(A) Free from contaminants which have harmful effects on human health.

(B) Free from objectionable odors, haze, dirt, and other contaminants which interfere with the normal amenities of living or cause adverse aesthetic effects.

(C) Free from contaminants which have deleterious effects on property, materials and vegetation.

This language might be fairly characterized as reflecting a binational consensus extending beyond the precise context of the case. As is usual in article IX references concerning water and air pollution, the Commission referred to prevailing domestic regulatory standards on each side, Federal, State and Provincial, in assessing pollution hazards and in arriving at certain specific objectives recommended for adoption by the governments. Prevailing United States and Canadian environmental laws and regulations are normally congruous and a coincidence of such standards, while not legally dispositive of international obligations in itself, would constitute a persuasive argument as to the characterization of transboundary effects in dispute. International Joint Commission recommendations under Article IX References are, of course, purely advisory, and are not legally binding on either government. Nonetheless, there is extensive bilateral practice, which provides general guidelines for dealing with air pollution problems which are consistent with international environmental principles being developed in multilateral fora (e.g., UNEP, OECD). Efforts to develop these principles are fully accepted and supported by both governments. Differing views exist at present with respect to the feasibility or utility of a formal agreement or treaty provision with Canada with respect to transfrontier air pollution. Any such agreement or provisions would likely be general in nature in light of rapidly evolving air pollution technologies and standards, and perhaps would reflect the provisions of article IV of the Boundary Waters Treaty of 1909 which prohibits transfrontier water pollution to the injury of health or property.

would strengthen Cana

A treaty provision or agreement dian Federal control over transfrontier air pollution. The United States Federal Government already has considerable powers to control such pollution under the provisions of the Clean Air Act. Federal authority on the Canadian side, however, is limited, and, negotiation of an international commitment with respect to air pollution raises sensitive and complex constitutional questions. Under the provisions of the British North America Act of 1867 as amended, responsibility for pollution control generally rests with the provinces. But for this same reason, and in view of the current discussions in Canada over repatriation of the Canadian Constitution from the nominal authority of the British Parliament, and vigorous provincial opposition to ceding responsibilities and provincial prerogatives to the Federal Government, internal Canadian consultations in connection with bilateral negotiations and implementation of a new agreement would be time consuming and uncertain.

Also, it is unclear that a treaty provision or agreement would make a substantial difference in the outcome of bilateral negotiations concerning transfrontier air pollution. Both nations have high domestic standards which are relatively similar. Negotiating practice indicates the general acceptance by both governments of the concept that transfrontier air pollution to the injury of health or property should not occur and that the Federal Governments should take all appropriate steps to help ensure that result. In short, a good argument can be made that a treaty provision or bilateral agreement would do no more than formalize existing practice.

Dept. of State File No. P77 0028-2425.

The Governments of the United States and Canada announced jointly, on August 16, 1976, that the International Joint Commission (IJC) report on the Garrison Diversion Project would not become available before June 1977. The matter had been referred to the Commission for recommendations by October 31, 1976, on measures to assist the governments in ensuring that the provisions of article IV of the Boundary Waters Treaty of 1909 (TS 548; 36 Stat. 2448; 12 Bevans 319) concerning nonpollution would be honored. See the 1975 Digest, pp. 707-709. The delay was due to the Commission's need for accurate approved water quality data on which to base its report, and the need of the public in both countries for adequate time to review the Garrison Study Board's report before public hearings were scheduled.

The joint press release of the two governments stated further:

The United States Government assured the Government of Canada in February 1974 that it will comply with its obligations to Canada under the Boundary Waters Treaty not to pollute water crossing the boundary to the injury of health or property in Canada, and that no construction on the Garrison Diversion Unit potentially affecting water flowing into Canada will be undertaken until it is clear that this obligation will be met. The announced delay in the submission of the Commission's final report to Governments on the Garrison Project does not affect the status of that assurance.

Dept. of State Press Release No. 385, Aug. 16, 1976. The Committee on Government Operations, House of Representatives, on June 30, 1976, approved and adopted a report entitled "A Review of the Environmental, Economic and International Aspects of the Garrison Diversion Unit, North Dakota,” based on an investigation by the Conservation, Energy, and Natural Resources Subcommittee. See H. Rept. 94-1335, July 2, 1976. The International Garrison Diversion Study Board, established by the IJC on Oct. 23, 1975, to investigate into and advise on all matters which the Commission must consider in its report to Governments on the Garrison Diversion, completed its study of the matter in October 1976. The report, which was submitted to the IJC by the Chairmen of the U.S. and Canadian Sections on Dec. 3, 1976, is available from the IJC at Washington, D.C., and Ottawa, Ontario, Canada.

Weather Modification

The National Weather Modification Policy Act of 1976 (P.L. 94-490; 90 Stat. 2359; 15 U.S.C. 330 note), approved October 13, 1976, contains a congressional declaration of policy concerning weather modification technology, including its international implications. Section 2 declares, inter alia, that—

(4) Weather modification programs may have long-range and unexpected effects on existing climatic patterns which are not confined by national boundaries.

Included in the declared purpose of the Act is the development of a comprehensive and coordinated national weather modification policy and a program of weather modification research and development

(6) to develop both national and international mechanisms designed to minimize conflicts which may arise with respect to the peaceful uses of weather modification; and

(7) to integrate the results of existing experience and studies in weather modification activities into model codes and agreements for regulation of domestic and international weather modification activities.

Section 4 of the Act mandates that the Secretary of Commerce conduct a comprehensive investigation and study of the subject including, inter alia

(7) a review of the international importance and implications of weather modification activities by the United States;

(10) a review and analysis of the necessity and feasibility of negotiating an international agreement concerning the peaceful uses of weather modification; and

(11) formulation of one or more options for a model international agreement concerning the peaceful uses of weather modification and the regulation of national weather modification activities; and a review and analysis of the necessity and feasibility of negotiating such an agreement.

Under section 5, the Secretary of Commerce is required to submit to the President and the Congress, within one year of the date of enactment, a report on the study, to include

(6) recommendations for any regulatory and other legislation which may be required to implement such policy and program or for any international agreement which may be appropriate concerning the peaceful uses of weather modification, including recommendations concerning the dissemination, refinement, and possible implementation of the model domestic code and international agreement developed under the specifications of section 4. See also S. Rept. 94-859, 94th Cong., 2d Sess.

Multilateral Agreements

Stratospheric Monitoring

The United States, the United Kingdom, and France signed on May 5, 1976, an agreement on monitoring of the stratosphere (TIAS 8255; 27 UST 1437) under which they undertook a five-year cooperative effort designed to achieve a better understanding of the impact of man's activities on the Earth's stratosphere. Negotiations on the agreement were initiated as the result of a request by Secretary of Transportation William T. Coleman in his February 4 decision on the Concorde SST (see ante, Ch. 8, § 5, p. 416), that the three countries seek ways to strengthen existing capabilities for monitoring the ozone layer. The preamble of the agreement reflects the mounting concern over potential depletion of the ozone layer and other possible modifications of the upper atmosphere caused by such man-related substances as aviation emissions, flurocarbons, and other chemicals.

Under terms of the agreement, the three Governments are to seek ways to improve the collection and accelerate the processing, exchange, and analysis of stratospheric ozone data; expand the exchange of information on stratospheric research and analysis programs under way or planned in the three countries; and pursue opportunities for new collaborative research. Provision is made for a joint analysis of the state of knowledge about trends in stratospheric ozone levels, with recommendations for possible improvements in existing ozone monitoring networks. The agreement has a five-year term, subject to withdrawal on six months notice and to review after two years. Participating U.S. organizations include the Federal Aviation Administration (FAA), the National Oceanic and Atmospheric Administration (NOAA), the National Aeronautics and Space Administration (NASA), the Department of Defense, and the Environmental Protection Agency.

A memorandum of law written by Ronald J. Bettauer, Acting Assistant Legal Adviser of the Department of State for Oceans, Environment and Scientific Affairs, cited the following legal authority for the agreement:

The authority of the Secretary of Transportation under section 311 of the Federal Aviation Act of 1958 (49 U.S.C. 1301 et seq.) and delegation thereof to the Administrator of the FAA;

An opinion of the Attorney General, 40 Op. A.G. 451 (1946), interpreting section 802 of the Act (49 U.S.C. 1462), indicating a congressional intent to authorize the negotiation and execution of executive agreements with foreign nations relating to international civil aviation;

NASA's authority to provide supportive services and data processing and analysis (42 U.S.C. 2451(c) (7) and 2473(b) (5) ); NOAA's authority for the provision of such services (15 U.S.C. 1525); and

The authority of the Secretary of State to manage the foreign affairs of the United States (22 U.S.C. 2656) and his authority to delegate (22 U.S.C. 2658).

Dept. of State File L/T.

Polar Bears

The United States became a party on November 1, 1976, to the Agreement on the Conservation of Polar Bears, done at Oslo November 15, 1973 (TIAS 8409; 28 UST). The agreemend had previously entered into force for Norway, Denmark, and the Soviet Union on May 26, 1976. It provides a plan of protection for polar bears consisting of a prohibition of hunting, killing, or capturing these animals subject to specified exceptions. The exceptions permit the taking of polar bears for bona fide scientific purposes, for conservation purposes, for prevention of serious disturbance of the management of other living resources, and by local people using traditional methods in the exercise of traditional rights, in accordance with applicable laws. All of the exceptions are subject to the general understanding that—

Each Contracting Party shall take appropriate action to protect the ecosystems of which polar bears are a part, with special attention to habitat components such as denning and feeding sites and migration patterns, and shall manage polar bear populations in accordance with sound conservation practices based on the best available scientific data.

The use of aircraft and large motorized vessels for the purpose of taking polar bears is prohibited, except where the application of such prohibition would be inconsistent with domestic laws.

The Senate Committee on Foreign Relations, while approving the agreement, regretted that the executive branch had failed to prepare an impact statement for the agreement and expressed the hope "that all future agreements of this nature will have formal environmental impact statements prepared prior to their negotiation."

See S. Ex. Rept. 94-34, 94th Cong., 2d Sess.