlRecords of the Conference on Marine Pollution Damage, at 596. See generally 503-597.' 130 2 0 2Supra, Chapter III. 2 0 3 A r t i c l e I I l ( l ) . 2C4see, for example, Poland's comments, Records of the Conference  on Marine Pollution Damage, at 509. "In particular the liability should be borne by the operator of the vessel, and not by her owner." 2®The importance attached to the registration and ease of ascer-tainment is shown in Liberia's opposition to fixing li a b i l i t y on the cargo, for there is no world-wide provision for certifying the ownership of cargoes. Ibid., at 509. 206 Cowan, op.cit., supra, Chapter IV, note 32, at 5, 20-21. 207That is, an increased cost to the owner in his insurance pre-mium caused by the reputation of a charterer will be added to the cost of the charter, so the cost is internal to the operator . Ibid., at 5. 208i>hat should not be much of a problem since most operators have long-term charters. The persons using the short-term or voyage charter market are those with cargoes, but not crews. Their impact on the run-ning and fitting of the ship is minimal. Ibid., at 1-17. 209 In fact, in many cases, crude o i l tankers cannot carry lighter fractions without the same cleaning process. Sweeney, op.cit., supra, note 3. 21(^See the position of the United Kingdom, as advanced by Lord Devlin. Records of the Conference on Marine Pollution Damage, at 638. 211 The one exception is the transport from a Contracting to a non-Contracting State, when choice of law rules, when combined with the already elaborate provisions create an almost impenetrable arabesque. 2l 2Records of the Conference on Marine Pollution Damage, at 510. 2 i 3 T h i s assumes that the effectiveness of the lost incentive to the operator is less than the increment of effectiveness of this technology over a l l others. 2 1 4See the 1971 Amendments to the 1954 Convention, supra, note 68. 2 x 5Part of the cause of the wreck of the Torrey Canyon is attributed to a peculiar characteristic of the ship's wheel. When set on "auto" it allowed manual alteration of course, up to 3°, but would not respond i f altered"more unless set to "manual." Before running aground, the wheel had been operated at "auto," and the helmsman either was not aware of the criticality of 3°, or forgot i t . When instructed to avoid the shallows, he turned the wheel, but the ship did not respond. By the time the solution was discovered, it was too late to alter course sufficiently. See "Report of the Board of Inquiry," (1967 ) 6 International Legal Materials 43a 131 2 1 6The latter was suggested for reasons of certainty. The Irish proposal.attempted to avoid the problem by requiring the owner to prove who the shipper was.. If he failed, he assumed liability. Records of the  Conference on Marine Pollution Damage, at 537. This runs into the prob-lem of double insurance, however. 2 1 7(1972) 11 International Legal Materials 284. 218 Subject to the same exceptions, mentioned earlier with regard to earlier conventions. 2 1 9 A r t i c l e 4(6) sets that at 450 million francs, with a provision that i t may be raised to 900 million francs, by action of the ratifying states. In 1971, those amounts were equal to $36 million and #72 million, respec-tively. The determination of present value for these amounts involves the same problems found in the limitation amounts for the 1969 convention, supra, note 196, since the franc is defined by reference to that convention, Article 1(4). 2 2 0The CMI draft convention was based on fault liability with a re-versed burden of proof. The IMCO draft convention was based on a strict liability principle. While they were quite close in application, after one considers the effects of exceptions and modifications, they started from different conceptual bases. See Nicholas J. Healy, "The CMI and IMCO Draft Conventions on Civil Liability for Oil Pollution," (1969) 1 Journal of Maritime Law and Commerce 93. 2 2 xSee the Irish proposal, supra, note 216. 2 2 2Records of the Conference on Marine Pollution Damage, at 656-660. 2 2 3 0 r shipping o i l , i f liability were placed on the consignor rather than the consignee. 2 2 4This would be the analogue of the one-tanker corporation. See Cowan, op.cit., supra, Chapter I?, note 32. 225Statement of the Indian delegate, Mr. Rajwar, Records of the Con- ference on Marine Pollution Damage, at 644. 2 2 6 I b i d . , at 537. 2 2 7To the economist, the transactions costs of international arrange-ments are high. See A.D. Scott, "Economic Aspects of Transnational Pol-lution, " in Problems in Transfrontier Pollution 9. 2 2 8 I t was seen as important that the convention be acceptable to the major shipping countries i f i t were to succeed. See Japan's statement, R§cords of the Conference on Marine•Pollution Damage, at 438. 229 See the statement of the Netherlands, ibid., at 673, and that of 132 Canada, ibid., at 632. 2«J0iphiS involves the problem discussed in the theory of the second best. In brief, there is no guarantee that a better world is achieved by the taking of steps which, combined with others, would create a per-fect world. A li a b i l i t y scheme might lead to the perfect world, but its implementation does not, necessarily, improve the present one. 2 3 1Lipeles, op.cit., supra, note 175, at s-2. 2 3 2 T h i s seemed to be the concern of, inter alia, India. Records of  the Conference on Marine Pollution Damage, at 651. 2 3 3As it a i d a^ -t;ne non-Governmental Organization Conference at Stockholm, see Knelman, op.cit., supra, note 53. 234Statement of the USSR, Records of the Conference on Marine Pol- lution Damage, at 510. 2 3 5 lb id. 2 3 60nly Ghana mentioned it explicitly, ibid., at 571, and then in saying that it had supported i t , but did so no longez*. Canada was inter-ested in payment by states, but only as a conduit to assure that compen-sation would be achieved, ibid., at 534. 2 3 7Supra, Chapter III and IV. 2 3 8[l94jjf International Court of Justice Reports 22. ^ =See below, in the discussion of the law of the flag and "juris-diction." 2 4 0The phrase is used in American conflicts law to describe rules which show too much preference for the physical location of boundaries. 2 4 11958 Geneva Convention on the High Seas, supra, note 1, Article 5(1). 2 4 2 I t must be assumed, further, that a "genuine link" exists between the ship and the flag state. Otherwise, the mere flying of the flag is of no effect. This may seem a strange assumption in view of the others that follow, for the lack of other control would militate against finding such a genuine link, especially in a world where registration and requirements for such are nearly universal. Further yet, it must be assumed that the state simply allows ships to fly its flag, and imposes no further conditions, or the flying of the flag, again, would be of no effect. 2 4 3 T h i s is not strictly true, for liability can arise under the pre-vious schemes. For example, a government guarantee is sufficient finan-cial guarantee under Article VLT of the Convent ion on Civil Liability for  Oil Pollution Damage, supra, note 108, and thus the state could be liable as the insurer. Additionally, states, as actors, could be liable, subject 133 to the problems of sovereign immunity, but not in their capacities as states. Additionally, i t is possible that the following liab i l i t y provisions could operate at sea, for they cover damage anywhere. But they do not relate to marine activities, except for re-entry of American astronauts. 2 4 4(197l) 10 International Legal Materials 965. There is also a Convention on Damage Caused by Foreign Aircraft, (1958) 310 UNTS 181, but that will not be considered here, for i t adds l i t t l e new and does not deal with state liability. 2 4 5 T h i s follows Principle 21 of the Stockholm Declaration, supra, note 52. Its importance here, in the London Ocean Dumping Convention, supra, Chapter IV, note 22, is its immediate reference to the oceans. 2 46Article V(l). 2 4 7Donat Pharand, The Law of the Sea of the Arctic. 2 4 8 A r t i c l e s 27-29. 2 4 9 A r t i c l e 24. 2 5 0 A r t i c l e 25. 2 5 1Calabresi, op.cit., supra, Chapter IJJ, note 46, at 286-289. 252 T n e determination would presumably be made on the basis of cur-rently prevailing standards of regulation, combined with concern for a state's "special circumstances." 2 5 3See Diamond, op.cit., supra, Chapter TJI, note 47, for the ramifi-cations of this effect on individuals. 2 5 4The exception is the case when the state creates state companies. But then one is no longer speaking of state liability. 255rpne absolute theory of sovereign immunity states simply that a foreign sovereign cannot be impleaded in the courts of another state with-out his consent. This confers the same right on foreign sovereigns that the King enjoyed at Common Law. The restrictive theory holds that immun-ity attaches only to acts that are of the sovereign as sovereign, but not of the sovereign as commercial entity, the exercise of the ius imperii, and ius gestionis, respectively. The state of the lav? in Canada is in doubt following the decision of the Supreme Court of Canada in Venne v.  Republic of the Congo, 1971 SCR 997. 256>rhis has changed in the United States. See An Act Respecting Sov- ereign Immunity from- Exe cut ion, (1976 ) 15 International Legal Materials 90. But at this time it is difficult to decide i f this has more than municipal interest. The United States did lead the break, in the Common Law world, 134 from the absolute theory, with the "Tate letter," so this may be the start of another movement. 257When the doctrine holds as well, but in its absolute form. See Article 36 of the Statute of the Court. The Nuclear Tests Case only con-firms the right of the Court to judge the affect of an acceptance of juris-diction. 2 5 8 A r t i c l e VI(l)(a). 2 5 9 A r t i c l e 1(a). 2 6 0 A r t i c l e VII, the financial responsibility article, makes this less likely. But i t is s t i l l possible, for i t must be remembered that financial responsibility cannot be enforced on ships in innocent passage. Thus, the ship might cause damage but not have adequate security in the state damaged. Hence, suit would have to be brought in another contracting state; assuming that there were preventive measures taken or some damage sustained in the state of the suit. 26lThat would be here assumed to be equal to states. There are other institutions with international legal personality, see the Injuries Case, 0-949J International Court of Justice Reports, but their inclusion would not change the thrust of the argument. 262see the Danzig Officials Case, fl928j Permanent Court of Inter- national Justice Reports, series B, n. i5. 263Wood, op.cit., supra, Chapter TV, note 18, at 33. 264rpjie organization problem is the same one already discussed in the Trail Smelter Arbitration. The access problem is another special case of "transactions costs." In this case it includes both access to information, for the knowledge might exist, but be beyond the reach of a l l but special-ists, and to markets, capital markets to invest the compensation and finance the livelihood of the individuals until restoration is complete, and ser-vice markets, for finding whd;.could undertake the task. 2 6 5See E.F. Schumacher, Small Is Beautiful. 266That is, spend more than the government would dole out to them to finance their livelihood. 267The only case in which the individuals would prefer another is that in which another had a higher rate of return. But in that case, investment should go elsewhere, for there must be inefficient capital allocation for another industry to have a higher rate of return. This assumes perfect valuation of relative values, however. The problem of valuing non-monetized goods, like trees, beautiful mornings, .^ clean air, or human l i f e , is notor-ious. See Calabresi, op.cit., supra, ^hapter i n , note 46, at 91-92. But there is l i t t l e evidence that governments value any better. For a famous example, see Sierra Club v. Morton, 405 U.S. 727 (1972). One severe 135 problem, already noted, is governmental support of inefficient industries. Ferhaps this would provide an easy way to liquidate the problem. 2 6 8See the case of "salmon tabs" on the Canadian Pacific Coast. P.H. Pearse, "Rationalization.of Canada's West Coast Salmon Fishery," in •Eco- nomic Aspects of Fish Production. _ 2 6 9Smith, op.cit., supra, Chapter III, note 54, and Schulze and D'Arge, ibid. 136 CHAPTER VI A PROPOSAL A body of-law has been shown to exist, but its general concerns and priorities must be made more specific to be useful. Further, there is no central structure which can apply the body or rationalize its incon-sistent parts. This discussion will have three parts: a short ju s t i f i -cation for-a separate maritime regime, a discussion of "regionalism," and then mention of some of the problems that have traditionally complicated the enforcement of maritime pollution measures. Justification Although strict liability has been the touch-stone for most of the discussion of the law of l i a b i l i t y , 1 modern legal systems are loathe to impose liab i l i t y without fault in the absence of some compelling reason. The belief in fault is deep in the law. As Oliver Wendell Holmes said: The general principle of our law is that loss from acci-dent must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfor-tune. But relative to a given human being anything is acci-dent which he could not fairly have been expected to contem-plate as possible, and therefore to avoid. . . . But the only possible purpose of introducing this moral element is to make the power of avoiding the evil complained of a condition of l i a b i l i t y . 2 But just as the first part of the "absolute" lia b i l i t y formulation was misleading, so the first part of Holmes* reasoning can lead one to a too absolute conclusion.4 Holmes, though, goes on to give the reason for the principle: A man need not, it is true, do this or that act,—the term act implies a choice,—but he must act somehow. Furthermore, the public generally profits by individual activity. As action cannot be avoided, and tends to the public good, there is obviously no policy in throwing the 137 hazard of what is at once desirable and inevitable upon the actor. 5 The end, then, is maximizing the public welfare, the public good. Even Holmes would not disagree with an assignment of lia b i l i t y which increased that good. Tbus, optimizing factor allocation comes within his principle, even though fault is not involved. But the effect of a particular assignment of liability w i l l depend on the particular insti-g tutions, legal and social, in an activity. Thus different activities might require different liability schemes. One must be concerned with the boundary-defining function of liability law. Holmes was right in describing liability as having a "moral element," and while i t is true that society uses that element in assigning liability, it is equally true that the assignment of liability helps to define the 7 element. Put this way, one must consider whether the removal of fault liability and replacement with liability without fault w i l l have unwanted p effects in generally-perceived standards for behaviour. For imposition of liability in the maritime carriage industries to make an impact on the rest of society, it is necessary that the rest of society perceive such an imposition to be relevant to them. But previous legal institutions assume the opposite. Presumably, tine law as i t exists performs this boundary-defining function, and the Anglo-Canadian legal system has, since the twelfth century, recognized a separate law of admir-alty. 9 Tbe precise boundaries of the area may be difficult to identify, especially in the United States, because of the "saving to suitors" clause, and the Extension of Jurisdiction Act, 1 1 but s t i l l exist, h^e function of liability law in admiralty must, therefore, be separated from that of other 138 liability law. Too, one may question the importance of liability for defining the boundary in admiralty. Aside from a few special instances, most of which 12 deal with defining boundaries for states, and not for individuals, the liabi l i t y regime is probably nearly neutral with respect to boundaries. Boundaries of acceptable conduct are enforced much more directly, u and on a much more careful basis, since the population to be governed, although international, is s t i l l small with very similar needs and actions. It is not argued that any particular schemB has been justified or explained. That is left to the last section of this chapter. This section serves the limited purpose of justifying a departure from the traditional fault system. o Regionalism Even i f maritime activities deserve to be treated separately from other activities, there s t i l l remains the problem of deciding at what level treatment is to take place. Although most of the more specific attempts to deal with marine pollution and liability for it have been at 14 the global level, the need for decision-making at less than a global level has been recognized. Speaking of the development of international law in dealing with river basins, Professor Bourne has said: A study of the authorities, then, leads to the conclusion that the international law on pollution of waters of inter-national drainage basins has not evolved beyond the principle of equitable utilization proclaimed in the 1966 Helsinki Rules. This should cause no surprise or distress. Drainage basins do not lend themselves to the application of principles of ecumenical validity. Each basin is a peculiar entity, differing from other basins in its physical characteristics, in the number of people who inhabit i t , in the degree of industrial-ization, and so on. 139 . . .Each basin will have its own regulatory agency, whether that agency is created directly by treaty or is merely a sub-ordinate of another agency with a wider jurisdiction. . . . 5 And, in the management of one ocean resource, fish, regionalism has been recognized as the proper approach. The 1958 Convention on Fishing -I C and Conservation of the Living Resources of the Sea provides: Article 4 1. If the nationals of two or more States are engaged in fishing the same stock or stocks of fish or other living marine resources in any area or areas of the high seas, these States shall, at the request of any of them, enter into negotiations with a view to prescribing by agreement for their nations the necessary measures for the conservation of the living resources affected. Professor Bishop has characterized this as regionalism within a global framework, allowing special rules for special areas to be adopted within the principles laid down by the Convention.17 ^nd the regimes have, in fact, been formed. See, for example, the International Commission on the North Atlantic Fishery. 1 8 It has been suggested that there ars two kinds of regional approaches. fj]t is useful to distinguish between two different kinds or degrees of regional approaches. The first consists of the use of the UN regional groupings. . .in order to pursue indi-vidual ends which are widely—if not uniformly—shared by other members. . . . other case consists of a regional approach to the law of the sea issues which forms part of a wider process of regional integration. 1 9 Although there is such a difference, the two types wil l be treated to-gether. The defining characteristics for the optimal size region are identity of interests, conditioned both by economics and geography, and therefore the cohesion necessary to form institutions that can be effective. Those can both be found in either of the two types. It i s important to note that the optimal size of the region i s dependent 140 upon both economics and geography, h^e case for geography is obvious: peculiar physical problems of the region demand a unique solution. The 20 particular problems of the Mediterranean have been mentioned, and the 21 problems of the Baltic and the North Seas could also be cited. Of particular importance in problem formation is the degree to which a sea 22 is "cut-off" from the rest of the oceans. But the economic status and inter-relationships in the proposed region must also be considered. If the purpose of pursuing a solution at the regional level is to attempt more specific control and decisions, a common base for comparison of different factors is helpful. While valuation of non-monetized goods is always a problem, it i s exacerbated in this case where comparative dollar amounts between countries may have no meaning. Between countries of roughly equal degrees of industrialization, the problem is lessened, but between countries of unequal degrees, the value of benefits and costs for monetizable and non-monetizable goods may be vastly dissimilar. 2 3 The problem is not in the failure to find exact equivalence, for that is only a problem of exchange rates. The problem is a failure to find relative equivalence. If in both countries, a certain decrease in the price of fertilizer were twice as valuable as a certain increment of cleanliness of beaches, then comparisons could be made allowing a meaning-ful trade-off between the price of fertilizer and the cleanliness of beaches. But i f one country values them equally, and the other at the double disparity, it becomes impossible to make comparisons of gains and losses when they do not occur equally in a l l the countries concerned. But the problems of defining the regions should not cause much concern. 141 P a r t o f t h e e m p h a s i s o n r e g i o n a l i s m c o m e s f r o m t h a p r o c e s s o f s e l f - d e f i n -i t i o n w h i c h i s t a k i n g p l a c e . T h e m o s t o b v i o u s e x a m p l e s , a n d t h e o n e s t h a t a p p l y t o t h e s e a d i r e c t l y , a r e t h e C o n v e n t i o n f o r t h e P r o t e c t i o n o f  t h e M a r i n e E n v i r o n m e n t o f t h e B a l t i c S e a A r e a , t h e C o n v e n t i o n f o r t h e P r o - t e c t i o n o f t h e M a r i n e E n v i r o n m e n t o f t h e M e d i t e r r a n e a n S e a A r e a , a n d t h e 24 N o r t h S e a O i l P o l l u t i o n A g r e e m e n t . B u t t h o s e a r e b y n o m e a n s t h e o n l y e x a m p l e s : fctlhere a r e o t h e r e x a m p l e s o f r e g i o n a l i n t e g r a t i o n , i n L a t i n A m e r i c a a n d t h e C a r i b b e a n , a n d i n A f r i c a , w h i c h , a c t u a l l y o r p o t e n t i a l l y , h a v e t h e c a p a c i t y t o e x t e n d t h e i r a c t i v i t i e s t o l a w o f t h e s e a i s s u e s . A n d p e r h a p s o n e m a y r e f e r a l s o i n t h i s c o n n e c t i o n t o a n u m b e r o f r e g i o n a l f i s h i n g v e n t u r e s t h a t h a v e b e e n e s t a b l i s h e d u n d e r U N o r F A O a u s p i c e s , a n d t o "the o f f -s h o r e e x p l o r a t i o n a c t i v i t i e s t h a t h a v e b e e n o r g a n i z e d i n A s i a o n a r e g i o n a l b a s i s . T h e p r e s e n t r e g i o n s h a v e d e f i n e d t h e m s e l v e s i n r e s p o n s e t o n e e d s , a n d t h o s e d e v e l o p m e n t s s h o u l d b e e x p l o i t e d b e f o r e e n e r g y i s d i r e c t e d t o w a r d d e f i n i n g r e g i o n a l b o u n d a r i e s i n a r e a s w h e r e t h e n e e d s a r e n o t p e r c e i v e d t o b e a s a c u t e . T h i s d o e s n o t r u l e o u t t h e p o s s i b i l i t y t h a t s u c h d e f i n i t i o n m i g h t b e n e c e s s a r y i n t h e f u t u r e , b u t i t d o e s a r g u e a g a i n s t p r e s e n t c o n s i d e r a t i o n o f s u c h . B u t w i t h i n t h e r e g i o n r e m a i n s t h e p r o b l e m o f a s s i g n i n g t h e l i a b i l i t y . T h e a p p r o a c h f o l l o w e d i n t h e i n t e r n a t i o n a l o i l c o m p e n s a t i o n s c h e m e i s t o 26 g i v e t h e f u n c t i o n t o t h e c o u r t s o f C o n t r a c t i n g S t a t e s . T h i s s e e m s t o g i v e a w a y m u c h o f t h e a d v a n t a g e o f r e g i o n a l i s m , f o r i t i s n o t t o b e s u p -p o s e d t h a t a n a t i o n a l c o u r t c a n a v o i d r e f l e c t i n g t h e p e c u l i a r b i a s e s o f 27 t h a t n a t i o n , r a t h e r t h a n t h o s e o f t h e r e g i o n a s a w h o l e . A p a r t f r o m t h e p o s s i b i l i t y o f b i a s , o n e w o u l d e x p e c t t h a t a n a t i o n a l c o u r t w o u l d u s e t h e t r a d e - o f f s i n u t i l i t i e s o f t h a t c o u n t r y , w h i c h m a y n o t h a v e t h e d e s i r e d 142 effect when the ship which incurred liability is foreign. Too, a resort to national courts ignores the special nature of the activity, maritime shipping. w n i i e admiralty has been recognized as a separate area of the law, i t no longer has a special court in many countries.' A regional court, designed to deal solely with the problems of li a b i l i t y for maritime acts, would develop a body of law peculiarly adapted to the needs of this activity. Such a court can be defended commercially, administratively, and legally. Administratively, it would be an extension of the principle of 29 channelling, already recognized. Leaving jurisdiction in one court as-sures that only one person can be liable, as seen by the insurer, when setting premiums. Even i f only one person can be liable far any one judg-ment , the possibility that different courts will find different persons liable would necessitate additional, and wasteful, insurance cover. Administratively, a similar system i s already operating in the Euro-pean Economic Community, so i t seems feasible. The European Court of Human Rights decides cases involving disputes under the Convention on the  Protection of Human Rights. And the judgments are recognized. Of perhaps closer relevance is the European Court, which decides the u l t i -32 mate disposition of cases arising under the Treaty of Rome. The compul-sory jurisdiction of the European Court is of interest when compared with the requirement of submission to the jurisdiction of the European Court of Human Rights. 3 3 The Court can, in effect, decide issues between private parties. 3 4 Its ability to develop a regional set of rules in one area, anti-trust, 3 5 is encouraging, for the interests of the region, rather than of 143 the nations individually, have been upheld. Further, the principles applied have been based on rather abstract and non-detailed principles, 36 not a specific scheme. Thus i t would seem that a regional marine pol-lution treaty need not require agreement on every specific, something difficult to achieve, but only on a general set of principles to be ap-37 plied by the regional court in the future. There are two aspects to this advantage. First is the likelihood of agreement. A l i s t of specific criteria for the region is unlikely, in view of the difficulty of obtaining agreement on standards for one sub-38 stance, o i l . Second is the information necessary for establishing the scheme. At the beginning of the schema's operation, it is unlikely that information will be complete on either the level of pollutants in the part-39 icular marine area or their effect in a given marine area. If a general l i s t of criteria is sufficient, a scheme may be implemented based on present knowledge. As future knowledge becomes available, such a scheme would take it into account in applying the general criteria. This mini-mizes the cost of delay, that is, the loss occuring in the time before the scheme is implemented.40 Too, a l i s t of specific criteria may become dated, and their implementation could do more harm than good in a future world where the utilities of different activities have changed. The mere general formulation avoids the problem. It is not to be supposed that a l l decisions would be left in the hands of the court, to be decided in assigning liability. In the process of creating the general criteria, it is to be expected that general limits on liab i l i t y would be created. The most likely such limitation is one on the total liability possible. There is no need 144 to fear such a limitation, as long as it reflects the underlying concerns of the liability regime, and it errs on the safe side, so as not to defeat later specific implementation. Legally, the problem is more difficult to deal with. For regional liab i l i t y assignment to be effective, i t is necessary that the decisions of the regional court be enforceable without review by municipal insti-tutions. In Professor Schreuer's words: A generous and unrestrained exercise of these functions of review by the national judge is liable to introduce a strong element of instability into international transactions. A judgment or award which is subject to an examination on the merits by a domestic court, possibly of an interested party, before i t is put into effect, w i l l lose much of its value. Apart from considerations of finality there must be grave doubts where an organ, albeit a judicial one, of a State affected by the international litigation is the right body to mater-ially review its outcome. But the traditional legal opinion is precisely that such review is necessary: £rhe principle^ consists in the assertion that in the absence of a special act of "transformation" the decision must be limited in its effect to the international arena. This strictly dualist conception sees the international and national judicial organs as operating in different spheres firmly separated by the States' executive and legislative branches. 2 But in the scheme proposed, the regional court would deal with claims 43 by individuals against other individuals. One of the major components of the argument against domestic enforcement of international decisions is the non-identity of parties: The inclination towards judicial caution in the treatment of international adjudications. . .was often seen to follow from the fact that ordinarily only States have the capacity to act on the international level. The domestic court called upon to implement an international decision, allegedly adjudi-cating rights in favour of individuals or companies, often looked in vain for the requirements to apply the familiar doctrine of res judicata. It was usually not the private claimant but his government that had participated in the inter-national proceedings.44 145 With individuals' claims being adjudicated by the regional court, that basis of objection to enforcement vanishes. And tribunals, other than domestic courts or courts of other states, are recognized. The most salient instance is that of international arbi-tration. Recognition of agreements to arbitrate in a foreign jurisdiction 45 have been recognized in English law, and there is now, in American law, 46 a similar recognition. In Bremen v. Zapata Off-Shore Company and Scherk 47 v. Alberto-Culver Company, the United States Supreme Court recognized the arbitration clause even when a municipal policy would be defeated. 4 8 Now while the policy advanced would be different, rational management 49 of the ocean instead of commercial certainty, these cases stand for an approach to international problems which may differ from the approach to purely municipal ones. And the major problem seen in applying the approach 51 is defining the boundary. But the separate nature of admiralty law would seem to vitiate this concern. Regionalism holds much promise for application and development of more specific international law to deal with pollution liability. And it holds even more promise for development of that institution most sadly needed in international law, an international agency with enforcement powers. But the problems which this approach does not overcome directly must s t i l l be addressed. Froblems There are three areas of problems which wil l be discussed. F i r s t are those of shipping registration and ownership, next the problems introduced by the functions of the insurance industry, and last the problem of areas 146 not covered by the regional approach. Registration and Ownership The problems of registration are usually termed "flag of convenience" 52 problems. Ships may be registered in a country, usually Panama, Liberia, or Honduras, which has l i t t l e connection with the ship. In enforcement of regulations this becomes important, for the primary means of enforcement remains that of the flag state. 5 3 But in the enforcement of liability, i t takes on less importance. It must be remembered that enforcement of financial security provisions is required of the port state, as well as of the flag state, in the existing regime.54 There is no reason to sus-pect that this would not be the case in any future regime. But it might be argued that enforcement of financial security require-ments does not deal with the whole problem. And it is possible for li a b i l i t y to exceed the limits of the security. However, one would hope that this would not be a frequent occurrence, as the amount of security required under any arrangement should be sufficient to cover almost a l l damage to which liability is to be attributed. The major limitation of li a b i l i t y has been 55 the per ton dollar limit, with a maximum, and this should disappear in any proper regional lia b i l i t y regime, for the limits of liability for a particular cargo, or type of ship, should depend on the relative importance of that activity. The traditional limitation provision may indeed remain for particular substances, albeit with altered and more varying amounts. But li a b i l i t y beyond that amount should not be collected in any event, for that amount was chosen as a level which promoted the optimal. Problems of availability of cover remain, but they are not problems of registration or ownership, but those of the insurance community. 147 A similar problem is that of ownership. It has occurred with the one-tanker corporation in those situations in which li a b i l i t y has been placed on the owner,56 but should be put more broadly as the problem of respon-sibility and personality. Flacement of liability on the operator of the ship e n or the owner of the cargo would develop analogous problems.0' This problem is really the separation of assets among different legal persons, so as to defeat claims against an actor in excess of any insurance. As before, the problem thus resolves itself i f there is available cover, and is thus again a problem of the reaction of the insurance community. Insurance From the preceding discussion, i t seems that the usual problems discussed in the marine pollution field turn into insurance problems when the liability scheme is discussed. If insurance were available up to the limit of lia b i l i t y seen as optimal, there would be no problem. This centrality of insurance should come as no surprise. It must be remembered that at the 1969 Conference, insurance, its availability and amount,59 was a prime issue. Although there is some evidence that larger tankers in fact reduce the likelihood of o i l pollution, 6 ( 3 insurance pre-miums for large tankers are disproportionately higher than for small. 6 1 This is perhaps best explained as a fear of uncertainty 6 2 by the insurers. When faced with a possibility which is new, and not actuarially predic-table, due to the lack of previous comparable data, rate setters attempt to err on the side of caution, which is perfectly rational. If the rates are set too high, the possibility that they will be lowered in the future does exist. If they are set too low, future rates would have to cover not 6 3 only the future expenses, but also present expense, plus interest. This 148 reticence to deal with the uncertain is sometimes phrased in nearly moral terms: (The Hull Syndicate's] service to shipowners is one of financial support—the protection of his most valuable asset, the vessel. It would be neither wise nor proper for us to interpose our ideas in other areas prematurely. . . . Before proceeding further with discussion of the impact of the insur-ance market on a pollution liability scheme i t is necessary to discuss briefly the structure of that market. The primary insurance is written by Protecting and Indemnity Clubs (P and I Clubs). They are associations of ship-owners65 which insure losses to their members. Originally restricted to hull and cargo insurance, they now also write pollution insurance.66 As of October 10, 1975 there were 21 clubs, the majority in London. Cover for any particular risk is split into three levels. The lowest C O level is insured within the club, the middle level within clubs, ° and the highest taken by the rer-insurance market. The role of the re-insurers is particularly important, for they must take the risk which is too large for any one individual to absorb, h^e terms of insurance, the rules of the club as they are know,69 place vest discretionary power in the hands of the 70 71 "managers," to allow for accommodation of the demands of the re-insurers.-The power of the re-insurer to affect the insurance offered is shown in the pollution field, where the general re-insurance market is not used. Unlike hull or cargo coverage, where the contract of re-insurance is made with one re-insurer, who then spreads it around the world, re-insurance in the pollution field is accomplished by individual arrangements by the P and I Club underwriting the in i t i a l l i a b i l i t y with other P and I Clubs and other insurers. 7 2 There are two important consequences of this method of re-insuring. 149 First, it is probably more expensive for the same amount of coverage. Each portion of the package must be handled individually. So i t is likely that this is part of the reason for higher rates. The second comes in the limitation of cover. At present, pollution insurance is not available for liability over $25 million. 7 3 The amount of obtainable cover has been recognized as important in determining the amount of liability to be imposed, for to do otherwise is, in effect, to 74 m . prohibit the activity. The mechanism by which the re-insurance is placed depends on the terms on which the first insurer to re-insure takes 75 H I 7fi the risk. For whatever reason, that insurer will not take a portion of the risk unless there is the limitation. Thus the F and I Club would 77 be forced to cover that risk alone, through the use of supplementary calls, and i t seems doubtful that such an arrangement could adequately spread the risk. The solution to this problem must depend on the size of amount of l i -ability to be imposed, relative to the available cover, as well as the cost of the inefficiency introduced by re-insurance through other than regular channels. If the limit of liability desired is within the cover available and the inefficiency is relatively insignificant, then imposition of l i a b i l -ity would follow as a matter of course. If either of these two conditions is not met, the region should, in addition to setting general criteria and limits for the tribunal to apply, agree to act as re-insurer, with appro-priate arrangements to put off some of the risk to public or private parties. 7fi This has already been done domestically in the case of nuclear risks. The only modification necessary is that the scheme not be subsidized. One of the purposes of the liability scheme was to assure proper factor allocation, 150 and a subsidy would defeat this aim, constituting a free good from the 7Q point of view of the insured. Uncovered Areas But the solution proposed leaves one major problem: those areas of the sea which are not part of the regions. Perhaps a modification of the approach is possible, a supra-regional one, but that seems unlikely since one of the essential elements of the regional approach is the commonality of interest and of attributes seen in the. region. But the problems of marine pollution are greatest and most acute in those regions. And treatment of such regions should not be delayed because the larger areas are not as amenable to the same treatment. The Regima First, it must be understood that this thesis did not aim to produce a draft convention on liability for marine pollution. Its purpose was to canvas the existing international law and suggest the outlines of such a regime. As a result, the proposed regime is really a series of recommen-dations, rather than a document. It was seen that "reasonableness" was the central characteristic, both in the union of the "absolutist" and "equitable utilization" schools . of thought, and through judicial decisions, acts of state practice, and the conventions. But one of the purposes of this investigation was to go beyond the mere invocation of a "reasonableness" criterion, for one of it s great deficiencies is a lack of specificity. To this end, i t was proposed that reasonableness be equated to a maximization of benefit over cost to society as a whole, where both are 151 defined, not as narrow economic concepts, but as broadly as possible, including as many benefits and costs as possible. The answer could not be complete and perfect, for some costs and benefits are difficult to measure, except in the most approximate ways. Such an attempt, however, is better than either ignoring costs or benefits not easily deal with, or proceeding entirely on intuition as to what are the better ways of struc-turing management of the ocean. The method proposed for achievement of this maximization is a li a b i l i t y regime, for the reasons given in Chapter I. And for those given in the second section of this chapter, the regime should be basically regional in character. Global efforts should be aimed toward establishing the most general principles for guiding regions to establish their regimes, as was done in the Convention on Fishing and the Conservation of the Living Resources  of the Sea. It is to these principles that this proposal turns. The maximization of benefit over cost was seen to involve the following factors: 1. The incorporation of incentives to improve, so that imposition of liability helps to improve the existing state of technology. 2. The minimization of administrative cost, so that the regime v does not create more costs by its operation than it eliminates. 3. The minimization of waste of resources. This took the form of efficient factor allocation in long-run planning, and also the limit of "reasonableness" when dealing with emergencies. 4. The direction of the system. In the calculation of costs, tendencies of a system to move in a particular direction must be taken into account. These movements may be on a global scale, as in the case of nuclear weapons, or on a narrow region-al one, as in the case of compensation to damaged fishermen. 5. The maintenance of existing activities, and the minimization of costs of disruption. While existing uses and activities should not be held inviolate, changes which disrupt or end 152 activities must be viewed with suspicion. Perhaps the best way of dealing with this is by manipulation of the burden of proof. The last factor must involve careful consideration of the insurance market. In each regional scheme, adequacy of the insurance market must be tested. Inadequacy would usually mean that the activity should be dis-continued, for its costs outweigh1 its benefits. But i f bits of misinfor-mation or benefits previously not calculated can be shown, a proper region-al regime would supplement that market. Since the mode of imposing l i a b i l i t y involves a court-like body, the agreements would incorporate the above principles as guides for decision. Further specific limitations on the size of lia b i l i t y might be desirable for two reasons. First, such limitations would probably promote agreement, since those states involved would not be exposing themselves and their nationals to unknown liability. Thus, the costs of delay would be minimized. Second, such limitations would provide continuity and congruence within the liab i l i t y regime emerging from the tribunal decisions. Case by case deter-mination has been advocated since i t is easier to implement, and more flex-ible, but i t may also be idiosyncratic, dependent on the length of the judges* collective foot in the extreme case. Too, limitations should be imposed to control for the two unwarranted biases seen in the present law, the preference for land-based disposal, and the concern for visibility. Control for these biases should also be embodied in general principles, but they seem strong enough presently to warrant this second, specific treat-ment as well. In the elements of the l i a b i l i t y regime itself, since one of the ad-vantages of the approach advocated is earlier implementation, present law, and its formulations on the elements of liability, should be used. In 153 dealing with substances, the agreements should begin with the present lists of substances, with their present degrees of prohibition, and view them in light of the earlier principles. An example is the "black l i s t " to the London °cean Dumping Convention. Substances on that l i s t should be moved to lower categories only upon proof that inclusion in the ori-ginal category violates one of the principles. It is suspected that this would include some of the petroleum substances, for instance. This should be done at the regional agreement stage, i f possible. But the tribunal should not have its hands tied and should be free to move, delete, and add substances upon proof of the need for such by the parties before i t . Circumstances excusing liab i l i t y should similarly build upon present knowledge. Analogies are necessary since many of the circumstances ex-cusing lia b i l i t y are from non-liability agreements, but the tribunal should be left to find a suitable l i a b i l i t y equivalent. The aim should be to avoid the non-fault/fault dichotomy, which has been seen to be overly nar-row and restrictive, and to concentrate on finding those circumstances in which the original assignment of liability no longer f u l f i l s its purpose. The original assignment will probably f a l l on the "aggressor" for reasons of administrative convenience, but i t must be realized that the "burden of proof" is to be manipulated to minimize administrative cost. If it should become apparent that the parties "damaged" can produce information more easily, then a different burden should be imposed. The question of the person liable, when there are many involved in an activity, w i l l be answered by resort to the twin principles of certainty and incentive. Incentives to improve technology and to monitor existing levels of pollution would ideally dictate the choice, but the concern for 154 certainty, that the person liable be ascertainable at an acceptable cost, must temper the choice. To whom the liability payment should flow must turn on the ability to reconstruct or remedy. This will be affected by the existence of benefits or costs external to any one candidate for payment and the comparative transactions costs of a l l of the candidates. In order to develop a rational body of liability rules, the court should not without good reason depart from earlier determinations. While this should not rise to the level of a regional doctrine of stare decisis, there must be concern to minimize the cost of administration, a cost which would increase dramatically i f every determination were open to re-argument in each case. 155 FOOTNOTES CHAPTER VI 1 Supra, Chapter V. 201iver Wendell Holmes, The Common Law, 76-77. 3Supra, Chapter II. 4See, for example, the reading which Calabresi places on the quoted excerpt: The last and perhaps most important self-imposed limita-tion of the fault system is the rule that in the absence of fault, costs remain where they f a l l . Holmes gave the best justification for this rule when he wrote that when no bene-fi t accrues to society from shifting a loss, there is no rea-son to incur the administrative costs of shifting i t . Calabresi, op.cit., supra, Chapter III, note 46, at 261. Sfiolmes, op.cit., supra, note 2, at 77. 6 For example, see the effect of different tenure arrangements on the impact of payment to private parties. Supra, Chapter V. 7Calabresi, op.cit., supra, Chapter III, note 46, at 295, alludes to this in speaking of the moral aspect of accident law. Speeding probably came to be considered bad because of the accidents it was believed to cause. If i t were conclusively shown that speeding did not cause accidents, the public could not change its feelings about it immediately. Moreover, trad-itional moral attitudes toward speeding would make i t very dif-ficult to convince people completely that speeding did not cause accidents. And the imposition of liability, insofar as it reflects a social de-cision to minimize costs, can create the moral label. It does not matter that some of our taboos originated from what was thought to be an evaluation of nonmonetizable costs and benefits or even from monetizable costs. Ibid., at 296. 8 It is not clear what effect such a move would have. If it is seen as a removal of liab i l i t y for fault, in Calabresi's automobile accident con-text, "now I ' l l have to pay when the reckless driver hits me," it removes the boundary, making a l l activity acceptable. If it labels a l l those on whom liability new falls, in the same context, everyone driving an auto-mobile, then presumably the whole activity would be labelled. 9The Rules of Oleron were incorporated in English law by Richard the Lion-hearted. Grant Gilmore and Charles L. Black, The Law of Admiralty, 7. 156 1 0The district courts shall have original jurisdiction, ex-clusive of the courts of the States, of: 1. Any c i v i l case of admiralty or maritime jurisdiction, saving to suitors in al l cases a l l other remedies to which they are otherwise entitled. 28 USC s. 1333. Thus one occurrence may be subject to both " c i v i l " and "admiralty" laws, depending upon the plaintiff's status. 1 1 ^Admiralty jurisdiction shall extend to injuries] caused by a vessel. . .notwithstanding that such damage or injury be done or consummated on land. 46 USC s. 740. In the pollution field this has become important for o i l spills causing shore-line damage. They are within the maritime jurisdiction as a "mari-time tort," Perth Amboy, No. 2, 144 F.Supp. 340 (S.D.N.Y. 1956), but can also be the subject of state legislation, American Waterway Operators, Inc. v. Askew, 411 U.S. 375 (1972). A somewhat more humourous case is of a collision between a railroad train and a vessel, protruding onto the shore. Chicago, Burlington, and  Quincy R.R. v. The W.C. Harms. 134 F.Supp. 636; [1955J TiuVC. 1423 (S.D.Tex. 1954). The court found for the libellant, partially because its train was "seaworthy." l^The most notable of which is the use of nuclear materials. Supra, Chapter V. 13Ranging from outlawing, as in the case of piracy, Article 14, 1958 Geneva Convention on the High Seas, supra, Chapter Y, note 1, to standards, as in the Safety of Life at Sea Convention. (1964) 16 UST 794; TIAS #5813; 536 UNTS 27. 1 4An exception is the Oslo Ocean Dumping Convention. (1972) 11 Inter- national Legal Materials 262, entered into force 1974. This convention dealt with the problem of dumping in the North Sea, but its status as a peculiarly regional convention is undermined by the subsequent adoption of its substance in the London Ocean Dumping Convention, supra, Chapter FY, note 22. One suspects that agreement was reached for only the North Sea first simply because there were fewer actors who had to agree. Additionally, one must consider both the Convention for the Protection  of the Marine Environment of the Mediterranean Sea Area, supra, Chapter V, note 139, and the Convent ion for the Protection of the Marine Environment  of the Baltic Sea Area, supra, Chapter Y, note 49, bothof which adopt the London Ocean Dumping Convention framework and substance. But these con-ventions go no further in fine-tuning the comparisons and judgments made with respect to the activities mentioned. They are simply attempts to combine particular elements from different schemes. 'Bourne, op.cit., supra, Chapter II, note 27, at 201-202. 157 16 |l966] 1 UST 138; TIAS #5969; 559 UNTS E85. l'William W. Bishop, ."The 1958 Convention on Fishing and Conserva-tion of the Living Resources of the Sea," (1962) 62 Columbia Law Review 1206. The most important principle is the one on "conservation of the living resources of the high seas": Article 1(2) All States have the duty to adopt, or to co-operate with other States in adopting, such measures as may be necessary for the conservation of the living resources of the sea. Article 2 As employed in this Convention, the expression "conserva-tion of the living resources of the high seas" means the ag-gregate of the measures rendering possible the optimum sus-tainable yield from those resources so as to secure the maxi-mum supply of food and other marine production. Conservation programmes should be formulated with a view to securing in the first place a supply of food for human consumption. The principle, however explicit i t may seem on first reading, is ambiguous. It speaks of a maximum supply of food, which seems to be a physical maximum, but an optimum, not maximum, sustainable yield, which is an economic maximum. See C.B. Flourde, "A Simple Model of Replen-ishable Natural Resources," (1970) 60 American Economic Review 254. 18(1950) 1 UST 477; TIAS #2089; 157 UNTS 157. 1 9Michael Hardy, "Regional Approaches to law of the Sea Problems: The European Community," (1975) 24 International and Comparative Law  Quarterly 336, at 338. 2CGlven the difference in temperature between the Mediterranean and these, more northerly seas, one must remember the temperature dependence of bio-degradation. The direction to which such a realization inclines one is not clear, however. More rapid degradation of substances will rid the sea of such a substance, but i f the end-products of the process are harm-ful, such might not be desirable, see the peculiar case of detergents. 21Alexander, op. cit., supra, Chapter TV, note 63. 22Some evidence that such relationships are considered.;is shown in the signing of the Convention for the Protection of the Marine Environment of  the Mediterranean Sea Area. While, geographically, a l l the countries that border the sea would be part of the region, a l l did not sign the convention. Signatories Non-Signatories Cyprus Lebanon Turkey Albania Egypt Malta Algeria France Morocco Libya Greece Monaco Tunisia Italy Spain Yugoslavia 158 After controlling for ideological constraints on the freedom of actors, i t seems that those signing are the countries commonly thought of as "developed." 2 3L.J. Locht, "Some Tentative Conclusions from Project Evaluation Experience with Regard to Guiding Principles on Transfrontier Pollution," in Problems in Transfrontier Pollution, 233, at 242. 24(1970) 9 International Legal Materials 359. &0Hardy, op.cit., supra, note 19. 26Convention on Civil Liability for Oil Pollution Damage, supra, Chapter V, note 108, Article EC: 1. Where an incident has caused pollution damage in the territory including the territorial sea of one or more Con-tracting States, or preventive measures have been taken to prevent or minimize damage in such territory including the territorial sea, actions for compensation may only be brought in the Courts of any such Contracting State or States. See also, Article V(3), (7), dealing with the constitution of the limita-tion fund. 2 7Christoph H. Schreuer, "The Implementation of International Judi-cial Decisions by Domestic Courts," (1975) 24 International and Compara- tive Law Quarterly 153, at 154. 2 8 I n the United States, the change is most striking: {IQt is indispensable to note at the outset a recent change as regards the formal separateness of the "admiralty jurisdiction." Until 1966, each federal district court had an admiralty "side," with a separate docket, with rules of procedure peculiar to admiralty cases. In 1966, the separate "sides" were merged, the admiralty "side" became a regular " c i v i l action," and the Federal Rules of Civil Procedure were made generally-applicable, with some special rules for cer-tain cases under the "admiralty" jurisdiction grant. Gilmore and Black, op.cit., supra, note 9, at 2. 29Supra, Chapter V, nn. 179-187, and accompanying text. 30(1952) 213 UNTS 221. 2lAlthough the implementation may involve some degree of "foot-dragging ." J.A.S. Grenville, The Major International Treaties, 1914-1973, 416. 159 3 3Article 171 of the Treaty of Rome provides: If the Court of Justice finds that a member State has failed to f u l f i l l an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice. Compare Article 46 of the Convention for the Protect ion of Human  Rights: 1. Any of the High Contracting Parties may at any time declare that it recognises as compulsory ipso facto and with-out special agreement the jurisdiction of the Court in a l l matters concerning the interpretation and application of the present Convention. 3 4Technieally the Commission takes action, and the Court reviews under Article 173. Thus there is no requirement of exhausting municipal remedies as there is in customary international law, although the relative costs make it likely that municipal courts will be used f i r s t . 3 5 I n recent years a body of "European" anti-trust law has been devel-oped under Articles 85 and 86 of the Treaty of Rome, supra, note 32. 3 6Articles 85 and 86 of the-Treaty of Rome provide: 85(1). The following shall be prohibited as incompatible with the common market: a l l agreements between undertakings, de-cisions by associations of undertakings and concerted practices which may affect trade between Member States and which has as their object or effect the prevention, restriction or distor-tion of competition within the common market, and in particular those which: a. directly or indirectly fix purchase or selling prices or any other trading conditions; b. limit or control production, markets, technical development, or investment; c. share markets or sources of supply. . . . 86. Any abuse by one or more undertakings of a dominant posi-tion within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as i t may affect trade between Member States. Such abuse may, in particular, consist in: a. directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; b. limiting production, markets or technical development to the prejudice of consumers. . . . 3 7Supra, Chapter V. 3 8See, for example, the need for farther information evidenced in 160 Article 13 of the Convention for the Protection of the Marine Environ- ment of the Baltic Sea Area, supra, Chapter V , note 49, in defining the duties of the Commission: d) To define pollution control criteria, objectives for the reduction of pollution, and objectives concerning measures [to be takeiQ; e) To promote in close co-operation with appropriate govern-mental bodies. . .additional measures to protect the marine environment of the Baltic Sea Area and far this purpose: i) to receive, process, summarize and discriminate from available sources relevant scientific, technological and statistical information; and ii ) to promote scientific and technological research. . . . 3 9 I n the regulation of industries, this cost of delay has been the point of some discussion. See Robert W. Gerwig, "Natural Gas Production: A Study of Costs of Regulation," (1962) 5 Journal of Law and Economics 69, at 75-77. The exact computation of it here is complicated by its inclu-sion of loss from both over-use of the social good, the amenity, and the misallocation of factors of production. The cost would depend on the dis-count factor of the future benefit, a factor which is different for the two components. 40Schreuer, op.cit., supra, note 27, at 153-154. 4 l l b i d . , at 154-155. 4 2 I t is possible that states could come before the court, but it would be in a personal capacity, as shipper or proprietor. 43Schreuer, op.cit.. supra, note 27, at 161. 44Re Unterweser Reederei, [j968] Lloyd's Reports 1958 (C.A.). 45407 U.S. 1; 92 S .Ct. 1907 (1972). 4 6417 U.S. 506; 94 S.Ct. 2449 (1974). 4 7 I n Bremen, the policy involved non-enforcement of contractual ex-culpations for negligence. It was assumed in the case that American admiralty lav; would not have allowed the exculpation, and an English solicitor testified that English law would have upheld the clause. Fur-ther, it was assunBd, without discussion, that in an arbitration in London, English law would be applied. In Scherk, the question was the application of Regulation 10b-5, 17 CFR s. 240.10b-5, to the Securities Exchange Act, 15 USC 70 et seq., the constructive fraud rule. It was assumed that it would not be applied at the arbitration in Paris, but would have been applied in the United States District Court. 161 4 8That is the most often stated reason for the decisions in Bremen and Scherk. See 12 S.Ct. 1914, and, generally, Lawrence Collins, "Forum Selection and an Anglo-American Conflict—The Sad Case of the Chaparral," (1971) 20 International and Comparative Law Quarterly 550, a criticism of the 5th Circuit's decision not to uphold the arbitration clause, In Re Unterweser Reederei, 428 F.2d 888 (5th Cir. 1970). 4 9For a limitation of Scherk to international transactions, see Newoman v. Shearson, Hammill and Company, 383 F.Supp. 265 (W.D.Tex. 1974). 5 0This is the problem addressed by Justice Douglas in his dissent in Scherk. He was concerned for protection of a municipal rale which protected investors. One need not go as far as he did in his dissent in Bremen, where he found admiralty to be equity, and therefore United States nationals should be protected at a l l costs, to realize the importance of the boundary. 5xSchreuer, op.cit., supra, note 27, at 182-183. The enforcement would not be direct, in the sense that the international agency executed its own decisions, but only in the sense that the decisions would be recog-nized as binding in the absence of factors like fraud undermining the decisions. Ibid., at 154. 52Although, see Erling D. Naess, The Great Fanlibhon Controversy, where the term "flags of necessity" is preferred. 5 3Professor Meyers objects to the term. He prefers "the State to which the ship is allocated." H. Meyers, The Nationality of Ships 31-195. 5 4Article VII(ll), Convention on Civil Liability for Oil Pollution Damage, supra, Chapter V, note 108. 5 5See the discussion of the Torrey Canyon, supra, Chapter IV. 5 6For discussion of the analogous problem with the o i l owner, see supra, Chapter V. 57Presumably insurance would be obtained i f available, up to the amount of liab i l i t y deemed socially desirable. Inadequate coverage would result, then, from a refusal of the community to supply i t , probably at a re-insur-ance level. 5 8This was the point made by the United Kingdom. Records of the Confer- ence on.Marine Pollution Damage 596. 5 9The Netherlands and the Federal Republic of Germany made this point in suggesting that the limitation period be reduced: The term of 10 years is too long. Insurance premiums might be increased as a result of this long term, which would be an undesirable consequence. 162 And the term was shortened. Article VLTI provides: Rights of compensation under this Convention shall be ex-tinguished unless an action is brought thereunder within three years from the date when the damage occurred. However, in no case shall an action be brought after six years from the date of the incident which caused the damage. 60V.P. Nanda, "Oil Pollution in the Sea," (1969) 10 Harvard Inter- national Lav; Journal 516, at 318: Large tankers do not necessarily increase the danger of catastrophe, as there is some evidence that they are more manageable than smaller ones. Professor Nanda then goes on to show the major qualification to that is the difficulty of unloading some of the bigger tankers, and the necessity for more transfers. 61Cummins, et al., op.cit., supra, Chapter IV, note 43, at 185, 188-192. 6 2As opposed to risk. 63The interest allowance is necessary since the uncompensated expense in the present will farce the insurer to go to capital markets to increase liquidity or divert his own investments, in the former case incurring an interest expense, in the latter foregoing a return. 64A.E. Schumacher and W.J. Patterson, Jr., "Hull Underwriting and the Changing Technology," Unpublished speech, July 1973, at 9-10, quoted at Lipeles, op.cit., supra, Chapter V, note 175, at 7. The point under discussion was the incentive that underwriters could provide for use of technology minimizing the likelihood of marine pollution. 65The identity of the members is not significant. If liability were imposed on other actors, presumably they would form similar organizations. For example, in the case of o i l owners there is already such an organ-ization as part of the Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution, CRISTAL. See Gordon L. Becker, "A Short Cruise on the Good Ships TOVALOP and CRISTAL," (1974) 5 Journal of Mari- time Law and Commerce 626. 6 6Lipeles, op.cit., supra, Chapter V, note 175, at 23. 6 7Eighteen are members of the "London group": ten are in the United Kingdom, four are in Bermuda, three in Scandinavia, and one in Japan. The London Group insures 80$ of the world's tonnage and 85$ of the tanker tonnage. In addition, there is one other club, registered in Bermuda, but writing in London, and there are also two American clubs, only one of which writes pollution insurance. See Lipeles, op.cit., supra, Chapter V, note 175. 6 9Rule s of the Protecting and Indemnity Club of the United Kingdom 163 Mutual Steamship Assurance Association (Bermuda) Ltd. 6 9 Ibid. 7°Defined as "The Managers for the time being of the Association." Ibid., Rule 1. Vllbid., Rules 4, 10(A), 11(A), 37(A). V2Lipeles, op.cit., supra, Chapter V, note 175, at 29. 7 3Ibid. ^Supra, Chapter V. But it is not clear that $25 million is adequate for existing liability. The amount imposed by the 1969 convention is, nominally, $>14 million, but its exact present valuation may be considerably higher, supra, Chapter V. 7 5Lipeles, op.cit., supra, Chapter V, note 175, at 31. In the case of American ship-owners, the agreement is made with Lloyd's marine syndicate, and the terms are then copied by others. 76probably to avoid invalidating their own re-insurance contract, far the taking of unlimited liability could place a strain on the system unless appropriate precautions are taken. ^^Supplementary calls are levies made, during a fiscal year, by a P and I Club on its members to meet unforeseen liabilities. See Rule 13(B), supra, note 68: At such subsequent tine or tima s during, or after the end of, each policy year (but not after such policy year has been closed) as the Directors think f i t the Directors may decide to levy from the Owners of Ships entered in respect of such policy year a Supplementary Call. . . . 7 8Nuclear Operators Liability Act, RSC 1970, 1st Supp., c. 29. 7^This assumes that the high cost or unobtainability of insurance is due to inadequate knowledge on the part of the re-insurers. An example is the insurance industry's refusal to write pollution insurance until after the formation of T0VAL0P, at which time it found its fear unjustified. Becker, op.cit., supra, note 65. If, on the other hand, insurance for the li a b i l i t y imposed cannot be made available at a price which the shipping industry can afford, then the activity should be prohibited in any event, for, on balance, its costs out-weigh its benefits. The only role of a subsidy should be to pay for ele-ments not easily monetized, but s t i l l desired. 'All of the "special regions," for example, are in such areas. 164 BIBLIOGRAPHY Articles, Speeches, and Notes Admiralty Law Institute, "Symposium on Carriage of Goods by Water," (1971) 45 Tulane Law Review 697. Lewis M. Alexander, "Regionalism and the Law of the Sea: The Case of Semi-Enclosed Seas," (1975) 2 Ocean Development and International Law 151. F. Bator, "The Simple Analytics of Welfare Maximization," (1957) 47 American Economic Review 22.. W.S. Baumol, "On the Social Rate of Discount," (1968) 58 American Economic  Review 788. Bernard G. Bechhorfer, "The Nuclear Test Ban Treaty in Retrospect," (1973) 5 Case-Western Reserve Journal of International Law 125. Gordon L. Becker, "A Short Cruise on the Good Ships TOVALOP and CRISTAL," (1974) 5 Journal of Maritime Law and Commerce 626. J.A. Beesley, "Rights and Responsibilities of Arctic Coastal States," (1971) 3 Journal of Maritime Law and Commerce 1. , "Statement Delivered at IMC0 Conference on the Convention on the Dumping of Wastes at Sea," 31 October, 1972, unpublished. Samuel Bergman, "No Fault Liability for Oil Pollution Damage," (1973) 5 Journal of Maritime Law and Commerce 1. J.H. Beuscher and J.W. Morris, "Judicial Zoning through Recent Nuisance Cases," [l955j Wisconsin Law Review 440. Richard B. Bilder, "Canada's Arctic Waters Pollution Prevention Act—New Stresses on the Law of the Sea," (1970) 69 Michigan Law Review 1. William W. Bishop, "The 1958 Convention on Fishing and Conservation of the Living Resources of the Sea," (1962) 62 Columbia Law Review 1206. Walter J. Blum and Harry Kalven, Jr., "The Empty Cabinet of Dr. Calabresi," (1967) 34 University of Chicago Law Review 239. C.B. Bourne, "International Law and Pollution of International Lakes and Rivers," (1971) 21 University of Toronto Law Journal 193. , "Procedures in the Development of International Drainage Basins," (1972) 10 Canadian Yearbook of International Law 212. Paul G. Bradley, "Marine Oil Spills: A Problem in Environmental Management," (1974) 14 Natural Resources Journal 337. 165 E.D. Brown, "The Conventional Law of the Environment," (1973) 13 Natural Resources Journal 203. Herbert Brownell and Samuel D, Eaton, "The Colorado River Salinity Problem with Mexico," (1975) 69 American Journal of International Law 255. J.M. Buchanan and V/. Stubblebine, "Externality," (1962) 29 Economica 371. Lucius Caflisch, "International Law and Ocean Pollution: The Present and the Future," (1972) 8 Belgium Review of International Law 1. Guido Calabresi and Jon T. Hirschoff, "Towards a Test for Strict Liability in Torts," (1972) 81 Yale Law Journal 1055. R.H. Coase, "The Problem of Social Cost," (1960) 3 Journal of Law and  Economics 1. Lawrence Collins, "Forum Selection and an Anglo-American Conflict," (1971) 20 International and Comparative Law Quarterly 550. T.D. Crocker, "Externalities, Property Rights, and Transactions Costs: An Empirical Study," (1971) 14 Journal of Law and Economics 451. P.A. Cummins, D.E. Logue, R.D. Tollison, T.D. Willett, "Oil Tanker Pollution Control: Design Criteria vs. Effective Liability Assessment," (1975) 7 Journal of Maritime Law and Commerce 169. Aaron L. Danzig, "Marine Pollution—A Framework for International Control," (1973 ) 1 Ocean Management 347. "Declaration of the Present of Chile Claiming Jurisdiction over the Seas to a Distance of 200 Miles," International Law Documents 48. Peter A. Diamond, "Accident Law and Resource Allocation," (1974) 5 Bell  Journal of Economics 366. and James A. Mirrlees, "On the Assignment of Liability: the Uniform Case," (1975) 6 Bell Journal of Economics 487. E. du Pontavice, "Stella Maris," Marine Pollution Bulletin, August, 1971, 115. Ivan R. Feltham, "The Canadian Radio Patents Case," (1960) 1 University  of British Columbia Law Review 340. J.A. Frowein, "Legal Problems of the German Ostpolitik," (1974) 23 Inter- nat ional and Comparative Law Quarterly 105. Robert W. Gerwig, "Natural Gas Production: A Study of Costs of Regulation," (1962) 5 Journal of Lav; and Economics 69. Edgar Gold, "Marine Pollution and International Law," (1971) 3 Journal of Maritime Law and Commerce^  39. 166 L.F.E. Goldie, "Amenities Rights—Parallels to Pollution Taxes," (1971) 11 Natural Resourees Journal 274. , "International Principles of Responsibility for Pollution," (1970) 9 Columbia Journal of Transnational Law 281. , "Liability for Damage and the Progressive Development of International Law," (1965) 14 International and Comparative Law  Quarterly 1189. , "Liability for Oil Pollution Disasters," (1975) 6 Journal of Maritime Law and Commerce 303. W. Paul Gormley, "The Right of Individuals to be Guaranteed a Pure, Clean and Decent Environment: Future Programs of the Council of Europe," (1975) 1 Legal Issue s of European Integration 23. C.A. Haberbusch, "Constitution of the Torrey Canyon Limitation Fund," (1959) 1 Journal of Maritime Law and Commerce 146. Gunther Handl, "Liability for Pollution of International Watercourses," (1975) 13 Canadian Yearbook of International Law 156. Michael J. Hardy, "International Control of Marine Pollution," (1971) 11 Natural Re sour ces Journal 296. , "The^Liability of Operators of Nuclear Ships," (1963) 12 International and Comparative Law Quarterly 778. , "Regional Approaches to Law of the Sea Problems: The European Community," (1975) 24 International and Comparative Law  Quarterly 336. Nicholas J. Healy, "The CMI and IMCO Draft Conventions on Civil Liability for Oil Pollution," (1969) 1 Journal of Maritime Law and Commerce 93. Archie- Hovanesian, Jr., "Post Torrey Canyon: Toward a New Solution to the Problem of Traumatic Oil Spillage," (1970) 2 Connecticut Law Review 632. Lawson A.W. Hunter, "The Proposed International Compensation Fund for Oil Pollution Damage," (1972) 4 Journal of Maritime Law and Commerce 117. Stephen R. Katz, "Issues Arising in the Icelandic Fisheries Case," (1973) 22 Internatlonal and Comparative Law Quarterly 83. Lester Kushner, "The 1966 Load Line Convention," (1972) 3 Journal of Mari- time Law and Commerce 375. Legislative Developments, "Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter," (1974) 6 Law and Policy in International Business 575. 167 Robert McManus, "The New Law on Ocean Dumping, Statute and Treaty," (1973) 5 Oceans 24. Myres S. McDougal and Norbert Schlei, "The Hydrogen Bomb Tests in Perspec-tive," (1955) 64 Yale Law Journal 648. A.J. Mendelsohn, "Maritime Liability for Oil Pollution—Domestic and International Law," (1969) 38 George Washington Law Review 1. M. Ann Murphy, Betty B. Bennett, Donna M. Ismael, "Caracas 1974: International Regulation of Ocean Ecology," (197S) 5 Golden Gate Law  Review 325. V.F. Nanda, "Oil Pollution in the Sea," (1969) 10 Harvard International  Law Journal 316. , "The Torrey Canyon Disaster: Some Legal Aspects," (1967) 44 Denver Law Journal 400. E.J. Newbould, "New International Rules of the Road," (1965) 19 JAG  Journal 135. "Note Demanding Payment for Damage Resulting from the Oil Spin at Cherry Point," ft.97(T) House of Commons Debates 6027. "Note Requesting Payment of Damages in the Pukuryu Maru Affair," (1954) 31 United States Department of State Bulletin 492. "Note Tendering Payment of Damages in the Pukuryu Maru Affair," {j.9551] 1 UST 1, TIAS #3160, (1955) United States Department of State Bulletin 49a Note, "The Case against the Guest Statute," (1966) 7 William and Mary  Law Review 321. Note, "The Impact of Pollution Abatement Laws on the International Economy," (1975) 7 Law and Policy in International Business 203. Victor Petaccio, "Water Pollution and the Future Law of the Sea," (1972) 21 International and Comparative Law Quarterly 18. Donat Pharand, "Innocent Passage in the Arctic," (1968) 6 Canadian Yearbook  of International Law 3. C.G. Plourde, "A Simple Model of Replenishable Natural Resources," (1970) 60 American Economic Review 254. Joseph D. Porricelli, Virgil F. Keith, Richard L. Starch, "Tankers and the Ecology," (1971) 79 Transactions of the Society of Naval Architects  and Marine Engineers 174. A.R. Prest and R. Turvey, "Cost/Benefit Analysis: A Survey," (1965) 75 Economic Journal 683. 168 Report of the Board of Investigation on the Stranding of the Torrey Canyon, ri967) 6 Internetional Legal Materials 480. Jan Schneider, "New Perspective on International Environmental Law," (1973) 82 Yale Law Journal 1659. Christoph H. Schreuer, "The Implementation of International Judicial Decisions by Domestic Courts," (1975) 24 International and Comparative  Law Quarterly 153. William Schulze and R.C. D»Arge, "The Coase Proposition," (1974) 64 American  Economic Review 763. A.D. Scott, "The Fishery: Objectives of Sole Ownership," (1955.) 63 Journal  of Political Economy 166. Jeffrey J. sherrin, "International Law and Canadian Arctic Pollution Control," (1974) 38 Albany Law Review 921. H. Shibata, "Pareto Optimality and Gains from Trade: A Further Elucidation," (1974) 41 Eeonomica 71. Vernon L. Smith, "Optimal Costly Firm Entry in General Equilibrium," (1974) 9 Journal of Economic Theory 397. G. Sutton, "Pollution Prevention in the Arctic," (1972) 5 Ottawa Law  Review 32. Joseph C. Sweeney, "Environmental Protection by Coastal States," (1974) 4 Georgia Journal of International and Comparative Law 278. Ludwig A. Teclaff, "International Law and the Protection of the Oceans from Pollution," (1972) 41 Fordham Law Review 59. Ezra Ripley Thayer, "Liability without Fault," (1916) 29 Harvard Law Review 80L Albert E. Utton, "International Aspects of Environmental Policy," (1971) 11 Natural Resources Journal 513. Lance D. Wood, "An Integrated International and Domestic Approach to Civil Liability for Vessel-Source Oil Pollution," (1975) 7 Journal of Maritime  Law and Commerce 1. Books and Monographs Richard B. Bilder, The Role of Unilateral State Act ion in Preventing International Environmental Injury, University of Wisconsin: Madison, 1973. William W. Bishop, "The Exercise of Jurisdiction for Special Purposes in the High Seas Areas Beyond the Outer Limit of Territorial Waters," Paper presented at the 6th Inter-American Bar Association Conference, 1969. 169 Bole slaw Adam Boczek, Flags of Convenience, Harvard University Press: Cambridge, 1962. L.J. Bouchez and L. Kaijen, ed., The Future of the Law of the Sea, Nijhoff: The Hague, 1973. Guido Calabresi, The Costs of Accidents, Yale University Press: New Haven, 1970. Lewis A. Coser, The Functions of Social Conflict, The Free Press: New York, 1956. Edward Cowan, Oil and Water—The Torrey Canyon Disaster, Lippincott: Philadelphia, 1968. Economic Aspects of Fish Production, OECD: Paris, 1972. Albert A. Ehrenzweig, Conflict of Laws, West Publishing: St. Paul, 1959. Grant Gllmore and Charles L. Black, Jr., The Law of Admiralty, 2d Editioa, . The Foundation Press: Mineola, New York, 1975. Herbert Funk Goodrich, Handbook on the Conflict of Laws, West Publishing: St. Paul, 1965. J.A.S. Grenville, The Major International Treaties 1914-1973, Methuen and Company: London, 1974. James A. Hargrove and Anthony D'Amato, Environment and the Law of the Sea, American Society of International Law: Washington, 1974. R.F.V. Heuston, Salmond on the Law of Torts, 15th Edition, Sweet and Maxwell: London, 1969. Oliver Wendell Holmes, The Common Law, Belknap Press: Cambridge, 1967. W.R. Jackett, The Federal Court of Canada, Information Canada: Ottawa, 1971. Robert Leflar, American Conflicts Law, Bobbs-Merrill: Indianapolis, 1968. Maxine Lipeles, Oil, Environmental Policy Institute: Washington, 1975. P.D. McTaggart-Cowan, H. Sheffer, and M.A. Martins, Report of the Task Force: Operation Oil, Information Canada: Ottawa, 1973. H. Meyers, The Nationality of ^hips, Martinus Nijhoff: The Hague, 1967. Monaco Symposium on Nuclear Liability, IAEA: Paris, 1969. Erling D. Naess, The Great Panlibhon Controversy, Gower Press: Essex, 1972. Shigeru Oda, The International Law of Ocean Development, Volume I, Sjithoff: Leiden, 1972. 170 , The International Law of Ocean Development, Volume II, Sjithoff: Leiden, 1975. L. Oppenheim, International Law, Volume I, 8th Edition, Longmans: London, 1955. Donat Pharand, The Law of the sea of the Arctic, University of Ottawa Press: Ottawa, 1973. Problems in Transfrontier Pollution, OECD: Paris, 1974. William L. Frosser, The Law of Torts, 4th Edition, West Publishing: St. Paul, 1971. Records of the Conference on Marine Pollution Damage, IMCO: London, 1973. Report of the Committee on the Prevent ion of Pollution of the Sea by Oil, Her Majesty's Stationery Office: London, 1953. Restatement of the Foreign Relations of the United States, American Law Institute: St. Paul, 1971. William M. Ross, Oil Pollution as an International Problem, University of Washington Press: Seattle, 1973. Richard Vollenweider, The Scientific Fundamentals of Eutrophication of Lakes  and Flowing Waters, OECD: Paris, 1968. R. Warner, Environmental Effects of Oil Pollution in Canada, Canadian Wildlife Service: Ottawa, 1969. Cases American Waterway Operators v. Askew, 411 U.S. 375 (1972). Bliss v. Hall, (1838) 4 Bing. N.C. 193. Bove v. Donner-Hanna Coke Corporation, 236 App. ,Div. 37; 258 N.Y.S. 229 (1932). Bremen v. Zapata Off-Shore Company. 407 U.S. 1; 92 S.Ct. 1907 (1972). Butter field V j _ Forrester, (1809) 11 East 60; 10 R.R. 433. Chicago, Burlington, and Qjuincy R.R. v. The W.C. Harms, 134 F.Supp. 636; JT955J AMC 1423 "[sTD.Tex. 19547. City of New York v. New Jersey, 283 U.S. 473. Corfu Channe 1 Case, [l949] International Court of Just ice Reports. The Danzig Officials Case, 1928 Permanent Court of International Justice  Reports Series B, n. 15. 171 The Diversion of the Waters from the River Meuse, Permanent Court of Internat ional Justice Reports, Series A/B, n. 70. Fisheries Jurisdiction Case, [1.9743 Internat ional C 0 Urt of Justice Reports. Gaynor v. Allen, [1959J} 2;Q.B. 403. Ghaman v. Glasgow Corporation, 1950 S.C. 23; 1950 S.L.T. 2. The Injuries Case, Jl94?~] International Court of Justice Reports 174. Kansas v. Colorado, 185 U.S. 125 (1901). Khyatt v. Morgan, \l961^ N.Z.L.R. 1020. Lake lanoux Arbitration, (1957) 12 UNRIAA 281, (1959) 53 American Journal  of International 'Law 156. Missouri v. Illinois. 200 U.S. 496 (1905). New York v. New Jersey, 256 U.S. 296. Newoman v. Shearson, Hammill and Company, 383 F.Supp. 265 (W.D.Tex. 1974). Noble v. Stewart. (1923) 21 N.B.R. 94. Nuclear Tests Case, (Preliminary) (1973) 12 International Legal Materials 749. (Final) [1974] International Court of Justice Reports. Perth Amboy No. 2, 144 F.Supp. 340 (S.D.N.Y. 1956). Re Barracuda Transport. 409 F2d 1013 (2d Cir. 1969). In Re Unterweser Reederei, 428 F2d 888 (5th Cir. 1970). Re Unterweser Reederei, [1968J 2 Lloyd's Reports 1958 (C.A.). Scherk v. Alberto-Culver Company, 417 U.S. 506; 94 S.Ct. 2449 (1974). Sierra Club v. Morton, 405 U.S. 727 (1972). S.S. Lotus, 0.9273 Permanent Court of International Justice Reports, Series A, n. 10. Trail Smelter Arbitration, (1938) 3 UNRIAA 1935; (1939) 33 American Journal  of International Law 182. (1949) 3 UNRIAA 1938; 35 American Journal of International Law 684. U.S. v\ Aluminum Company of America, 148 F2d 416 (2d Cir. 1945). venne v. Republic of the Congo, Q971^ S.C.R. 997. 178 Statutes and Convent ions Additional Act to the Treaty of Bayonne, (1959) 53 American Journal of  International Law 156. Amendments to the 1954 Convention, (1962) 17 UST 1523; TIAS #6109; 600 UNTS 332 ;TT967) 8 International Legal Materials 652; (1972) 11 Ihternational Legal Materials 267. Antarctic Treaty, (1959) 12 UST 794; TIAS #4780; 402 UNTS 71. Arctic Waters Pollution Prevention Act,.RSC 1970, 1st Supp., c. 2. Boundary Waters Treaty. (1909) 36 Stat. 2448; TS 548. Carriage of Goods by_ Sea Convention, (1937) 120 LNTS 155. Colorado River Salinity Agreement, (1974) 24 UST 1968; TIAS #7708. Contributory Negligence Act, RSBC 1960, c. 74. Convention on Civil Liability for Oil Pollution Damage, (1969) 8 International  Legal Materials 25. Convention for Cjyji Liability in the Maritime Carriage of Nuclear Material, (1972) 11 International Legal Materials 277. Convention on Damage from Space Objects, (1971) 10 International Legal  Materials 965. Convention on a Compensation Fund for Oil Pollution Damage, (1972) 11 International Legal Materials 284. Convention on the Prevention of Collisions at Sea.. (1973) 12 International  Legal Materials 735. 1954 Convention for Prevent ion of the Pollution of the Sea by Oil. (1954) 12 UST 2989; TJAS #4900; 327 UNTS 3. Convent ion for the Protection of the Marine Environment of the Baltic Sea  Area, (1974) 13 International Legal Materials 546. Convention for the Protection of the Marine Environment of the Mediterranean  Sea Area. (1975) 14 International Legal Materials 481. Convention for the S afety of Life at Sea, (1964) 16 UST 794; TIAS # 5813; 536 UNTS 27. Convent ion for the.Settlement of Difficulties Arising from the Operation of  the Smelter at Trail. B.C.. (1935) 49 Stat. 3245; TS 893. 173 Convention on Damage Caused by Foreign Aircraft, (1952) 310 UNTS 181. Convention on Fishing and Conservation of the Living Resources of the  Sea, /jL96f] 1 UST 138; TIAS #5969; 559 UNTS 285. Nuclear Ship Operators Liability Convention, (1962) 57 American Journal of  International Law 268. Convention on the Prevention of the Pollution of the Sea by Ships and  Aircraft, (1973) 12 International Legal Materials 1319. Convention on the Protection of Human Rights, (1952) 213 UNTS 221. Convention Relating to Intervention on the High Seas, (1969) 8 International  Legal Materials 45. CRISTAL, (1971) 2 Journal of Maritime Law and Commerce 705. Designation of the Marine Environmental Protection Committee by DMCO, (1974) 13 International Legal Materials 480. Draft Rules for Marine Pollution of Continental Origin, (1972) 55 Inter- national Law Association Reports r v i i . European Agreement to Restrict Detergents. (1968) ETS #64; GBTS #23. Federal Court Act, RSC 1970, 2d Supp., c. 10. Final Act of the European Security Conference, (1975) 14 International  Legal Materials 1292. Geneva Convention on the High Seas, (1958) 13 UST 2313; TIAS #5200; 450 UNTS 82. Helsinki Rules, (1966) 52 International Law Association Reports 484. Informal Single Negotiating Text. UN Doc. A/Conference 62/ WP. 80. Limitation of Liability Act, 46 USC s. 181, et sea,. Limitation of Liability Convention. (1957) British Shipping Laws, Vol. 8, 1342. Limited Nuclear Test-Ban Treaty. (1964) 14 UST 1313; TIAS #5433. Load Line Convention, (1966) 18 UST 1857; TIAS #6331; 640 UNTS 133. London Ocean Dumping Convention. (1972) 11 International Legal Materials 1291. London Protocol to the Convention Relating to Intervention on the High Seas, (1974) 15 International Legal Materials 605. 174 Nordic Environmental Protection Convention,,(1974) 13 International Legal  Materials 605. Northwest Atlantic fisheries Convention, (1950) 1 UST 477; TIAS #2089; 157 UNTS 157. North Sea Oil Pollution Agreement, (1969) GBTS #78; (1970) 9 International  Legal Materials 359. Nuclear Non-Proliferation Treaty, (1970) 21 UST 483; TIAS #6839. Nuclear Operators Liability Act, RSC 1970, 1st Supp., c. 29. Oil in Navigable Waters Act, [jL970] 19 and 20 Eliz. 2, c. 21. Opinion of the Honorable Judson Harmon, (1895) 29 Opinions of the Attorney- General 274. OPOL, (1974) 13 International Legal Materials 1409. Oslo Ocean Dumping Convention. (1972) 11 International Legal Materials 262. Paris Convention for Third Party Liability for Nuclear Damage, (1960) 55 American Journal of International Law 1082. The Polluter-Pays Principle, (1974) 13 Internat ional Legal Materials 234. Sovereign Immunity from Execution Act, (1976 ) 15 International Legal  Materials 90. Statute of the International Court of Justice, (1946) 61 Stat. 1218; TIAS #1598; 1 UNTS 9. Stockholm Declaration on the Human'Environment, (1972 ) 11 International  Legal Materials 1420. 1963 Supplementary Convention, (1963) 2 International Legal Materials 685. TOVALOP, (1969 ) 8 International Legal Materials 497. Treaty of Rome, Grenville, op.cit., 148. Treaty Regarding the Moon and Space Objects, (1967) 6 International Legal  Materials 386. Treaty Regarding the N.S.S. Savannah, (1964) 15 UST 2155; TIAS #5699; 532 UNTS 133. Vienna Convent ion for Third Party Liability for Nuclear Damage, (1963) 2 International Legal Materials 727. 

Cite

Citation Scheme:

        

Citations by CSL (citeproc-js)

Usage Statistics

Share

Embed

Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                        
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            src="{[{embed.src}]}"
                            data-item="{[{embed.item}]}"
                            data-collection="{[{embed.collection}]}"
                            data-metadata="{[{embed.showMetadata}]}"
                            data-width="{[{embed.width}]}"
                            async >
                            </script>
                            </div>
                        
                    
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:
http://iiif.library.ubc.ca/presentation/dsp.831.1-0077636/manifest

Comment

Related Items