1 Materials relating to the United Nations Conference on the Human Environment vividly demonstrate the interest. See, e.g., G.A. Res. 2581, 24 U.N. GAOR Supp. 30, at 44, U.N. Doc. A/7630 (1969); Reports of the Preparatory Committee for the U.N. Conference on the Human Environment, U.N. Docs. A/CONF.48/PC.6 (1970), A/CONF.48/PC. 9 and 13 (1971).

2 “Res communis,” as used here, is synonymous with “shared environment,” and includes the atmosphere, outer space, oceans and deep seabeds. Space does not permit discussion of activities within national territories which indirectly affect the res communis, except to the extent that they are involved in the case law. See generally Hardy, “International Control of Marine Pollution,” 11 Nat. Res. J. 296, 302–309 (1971). Concerning deep seabeds as res communis, see text at note 76 below.

3 For discussion of the appropriate institutional machinery, see, e.g., Hardy, loc. cit. note 2 above, at 344–348; Jenks, , “The New Science and the Law of Nations,” 17 Int. and Comp. Law Q. 327, 336–339 (1968)Google Scholar; Kennan, , “To Prevent a World Wasteland,” 48 Foreign Affairs 401 (1970)CrossRefGoogle Scholar; Schachter, , “Scientific Advances in International Law Making,” 55 Calif. Law Rev. 423, 426–429 (1967)Google Scholar.

4 Emerging areas of consensus may also provide a basis for an intermediate lawmaking stage between non-regulation and formal agreement, such as the U.N. Declaration on the Human Environment. See 2d & 3rd Reports of the Preparatory Committee for the U.N. Conference on the Human Environment, U.N. Docs. A/CONF.48/PC. 9, at 16–17, and A/CONF.48/PC.13, at 38–41 (1971). See also Jenks, loc. cit. note 3 above, at 339; Schachter, loc. cit. note 3 above, at 426. Cf. Declaration of Principles Governing the Sea Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, G.A. Res. 2749, 25 U.N. GAOR Supp. 28, at 24, U.N. Doc. A/8028 (1970); 10 Int. Legal Materials 220 (1971).

5 See Hardy, loc. cit. note 2 above, at 300, 312, note 44; Schachter, and Serwer, , “Marine Pollution Problems and Remedies,” 65 A.J.I.L. 84 (1971)Google Scholar; Report of the Secretary General to the Seabed Committee, Study on International Machinery, 25 U.N. GAOR Supp. 21, at 61, 113–114, U.N. Doc. A/8021 (1970).

6 In order to facilitate perception of the law’s growth process, the discussion will stress the law-creating and law-reflecting rô1es of the mutual expectations of national and international decision-makers. See, e.g., McDougal, , “The Hydrogen Bomb Tests and the International Law of the Sea,” 49 A.J.I.L. 356 (1955)Google Scholar; M. McDougal, H. Lasswell and I. Vlasic, Law and Public Order in Space 115–120 (1963). For recent doctrinal expressions stressing the capacity of international law to change with events, see the dissenting opinions of Judges Koretsky and Tanaka in the North Sea Continental Shelf Cases, [1969] I.C.J. Rep. 155 and 172.

7 United States v. Canada, preliminary decision, 3 Int. Arb. Awards 1911 (1938), 33 A.J.I.L. 182 (1939); final decision, 3 Int. Arb. Awards 1938, 35 A.J.I.L. 684 (1941).

8 Convention with Canada for the Establishment of a Tribunal. .. , April 15, 1935, Art. Ill, 49 Stat. 3245 (1935–1936), T.S. No. 893; 30 A.J.I.L. Supp. 163 (1936).

9 3 Int. Arb. Awards at 1965, 35 A.J.I.L. at 716 (1941).

10 See Restatement 2d, Foreign Relations Law of the United States §18 (1965).

11 Cf. Beesley, , “Rights and Responsibilities of Arctic Coastal States: The Canadian View,” 3 J. Maritime Law and Commerce 1, 10 (1971)Google Scholar. In all cases there would be some state capable of applying and enforcing injunctive rules. Cf. Convention on the High Seas, April 29, 1958, Art. 5, (1962) 2 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82, 52 A.J.I.L. 842 (1958); and see Convention on the Continental Shelf, April 29, 1958, Arts. 2, 5, (1964) 1 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311, 52 A.J.I.L. 858 (1958); Outer Continental Shelf Lands Act, 43 U.S.C. §§1331–43 (1970), 48 A.J.I.L. Supp. 110 (1954); Declaration of Principles Governing the Sea-Bed and Ocean Floor. .. , par. 14, loc. cit. note 4 above; Draft Convention on International Liability for Damage Caused by Space Objects, Arts. II and III, 10 Int. Legal Materials 965 (1971). Analysis of jurisdictional difficulties lies beyond the scope of the present discussion, which is intended simply to show that the principle embodied in the Trail Smelter decision should not be limited to occurrences within the respondent state’s territory.

12 It has been questioned whether states have sufficient rights in fish in the high seas to be entitled to damages if the fish are injured. See McDougal, and Schlei, , “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” 64 Yale Law J. 648, 694, note 239 (1955)CrossRefGoogle Scholar. Cf. Hardy, loc. cit. note 2 above, at 299–300; Legault, , “The Freedom of the Seas: A License to Pollute?”, 21 Toronto Law J. 211, 217–218 (1971)Google Scholar.

13 McDougal and Schlei, loc. tit. note 12 above, at 694, 694–695, note 241. See also Mercer, , “International Law and the French Nuclear Weapons Tests,” Pt. 2, 1968 New Zealand Law Rev. 418, 419 Google Scholar.

14 See Read, , “The Trail Smelter Dispute,” 1963 Canadian Yr. Bk. Int. Law 213, 227–228 Google Scholar.

15 Convention with Canada, loc. tit. note 8 above, Art. IV.

16 3 Int. Arb. Awards at 1965–1966, 35 A.J.I.L. at 717 (1941). See L. Hydeman and W. Berman, International Control of Nuclear Maritime Activities 278, note 504 (1960).

17 Cf. Secretary General, Survey of International Law in Relation to the Work of Codification of the International Law Commission, U.N. Doc. A/CN.4/1/Rev. 1, at 34 (1949) (duties exemplified by the award in the Trail Smelter Case encompass those “of a preventive nature”).

18 Cf. L. Hydeman and W. Berman, op. cit. note 16 above, at 280–281; Taubenfeld, , “Nuclear Testing and International Law,” 16 Southwestern Law J. 365, 401–402 (1962)Google Scholar.

19 This was the standard applied to prospective damage from water pollution in New York v. New Jersey, 256 U.S. 296, 309 (1921), on which the Trail Smelter tribunal relied.

20 See the Lake Lanoux Arbitration (France v. Spain), 12 Int. Arb. Awards 281, 1957 Int. Law Rep. 101, 53 A.J.I.L. 156 (1959); Corfu Channel Case (United Kingdom v. Albania), [1949] I.C.J. Rep. 4, 43 A.J.I.L. 558 (1949). In the latter case the Court took note of “.. . every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.” [1949] I.C.J. Rep. at 22. Such language does little to delineate expectations beyond the facts of the case, since it assumes rights in the complaining states.

21 See, e.g., Case of the S.S. “Lotus,” (1927) P.C.I.J., Ser. A, No. 10, at 28; C. Parry, The Sources and Evidences of International Law 63–64 (1965).

22 See K. Wolfke, Custom in Present International Law 69 (1964), discussing the views of Sørensen.

23 Nottebohm Case, [1955] I.C.J. Rep. 4, 21–22. The Court said that the practice of certain states in refraining from extending diplomatic protection to nationals who have severed the links of nationality “.. . manifests the view of these States that, in order to be capable of being invoked against another State, nationality must correspond with the factual situation.”

24 See the separate opinion of Judge Jessup in Barcelona Traction, Light & Power Co., [1970] I.C.J. Rep. 4, 186, asserting that abstention from affording diplomatic protection to companies incorporated in the state but not otherwise linked to it, “.. . being as it were ‘against interest,’ has special probative value.” See also H. Lauterpacht, The Development of International Law by the International Court 380 (1958); Virally, , “The Sources of International Law,” in Manual of Public International Law 116, 130–131 (Sørensen, M. ed., 1968)Google Scholar.

25 We are dealing with events compressed into a relatively short period—roughly since World War II. Nevertheless, the use of technology has provided sufficient opportunities for challenge to permit the formation of legally relevant expectations. See generally Virally, toe. cit. note 24 above, at 131–132. Cf. North Sea Continental Shelf Cases, toe. cit. note 6 above, at 42–43.

26 See McDougal and Schlei, toe. cit. note 12 above, at 682–686.

27 See M. McDougal and W. Burke, The Public Order of the Oceans 772 (1962); McDougal and Schlei, toe. cit. note 12 above, at 690–695; U.S. Delegation Paper for the U.N. Conference on the Law of the Sea, “Legality of Using the High Seas in Connection with Nuclear Weapons Tests in the Pacific Ocean,” 4 Whiteman, Digest of International Law 546–550 (1965).

28 See G.A. Res. 1762A, 17 GAOR Supp. 17, at 3, U.N. Doc. A/5217 (1962); Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, Preamble, (1963) 2 U.S.T. 1313, T.I.A.S. No. 5433, 480 U.N.T.S. 43; 57 AJ.I.L. 1026 (1963). See also Report of Subcommittee III of the U.N. Seabed Committee, U.N. Doc. A/AC. 138/62, at 14–16 (1971) (responses to recent French tests).

29 See A. Dean, Test Ban and Disarmament: The Path of Negotiation 83–84 (1966); H. Jacobson and E. Stein, Diplomats, Scientists, and Politicians 126–127, 346, 381–382, 423 (1966).

30 Underground testing continues despite fears that some tests are or may be environmentally harmful. Japan and Canada protested the November, 1971, U.S. test at Amchitka Island. See New York Times, Nov. 7, 1971, at 64, col. 4. It appears, however, that no radiation leakage or other significant environmental harm occurred. Ibid., Nov. 8, 1971, at 78, col. 1; Nov. 14, 1971, §4, at 2, col. 3.

31 See, e.g., statement of the representative of the IAEA, 47 U.N. ECOSOC 196, U.N. Doc. E/SR.1629 (1969); statement of the U.S. delegate, 4 U.N. Conf. on the Law of the Sea 85, U.N. Doc. A/CONF.13/40 (1958). Art. 2 of the Convention on the High Seas requires that freedom of the seas “be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.”

32 See M. McDougal and W. Burke, op. cit. note 27 above, at 861–862. Cf. Brown, , “International Law and Marine Pollution: Radioactive Waste and ‘Other Hazardous Substances’,” 11 Nat. Res. J. 221, 234–235 (1971)Google Scholar. For the distinction between high-and low-level wastes, see Ramey, , “Radiation Protection—Past, Present and Future,” 11 Atomic Energy Law J. 1, 18–24 (1969)Google Scholar.

33 See U.N. Doc. A/CONF.13/C.2/L.118, in 4 U.N. Conf. on the Law of the Sea 149, U.N. Doc. A/CONF.13/40 (1958); summary records of the 29th meeting in ibid. 83, 85–87 (proposals by members of the Communist bloc). See also M. McDougal and W. Burke, op. cit. note 27 above, at 860, note 413 (Soviet Union insists that disposal at sea is unlawful).

34 W.H.O. Res. WHA/14.56, 14 World Health Assembly, No. 110, Pt. I, at 24 (1961).

35 4 Whiteman, Digest of International Law 725–727 (1965).

36 Ibid. 612–618. See In the Matter of Industrial Waste Disposal Corp., 2 A.E.C. Rep. 70 (1962). For further discussion, see L. Hydeman and W. Berman, op. cit. note 16 above, at 305; M. McDougal and W. Burke, op. cit. note 27 above, at 861.

37 Convention on the High Seas, Art. 25(1), loc. cit. note 11 above. (The convention came into force for the United States after it had denied the Gulf of Mexico license.) It is arguable that Art. 25(1) is a codification of pre-existing customary law. The preamble to the convention speaks of a desire to “codify” existing rules and to adopt provisions which are “generally declaratory of established principles of international law.” Compare Baxter, , “Multilateral Treaties as Evidence of Customary International Law,” 41 Brit. Yr. Bk. Int. Law 275, 289 (1965–1966)Google Scholar, doubting that this provision reflected observable custom. See also Baxter, , “Treaties and Custom,” 129 Hague Academy, Recueil des Cours 25, 54 (1970)Google Scholar.

88 For the definition asserted by the United States, see 4 Whiteman, Digest of International Law 726 (1965).

39 H.R. Rep. No. 92–361, 92d Cong., 1st Sess. 55 (1971). For national security reasons, the United States continues to operate nuclear-powered naval vessels which occasionally emit very small amounts of radioactivity. The Navy does not permit sea disposal of solid radioactive waste from its nuclear ships. See Hearings on Ocean Waste Disposal before a Subcommittee of the Senate Committee on Commerce, 92d Cong., 1st Sess. 62–75(1971).

40 See Council on Environmental Quality, Ocean Dumping: A National Policy 7 (1970); Belter, “Recent Developments in the United States Low-Level Radioactive Waste-Management Program—A Preview for the 1970s,” in International Atomic Energy Agency, Symposium on Management of Low- and Intermediate-Level Radioactive Wastes 155,176 (1970).

41 Ibid. 176–177. There appears to be no showing of present harm from sea disposals of radioactive waste. See 13 I.A.E.A. Bulletin, No. 1, at 26, 27 (1971); Schachter and Serwer, Ice. cit. note 5 above, at 107.

42 For U.K. practice, see West, “Operational Experience in the Handling, Treatment and Disposal of Radioactive Wastes at a Research and Development Establishment,” in I.A.E.A. Symposium, op. cit. note 40 above, at 235, 243–245; Royal Comm’n. on Environmental Pollution, 1st Report, Cmnd. No. 4585, at 25 (1971). The Soviet Union, with its large land mass, does not dispose of radioactive waste at sea. See W. Butler, The Soviet Union and the Law of the Sea 187 (1971). The United States has recognized the need for a reasonable alternative before ocean disposal of municipal waste can be fully discontinued. See Hearings, op. cit. note 39 above, at 265, 283.

43 See New York Times, July 30, 1970, at 11, col. 1 (City ed.); ibid., Aug. 4, 1970, at 1, col. 4.

44 Ibid., Aug. 8, 1970, at 8, col. 6. The protest was based in part on Art. 25(2) of the Convention on the High Seas, discussed in the text at note 138 below. See also Brown, loc. cit. note 32 above, at 253–254. Iceland officially protested against the disposal, and the Government of the Bahamas made similar representations to the U.K. and the U.S. See 18 Keesing’s Contemporary Archives 24386 (Jan. 9–16, 1971). The U.S. Department of State had determined (as required by U.S. law) that the disposal would not violate international law. It focused primarily on the duty laid down in Art. 2 of the Convention on the High Seas to have reasonable regard for the interests of other states in exercising freedom of the seas. See Hearings on Dumping of Nerve Gas Rockets in the Ocean before a Subcommittee of the Senate Committee on Commerce, 91st Cong., 2dSess. 65 (1970).

45 Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, 25 U.N. GAOR Supp. 21, at 8, U.N. Doc. A/8021 (1970).

46 See Hearings, op. cit. note 39 above, at 51–52.

47 See Council on Environmental Quality, op. cit. note 40 above, at 12–15. The oceans have the capacity to absorb some municipal and industrial waste without harm. Thus the issue is not whether these wastes may be discharged, but whether they may be discharged in such a manner as to risk overtaxing the absorptive capacity in any given ocean area.

48 H. R. 9727, 92d Cong., 1st Sess., had passed both Houses of Congress in somewhat different forms. See 117 Cong. Rec. H 8225–55, S 19629–55 (daily ed., Sept. 9, Nov. 24, 1971). The legislation also curbs U. S. disposal of high-level radioactive wastes and ecologically harmful warfare agents. Rising international expectations are reflected in the call by Sweden, Norway, Finland, Denmark and Iceland for an end to disposal of harmful chemical and industrial waste in international waters. They have announced plans to enact legislation to that effect, and Sweden has now done so. See The Times (London), April 28, 1971, at 1, col. 2; Washington Post, Nov. 13, 1971, at A4, col. 8. The Government of The Netherlands has responded to international protests by instructing a Dutch firm to abandon its plan to dump 600 tons of chemical waste in the North Atlantic. See The Times (London), July 23, 1971, at 1, col. 2.

49 See draft Regulation of Transportation for Ocean Dumping Convention Arts. I, III, 10 Int. Legal Materials 1021 (1971).

50 Statement of William Ruckelshaus, Administrator, Environmental Protection Agency, in Hearings, op. cit. note 39 above, at 265. To the same effect, see Dept. of State Position Paper, in Hearings on Ocean Dumping of Waste Materials before Subcommittees of the House Committee on Merchant Marine and Fisheries, 92d Cong., 1st Sess. 115, 116 (1971). The U.S. Government’s Committee on International Environmental Affairs has taken the view that any ocean disposal of wastes which “threatens life or directly damages property violates international law.” Dept. of State, Suggestions Developed Within the U.S. Government for Consideration by the Secretary General of the 1972 U.N. Conference on Human Environment 59 (1971).

51 For a concise discussion of the challenge, see Study of Critical Environmental Problems, Man’s Impact on the Global Environment 139–143 (report of M.I.T.-sponsored study group, 1970).

52 May 12, 1954, (1961) 3 U.S.T. 2989, T.I.A.S. No. 4900, 327 U.N.T.S. 3, as amended April 11, 1962, (1966) 2 U.S.T. 1523, T.I.A.S. No. 6109, and Oct. 21, 1969, 9 Int. Legal Materials 1 (1970). The 1969 amendments are not yet in force. Cf. International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Nov. 29, 1969, 64 A.J.I.L. 471 (1970), 9 Int. Legal Materials 25 (1970); International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 64 A.J.I.L. 481 (1970), 9 Int. Legal Materials 45 (1970).

53 Under the 1969 amendments tankers could discharge oil or oily mixtures only beyond 50 miles from land, and then only in designated quantities which are thought not to cause persistent pollution. See 9 Int. Legal Materials 1, 4 (1970); IMCO Bulletin No. 13, at 7, 9 (1970). The United States has ratified the 1969 amendments. See 65 Dept. of State Bulletin 575–576 (1971).

54 See Arts. VII and VIII.

55 See Royal Comm’n. on Environmental Pollution, op. cit. note 42 above, at 26; IMCO Bulletin No. 13, at 7–8. The “load on top” system, though widely recognized as an effective and desirable anti-pollution measure, may be in technical contravention of the convention. See IMCO Bulletin No. 13, at 8. It would not contravene the convention once the 1969 amendments come into force, nor is it likely to be considered by any party .to involve a substantive present violation. On the contrary, as argued in the text, it may well be mandatory for parties to the convention.

56 NATO members have taken a further step by agreeing to achieve by 1975 “the elimination of intentional discharges of oil and oily wastes into the sea.. . .” 63 Dept. of State Bulletin 669 (1970).

57 Also relevant is the Convention on the High Seas, Art. 24, loc. cit. note 11 above, which calls on member states to “draw up regulations to prevent pollution of the seas by the discharge of oil by ships. . .” This is arguably a statement of customary law. See note 37 above.

58 See Baldwin, , “The Santa Barbara Oil Spill,” 42 Colo. Law Rev. 33 (1970)Google Scholar. The Federal Government issues leases for oil explorations beyond three miles from shore, under the Outer Continental Shelf Lands Act, loc. cit. note II above. The Act authorizes issuance of regulations “to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf. . .” Ibid. §1334(a) (1).

59 See Baldwin, loc. cit. note 58 above, at 52–53. At least two previous blowouts from wells in the United States’ continental shelf resulted in significant pollution. See Hearings on S. 7 and S. 544 before a Subcommittee of the Senate Committee on Public Works, 91st Cong., 1st Sess., Pt. 3, at 811 (1969).

60 See 30 C.F.R. §§250.34, 250.91 (1971).

61 30 C.F.R. §250.41 (1971).

62 43 C.F.R. §3301.4 (1971). Moreover, the lessee is now subject to potential liability for cleaning-up expenses. See Water Quality Improvement Act of 1970, 33 U.S.C.A. §1161(f) (3) (1970); 30 C.F.R. §250.43(b) (1971).

63 Baldwin, loc. cit. note 58 above, at 59–60. The 1970 Gulf of Mexico oil discharges resulted from ventures in operation when the measures were adopted. See, generally, Nanda and Stiles, “Offshore Oil Spills: An Evaluation of Recent United States Responses,” 7 San Diego Law Rev. 519, 534–536 (1970).

64 Cf. Lester, , “River Pollution in International Law,” 57 A.J.I.L. 828, 852 (1963)Google Scholar.

65 Loc. cit. note 11 above.

66 In the North Sea Continental Shelf Cases, loc. cit. note 6 above, at 39, the I.C.J., referring inter alia to Art. 5 (1) , said that the “.. . general obligation not unjustifiably to interfere with freedom of navigation, fishing, and so on” was received customary law. The conservation provision of Art. 5(1) would presumably be included within the phrase “and so on,” though the Court may not have given that its considered judgment. Cf. Baxter, “Treaties and Custom,” he. cit. note 37 above, at 48–49.

67 The primary conservation thrust of Art. 5(1) is the protection of fish stocks. See U.N. Doc. A/CN.4/SR.378, 1956 I.L.C. Yearbook (I) 272, 277. There was very little direct fish-kill, if any, from the Santa Barbara incident, though over 1,000 sea birds were killed and the danger of long-term accumulation of hydrocarbons in the aquatic food chain was greatly increased. See Baldwin, loc. cit. note 58 above, at 36–37; Study of Critical Environmental Problems, op. cit. note 51 above. The terms of Art. 5(1) are broad enough to encompass these effects. The travaux, cited above, do not rule out extension beyond direct fish-kills. It would be anomalous to construe Art. 5(1) to apply, to fish-kills but not to the accumulation in edible fish of substances dangerous to man.

68 Art. 5(1) also refers to non-interference with scientific research, omitting the word “unjustifiable.” An attempt in the drafting stage to strike the word from the “navigation, fishing or conservation” provision was rejected. See 6 U.N. Conf. on the Law of the Sea 84–85, 90, U.N. Doc. A/CONF. 13/42 (1958). See also ibid. 82, 88; I.L.C. Report, U.N. Doc. A/3159, 1956 I.L.C. Yearbook (II) 253, 299.

69 Ibid.

70 Hardy, loc. cit. note 2 above, at 331.

71 The travaux relating to Art. 5(7) offer little help, since it was not in the I.L.C. draft.

72 The Intergovernmental Oceanographic Commission of UNESCO has proposed a definition of marine pollution which could serve as a guide to interpretation, mutatis mutandis, in the absence of a more authoritative definition: “Introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as harm to living resources, hazard to human health, hindrance to marine activities including fishing, impairing the quality for use of sea water and reduction of amenities.” Report on Long-Term and Expanded Programme of Oceanographic Research, U.N. Doc. A/7750, at 25 (1969). Cf. Report by the World Health Organization, Environmental Pollution and Its Control, U.N. Doc. E/4457, at 2 (1968).

73 See Report of the Secretary General, loc. cit. note 5 above, at 112. Compare note 72 above.

74 See I.L.C. Report, loc. cit. note 68 above, at 286.

75 G.A. Res. 2749, par. 11, loc. cit. note 4 above, adopted by a vote of 108 to none, with 14 abstentions. The U.S. voted in favor. See 64 Dept. of State Bulletin 155 (1971).

76 G.A. Res. 2749, passim and especially par. 1.

77 It is considerably more legislative in tone than, for example, the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, G.A. Res. 1962, 18 U.N. GAOR Supp. 15, at 15, U.N. Doc. A/5515 (1963); 58 A.J.I.L. 477 (1964).

78 See Falk, , “On the Quasi-Legislative Competence of the General Assembly,” 60 A.J.I.L. 782 (1966)Google Scholar. Cf. D’Amato, , “On Consensus,” 8 Canadian Yr. Bk. Int. Law 104, 113–115 (1970)Google Scholar. For discussion of the Declaration in the context of the existing conventions on the law of the sea, see text at note 82 below.

79 See remarks by the Australian representative to the General Assembly’s First Committee, U.N. Doc. A/C.1/PV.1777, at 26 (1970).

80 This is probable despite the view voiced by some representatives that the Declaration would not have binding legal effect. See U.N. Docs. A/C.1/PV.1777, at 27 (Australia); A/C.1/PV.1779, at 7 (Canada); ibid. 39–40 (Italy); A/C.1/PV.1788, at 28 (Belgium). Cf. statement by Mr. Amerasinghe, Chairman of the Committee on the Peaceful Uses of the Sea-Bed, U.N. Doc. A/PV.1933, at 99–100 (1970). Such views are accurate in the sense that the Declaration does not ipso facto become law upon adoption. Its legal effect is more subtle, but is likely to be felt even in the face of advance disclaimers. Cf. Schachter, , “The Relation of Law, Politics and Action in the United Nations,” 109 Hague Academy, Recueil des Cours 165, 181–184 (1963)Google Scholar; Higgins, , “The United Nations and Lawmaking: The Political Organs,” 64 A.J.I.L. (Proceedings) at 37, 40–42 (1970)Google Scholar.

81 As a matter of common understanding, the marine environment would include the waters of the high seas and the seabeds. The Declaration provides that it also includes the coastline.

82 See text at note 70 above. The Declaration may also provide a partial gauge of what is required to avoid “unjustifiable interference” with conservation, under Art. 5(1) of that convention. See text at note 65 above. The Declaration is relevant to the evaluation of conduct under the Continenal Shelf Convention even though it asserts its coverage only for the seabed “beyond the limits of national jurisdiction.” See text following note 80 above.

83 See text preceding note 72 above.

84 See Draft of United Nations Convention on the International Seabed Area, 25 U.N. GAOR Supp. 21, Annex V, U.N. Doc. A/8021 (1970). Compare Draft Ocean Space Treaty (Malta), Arts. 58, 60, 72, 74, U.N. Doc. A/AC.138/53 (1971).

85 U.S. Draft Art. 9. See also Draft Art. 22. “Marine environment” is not defined, an omission noted with some concern in Auburn, , “The International Seabed Area,” 20 Int. and Comp. Law Q. 173, 189 (1971)CrossRefGoogle Scholar. But see note 81 above.

86 U.S. Draft Arts. 23, 68(1) (d) and (e).

87 See, e.g., the Committee’s Reports, 24 U.N. GAOR Supp. 22, at 31, U.N. Doc. A/7622 (1969); 1970 Report, loc. cit. note 45 above, at 7–11; Report of Subcommittee III, op. cit. note 28 above.

88 See, e.g., Reports of the Secretary General: Study on International Machinery, loc. cit. note 5 above; The Sea: Prevention and Control of Marine Pollution, U.N. Doc. E/5003 (1971); Marine Pollution and Other Hazardous and Harmful Effects. .. . U.N. Doc. A/7924 (1970); Study on the Question of Establishing in Due Time Appropriate International Machinery.. .. , 24 U.N. GAOR Supp. 22, Annex II, U.N. Doc. A/7622 (1969).

89 G.A. Res. 2750C, 25 U.N. GAOR Supp. 28, at 26, U.N. Doc. A/8028 (1970).

90 See I.M.C.O. Res. A. 176 (VI), I.M.C.O. Assembly Resolutions and Other Decisions 124–25 (1969). For further discussion of proposed international action on marine pollution, see Hardy, he. cit. note 2 above, at 337–344.

91 See U.N. Doc. A/AC.138/SR.12, at 4 (1969) (remarks of the Soviet representative to the Seabed Committee). The treaty is not yet in force.

92 See S. Doc. No. 56, 89th Cong., 1st Sess. 390, 396 (1965); R. Gardner, In Pursuit of World Order 216 (rev. ed., 1966).

93 S. Doc. No. 56, loc. cit. See G. Gál, Space Law 146–147 (1969); Mouton, “The Impact of Science on International Law,” 119 Hague Academy, Recueil des Cours 183, 238 (1966).

94 See Darwin, , “The Outer Space Treaty,” 42 Brit. Yr. Bk. Int. Law 278, 281 (1967)Google Scholar.

95 For the formal statement of concern by the international scientific community, see Statement on Belts of Orbiting Dipoles. .. in S. Doc. No. 56, op. cit. note 92 above, at 396–397.

96 Gardner, , “Outer Space: Problems of Law and Power,” 49 Dept. of State Bulletin 367, 369 (1963)Google Scholar. Cf. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, Art. IX, (1967) 3 U.S.T. 2410, T.I.A.S. No. 6347, 61 A.J.I.L. 644 (1967) (parties have a duty to consult if they have reason to believe that their planned space activities “would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space. . .”). The treaty language is based on G.A. Res. 1962, par. 6, loc. cit. note 77 above, which was prompted in part by international reaction to the U.S. “space needles” experiment. See S. H. Lay and H. J. Taubenfeld, The Law Relating to Activities of Man in Space 189 (1970).

97 See R. and H. J. Taubenfeld, The International Implications of Weather Modification Activities 50 (unpublished study for the Dept. of State Office of External Research, 1968).

98 See Lovell, , “The Pollution of Space,” 79 The Listener 828, 830 (1968)Google Scholar. Scientific objections to the space needles experiment were primarily concerned with the effect on astronomy. Ibid. 829.

99 Ibid. 829–830.

100 R. and Taubenfeld, H. J., “Some International Implications of Weather Modification Activities,” 23 Int. Organization 808, 828 (1969)CrossRefGoogle Scholar.

101 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, Art. I. Loc. cit. note 28 above.

102 Loc. cit. note 96 above.

103 Its significance with respect to U.S. lunar and interplanetary probes is explored below. In addition, it has been argued that the language would prohibit a repetition of the space needles experiment. See G. Gál, op. cit. note 93 above, at 154.

104 See, generally, Brooks, , “Legal Aspects of the Lunar Landings,” 4 Int. Lawyer 415, 420–424 (1970)Google Scholar; M. McDougal, H. Lasswell and I. Vlasic, op. cit. note 6 above, at 534–536.

105 See Report of COSPAR Consultative Group on the Potentially Harmful Effects of Space Experiments, U.N. Doc. A/AC.105/20, Annex III, at 14–15 (1964); Brooks, loc. cit. note 104 above, at 421.

106 See Report of COSPAR Consultative Group, op. cit. at 15–16.

107 See Brooks, loc. cit. note 104 above, at 421.

108 Ibid. 422.

109 See Lovell, , “The Dangers of Polluting the Planets,” The Times (London), Feb. 10, 1969, at 9, col. 7Google Scholar; Johnson, , “Pollution and Contamination in Space,” in Law and Politics in Space 37, 45–46 (Cohen, M. ed., 1964)Google Scholar.

110 See Brooks, he. cit. note 104 above, at 422.

111 The meaning of “harmful” has to be judged by reference to the uses to which the moon is to be put. See Brooks, loc. cit. These are not fully known as yet. One such use might be as a platform for astronomy, with which lingering exhaust gases could interfere. It is highly unlikely, however, that gases from lunar operations to date could affect such an eventual use.

112 Soviet space probes apparently have not been conducted in accordance with the 1964 COSPAR standards. See Lovell, loc. cit. note 109 above, col. 6. Soviet authorities, however, have shown an awareness of the need to avoid space contamination. See G. Gál, op. cit. note 93 above, at 151; S. H. Lay and H. J. Taubenfeld, op. cit. note 96 above, at 189, note 43; U.S.S.R. Draft Treaty Concerning the Moon, Art. IV, U.N. Doc. A/C.1/L.568 (1971).

113 Alexander, , “Possible Contamination of Earth by Lunar or Martian Life,” 222 Nature 432 (1969)CrossRefGoogle ScholarPubMed.

114 See Brooks, loc. cit. note 104 above, at 423.

115 See New York Times, April 29, 1971, at 43, col. 1. No viable organisms have been found in lunar materials. See Lunar Sample Preliminary Examination Team, “Preliminary Examination of Lunar Samples from Apollo 14,” 173 Science 681, 691 (1971).

116 Letter from Richard H. Campbell, Office of Space, Atmospheric and Marine Science Affairs, U.S. Department of State, to the author, June 3, 1971.

117 See text at note 96 above. Cf. statement of the U.S. Secretary of State, in the text at note 145 below.

118 The announced criterion for consultations is broader than that in the outer space treaty. It is questionable whether the United States did much more than notify other states of its intention in advance of the space needles experiment. See E. Skolnikoff, Science, Technology, and American Foreign Policy 85–87 (1967). The announced willingness to consult presumably was intended as an assurance that something more than notification could thereafter be expected in comparable circumstances, though discretion was retained to determine whether an activity may create a significant risk.

119 For non-technical descriptions of the pertinent atmospheric properties, see G. Trewartha, An Introduction to Climate 16–35 (4th ed., 1968); Study of Critical Environmental Problems, op. cit. note 51 above, at 41—46.

120 See generally H. Lamb, The Changing Climate 154–156 (1966); National Science Foundation, Weather and Climate Modification 114 (1966); Roberts, , “The State of the Art in Weather Modification,” in Weather Modification and the Law 1, 16 (Taubenfeld, H. ed., 1968)Google Scholar; Wexler, , “Modifying Weather on a Large Scale,” 128 Science 1059, 1061–1063 (1958)Google Scholar.

121 There is a distinction between weather modification and climate modification. The latter involves an attempt to change long-term climatic conditions. See Wycoff, , “Evaluation of the State of the Art,” in Human Dimensions of Weather Modification 27, 37 (Sewelled, W.., 1966)Google Scholar.

122 Department of State letter to Senator Magnuson, in Hearings on S.23 and S.2916 before the Senate Committee on Commerce, 89th Cong., 1st and 2d Sess., Pt. 2, at 321 (1965–1966). Note that the reference is to advance agreements, not simply to consultations.

128 Cleveland, , “The Politics of Outer Space,” 52 Dept. of State Bulletin 1010 (1965)Google Scholar (emphasis in original).

124 See Wollan, , “Controlling the Potential Hazards of Government-Sponsored Technology,” 36 G.W. Law Rev. 1105, 1117–1118 (1968)Google Scholar; R. and H. Taubenfeld, he. cit. note 100 above, at 811, note 7.

125 See Hearings on S.23 and S.2916, op. cit. note 122 above, Pt. 1, at 237; ibid., Pt. 2, at 405.

126 Cf. M. McDougal and W. Burke, op. cit. note 27 above, at 792–793, noting the uncertain rôle of oceans in determining climate, and concluding that intentional interference with climatic conditions “would appear to be one activity which will be regarded as requiring the explicit agreement among states adversely affected.” See also M. McDougal, H. Lasswell and I. Vlasic, op. cit. note 6 above, at 631.

127 See Study of Critical Environmental Problems, op. cit. note 51 above, at 67.

128 Ibid. 66.

129 Ibid. 91–92, 99. Cf. 2 National Academy of Sciences-National Research Council, Weather and Climate Modification: Problems and Prospects 61 (1966); Report to the Chief, United States Weather Bureau, Weather and Climate Modification 7 (1965). An artificial increase in cirrus cloudiness might also stimulate local precipitation. See Study of Critical Environmental Problems, op. cit., at 100.

130 Compare the use of super-tankers at sea. See text at note 51 above.

131 F. A. A. Notice of Proposed Rule Making, 35 Fed. Reg. 6189–6190 (1970).

132 Other nations have also proposed to ban the sonic boom. See The Times (London), Sept. 15, 1970, at 1, col. 8; New York Times, Feb. 4, 1970, at 86, col. 5. If enough nations do so, a general principle relating to the boom might arise. Whether or not this occurs, the proposed U.S. restriction is particularly significant because of the rationale given for it.

133 See Study of Critical Environmental Problems, op. cit. note 51 above, at 67–74, 100–107. The problem arises largely because the SST would introduce water vapor and particulate matter into the normally dry and cloudless stratosphere, where stable climatic conditions would impede the relatively rapid diffusion which occurs in the troposphere. The result could be temperature changes, increased cirrus cloudiness, and climate modification. Moreover, there is concern that SST water vapor and nitric oxides would decompose some stratospheric ozone, permitting increased solar ultraviolet radiation to reach the earth. See Report to the Secretary of the Interior of the Special Study Group on Noise and Sonic Boom in Relation to Man 50–52 (1968); Harrison, , “Stratospheric Ozone with Added Water Vapor: Influence of High-Altitude Aircraft,” 170 Science 734 (1970)CrossRefGoogle ScholarPubMed; Johnston, , “Reduction of Stratospheric Ozone by Nitrogen Oxide Catalysts from Supersonic Transport Exhaust,” 173 ibid. 517 (1971)Google ScholarPubMed; Newell, , “Water Vapour Pollution in the Stratosphere by the Supersonic Transporter?”, 226 Nature 70 (1970)CrossRefGoogle ScholarPubMed. But see 2 National Academy of Sciences-National Research Council, op. cit. note 129 above, at 98–100; Chatham, , “Will the SST Change the Weather?”, 8 Astronautics & Aeronautics at 8 (Jan. 1970)Google Scholar.

134 See, e.g., Hearings on Economic Analysis and the Efficiency of Government before a Subcommittee of the Joint Economic Committee, 91st Cong., 2d Sess., Pt. 4, at 1000– 1006 (1970); Hearings on Dept. of Transportation and Related Agencies Appropriations for 1971 before a Subcommittee of the Senate Committee on Appropriations, 91st Cong., 2d Sess., Pt. 2, at 1480–1486, 1586–1591 (1970); Senate debate, 117 Cong. Rec. S2461– 62, 2636–37, 2702, 3092–97, 3504, 3629–32, 3820–57 passim (daily ed., March 4, 9, 12,23,24, 1971).

135 Cf. Virally, loc. cit. note 24 above, at 130.

136 Dec. 1, 1959, Art. V(l), (1961) 1 U.S.T. 794; T.I.A.S. No. 4780; 402 U.N.T.S. 71; 54 A.J.I.L. 477 (1960). The treaty does contain a caveat reserving the rights of any state under international law regarding the high seas within the Antarctic area. In view of the recognized restrictions on the right to conduct nuclear tests even before the Test Ban Treaty (see text at notes 26–27 above), the caveat would have only a limited effect on the nuclear explosion prohibition. This point is of more than academic importance, since not all parties to the Antarctic Treaty are parties to the Test Ban Treaty. Cf. Antarctic Treaty, Art. V(2). It is doubtful that there is a right to dispose of radioactive waste in the high seas of the Antarctic area, since other, less sensitive, disposal sites are available. Cf. text at notes 31—42 above.

137 See Taubenfeld, H., “A Treaty for Antarctica” (International Conciliation No. 531), at pp. 243, 284–285 (1961)Google Scholar.

138 Loc. cit. note 11 above.

139 M. McDougal and W. Burke, op. cit. note 27 above, at 867.

140 See Schachter and Serwer, loc. cit. note 5 above, at 95, 98, 104.

141 See note 44 above; Brown, loc. cit. note 32 above, at 253–254. It is arguable also that Art. 25(2) obligates parties to implement the General Assembly’s Declaration of Principles Governing the Sea-Bed, loc. cit. note 4 above, with respect to activities involving “harmful agents” on the seabed. See text at notes 75–83 above.

142 April 29, 1958, Art. 1(2), (1966) 1 U.S.T. 138, T.I.A.S. No. 5969, 559 U.N.T.S. 285; 52 AJ.I.L. 851 (1958). See also ibid., Art. 2.

143 See I.L.C. Report, U.N. Doc. A/2934, 1955 I.L.C. Yearbook (II) 19, 28–29; 5 U.N. Conf. on the Law of the Sea 10, 98, U.N. Doc. A/CONF.13/41 (1958).

144 See text at notes 96 and 122 above. The United States consulted “concerned” nations before the 1970 nerve gas disposal at sea, though it did so only 19 days before the disposal. See Brown, loc. cit. note 32 above, at 252. Not all states consulted were opposed to the disposal. See, e.g., 18 Keesing’s Contemporary Archives 24386 (Jan. 9–16,1971).

145 Rogers, , “U.S. Foreign Policy in a Technological Age,” 64 Dept. of State Bulletin 198, 200–201 (1971)Google Scholar.

146 As with cost-benefit theories in economics, much of the utility of such a formulation lies in sharpening the issues rather than in definitively resolving them. Cf. J. Buchanan, The Public Finances 141–142 (rev. ed., 1965).

147 For a summary of some of the shared technological benefits, see Sloop and Adams, “The Aerospace Stimulus to Technological Advance,” in 1 Space Exploration and Applications 36, U.N. Doc. A/CONF.34/2, Vol. I (1969). Other papers presented at the same conference, in ibid., Vols. I and II, discuss the benefits in some detail.

148 See the Trail Smelter Case, loc. cit. note 7 above.

149 See the instances mentioned in the text following note 148 above, and the U.S. position regarding ocean dumping of municipal and industrial wastes, in the text at note 50 above. Cf. Second Annual Report of the Council on Environmental Quality 259–260 (1971). Similar perspectives seem to be developing within the O.E.C.D. See The Observer (London), Oct. 17, 1971, at 2, col. 1. But see S. H. Lay and H. J. Taubenfeld, op. cit. note 96 above, at 191 (re space activities).

150 General standards, however, have been thought dispositive of concrete issues in extreme cases in other fields. See, e.g., I. Brownlie, International Law and the Use of Force by States 111 (1963) (broad pre-1939 norm that offensive use of force was illegal).

151 It will be instructive to see whether these principles harden into a specific norm regarding sustained use of supersonic commercial aircraft in the stratosphere. In the absence of further scientific assurances of environmental safety, the potential marginal costs (in terms of possible alteration of natural conditions, from activity in an environment heretofore relatively free from the sustained presence of man) seem clearly to outweigh the marginal benefits. See note 133 above.

152 The inability of existing international norms to provide a cohesive regulatory system for the use of the fruits of technology lies behind such extensions of domestic jurisdiction as the Canadian Arctic Waters Pollution Prevention Act. See documents collected in 9 Int. Legal Materials 543–552, 598–615 (1970); Bilder, , “The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the Law of the Sea,” 69 Mich. Law Rev. 1 (1970)Google Scholar; Hardy, be. cit. note 2 above, at 328–330; MacDonald, , Morris, and Johnston, , “The Canadian Initiative To Establish a Maritime Zone for Environmental Protection: Its Significance for Multilateral Development of International Law,” 21 Toronto Law J. 247 (1971)CrossRefGoogle Scholar.