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STATUS REPORT ON LAW OF THE SEA CONFERENCE
HEARING
BEFORE THE
SUBCOMMITTEE ON
MINERALS, MATERIALS AND FUELS
OF THE
COMMITTEE ON
INTERIOR AND INSULAR AFFAIRS
UNITED STATES SENATE
NINETY-THIRD CONGRESS
FIRST SESSION
ON
STATUS REPORT ON LAW OF THE SEA CONFERENCE
SEPTEMBER 19, 1973
Printed for the use of the
Committee on Interior and Insular Affairs
U.S. GOVERNMENT PhINTING OFFICE
23-3170 WASHINGTON: 1973
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COMMITTEE ON INTERIOR AND INSULAR AFFAIRS
HENRY M. JACKSON, Washington, Chairman
JERRY T. VERKLER, Staff Director
WILLIAM J. VAN NESS, Chief Counsel
D. MICHAEL HARVEY, Special Counsel
HARRISON LOESCH, Minority Counsel
MERRILL W. ENGLUND, Special Committee Assistant tor Outer Continental Shelf
DAVID P. STANG, Deputy Director, National Fuels anl Energy Stmly
SUBCOMMITTEE ON MINERALS, MATERIALS AND FUELS
LEE METCALF, Montana, Chairman
HENRY M. JACKSON, Washington JAMES L. BUCKLEY, New York
ALAN BIBLE, Nevada CLIFFORD P. HANSEN, Wyoming
J. BENNETT JOHNSTON, JR., Louisiana DEWEY F. BARTLETT, Oklahoma
GAYLORD NELSON, Wisconsin
(H)
ALAN BIBLE, Nevada
FRANK CHURCH, Idaho
LEE METCALF, Montana
J. BENNETT JOHNSTON, JR., Louisiana
JAMES ABOUREZK, South Dakota
FLOYD K. HASKELL, Colorado
GAYLORD NELSON, Wisconsin
PAUL J. FANNIN, Arizona
CLIFFORD P. HANSEN, Wyoming
MARK 0. HATFIELD, Oregon
JAMES L. BUCKLEY, New York
JAMES A. MCCLURE, Idaho
DEWEY F. BARTLETT, Oklahoma
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CONTENTS
STATEiMENTS
Brower, Charles N., Acting Legal Adviser, Department of State, and Act- Page
ing Chairman, Inter-Agency Task Force on the Law of the Sea 69
McKernan, Ambassador Donald L., Alternate Representative of the U.S.
Committee on the Peaceful Uses of the Seabed and the Ocean Floor
Beyond the Limits of National Jurisdiction 200, 209
Metcalf, Hon. Lee, a U.S. Senator from the State of Montana 1
Moore, John Norton, Vice Chairman of the U.S. Delegation to the Com-
mittee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond
the Limits of National Jurisdiction 179, 223
Stevenson, Ambassador John R., Chairman of the U.S. Delegation to the
Committee on Peaceful Uses of Seabed and Ocean Floor Beyond Limits
of National Jurisdiction, accompanied by John Norton Moore, Chair-
man, NSC Interagency Task Force on the Law of the Sea; Ambassador
Donald L. MeKernan, Special Assistant to the Secretary for Fisheries
and Wildlife and Coordinator of Ocean Affairs, Department of State;
Howard W. Pollock, Deputy Administrator, National Jurisdiction; ac-
companied `by John Norton Moore, Department of `Commerce; Stuart
P. French, Director, Law of the Sea Task Force, Department of De-
fense; Leigh S. Ratiner, Director, Office of Ocean Resources, Depart-
`ment of the Interior; John Hartzčll, Director, Office of Trade Negotia-
tions, Department of the Treasury; and Capt. Paul A. Yost, Office of
the Chief Counsel, U.S. Coast, Guard, Department of Transpor-
tation 4, 167, 215, 230
COMMUNICATIONS
Brower, Charles N., Acting Legal Adviser and Acting Chairman, Inter-
Agency Task Force on the Law Of the Sea, letter to Senator Jackson,
dated March 1, 1973 21
Fannin, Hon. Paul, a U.S. Senator, from the State of Arizona, letter to
Professor John Moore, dated June 13, 1973 94
Fuibright, Hon. J. W., letter to Senator Metcalf, dated September 17,
1973 243
Metcalf, Hon. Lee, a U.S. Senator from the `State of Montana:
Letters to:
Ambassador John R. Stevenson, dated October 1, 1973 118
Senator Fuibright, dated September 13, 1973 242
Moore, John Norton, Chairman, NSC Interagency Task Force on Law of
the Sea:
Letter to Senator Fannin 102
Letter to Senator Hansen 108
Stevenson, John R., Special Representative of the President for the Law
of the Sea Conference, letter to Senator Metcalf, dated November 9,
1973 130
Wright, Marshall, Assistant Secretary for Congressional Relations:
Letter to Senator Fannin 101
Letter to Senator Hansen 107
ADDITIONAL INFORMATION
"Guarding the Treasures of the Deep: the Deep Seabed Hard Mineral
Resources Act," June 1973 issue of the Harvard Journal on Legisl'ation_ 332
Law of the Sea Advisory Committee, notice of closed meeting, from the
Federal Register of September 14, 1973 1
(III)
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Iv
Outer Continental Shelf-Leasing beyond 200 meters-from the Federal Page
Register, Monday, November 5, 1973 240
Press release-U.S. mission to the United Nations-~Note to correspond-
ents, U.S. Senate unanimously supports U.S. Law of the Sea objectives- 218
Ratiner, Leigh S., Director of Ocean Resources, Department of the In-
terior, on behalf of the Interagency Task Force on the Law of the Sea,
appendix 30
"The Deep Seabed Hard Mineral Resources Act-A Negative View," by
H. Gary Knight 300
"The Law To Govern Deep Sea Mining Until Superseded by International
Agreement," by John G. Laylin 287
"The Sea: At Woods Hole, Life Is Casual but Dedicated to Explaining
Oceans," from the Wall Street Journal, Friday, November 2, 1973,
by Thomas Ehrich 328
"The Sea: How Aquarium Mixes Show Biz and Science To Advance Knowl-
edge," from the Wall Street Journal, Thursday, October 18, 1973, by
Donald Moffitt 324
"The Sea-Mysterious `Nodules' at Bottom of Oceans May Yield a
Treasure," from the Wall Street Journal, by Barry Newman 315
"The Sea: Pollution of Oceans Is Enormous Threat, but Few People Care,"
from the Wall Street Journal, Tuesday, October 2, 1973, by Barry
Newman 321
"The Sea-Question of Who Owns Oceans Becomes Vital as Exploitation
Grows," from the Wall Street Journal, by David Brand 318
"The Wealth of Oceans," from Newsweek magazine, September 17, 1973~ 241
U.S. draft articles for a chapter on marine scientific research 200
U.S. draft articles on the protection of the marine environment and the
prevention of marine pollution 188
"U.S. Oceans Politics," by Dr. Ann Hollick, executive director, Ocean
Policy Project 252
APPENDIX
Amerasinche, H. S., chairman, Committee on the Peaceful Uses of the Sea-
bed and the Ocean Floor Beyond the Limits of National Jurisdiction____ 577
American Bar Association Natural Resources of the Sea-Resolution pro-
posed by section of natural resources law 630
"A Modest Proposal for Preventing International Law From Being a
Burthen to the International Community and to Law Teachers," by
L. F. E. Goldie, from Virginia Journal of International Law (spring
1973) 567
Brower, Charles N., acting legal adviser, Department of State, letter to
Senator Jackson, dated July 26, 1973 396
"Chaos at Sea"-from the Saturday Review/World, November 6, 1973--- 810
Dempsey, Stanley H., general attorney western division, American Metcal
Climax, Inc., undersea minerals, introduction 362
"Equitable Geographical Distribution in the U.N."-IMCO, a case study,
by Robert I. McLaren 806
Geological and geophysical explorations in the Outer Continental Shelf-
Notice of proposed regulations 475
Goldie, L. F. E., professor of law, Syracuse University:
Letters to Senator Metcalf:
October 16, 1973 564
October 25, 1973 576
"International Security and Navigation," by Friedhelm Kruger-Sprengel__ 775
"Law of the Sea Meeting: A Wet Blanket for Ocean Research," by Deborah
Shapley 816
"Limits of National Jurisdiction in the Sea-Bed," by R. P. Anand, from
India Quarterly, April-June 1973 732
Mining operations in the Outer Continental Shelf-Notice of proposed
regulations 501
"Ocean Polemics," by David P. Stang 793
Ratiner, Leigh S., Director for Ocean Resources, Department of the In-
terior, letter to Paul Barbian, dated March 2, 1973 455
"Revisiting the `Archipelago'-An Old Concept Gains New Respectability,"
by J. J. G. Syatauw 759
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V
Stevenson, Hon. John R., U.S. Representative to the Committee on the Page
Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits
of National Jurisdiction, statement 559
"Summary of procedures in oil and gas leasing and regulation on the U.S.
Outer Continental Shelf," by V. B. McKelvey, Director, U.S. Geological
Survey 4~4
"The Deep Seabed Hard Mineral Resources Act-A Negative View," by
H. Gary Knight 370
"The Latin American View of the Law of the Sea," by Alvaro deSoto 781
"The Rape of the Seabed," by Alan Anderson 812
United Nations General Assembly-Committee on the Peaceful Uses of the
Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdic-
tion, report of the Secretary-General, June 12, 1973 590
"United States Ocean Mineral Resource Interests and the United Nations
Conference On the Law of the Sea," by Leigh S. Ratiner and Rebecca L.
Wright 689
White, Robert M., Administrator, National Oceanic and Atmospheric
Administration, statement 553
Working paper on competence to establish standards for the control of
vessel source pollution, April 2, 1973 533
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STATUS REPORT ON LAW OF THE SEA CONFERENCE
WEDNESDAY, SEPTEMBER 19, 1973
U.S. SENATE,
SUBCOMMITTEE ON MINERALS, MATERIALS AND FUELS,
OF THE COMMITrEE ON INTERIOR AND INSULAR AFFAIRS,
Washington, D.C.
The subcommittee met at 2 p.m. in room 3110, Dirksen Office Build-
ing, Hon. Lee Metcalf, chairman of the subcommittee, presiding.
Present: Senators Metcalf [presiding], Fannin, and Hansen.
Also present: Jerry T. Verkier, staff director; D. Michael Harvey,
special counsel; Merrill W. Englund, special committee `assistant for
Outer Continental Shelf; and, David P. Stang, deputy director, Na-
tional Fuels and Energy Study.
Senator METCALF. The subcommittee will be in order.
OPENING STATEMENT OP HON. LEE METCALF, A U.S. SENATOR
FROT~ THE STATE OP MOIITANA
We are delighted to welcome this team to the hearings of the sub-
committee. The last time the hearings were held I noted the `absence
of the all-American quarterback, Mr. Stevenson, who had been traded
off and gone back to the private practice of law. I am glad to have you
back on the team.
Before I ask you for your report, I `have a couple of questions about
the Law of the Sea Advisory Committee.
I have had some interest, as you know, in legislation providing
that most of the executive branch advisory committee meetings be
open.
I see by the Federal Register of September 14, 1973, that on Septem-
ber 21 and 22 you are holding a meeting of the Law of the Sea Ad-
visory Committee and that the public interest requires that such dis-
cussions shall be withheld from disclosure and the meeting shall be
a closed one.
Without objection, that will be made a part of the record at this
point.
[The material from the Federal Register of September 14, 1973,
follows:]
[Public Notice CM-64]
LAw OF THE SEA ADVISORY COMMITTEE
NOTICE OF CLOSED MEETING
In accordance with section 10(d) of the Federal Advisory Committee Act
(Pub. L. 92-463), notice is given that the Law of the Sea Advisory Committee
shall hold a meeting on Friday and Saturday, September 21 and 22. As it has
(1)
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2
been determined that the meeting will involve discussion of law of the sea mat-
ters exempt from public disclosure under (5 U.S.C. 552(b) (1)) and that the
public interest requires that such discussions be withheld from disclosure,
the meeting shall be a closed one not open to the general public. The reason
for this determination is that documents classified in accordance with ExecutiVe
Order 11652 would be circulated and discussed.
Dated September 7, 1973.
MYRON H. NORDQUIST,
Ewecutive Secretary.
[FR Doe. 73-19565 Filed 9-13-73; 8 :45 amj
Senator METcALF. In accordance with the statute, you did not have
to go into the specifics when you decided a meeting in the public in-
terest should be a closed one.
But, it bothers me that at this time, when you are just back from
a virtually completely open international conference and you are hav-
ing discussions with people in this country, that you should decide to
have to have a secret meeting and you have to have the public barred
and the press barred from your discussions.
Mr. Ambassador, I would like to have you explain in a little more
detail to me why this meeting is closed and why it has to be a secret
ineetrng.
Ambassador STEvENsoN. Thank you very much, Mr. Chairman.
Senator METCALF. And then we will go into your prepared state-
ment.
Ambassador STEVENSON. Let me say that I appreciate very much
the opportunity to be back with you again. I hope now coming from
New York I can do a little better than the all American ,Joe Namath
did last Sunday night.
Senator IVIETCALF. Joe Namath did not call a very good game.
Ambassador STEVENSON. But with respect to your question, it is im-
portant to bear in mind the composition of our advisory committee.
I think there is probably no advisory committee in the U.S. Gov-
ernment that is more broadly based. It is not like many advisory com-
mittees which just reflect a particular industry or a particular interest.
We have tried to include in that representatives of all of the inter-
ested groups from the environmentalists, to the scientists, to tile hard
minerals people. So, I think you have got a very good sampling of the
public right in that committee.
Furthermore, we found out earlier in the game it was not useful to
have meetings of the particular subcommittees of that group sepa-
rately which would have given you just one industry point of view.
We have a very definite cross fertilization of views from all of the
different people represented. So, I think this has been a very good way
of keeping those who are most concerned informed on a very broad
basis.
Now, the question of why the meeting should not be public. I think
basically the reason is twofold. One, we are not only engaged in re-
porting what happened, and as far as that function is concerned I
think both myself and John Moore and other members of our delega-
tion will try very hard as we have in the past to give the fullest de-
scription of what in fact went on publicly at hearings like this and
statements and so forth.
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3
But the real utility to us of these meetings is to have very frank
statements from the U.S. groups that are concerned with this as to
future positions. And, we feel it is probably in many cases prejudicial
to the U.S. interests and might be misinterpreted by foreign countries
with which we are negotiating `if the sort of discussion that we have
with our own industry people were spread on the public record.
I think we can do a better job if both the Government participants
and the public participants in this meeting are able to speak very
candidly and not in effect be speaking to the public at large.
Now, as far as reporting to the public at large, we are certainly open
t'o the way we can do this more,' effectively. In fact, we have been very
much concerned about educating the public `at large on th~ Law of
the Sea issues because I think all of this delegation feels it is such a
vital multilateral negotiation to the U.S. interests.
We are concerned that the public does not know more about it. We
are certainly very interested `and will `do what we can in that area.
Senator METCALF. The reason I have been gesturing is that behind
you is a clock that notifies us that a roilcall is going on.
I have been voting all day on the minority side. Since my vote is
going to be one of a minority ,`of 15 or so on some amendments, and
in view of the fact that we have a very distinguished group here, I
am not going to recess this committee. However, that is probably the
reason that some of the other members of the committee are not here.
I could not disagree with you more, Mr. Ambassador, at this time
when there is secrecy all over-and the Executive Department is under
scrutiny.
It seems to me that even an appearance of secrecy, and I know
under your supervision it is going to be a forthright discussion, is
probably a bad goal. Going back to Pete Rozelle and our team sort of
thing, you can remember when lie suspended a couple of fine `football
players because they had gambled on games and they bet that they
would win and there wasn't any suspicion that they had fixed the
games or anything. It is just a matter that you can't have the suspicion
that deals are being made behind closed doors.
In this case, literally billions of dollars of our natural resources
are involved. And you came back from an international conference
and hold a closed meeting.
It seems to me that this creates a very bad impression at this-to
coin a phase-"point in time." So, I would hope that you would
open up your advisory committee.
Ambassador STEVENSON. `Certainly, Senator, we are always very
influenced `by your point of view and ~e would certainly take this
into account.
Senator METCALF. You have just returned from the Seabed Com-
mittee meeting in Geneva. Now we want to know how you have gotten
along with your work and what was accomplished and where we are
going from here.
You have a prepared statement, Mr. Ambassador, and I will recog-
nize you for that presentation.
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4
STATEMENT OP AMBASSADOR 30HN R. STEVENSON, CHAIRMAN
O~' THE U.S. DELEGATION TO THE COMMITTEE ON PEACEFUL
USES OF SEABED AND OCEAN FLOOR BEYOND LIMITS OF NA-
TIONAL FURISDICTION; ACCOMPANIED BY 30H1'T NORTON MOORE,
CHAIRMAN, NSC INTERAGENCY TASK FORCE ON THE LAW OP
THE SEA; AMBASSADOR DONALD L. MCKERNAN, SPECIAL AS-
SISTANT TO THE SECRETARY FOR FISHERIES AND WILDLIFE
AND COORDINATOR OF OCEAN AFFAIRS, DEPARTMENT OF
STATE; HOWARD W. POLLOCK, DEPUTY ADMINISTRATOR, NA-
TIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DE-
PARTMENT OF COMMERCE; STUART P. FRENCH, DIRECTOR,
LAW OF THE SEA TASK FORCE, DEPARTMENT OF DEFENSE;
LEIGH S. RATINER, DIRECTOR, OFFICE OP OCEAN RESOURCES,
DEPARTMENT OF THE INTERIOR; JOHN HARTZELL, DIRECTOR,
OFFICE OF TRADE NEGOTIATIONS, DEPARTMENT OF THE TREAS-
URY; AND CAPT. PAUL A. YOST, OFFICE OP THE CHIEF COUNSEL,
U.S. COAST GUARD, DEPARTMENT OF TRANSPORTATION
Ambassador STEVENSON. Thank you very much, Mr. Chairman.
Before turning to that, Professor Moore pointed out to me that it
has just been decided by the interagency task force to also invite con-
gressional representatives to participate in the Advisory Committee
meetings from now on.
Of course you also are aware that we have that very large both pub-
lic and congressional participation in our delegation in Geneva.
Mr. Chairman, if I could now turn to my statement. It is a pleasure
to be here today to report on the recent meeting of the United Nations
Seabed Committee and the preparations for the Law of the Sea Con-
ference.
I am accompanied by John Norton Moore, Chairman, NSC inter-
agency task force on the law of the sea; Ambassador Donald L. Mc-
Kernan, Special Assistant to the Secretary for Fisheries and Wildlife
and Coordinator of Ocean Affairs, Department of State; Howard W.
Pollock, Deputy Administrator, National Oceanic and Atmospheric
Administration, Department of Commerce; Stuart P. French, Direc-
tor, law of the sea task force, Department of Defense; Leigh S. Rati-
ner, Director, Office of Ocean Resources, Department of the Interior;
John Hartzell, Director, Office of Trade Negotiations, Department of
the Treasury; and Capt. Paul A. Yost, Office of the Chief Counsel,
U.S. Coast Guard, Department of Transportation.
This committee, as well as other committees of the Senate and House
of Representatives, has followed the course of the law of the sea nego-
tiations closely for several years.
Senators and staff members present today from a number of com-
mittees were able to contribute to the work of our delegation in Geneva
this summer.
I know that they, as well as their colleagues in both Houses of
Congress, share our view of the importance to all Americans of going
to the Conference with a strong, united, and well-prepared team.
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Accordingly, I wish to stress how much we appreciate this interest,
and the importance we attach to continuing and strengthening our
consultations with Congress in the period ahead.
As you know, the executive branch has recently taken several steps
to consolidate our efforts for the Conference. In addition to my ap-
pointment as Special Representative of the President, Prof. John
Norton Moore has been appointed Chairman of the NSC interagency
task force on the law of the sea, and will be working full time on the
law of the sea negotiations.
We have established a new office for the law of the sea negotiations
within the office of the Deputy~ Secretary of State in his capacity as
Chairman of the NSC Undersecretaries' Committee.
This new office will include persoimel among whose principal func-
tions will be that of insuring that Members of Congress, members of
the Law of the Sea Advisory Committee, and the public in general,
are kept closely informed of developments and consulted on our
approach.
Despite the heavy travel schedules and other demands on the time
of those principally concerned with the substance of various issues,
they will be devoting a substantially greater proportion of their time
to insuring the substantive relevance and timeliness of these
consultations.
In addition, as part of this effort to build the united team we need,
we plan to invite the members designated by Congress to serve on our
delegation to attend future meetings on the Law of the Sea Advisory
Committee.
The strength of our constitutional system for assuring that all inter-
ests are properly understood and taken into account must not be mis-
interpreted by others as weakness or lack of determination.
Although an important first step was taken in this direction with
the passage of Senate Resolution 82 and House Resolution 330, let us
recognize that while we have together outlined our broad common
goals, the real test of our common efforts will be our ability to realize
these goals in concrete terms and harmonize them with the legitimate
concerns of other countries.
Well over 100 countries will attend the Law of the Sea Conference,
each with its own special problems, its own priorities, and its own
perception of the issues.
Many difficult decisions will be required of our delegation, and
our determination will be put to the test more than once.
The executive branch will work closely with Congress to insure
that our efforts are equal to the challenge. I know that we can rely on
this and other interested committees of Congress to join in this united
effort.
Senator METCALF. Mr. Ambassador, I just want to make this state-
ment for the record.
Senate Resolution 82 was just one of those things that happens
by unanimous consent and without notice.
And while I am not going to make an issue of it, I am sure that
there are many Members of Congress, including Members of the
Senate-including me-who asked for some discussion and some dia-
logue prior to the passage of that resolution.
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6
I just cannot let it go by that that is a unanimous agreement of the
Senate as in your statement.
Ambassador Sa'IwENsox. Thank you, Mr. Chairman. We have al-
ways taken notice and I will take notice in the statement of the very
special guidance and cooperation we have gotten from this committee.
Needless to say, if there is to be a timely and successful Law of the
Sea Conference, a similar spirit must emerge among the nations of
the world.
Just as we in this country are finding means to harmonize a some-
times bewildering array of different interests in the oceans because we
have all come to appreciate the urgent need, so the nations of the
world can pull together as well in the common interest.
In the broadest sense, the job of the Seabed Committee was to lay
the foundation for this essentially political process. And in the broad-
est sense, we believe this has been done.
A very important factor in solving any complex set of issues is
identifying the interests that require accommodation and the alterna-
tives available for doing so.
There can be little doubt that the records of the Seabed Committee'
make quite clear what various nations believe these interests are.
There is also little doubt as to the major alternatives available,
although in some cases these alternatives have been prepared in a
far more organized and usable form than in others.
What is lacking in the work of the Seabed Committee is, of course,
agreement on single texts t.hat resolve the major political issues.
It has been apparent for some time that most delegations believe
this is the job for the Conference itself. Nevertheless, very widespread
common understanding of the outlines of a broadly supported Law of
the Sea Treaty has emerged.
In some cases, such as the 12-mile territorial sea, this has been made
explicit. In others, it can be inferred. I would like to identify what
some of the major elements appear to be:
One, a maximum limit of 12 miles for the breadth of the territorial
sea.
Two, adequate guarantees of transit in straits used for international
navigation.
Three, broad coastal state control over seabed and living resources
beyond the territorial sea, coupled with provision for the interests of
other states and the international community in general.
Four, a balancing of coastal state and international community in-
terests in scientific research and the protection of the marine environ-
ment.
Five, an international regime and machinery for the deep seabed
that accommodates the interests of consumers, as well as those of states
having the capacity to exploit, with the desire for machinery with
comprehensive powers.
Senator METCALF. I understand there are certain technical terms
such as "international machinery" which you are defining.
Ambassador STEVENSON. Machinery does just mean an international
organization that will provide institutions or agencies to do the job.
I must say the first time I heard the term, I thought I had gotten
into an engineering meeting or something by mistake but it is common.
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Senator METCALF. Thank you for bringing that out because some of
us have not had the benefit of sitting in on some of these international
conferences and do not know the lingo any more than we know what
happens in the jargon of scientific communities or psychological as-
sociations, for example.
Ambassador STEVENsON. I spent 6 months in Washington before
I knew what DOD meant.
There are, of course, other elements that delegations consider an
essential part of an overall settlement. For example, the United
States has stated that compulsory dispute settlement procedures are
essential.
Certain island nations such as Indonesia and the Philippines have
stressed recognition of the archipelago concept.
The archipelago concept, this is in the case of an island state. The
island state is entitled to link the outermost extremities of its island
chain and within that area exercise a very full jurisdiction, not only
over resources but also sovereign navigation in the interest of main-
taining the unity of the country.
And there are differences in the concept as to the extent of the
transit of the area by outside shipping they will allow.
But the fundamental concept is the treating of waters within this
area as part of the national jurisdiction, the national territory.
Senator METCALF. Or an inland sea, so to speak.
Ambassador STEVENSON. There has been a difference. Some of the
exponents have talked about the area within being basically territorial
sea, whereas others have talked about it being internal waters. And
there has been disagreement as to whether or not there was right of
innocent passage.
I think more recently, in terms of what was proposed in Geneva, they
are talking about a completely different concept in which they are
talking about archipelagic waters in which there would be some kind
of transit, right of transit.
But this is certainly one of the areas of this concept with which we
have difficulty in assuring that there are adequate guarantees for
transit through the area.
A great deal of controversy~ has emerged on the issue of delimita-
tion of the territorial sea and resource jurisdiction between neighbor-
ing states, and on the related problem of islands.
It should be noted that Ambassador Amerasinghe, the Chairman
of the Seabed Committee, initiated informal meetings of representa-
tives of different groups of states to discuss plans for the Conference
and means of resolving the major substantive issues.
Many of those present took a very constructive approach. I think
you will agree, Mr. Chairman; that this sort of development is of the
utmost importance and delicacy.
It should also be noted that supporters of the exclusive economic
zone and patrimonial sea worked quite intensively on means of inte-
grating their approach to this concept.
While we, of course, have had certain difficulties with this approach,
I believe most delegations concerned undertook these efforts in a con-
structive spirit in order to narrow and clarify the issues with a view
to facilitating the negotiations.
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8
There is widespread recognition that a repetition of the kind of
unfortanate commitments and polarization that occurred in connec-
tion with the list of subjects and issues could jeopardize the Con-
ference.
You will remember, Mr. Chairman, there was a great deal of time
spent in agreeing on what the appropriate subjects and issues to be
dealt with in the Conference would be.
Agreement was finally reached on that in the session of last year of
the Summit Six.
Senator METCALF. May I interrupt for just a moment, Mr. Am-
bassador?
I hate to keep going back to the question on which I opened the
hearing. But are you telling this committee that there are details and
special provisions in your report that are so classified and so secret
that we have to make arrangements to come down and talk to you
about them?
Ambassador STEvENsoN. No, Mr. Chairman. I think the arrange-
ments could be that if your staff-we could make arrangements to-
Senator METCALF. Is it so voluminous that you don't want to bring
it up here?
Ambassador STEVENSON. I certainly think it can be `brought up
here, absolutely.
Senator METCALF. It is not a matter of security, it is just a matter of
the volume of the material, is that right?
Ambassador STEVENsoN. I think in most cases. Obviously in some
situations there may be where we have a delicate negotiating situation,
which is why we would like to discuss it with you.
I don't think it would be of any interest to discuss it publicly. But,
we would want to make that available to the Congress in whatever form
that is most appropriate. In fact, I am told you now have copies of
this report already.
Senator METCALF. Your staff work is better than ours, so it is on its
way.
Thank you very much. I just reiterate the proposition that most of
what we are talking about is the public's business and should be dealt
with openly.
A long time ago somebody said "open covenants openly arrived at."
I am glad it is on its way up. Maybe I will be able to wade through all
of that.
Ambassador STEVENsoN. We hope to be. able to make this negotia-
tion a model of that approach.
Senator MEIrCALF. I think you are going to.
Ambassador STEVENSON. There is no doubt that all delegations
worked harder and in a more businesslike fashion during the 8 weeks
this summer than ever before.
Most major issues were discussed with precision, and views were
exchanged with clarity and frankness. This in itself is a clear indica-
tion that delegations are far better prepared on the issues now `and,
as in the case of the Organization of African Unity and the Santo
Domingo Conference, are actively coordinating detailed approaches.
Mr. Chairman, even a brief summary of the 8 weeks of work in the
subcommittees and working groups would take considerable time.
PAGENO="0015"
Accordingly, I will just touch on some highlights and elaborate on
some issues that have been of particular interest to this committee.
In addition, arrangements can be made for interested Members of
Congress to read the somewhat more detailed internal report of our
delegation.
The Seabed Committee made discernible progress in the prepara-
tion of draft treaty articles on the regime and machinery for the deep
seabed.
A 33-menTher open-ended working group was established at the end
of the spring 1972 Seabed Committee session to prepare articles on
the seabed principles and machinery.
Since then, it has held 90 meetings and has produced over 50 draft
treaty articles.
The working group was able to develop alternative and bracketed
texts reflecting the broad range of views within the Seabed Committee.
In the closing weeks of the March session, the working group com-
pleted a second reading of the draft articles dealing with the inter-
national regime to govern deep seabed mineral exploitation and began
the first reading of draft articles on the international machinery.
During the first 7 weeks of~ the July-August session, the working
group continued consideration of these articles, which were contained
in a working document prepared by its chairman.
The machinery articles proved to be more complex than those
on the regime, although there have generally been only two or three
divergent views on each important item.
Frequently alternatives on a number of different articles in fact
relate to a difference of opinion on one major issue.
For example, a variety of alternative texts on different articles for
the deep seabeds regime and machinery relate directly or indirectly to
the issue of who may exploit deep seabed resources, on which four
alternatives have been presented.
1I'here were several major areas of concern arising during the recent
session concerning deep seabeds. One such issue concerns the powers
and functions of the Assembly and Council of the Authority.
The preponderant view among developing countries is that effective
policymaking power in the new international organization should rest
in the Assembly in which all parties are represented with one vote,
while some developed countries maintain that the Council should ex-
ercise fundamental control over the operations of the Authority.
The United States explained its view that policy should largely be
developed through a rulemaking procedure. Rules would be based on
expert Commission regulations after consultation with contracting
parties.
If approved by the Council, the rules would have to be reviewed by
all contracting parties, and would not go into effect if one-third or
more objected.
The United States expressed its willingness to give the Assembly
broad recommendatory powers as an alternative to other delegations'
desire to give the Assembly policymaking functions.
In explaining the U.S. position on the Council's role in the Author-
ity, the United States stressed that the basic conditions and terms of
resource extraction should be established in the treaty itself and
PAGENO="0016"
10
not left to an organ of the international authority to determine, so as
to avoid a subjective and possibly discriminatory and unpredictable
licensing policy.
One of the more difficult issues in the negotiation is the composition
of the Council. Many developing countries have made it clear that they
will strongly support a Council consisting of countries selected on an
equitable geographical basis and in which decisions are made by a
two-thirds majority.
The United States and several other industrialized countries, on
the other hand, have stressed the need for some formula by which
those countries which will have the greatest involvement in deep sea-
bed mining will be assured that their views will be given proper
weight.
The working group passed over the question without debate, simply
including a set of alternative treaty articles reflecting various ap-
proaches for subsequent negotiation.
The system for resource exploitation is of course another major area
of concern. Early in the session the Latin American States introduced,
with the support of almost all developing countries participating in
the working group, a proposal on the Enterprise concept.
In essence, this proposal would establish the Enterprise as the op-
erating arm of the Authority exclusively empowered to exploit the
deep seabed, either through service contracts or joint ventures with
companies or States.
Throughout the discussions, the United States pointed out the prac-
tical advantages of its proposed licensing system versus the Enter-
prise approach.
Several new proposals as to who might exploit, the seabed were
submitted. These include two proposals by Australia and Canada,
both of which lean heavily toward the Enterprise but permit the
Authority to issue licenses for exploitation.
The United States and others continued to support a licensing sys-
tem to the exclusion of other systems. In doing so, the United States
stressed that the essential elements of any agreed resource manage-
ment system were guaranteed access to the resources under reasonable
coiiditions and nondiscriminatory rules and regulations which would
assure the integrity of investments made in the area.
Virtually no substantive discussion took place on the issue of pro-
duction controls, although alternative texts now appear which grant
various organs of the Authority power over this question.
These proposals range from mere recommendatory power to power
to reduce production and fix price levels. The United States took the
position throughout that the International Authority should have no
powers in the area of production controls.
The working group thoroughly discussed the question of the system
for dispute settlement, and the U.S. proposal for a tribunal.
General attitudes expressed in the discussion indicate that many
delegations favor creation of a tribunal to settle seabed disputes, al-
though the scope of its powers and details of its organization remain
controversial.
The concept of compulsory settlement of disputes was presented by
the United States as one of the cornerstoiies of the Subcommittee I
negotiations.
PAGENO="0017"
11
At the spring session of the Seabed Committee the United States
proposed that the Conference cOnsider the possibility of having those
portions of the Law of the Sea Treaty affecting deep seabed mining go
into effect on a provisional basis immediately following signature,
without waiting for the treaty to enter into force which might be a
matter of years.
The purpose of the U.S. proposal was to assure that seabed mining,
when it begins, would be conducted under the internationally agreed
regime.
The Seabed Committee requested the Secretary General to prepare
a study on applicable precedents for the provisional application of
treaties.
This study was prepared aiid circulated at the summer session.
There was very little discussion of the U.S. pro~osal at this session,
although several delegations indicated serious interest in the sug-
gestion.
[The study referred to appears on page 590 of the appendix.]
There was wide support among all regional groups for a 12-mile
territorial sea. However, a number of States conditioned their accept-
ance of the 12-mile figure on satisfactory settlement of other issues
in an overall treaty.
Supporters of the OAU Declaration and the Santo Domingo Dec-
laration explicitly conditioned acceptance of a 12-mile territorial sea
on acceptance of a 200-mile economic zone or patrimonial sea.
The United States has repeatedly stated that our willingness to
agree to a 12-mile territorial sea is contingent upon satisfactory pro-
visions insuring free transit through and over straits used for inter-
national navigation.
Major maritime States, such as the United States, United Kingdom,
France and the U.S.S.R.., continued to stress the need for a guaran-
teed right of passage through and over straits used for international
navigation.
Certain archipelago and straits states, supported by some others,
continued to press for the application of the doctrine of innocent
passage in the entire territorial sea, including straits overlapped by
the territorial sea.
The vast majority of states, however, remained silent on this issue.
In general, at this session, there seemed to be a better comprehension
of the rationale behind the U.S. proposal and of the necessity for
finding acceptable provisions on this issue in order to have a success-
ful conference.
A 200-mile exclusive economic resource zone clearly had wide sup-
port. For example, such a zone was included in the OAU Declaration,
the Santo Domingo Declaration and in a paper submitted by Norway
and Canada.
Some States said that the starting point of negotiations had to be
an exclusive economic zone.
Other states, while agreeing that coastal states should have exclu-
sive resource management jurisdiction with respect to seabed resources,
stressed the importance of international standards.
Moreover, while the need ±o protect coastal state interests with
respect to fisheries was also widely accepted, other states opposed
exclusive coastal state fisheries jurisdiction and felt it was unnecessary
for the protection of coastal state interests.
23-317 0 - 73 - 2
PAGENO="0018"
12
On July 18, 1973, the United States tabled draft articles which
would give coastal States the exclusive right to explore and exploit
seabed resources in the Coastal Seabed Economic Area.
Coastal nations would have to conform to international standards
to prevent pollution and unjustifiable interference with other uses of
the marine environment, although coastal nations could apply higher
environmental standards to those activities under their jurisdiction.
Investment agreements regarding seabed resources would have to
be observed strictly, and just and prompt compensation given in the
event property were taken.
Some revenue sharing from mineral exploitation of the area and
compulsory dispute settlement is contemplated.
In this connection, we should express our particular gratitude to
this conimittee for the ideas it has developed on the coastal seabed
problem over the past few years.
I believe the new articles make quite clear the considerable extent
to which those ideas proved helpful to us.
The draft articles do not specify a.n inner or outer limit of the
Coastal Seabed Economic Area. With respect to the inner limit, we
noted that the are;a would be seaward of the 12-mile territorial sea,
allowing for the fact that the Continental Shelf Convention already
specifies the 200-meter depth figure.
With respect to the outer limit of the area, we noted that the pre-
ponderant view favored 200 miles. At the same time, we observed that
a sizable number of delegations preferred, in addition to this mileage
limit, an alternative seaward limit which would embrace the full con-
tinental margin where it extended beyond 200 miles.
States generally reacted favorably to the U.S. draft articles and
introductory speech. In spite of this, we have experienced difficulty in
getting other delegations to focus on the question of the international
standards in the Coastai Seabed Economic Area.
Some African states were critical of the provision for protection
of investment and compulsory dispute settlement.
In connection with the discussion of continental margin resources,
there was considerable debate concerning the so-called concept of
"acquired rights."
This concept referred to the fact. that certain broad shelf countries
such as Argentina, Australia, New Zealand, and Canada believe they
already have and desire to retain exclusive rights to the resources of
the continental margin where it extends beyond 200 miles.
African states, in particular, resisted this approach as being incon-
sistent with the OAU declaration. In addition, the acquisition of such
rights was strongly opposed by landlocked and other geographically
disadvantaged States who favored an intermediate zone with revenue
sharing in any "acquired rights" areas.
In the context of broad coastal State control over coastal fisheries
beyond the territorial sea, the United States continued to emphasize
conservation, maximum utilization, and cornpu~sory dispute settlement.
At the same time, we emphasized host State management and pref-
erential rights with respect to anadromous stocks, and international
management of highly migratory stocks.
At this session, the most meaningful point-by-point exchanges on
fisheries took place in two informal meetings chaired by Canada on
PAGENO="0019"
13
behalf of six cosponsors of a draft fisheries proposal-Canada, India,
Kenya, Madagascar, Senegal, and Sri Lanka.
There were detailed discussions on the issues of maximum utiliza~
tion and conservation of fisheries resources. Emphasizing the equity of
the maximum utilization concept, we underscored the world's need for
high protein food from the sea.
We pointed out that fisheries are a renewable resource, and that food
is wasted when a fish stock is underutilized. Canada, the United King-
dom, Ireland, and the United:: States supported host state control
over anadromous fish stocks. Japan consistently disagreed.
The Soviet Union, Japan, and: the United Kingdom were the leading
advocates for distant water fishing rights in general.
On August 22 we stated that we were prepared to support provi-
sional application for both deep seabeds and fisheries aspects of the
treaty and to consider provisional application in connection with other
aspects of the treaty as well.
In this connection I wish to emphasize that while the main purpose
of provisional application is that of dealing with urgent problems
during the period of time prior to ratification of the treaty by the
necessary number of states, for our part we intend to seek appropriate
congressional action in connection with provisional entry in force
for the United States, and will consult with Congress on the most
suitable way to accomplish this.
Th~ U.S. delegation submitted a set of draft articles on the pro-
tection of the marine environment and the prevention of pollution.
The articles were designed to demonstrate that satisfactory arrange-
ments for environmental protection and an accommodation of coastal
state concerns could be achieved without undue prejudice to naviga-
tional rights.
In connection with proposals of others for comprehensive coastal
state pollution jurisdiction in a 200-mile economic zone, the United
States pointed out in a statement of August 13, 1973, that if jurisdiction
for the protection of the marine environment were to extend generally
to vessel-source pollution in a 200-mile zone, all seaborne commerce
and other maritime traffic to and from most coastal states would, in
effect, be subject to the control of another state.
We noted that since a majority of coastal states are in a geographic
situation in which access to theopen oceans would depend upon move-
ment through another state's zone of jurisdiction, those states would,
in effect, become ~
The marine pollution working group used the treaty proposals
presented by delegations as a basis for its work. In the March/April
sess1on articles were drafted on the general and particular obliga~
tions of states to protect and preserve the marine environment.
At this session, alternative texts were prepared on global and
regional cooperation, and on the role of national and international
standards for controlling land-based, seabed source, and vessel source
pollution.
Agreed texts were provisionally adopted on monitoring and tech-
nical assistance. There was consideration of articles on the duty of
States responsible to terminate activities violating the Convention and
the method of determining whether a State had discharged its obliga-
tions under the Law of the Sea Convention.
PAGENO="0020"
14
On the question of standards with respect to seabed sources of
marine pollution, the U.S. draft articles called for the establishment
of and agreement to minimum international standards, and the right
of coastal States to set higher standards for activities under their
jurisdiction.
Alternative texts reflect the view of some States that there need not
necessarily be minimum international standards and that primary
responsibility for establishing seabed standards should lie with the
coastal States.
On the question of standards for vessel-source pollution, the United
States-both in an earlier working paper and in the draft articles-
favored international standards, although States would also have
jurisdiction to establish standards for ships flying their flag or enter-
ing their ports.
The United States also proposed that IIMICO should have the pri-
mary responsibility for establishing such standards. Canada and Aus-
tralia favor primary reliance on international standards, but advocate
a right for the coastal State to establish supplemental standards for
special circumstances or for situations in which, in their view, interna-
tional standards are inadequate or nonexistent.
Some developing countries, notably Kenya and Tanzania, favored
exclusive coastal State competence to set standards both for seabeds
and vessels in their economic zone.
The Soviet Union argued that States have the right to establish
standards only for their own vessels, but that such standards should
not be lower than those agreed internationally.
The United States proposed several general articles on enforcement
with respect to vessels based mainly on flag and port State com-
petence, with bonding and other release measures.
In addition, the U.S. draft articles contain extraordinary coastal
State rights in three situations:
One, a finding by the dispute settlement machinery of persistent
flag State failure to enforce;
Two, a reasonable emergency enforcement measure to prevent, miti-
gate or eliminate imminent danger to its coast from a violation of
applicable standards;
Three, intervention in circumstances spelled out in the 1969 Inter-
vention Convention and its proposed protocol.
Canada, Australia, Kenya and Peru, supported by certain develop-
ing countries, argued for a general right of the coastal State to en-
force standards within a broad zone adjacent to the territorial sea.
France and Japan proposed coastal State enforcement of interna-
tional standards only against discharges or dumping in contravention
of international rules in a zone beyond the territorial sea of unspeci-
fled breadth.
The Soviet Union opposed any coastal State right of enforcement
beyond the territorial sea.
On July 20, we introduced draft articles on marine scientific
research. The U.S. proposal calls for cooperation in facilitating
research in the territorial sea and provides for a set of obligations for
the conduct of research in areas beyond the territorial sea where the
coastal State exercises jurisdiction over seabed resources and coastal
fisheries.
PAGENO="0021"
15
This obligation would be in lieu of consent and would include
advance notification, coastal State participation, flag State certifica-
tion of the bona fides of the researcher, sharing of data and samples,
assistance in interpreting the data, and compliance with international
environmental standards.
In the Working Group, supporters of the exclusive economic zone
tended to support a requirement for coastal State consent for research
in the zone, stating that such an adjunct of sovereignty was necessary
for consistency with the concept of an exclusive economic zone.
France, Mexico, Australia and Italy made suggestions which would
qualify the right of the coastal State to refuse consent.
General debate on technology transfer was limited and inconclusive,
with the United States reiterating its willingness to support tech-
nology transfer in the area of marine science.
Several developing countries indicated that their attitude toward
the TJ.S. articles on scientific research would be influenced by our
approach on technology transfer.
Throughout the session, in all, subcommittees, we stressed that there
was a need for an effective dispute settlement mechanism to insure that
conflict could be avoided or resolved.
All draft articles introduced by us during this session contained a
cross-reference to a section of the Law of the Sea treaty on dispute
settlement.
We introduced general draft articles on dispute settlement on
August 22. In a statement on the same day, we emphasized that a sys-
tem of peaceful and compulsory dispute settlement was an essential
aspect of any comprehensive settlement.
\7~Te indicated that a system was needed that insured, to the maxi-
mum extent possible, uniform interpretation and immediate access to
dispute settlement machinery in urgent situations, while at the same
time preserving the flexibility of States to agree to resolve disputes by
a variety of means.
Thus, the U.S. articles reflected a system of settlement of disputes by
any manner agreed to by the parties, with a Law of the Sea Tribunal
to settle disputes if parties did not agree to another method.
The different degrees of progress made by the different working
groups resulted from a variety of factors.
The Working Group on the deep seabeds regime was the first to be
established, and had concrete texts prepared by the chairman. It clearly
accomplished the most.
Procedural problems were largely overcome in the Subcommittee
III Working Group on Marine Pollution and approximately half of
the draft articles were placed in usable form for the Conference.
This Group did, of course, have a relatively narrow mandate and
many fewer drafts to work with than, for example, the Working
Group in Subcommittee II.
The Subcommittee III Working Group on scientific research started
late in the session and little substantive progress was made.
A great deal of time was spent sorting out procedural problems as
this Working Group had not established a work method before the
stait of this session.
Subcommittee II and its Working Group continued to face a va-
riety of time-consuming procedural obstacles at this session.
PAGENO="0022"
16
Underlying the difficulties was the fact that unlike the other sub-
committees, Subcommittee II has the broadest mandate for dealing
with traditional law of the sea subjects upon which most States have
strong, longstanding views.
Moreover, the questions of maritime commerce and navigation and
straits passage affect the hard economic and security interests of
States.
The large majority of delegations now appear to regard the Confer-
ence as the proper place to resolve the political problems that underlie
the major difficulties in Subcommittee II as well as the other sub-
committees.
They do not seem to wish any significant delay in beginning the
Conference. In our closing statement in plenary, we strongly endorsed
proceeding with the Conference on schedule.
It is our candid assessment that substantive progress has proceeded
about as far as it can without intense political negotiation, but that for
understandable reasons such negotiation is unlikely at any meeting
believed to be preparatory or preliminary in character.
The United Nations General Assembly will begin its consideration
of the Law of the Sea Conference in a few weeks.
It must decide fairly soon, for example, on invitations to the Con-
ference since the organizational session is currently scheduled for
November/December of this year.
In closing, Mr. Chairman, let me say that although we of course
may not know until late in the Conference whether a broadly supported
treaty will in fact be achieved, we move forward to the Conference
with some measure of optimism because we arc at this time confident
of four essential points regarding the possibility of a timely and suc-
cessful Conference.
The first is that a broad range of foreign countries have a clear
understanding of the nature, importance, and diversity of the interests
we believe a treaty must accommodate.
The second is that we believe we understand the interests and prob-
lems most other countries believe a treaty must accommodate.
The third point is that a growing number of nations with widely
disparate interests and viewpoints understand the crucial need to
agree on a treaty that will be ratified very widely among all groups of
nations, and believe that this can be done.
The fourth, returning to t;he theme of my opening remarks, is that
I am convinced that in cooperation with Congress and the public we
can maintain the strength of purpose and breadth of vision necessary
for the United States to exercise the leadership that others, whatever
their interests, have every reason to expect is essential for success.
Thank you, Mr. Chairman.
Senator METCALF. Thank you, Mr. Ambassador.
I want to again express my appreciation that you are heading a
delegation negotiating on these very important matters.
I know of no one in America who is more skilled or more able to
handle this negotiation than you and the group of people you have
gathered around you. Your reputation for fairness, dignity, and states-
manship extends well beyond the borders of this country.
You are doing an important and significant job. Nevertheless, I have
some questions and I know that my colleagues have some questions
PAGENO="0023"
17
about the directions under which you are moving, the obligations that
you hold to the administration.
I will defer to my colleagues, who have some questions, and I re-
serve mine and I will call upon Senator Fannin.
Senator FANNIN. Thank you, Mr. Chairman.
Mr. Ambassador, I join the chairman in commending you for `assum-
ing this very challenging assignment and I know you will carry
through with expertise in this field of endeavor for which you are
so ably equipped.
I understand that a central issue between developing and developed
countries on the deep seabed regime and machinery is who may
exploit the area and that the developing countries and the United
States have absolutely polar positions on this issue.
I have been told that the developing countries want to exert ab-
solute control over both the exploration for and exploitation of sea-
bed resources by means of a monopoly operating agency called the
Enterprise and that the administration advocates `a first come-first
served licensing system.
Would you please explain this situation in detail to us and in par-
ticular tell us how this enormous gulf caii be bridged in a Law of the
Sea Conference while steadfastly protecting U.S. resource positions?
I am wondering if you can explain how this extreme polar division
might be handled so as to avoid its being an almost insurmountable
block to a timely and satisfactory treaty.
Ambassador STEVENSON. I would first like to express my apprecia-
tion to both the chairman and you for your expressions of confidence.
I will certainly do my best to meet the `challenge which you have
posed with respect to the issue which you have raised.
This is certainly one of the pOints where there is the greatest dis-
agreement between the developed and the developing countries.
Your statement of the difference in the positions was substantially
accurate. I think the developing country position involves, of course,
in addition to the concept of exploitation by the international ma-
chinery, the concept that machinery or organization would enter into
joint ventures or contracts with States or private enterprise to actually
dothe job.
So, it does not involve necessarily-and probably not at all-estab-
lishing an organization to carry on that exploitation.
Our own position has been, I think, quite clear in terms of want-
ing basically nondiscretionary licensing of States or enterprises that
have the capacity to carry on this exploitation with the international
communities' interests being met by revenue sharing and technical
assistance and the possibility of any members of the international com-
munity participatingin this activity.
I think that certainly the negotiations this summer-although they
were much more implicit than explicit in this area-have served a very
definite educational purpose in really defining more closely what the
positions are, the developing countries finding out some of the prac-
tical difficulties with some of their more extreme proposals, and we
hope that learning some of our proposals may in the final analysis be
better for their own interest and the international community than
their approach.
PAGENO="0024"
18
Now, I don't mean to minimize the problem, but I also think you
must look at this issue in the context of an overall law of the sea settle-
ment and that probably the issue which is of more importance to more
countries than any other single issue is the question of coastal state re-
source jurisdiction where there is a. good deal more of a measure of
agreement than in this area.
So, I think, in looking at any issue in the law of the sea, you must
look at it in terms of overall settlement.
Now, since I did not participate in all of the discussions of this very
important topic this summer, I would like to take this opportunity to
call on Mr. Ratiner, who is our representative in the working group,
to amplify my remarks.
Senator METCALF. Mr. Ratiner.
Mr. RATINER. It is important to bear in mind, when discussing the
Enterprise versus the licensing system, for the sake of convenience, we
refer to the issue as who may exploit the area, and that is a fairly sig-
nificant question.
In fact, the question is somewhat different. It is not really who may
exploit the area because, under the Enterprise system, it is contem-
plated that the area will, in fact, be exploited by American, Japa-
nese, German, French, or British companies under legal arrangements
which we have come to call service contracts or joint ventures so that
either the licensing system or the Enterprise system as proposed, there
is a substantial likelihood that exploitation would actually take place
by the same companies who would be obtaining licenses under the U.S.
proposal.
However, I think it is important to point out that the real underlying
issue as between the Enterprise and the licensing system is: When ex-
ploitation rights are granted, they can also be denied.
Under the Enterprise system, its present .supporters believe they
have a right when they want to to deny the opportunity to certain po-
tential investors to carry out exploitation.
If they did carry out exploitation, they would choose who the ex-
ploiters would be under the licensing system as proposed by the United
States.
There would be no discretion whatsoever in the international orga-
nization to decide whether or not a licensee obtained a license.
He would have to comply with certain internationally agreed rules,
terms and conditions-and if he did comply, he would automatically
be granted a license.
So I think a better way to put the question is whether the authority-
that is the international management authority-would have the right
to deny a license.
And on this very precise issue, the issue. which I identify as the key
issue in negotiations, there really has not been any substantive dis-
cussions.
Now, the reason for that I think is very simple. The Enterprise is
still a very popular concept, that is, a skeleton that has the support of
most developing countries. And the developing countries are still push-
ing that concept very hard.
But at the next stage of negotiations, I would suspect there would be
an attempt made by the developing country leaders who want to see a
PAGENO="0025"
19
successful negotiation to themselves begin to identify what is the real
underlying issue.
And only then will honest negotiations begin on the question of
whether the international authority would or would not have the right
to deny legal rights to American companies to exploit the seabed.
Thank you.
Senator FANNIN. You feel we are making progress in bridging this
enormous gulf we talk about-we mentioned earlier.
I just don't follow how we are going to go along with your explana-
tion that we are going to be protecting exactly what our whole licensing
system anticipated.
Mr. RATINER. Senator, at that stage of the negotiations, if we are
able to make our point, and we began to make a point this summer in
Geneva, and if we get the sympathetic ear from some of the developing
co~mtries, we will begin to realize this is the real underlying issue.
Then we can begin negotiation about that issue. And if we arrive at a
satisfactory political settlement on that issue, my guess is that the very
large treaty which we negotiated this summer-overly large I might
add-it is four times as long as it need be because it reflects four alter-
natives in every single issue in the draft treaty.
But my guess is, arriving at a settlement on that issue will substan-
tially expedite our ability to negotiate a single version of this treaty.
Now, I cannot predict how easy it will be to arrive at a negotiated
settlement on that issue but I want to stress it is that issue that is trou-
bling subcommittee I, and I cannot be pessimistic about it since it has
not been the subject of honest negotiations.
Senator METCALF. I am somewhat disturbed by your response, Mr.
Ratiner. Under what conditions do you think American industry and
American businessmen should be denied opportunity to go out and
develop the resources of the seabed?
Mr. RATINER. Mr. Chairman, :1 think one very good example, and
I am not favoring a system of denying licenses, but one very good ex-
ample would be if an American businessman was not capable of carry-
ing out the operations which he planned to carry out consistently.
Senator METCALF. Who makes that decision?
Mr. RATINER. The international authority would, sir. Consistent
with the environmental prescriptions which would be attached to his
license `and his grant to legal rights he should not have the right to
carry out his business in the deep seabed.
That is only one example of the kinds of things which legitimately
should be proposed as conditions for obtaining legal rights.
We do it every day in the United States and I am sure we will want
to do it in the deep seabeds as well.
Senator METCALF. Should we be doing the licensing and making
that decision right here in the United States?
Mr. RATTNER. If this were the United States we were talking about
I would of course support that view.
Senator METCALF. But a whole lot of what we're talking belongs to
the United States.
Mr. RATINER. The area of negotiation in subcommittee I is well
beyond the claim of national jurisdiction, it is fully an international
area and must be managed in accordance with an international ar-
rangement.
Senator METCALF. Do you want to get into this, Mr. Ambassador?
PAGENO="0026"
20
Ambassador STEVENSON. Yes, I do, Mr. Chairman. It seems to me
there may be some misunderstanding. I agree completely with Mr.
Ratiner that the scope of the difference can be clearly exaggerated be-
cause both of the approaches are talking in terms of contractual ar-
rangements and not on the one hand an international agency itself set-
ting up a bureaucracy and an engineering capacity to engage in this.
I think that is very important. They have spelled out their Enter-
prise concept so it is clear they are talking about contractual arrange-
ments with others who will do the work.
On the other hand, I felt he made quite clear this issue of denying
the right to exploit is a very critical issue.
He was not saying that we were going to accept this proposal that
there should be a discretionary right in the authority to decide who can
and who cannot exploit.
I think it is very important that the question of licensing be non-
discretionary. Now, the fact that it is nondiscretionary does not mean
that there should not be some standards with respect to it, and we feel
it is important that those standards should be part of the treaty itself
and to the maximum extent be agreed to beforehand so we know what
those conditions are.
Senator METCALF. I was hoping that would be your response, that
there would be standards applicable to everybody and criteria that
every potential licensee would have to meet and there would be no in-
ternational discrimination against our American business community.
Ambassador STEVENSON. That is very definitely our position, very
strongly our position.
Senator METCALF. Thank you, Mr. Stevenson.
Senator FANNIN. Thank you, Mr. Stevenson, I am sure you have
heard from me over 5. 1134, the administration says the passage of
this particular legislation would damage our negotiating position on
the law of the sea.
However, it is difficult to imagine a more extreme position than
those already taken by the developing countries.
Would you, Mr. Ambassador, explain how the passage and imple-
mentation of 5. 1134 could lead to a more difficult situation than that
which exists today?
Ambassador STEVENsoN. Mr. Chairman, I think in the actual testi-
mony on this legislation the executive branch's general position was
made clear. So, I will limit myself to the specific question you raised
as to the effect on the negotiations.
Senator METCALF. If the Senator would yield, other than the briefing
document made available to the committee, it was only a. one-paragraph
letter informing us that the administration was opposed to the bill.
That matter of clarification is not very much.
Do you have a report on our bill; we only have a report on the House
bill?
Ambassador STEVENsoN. Mr. Chairman, I believe comments by Mr.
Brower, who was then the acting legal adviser and acting chairman
of the interagency task force, with a supplemental statement by Mr.
Ratiner~ were submitted last. March.
Certainly, if not. we will supply them for the record.
Senator METCALF. The supplementary statement then will be in-
cluded in the record at this point so we may have it for reference.
[The document referred to follows:]
PAGENO="0027"
21
DEPARTMENT, OF STATE
Washington, D.C. 20520
March 1, 1973
Honorable Henry M. Jackson
Chairman, Coiflinittee on Interior and
Insular Affairs
United States Senate
Washington, D.C. 20510 *
Dear Mr. Chairman:
In a letter to you on May 19, 1972, the Chairman of
the Inter-Agency Law of the Sea Task Force indicated that
the Executive Branch was not prepared at that time to
state a position on S.2801, the "Deep Seabed Hard Mineral
Resources Act". A bill identical to S.2801 has been re-
introduced in this session of the Congress as H.R. 9.
In his May 19th letter, the Chairman of the Task Force
noted the connection of the bill with the Law of the Sea
preparatory negotiations in the United Nations Seabed
Committee, and . said that we would report again on our~
views in the light of developments at the summer session
of the Seabed Committee and the 27th United Nations General
Assembly. This letter provides Executive Branch views on
H.R. 9 supplemented by an appendix on the bill' s mineral
resource and technical aspects and their relationship to
the negotiations.
By far the most important development at the 27th Gen-
eral Assembly regarding the Law of the Sea was the unanimous
adoption of a Law of the Sea Conference Resolution., This
reeolution establishes a precise schedule for the Law of
the Sea Confere.nce.and preparatory negotiations. Prepara-,
tory work in the UN Seabed Committee will be intensified
in 1973, with provision for~ a five week session beginning
in early March in New York and an eight week session be-
* ginning in early July in Geneva. The Resolution provides
for convening a brief organizational session of the Law
of the Sea Conference in New York in November/December
1973, and for convening a second session of the Conference,
for the purpose of dealing with substantive" matters, in
Santiago, Chile in April/May 1974.. There is also provision
for such subsequent sessions of the Conference if neces-
sary, as may be decided by the Conference with the approval
PAGENO="0028"
22
-2-
of the General AssetTibly, at a subsequent session or subse-
quent sessions no later than 1975.
The Resolution also provides for the General Assembly
to review at its 28th session next fall the progress of
preparatory work and, if necessary, to take measures to
facilitate completion of the substantive work for the Con-
ference and any other action it may deem appropriate. As
a strictly legal matter, such a clause is unnecessary since
the General Assembly has this authority in any event. ~s
inclusion made it easier to accommodate concerns about pro-
ceeding to a Conference in the absence of adequate prepara-
tion. Moreover, we and others have made it clear that we
will wish to seek an adjustment in the schedule in order
to ensure that there are more than eight weeks of work in
1974.
The present hope of a large majority of States is that
the kind of schedule outlined in the Conference Resolution
can be met. This conclusion is necessarily based upon the
expectation of important accomplishments in the prepara-
tory work of the Seabed Committee in 1973.
As significant as the content of the Conference Reso-
lution was the fact that it was adopted unanimously. All
groups involved in its negotiation expressed great sensi-
tivity to the concerns of other States, and great efforts
were devoted to arriving at a resolution which could
command not merely a majority or a 2/3 majority, but gen-
eral support. This augurs well for the future of Law of
the Sea negotiations, since a successful Law of the Sea
Conference will necessarily require a similar attitude
of mutual respect and accommodation.
Although not directly relevant to the legislation be-
fore us, there were other developments in the General As-
sembly this year that wee less auspicious but which,
nevertheless, merit reporting. A deep division of opinion
developed regardtng a request by certain land-locked and
shelf-locked states for a study of the implications for
the international seabed area of various proposed limits
of national jurisdiction. It had been our hope that this
issue could be resolved by negotiation and accommodation,
but unfortunately, such an accommodation did not in fact
occur until after a number of close votes and intense
PAGENO="0029"
23
-3-
debate. The ultimate result was the adoption of a revision
of the land-locked/shelf-locked study resolution, as well
as a companion resolution introduced by Peru calling for
an analysis of the effect of different limits on coastal
States. The U.S. has consistently supported reasonable
requests for studies and infOrmation on Law of the Sea sub-
jects,' and in accordance with this policy we supported both
the land-locked/shelf-locked proposal and the Peruvian pro-
posal. -
One other significant development at this General As-
sembly, fortunately in keeping with the spirit that domin-
ated the negotiation ~of the Conference Resolution, was
the fact that no new resolution calling for a moratorium
on deep seabed activities was introduced. While it would
not be accurate to interpret this as an indication that
States supporting the earlier moratorium resolution have
changed their opinion, we believe that the avoidance of
a renewed and divisive debate on this subject was related
to the general attempts to ensure the best possible atmo-
sphere as we enter the final stage of preparatory work
this year. Needless to say, our own opposition to the
moratorium remains unchanged.
Turning to H.R. 9, the considerations expressed in
our letter of May 19, 1972 on S.2801 (identical to H.R.
13904) remain applicable, and generally set forth the
factors affecting our approach to H.R. 9. In the time
that has elapsed, however, we have been able to give
further cosideration to the matter in the light of in-
ternational and domestic developments. We are accord-
ingly in a position now to state a more definitive view
on H.R. 9 and interim mining activities.
First, we adhere to the policy on this subject con-
tained in the President's Oceans Policy Statement of May 23,
1970. We continue to believe that it is necessary to achieve
timely widespread international agreement on outstanding
Law of the Sea issues in order to save over.two-thirds of
the earth's surface from national conflict and rivalry,
protect it from , and put it* to use for the bene-
fit of all. It remains vital.to all our national inter-
ests involved in the Law of the Sea Conference that the
world agree on a treaty that will properly accommodate.
PAGENO="0030"
24
-4-
the many and varied uses of ocean space including the
seabeds. At the same time we believe that it is neither
necessary nor desirable to try to halt exploration and
exploitation of the seabeds beyond a depth of 200 meters
during the negotiation process, provided that such activi-
ties are subject to the international regime to be agreed
upon, which should include due protection of the integrity
of investments made in the interim period.
Second, we believe that there is reason to expect that
the schedule for the Law of the Sea Conference outlined
in the Conference Resolution just passed by the General
Assembly will be adhered to. As previously indicated,
the preamble of the Conference Resolution expressly states
the expectation that the Conference will complete its work
iii 1974 or at the very latest in~ 1975.
Third, we believe that with the Law of the Sea nego-
tiations moving into a critical stage, it is necessary for
States to be very careful to avoid actions that can have
an adverse effect on the negotiating atmosphere. It is
apparent that S.2801 (now H.R. 9), independent of the
particular content or merits of the Bill, has become a
symbol to many countries of defiance of the multilateral
negotiating process. Regardless of our views on the intent
and effect of the legislation, it may be argued by others
that the legislation is similar to unilateral claims that
we oppose and that are contrary to our security, navigation
and resource interests, and moreover preempts the Law of
the Sea Conference on this issue. It is well known that
we have urged legislative restraint on other countries
during the multilateral negotiating process even when they
felt important interests were involved; we believe we
should do the same so long as there are reasonable pros-
pects for a timely and successful conference.
Fourth, we wish to insure that technology to mine the
seabeds will be developed and that the United States will
be able to look to seabed mineral resources as a new source
of metals which would otherwise have to be imported with
an attendant impact on our balance of payments and other
interests.
Fifth, we also believe that a secure and stable in-
vestment climate must surround seabed mining activity
under any new legal regime.
PAGENO="0031"
25
-5-
Sixth, we *want to assure that all seabed mineral re-
source development will be compatible with sound environ-
mental practices.
The adoption of the Conference Resolution indicates
that we should distinguish between two different time
periods. The first is the period between the present time
and the conclusion of the Conference in 1974 or at the
latest 1975. The second is the period between the end of
the Conference and the entry into force of a treaty.
With respect to the second time period, we believe it
may be desirable for the Law of the Sea Conference to pro-
vide at its conclusion for immediate provisional entry
into force of some aspects ofthe international seabed
regime. There is an excellent precedent for this in the
Chicago Civil Aviation Convention of 1944, which is one
of the most widely ratified treaties in the world. This
approach can acco~nmodate the fears of many states that
the establishment of an interim regime might still not
lead to the establishment of a permanent regime, since in
fact what we would be doing would be to bring certain parts
of the permanent regime and machinery into operation ear-
lier on a provisional basis. It is our intention to make
clear in the international negotiations the advantages of,
and the need for, the entry into force of a viable pro-
visional international regulatory system for the deep sea-
beds as part of the general Law of the Sea treaty settlement
in a way that ensures that the provisional system will be
part of, and not a substitute, for, the permanent system.
We will spare no efforts to ensure that a successful
Law of the Sea Conference can be concluded on schedule.
However, this does not mean that we intend to focus our
efforts exclusively on the Law of the Sea negotiations.
Prudence dictates that we also begin at once to formu-
late a legislative approach on a contingency basis for
two reasons. First, it could conceivably become clear
during the negotiations that we have no reasonable basis
for expecting a timely and successful Law of the Sea Con-
ference. Second, we can prepare for provisional entry
into force of some aspects of the international seabed
regime once it is signed. While the approach in H.R. 9
does not appear to us to be satisfactory, we intend to
continue the useful discussiOns we have been having with
PAGENO="0032"
26
-6-
industry represntatives and members of the public on
this issue with a view to formulating such an approach
within the Administration.
Similarly, we have had interesting discussions of this
problem with other nations. In this connection, it must
be borne in mind that economic as well as poliical fac-
tors make it necessary that we understand and take into
account the interests and views of other countries on
this subject. United States companies will not be alone
on the deep seabeds, nor will the United States be the
only country affected by their activities. Thus, we also
intend to continue our consultations with other interested
States on this subject, and in particular with those States
whose nationals may in the foreseeable future be in compe-
tition with our own companies.
In this process, we will try to be guided by the need
to avoid taking any definitive steps which would make the
U.N. negotiations more difficult for ourselves or other
nations, as well as the need to provide the essential
elements of the financial security which industry considers
necessary.
Let me be quite clear about the timing of this course
of action. First, we will commence work on alternative
approaches immediately, and will concentrate on the period
between signature and entry into force of the treaty;
second, we will want to make a continuing assessment of
the negotiations to determine if a timely and successful
Conference will occur; and third, we will not ask Congress
to pass alternative legislation for the period before the
conclusion of the Conference if a timely and successful
Conference is predictable.
Let me also be clear as to what we mean by a "timely
and successful" Conference. We would not regard a Con-
ference as timely unless the schedule referred to in the
preamble of the Conference Resolution is adhered to: in
other words, a Convention, including arrangements regarding
the provisional application of the international seabeds
regime, would be opened for signature in 1974 or, at the
latest, in 1975. In practical terms, this means not later
than the summer of 1975, since many delegates would have
to be present when the U.N. General Assembly convenes
in September.
PAGENO="0033"
27
-.7-.
Similarly, we could no longer regard the likely out-
come of a Conference as successful should it become apparent
that other States are not prepared to accommodate basic
United States interests in a, final Law of the Sea settle-
ment. In our statement of August 10, 1972, before the U.N.
Seabed Committee, we reiterated what those interests are.
Three paragraphs from that statement follow:
"The views of my delegation on non-resource uses have
been clearly stated on a number of occasions. It is our
candid assessment that there is no possibility for agreement
on a breadth of the territorial sea other than 12 nautical
miles. The United States and others have also made it
clear that their vital interests require that agreement on
a 12-mile territorial sea be coupled with agreement on free
transit of straits used for international navigation and
these remain basic elements of our national policy which
we will not sacrifice. We have, however, made clear that
we are prepared to accommodate coastal State concerns re-
garding pollution and navigational safety in straits and
have made proposals to that effect in Subcommittee II."
"The views of my delegation on resource issues have
also been stated on a number of occasions. Unfortunately,
some delegations appear to have the impression that mari-
time countries in general, and the United States 4n parti-
cular, can be expected to sacrifice in these negotiations
basic elements of their national policy on resources.
This is not true. The reality is that every nation re-
presented here has basic interests in both resource and
non-resource uses that require accommodation."
"Accordingly, we believe it is important to dispel
any possible misconceptions that my government would agree
to a monopoly by an international operating agency over
deep seabed exploitation or to any type of economic zone
that does not accommodate basic United States interests
with respect to resources as well as navigation."
In another excerpt regarding the. deep seabeds we
stated: "An effective and equitable regime must protect
not only the interests of the developing countries but
also those of the developed countries by establishing
reasonable and secure investment conditions for their
nationals who will invest their capital and technology
in the deep seabeds. In order to provide the necessary
protections for all nations with important interests in
,the area, it is also necessary to establish a system of
23-317 0 - 73 - 3
PAGENO="0034"
28
-8-
decision making which takes this into account and pro-
vides for compulsory settlement of disputes. We do not
regard these objectives as inconsistent with the desire
of other countries for equitable participation in deep
seabed exploitation and its benefits."
For some time our experts have been engaged in a
study of the economic implications of deep seabed mining
legislation such as last session's S.2801 and the current
session's H.R. 9. They are examining issues of resource
management and development, as well as questions of po-
litical economy such as the design of arrangements to
ensure efficient exploitation of ocean resources. Impli-
cations for tax, customs and development finance policies
are also under review.
The technology of ocean bed mining is likely to develop
rapidly, and new information continually challenges old
hypotheses. It is therefore impossible to be definitive.
Nevertheless, at this time we are prepared to give you a
comprehensive but as yet still incomplete report of the
Administrations' views on certain technical aspects of
H.R. 9, particularly those related to resource management
and development.
In reporting to you that the Administration is opposed
to the enactment of H.R. 9, we want to make clear that
this does not mean we are unalterably opposed to legisla-
tion of any sort, or that we intend to disregard the prob-
lem of interim mining. Any of a number of events could
occur that would lead us to conclude that legislation
was necessary, and we intend to prepare as quickly as
possible for that contingency. Moreover, we wish to
repeat that we continue to adhere to the President's
statement that it is neither necessary nor desirable to
try to halt exploration and exploitation of the seabeds
beyond a depth of 200 meters during the negotiating pro-
cess, provided that such activities are subject to the
international regime to be agreed upon, which should
include due protection of the integrity of investment
made in the interim period. Our opposition to H.R. 9
in no wa~ alters this.
We are deeply conscious of the fact that no decision
we could have reached on this issue at this time could
have been universally popular. Some who support the
PAGENO="0035"
29
-9-
moratorium may not agree with the policy we have set
forth. Some who support the approach in H.R. 9 may be
equally disappointed. For the present, we -think the
middle course we have outlined is best. We hope the
Committee will agree. However, we fully understand
that the Committee, like the Administration, may wish
to pay close and continuing attention to developments
that could alter this assesSment. We pledge our full
cooperation with the Committee in those efforts.
The Office of Management and Budget advises that
from the standpoint of the Administration's program
there is no objection to the submission of this report.
Sincerely, -
~ bi. h~'~
Charles N. Brower
Acting Legal Adviser and
Acting Chairman, Inter-Agency
Task Force on the Law of the Sea
PAGENO="0036"
30
APPENDIX
By
Le.igh~S.. Ratiner ..
- * Director for Ocean Resources
Department of the Interior * -
on Behalf of the Interagency Task For~ŕe
on the Law of the Sea
This appendix is designed to supplement Mr. Brower's
report of this date on behalf of the Executive, Branch on H.R. 9.
In connection with the submission of its views on H.R. 9,
the Administration has made a comprehensive, but as ~yet in-
complete, review of its ocean mining resource policy and the
*relationship of that policy to the Law of the Sea Conference.
In order to better create a framework for judging the merits
of H.R. 9, we believe it~is important to present relevant por-
tions of such a review and to be fully responsive to the
Committee's interest in this subject. .
Several events have occurred in the past several months
which enable us now to state a more comprehensive view of
H.R. 9. First, the United Nations General Assembly has fixed
a schedule for a Law of the Sea Conference. We are hopeful
that schedule will be met and we have planned our future.
actions on the assumption that it will be met. Second, we
have conducted consultations with those in United States
industry who have an immediate and substantial interest in the
commencement of deep ocean mining. This has been an important
learning process for those of us in the Administration con-
cerned with mineral resource development. We are, after all,
considering the establishment of a fundamentally new
metals industry based on untried tec~.no1o~y and requiring
PAGENO="0037"
31
-2 -
large amounts of capital. If this industry succeeds, it
will be an important source of such primary metals as nickel,
copper, manganese and cobalt whicth are now imported. Third,
we have consulted with other nations interested in deep ocean
mining, and have discussed the degree of encouragement they
are giving or may give their industries pending a timely
and successful conference.
Seen from the point of view of an industrialized country,
the quest for energy and mineral resources is of great
importance. Oil, gas, nickel and copper are commodities so
basic to the continuous functioning of our society as we know
it that it would be difficult~ to describe the state of
affairs which would exist in bur society and in other similarly
situated societies were these commodities to be in short
supply or obtainable only at substantially higher prices.
The Law of the Sea Conference gives us an opportunity to
participate in the creation of a new legal order which would
give greater assurance to the Unitea States of the continuing
availability of such seabed mineral resources. In the
Conference, for example, we are prepared to agree that coastal
states can exercise Virtually exclusive management jurisdiction
over seabed mineral resources~adjacent to their coasts in a
wide area, if, among other things, they agree to international
standards to protect the integrity of foreign investment in
PAGENO="0038"
32
-3-
that area, to avoid interference with other uses of the marine
environment, to protect the ocean from pollution, to ensure
some sharing of revenue from the area for international purposes,
and to accept a procedure for peaceful and compulsory settle-
ment of disputes. If they do agree, one can see that as the
growth of the offshore-oil industry accelerates, our sources
of supply will become more diversified and our sense of security
as to the availability of those supplies will be enhanced,
although of course coastal states will determine whether, by
whom and' under what conditions such exploitation can take place.
Without a Law of the Sea Conference, we might either lose the
opportunity to gain stable and reliable in"estment conditions
with respect to that oil or risk conflict and dispute in defense
of our own juridical position as to the legal validity of
other countries' claims to the continental margin.
The area lying seaward of the continental margin,
generally referred to as the deep seabed, is known to be rich
in other mineral resources. For the moment very little is known
about the subsurface potential of the deep seabed. With
respect to the surface of the seabed, however,* we know that
extensive deposits of manganese nodules containing over 20
metallic elements are abundant. Principal metallic elements
of interest* are nickel and copper. Cobalt and manganese are
also important components of manganese nodules, but are
currently of less economic interest.
PAGENO="0039"
33
According to the Department of the Interior's figures,
the total cost of importing these four metals in 1970 was
almost $600 million. In that year we imported 85.7 percent
of our manganese consumption at a cost of nearly $66 million;
92 percent of our cobalt at a cost of $26.5 million; and the
equivalent of 100 percent of our primary nickel' consumption
at a cost of $426.5 million. Our net imports of copper in
1970 equaled only 6 percent of our primary consumption at a
cost of approximately $71 million. It is possible that copper
imports may rise gradually as the grade of our domestic ores
decreases in the future and the cost of exploiting them
increases.
American mining companiesHat present are considering
production rates of about 1 to, 3 million 1~ons of manganese
nodules per company per year.~ Based on our understanding of
an average ore grade.. for mineable nodules which can be inferred
from public statements by industry spokesmen, we can assume that
potentially mineable nodules will contain at least 25 percent
manganese, 1.25 percent nickel:, 1 percent copper and 0.22 percent
cobalt. On the basis of our present knowledge, it appears that
in the early years after production begins there will be two 3
million tons per year production units and one 1 million ton
per year production unit insofar as American industry is
concerned.
PAGENO="0040"
34
- -5-
In order to illustrate the relationship which manganese
nodule production will have to the U.S. demand for the con-
stituent metals as well as the level of our import~ we have
selected 1975 as an arbitrary date for the figures which
follow. It should be emphasized that 1975 is not the date
we expect deep sea mining of this magnitude to occur.
If the three production units referred to above were
recovering 100 percent of the metal in manganese nodules --
in fact, slightly less than 100 percent will be recovered --
nickel production would equal approximately 48 percent of
projected U.S. primary nickel demand for 1975 and approximately 53
percent of our projected imports for 1975. Manganese would
produce 12 percent of our estimated demand for 1975 and this
would account for 12 percent of our imports. Copper would
produce approximately 3 percent of our estimated demand for
1975 and this would account for approximately 41 percent of
our projected imports. The situation with cobalt is substan-
tially different. Deep sea production would equal 228 percent
of our estimated demand and this would account for 296 percent
of our projected imports in 1975.
The economics of nickel marketing will largely determine
,the economic future of all new ocean mining ventures. Copper
production from nodules will be an important source of revenue
to the producing firm, or firms, but only a small addition to
world copper production. Cobalt is an important strategic
PAGENO="0041"
~35
-6-
metal, but not used in large coinmerical quantities. The
availability of a new and low-áost source of cobalt may increase
its use, especially to the extent that it can be used in place
of or in combination with nickel, but it cannot assume the
initially critical role of nickel in limiting the size of a
marine mining industry. With respect to manganese, we do not
have sufficient information at~this time as to the potential
market for the high purity manganese which would result from
the refining of manganese nodules in some metallurgical
processes.
Although detailed information remains proprietary, it is
generally accepted that two types of hydrometallurgical
processes are currently being tested by prospective U.S.
nodule miners. One would produce manganese, copper, cobalt
and nickel, while the other would produce nickel, copper and
cobalt. A minimum production unit of 1 million dry tons of
nodules per year appears to be necessary for the four metal
process, but 3 million tons per year may be minimal for the
three metal process. These production unit sizes have been
identified by industry through a combination of future market
evaluations, design of optimal~ mining and extractive metal-
lurgical systems and estimation of total system costs.
The foregoing represents a brief preliminary economic
analysis of the importance of deep ocean mining. In
order to illustrate these points in a more detailed fashion,
PAGENO="0042"
36
we have prepared a hypothetical schedule for nodule mining
which is attached. Such a schedule demonstrates why nickel
ma~rkets will. govern, the : first. years ..ŕ~ .gr~wth .fo~ the .deip
sea mining industry. . . . . . . . -
Itis clear that mineral resources of the ocean bottoms
are of considerable importance to the United States, not only
for the potential they offer of a secure source of metals
necessary for our economic prosperity, but also for the
accompanying benefits ~ our balance of payments position.
Accordingly, it is the Administration's policy to follow
a course of action which will assure that these minerals are
available for the future to American consumers and to United
States industry. To safisfy this policy the arrangements
for seabed mining must guarantee that (1) American companies
are entitled to mine these minerals under conditions which
assure a stable, secure, and fair' investment climate; (2) the
environment is protected from degradation, and (3) the public
is assured a fair return for the disposition of such mineral'
resources. .
These considerations alone may not denonstrate a need
for urgency with respect to the development of the deep' seabeds;
however, other factors do create a degree cf urgency. These
involve our lead in prospecting, technology, and marketing, as
well as the need to maintain industry initiative and momentum
and the need to er.courace ~ioneering industrial activity
PAGENO="0043"
37
-8-
which may give rise eventually to even greater mineral
resources benefits in the oceans.
It is in the nature of our society and our economic system
that the market place and potential for profit making stimulate
technological initiative. We in the Government do not decide
that a particular mineral resource is worth developing for
our future needs and then develop the resource ourselves.
Neither do we give direct subsidies to our mining industry
so as to encourage them to enter a business which they have
not deemed profitable. On the contrary, when industry finds
that a market either exists or can be developed for a new
product and that the market is sufficiently large to justify
major investments with reasonable anticipation of profit,
new technology is found and new resources are then developed.
The public is clearly the beneficiary of this process. To keep
this process going, however, Government must assure that it does
not take actions which hamper this kind of industrial
initiative with the attendant risk that the technology will
never be developed or may be developed too late to be
economically competitive.
Ocean mining is a very good example of this process.
Existence of manganese nodules on the deep ocean bottoms has
been known for over 100 years. No nation, including others
who like ourselves depend substantially on nickel and copper,
PAGENO="0044"
38
-9-
has developed this resource. Neither capital nor technology
was put into this resource until about 10 years ago when
as a result of industry initiative the opportunity to develop
and market the resource profitably was seized upon. Only then did
the period of research, technology development and preliminary
prospecting begin. Public reports of the amounts expended
by three American companies so far indicate that approximately
$90 million have already been invested to bring this new
industry into being. In short, the initiative has been
taken and the technology is being developed.
The technology which is currently being developed for
nodule mining is extremely sophisticated and expensive. The
oceanographic ship and its equipment used in the prospecting
phase alone can cost $l,500-$4,000 per day, while the costs
jump to $2,500-$5,000 per day when more intensive exploration
work begins. Shipboard equipment must include highly complex
devices for acoustical, optical and magnetic observation,
together with grab samplers, prospecting dredges, and box and
piston corers for sampling.
To our knowledge, there are three types of mining systems
presently being considered for manganese nodule. mining:
(a) Continuous path dredging involves a suspended
conduit that connects a dredge head and the ship, which
transverses the mine site, collecting ore over a certain
sweep width.
PAGENO="0045"
39
-10-S
(b) Fixed area dredging is conducted by a collecting
device whose central portion remains stationary on the ocean
bottom until ore lying within the radius of the sweeping
device has been collected. During the process, the surface
ship or platform r~rnains stationary above.
(c) Continuous line bucket dredging involves a long
continuous rope tO whichare attached dredge buckets. As
the ship moves sideways, the loop of dredge buckets is dragged
across the ocean bottom, scooping up ore.
Pilot tests of the continuous path dredging system and the
continuous line bucket system have been conducted, but
few of the results have been publicly released. The technologi-
cal sophistication of all these mining devices will make
them both expensive and design-sensitive to particular types
of nodule. deposits and surrounding topography.
Several metallurgical processes have been experimentally
tried in the winning of metals from manganese nodules. To
our knowledge, only hydrometall~urgjca.l techniques are presently
being considered for commerical processing. The metallurgical
process is specifically sensitive to such factors as the
physical characteristics of the nodules, their iron content,
trace metal content, assay or grade and detrital materials.
Our consultations with industry have highlighted this critical
aspect of nodule mining -- the degree to which both equipment
development and type of metallurgical process are dependent
upon definite knowledge of the mine site to be exploited.
PAGENO="0046"
-11-
40
From what we know, our technology, both in the systems
which must be used to mine in approximately 15,000 feet of
water where these nodules are found and in the metallurgical
processes which must be used to win the metals, is advanced
beyond the other two countries, Japan and Germany, who have
also shown an immediate interest in deep sea mining. Never-
theless, our technological lead is fragile. If others exploit
manganese nodules before we do and obtain an important
marketing
least for
Moreover,
to engage in joint ventures under the flags of other couhtries.
This would decrease the possibility th~at manganese nodule
mining would become a new United States industry.
It is, therefore, encumbent upon us to assure that
corporate initiative and technological achievement are not
stifled by our own actions. Indeed, it is important that
corporate initiative be encouraged. If it is, we may begin
to see production from ocean nodules as early as 1976 and
substantial comme~ical production underway not later than
1980.
It has been argued that since we possess the technology
and capital to mine manganese nodules and since we and a few
advantage, the resource will be developed but, at
some time to come, we will still be importing it.
we may see our companies flee the United States
/
PAGENO="0047"
41
-12-
Other industrialized countries are the principal world
consumers of the metals contained in these nodules, our
policy should reflect those facts exclusively, and we should
move promptly to encourage our industry to enter the deve~lopment
phase. The freedom of the seas would permit American
companies to mine this resource today, although there could
be no legal assurance that other countries would respect all
the rights and other elements necessary for a secure investment
climate.
The Government must proteót a variety of important interests
in the development of ocean law including our mineral resource
interests. We believe that only through a successful Law of
the Sea Conference will the world achieve harmony and stability
in the many new and varied uses of ocean space, including
deep sea mining, which are developing right now. Haphazard
development of international law in this area may not adequately
protect our own or any other country's interests in navigati~on,
pollution control, freedom of scientific research and the
rational development of both living and mineral resources of
the ocean and seabeds. To do this, the Conference cannot be
regarded as a mechanism for confirming a patchwork of unilateral
actions, but must achieve a rational solution of the underlying
problems. The chances of doing this decrease as unilateral
actions proliferate', and particularly as coastal State claims
of jurisdiction far into the- sea increase. It is not our
PAGENO="0048"
42
-13-
intention to regard unilateral actions by others as pre-
determining the outcome of the Conference and, so long as there
is reason to believe that most Conference participants
share this view, we should act accordingly.
A Law of the Sea Conference, in order to be successful,
must be timely. Mr. Brower has indicated that we could not
regard a Conference as timley if it wou~ld not meet the
schedule set out in General Assembly Resoltuion 3029 (XXVII).
On August 10, 1972, the Chairman of the United States Delegation
to the United Nations Seabed Committee stated: "1 cannot stress
too strongly that none of us can or should stop technology and
its use." It is our judgment that if this Conference schedule is
met, it will be possible for the Conference to establish an
international system without determining corporate initiatives and
technological achievements. If it is not, met, alternatives would
be necessary.
After extensive consultations with industry and, in some
cases, careful examination of their plans and achievements to
date, we have reached the conclusion that one element overrides
all others in corporate planning -- and it is precisely this
consideration which has given rise to a bill like H.R. 9. The
element I refer to is the willingness of the U.S. to engage in
international negotiations with respect to deep seabed mineral
resources, indicating a readiness to alter the freedom of the
PAGENO="0049"
43
-14-
seas principal insofar as it~affects mining of seabed resources.
Thus, the legal order upon which the investments would be made
now may well be different from a still unknown legal order
which might come into play at the time actual mining is
under~~y~. Not only `might the new legal order directly affect
the industry's investment by not recognizing its claims to
exclusive mining rights over areas being cornmerically exploited,
but.it might also affect that investment indirectly by imposing
regulations that significantly alter the economics of production.
If it were possible to ameliorate industry's concern that
the negotiations may significantly jeopardize the integrity
of these investments, we would expect that industry would continue
its quest for this new mineral resource. Indeed it is this
state of affairs which we believe is the factor most
likely to deter corporate intiatives and challenge industry's
ability to maintain the momentum of technological development
and capital investment. We do not want this to
occur. This is one reason why we attach such importance to
adherence to the schedule for the Conference and to early
evidence in the Seabed Committee of adequate support for the
provisional application of the international regime from the
time the Conference ends, of course as part of a Law of the
Sea treaty settlement that accommodates all of our basic interests.
Slippage on either of these points could necessitate a treaty
article providing for protection of the integrity of deep seabed
investments made before the end of the Conference, and require
23-317 0 - 73 - 4
PAGENO="0050"
44
-15-
alternative approaches, possibly including some type of
interim legislation.
Reasonable prospects for~the success of the Law of the Sea
Conference must also exist in order to justify reliance on
this schedule. Mr. Brower has defined what we mean by the
term successful. 1f a month from now or a year from now
success, as he defined it, appears unlikely, it would also
appear counter-productive to run any risk of delay in ocean
mining intiativeS.
During our consultations with representatives of the
industry, the question of security of tenure has repeatedly
been emphasized. The merits of the industry's desire for secure
tenure to a mine site should be viewed-from the perspective
of their financing requirements. It may be that the risk
of interference with a mining operation through claim-jumping
is relatively low in the light of both the high investment
costs associated with this enterprise and the necessity for
designing mining equipment and processing plants specifically
tailored to a particular location. Nevertheless, the industry
has continually maintained that in order to óbtain capital
from financial institutions, they must be able to
demonstrate that they have acquired exclusive rights to the ore
body upon which their investment is based.
H.R. 9 reflects industry's concerns in these respects but
also goes far beyond them. As a general proposition, H.R. 9,
if passo~1, put the U.S. Governent in the business of
PAGENO="0051"
45
-16-
regulating deep seabed mineral resource development and of
encouraging other industrialized countries to join us in that
venture. Should we engage in such an action, it would be
the functional equivalent of pre-empting the Law of the Sea
Conference on this issue. We do not believe that language to
the contrary in Section lOa of H.R. 9 would avoid this problem.
The international reaction might well be severe and any hope
we and many other countries have for creating a stable
and rational legal order for the development of ocean mineral
resources and other ocean uses could be destroyed. Some nations
that do not wish to negotiate the substance of their unilateral
claims could more easily achieve their objectives while arguing
that it is the U.S. that bears full responsibility for disrupting
the negotiations.
The U.S. has committed itself to the proposition that the
regu.lations and use of deep ocean mineral resources should be
accomplished under an international agreement which in particular
would be of benefit to the developing countries. This result
would be rendered largely impossible if H.R. 9 were passed and
seabed mining commenced pursuant to its terms. The Bill would
establish the size of blocks which would be exploited, the length
of time the miners could occupy their blocks, the fees which they
would pay and the international procedure which would accord them
exclusive legal rights. We believe these are the kinds of.
things which the world needs to establish by international
agreement for the future development of seabed resources, and
PAGENO="0052"
46
-17-
which the United States does not need to do today. As I have
previously pointed out, in our view, what the mining industry
really needs now is some assurance that their continuing investments
will not be jeopardized by a new treaty.
Putting to one side the fact that H.R. 9 is defective
because it would have the effect of establishing a relatively
permanent regime for deep sea mining, I may also say that I
believe many of its specific provisions are premature. Several of
them are sImilar to ones proposed in the U.S. Draft Convention
on the International Seabed Area, and while they were carefully
drawn on the basis of the best information available to serve as
a starting point for negotiation, we recognize that they are
subject to modification in the light of new knowledge and the
international negotiations. As yet, provisions such as those
relating to subsurface mining, block size and length of tenure,
and work requirements and their magnitude have been little discussed
by the U.N. Seabeds Committee because attention has focused on
larger issues. Hence,we have little feel for the negotiability
of such terms to other nations in the light of their own
knowledge of the seabed and their own convictions with respect to
a minerals allocation and management system. To adopt such terms ir~
advance of such discussions might well prejudice our negoti~ting
position and lead to later adoption of a much different system
that would be difficult for us to adjust to or accept.
PAGENO="0053"
47
During the past year we hav~ redoubled our e~forts to
gather as comprehensive a dat~a base as possible ~n order
to assure that the specific provisions which will i~ltimately.
emerge at the .U .N. Law of the Sea Conference regarding the
resource management system will be sound from a resource
management perspective. We mu~t bear in mind that deep sea
mining is very much a new and untried industry and several
years of development of seabed resources will be required
before definitive decisions can be made with respect to all
of the details of a licensing system. Nevertheless, the information
we expect to obtain in tile very near future is likely to
give us. a fairly firm idea of the kinds of detailed provisions
which will be necessary to assure the resource manager's ob-
jectives. At the present time, however, we would not be prepared
to finalize the specific arrangements which we think should
be applicable to seabed mining. In short, we not only believe that
provisions like those in H.R. .9 would tend to prejudice the detailed
licensing system we wish to negotiate in the Law of the Sea
Conference, but are also premature for now.
In order to make clear the detail and
complexity of the decisions which a resource manager must make,.
I would like to set forth a few examples of areas in which
further information would be useful.
First, Section 2(c) taken together with Section 4(a),
would cause the Secretary of the Interior to issue licenses
PAGENO="0054"
48
-19-
for subsurface blocks of a specific size. Provided certain
minimum annual expenditures were met, the legal rights granted
pursuant to such licenses would be valid as long as commercial
recovery occurred in that block. If it does not occur within
15 years the licensee would simply have occupied that block
for 15 years and all other persons subject to the jurisdiction
of the U.S. would have been precluded from doing so. We have
.concentrated our efforts so far on acquiring maximum
information about manganese nodule deposits rather than on
subsurface mineral deposits because only the former seem
to be economically attractive enough for early exploitation.
Accordingly, we would be most reluctant at this time to formulate
final conclusions about the size of a blank, the length of time -
needed to develop the block, the work requirements, and the
environmental safeguards. Based on our current knowledge of
subsurface mineral resources, the fees and royalities which the
Government would no doubt require would bear no reasonable
relationship to the resource potential or the technology needed
to mine the area.
Section 2(c), taken together with other sections of the
Bill, would establish that surface blocks should be 40,000
square kilometers and that these should be reduced to 10,000
square kilometers not later than the commencement of commercial
recovery or 10 years, whichever occurs first. What this means
is that deep sea miners under H.R. 9 would have 10 years to explore
a 40,000 square kilometer block and the right to exploit the
PAGENO="0055"
-20-
resources of a 10,000 square kilometer area for as long as they
wish, provided minerals are recovered at a substantial rate of
production for the primary purpose of marketing or commercial
use. I should point out, Mr. Chairman, that the U.S. draft
seabeds treaty presented to the U.N. used the same figures.
We used those figures, however, for the sake of discussion and have
continued to study new information regarding the technology of
*~ep se~ mining.
Determination of a proper block size and the number of
blocks of any given size which would be awarded to a single
company is a complex decision.
Without going into great d~tail, it may be useful for
the Committee to be aware of some of the variables which
enter into such a determination. One should know much about the
ore concentration and ore grade and its geographic and geological
distribution, the efficiency of the mining recovery system,
particularly the actual collection device, and the efficiency with
which that device can sweep the bottom. All of these factors are
directly related to the amount of production which a particular
company wishes to achieve, that is, for reasons of either
economy or size of production~ plant, companies may wish to
produce anywhere from 1 to 3 million or more tons of nodules
per year. We have been gathering a considerable amount
of information pertaining to these factors. There is at
this stage no reason to change our earlier view that
block sizes should be in the ńéighborhood of 40,000
PAGENO="0056"
50
-21-
square kilometers for the exploration phase with rnanda-
tory reduction to 10,000 square kilometers when exploitation
begins. We wish, however, to continue our information
gathering and analysis before taking a definitive view
on this very critical aspect of a leasing system, particularly
in order to assure that determination of block sizes cannot
be used as a device for discrimination between companies.
Our role in resource management is to assure sufficient
rewards to private industry from resource exploitation so as to
encourage the development of the resource. We should not,
however, permit the exploitation of the resource to result in
windfall rewards. The bulk of the rewards should be preserved to
the public. The public's overall interest in sound conservation
practices in developing the resources, sound environmental
practice, fostering economic competition, assuring the
availability of the resource as it is needed by the Amexican
consumer and obtaining revenues dictate that the rules and
regulations for exploitation be carefully considered. Determination
of the appropriate duration of a lease, the terms governing a
lease, the size of the area mined, the methods used for mining
it, the environmental effects of mining the ocean and processing
on land, the financial burden which can be legitimately imposed
on the miner to maximize revenues to the treasury all require
that more information be available from industry. H.R. 9 reflects
industry desires as to the details of a legal regime. The
Government, however, will need additional time and further
PAGENO="0057"
51
-22-
consultations with industry before it is in a position to
finalize its views.
To take another example, we have similar Concerns with
Section 7 of H.R. 9 which establishes the minimal annual
expenditures which a licensee must make prior to achieving
commerical recovery. The function of these expenditures, of
course, is to ensure against speculative holding. Under H.R. 9
a company would need to spend $6,150,000 in order to hold a
block for 15 years. Our preliminary understanding of the
costs of exploration indicate that a reasonably diligent mining
company would have to spend between $3,000,000 and $6,000,000
for the costs of on-site operations alone before achieving
commerical recovery. Moreover, during the detailed exploration
phase such a company would have to invest at
least another $250,000,000 in order to assure itself that when
commerical production commenced it had a production plant which
would process the nodules and prepare them for the market place.
Estimates vary widely as to the total cost of bringing manganese
nodule production units into being. Such estimates vary
between $250-400 million. Further analysis of the costs
of operation and production will need to be accomplished
in order to determine an appropriate relationship.between
these costs and necessary work~requirements. We are not
yet certain as to what minimum annual expenditur~s would
be reasonable for this new and untried venture.
PAGENO="0058"
52
-23-.
Still another example involves the time pei~iod available
to bring an area into commercial production. H.R. 9 allows.. *
15 years under Section 4(c) from the time the miner first receives
exclusive exploration rights until he must be in commercial
production. On the one hand we would want production to
occur sufficiently rapidly so as to minimize the tiMe period which
any single company may have to exclusively occupy a mine site
and on the other, the miner must have a long enough period to
prove out his equipment and complete his detailed exploration.
Further, he should have some leeway as to the precise year when
market conditions would optimize sale of his product and not be
forced into production in a year when the market is already
saturated.
One of our objectives is the deve1opi~.nt of a deep sea
mining industry based in the United States. H.R. 9 would force
the U.S. Government to respect licenses granted to American
companies, or their subsidiaries by any foreign country that
qualifies as a "reciprocating state'T under section 2(i).
I have only chosen to comment on certain
aspects of H.R. 9 at this time and not to ~evelop compre-
hensively our comments on the specifics of this Bill
since our fundamental objection to it is tlat it would appear to
establish a complete regulatory scheme for deep sea mining by. the
U.S. in contravention of our efforts in the United Nations.
PAGENO="0059"
53
Mr. Brower, in his report, stated that we will begin
immediately to explore alternative approaches to that contained
*,in Ili~.. 9. ~ .wi~iich.:
* Our: contingency. efforts should be directed.
The first would be an assessment, which we do not now make,
that neither a timely nor successful conclusion of the Law of the
Sea Conference was possible. From a resource management perspective,
legislation which might be designed for such a contingency
should assure that:
1. Mineral resource development occurs at an
economically efficient rate. .
2.. It occurs under rational rules, and regulations.
3. Mineral resource development occurs in an environ-
ment sufficiently competitive to ensure that t~he
bulk of economic rewards are passed through to the
consumer and the general public.
4. Conditions under which development occurs are
consistent with the U.S. need for a secure resource
base.
5. Mineral resource development is consistent with
our concerns for the ocean envirQnment.
Under present international law and without the passage of
legislation, the U.S. Government would apparently have little or
no control whatever over deep sea mining beyond our territorial
sea and cO~tic~cu~ :o~. *
PAGENO="0060"
54
In essence, then, legislation designed for such a contingency should
ta.ke the form of re~uration ~ d~velójment. In view.
of the many unknown factors with respect to deep sea mining, such
legislation, if enacted now, would have to. allow for considerable
discretion to the resource manager. Moreover, it would have to
provide for very substantial data turnover requirements, since
the sole source of information about the mineral resource,
topography, mining recovery system and metallurgy would be the
industry. .
It is possible that we would conclude, however, that the
success of a Conference as Mr.. Brower defined it is unpredictable
but that a timely Conference, includin~ the timely provisional
entry into force of the international regime, is impossible. To
provide for such a situation we might consider various mechanisms,
including possible alternative legislative approaches which
might provide companies with a more secure basis for investment
decisions. Such alternatives, however, would need to be fully
discussed with other interested nations.
For the period following the conclusion of a successful Law
of the Sea Conference, and before the treaty comes into force,
a different kind of bill might have to be drafted. For example,
legislation may be necessary to ensure U.S. participation in an
adequate provisional system, since that system would have to
~ of
PAGENO="0061"
55
We have attempted to present: to the
Committee as comprehensive an explanation as possi1~ of the
Aclminlstratiou's views with r~sp~ct to the new enterp~-Ise
of deep sea mining. W~are seriously committed to the develop-
ment of this resource and fully appreciate the concerns of
industry which have been manifested in the introducjion of
H.R. 9. I hope that the Committee will agree withus, however,
that H.R. 9 is not the best way of achieving industry's objectives
consistent with our overall national policy aims.
Our efforts to encourage the development-of a new
resource that is potentially of great benefit to the United
States economy must betempereá by equally important con-
siderations revolving around the complex international
negotiation which the Law of the Sea Conference has become.
Therefore, we will commence promptly to prepare alternative
approaches, including legislation designed to meet the
contingencies which Mr. Brower has previously described and
upon which I have elaborated. .~We will do so vigorously, but
with the clear understanding that it will, be necessary to
closely review the progress of the law of the sea negotiations
in order to effectively 000rdinate our efforts.
PAGENO="0062"
56
-Z7-
We will only be successful in this task, however, if we
continue our close cooperation. and consultat~on. with all. of
U. s;.córnpanies inv~1ved so as to ~eco~e tho~oughly
* fŕmillar wi the technical and economic details of their
prop~se~ operations.
The Office of Management and Budget advises that there
is no objection to the submission of this supplemental report
from the point of view of the administration's program.
PAGENO="0063"
57
Attachment
HYPOTHETICAL MARKETING SITUATION FOR NICKt~L
:~`."`~.~`t'.. ~ `*~`.~"` ~
* potentialimportance bf manganese-nodul~ nickel to world
con,s~u1nption of nickel in the foreseeable future; second, to
indicate the critical nature of nickel marketing to the
profitability of deep sea mining activity; and third, to
demonstrate the likely effect which manganese nodule production
will have in the foreseeable future on the markets for principal
components of manganese nodules other than nickel.
Copper, nickel, cobalt and manganese are the, tour metals
of primary commercial interest in ferromanganese nodules.
Although detailed information remains proprietary, it is
generally accepted that two types of hydrometallurgical
processes are currently being tested by prospective U.S.
nodule miners. One would produce manganese, copper, cobalt
and nickel, while the other would produce only th~c~e metals,
excluding manganese.
A minimum production unit ŕf one million dry tons of nodules
per year appears to he r.ecessary for the four rnet~1 process,
but the three metal process may require three million tons per
year. These production unit sizes have been identified through
consideration of the design of optimal mining and ~xtractive~
metallurgical systems, estimates of total system casts and
future market evaluations.
PAGENO="0064"
58
-2-
Currently, three U.S. firms are conducting serious research
efforts in marine mining and nodule refining techniques. We
can assume that one company will use a four metal refining
process (producing one million tons of dry nodules per year)
and that two will use a three metal process (producing three
million tons per year). Assuming that all three cc$mpanies are
in commercial production by 1978, the potential importance of
this hypothetical first generation industry to th~ world nickel
market can be demonstrated f Table 1].
Our present understanding of marine miners' plans indicates
that they will produce either three or four metals concurrently.
Future metallurgical developments may enable the axtraction on
an economic scale of only the more valuable copper and nickel
content of nodules. For the present, however, us~ of these
techniques would require marketing of either thre~ or
four of the metal components. If one of these metals faces a
difficult market situation and is an important source of revenue,
the entire production process must be geared to market oppor-
tunities for that metal. Since nickel represents such a
significant share of the gross value of marine mining production,
and since its market opportunities may be restricted during the
early phases of deep sea mining development by both the size
and nature of nickel markets, it may be concluded that - -
nickel will be the limiting factor on the growth cf amarine
mining industry for the foreseeable future. -
PAGENO="0065"
59
-3-
TABLE 1
Relationship of Potential Marine Production
to World Nickel Demand
1978 21
World demand for nickel
(assuming 2.4% growth rate)Y 1,840.2 million lbs.
(assuming 6.0% growth rate)~/ 2,426.2 million lbs.
Nickel production from 3-firm
industry (7 million tons/yr) 175 million lbs.~
Marine nickel production as % of
1978 world demand
(assuming 2.4% growth rate) 9.5 %
(assuming 6.0% growth rate) 7.2 %
1/ This date was arbitrarily selected as representing a year
when it can be assumed, based on the present state of deep
sea mining technology, that~ the three U.S. companies
possessing a lead in marine mining technology will be in
commercial production.
2/ Bureau of Mines projected rate of growth for total world
nickel demand.
3/ Other sources, including industry spokesmen and the UN
Secretary-Genera],, project the rate of growth in nickel
demand to be around 6%.
4/ From public statements of industry spokesmen, we have
concluded that manganese nodules of current commercial
interest will average 25% manganese, 1.25%
nickel, 1% copper and .22% cobalt. Assuming these average
ore grades and 100% metal recovery for simplicity, each ton
of dry nodules could conceivably produce 500 lbs. of manganese,
25 lbs. of nickel, 20 lbs. of copper and 4.4 lbs. of cobalt.
23-317 0 - 73 - 5
PAGENO="0066"
60
-4-
Tables 2a and 2b clearly demonstrate the importance of
nickel to the gross revenues of deep sea mining. It is also
obvious that manganese plays a critical role in the economics
of the four metal process.
The Bureau of Mines has estimated, based on known production
capacities and expansion plans announced by mining firms, that
projected world supplies of nickel will approximately meet
demand through the end of this decade. World production will
increase through new developments or expansion of existing
operations in Canada, New Caledonia, the Philippines, Indonesia,
Australia, Brazil, Guatemala, the Dominican Republic and
the USSR. In view of the potential for increased nickel
supplies from deep sea mining, it is not c~rtain that these
expansion plans will in fact be implemented. Table 1
illustrates the possible share of world nickel de~iand which a
hypothetical three-firm industry could meet in 1978.
Capital requirements for a deep sea mining operation are
projected to be very high, and variable costs are as yet unknown.
The important share of nickel in the gross value of production
(Tables 2a and 2b], accompanied by the uncertainty of cost
structures, may support the assumption that the marine mining
industry, at least during its first generation, must be limited
in size in order to avoid generating -any downward pressure on
current nickel prices.
PAGENO="0067"
*Short Tons
1/ While manganese extracted f~rom marine nodules may be produced
in various forms, this analysis assumes that the more valuable
high purity manganese (rather than ~erromanganese) is to be
marketed by the hypothetical four metal producer.
2/ Estimated prices are based on the following projections:
Manganese - Market demand for high purity manganese is low
at its current price of approximately $.30/l}5. Accordingly,
the estimated price in this analysis has been decreased by
50% ($.l5/lb. or $300.00/ton) in order to hypothecate its
marketability when produced on this, scale.
61
-5-.
TABLE 2a
Source of Revenues for Four Metal Producer
Estimated Gross Value
~~put/year Price ~./ (millions)
Mn 250,000 tons* $ 300.00/ton $ 75
Ni 25,000,000 lbs. l.~40/lb . 35
Cu 10,000 tons 1,120.00/ton 11.2
Co 4,400,000 lbs. 1.40/lb 6.2
Total $127.4
TABLE 2b
Source of Revenues for Three Metal Producer
1/
% of Gross
Value
58.8
27.5
8.8
4.9
% of Gross
Value
66.8
21.4
11.8
~~put/year
Ni 75,000,000 lbs.
Cu 30,000 tons
Co 13,200,000 lbs.
Estimated
Price ,?./
$ 1.40/lb
1,120.00/ton
1.40/lb
Total
Gross Value
(millions)
$105.0
33.6
18.5
$157.1
PAGENO="0068"
62
-6-
Nickel - Current nickel prices range from $l.40-1.53/lb.
Since estimated supplies appear adequate for projected nickel
demand, a stability a current price levels can be assumed.
Copper - Copper is priced today at around $.56/lb.
Discounting cyclical price variations, there are no
predictions of significant long-term price fluctuations.
Cobalt - Since market opportunities for marine c&~alt appear
to be limited at current price levels [see Table 4], and since
cobalt is a partial substitute for nickel, it is assumed in
this analysis that the price of cobalt will become identical
to that of nickel.
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-7-
If they were to operate in a stable nickel market without
creating downward pressure on prices, deep sea miners would
have to match their output to the projected growth in world
nickel demand. Table 3 illustrates the relationship of nickel
produced from marine mining to the potential growth in world
demand for nickel from 19s15 to 1980. (Table 3)
While the size of the projected nickel market in relation-
ship to marine nickel output could conceivably limit the growth
of a deep sea mining industry, the nature of traditional nickel
markets may also present a problem for the deep sea miner who
seeks to enter them.
It should be noted that the geographic diversity in nickel
production is not matched by corporate diversity. One major
producer with subsidiaries and affiliates usually accounts for
over 50 percent of free world production. In comparison, U.S.
primary producers account for~only 3 percent of free world
nickel production. The domination of nickel markets by only a
few producers indicates that competition -- even for the growth
segment of future demand -- may be substantial for deep sea
nickel. There can be no assurance that dominant existing
producers will not adopt defensive marketing tactics in order
to contest competition by deep sea mining.
PAGENO="0070"
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-8--
The preceding analysis is realistic only on the assumption
that current price levels of nickel must be maintained if the
deep sea miner is to operate profitably. The crux of the -
problem is production costs. With no history of operation,
and no large scale pilot projects tested, it is difficult to
assess the extent to which marine mining can supplant high cost*
terrestrial nickel. If it becomes apparent that marine mining
costs are substantially lower than that of land-based producers,
it may be realistic to assume that marine miners will not limit
their competitive efforts to fulfilling only the growth in
nickel markets, but may compete in existing markets.
PAGENO="0071"
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-9-
Table 3
Growth Segment of Projected World Nickel Demand
(million pounds)
Assuming a 2.4% growth rate:
Hypothetical
Estimated Potential Number Additional
World Market of Firms Marine
Nickel Growth Beginning Nickel
Demand During Year Production Output
1975 1713.9 41.1
1976 1775.0 42.1
1977 1797.1 43.1 1'
1978 1840.2 44.2 3 175
1979 1884.4 45.2 1 -` 75
1980 1929.6 46.3 1 75
Assuming a 6.0% growth rate:
Hypothetical
Estimated Potential Number Additional
World Market of Firms Marine
Nickel Growth Beginning Nickel
Demand Duri~g~Year Production Output
1975 2037.1 122.2
1976 2159.3 129.6
1977 2288.9 l37.3~
1978 2426.2 145.6 3 -I 175
1979 2571.8 154.3 2 Y 150
1980 2726.1 l63.& 2 150
1/ The hypothetical three firm industry used in Table 1.
2/ If a 2.4% rate of growth is assumed, the nickel output of
one 3 million ton/year site would be in excess of growth
segment.
3/ If a 6% growth rate is assumed, it is possible that two
three million ton/year operations could commence production
in 1979.
PAGENO="0072"
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-10-
With respect to the other metal components which are won
in presently known metallurgical processes for deep sea
mining, Table 4 illustrates their potential effect on world
markets.
While projected marine copper production would be an important
source of revenue to a hypothetical industry, it would only
account for approximately 0.5 percent of estimated 1978 world demand
and would not be likely to even be a factor in determining world
copper prices (See Table 4). Our present understarviing of the
economics of deep sea mining leads to the inevitable conclusion that
marine copper production will be restricted for the foreseeable
future by the marketability of marine nickel.
The situation with manganese and cobalt markets is sub-
stantially different. We cannot be certain of the effect of
marine manganese production on world markets, since manganese in
high purity form has never been used on such a large scale. To
the extent that industry will use this more versatile form of
manganese as a substitute for cheaper forms, a market will
exist. It is important to note that only one U.S. company of
the three which have publicly discussed their plans, has stated
its intention to extract manganese from deep sea nodules.
PAGENO="0073"
Estimated
1978
World
_Demand
Cu 12,634,100 ST1'
Mn 11,279,800 STa'
Co 61,840,000 lbs.V
Production from
Hypothetical
3-Firm Industry
70,000 ST
250,000 ST
31,000,000 lbs.
Hypothetical
Industry' S
% of 1978
World Demand
55%
2.20%~"
50. 00%
1/ Bureau of Mines estimates growth rate of 4.4%.
2/ Bureau of Mines estimates growth rate of 2.8%.
3/ In all likelihood, manganese produced in the first generation industry will be in high
purity form. Therefore the 2.2% figure for marine mining's share of aggregate world
demand for manganese may not be realistic.
4/ Bureau of Mines estimates growth rate of .8%.
Table 4
Relationship of Deep Sea Mining Production to Other Metal Markets
Growth Segment in World Markets
During:
1978 1979 1980
532,500 ST 55,900 ST 580,400 ST
315,800 ST ~324,700 ST 333,800 ST
494,720 lbs. 498,800 lbs. 502,800 lbs.
PAGENO="0074"
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-12-
AsTable 4 demonstrates, the output of a three-firm
hypothetical industry would represent about 50 percent of
1978 world demand for cobalt. The depressing effect of marine
production on cobalt prices may accordingly be severe. It is
* estimated, however,, that the price of cobalt will not fall
below that of nickel, for which it is a partial substitute.
To the extent that cobalt can be used in place of or in com-
bination with nickel, world `demand may increase.
PAGENO="0075"
69
Statement of the Honorable Charles N. Brower
Acting Legal Adviser, Department of State, and
Acting Chairman, Inter-Agency Task Force
on the Law of the Sea
Subcommittee on O~oanoçgaphy
Committee on Merchant Marine and Fisheries
~U.S. House ot Representatives
March 1, 1973
MR. CHAIRMAN:
I am pleased to be here today to testify on behalf of
the Executive Branch onH.R. 9. Accompanying me are repre~-
sentatives of the Departments of State, Commerce, Defense,
Interior and Treasury. The Committee will recall that in
our letter of May 19, 1972, we stated that the Executive
Branch could not take a position on H.R. 13904 (identical
to H.R. 9) at the time. We noted the connect~.on with the
Law of the Sea preparatory negotiations in the U.N. Seabed
Committee and the 27th United Nations General Assembly.
On September 26, 1972 this Subcommittee was briefed on
developments in the United Nations Seabed Committee this
past summer. At this time we would like to supplement that
with additional information on developments at the 27th
session of the United Nations General Assembly.
By far the most important development was the unanimous
adoption of a Law of the Sea Conference Resolution. This
PAGENO="0076"
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-2-
resolution establishes a schedule for the Law of the Sea
Conference and preparatory negotiations. Preparatory work in the
UN Seabed Committee will be intensified in 1973, with provision
for a 5 week session beginning in early March in New York and
an 8 week session beginning in early July in Geneva. The
Resolution provides for convening a brief organizational session
of the Law of the Sea Conference in New York in November/December
1973, and for convening a second session of the Conference, for
the purpose of dealing with substantive matters, in Santiago,
Chile in April/May 1974. There is also provision for such
subsequent sessions of the Conference, if necessary, as may be
dccidcd by thn Conf3r~nc~ with Lh~ approval of the General Assembly.
In this connection I would note that in the preamble of the
Conference Resolution the General Assembly expresses "the
expectation that the conference may be concluded in 1974 and,
if necessary as may be decided by the conference with the approval
of the General Assembly, at a subsequent session or subse-
quent sessions no later than 1975."
The Resolution also provides for the General Assembly to
review at its 28th session next fall the progress of preparatory
work and, if necessary, to take measures to facilitate completion
of the substantive work for the Conference and any other action it
may deem appropriate. As a strictly legal matter, such a clause
is unnecessary since the General Assembly has this authority in
any event. Its inclusion made it easier to accommodate
concerns about proceeding to a Conference in the absence
PAGENO="0077"
71
..3.
of adequate preparation. Moredver, we and others have made
it clear that we will wish to seek an adjustment in the
schedule in order to ensure that there are more than eight
weeks of work in 1974.
I think it would be fair to say that the present hope of
a large majority of States is that the kind of schedule outlined
in the Conference Resolution can be met. It would equally be
fair to say that this conclusion is necessarily based upon the
expectation of important accomplishments in the preparatory work
of the Seabed Committee in 1973.
As significant as the content of the Conference Resolution
was the fact that it was adopted unanimously. All groups involved
in its negotiation expressed great sensitivity to the concerns of
other States, and great efforts were devoted to arriving at a
resolution which could command not merely a majority or a
2/3 majority, but general support. This augurs well for the
future of Law of the Sea negotiations, since a successful Law of
the Sea Conference will necessarily require a similar attitude
of mutual respect and accommodation.
Although not directly relevant to the legislation before
us, there were other developments in the General Assembly this year
that were less auspicious, and that I should report on. A
deep division of opinion developed regarding a request by certain
land-locked and Shelf-locked states for a study of the implications
for the international seabed area of various proposed limits of
national jurisdiction. It had been our hope that this issue
could be resolved by negotiation and accommodation, but
PAGENO="0078"
72
-4-
unfortunately, such an accommodation did not in fact ocbur
until after a number of close votes and intense debate. The
ultimate result was the adoption of a revision of the land-locked!
shelf-locked study resolution, as well as a companion resolution
introduced by Peru calling for an analysis of the effect of
different limits on coastal states. The U.S. has consistently
supported reasonable requests for studies and information on
Law of the Sea subjects, and in accordance with this policy we
supported both the land-locked/shelf-locked proposal and the
Peruvian proposal.
One other significant development at this General Assembly,
fortunately in keeping with the spirit that dominated
the negotiation of the Conference Resolution, was the fact
that no new resolution calling for a moratorium on deep
seabed activities was introduced. While it would not be accurate
to interpret this as an indication that States supporting the
earlier moratorium resolution have changed their opinion,
we believe that the avoidance of a renewed and divisive
debate on this subject was related to the general attempts to
ensure the best possible atmosphere as we enter the final stage
of preparatory work this year. Needless to say, our own opposition
to the moratorium remains unchanged.
Against this background, I would like to turn to the question
of H.R. 9. The considerations expressed in our letter
of May 19, 1972 on H.R. 13904 (identical to S.2801) remain
applicable, and generally set forth the factors affecting
PAGENO="0079"
73
-5-
our approach to H.R. 9. In the time that has elapsed, how-
ever, we have been able to give further consideration to the
matter in the light of international and domestic develop-
merits. We are accordingly ir~a position now to state a more
definitive view on H.R. 9 and interim mining activities.
First, we adhere to the policy on this subject contained
in the President's Oceans Policy Statement of May 23, 1970. We
continue to believe that it is necessary to achieve timely
widespread international agreement on outstanding Law of the
Sea issues in order to save over two-thirds of the~earth's
surface from national conflict and rivalry, protect it from
pollution, and put it to use for the benefit of all. It
remains vital to all our natiOnal interests involved in the
Law of the Sea Conference that the world agree on a treaty that
will properly accommodate the many and varied uses of ocean
space including the seabeds. At the same time we believe
that it is neither necessary nor desirable to try to halt
exploration and exploitation of the seabeds beyond a depth
of 200 meters during the negotiation process, provided that
suchactivities are subject to the international regime to be
agreed upon, which should include due protection of the integrity
of investments made in the interim period.
Second, we believe that there is reason toexpect that the
schedule for the Law of the Sea Conference outlined in the
Conference Resolution just passed by the General Assembly will
be adhered to. As I indicated, the preamble of the Conference
PAGENO="0080"
74
-6-
Resolution expressly states the expectation that the Conference
will complete its work in 1974 or at the very latest in 1975.
Third, we believe that with the Law of the Sea negotiations
moving into a critical stage, it is necessary for States to be
very careful to avoid actions that can have an adverse effect
on the negotiating atmosphere. It is apparent that S.. 2801
(now H.R. 9), independent of the particular content or
merits of the Bill, has become a symbol to many countries of
defiance of the multilateral negotiating process. Regardless
of our views on the intent and effect of the legislation, it
may be argued by others that the legislation is similar to
unilateral claims that we oppose and that are contrary to our
security, navigation and resource interests, and moreover pre-
empt the Law of the Sea Conference on this issue. It is well
known that we have urged legislative restraint on other countries
during the multilateral negotiating process even when they felt
important interests were involved; we believe we should do
the same so long as there are reasonable prospects for a timely
and successful conference.
Fourth, we wish to insure that technology to mine the
seabeds will be developed and that the United States will
be able to look to seabed mineral resources as a new source
of metals which would otherwise have to be imported with
an attendant impact on our balance of payments and other
interests.
PAGENO="0081"
75
-7-
Fifth, we also believe that a secure and stable invest-
ment climate must surround seabed mining activity under any
new legal regime.
Sixth, we want to assure that all seabed mineral re-
source development will be~ compatible with sound environ-
mental practices.
The adoption of. the Conference Resolution indicates that
we should distinguish between two different time periods.
The first is the period between the present time and the con-
clusion of the Conference in 1974 or at the latest rl975.
The second is the period between the end of the Conference
and the entry into force of a treaty.
With respect to the second time period, we believe it
may be desirable for the Law of the Sea Conference to pro-
vide at its conclusion for~ immediate provisional entry
into force of some aspects~of the international seabed
regime. There is an excellent precedent for this in the
Chicago Civil Aviation Convention of 1944, which I might
add is one of the most widely ratified treaties in the
world. This approach can accommodate the fears of many
states that the establishment of an$nterim regime might
still not lead to the establishment of a permanent regime,
since in fact what we would be doing would be to bring
certain parts of the permanent regime and machinery into
operation earlier on a provisional basis. It is our in-
tention to make clear in the international negotiations
23-317 0 - 73 - 6
PAGENO="0082"
76
-8-
the advantages of, and the need for, the entry into force
of a viable provisional international regulatory system
for the deep seabeds as part of the general Law of the
Sea treaty settlement in a way that ensures that the pro-
visional system will be part of, and not a substitute for,
the permanent system.
Mr. Chairman, we will spare no efforts to ensure that a
successful Law of the Sea Conference can be concluded on
schedule. However, this does not mean that we intend
to focus our efforts exclusively on the Law of th~ Sea
negotiations.
Prudence dictates that we also begin at once to formulate
a legislative approach on a contingency basis for two reasons.
First, it could conceivably become clear during the negotiations
that we have no reasonable basis for expecting a timely and
successful Law of the Sea Conference. Second, as I have pre-
viously mentioned, we can prepare for provisional entry into
force of some aspects of the international seabed regime once it
is signed. While the approach in H.R. 9 does not appear to us
to be satisfactory, we intend to continue the useful discussions
we have been having with industry representatives and members of
the public on this issue with a view to formulating such an approach
within the Administration.
Similarly, we have had interesting discussions of this
problem with other nations. In this connection, it must be
PAGENO="0083"
77
-9-
borne in mind that economic as well as political factors make
it necessary that we understand and take into account the
interests and views of other áountries on this subject.
United States companies will not be alone on the deep seabeds,
nor will the United States be the only country affected by
their activities. Thus, we also intend to continue our
consultations with other interested States on this subject,
and in particular with those States whose nationals may in
the foreseeable future be in competition with our own companies.
In this process, we will try to be guided by t~he need to
avoid taking any definitive steps which would make the U.N.
negotiations more difficult for ourselves or other nations,
as well as the need to provide the essential elements of the
financial security which industry considers necessary.
Let me be quite clear about the timing of this course of
action. First, we will commence work on alternative approaches
immediately, and will concentrate on the period between signa-
ture and entry into force of the treaty; second we will want
to make a continuing assessment of the negotiations to deter-
mine if a timely and successful Conference will occur; and
third we will not ask Congress to pass alternative legislation
for the period before the conclusion of the Conference if a
timely and successful Conference is predictable.
Let me also be clear as to what we mean by a "timely and
successful" Conference. We would not regard a Conference as
timely unless the schedule referred to in the preamble of the
PAGENO="0084"
78
-10-
Conference Resolution is adhered to: in other words, a Con-
vention, including arrangements regarding the provisional
application of the international seabeds regime, would be
opened for signature in 1974 or, at the latest, in 1975. In
practical terms, this means not later than the summer of 1975,
since many delegates would have to be present when the U.N.
General Assembly convenes in September.
Similarly, we could no longer regard the likely outcome
of a Conference as successful should it become apparent that
other States are not prepared to accommodate basiq United
States interests in a final Law of the Sea settlement. In
our statement of August 10, 1972, before the U.N. Seabed
Committee, we reiterated what those interests are. With your
permission, I would like to read three paragraphs from that
statement:
"The views of my delegation on non-resource uses have
been clearly stated on a number of occasions. It is our
candid assessment that there is no possibility for agreement
on a breadth of the territorial sea other than 12 nautical
mil~s. The United States and others have also made it clear
that their vital interests require that agreement on a
12-mile territorial sea be coupled with agreement on free
transit of straits used for international navigation and these
remain basic elements of our national policy which we will not
sacrifice. We have, however, made clear that we are prepared
to accommodate coastal State concerns regarding pollution and
PAGENO="0085"
79
-11-
navigational safety in straits and have made proposals to that
effect in Subcommittee II."
"The views of my delegation on resource issues have also
been stated on a number of occasions. Unfortunately, some
delegations appear to have the impression that maritime
countries in general, and the United States in particular,
can be expected to sacrifice in these negotiations basic
elements of their national policy on resources. This is not
true. The reality is that every nation represented here has
basic interests in both resource and non-resource fuses that
require accommodation."
"Accordingly, we believe it is important to dispel
any possible misconceptions that my government would agree
to a monopoly by an international operating agency over deep
seabed exploitation or to any type of economic zone that does
not accommodate basic United States interests with respect to
resources as well as navigation."
I would also like to read another excerpt regarding the
deep seabeds: "An effective and equitable regime must protect
not only the interests of the developing countries but also those
of the developed countries by establishing reasonable and secure
investment conditions for their nationals who will invest their
capital and technology in the deep seabeds. In order to pro-
vide the necessary protections for all nations with important
interests in the area, it is also necessary to establish a
system of decision making which takes this into account and pro-
vides for compulsory settlement-of disputes. We do not regard
PAGENO="0086"
80
-12-
these objectives as inconsistent with the desire of other
countries for equitable participation in deep seabed exploita-
tion and its benefits."
Mr. Chairman, for some time our experts have been engaged
in a study of the economic implications of deep seabed mining
legislation such as last session's S.280l and the current
session's H.R. 9. They are examining issues of resource man-
agement and development, as well as questions of political
economy such as the design of arrangements to ensure efficient
exploitation of ocean resources. Implications fort tax, customs
and development finance policies are also under review.
The technology of ocean bed mining is likely to develop
rapidly, and new information continually challenges old hy-
potheses. It is therefore impossible to be definitive. Never-
theless, at this time we are prepared to give you a comprehensive
but as yet still incomplete report of the Administrations' views
on certain technical aspects of H.R. 9, particularly those re-
lated to resource management and development. -
Thus, Mr. Chairman, in reporting to you that the Adminis-
tration is opposed to the enactment of H.R. 9, I wish to make
clear that this does not mean we are unalterably opposed to
legislation of any sort, or that we intend to disregard the
problem of interim mining. Any of a number of events could
occur that would lead us to conclude that legislation was
necessary, and we intend to prepare as quickly as possible for
that contingency. Moreover, I wish to repeat that we con-
tinue to adhere to the President's statement that it is neither
PAGENO="0087"
81
-13-
necessary nor desirable to try to halt exploration and exploi-
tation of the seabeds beyond a depth of 200 meters during the
negotiating process, provided that such activities are subject
to the international regime to be agreed upon, which should
include due protection of the~integrity of investment made
in the interim period. Our opposition to H.R. 9 in no way
alters this.
We are deeply conscious of the fact that no decision
we could have reached on this~issue at this time could have
been universally popular. Some who support the mpratorium
may not agree with the policy we have set forth. Some who
support the approach in H.R. 9 may be equally disappointed.
For the present, we think the~middle course we have outlined
is best. We hope the Committee will agree. However, we
fully understand that the Committee, like the Administration,
may wish to pay close and continuing attention to developments
that could alter this assessment. We pleged our full coopera-
tion with the Committee in those efforts.
Mr. Chairman, we will now proceed with the more detailed
comments to which I referred, after which we will be pleased
to answer any questions the Committee may have.
Thank you, Mr. Chairman.
PAGENO="0088"
82
UNITED NATIONS
GENERAL
A C~ c ~ ~\A O~ I V ~ A/RES/3029 (xxvii)
f~ {... 1 V% 1.1 ~ I 214 January 1973
Twenty-seventh session
Agenda item 36
RESOLUTIONS ADOPTED BY THE GENERAL ASSLNBLY
Ion the reaort of the First Committee (A/89149)7
3029 ~coJiI). rc~ervaticno:z~luaiv:1y for sful~uo~cascft~.e sea-bed and
the ocean floor, and the subsoil thereof, underlying the high seas
beyor~ the li c: `~r~se~ r:at±oaai ~ur dicsacnacc ice cc
their resources in the interests of mankind, and convening of a
conference on ane .~aw Os ane sea
The General Assembly,
Recalling its resolutions 21467 (XXIII) of 21 December 1968, 2750 (XXV) of
17 December 1970 and 2881 (xxvi) of 21 December 1971,
Having coo sidered the report of the Committee on the Peaceful Uses of the
Sea*-Bed and the Ocean Floor beyond the Limits of National Jurisdiction on the work
of its sessions in 1972, 1/
Noting vith satisfaction the further progress made towards the preparations
for a comprehensive international conference of plenipotentiaries on the law of the
sea, including in particular acceptance of a list of subjects and issues relating
to the law of the sea,
Reaffirming that the problems of ocean space are closely interrelated and
need to be considered as a whole,
Recalling its decision, in resolution 2750 C (XXV), to convene a conference
on the law of the sea in 1973,
Expressing the exrectation that the conference may be concluded in 19714 and,
if necessary, as may be decided by the conference with the approval of the General
Assembly, at a subsequent session or subsequent sessions no later than 1975,
1/ Official Pocords of the Gerierr.1 Assembly,_Twenty-seventh Session,
Supulement No. 21 (A/872l and Corr.l).
73.01816 1...
PAGENO="0089"
83
Senator METCALF. I am sorry I interrupted you.
Ambassador STEVENSON. On the specific question of the effect of the
negotiation, I think we have to recognize, No. 1, that while the U.S.
Government has taken the position which I myself articulated in a
letter to this committee on high seas principles, every country has a
right to exploit the deep seabed until there is international agreement
to the contrary, as long as we reasonably respect the rights of other
countries.
That is clearly a very definite minority position in the international
community. I think it is no exaggeration to say that all developing
countries and even some developed countries disagree with us on that
position.
We think we are right on the law, but you must take into account
as a very definite political fact that the world is overwhelmmgly
opposed to us on this question.
Accordingly, if the U.S. Government, while we are in negotiation
trying to reach international agreement which will then make this
difference over the legal status at the present time irrelevant because
if we agree on a regime which satisfies our different interests, this dif-
ference as to the existing law becomes strictly moot.
If while we are in the process of doing this, the U.S. Government
goes beyond the position which I expressed of indicating the right
of our nationals to do this and takes action which looks as if we are
affirmatively supporting this action by financial assistance and also by
provisions which look to other countries as if we are going beyond
even our own existing view of the law in trying to give them exclusive
rights in this area, this will haye and has had a very definite effect
on the willingness to negotiate in this context.
Now, it is obviously one thing to have the legislation under con-
sideration as to something that might be adopted or which might
in some variation be adopted if the international negotiations are not
successful.
It is quite a different issue for that legislation to be actually adopted
while we are in the process of attempting to negotiate another solution
which basically avoids this problem.
Now, clearly the question is time, and that is the reason for the
proposal which was made last March, in which John Moore as our
representative in the committee last March announced to the Seabed
Committee of trying to get this international regime in actual oper-
ation very promptly after the signature of the treaty, rather than
waiting for a long period of time while ratification is obtained.
I think, Mr. Chairman, we should not underestimate the very great
depth of feeling on this questiOn, particularly among some of the
more responsible developing countries, leaders who I think would like
to work out that agreement with us.
Thank you, Mr. Chairman.
Senator FANNIN. Thank you, Mr. Ambassador.
You are talking about voting, we are rather accustomed to being
outvoted in international organizations. I think that is almost a fact of
life that we must face.
Will you discuss for us the major views, including the concepts
of weighted voting in the Council. I am wondering how will these is-
PAGENO="0090"
84
sues be settled in time and fashioned so as to achieve a satisfactory
treaty.
Ambassador SITVEN50N. Senator, I think you identify the second
really critical issue in the deep seabed negotiations. Certainly the
arrangements by which such authority as deep seabed authority will
have must be such as will give adequate assurances to countries such
as ours which have the technical capacity to participate in this work.
Now, I think in this area that negotiations have really not progressed
beyond the identification of different positions and awareness, I believe,
on the part of the developing countries of how very critically we regard
this question of having some machinery, some voting procedure which
will adequately protect our interests.
I think there can be no mistake as to how strongly we feel that if
the international community is to have the kind of international regime
for the seabed that is in everyone's interest there must be adequate pro-
tection for our interests and those of like states, and that one nation,
one vote-while this can have some role in the assembly in a recom-
mendatory area, is not a satisfactory solution to the key decisions that
will have to be made.
I think our position goes somewhat farther in that we would like
to some extent reduce the importance of that voting procedure by
including in the treaty itself a number of the key provisions which
will reduce the necessary element of discretion, and where, if there
has to be a change, it will be done through the amendment process in
which we will participate with other states rather than simply by a
voting decision in that organization itself.
Senator FANNIN. Thank you, Mr. Ambassador.
On your statement, page 19, you say:
At the same time, we observed that a sizable number of delegations preferred,
in addition to this mileage limit, an alternative seaward limit which would em-
brace the full continental margin where it extended beyond 200 miles.
I am sure you are aware that this committee under the leadership
of Senator Metcalf is on record as declaring the United States under
our understanding of international law already and presently has ex-
clusive rights to the resources of the Continental Shelf at the seaward
edge of the continental margin; is that right? Is that your under-
standing?
Ambassador STEVENSON. We are certainly aware of the committee's
position and that it is also supported by a number of legal associations;
yes.
Senator FANNIN. Thank you, Mr. Ambassador.
Senator METCALF. Mr. Hansen.
Senator HANSEN. I have several questions.
I am just wondering~ Mr. Chairman, you have been very patient. I
would be happy to yield to you. I have about five questions. I would be
happy to submit them for the record.
Senator METCALF. I have about 55 questions. I suggested that if
we can't reach all of the questions this `afternoon, they can respond to
written questions. And of course, I would hope that they would re-
spond finally to the questions that we.re submitted to them in writing
following our hearing in June.
How long ago was that? That was before you were sent out~ Mr.
Ambassador, but Mr. Moore was here. and Mr. French `and Mr..
PAGENO="0091"
~85
Ratiner, they are old friends who were here, and we still have a lot of
questions hanging in the air.
So I would be delighted if you would ask your half a `dozen ques-
tions and I will ask half a dozen or so, and then I will submit others
in writing, `and your answers will go into the record.
Mr. Ambassador and Senator Hansen, we `are trying to make a
record that will not only be helpful to this committee but helpful to
our `delegates at international conferences to demonstrate the feeling
of a cross section of some of the people in the Congress.
Believe me, all we want to `do at this particular moment is help you
in your negotiations. And the reason we are up here today is to `ask
you how you are getting along `and how we can help you and help
American businessmen who are already embarking upon some ex-
ploration. And I want to ask you about how it affects the balance of
payments and other things.
So Senator Hansen, if you will go `ahead, then I would hope that we
will submit the questions, and we will have a more direct response
than the last time.
Senator HANSEN. Mr. `Chairman, I don't know what the time frame
is here. It is 3:35 and I know these `are very complicated `and difficult
questions with m'any ramifications. And yet I know how increasingly
important they are.
Senator METCALF. Would you rather submit them?
Senator HANSEN. I would be happy `to ask them, I just didn't want
to take so much time.
Senator METCALF. I expect to be here for quite `a while. I have
already `announced I am not going to answer any more rollcalls to-
day because every time I go over there I am on the losing side.
`Senator HANSEN. I am usually on the losing side, too, Mr. Chair-
man. I am glad to join with you.
Are there any hazards in the participation of the United States in
the Law of the Sea Conference where the position of many small non-
industrial States are so different from ours? A corollary question and
perh'aps I could read along `and then you may respond, or I would be
glad to break it up.
Could a treaty result which the United States would in fact not
ratify? How could this result be avoi'ded? Would not the passage of
S. 1134 in fact establish the firmness of our seabed position?
Now, I have asked so many questions, I will start again with the
first one.
Are there any hazards in the participation of the United States in
a La'w of the Sea Conference where the position of many small non-
industrial states are so different from ours?
Ambassador STEVENSON. Senator, if I could take that question and
your second question about what we can do to prevent an adverse
treaty from resulting.
Certainly there is always a risk in any multilateral treaty negotia-
tion that the result may not be~ entirely satisfactory to the United
States.
I think the question that must always be asked is what is the alter-
native. And, I think the alternative is, in this area, one that none of us
can contemplate with any equanimity because I think that the prospect
is one of essential lawlessness for 70 percent of the world, and escalates
PAGENO="0092"
86
the bilateral conflict because there is no agreement over rights in the
ocean.
You have even today Icelandic-TJnited Kingdom disputes. We
have continuing difficulties with our friends on the west coast, in Latin
America; the Canadians and the Danes have difficulties over salmon.
Some of us have perhaps forgotten one of the key elements in the
original Middle East dispute was a disagreement over the free transit
question.
So that the alternative of not attempting a treaty is one that I think
is that as just responsible citizens we cannot accept, that is not in any
sense, an adequate answer.
But now having said that, that doesn't mean we are `willing to accept
any treaty and that we should not do our very best to get the best
treaty we can possibly get.
And I think in that connection one of the really critical issues is the
understanding on the part of the key leaders of the developing world
that have the votes, that this treaty is not going to lead to the solution
of these conflict problems which I have been discussing.
If the United States and other important developed and maritime
countries are unwilling to go along `with the treaty this is not a U.N.
General Assembly resolution.
This is a situation where in order to have an effective international
regime, you must not only have a treaty adopted at the Conference,
but it must be accepted and ratified by the important members of the
international community.
I do think that the more responsible developing country leaders are
aware of this. On the other hand, I think it is something that we must
constantly stress that the objective of this whole negotiation is some-
thing that is generally acceptable and that the mere question of a voting
majority is essentially irrelevant to achieving the sort of multilateral
lawmaking treaty for 70 percent of this globe that we are talking
about.
Senator HANSEN. The third part of my question, Mr. Ambassador,
is-perhaps I had better state it and then I am going to go over
and vote.
Would not the passage. of 5. 1134 establish the firmness of our seabed
position? I think you have touched on this in an earlier response to
Senator Fannin.
Ambassador STEVENSON. I think I did answer that in response to
the chairman.
Senator HANSEN. The next question then, I will read the full ques-
tion and then it can be broken up into parts. I understand the progress
on other issues such as fishing, coastal state economic zones, passage
through straits, et cetera, in Subcommittee II has been almost nonex-
istent, that the work never proceeded sufficiently to draft any useful
alternative treaty articles.
How can this lack of progress be compensated for? Aren't these
issues alone apt to block achievement of a timely and satisfactory
treaty?
Ambassador STEVENSON. I think the answer to that, Senator, is two-
fold. I think in the first place the issues that are being dealt with-
Senator METCALF. Mr. AmbassadorS we are not paired on this vote
so Senator Hansen and Senator Fannin are going over to vote. Please
go ahead for the record.
PAGENO="0093"
87
Ambassador STEVENSON. I think I will. Now that I have the oppor-
tunity, I would rather do it now. I think there are two aspects to the
problem of Subcommittee II which has been dealing with the tradi-
tional law of the sea topic of fisheries.
I think the first point is that not nearly as much technical prepara-
tion in terms of drafting articles is required in this area as in the sea-
bed which is in the newly highly complicated area.
In point of .fact we have drafted texts submitted by various dele-
gations on practically all issues with which Subcommittee II has to
deal.
The problem is not one of legal drafting. The problem is One of
reaching agreement on certain of the critical issues.
And, these are not too many because once certain decisions have
been taken the rest of it falls into place. On the other hand, these
issues are the very heart of the negotiation.
Now, with respect to the extent of the progress on that negotiating
level, I think last summer it is interesting in two respects.
One, as we pointed out in our statement, many countries were not
prepared to negotiate because this was merely a preparatory session.
They were waiting for the actual Conference.
On the other hand, you did have in the other discussions that took
place in the working group and in some of the unofficial discussions
a measure of agreement which, while not yet reflected in text,. is cer-
tainly very substantial.
And, I think this is reflected in certain of the general points I made
in my statement about areas of agreement.
I think certainly the 12-mile territorial sea is very generally accepted
by those countries which were advocating control over navigation be-
yond 12 miles, and it has becom~ more and more apparent that they
have been isolated and they have had to put in their own positions
with no support from others.
I think there has also been a very large measure of agreement with
respect to the concept of broad coastal State economic jurisdiction.
There certainly remain problems to be negotiated in this area. Our
own feeling is that coastal State resource management jurisdiction,
while it should be exclusive as far as resource management, should
be subject to the international standards which I referred to in my
statement.
While with respect to the seabed minerals I think there is virtually
complete agreement that the coastal States should have exclusive
jurisdiction over these.
With respect to mineral resources the question of whether highly
migratory species should ~ treated differently and the extent to whidh
the coastal State is not taking all the fish it can t'ake, if other States
should have a right to, these issues are still with us.
But, it is all within the negotiating ball park. So, I think this area,
on the one hand the 12-mile territorial sea, and on the other hand
broad coastal State resource jurisdiction, is an area in which there has
been very discernible progress and it may very well be the critical
key to the negotiation because more countries are concerned with this
issue than any other single issue.
I think its solution will make: much easier the solution of difficult
problems such as you and your. colleagues raised, such as the deep
PAGENO="0094"
88
seabed on the one hand and the critical problem of transit through
international straits on the other.
Senator METCALF. May I follow through a little bit on that?
In June, Professor Moore expressed, and I am quoting him, "cau-
tious optimism aibout the prospects for a timely and successful con-
ference."
At that time we had agreement on only 2 of the 21 texts drafted
by Subcommittee I for the Seabed Treaty. We had agreement on 2
out of 21 from the subcommittee working on the international regime,
and if I might add a new word, I have learned today, and machinery.
Yet to come are the texts from Subcommittee II and Subcommittee
ITT-Subcommittee II is working on such problems as the territorial
sea, the contiguous zone, straits used for international navigation,
The Continental Shelf, the economic zone or preferential rights beyond
the territorial sea, the high seas and the rights of land-locked and
shelf-locked nations.
Subcommittee ITT is concerned with the preservation of the marine
environment and scientific research. In June when Professor Moore
testified, we were causiously optimistic on the basis of agreement on
2 texts out of perhaps 50.
how are we doing today?
Ambassador SmvIn~soN. I agree with Professor Moore, I am cau-
tiously optimistic.
Senator METCALF. How many texts have we agreed to so far?
Ambassador STEVENSON. I will refer to Mr. Ratiner as far as the first
subcommittee. But, if I may say so, I don't think that is a fair way to
evaluate the progress.
Senator METCALF. Mr. Ambassador, I want to assure you that I don't
want to be unfair. So, you tell us what would be a fair way to evaluate
this matter.
Ambassador STEVENSON. I think basically in my full statement I did
try to analyze the different extent of progress in the different commit-
tees. And, I think basically in the first subcommittee dealing with the
subject of great importance to this committee, namely the deep seabed,
that the technical preparation really has exceeded many peoples' ex-
pectations because in fact they have agreed on virtually everything in
the sense of alternatives.
*That working group has in fact considered the text for virtually
every problem. Now, in some cases they have, in fact, I would suppose
in a great majority of the cases they have not come up with a single
text but they do have alternative texts which is basically the job they
were supposed to do.
They were not supposed to arrive at `agreement this summer.
Senator METCALF. They were not supposed to draft a treaty to be
submitted for Senate approval. They were supposed to eliminate a
whole lot of extraneous material.
Ambassador STEVENSON. Certain extraneous material and focus on
the real issues. But, I think it is quite clear just as in this country I
would not have been in a position last summer to have agreed on all
of those.
I think it is fair to say that Subcommittee I did precisely the job it
was supposed to do `and perhaps better than many had ever thought it
could do.
PAGENO="0095"
89
Now again, Subcommittee II, I would like to refer to my answer to
Senator Hansen. I do think that Subcommittee II is basically dealing
with a relatively limited number of critical issues and once we get
agreement on those the technical drafting job is not going to be so
difficult.
Subcommittee III on marine pollution is sort of in between, I think.
In that respect I would like to ask Professor Moore, who headed our
working subcommittee through to amplify our remarks.
Senator METCALF. We haven't heard from you yet, Professor Moore,
so I would be delighted.
Professor MOORE. Thank you, Mr. Chairman.
Let me state at the outset my apologies for your not having received
the answers to the questions.
Senator METCALF. Better apologize to the minority, it was questiOns
from the minority side you had not responded to.
Professor MOORE. It is a question which I am happy to say the new
office for sea negotiations would make a special point to see that all
congressional inquiries are answered in a very timely fashion.
With respect to the cautious optimism I had last March, I still have
that cautious optimism at this time. Like that of Ambassador Steven-
son, I think the cautious* optimism is based primarily on an overall
sense of the developing consensus in some key areas, particularly on
the breadth of the territorial sea at 12 miles and the sense that there
would be broad economic jurisdiction in a number of respects beyond
the territorial sea.
With respect to Subcommittee Ill's progress this summer, I think
it is another subcommittee in which there was significant progress
made.
There are now about 12 to 14 different provisions set out which
form the basis for discussion at the conferences as convention articles,
and of those only three or four have alternatives.
All of the others in Subcommittee III on the protection of marine
environment issue are in fact agreed texts. So, unlike Subcommittee I,
the initial premise in Subcommittee III was to try to reach a consensus
wherever possible.
If it was not possible, as you might expect on some of the more con-
troversial and important areas in which there were differences such as
the question of competence to make standards for vessel source pollu-
tion beyond the territorial sea, and in those areas we do have alter-
native texts.
But, my assessment of the overall progress that has been made and
where we stand today in the preparatory work is in fact useful to go
to the conference and our cautious optimism of last March has been
borne out again this summer.
Senator METCALF. May I address a question to Mr. Ratiner, Mr.
Ambassador?
Ambassador STEVENSON. Certainly.
Senator METCALF. He went thr9ugh with me some of the proposals
and there were brackets around a lot of them and he explained the
brackets, and he said he hoped this conference would remove some
of the brackets.
How are you doing on removing some of the brackets, Mr. Ratiner?
PAGENO="0096"
90
Mr. RATINER. Mr. Chairman, we have adopted a new tactic in the
Seabed Committee. The last time I appeared before you you went
through each of the texts that we had worked on and you asked ques-
tions about them.
At this time we quadrupled the number of texts so it wouldn't be
possible for you to ask questions about them.
Mr. Chairman, we adopted a new procedure this summer and it
would be disingenuous of me to answer your question literally because
we abandoned the use of square brackets.
We have no texts with square brackets except in unusual cases. The
procedure this summer, and by the way, we moved our treaty from
page 50 to page 135. in terms of the volume of the treaty the new
procedure is whenever there is disagreement of substance an alter-
native text will be developed.
So, we now have for example article 32, alternative a, or b, or c, or
d. What we have done is to make the treaty easier to read and reflect
more clearly the areas which still require considerable negotiation.
It is very difficult to answer your question in terms of amount of
work done. We have in fact completed the treaty albeit with a variety
of alternatives appearing under each of the provisions.
Senator METCALF. I certainly don't criticize any way that you
choose to approach this matter. I suggest that you look at our
committee prints on strip mining in which we have alternatives in
brackets and so forth.
So you no longer bracket language to indicate a multiplicity of
questions that came out of the last meeting, is that right?
Mr. RATINER. Mr. Chairman, when I last appeared before you we
discussed those treaty articles that dealt with the international regime
and at that time I testified that this summer we would begin serious
work on the international machinery.
1,Ve spent all of the summer developing basically from scratch all of
the articles which would establish a new international organization,
so we made no attempt to go back to the regime and eliminate brackets.
But, whether we attempted to complete and round out the entire
treaty for both the regime and the machinery, and only at th~ next
stage of negotiations will we begin to reduce the alternatives in the
case of the machineries and reduce the brackets in the case of the
regime.
Senator METCALF. So now we have at least a partial list contain-
ing bracketed or alternatives texts of the various alternatives that
are going to be considered?
Mr. RATINER. That is correct, Mr. Chairman.
Senator METCALF. I am a member of the International Parliamen-
tary Union Executive Committee for the Congress and we had ex-
pected to hold our next meeting at the invitation of the Government
of Chile in Santiago.
We have canceled that in view of the latest political developments
down there. Is Santiago the place to be. for a Law of the Sea Con-
ference scheduled for next spring?
Ambassador STEVENSON. Mr. Chairman, we supported the confer-
ence resolution by the General Assembly last year providing for the
schedule of the conference with the substantive session to begin next
spring in Santiago.
PAGENO="0097"
91
Our principal concern is that the conference schedule be adhered
to and that the maximum progress be achieved. I think as yet we do
not know what the position of the Government of Chile will be toward
holding the conference.
Senator METCALF. Mr. Ambassador, early in your testimony you
referred to a very widespread community understanding of the outline
of `a broadly supported law of the sea~ treaty. In the course of your
testimony you listed five of the major elements. Could you be `a little
bit more specific as to the nature and understanding on points 3
through 5 dealing with coastal state resource control, pollution, scien-
tific research, and seabed machinery?
Ambassador STEVENSON. Mr. Chairman, I think point 3 is a point
that both Professor Moore and I were addressing, this area of coastal
state resource management jurisdiction beyond the territorial sea, I
think clearly of course two `aspects to it, clearly with respect to seabed
minerals there is very general agreement that the coastal state should
have the exclusive control of the resource in the sense of deciding
how and by whom it should he exploited, who will in fact get the
resource.
I think the two negotiating issues are on the one hand whether
the extent of this jurisdiction is 200 miles or 200 miles plus the edge
of the margin.
That issue surfaced much more sharply this summer than it has
before, but there was very general agreement this summer that thwt
really was the issue, whether it be 200 miles or 200 miles plus the
edge of the margin.
Senator METCALF. So the 12-mile territorial sea issue is not nearly
as important as how far we go out on pollution, fisheries, `and other
things, isn't that right?
Ambassador STEVENSON. I think clearly there was much more
agreement, as far `as the seabed resources on the one `hand, and the
fact the coastal state should have this exclusive control, `and secondly
that it should extend to 200 miles or the edge of the margin, than
there were in other areas.
So, I was dealing with `that first. There was this very strong dis-
agreement between those two positions because the African OATJ
had said there oniy should be 200 miles and nothing beyond, while
a number of countries with extensive continental margins were favor-
ing going beyond.
It was also suggested that one of the ways to bridge this gap was
to provide for increased revenue sharing in the area beyond 200
miles. Now, tha't was one issue.
The other issue was a question involving these five international
standards in this area that we were concerned with.
Now, in fisheries, as I said before, there was less general agreement
on the details although I think there is very general `agreement among
most states, among coastal jurisdictions over a broad area, partic-
ularly with respect to coastal species of fish.
I think there is an increasing understanding of the problem that
we encountered, in particular with respect to salmon and the scientific
justification of having `the State where these fish spawn control them,
and in fact have most of the fishing take place on the return of these
fish to the streams where they spawn.
23-317 0 - 73 -
PAGENO="0098"
92
It is the only way that in fact conservation can be effectively pur-
sued. Let me say also in this area about fisheries that there were some
interesting working group discussions this summer both in the com-
mittee working group and in some informal discussions where there
was considerable attempt to get at the underlying issues of what you
were really trying to get at and not be so concerned with some of
the legalisms.
And, I think I would like, if I might, Mr. Chairman, to ask
Ambassador MeKernan, who is our most distinguished Government
scientist and administrator in this area, if he would comment a little
bit on the progress made in the fisheries area.
Would that be appropriate, Mr. Chairman?
Senator METCALF. It certainly would be `appropriate and, Ambas-
sador, I would be delighted if you would weave your way `through
the legalism and give us a definitive discussion.
Ambassador MCKERNAN. Thank you, Mr. Chairman.
Senator Hansen mentioned a few minutes `ago about the coin-
plexity or perhaps lack of progress in the area of fisheries. And of
course on page 21 of Ambassador Stevenson's statement he referred
to some of the exchanges that took place in fisheries.
It does seem to me that perhaps we had a more useful dialogue take
place in fisheries in Subcommittee II than in perhaps any other issue.
And, as Ambassador Stevenson has said, there does appear to be
some degree of agreement on a number of very important issues in
the field of fisheries emerging.
Even nations who h'ave the most highly developed distant water
fisheries, nations such as the Soviet Union and Japan, who have
literally hundreds of vessels fishing off the coast of other countries
including our own of course, these nations have accepted the general
principle of under certain circumstances coastal States should have a
degree of preference over these resources.
And simply `at the present time we were seeking, or at this last
preparatory conference, we were seeking to get into the discussions
as to how great a degree this particular preference might be on the
one hand with the coastal States advocating exclusive control and on
the other `hand such nations as the Soviet Union and Japan with
these highly developed distant water fisheries advocating certain
limitations to this control.
But, there is emerging, us has been stated by Ambassador Steven-
son today, there is emerging a picture that agreement can be reached
in this area with some compromise on all sides.
Our own position of course has stressed the importance of coastal
State control over coastal resources. Now, the developing nations ad-
vocate the same thing. They would do this through an exclusive re-
source zone or economic zone.
We have advocated doing this on a species basis but these are rela-
tively minor differences in relation to the concept itself.
Incidentally, we attempted to elucidate that particular point that
the issues themselves, though it is the degree of control, the resources
involved were the important issues, and perhaps it was not quite so
important as how you implemented this particular control.
I think it is fair to say that we did not have as much of the dialogue
or as much discussion on negotiation as we on our delegation would
have liked.
PAGENO="0099"
93
But, we did have a pretty fair discussion and it did seem to us that
on one hand the developing nations, nations that had strongly advo-
cated and used such terms as "exclusive resource zones", that they did
show a willingness to eventually include elements that were not
exclusive.
And, on the other hand, we were `able to determine through these
discussions both in the committee and in the corridors and so forth
that other nations who had highly developed distant water fisheries
were anxious to find a common ground here.
For our own part we did look for exceptions where resources mi-
grated highly over oceanic expanses within areas close to the coastal
countries and areas far away on the high seas.
And of course, we also suggested exceptions for such species as
anadromous salmon where the host State or coastal country must
invest large sums of money to maintain these resources.
I must say I would think my own judgment is that fisheries is one
area, where as soon as we can get into the negotiation process itself,
there is common ground emerging and progress was made in at least
an understanding clearly of the differences and possible areas of
agreement at this last session of the committee.
Thank you.
Senator METCALF. Now, Mr. Ambassador, Senator Magnuson and
members of his Commerce Committee were invited to this hearing, and
he is very much interested and concerned with fisheries.
We will call to his attention the transcript of your response. At this
time I also want to make the point that we also invited members at the
Foreign Relations Committee to participate. I had hoped that espe-
cially Senator Pell, who told me~ on the Senate floor that he would be
present, would be here.
However, I know that Senator Magnuson is especially interested in
the fisheries matter and that he may have some further questions to
ask.
I propose to end this hearing in a little while. I have three or four
more questions to ask and then I `am going to propound and put the
rest of them in a letter to you. Would that be satisfactory?
Senator HANSEN. Mr. Chairman, it would indeed be with me. I have
three more questions, I would be happy to submit them in writing to
the Ambassador and his staff if that would be satisfactory.
I think this is going to be-indeed it is a very important hearing
record not only for the help that it may provide the administration,
but as well to bring about a deeper understanding of the complexity of
the problems involved insofar as legislation goes.
I can assure `the Ambassador and others here that it will be read very
carefully `and I will be happy to submit my question in writing.
Senator FANNIN. Mr. Chairman, I would likewise like to submit
some questions in writing. I do very much appreciate the manner in
which Ambassador Stevenson and his colleagues have responded to
those questions and to the statements which were made, and it has
been very, very helpful and we will be very pleased to have answers to
the questions.
Thank you.
[Subsequent to the hearing the following questions were submitted
by Senators Fannin and Hansen and responses by Professor Moore.]
PAGENO="0100"
94
dpslS. 1134
June 13, 1973
Professor John Norton Moore
Counselor on International Law
(1±11cc of the Legal Adviser
Ceoartznent of State
Room 6419 N. S.
Washington, I). C. 20520
~e~r Professor Moore:
As a cosponsor of S. 1134 1 regret not having bad the
cpportmity to ask you questions during the hearings on that
bill at which you appeared last Thursday and Friday.
Enclosed is a i1~t of questions which I would appreciate
your completing within a week for inclusion in the record
of the hearings.
Best wishes for successful negotiations this summer
an the U. N. Seabed Committee meets to complete prepara-
tions for the 1974 Law of the Sea Conference.
Sincerely yours,
Paul Fannin
United States Senator
PAGENO="0101"
95
1. Mr. Moore, are you familiar with the statement presented by
the U. S. rep resdntative, the Honorable John B. Stevenson, to the U. N.
Seabed Committee summer 1972 session outlining U.S. policy ott basic
aspects of the law of the sea negotiations?
2. Do the points made in Mr. Stevenson's statement still represent
the U. S. position on these issues?
3. Are you optimistic that these policy goals can be satisfactorily
negotiated in the U.N. Seabed Committee in time for a sucuessful 1974 Conference?
Mr. Stevenson's August 10th remarks which I have mentioned address
four specific points to be negotiated: straits, the seabed, resource zone
management jurisdiction (including minerals and fuels), and fisheries.
(a) Turning to each of these in order, is it not true that Mr. Stevenson
stated that `There is no possibility for agreement on a breadth of the
territorial sea other than 12 nautical miles. . . agreement on a 12-mile
territorial sea (must) be coupled with agreement on free transit of straits
used for international navigation. . .
(b) On April 6th of this year, the Indonesian delegate informed Subcommittee II
of the Seabed Committee that "His delegation could not accept the application
so-called principle of `free transit' to straits used for international
navi~ation, since that would entail a loss of national sovereignty over the
straifs, v-hich could then ultimatelybe assimilated to the status of the
seas." How do you think this position can be ~ecbnciled with stated
Un:ted States policy?
(c) Mr. Abdel-Hamid of Egypt recently announced it the position of his
delegation that ". . . the regime of innocent passage (as opposed to free
transit) was the one through ~vhich both the objectives of the Charles coUld
best be attained and their national security could be preserved without
PAGENO="0102"
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(4(c))putting in jeopardy any of their national interests. How can this stand
be reconciled with the U. S. position?
(d) According to the records of Subcommittee II, the delegate of Tanzania
declared on April 2nd that `. . . his delegation did not accept that it was
fair to deprive the coastal State of its sovereignty and place its vital
security interests at the mercy of every State that used the strait. For
that reason, it had categorically rejected nations of free transit and
supported innocent passage. . . His delegation was convinced that free
passage was sought not in the interests of international navigation, but
in the military interests of two or three States." What do you feel can
dune to resolve this dispute?
5(a) Is it not true that Mr. Stevenson stated as U. S. position on the seabed regime
issue that ". . . my Government would (never) agree to a monopoly by
an international operating agency over deep seabed exp'oitation. . ."?
(b) And is it not also true that the position of Senegal on that same is sue
is that `Firstly, since the resources of the seabed were the common
heritage of mankind, they belonged to all States and it was for the Com-
mittee to decide how that heritage should be exploited. . . The Committee
must state clearly that the common heritage of mankind sh~uid be exploited
primarily for the benefit of developing countries for it was essential that
of the developing countries should be stressed."?
at do you see as the prospects for reconciling these two divergent views?
Latin American countries put the concept in more concrete form by
orosenting a working paper calling for an "enterprise" arrangement.
The enterprise" would constitute the organ of the international seabsd
authority which would he empowered `to undertake all technical, industrial
or commercial activities relating to the exploration. . ." of the deep seabed
and "exploitation of its resources. . . The enterprise shall have indepsndent
PAGENO="0103"
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legal personality. . ." Thus, any person or corporation wishing to
participate in mining the deep seabed would be forced to subject himself
to the terms and conditions laid dbwn by. the officers of the "enterprise,
who presumably would have the authority to refuse to allow my participation,
or at best a joint venture arrangement, the terms and conditions of which
would lopsidedly favor the `enterprise." How do you feel this vast
difference of opinion can be resolved?
Id) When he introduced the Latin American workin~paper on August 10, the
Delegate of Trinidad and Tobago stated: ". . . a body should be created
which would itself, as the agent. of mankind, imdertake direct scientific
investigation of its resources on behalf of all mankind. It would be
thenafore more in consonance with the principle of the common heritage
for such a body in the early stages to enter into joint ventures, production-
sharing and profit-sharing arrangements with other entities--public or
private, national or international-- rather than to grant or issue licenses
to such entities. The concept of a licensing or concession system is in
our view inconsistent with the principle of the common heritage. The
cosponsor(s). . . therefore reject it. In the partnership system envisaged,
ownership of the area and its resources remains vested in mankind, on
whose behalf the international body exercises exclusive jurisdiction over
the area and its resources." What do you feel are the chances for
reconciling this conce2t with U. S~ policy goals?
is not true that the Mexican delegate stated that ". . . The international
r:.n~nunity, as owner of the area and its resources, had the right to share
~~rect1y in their development until it acquired the technical and financial
means to exploit them by and for itself. There was nothing to justify
a system of operating permits which would assign to legitimate owner
the role of a mere spectator." How do you feel this issue can be resolved,
cspcciaiiy in light of the rc1~tivc advancement of U. S. interaste in technology
for exploiting seabed r0000r000?
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98
(f) Tho delegate of Ceylon has slated: "That the ability of the Authority to
carry out exploration and exploitatton on its own represented the htghest
expression of its central role as the administrator of the common heritage
of mankind." How do you feel this issue can be resolved?
(g) Is it not true that the delegate of Iraq stated that "a purely mercantilist
laissez-faire system of licenses could not be reconciled with the concept
of common heritage. "? What are the prospects for reconciling this
position with U.S. policy?
(Ii) Is it not true that the Peruvian delegate stated that the major powers
C :uld not reconcile themselves to the idea of giving up, even in part,
mOnO?ClV of power, technology and capital, even in the case of
resources which they themselves had agreed to consider as the common
hsrimge of mankind. "? How can differences of such major proportions
he resolved satisfactorily?
(i~ it not tras that some of the developing countries tend toward the view
that common heri:aae as a matter of present internationallaw, means
that the resources of the deep seabed beyond the limits of national juris-
diction belong to mankind as a ~inole; that developing nations, collectively
representing mankind, had the inherent right, through creation of a supra-
national operating axency, to reap the principal benefits of deep seabed
and that no single nation now has any right to exploit the
minerals of the dee~ seabed? Furthermore, is it not true that in the view
deveio~ing countries, the developed countries had a concomitant
the meaning of common heritage to transfer their ocean resource
:~chnology to the developing countries who, collectively as its guardian,
aid apply it to the benefit of nations, party ~o the treaty, according to
need? Free amably only developing countries would have such need.
What are the prospects for successful resolution of this position with the
U. S. poettien?
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99
(j) iS it not true that the delegate of Chile stated that "The international
machinery should have power to; explore and exploit, control production
and market resources, control research and pollution, distribute profits,
preserve the marine environment and promote the development of the area
by planning and ensuring the transfer of science and technology."?
i-low can this stand be reconciled with the U. S. position as stated by
Mr. Stevenson?
6(a) It is my understanding that Mr. Stevenson stated, with respect to the
resource zone issue, that "We can accept virtually complete coastal State
resource management jurisdiction over resources in adjacent seabed areas
chic jurisdiction is subject to international treaty limitations in five
"(1) . . . the coastal State will ensure, subject to compulsory
setlernent, that there is no unreasonable interference with
na--igation, overflight and other uses.
"(2) . . . minimum internationally agreed pollution standards apply
even to areas in which the coastal State enjoys resource jurisdiction.
"(3) International treaty standards. . . protect the integrity of
investment.
"(4) Treaty standards provide for sharing some of the revenues
from continental margm minerals with the international community,
for cenefit of developing countries.
`(5) Adeauate assurance (that treaty standards will be observed) is
r:c~ided by an impartial procedure for the settlement of disputes."
is thss not still the United States position on this issue?
it not true that the delegate of Brazil specified concerning this subject
that `. . . it was not sufficient to recognize the rights of coastal States
over the natural resources of the area and, for that purpose, to establish
an exhaustive enumeration o! the powers of the coasts! State beyond a
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100
(6(b)) narrow belt of sea. . . the logical ap?rOach, in tho case of C025t lines
facing the open ocean, would ho to extend the sovereignty of the coastal
State uo to ZOO miles, subject only to certain limitations to be agreed
upon as necessary in order to rr~ et the international community's
legitimate interests, which were essentially those protected by the `jus
communicatioflis'."? What are the possibilities for reconciling this
viewpoint with the U. S. position?
7(a) With respect to the fisheries issue, Mr. Stevenson said that ". . . we
can support broad coastal state jurisdiction over coastal and anadromous
fisheries beyond the territorial sea subject to international standards
tss±z~ed to assure conservation, maximum utilization and equitable
aLlocation of fisheries with compulsory dispute settlement, but with
international regulation of highly migratory species such as tuna."
is this statement not still consistent with United States fisheries policy?
(h) Is it not true that the Moroccan delegate recently held that ". . . certain
delegations had suggested that some coastal States were unable to
exploit the fishing resources off their coasts and that distant States were
therefore justified in coming to `help' them to exploit those resources
as quickly as possible. That theory was untenable. In faLt, what was
happening was that distant States whose populations did not suffer from
protein deficiency sent powerful fishing fleets to exploit the resources of
other States. "? How can the disagreement between this viewpoint and
the United States position be resolved?
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101
DEPARTMENT OF STATE
Washington, D.C. 20520
Honorable Paul Fannin
Committee on Interior and
Insular Affairs
United States Senate
Washington, D. C. 20510
Dear Senator Fannin:
Enclosed herein are the coordinated responses of the
National Security Council Interagency Task Force on
the Law of the Sea to your questions covering the on-
going Law of the Sea negotiations.
If I can be of any further assistance, please do not
hesitate to contact me.
Sincerely yours,
~
Marshall Wright
Assistant Secretary for
Congressional Relations
Enclosure: As stated
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102
DEPARTMENT OF STATE
Washington, D.C. 20520
Honorable Paul Fannin
Committee on Interior and
Insular Affairs
United States Senate
Washington, D. C. 20510
Dear Senator Fannin:
Thank you for your letter of June 18, 1973 in which you
forwarded for comment questions concerning the speech
given by ~rnbassador Stevenson before the U.N. Seabeds
Committee in the spring of 1973.
My apologies for the delay in responding to your questions.
However, I hope that the following answers will help com-
pensate for whatever inconvenience may have been caused
by the delay involved in marshalling the information re-
quested.
With warm regards.
Sinc rely,
/7 John Norton Moore
7/ Chairman, the NSC Interagency
Task Force on the Law of the
`-" Sea and Deputy Special Repre-
sentative of the President for
the Law of the Sea Conference
Enclosures: As stated
PAGENO="0109"
103
1. Yes.
2. 2~nthassador StevensOn's statement of August 10,
1972 remains our policy in the Law of the Sea negotiations.
It should, however, be read in conjunction with our state-
ments at the March/April meeting in New York and this past
summer in Geneva, copies of which are attached. You will
note that in addition to these new statements, we have
proposed new draft treaty articles which more precisely
reflect our current thinking. I should emphasize, however,
that we have not altered our fundamental positiqn as
reflected in that August 10, 1972 statement.
3. A substantive session of the Conference is
currently scheduled to convene for ten weeks in May, June
and July 1974 with provision for subsequent meetings if
necessary, no later than 1975. It is difficult to
phrase our assessment either in terms of optimism or
pessimism. We will continue to negotiate seriously and
will keep under review the question whether the negotia-
tions are leading to a result which satisfies our basic
policy objectives.
4. (a) Yes, Mr. Stevenson indicated that it was
our candid assessment that no possibility for agreement
on a breadth of territorial sea broader than 12 miles
existed. He indicated that the U.S. and other states
have made it clear that our vital interests require
that such an agreement be coupled with agreement on free
transit of straits used for~international navigation. It
should also be noted that certain developing coastal States
have conditioned their acceptance of a 12-mile territorial
sea on broad coastal state economic jurisdiction beyond
this limit.
(b) (c) (d) Statements which portray free transit
as entailing a loss of sovereignty by coastal states are
at variance with existing law and fact. The international
community presently is entitled to exercise high seas
rights in international straits which would be overlapped
by territorial sea if a limit of 12 miles is reached by
agreement. Our territorial sea and free transit pro-
posals would give coastal states rights which they do
not now have in such straits, while preserving for the
international community only the right of transit from
PAGENO="0110"
104
the conglomerate of high seas rights now being exercised.
This transit right would be coupled with safety and
liability provisions designed to meet the legitimate
concerns of coastal states. It is our belief that our
proposal fully protects both the interests of coastal
States and the international community, and is achiev-
able in the negotiating process.
5. (a) Mr. Stevenson stated that we would not
agree to a monopoly by an international operating agency
over deep seabed exp'oitation or to-'any type of economic
zone that does not accommodate basic United States
interests with respect to resources as well as navigation.
(b) through (j) The question of the meaning of
"common heritage of mankind" is one on which there have
been differences of opinion. The term derives from
United Nations General Assembly Resolutions. The U.S.
does not believe that "common heritage" means that
resources beyond the limits of national jurisdiction
belong to mankind as a whole, that is that the resources
are common property, or that they must be exploited only
by an international organization. In our view, affirma-
tion that the resources are the common heritage of mankind
means that they must be treated in a way which will benefit
mankind as a whole. It is therefore possible to reconcile
these positions, since we envision the establishment of
an international regime and machinery to ensure that
the deep seabed resources will be used for the benefit
of all contracting states. In addition, we have proposed
that the regime provide for the collection of mineral
royalties to be used for international community purposes,
particularly economic assistance to developing countries.
Thus, in implementation of the "common heritage" principle,
we believe that an accommodation of views is possible.
The most significant difference exists with respect
to whether or not the international authority would
actually engage in exploration and exploitation itself.
In our opinion, the most effective system for the rational
exploitation of resources can be achieved by providing
the international authority with the capability to license
others rather than endorsing it with the capability to
exploit directly.
PAGENO="0111"
105
6. (a) The U.S. position is still reflected by
Mr. Stevenson's August 10, 1972 statement.
(b) The extension of coastal State sovereignty
over a large area if qualified by only limited interna-
tional rights in navigation has the potential of impairing
those rights. Moreover, it is inimical to the interests
of all nations in other uses of the oceans and fails
to accommodate the needs of land-locked and shelf-locked
states. Coastal state resource jurisdiction tempered
by international standards provides a reasonable balance
of competing interests.
7. (a) & (b) Mr. Stevenson's statement is a
partial summary of the U.S. fisheries position. This
position is based on a species rather than a zonal
approach. Our proposal is designed to provide clear
coastal state control over coastal and anadromous
stocks of fish. Highly migratory species such as tuna
would be regulated by international bodies in which
interested coastal and fishing states could participate.
Coastal state control over coastal and anadromous stocks
would extend as far offshore as each stock ranges. Each
coastal state would have a preferential right to that
portion of the maximum sustainable yield that it could
catch. The remaining portion would be open to harvest
by fishermen of other nations, subject to nondiscrimin-
atory coastal state conservation measures and reasonable
management fees fixed in accordance with international
standards. The extent to which coastal state preference
would reduce traditional distant-water fishing would be
determined on the basis of a formula to be negotiated
at the Law of the Sea Conference.
The U.S. proposal permits the expansion of coastal
state fishing up to the maximum sustainable yield of
each particular stock. Nevertheless, it would seem
best for the protein needs of all countries in the
meantime to promote full utilization of the available
catch. We will continue a dialogue with developing
countries at upcoming meetings to promote understanding
of our proposal.
PAGENO="0112"
106
4.-7. These questions correctly indicate that on
a wide variety of important issues, strongly held disparate
opinions exist. On the question of straits, resource
zones, fisheries and the deep seabeds the range of pro-
posals in the Seabed Committee is wide. The dynamics of
multilateral negotiations are quite complex and we will
be attempting to determine whether these apparent wide-
spread differences of view which you have identified are
more apparent than real. One thing is already clear to
us--in some major areas which you have mentioned,
differences appear to be greater than they are because
of the use of shorthand terminology. For example, the
term "exclusive economic zone" has been a proposal in
this negotiation. We have always interpreted "exclusive
enonomic zone" as a concept which precludes our position
that a coa3tal state's resource jurisdiction should be
limited by international standards. However, we see some
recognitio~a of international elements in discussions
with the representatives of ce~tain proponents of the
exclusive economic zone. This, of course, does not
meet our difficulties with this concept. Another example
is that in the deep seabeds negotiations, we have dis-
covered that the concept of the Enterprise, while in
very important respects is different from the licensing
system proposed by the United States, in certain other
respects bears a certain similarity to our own proposals.
Under both systems, for example, the international
Authority has the exclusive right to issue legal instru-
ments which grant private companies the right to mine
the seabed resources. Some developing country proponents
of the Enterprise have indicated that such rights to
mine the resources should be granted pursuant to rules
and regulations established in the treaty itself. In
discussions with them on the content of such rules and
regulations we find views are not as divisive as one
might expect from the philosophical differences apparent
between the supporters of the Enterprise and the supporters
of a licensing system. The negotiations this summer have
made much more vivid these areas of similarity as well
as some of the very important areas of difference which
still exist.
Accordingly, we would be reluctant to conclude that
because public positions are stated in extreme terms on
conceptual matters, the real negotiating parameters are
that widely disparate.
Attachments: As stated
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107
DEPARTMENT OF STATE
Washington, D.C. 20520
1k ~
Honorable Clifford P. Hansen
Committee on Interior and
Insular Affairs
United States Senate
Washington, D. C. 20510
Dear Senator Hansen:
Enclosed herein are the coordinated responses of the
National Security Council Interagency Task Force on the
Law of the Sea to your questions covering the ongoing
Law of the Sea negotiations.
If I can be of any further assistance, please do not
hesitate to contact me.
Sincerely yours,
Marshall Wright
Assistant Secretary for
Congressional Relations
Enclosure:
As stated
23-317 0 - 73 - 8
PAGENO="0114"
108
DEPARTMENT OF STATE
Washington, D.C. 20520
Honorable Clifford P. Hansen
Committee on Interior and
Insular Affairs
United States Senate
Washington, D. C. 20510
Dear Senator Hansen:
Thank you for your letter in which you forwarded for
comment questions concerning the Report of the National
Petroleum Council in relation to the U.S. position at
the Third U.N. Conference on the Law of the Sea.
My apologies for the delay in responding to your questions.
However, I hope that the following answers will help corn-
pensate for whatever inconvenience may have been caused
by the delay involved in marshalling the information
requested. Enclosed are the questions presented with
the response given immediately after each question.
With best regards.
incerel~T,
~ ~ ~
ff John Norton Moore
/ Chairman, the NSC Interagency
/ Task Force on the Law of the
Sea and Deputy Special Repre-
sentative of the President for
the Law of the Sea Conference
Enclosures:
As stated
PAGENO="0115"
109
1. Question: Are you familiar with the recently
released report of the National Petroleum Council entitled
"Law of the Sea: Particular Aspects Affecting the Petro-
leum Industry"?
Response: We are familiar with this document, have
studied it and have found it to be most useful.
2. Question: At the conclusion of Chapter 1 of
that report, it states that in the opinion of the National
Petroleum Council the interests of the international
community and the United States "would be better served
by departing from the earlier use of terms regarding
navigation such as `innocent passage' and `free transit',
insofar as commercial navigation is concerned." In
other words, there should be different standards for
commercial vessels, including tankers, than for military
vessels. What is your opinion of this recommendation?
Response: According to the paragraph of the NPC
report to which you refer, the underlying reason for
NPC's suggestion that we depart from use of terms such
as "innocent passage" and "free transit" is to allow
an approach which describes the nature of the naviga-
tional right rather than referring to a formula or
label. We agree that specific labels are not crucial
as long as basic navigational needs and objectives are
clearly understood and accommodated. Certain phrases
have an established meaning in international law or
serve as a shorthand reference to concepts embodying
many elements. Insofar as terms presently in use are
ambiguous or are subject to differing interpretations,
it would be useful to clarify them. However, we feel
that to change terminology at this point could create
confusion and delay. Terminology should, of course,
not be considered a substitute for substance, that is a
clear understanding of navigational rights.
3. Question: In Chapter 2 of the NPC report three
specific recommendations are made related to stable in-
vestment conditions: one pertaining to integrity of
agreement between a state and a foreign investor;
another pertaining to integrity of agreement between an
international organization and an operator; and a third
PAGENO="0116"
110
relating to procedures following possible expropriation
of investments. How do you feel about those recornmen-
dations?
Response: On July 18, 1973 the United States Repre-
sentative to the U.N. Seabed Committee delivered a statement
and introduced draft treaty articles on the "coastal seabed
economic area." This statement and the articles deal
with the question of integrity of investment and reflect
our policy on the subject. We believe this policy is
substantially consistent with the recommendations of
the National Petroleum Council. The statement and
articles are attached and we would refer you in particular
to pages 5-7 of the statement and Article 2(d) of the
articles.
4. Question: In Chapter 3 of the NPC report, a
series of recommendations is made pertaining to seabed
pollution control standards and settlement of pollution
control disputes. How do you feel about these recommen-
dations?
Response: To assure uniform standards and adequate
pollution control, it is important that international
standards be developed for prevention of pollution from
seabed exploration and exploitation. Such standards will
require more detail than can be resolved in the Law of
the Sea Conference itself, and will require continuing
review. Thus, an international organization would appear
to be the best forum for development of such regulations.
Article 23 of our Draft Seabed Convention submitted by
the United States specified that the International Seabed
Resource Authority will prescribe rules and recommended
practices to protect the marine environment against
pollution arising from exploration and exploitation
activities. In addition, we believe that coastal States
should also have authority to prescribe higher standards
for those areas of the seabed over which they have
resource jurisdiction. In this way, the coastal state
can protect its resource and other interests as it deems
appropriate. Such a right vested in the coastal state
would not interfere with the rights of other States in
the area. The U.S. also supports application to such
pollution control disputes of the dispute settlement
mechanism developed under the Convention.
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111
5. Question:: In Chapter 4, which pertains to the
accommodation of uses or, as is otherwise often stated--
the multiple use concept--the NPC recommends that the
international authority develop standards for resolving
conflicts among uses and that the Convention and other
international law be resorted to in order to reach
accommodation in the event of conflict. How do you
feel about that recommendation?
Response: We share the view that international
standards be developed for the resolution of conflicts
between competing uses of the same area. Our July 18
statement reflects this policy. For example, we stated
on page 3 of that statement:
"From the point of view of my government, a
new Law of the Sea Treaty would not be adequate if
it gave to coastal Stajes comprehensive seabed
economic jurisdiction without providing for pro-
tection of the rights of other States in the seabed
economic area of coastal States. We believe these
rights must not only be clearly provided for in the
Law of the Sea Treaty but that a system should be
established which wilL assure that the coastal
State does not go beyond its seabed economic rights
or unjustifiably interfere with other activities
conducted in the area of superjacent waters by
other States. In this negotiation, we are now dealing
with large areas of ocean space in which intense
activity, some of which will not be resource
oriented, will occur in the future--activity of
interest both to the coastal State and other States.
We believe, therefore, that in the interests of
worldwide agreement on the rights of coastal States
there must be co-relative duties assumed by the
coastal State to assure a harmonious accommodation
of interests."
This policy approach is ref]ected in the draft articles
attached to our July 18 statement and in particular we
would refer you to Articles~ 2 and 4.
PAGENO="0118"
112
6. Question: Perhaps one of the most important
chapters of the NPC report is Chapter 5, which pertains
to dispute settlement. The report contains five specific
recommendations regarding dispute settlement with a
heavy emphasis on the need that compulsory dispute
settlement mechanisms be established. I strongly feel
that such compulsory dispute settlement mechanisms must
be established, but I note that draft article 21, prepared
by the Subcommittee I working group on dispute settlement,
has not yet even begun to take shape. What is your
feeling about how we can reach international agreement
on compulsory dispute settlement provisions?
Response: It is our view that compulsory settlement
of disputes is an essential element of a comprehensive
settlement on the Law of the Sea. In previous years in
the Seabed Committee we have proposed compulsory dispute
settlement in a variety of ways. For example, our draft
fisheries articles have from the beginning incorporated
the concept of compulsory arbitration. Our draft seabed
treaty of 1970 included the concept of dispute settlement
and also the creation of a Tribunal to settle such disputes.
During the summer session in Geneva we placed the greatest
importance on dispute settlement. In our statements on
pollution, scientific research, the deep seabeds, naviga-
tional rights, fisheries and the coastal state's economic
jurisdiction (including offshore installations) we
emphasized our view that compulsory settlement of disputes
was essential.
Moreover, in addition to the foregoing actions, on
the 22nd of August 1973 in conjunction with a statement
made in the Main Committee by the U.S. Representative,
we introduced draft treaty articles for a separate chapter
of the comprehensive Law of the Sea treaty which would
deal with the compulsory settlement of disputes and the
establishment of a new Law of the Sea Tribunal.
With respect to your precise question--"how can we
reach international agreement on compulsory dispute
settlement provisions?"--we believe a combination of
things must be done. First, it must be clearly under-
stood at the Law of the Sea Conference that we regard
such provisions as of the greatest importance to a final
settlement. There is no substitute in negotiations like
PAGENO="0119"
113
these for firm national commitment to the achievement
of certain specified goals. Second, we must understand
and deal with the feelings, of other countries about com-
pulsory dispute settlement~. This involves patient dis-
cussion and negotiation. ft involves the creation of
a climate of opinion in which all nations recognize
that their vital interests~ in the oceans are best pro-
tected by impartial dispute settlement mechanisms and
not by the threat or use of force. We believe the world
is coming to understand the essential interdependence of
nations and this increasing awareness will inevitably
lead to the conclusion that peaceful means must be
found for accommodating different interpretations of
international law. There is no other acceptable way
of settling disputes which~ will contribute to world
peace.
PAGENO="0120"
114
Senator METCALF. You have been most helpful. Your prepared state-
ment was a response to this committee's inquiry on how you got along
at the last Seabed Committee meeting.
And, of course, I want to thank you for the courtesies that were ex-
tended to the representatives of this committee at Geneva, in contrast
to some previous sessions.
I am a little bit concerned about a couple of other things. Since
this is an open session I would like to have a response to a couple of
other questions because the written answers will only appear in the
printed record several weeks from now.
I turn to revenue sharing, Mr. Ambassador. This committee has
been insisting that the Government of the United States has jurisdic-
tion to the edge of our continental margin.
In other words, the land out to the margin is American public land
exactly the same as the BLM land or the national forest land and so
forth, within the confines of the United States.
And, we insist that Congress has exclusive jurisdiction over the dis-
posal of these lands the same as we have jurisdiction over the disposal
of any other public lands and we have jurisdiction over the disposal
of the revenue from these lands.
Now, how can we say that by treaty we are going to share with other
nations and other regimes the income from lands that belong to the
United States and are exclusively within the province and under the
Constitution within the control of the Congress of the United States?
Ambassador S?rEvENsoN. Thank you, Mr. Chairman.
I think there are two points I would like to discuss. First is the
question of the constitutional and legislative aspects of revenue shar-
ing is something that we within Government have under considera-
tion with the appropriate agencies with which we will certainly want
to work very closely with the Congress on.
Second, if I may express a view which at least goes back to the time
when I was Legal Advisor, and may no longer reflect the official posi-
tion, but I think it should be in the record alongside the position you
expressed so we can understand what the legal issues are, and it isn't
quite as black and white a case as it may seem.
Senator METCALF. Please, I asked a question, and I am not asserting
that that is the final legal answer. I just want you to explain to us.
Ambassador S~vENsoN. The other side to the coin is if you accept
your initial premise which clearly reflects the point of view of this
committee which understands and which has support of a number of
legal organizations that in fact the United States right flow has
sovereignty over to the edge of the margin then clearly you bring into
play a number of constitutional and other legal provisions which would
lead to certain conclusions.
Senator METCALF. Very interesting.
Ambassador Si~nvENsox. The other aspect is that not all other inter-
national lawyers or governments have agreed with that position.
Everyone has agreed, at least everyone that has been a party to the
continental shelf convention to 200 meters. But, the area from 200
meters, the edge of the margin, is an area which has been in dispute as
to the legal position and the U.S. executive branch has not taken a
definitive position on that pending the attempt to resolve by mterna-
tional agreement this question which many felt was left to a certain
PAGENO="0121"
115
extent not precise by the 1958 convention, because, While it did talk
about going out as far as you could exploit, it did talk about adjacency,
an adjacent area, and there has been no agreement as to what you mean
by adjacency.
I don't want to belabor this question. I remember very well the
discussions we have had before we had a common executive branch
position on this question before your committee.
So, I think this committee's records probably show better than
anywhere else where the legal points of view are. But, for my present
purpose the only point I want to make is that where the legal position
is uncertain and you enter into an international agreement to settle
that uncertainty just as in private practice the settlement in effect can
really replace what was the former legal situation.
And, therefore, I think the whole question will be whether this is a
situation such as we have had many times in our history where we
have a boundary dispute.
Now, the fact that we settle a boundary dispute or something else
involving an international arrangement by a treaty which is ratified,
which includes as one of the terms of settlement, something such as
revenue sharing poses quite a different legal question from simply say-
ing this is part of our territory which we are disposing of, some of our
property which we are disposing of. Because in fact, the opposite point
of view would be to say, well, there is a dispute as to this property and
we are settling and one of the terms of the settlement is some kind of
revenue sharing.
Now, let me say again I am not endorsing that point of view but I
am laying before you the legal issue we will have to consider.
Senator METCALF. But, Mr. Ambassador, you have jumped over a
whole raft of legal issues. We have a man from Butte, Mont. who on
a motorcycle jumps over all sorts Of trucks and so forth, Evil Knievel,
and you have done even better than he.
You are assuming that the Senate has ratified a treaty and that we
are sitting around talking about people getting licenses and then going
out exploiting the seabeds. But no treaty has been presented to or
approved by the Senate.
Perhaps it is true that we have to end lawsuits some time and maybe
the way to do it in this case is to say the boundary dispute is over and
we will agree with other nations that the boundary is here.
But, while that is pending, what~happens?
Ambassador STEVENSON. I think, Mr. Chairman, our whole thinking
in terms of revenue sharing was simply that this would be-
Senator METCALF. Finally resolved by treaty and confirmation of a
treaty?
Ambassador STEVENSON. That is correct. Now, the question of provi-
sional application of the treaty is a separate question and here again
I think we have made it clear that we want to work very closely with
Congress as to how provisional application should take place.
That could involve ratification,~ it could involve joint action of the
two Houses of Congress. But, one thing is very clear, it must involve
congressional participation.
There is no thought here of a Presidential Executive agreement. We
are talking about acting jointly with Congress in both the short run
and the long run.
PAGENO="0122"
116
Senator METCALF. I am glad to have that reassurance, and I have
many of the same misgivings about the final resolution of these legal
questions that you have. They are important questions and I hope they
will be finally resolved.
I have one final question for Mr. Ratiner.
In the latest issue of Newsweek an Israeli posed for an Arab picture
on the front. In an article in that magazine Mr. Ratiner was quoted
as saying what this committee has continued to reiterate.
He is talking about the technology for the development of nodules
on the ocean floor. He says, "Our lead is fragile." And then he says,
"If others exploit manganese nodules before we do and obtain a mar-
keting advantage, we will still be importing it."
This committee has continued to insist that we havd a technological
advantage, we have people who are ready and willing to go out on the
ocean floor and develop the nodules for minerals that are in short
supply and that it is a part of the Administration that has kept them
from proceeding.
And then Mr. iRatiner tells us that well, if we don't do something
about it right away we may lose the technological lead that we have
and that Japan, Germany, and some of the others will get way ahead
of us.
How can you say that Congress should not pass some legislation per-
mitting the development of the seabeds under the technology that we
have at the present time, recognizing our balance-of-payments prob-
lem and that our fragile lead may be dissipated while we argue in
international conferences?
Mr. RATINER. Mr. Chairman, I have already received a poison pen
letter because of that statement. I am glad to have some support for
the statement.
Senator METCALF. Congratulations, join the club.
Mr. RATINER. Mr. Chairman, first let me say I do not believe that if
the Law of the Sea Conference occurs on time with a successful treaty
in 1975 that we will have lost the technological lead which we now
enjoy.
I am of the view that that lead will be maintained and retained, even
if I may find in saying so that I am in disagreement with some mem-
bers of the industry.
Mr. Ohairman, the statement in Newsweek, and I am sure we are
all accustomed to it, was quoted out of context. First it comes to my
March 1 testimony and after having made that remark about our tech-
nological lead and how important it is to assure that we do not stifle
corporate initiative and technological advancement I went on a few
lines later which seemed to have escaped the Newsweek reporter to
say the following:
"The Government must protect a variety of important interests in the develop-
ment of ocean law, including our mineral resource interests. We believe that
only through a successful Law of the Sea Conference will the world achieve
harmony and stability in the many new and varied uses of ocean space, in-
cluding deep sea mining, which we are developing right now..
I think if they had quoted that latter sentence I would not have
gotten the poison pen letter.
Thank you, sir
PAGENO="0123"
117
Senator METCALF. Mr. Ambassador, as you know since you have
worked very closely with the staff of this committee, I asked that
question to try to complete the record.
I have a bill-this same article says the bill seems to be dead in the
Senate. Maybe that is wishful thinking on the part of the author of
the article. The bill is not dead unless we get some timely and equi-
table agreement on American rights and responsibilities on, in and
under two-thirds of earth.
As far as this committee is concerned, I think we still insist that
we should develop seabed resources just as we develop the other re-
sources of the United States. And, we are going to insist that we have
an opportunity to do so.
At the same time we are still trying be cooperate with you, Mr. Am-
bassador, `and your administration in getting an international agree-
ment.
So, Senator Fannin, you, and I, and other members of this com-
mittee are going to keep an oversight, we are going to continue to be
concerned and interested.
We hope you will be reporting to us, we hope we can correct any
record that is made as far as misinterpretation of your staff remarks
is concerned.
But we will continue to do what we can to protect our American in-
terests and our American resources.
Senator FANNIN. Mr. Chairman, I want to commend you for the
leadership you have given in respect to attaining these goals which
you have outlined.
I think you are right, the time is rapidly passing by and it is very
important that we do go forward. And, I definitely will support the
chairman in that regard and I commend you highly for carrying this
load and it certainly has `been in many cases a very heavy one.
Senator METOALF. We have some other questions to submit in
writing. They and your answers will go into the record. You know
about some of them because I informed you about the balance-of-
payment problems.
Mr. Ambassador, we are trying to make a record and we will try to
give you some tools which you can work with in your international
negotiations.
We want to cooperate with you and we want to save American re-
sources for the United States. Thank you very much for coming up
and devoting the whole afternoon to answering our questions.
Ambassador STEVENSON. Thank you, Mr. Chairman, we are delighted
to be here and I appreciate everything your committee has done to
help us.
[Subsequent to the hearing the~ following questions were submitted
by Senator Metcalf and responses by Ambassador Stevenson.']
PAGENO="0124"
118
LEE METCALF
MONtANA
`~Cuffcb ,.~it1.z ~etrn1.
WASHINGTON, D.C. 20510
Dear Friend:
Since y'ou have expressed an interest in this subject, I hope
the attached will be helpful.
j..TIIrr~I.aL,LA. .NM~*L. WANX?. N.Y.
~ `~JCnUc~ ~1afrz ..S,ena~.
~ rruv cOMMITIUON
INT~II0N AND INSULAR APVAIRS
WAII4D4OTON. D.C. 20510
1 October 1973
C
0
p
Y
Ambassador John R. Stevenson, Chairman
U. S. Delegation to the Committee on
Peaceful Uses of the Seabed and
Ocean Floor l3eyond the Limits of
National Jurisdiction
U. S. Department of State
Washington, D.C. 20520
Dear Ambassador Stevenson:
As I told you at our hearings the other day, I believe
it to be in the best interests of the United States that you
continue to head our delegation in these vital negotiations.
Following are some questipns which I had before no at
the Subcommittee hearing on the progress-status report on the
status of the Law of the Sea Conference scheduled to begin at
the United Nations this winter and to continue in Santiago,
Chile, next spring.
Some of these questions are mine. Others were drafted
by staff and other observers officially a part of your delega-
tion. As they may overlap, feel free to combine them. This
letter, the attached questions, and your answers will be printed
as part of our hearing record.
I would like to have your reply in time to have these
hearings printed and available for such use as you may see fit
to make of them in New York this winter. We are prepared to
print our hearings as soon as possible after we receive your
reply.
Very truly yours,
ORiGINAL SIGNED QY
LEE METCALF
Lee Metcalf, Chairman
Subcommittee on Minerals,
Materials and Fuels
Enclosures
PAGENO="0125"
119
Questions submitted by Senator Lee Metcalf, Chairman, Subcommittee
on Minerals, Materials and Fuels, Senate Committee on Interior and
Insular Affairs, to Ambassador John R. Stevenson, Chairman, U. S.
Delegation to the Committee on Peaôeful Uses of the Seabed and
Ocean Floor Beyond the Limits of National Jurisdiction, U. S. De-
partment of State
1 October 1973
No. 1
The Seabed Committee has some 90 members. If and when
there is a Law of the Sea Conference, it will be open to all 130
or so xrembers of the United Nations. It seems to me that we're
having enough trouble with the 90 who have at least some
familiarity with the problems. How are the new boys on the
block -- with almost enough votes to prevent agreement in a
conference which requires a two-thirds majority for approval --
going to be brought up-to-date?
No. 2
From our observers at Geneva this past summer, I under-
stand that the Micronesians have a particular problem in con-
nection with the seabed. As you know, the Committee on Interior
and Insular Affairs wears at least two hats -- one covers the
Trust Territories. So do our Administrative agencies. Can you
tell me if our delegation is in a position to represent the
interests of the Micronesjans? If not, how would the Micronesians
be able to state their case to the Conference?
No. 3
How long do we expect our mining industry to wait for any
acceptable agreement? Isn't it true that certain countries such
as Canada (and even the United States) have begun to issue oil
leases beyond the 200-meter isobath? Doesn't this indicate that
the energy interests of the world cannot wait for the United
Nations to agree to a settlement?
No. 4
What is the Seabed con ferehcie schedule? New York this
winter, when? What about next year? What about the future of
the U. N. Seabed Committee? In light of Chairman Amerasinghe's
closing statement to the Seabeds Committee at the end of August
1973, and keeping in mind the considerable repressed opinion in
that Committee that preparation was insufficient, what creditable
expectations remain for an early Conference and agreement? Do
you think that the political will to agree exists in the
Committee?
Is it likely that futur~preparatory seiiions will be
scheduled before the Law of the Sea Conference takes place --
even if such sessions may be labeled differently? If such sessions
do not take place, how can a Conference be approached with any
hope of success? What will the effect of the Chilean troubles
have on the Conference? Has it not now become apparent that the
Conference has in fact been delayed? In view of all these problems,
is a successful (from the U. S. viewpoint including ratification)
Conference likely to be completed in 1975? What arc the chances
that such a Conference cannot be completed before the end of 1976?
Do you believe there is any chance of not reaching final aqreement
in even 1977?
If there is no Santiag~, or no agreement is reached in
Santiago, speculation has it 4hat the next chapter in this saga
will be on to Vienna in 1975. I've seen thef film "Around the World
in Eighty Days." There are tI~pse who say tI~e Administration is
doing an around the world in ~ighty years. How long do we wait?
PAGENO="0126"
120
No. 5
As the Seabed Committee wound up in Geneva late in August,
I understand sone delegates were suggesting that it was not the
purpose of these meetings to iron out as many differences in treaty
language as possible but rather to define the various positions and
make the position of each nation known to all the others -- pre-
sumably so that all that would have to be done in Santiago would be
for the voting blocs to sit down behind closed doors and make deals.
This is not ny impression of what we have been trying to do for the
past two and one-half years -- but, at least, do we have all the
positions on record?
Are recorded positions alone enough preparation to sit down
and make deals?
No. 6
Over the past few years, it seems to me, the United States
has made an all-out effort to reach international agreement. On
the basis of my own observation, based upon testimony before Com-
mittees of which I am a member, based upon reports from trusted
staff members, based upon information from observers at six United
Nations Seabed Committee meetings, it is apparent you have done
your best and that we have failed.
If this is the case, failure is understandable. If they
voted in the Seabed Committee, we would have one vote -- and one
vote out of 90 is no majority. And that vote will shrink in a
Law of the Sea Conference attended by representatives of some 130
nations.
If and when it becomes obvious to Administration spokesmen
that we are not going to be able to secure international agree-
ment in this vital area, are we prepared to walk away from a con-
ference instead of continuing an exercise in futility?
In his letter to Senator Fulbright, last March, Mr. Brower
said: "Prudence dictates that we also begin at once to formulate
a legislative approach."
In June, Mr. Ratiner told this subcommittee that you are
working on it -- that the first step was an environmental impact
statement. How are you doing on formulating a legislative approach
and/or an environmental impact statement?
What has the Administration been doing to prepare alter-
natives, if a treaty cannot be implemented even provisionally in
1975, to encourage the recovery of seabed resources? Are detailed
and concrete modifications to S. 1134 prepared? Does the Adminis-
tration have an alternative interim solution developed? If so,
what is it?
No. 7
At Geneva in 1972, you said that -- "some delegations appear
to have the impression that maritime countries in general, and the
United States in particular, can be expected to sacrifice in these
negotiations basic elements of their national policy on resources.
This is not true."
In the knowledge that our hearings will be printed, pre-
sumably available and read by delegates from other nations -- can
you toll me what arc the irreducible minimums that the United States
must qot out of this conference?
(more)
PAGENO="0127"
121
No. 8
Whatever happened to the draft treaty of 1970 -- with its
trusteeship zone and appendices, indluding one on mining? Is it
still U. S. policy?
No.9
Do you think the 200-mile exclusive economic zone can achieve
a two-thirds majority vote in a Law of the Sea Conference? How
about a 200-meter zone? Are there particular problems with separ-
ating the seabed minerals from the living resources and the water
column?
No. 10
We come now to the compulsory dispute settlement issue. We're
increasingly dependent on imported oil and minerals. At the same
time, american corporate properties are being nationalized --
expropriated -- or taken over under the polite name of "participa-
tion" -- around the world. The question here is not whether indi-
vidual countries have the right under international law to take
over these properties. Rather it is whether there shall be objec-
tive, equitable, compulsory settlement of disputes. Isn't this one
of the non-negotiable items on our agenda?
Would you discuss what progress has been made toward com-
pulsory dispute settlement concepts,, both in coastal and inter-
national waters, being acceptable to other States? What appears
to be acceptable to developing Nation-States and to other developed
countries?
No.11
In a law review article, a committee staff member, Mr.
David P. Stang, summarizes what he dalls "the major unresolved
issues reflected in two documents." The documents are the
"principles draft" prepared by the working group of Subcommittee
Number One and the "list" adopted by the full. Committee.
I attach excerpts from the Stang Article. Please comment
on both the form and the substance of this summary. Do you agree
that this is a fair summary of the issues? What is the U. S.
position on each?
No.12
My attention has been called to an address entitled
"Sounding Our Ocean Future." It was presented by the NOAA Admin-
istrator, Dr. Robert White to the Conference on the Oceans and
National Economic Development, sponsored by the National Oceanic
and Atmospheric Administration, in Seattle on 17 July. I realize
that you were in Geneva at that time, and Doctor White's address
may have escaped your attention.
I have taken excerpts from that speech, which are attached.
I'll appreciate your views on Doctor White's reference to
what he calls the "ocean balance of payments."
For example, ho says that "our adverse balance of payments
in ocean and potential ocean products and services is a number
almost equal to the total U. S. balance of payments deficit, and
it is growing in many important areas."
Please give me your thoughts ~n this.
(more)
PAGENO="0128"
122
EXCERPTS FROM SOUNDING OUR OCEAN FUTURE," AN ADDRESS BY DR. ROBERT M.
NH ITE, ADMINISTRATOR, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
U. S. DEPARTMENT OF COMMERCE, AT TIlE NOAR CONFERENCE ON THE OCEANS AND
NATIONAL ECONOMIC DEVELOPMENT, 17 JULY 1973, SEATTLE, WASHINGTON.
Has anybody ever looked at something we might call the ocean
balance of payments as one way to keep score on how we are doing? Such
a concept has its deficiencies, but it is at least an intriguing way to
demonstrate our dependence upon the oceans in quantitative terms. It
also offers a way of expressing the importance of the oceans in terms
which we can hope will speak to those we must convince.
"As you know, the Commerce Department constitutes, among other
things, an impressive resource of statistics on virtually every aspect
of the national economy. I have turned to our Bureau of Competitive
Assessment and Business Policy for an estimate of the total 1972 factors
contributing to what we might call an ocean balance of payments value.
This figure includes not only the balance from existing trade in ocean
products and services, but also in certain commodities where ocean re-
sources -- were they exploited, which they are not now -- could provide
important relief.
"In developing these figures, we discovered that traditional
Federal statistical reporting and analysis techniques are not always
ocean-oriented. An analytical purist might consider the ocean balance
of payments figure a kind of statistical bouillabiasse, but it will
serve to make the point.
"To put this figure in perspective, I must remind you that the
total U. S. balance of payments deficit in calendar year 1972 was $10.3
ISITITon. Our adverse balance of trade alone was $6.9 billion.
"It is abundantly clear that with our rising dependence upon
foreign sources of raw materials and fuels, we should seek as a matter
of general national policy to reduce this adverse balance. We have
seen the economic effects of this drain.
"The numbers I have been able to assemble indicate that the U. S.
`ocean balance of payments' deficit for 1972 was more than $8 billion.
I doubt further study would prove it smaller, but I should not be
surprised if it were larger.
"Let us examine somo of the more significant elements of this
total. The largest single deficit account is petroleum -- both crude
a~id refined products -- with an adverse balance of slightly over $4
billion. In view of the present energy crisis and the higher prices
being charged for foreign oil, it will be even larger for 1973. As
for the 1980's -- the estimates are staggering.
"The adverse balance for natural gas in 1972 was $400 million;
by 1980 this total may rise as high as $4 billion, depending upon the
quantity of liquified natural gas we import and the price we pay for
it.
"You may be shocked to find that the 1972 adverse balance in fish
and fish products was $1.3 billion -- up 43 per cent over 1971 and up
318 per cent over 1960. We have no hard figures on the balance in fish-
L~j gear, marine electronics and the like, but you may be sure it is
substantial.
"Here are some other figures:
-- For ocean freight charges, an adverse balance of approximately
$1.2 billion.
-- For Americans traveling from U. S. ports on foreign cruise
ships, approximately $263 million.
(more)
PAGENO="0129"
123
-- For those raw materials we would expect to get from mining
manganese nodules on the ocean floor -- their copper, nickel, cobalt
and other content: The 1972 adverse balance was some $1,074 million.
"I am not suggesting that the solution to all our raw materials
and balance of payments problems reside in the oceans. Clearly, in the
case of oil, U. S. offshore production cannot be increased to wipe out
the deficit -- even if it were desirable, which it may not be. How-
ever, when roadblocks to expanded production are removed, which
President Nixon has ordered done, we will ease substantially the dollar
drain from this source.
"The balance of payments, of course, cannot be the only consider-
ation in adopting a policy aimed at the substitution of deep-sea re-
sources for imports. Our national decisions must consider the impact
of reduced buying on the economics of developing countries, balancing
the interests and rights of the whole international community in the
resources beneath the non-sovereign high seas.
"But let us not lose sight of the fact -- that our adverse balance
of payments in ocean and potential ocean products and services is a
nurther almost equal to the total U. S. balance of payments deficit, and
it is growinq in many important areas. . ."
41 # 44
23-317 0 - 73 - 9
PAGENO="0130"
124
D?~VTD p. 5Tj'~i~. ~ TBm7~'l' MT~1flPTTY ( TI T~T.SEN7TE EOMMTTTEF ON
INTERIOR AND iNSULAR AFFAIRS -- SEPTEMBER, 1973.
"1. The limits of the territorial sea* and navigational rights
of vessels and aircraft, in and over international straits which are
contained within the territorial sea of coastal states.
`2. The limits of coastal state jurisdictiOn** over resources
of the seabed adjacent to and beyond the territorial sea and the nature
and limitations of coastal state jurisdictional authority in such areas.
"3. The nature of fishing rights which coastal countries may
obtain in high seas areas adjacent to their coasts to regulate the
activities of foreign fishing fleets, the distance from the coastline
in which such coastal nation rights would apply,** and the substantive
limitations on such coastal country rights.
"4. The measures which coastal countries may take in high seas
areas adjacent to their coasts to protect themselves against marine
pollution causoJ by foreign nations or their nationals, the distance
from the coastline in whici such coastal nation rights would apply, and
the substantive limitations on such coastal nation rights.
"5. The measures which coastal countries may take in high seas
areas adjacent to their coasts to regulate the conduct by foreign
nationals of scientific research on the high seas and underlying sea-
bed, the distanco from the coastline in which such coastal country
rights would apply, and the substantive limitations on such coastal
country rights.
"6. The rights of individual countries and their nationals to
explore and exploit the natural resources of the seabed beyond the
limits of national jurisdiction, the rules and conditions under which
such exploration and exploitation would take place, and the institu-
tional and legal means of administering such exploration and exploita-
tion, and of distributing benefits resulting from such activities
(revenue sharing), and of resolving disputes arising from such
activities."
"~` Although not expressly stated in Seabed Committee reports, general
agreement did seem to be emerging that the territorial sea should be
limited to twelve miles. But agreement on this issue by developing
coastal states was clearly predicated on the understanding that their
resource interests in areas adjacent to their coasts would be adequately
protected.
** A consensus has begun to develop on a 200-mile limit regarding coastal
state resources jurisdiction. Coastal states with continental margins
extending beyond 200 miles, however, seem to prefer that their entire
continental margins be included within the limits of coastal state juris-
diction. The limits question, however, remains largely unresolved because
of continuing differences over the "mix" of coastal state rights and
duties with respect to other states' rights and duties regarding resource
matters in such areas."
PAGENO="0131"
125
Also, Mr. Edward Week, Presidential Advisor and Executive
Director of the Stratton Commission, has written in his book
The Politics of the Ocean (page 324), that oceans policy relating
to mi~ing i~i the last years of the 1960's was not guided by
adequate study of the balance of~payments inpacts. Did the U. S.
Government, prior to introduction of its 1970 Draft Seabeds
Treaty, conduct a thorough and comprehensive study of the existing
and potential economic contribution to the national economy
made by the domestic marine resource industries? In the light
of new developments such as in the hard minerals industry, has
any new study been commissioned to this end? If so, are these
studies available to Congress?
Specifically, has the Treasury Department or the Commerce
Department produced any studies computing the impact on our
balance of payments position which could be made by a success-
ful domestic industry producinq copper, nickel, manganese and
cobalt from manganese nodules? Is this study available to
Congress?
If the U. S. agrees to a monopoly International Operating
Begime with its built-in proclivity for protectionism or to a
mixed regime of licensing and operations by the International
Seabeds Authority, to what extent will the U. S. balance of pay-
ments be affected? Similarly, what objective measurements have
you obtained to show the effect of each policy option on our
security of supply of the relavent metals?
No.13
In a final law of the sea treaty, how will the various
conflicting interests of coastal and technologically advanced
states be accommodated with those of the international community
and less developed states on the specific subjects of coastal
resources, pollution, scientific research, and the deep sea bed,
as you suggest is necessary for a broadly supported treaty?
No.14
What is your current thinking on revenue sharing and what
expression of interest and support for this concept can you
report from the summer session?
No. 15
In August 1972 you referred to the concept of revenue
sharing as "the equal distribution of benefits from the seabeds."
This past July, however, you called it a "method of achieving
equity in a final law of the sea treaty" and referred to the role
of revenue sharing as "an overall political settlement" of law
of the sea issues. Does this indicate a new executive branch
view on the rationale for the revenue sharing proposal?
No. 16
In your statement you indicate that one of the purposes
of provisional application of the treaty prior to ratification,
was to assure that seabed mining would be conducted under an
internationally agreed regime. How do you expect to handle
mining operations that have begun prior to agreement on a treaty
text -- with or without S. 1134 type legislation?
(more)
PAGENO="0132"
126
No. 17
You indicated that it is the Administrations belief that
the conference schedule should be adhered to since little more
progress can be made without political negotiations taking place.
Do you believe that all of the necessary compromises could occur
with equality in the planned eight week conference session? If
not, what do you consider to be the latest acceptable date for
an agreement?
No. 18
It appears that the U. S. and the LDC5 are far apart in
their ideas for an acceptable deep seabed regime. What incentive
do the LDC5 have to compromise with us? What justification do
you have for telling our potential deep sea miners to hold up
exploiting if we are still so far apart on a regime that will ho
acceptal)le to then?
No. 19
have there h-ion any economic impact studies to determine
the net economic result to each and every major segment of the
U. S. economy by the various proposals which are being advanced
by the U.S.?
To be more specific -- do you have studies showing what
the dollar effect is on the mining industry and oil industry by
those positions the U. S. advances -- which effect that area of
the economy?
Do you have such studies on the fishing industry?
If the position advocated by the U. S. delegation were
adopted and became part of the treaty, what would he the result
on costs of oil, materials, food to the U. S. taxpayer --
consumer.
No. 20
Consultations ariong and between regional groups of De-
veloping Countries outside the Seabed Committee forum have
strengthened the poiitical base for Coastal State economic
jurisdiction over a broad marine zone. The U. S. delegation
has indicated this as a fact and as a change of position lies
indicated its willingness to accept the trend provided certain
international standards and protections are maintained in that
zone. The original U. S. proposals for a strong International
Seabeds Authority on the deep seabeds ware put forth as a
"bargaining chip" to purchase a narrow Coastal State zone of
jurisdiction. Is there any advantage to the U. S. to maintain
its thrust for a strong ISA in the face of this "broad shelf"
consensus? By doing so, are we not giving something away for
nothing?
No. 21
On 28 July 1972, President Nixon sent Congress a message
concerning an agreement with Drazil. It recognized on an interim
basis the broad shelf claims of Brazil. Under this agreement
the U. S. must make large payments and must exercise our police
powers against U. S. citizens in protection of Drazilian terri-
torial claims beyond the three- or twelve-mile limit. By this
agreement, is not the U. S. itself endorsing unilateral acts
and conducting Law-of-the-Sea negotiations outside the forum of
the United Nations? This is not by any means an isolated example
(more)
PAGENO="0133"
127
of U. S. action outside the bogged-down Seabeds Committee. How
can the State Department justify its position on S. 1134 in the
face of this type of bilateralism and reccgnition of unilateralism?
No. 22
Does the U. S. delegation see in tho proliferation of
alternative texts, a statement of common ideas or a multiplicity
of irreconcilable positions?
No. 23~
At the July-August 1973 Seabeds Committee meeting in
Geneva, there was some opinion expressed that the Enterprise and
Licensing systems were closer together substantively than they
were emotionally. Can the U. S. agree to any system whereby the
International Seaheds Authority functions as both the administrator
and the operator? Can such an arrangement function without dis-
crimination to competing State or private enterprise?
No. 24
Do you believe it is possible to receive a two-thirds
majority vote on any of the positions advanced by the United
States? If so, which ones?
No. 25
Do you think that it will be possible to include objective
ocean mining regulations in the body of the agreed treaty? Is it
acceptable as has bean suggested in some quarters to grant broad
discretionary powers of administration and regulation to the
International Seabeds Authority in lieu of detailed provisions
relating to resource management?
No. 26
With regard to your proposals that the International Regime
should be put into immediate force and effect upon signature at
the Conference:
Do you think it wise to subject U. S. ocean operations to
such a regime before Congress has had an opportunity to review
the results of the Conference during its ratification process?
Suppose Congress declines ratificatio2?
I~oeping in mind that such a Provisional Regime will require
domestic legislation to implement it, have you begun to formulate
this legislation so that it is available on your 1974-75 time-
table for agreement? Does the cautious optiriism you have ex-
pressed cover the drafting and enactment of legislation in the
year and a quarter remaining on your schedule?
No. 27
The marine hard minerals industry alleges that many pro-
visions of the U. S. Draft Seabeds Treaty are individually more
burdensome than their land counterparts or are unique burdens
which have been ioposc(1 by the Treaty despite their absence in
qen~ral terrentrial resource manaqement practice around the
world. Examples include the complex syatem of fees, taxes, rentu,
tronL-t~nd bonune:; end hiqh royalties, the stringent relinquish-
ment syatern, the lack of provision for exclusivity in manqanese
nodule licenues, the requirement to ohtain a reconnaissance
permit, the abnormally short production period, the stringent
information trai;s Car provision. Industry spokesmen find it hard
(nore)
PAGENO="0134"
128
to believe that these provisions would encourage a new industry.
Has tho Administration attempted a review of those provisions and,
if so, has that review resulted in a modified policy for U. S.
delegation use at the Law of the Sea Conference?
No. 28
With closed frontiers, expanding industry, and the in-
creasing land use problems, should not U. S. environmental
conservation policy and practices be tailored to the most
efficient and least destructive resource recovery activity? In
this regard might not ocean mining for U.S. mineral requirements
be an objective to be pursued with more vigor than is apparent
at the United Nations in order to mitigate strip and open pit
mining effects in our own mining states?
No. 29
I understand that a central issue between developing and
developed countries on the deep seabed regime and machinery is
"Who may exploit the area" and that the developing countries
and the United States have absolutely opposite positions on this
issue. I understand that the developing countries want to exert
absolute control over both the exploration for and development
of seabed resources by means of a monopoly operating agency
called the Enterprise and that the Administration advocates a
first-come-first-served licensing system. Will you please ex-
plain this situation in some detail and in particular give us
your views on how this gulf can be bridged in the Law of the
Sea Conference while protecting United States resource interests?
Can there be a compromise between these two extremes?
No. 30
Administration witnesses have said that the passage of
S. 1134 would damage our negotiating position on the law of the
sea. However, it is difficult to imagine more extreme positions
than those already taken. How would the enactment of S. 1134
lead to a more difficult situation than that which exists?
No. 31
When Administration witnesses appeared before this Com-
mittee in Juno, great emphasis was placed on the concept of a
provisional reqime. We'd like to know what substantive dis-
cussions took place in Geneva regarding this concept and what
the outlook in? Could you brief us on the work done by the
Administration to develop its provisional regime idea more fully
and clearly? Has the Administration given thought to specific
legislation -- including protections against the possibility of
the treaty itself not being ratified by the U. S. or never
cooing into effective force as a treaty, and protection for
investments made during such a provisional period.
No. 32
What are the najor divergent views on the relative powers
of the propose~i Seabed Assembly and the Council -- including
concepts of wciqhtcJ voting in the Council? Is it your opinion
that these e:ztrcmcs will meet in the middle and soon enough for
a tincly internatinial agreement?
(more)
PAGENO="0135"
129
No.33
Are there hazards in the participation of the United States
in an Law of the Sea Conference where the positions of the
majority of non-industrial States are so different from ours?
Out of such a conference, couldn't there be a treaty which the
U. S. would not ratify. How can we avoid this? Would not the
passage of 5. 1134 in fact establish the firmness of our seabed
position?
No.34
We understand that the progress on other issues, such as
fishing, Coastal State economic zone, passage through straits,
etc., in Subcommittee ii has been almost non-existent, that the
work never proceeded sufficiently to draft any useful alternative
treaty articles. how can this lack of progress be compensated
for? Aren't there issues alone apt to block achievement of a
timely and satisfactory treaty?
No. 35
We understand that the State Department has begun to pre-
pare an environmental impact statement on all Law of the Sea
issues which would he discussed at the 1974 Law of the Sea Con-
ference. Will you explain what authority is contained
within this National Environmental Policy Act which creates a
duty to prepare an impact statement, the geographical scope of
which extends within the water column beyond the territorial sea
and on the seabed beyond the seward limits of the continental
shelf?
41 41 41 41
PAGENO="0136"
130
DEPARTMENT OF STATE
Wash5igto~, D.C. 20520
November 9, 1973
Honorable Lee Metcalf
Committee on Interior and
Insular Affairs
United States Senate
Washington, D.C. 20510
Dear Senator Metcalf:
Thank you for your letter of October 1, 1973
that followed up the Law of the Sea hearings of the
Subcommittee on Minerals, Materials and Fuels held
on September 19, 1973. I sincerely appreciated
your kind comment regarding my heading of the Law
of the Sea negotiations. Attached to this letter
are the responses to the questions you asked in
your October 1 letter. To facilitate an orderly
reply, each question posed is followed with the
response given immediately thereafter.
Senator Hansen also asked three questions that
arose out of the hearing in a letter addressed to me
on September 20, 1973. These three questions were
nearly identical in content to questions Number 26
and 31 in your consolidated series. Hence, by
separate letter, I am also sending the responses pre-
pared to questions Number 26 and 31 to Senator
Hansen.
If I can be of further assistance to you or the
Subcommittee please feel free to call upon me.
Sincerely,
~
hn R. Stevenson
Special Representative of
the President for the Law of
the Sea Conference
PAGENO="0137"
131
1. Question: The Seabed Committee has some 90 members. If and
when there is a Law of the.Sea Cbnference, it will be open to all 130
or so members of the United Nations. It seems to me that were
having enough trouble with the 90 who have at least some familiarity
with the problems. How are the new boys on the block -- with almost
enough votes to prevent agreement in a conference which requires
a two-thirds majority for approval -- going to be brought up-to-date?
Response: Approximately 145 countries will be invited to the Law of
the Sea Conference. Not all of the nations invited are likely to attend.
However some 30 to 40 nations in addition to the 90 members of the
Seabed Comminee are expected to participate. A number of these
countries have attended the preparatory meetings of the Seabed
Committee as observers. During the ~Tuly/August 1973 session, for
example, observers from 15 non-Seabed Committee members were
in attendance.
New participants in the Law of the Sea (LOS) negotiations -- like all
invitees - - will receive the complete records of the Seabed Committee
and any other preparatory documentation prepared in advance of the
Conference. All new participants will also be given the opportunity
to make general statements on their law of the sea policy at Conference
~ons. Provision may be made for such general statomonts at tho
fall organizational session of the Conference.
While it is always conceivable that individual States that have not
participated in the work of the Seabed Committee will bring to the
Conference their own unique perspectives on the law of the sea, we
are fairly confident that the entire spectrum of general views have
been represented in the Seabed Committee's preparatory work.
Hence there appears to be little possibility that the new members
of the Conference will hold views widely disparate from those presently
contained in the documentation.
2. Question: From our observers at Geneva this past summer, I
understand that the Micronesians have a particular problem in con-
nection with the seabed. As you know, the Committee on Interior and
Insular Affairs wears at least two hats - - one covers the Trust
Territories. So do our Administrative agencies. Can you tell me
if our delegation is in a position to represent the interests of the
Micronesians? If not, how would the Micronesians be able to state
their case to the Conference?
PAGENO="0138"
132
-~---.-~--. -i--*---~---~---~.-~-i
w~ eij~~ ~ ~ ~ ~i~Li1 M~ ~ ~pi ~-
sentatives to explore the possibility for acc~mmodating our
respective positions. We have further agreed that if such accommo-
dation is not possible, we will ensure that their views are brought
to the attention of the LOS Corderance in a timely and appropriate
fashion. In the most recent consultations, a teani representing
various U. S. Government agencies on the Law of the Sea Ta sk
Force visited Micronesia, October 23-27. This visit will be
followed by a return triD to Washington by representatives of the
Congress of Micronesia prior to the opening of the LOS Conference.
3. Question: How long do we expect our mining industry to wait for
any acceptable agreement? Isn't it true that certain countries such
as Canada (and even the United States) have begun to issue oil leases
beyond the 200-meter isobath? Doesn't this indicate that the energy
interests of the world cannot wait for the United Nations to agree to
a settlement?
Response: This question concerns two different types of mining
activity. With respect to petroleum leasing beyond the 200 meter
.~~t_~__.,_t_ I.1__- ~ ~ ~ 4,,-~ T-~-.~ ~ ~ -1-.-~ ~.!-.
Energy Policy Statement of ~Tune 29, 1973, has issued a call for
nominations for offshore areas beyond the 200 meter isobath, and
in the normal course of events will be holding a lease sale or sales
for oil and gas in selected areas beyond the 200 meter isobath. The
negotiations on the Law of the Sea are not interfering with the develop-
ment of the outer continental shelf beyond 200 meters. To the extent
that Law of the Sea issues have become confused with our offshore
leasing policy, the Department of the Interior has recently issued a
notice in the Federal Register, a copy of which is attached, which
should clarify any confusion.
With respect to hard mineral mining on the deep seabed, we have not
asked our mining industry to wait for an international agreement.
As you know, the United States Government does not have the legal
authority to issue leases in that area in the absence of new legislation,
though it is our view that United States citizens have the right to mine
that area under present international law and do not need a license or
permit from their government. We advised the Senate Interior Committee
of our position on the passage of certain interim legislation in a
letter to the Chairman on March 1, 1973.
PAGENO="0139"
133
Insofar as we are aware, ~o American mining company will be
prepared to begin production of deep sea hard minerals earlier
than the projected time for conclusion of the Law of the Sea
Conference. In addition, we have, as you kfiow, proposed the
provisional entry into force of the Law of the Sea Treaty. If this
proposal is accepted, we may succeed in reducing to a matter
of a few months time necessary after concluding the Law of the
Sea Treaty to enable deep sea miners to obtain internationally
recognized, exclusive rights Lo mine selected areas of the deep
seabed.
4. Question: What is the Seabed conference schedule? New York
this winter, when? What about next year? What about the future of
the U. N. SeabedCommittee? In light of Chairman Amerasinghe's
closing statement to the Seabeds Committee at the end of August
1973, and keeping in mind the considerable repressed opinion in
that Committee that preparation was insufficient, what creditable
expectations remain for an early Conference and agreement? Do
you think that the political will to agree exists in the Committee?
Is it likely that future preparatory sessions will be scheduled before
the T~w of th~ ~ Conference takes r~12c~ -- ~en~ if such s~ssions
may be labeled differently? If such sessions do not take place, how
can a Conference be approached with any hope of success? What will
the effect of the Chilean troubles have on the Conference? Has it
not now become apparent that the Conference has in fact been delayed?
In view of all these problems, is a successful (from the U. S. view-
poing including ratification) Conference likely to be compleLed in
1975? What are the chances that such a Conference cannot be com-
pleted before the end of 1976? Do you believe there is any chance
of not reaching final agreement in~ even 1977?
If there is no Santiago, or no agreement is reached in Santiago,
speculation has it that the next chapter in this saga will be on to
Vienna in l975. lye seen the film Around the World in Eighty Days.
There are those who say the Administration is doing an around the
world in eighty years. How long do we wait?
Response: Attached is a copy of the LOS Conference resolution
adopted by the TINGA's First Committee on October 26. The reso-
lution has not as yet been given final approval in Plenary though it
is virLually certain to obtain it within the next few weeks.
PAGENO="0140"
134 -
The answers to most of the questions you pose regarding Conference
schedule are answered in the resolution itself. However, several
additional points should be noted.
The Conference has not been delayed and the substantive session is
now scheduled to convene in the summer of 1974, rather than April,
as originally contemplated. However, this yearTs resolution calls
for ten weeks of substantive work in 1974 rather than the eight weeks
previously envisaged. Paragraph 5 of the resolution does allow for
additional preparatory work prior to the convening of the ten week
substantive session.
The resolution reiterates the expectation that any second substantive
session of the LOS Conference be convened not later than 1975. We
continue to support a timely LOS Conference and by timely" we
mean a Conference which concludes not later than 1975. We would
hope that ratification of the resulting LOS Convention would take
place rapidly. However, several years may certainly elapse be-
tween signature of a treaty and its entry into force. To provide for
this interim period we have proposed that certain key sections of
the treaty - - specifically those dealing with the deep seabed regime
and fisheries - - encer inco force on a provisional basis immethacely
upon signature. Whilethere appears to be some interest in provisional
application, and a study of precedents has been completed by the
Secretariat, detailed discussion of this issue has not been held on
the international level.
5. Question: As the Seabed Committee wound up in Geneva late in
August, I understand some delegates were suggesting that it was
not the purpose of these meetings to iron out as many differences in
treaty language as possible but rather to define the various positions
and make the position of each nation known to all the others --
presumably so that all that would have to be done in Santiago would
be for the voting blocs to sit down behind closed doors and make
deals. This is not my impression of what we have been trying to do
for the past two and one-half years -- but, at least, do we have all
the positions on record?
Are recorded positions alone enough preparation to sit down and
make deals?
PAGENO="0141"
135
Response: In our opinion, .the definition of positions alone is not
sufficient preparation for final negotiations. We view the goal of
the preparatory meetings as having been twofold: to reduce the
number of disputed issues and to draft actua~1 treaty language for
use in the final negotiating process. The product of preparatory
negoiiations should be agreed tre~ty language in as many areas as
possible, and where agreement is not possible to define alternate
and bracketed treaty texts. Of course the accurate definition and
thorough understanding of national positions is an essential element
in both the achievement of agreed language and in final negotiating
deeisiou~. To Lhe extent that positions are explored and understood,
the groundwork can be laid for more detailed drafting and final
compromises. As you are aware, at this summers meeting the
Subcommittee made varying degrees of progress on drafting and
refinement of language. Subcommittee I was able to develop
alternative and bracketed texts with generally agreed language. In
the process the issues on which there are fundamental differences,
as well as those on which there is agreement, have been highlighted.
The Subcommittee m Working Group on Marine Pollution placed
approximately half of its draft articles in acceptable form for the
Conference. However, the Subcommittee ifi Working Group on
R~enf-ifir P~~e~rr± ~n1 i~oremittee II "Tere not as snocessfnl in
reducing disputed issues and drafting agreed treaty text. It should
be noted that while the issues dealt with in Subcommittee II are very
complex the actual treaty provisions needed to resolve them are
relatively simple to draft once the, political decisions have been
negotiated.
6. Question: Over the past few years, it seems to me, the United
States has made an all-out effort to reach international agreement.
On the basis of my own observation, based upon testimony before
Committees of which I am a member, based upon reports from
trusted staff members, based upon information from observers at
six United Nations Seabed Committee meetings, it is apparent you
have done your best and that we have failed
If this is the case, failure is understandable. If they voted in the
Seabed Committee, we would have one vote -- and one vote out of
90 is no majority. And that vote will shrink in a Law of the Sea
Conference attended by representatives of some 130 nations.
PAGENO="0142"
136
If and when it becomes obvious to Administration spokesmen
that we are not going to be able to secure international agreement
in this vital area, are we prepared to walk away from a conference
instead of continuing an exercise in futility?
In his letter to Senator Fulbright, last March, Mr. Brower said:
`Prudence dictates that we also begin at once to formulate a
legislative approach.
In iune, Mr. Ratiner told this subcommittee that you are working
on it - - that the first step was an environmental impact statement.
How are you doing on formulaLing a legislative approach and/or an
environmental impact statement?
What has the Administration been doing to prepare alternatives, if
a treaty cannot be implemented even provisionally in 1975, to
encourage the recovery of seabed resources? Are detailed and
concrete modifications to S. 1134 prepared? Does the Administration
have an alternative interim solution developed? If so, what is it?
Response: We do not agree that we have failed in an all-out effort
~r, r~~h ~ rnation?J a?reement on the Law of the Sea. Negotiation
of a treaty as complex and important as the Law of the Sea with
more than 140 countries, is a painstaking and time consuming process.
This negotiation deals with issues which are not only of fundamental
importance to each sovereign State on their own merits, but some
transcend the interests of individual States. For example, one of
the principal difficulties in Subcommittee I is the fact that we are
trying to accommodate the disparate views which the developing
countries of the world and the developed countries of the world have
in respect of their overall relationships to each other regarding
foreign affairs and particularly foreign economic affairs. The
developing countries perceive that the opportunity is now available
to them to bring about a new basis in international law for doing
business with the industrially advanced countries in respect of
resources. On the other hand, the industrially advanced countries
themselves concerned with the need to supply their economies with
important commodities do not believe that the approach pursued by
the developing countries will meet their national interests. It is
one function of the Law of the Sea Conference to attempt a rap-
prochement on this important cuestion and it is too early for us to
agree that we have either failed or succeeded in that effort.
PAGENO="0143"
137
You raise the question of pur unprotected voting position in
the Conference -- that is, we have one vote which will be quite
small in a Conference of over 140 nations. Numerically that is
true. As a matter of practical negotiating strength, how~ver, we
doubt that such a voting picture is accurate. It is clear that we
probably can be out-voted in most issues in the Law of the Sea
Conference. The real question, however, is will we be out-voted.
It is our belief that most of the countries that will be represented
in the Law of the Sea Conference are keenly aware of the importance
of a genuine accommodation of all States interests in the Law of
the E~a.
In particular, we believe most such countries are aware of the
unique role which the United States plays in these negotiations and
will play in the future of ocean development after a treaty is nego-
tiated. We doubt, therefore, that any responsible nation will, in
moving to the crucial stage of negotiations ahead, attempt to use
its voting power to force decisions which will make it difficult or
impossible for the United &ates to become a party to this new
Convention. Hence, in answer to the question raised in your third
paragraph, it is our view that it still remains possible to secure
international agreement in this vital area on terms accept able to
the Administration, Congress and the public. Of course, we are
prepared to walk away from the Conference when it is obvious
that this will not be possible. We have not, however, reached such
a conclusion at a time when serious negotiations are about to begin.
The most difficult issue connected with the preparation of alternative
legislation is the preparation of an environmental impact statement.
Drafting of a bill will take considerably less time, money and effort
than the drafting of such an impaót statem a-it. Our progress on the
preparation of an impact statement is not as rapid as we would have
liked, but within the limits of available manpower and funds, we
think we are doing well. The Departments of Interior and Commerce
have jointly been working on such a statement concerning deep seabed
mining for about one year and theNSC Interagency Task Force has
recently begun consideration of the issues relating to an overall
impact statement.
You have inquiried whether detailed and concrete modifications to
5. 1134 have been prepared. They have not. If the Administration
were to determine that the Law of, the Sea Conference would be
neither timely nor successful, this determination could probably not
be made before the end of the summer of 1974. Draft bills originated
in the Adminii~tration on a subject~ as fraught with political sensitivities
PAGENO="0144"
138
as this one, in our view, .can easily acquire a life of their own,
mislead other nations and result in harm to our negotiating effort.
We have, on the other hand, studied S. 1134 with considerable care,
commented on it in our March 1 testimony'and would be prepared
on fairly short notice to draft an alternative bill should that prove
necessary. We cannot at this time discuss the substance of the
alternative legislative approach for the reasons we have already
given.
7. Question: At Geneva in 1972, you said -- `some delegations
appear to ha~ie the impression that maritime countries in general,
and the United States in particular, can be expected to sacrifice
in these negotiations basic elements of their national policy on re-
sources. This is not true.
In the knowledge that ~jour hearings will be printed, presumably
available and read by delegates from other nations -- can you tell
me what are the irreducible minimums that the United States must
get out of this conference?
Response: The United States is presently participating in one of
the rnoni widely ~ftended ~nd in1pori2n~ rnh1lHl2~er~1 nerrnH2~ic~n~
ever held under the aegis of the United Nations. The issues involved
are complex and interrelated. Consequently, we do no~ believe that
it would facilitate the achievement of United States objectives to
attempt to state publicly what the irreducible minimums are that
we could accept at the Third Conference on the Law of the Sea.
8. Question: Whatever happened to the draft treaty of 1970 -- with
its trusteeship zone and appendices, including one on mining? Is it
still U. S. policy?
Response: The appendices to the draft 1970 treaty never had the
status of "US policy". The appendices were submitted as a working
paper for discussion purposes. Based on discussions both within
the United States and with other countries in the Law of the Sea
negotiations, we have concluded that the appendices would benefit
from substantial revision. Such a revision will have to take into
accound our present knowledge of the economics and technology
of hard minerals industry, as well as the views of other nations in
the Law of the Sea negotiations.
In many respects we believe the rules may serve as the medium for
bringing together what seem to be widely disparate views on the
overall skeleton or structure of the resource management system.
PAGENO="0145"
139
Vie are giving careful and close atLention to this matter and would
be happy to discuss it with the Committee in more detail in Executive
Session if the Chairman wishes to do so.
With respect to the trusteeship zone, the United States has announced
a new position. That position is cdntained in a statement given by
the Presidents Special Representative for the Law of the Sea Con-
ference to the Seabed Committee on ~Tuly 18, 1973. Attached to that
statement are draft treaty articles entitled The Coastal Seabed
Economic Area. " These articles in ebsence represent a substitute
for the trusteechip zone proposal. The statement and the draft
articles are attached.
9. Question: Do you think the 200-mile exclusive economic zone
can achieve a two- thirds majority Uote in a Law of the Sea Con-
ference? How about a 200-meter zone? Are there particular
problems with separating the seabed minerals from the living re-
sources and the water column?
Response: There is wide support in the Seabeds Committee for a
200 mile exclusive economic zone, particularly among the developing
countries and the Latin American states. Such a zonal concept has
been included in regional documents such as the OAU Resolution and
the Declaration of Santo Domingo, as well as in various darf I articles
that have been submitted to the Seabeds Committee. The 200 meter
concept has far less support, and indeed the issue at this time seems
to be whether to restrict coastal state jurisdiction to 200 miles or
allow it to extend even further to the edge of the margin. The move
to wider jurisdiction has been resisted to some extent by both the
African group and the land-locked and shelf-locked nations who may
feel that jurisdiction beyond 200 miles will cut down on economic
benefits which they would receive as a result of revenue sharing
arrangements for the international seabeds area. In spite of the
foregoing discussion, the question df whether an exclusive economic
zone of 200 miles or perhaps wider will achieve a two- thirds majority
vote in the Law of the Sea Conference seems unclear at this time,
particularly in view of the fact that there will be some forty or more
nations represented who have not been members of the Seabeds
Committee.
The United States feels that there are no particular problems with
separating the seabeds minerals from the living resources of the
water column. To the contrary, the United States has consistently
proposed that they must be treated separately. We have submitted
23-317 0 - 73 - 10
PAGENO="0146"
140
draft articles which reflecL this view, andcontinue to feel that a
funcdonal approach should be used in the management of living
resources as elsewhere in the negotiations.' Establishmeht of a
zone does no~ adequately begin to protect our anadromous species,
many of which migrate outside of 200 miles, nor does it provide a
logical base for the conservation and utilization of highly migratory
species such as tuna.
10. Question: We come now to the compulsory dispute settlement
issue. We're increasingly dependent on imported oil and minerals.
At the same time, American corporaLe properties are being nationalized--
expropriated -- or Laken over under the polite name of participation" - -
around the world. The question here is not whether individual countries
have the right under international law to take over these properties.
Rather it is whether there shall be objective, equitable, compulsory
settlement of disputes. Isn't this one of the non-negotiable items on
our agenda?
Would you discuss what progress has been made toward compulsory
dispute settlement concepts, both in coastal and international waters,
being acceptable to other states? What appears to be acceptable to
developing NaLion-States and to other developed countries?
Response: The concept of compulsory dispute settlement has been an
element in several of our proposals, including the establishment of
a regime and machinery for the international seabed area, for fisheries,
for a Coastal Seabed Economic Area, for conduct of scientific research
and for marine pollution.
On August 22, 1973 in the Seabed Committee the U. S. introduced a
specific set of draft articles to effectuate a dispute settlement mechanism.
At the current time we are in the process of ascertaining the opinions
and views of other countries on these articles. Thus, it is too early
for us to have a definitive view of the actual support for compulsory
settlement of dispute procedures. In the statement which accompanied
the articles, the U. S. emphasized that a system of peaceful and
compulsory dispute setLlement was an essential aspect of a comprehensive
Law of the Sea settlement. The U. S. proposal is designed to ensure,
to the maximum extent possible, immediate access Lo dispute settlement
machinery in urgent situations while at the same time preserving the
flexibility of States to agree to resolve disputes by a variety of means.
While a few nations spoke in the Seabed Committee indicating some
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reservations on certain aspects of our proposal, it should be noted
that a number of member countries have indicated the importance
they attach to compulsory dispute settlement in the context of an
overall treaty.
11. Question: In a law review article, a committee staff member,
Mr. David P. Slang, summarizes what he calls the major un-
resolved issues T'eflectedin two documents." The documents are
the principles draft" prepared by the working group of Subcommittee
Number One and the "list" adopted by the full Committee.
I attach excerpts from the Slang Article. Please comment on both
the form and the substance of this summary. Do you agree that
this is a fair summary of the issues? What is the U. S. posidon
on each?
EXCERPTS FROM LAW REVIEW ARTICLE ENTITLED "OCEAN
POLEMICS," B~ DAVID P. STANG, ASSISTANT MINORITY COUNSEL,
SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,
SEPTEMBER, 1973 .
"1. The limits of the territorial sOa* and navigational rights of
~rc~p1c~ ond -drr.ro-PF 5n onri ~ ~n nof-nnol ~no~Fc~ `~ITH~C11 orc
contained within the territorial sea~of coastal states.
"2. The limits of coastal state jurisdiction** over resources of
the seabed adjacent to and beyond the territorial sea and the nature
and limitations of coastal state jurisdictional authority in such areas.
"* Although not expressly stated in Seabed Committee reports, general
agreement did seem to be emerging that the territorial sea should be
limited to twelve miles. But agreement on this issue by developing
coastal states was clearly predicted on the understanding that their
resource interests in areas adjacent to their coasts would be adequately
protected.
on
"~` A consensus has begun to develop/a 200-mile limit regarding coastal
state resources jurisdiction. Coastal states with continental margins
extending beyond 200 miles, however, seem to prefer that their entire
continental margins be included within the limits of coastal state juris-
diction. The limits question, however, remains largely unresolved be-
cause of continuing differences over the "mix" of coastal state rights
and duties with respect to other stales' rights and duties regarding
resource matters in such areas. "
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"3. The nature of fishing rights which coastal countries may obtain
in high seas areas adjacent to their coasts to regulate the activities
of foreign fishing fleets, the distance from the coastline in which such
coastal nation rights would apply, ** and th~substantive limitations
on such coastal country rights.
"4. The measures which coastal countries may take in high seas
areas adjacent to their coasts to protect themselves against marine
pollution caused by foreign nations or their nationals, the distance
from the coastline in which such coastal nation rights would apply,
and the substantive limitations on such coastal nation rights.
"5. The measures which coastal countries may take in high seas
areas adjacent to their coasts to regulate the conduct by foreign
nationals of scientific research on the high seas and underlying
~seabed, the distance from the coastline in which such coastal country
rights would apply, and the substantive limitations on such coastal
country rights.
"6. The rights of individual countries and their nationals to explore
and exploit the natural resources of the seabed beyond the limits of
national jurisdiction, the rules and conditions under which such
exploration and exploitation would take place, and the institutional
and legal means of administering such exploration and exploitation,
and of distributing benefits resulting from such activities, (revenue
sharing), and of resolving disputes arising from such activities."
Response: The six issues referred to and described in the SLang
article are a generally complete statement of the principal issues
in the negotiation. We do not think it would be useful to suggest
minor changes in the language which Mr. SLang has used to describe
the issues. By-and-large we agree that they reflect the principal
negotiating problems. Our position on each of these has previously
been made available to the Committee although we have not attempted
to compile in a single document a summary. Indeed, we would be
reluctant to prepare such a summary for public use because in the
act of summarizing, other nations might be led to believe that we
have changed our negotiating position on one or another of the issues.
We take great care in presenting our position on these issues to put
the statement of the United States view as succinctly as it is possible
to do so without misleading other countries. Accordingly, we would
refer you to our several public statements before the Seabed Committee
on these issues, all of which have been previously furnished to the
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Committee. To the extent recent statements do not modify earlier
explanations of our position, those earlier explanations in general
still reflect our views. . -
12. Question: My attention has been called to an address entitled
Sounding Our Ocean Future." It was prese'nted by the NOAA Admin-
istrator, Dr. Robert White to the Conference on the Oceans and
National Economic Development, sponsored by the National Oceanic
and Atmospheric Administration, in Seattle on 17 Tuly. I realize
that you were in Geneva at that time, and Doctor White's address
may have escaped your attention.
Excerpts from that speech are attached.
I'll appreciate your views on Doctor White's reference to what he
calls the "ocean balance of payments."
For example, he says that "our adverse balance of payments in
ocean and potential ocean products and services is a number almost
equal to the total U. S. balance of payments deficit, and it is growing
in many important areas."
Also, Mr. Edward Wenk, Presidential Advisor and Executive Director
of the ~ra~on Commission, has written in his hook The Polith~ of
the Ocean (page 324), that oceans policy relating to mining in the last
years of the 1960's was not guided by adequate study of the balance
of payments impacts. Did the LI. S. Government, prior to introduction
of its 1970 Draft Seabeds Treaty, conduct a thorough and comprehensive
study of the existing and potential economic contribution to the national
economy made by the domestic marine resource industries? In the
light of new developments such as in the hard minerals industry, has
any new study been commissioned to this end? If so, are these studies
available to Congress.
Specifically, has the Treasury Department or the Commerce Department
produced any studies computing the impact on our balance of payments
position which could be made by a successful domestic industryproducing
copper, nickel, manganese and cobalt from manganese nodules? Is
this study available to Congress.
If the U. S. agrees to a monopoly International Operating Regime with
its built-in proclivity for protectionism or to a mixed regime of
licensing and operations by the International Seabeds Authority, to
what extent will the U. S. balance of payments be affected? Similarly,
what objective measurements have you obtained to show the effect
of each policy option on our security of supply of the relavent metals?
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EXCERPTS FROM "SOUNDING OUR OCEAN FUTURE," AN ADDRESS
BY DR. ROBERT M. WHITE, ADMINISTRATOR, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION, U~S. DEPARTMENT OF
COMMERCE, AT THE NOAA CONFERENCE ON THE OCEANS AND
NATIONAL ECONOMIC DEVELOPMENT, flJLY 17, 1973, SEATTLE,
WASHINGTON.
* . Has anybody ever looked at something we might call the ocean
balance of payments as one way to keep score on how we are doing?
Such a concept has its deficiencies, but it is at least an intriguing
way to demonstrate our dependence upon the oceans in quantitative
terms. It also offers a way of expressing the importance of the oceans
in terms which we can hope will speak to those we must convince.
"As you know, the Commerce Department constitutes, among other
things, an impressive resource of statistics on virtually every aspect
of the national economy. I have turned to our Bureau of Competitive
Assessment and Business Policy for an estimate of the total 1972
factors contributing to what we might call an ocean balance of payments
value. This figure includes not only the balance from existing trade
in ocean products and services, but also in certain commodities where
o~eai~ i'C~Lu~ee~ -- Wert~ Lht~y t~cpiuiL~d, which Lhey are aoL noW --
could provide important relief.
"In developing these figures, we discovered that traditional Federal
statistical reporting and analysis techniques are not always ocean-
oriented. An analytical purist might consider the ocean balance of
payments figure a kind of statistical bouillabiasse, but it will serve
to make the point.
"To put this figure in perspective, I must remind you that the total
U. S. balance of payments deficit in calendar year 1972 was $10. 3
billion. Our adverse balance of trade alone was $6. 9 billion.
"It is abundantly clear that with our rising dependence upon foreign
sources of raw materials and fuels, we should seek as a matter of
general national policy to reduce this adverâe balance. We have seen
the economic effects of this drain.
"The numbers I have been able to assemble indicate that the U. S. `ocean
balance of payments' deficit for 1972 was more than $8 billion. I
doubt further study would prove it smaller, but I should not be surprised
if it were larger.
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145
Lot o::audnc cc~:~c* of Lhc rLlc.rc ~f~corit c~r~r of thic totaL
Ti~~ iai:gcsi single deficit account i~ petroleum -- both crude and re
fined products -- with an adverse balance of slightly over $4 billion.
In view of the present energy crisis and the'higher prices being
charged for foreign oil, it will be egen larger for 1973. As for the
1980's -- the estimates are staggering.
"The adverse balance for natural g~s in 1972 was $400 million; by
1980 this total may rise as high as $4 billion, depending upon the
quantity of liquified natural gas we import and the price we pay for it.
"You may be shocked to find that the 1972 adverse balance in fish
and fish products was $1. 3 billion -- up 43 per cent over 1971 and
up 318 per cent over 1960. We haveno hard figures on the balance in
fishing gear, marine electronics and the like, but you may be sure
it is subsiantial.
"Here are some other figures:
for ocean freight charges, an adverse balance of approximately
$1. 2 billion.
- For Americans traveling from U. S. ports on foreign cruise ships,
approximately $263 million.
- For those raw materials we would expect to get from mining
manganese nodules on the ocean floor -- their copper, nickel, cobalt
and other conleni: The 1972 adverse balance was some $1, 074 million.
"I am not suggesting that Lhe solution to all our raw materials and
balance of paymenis problems reside in the oceans. Clearly, in the
case of oil, U. S. offshore production cannot be increased lo wipe out
the deficit - - even if it were desirable, which it may not be. However,
when roadblocks to expanded produ.ction are removed, which President
Nixon has ordered done, we will ease substantially the dollar drain
from this source.
"The balance of payments, of course, cannot be the only consideration
in adopting a policy aimed at the substitution of deep-sea resources
for imports. Our national decisions must consider the impact of
reduced buying on the economics of developing couniries, balancing the
interests and righLs of the whole international communily in the resources
beneath the non-sovereign high seas.
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146
`But let us not lose sight of the fact -- that our adverse balance of
payments in ocean and potential ocean products and services is a
number almost equal to the total U. S. balance of payments deficit,
and it is growing in many important areas. .`.
Response: `Ocean balance of payments" - This phrase, *and the
general concept, was developed by Dr. VJhite as a way of dramatizing
the economic importance of the oceans from a number of viewpoints--
resources currently being obtained from the sea, such as fish and oil
resources which could conceivably be obtained from the sea, or the
seabed, such as additional fish and petroleum, and metals such as
cobalt, copper, manganese and nickel. The concept also includes
costs related to the use of the oceans, such as travel on foreign vessels,
shipping on foreign vessels, and the purchase of foreign-made equip-
ment, such as pleasure boats, for use on the oceans.
Apart from the intended impact of the phrase in focusing attention
on the economic value of the oceans, the concept has its deficiencies,
as Dr. White noted, and is therefore, not meant to be related rigorously
to other parameters in an analytical sense.
With reciard to the seabed beyond national lurisdiction, the establish-
ment of an International Operating Monopoly to exploit the manganese
nodule deposits of deep seabed is not considered an acceptable option
by the Administration. Based on the discussions which took place in
Subcommittee I this summer, however, we have come to the under-
standing that the real issue in dispute is not whether the Authority
will be empowered to itself exploit the deep seabeds but whether it
will be empowered to determine who receives mining rights and under
what conditions these rights are granted.
With specific regard to cobalt, copper, manganese and nickel, the
effect on the U. S. annual import balance during the period 1970-72
is indicated by the following table.
U. S. Impprts for Consurnp~pp~
1970-72 Average
Nickel $420, 063, 000
Copper 377, 166, 000
Manganese 36, 884, 000
Cobalt 28,092,000
$862,205, 000
Source: U. S. Bureau of the Census
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Some preliminary and tentative estimates have been made of the
impact of nodule production on projected U. S. total import re-
quirements of the above four metals based ~n assumptions re-
garding the number of U. S. firms that would be in commercial
operation by the early 1980's and their production capacities.
It was concluded that the market situation would differ for each
metal. In cobalt, the U. S. would not only meet its entire needs
but might also have an exportable surplus. In nickel, the import
deficit could be reduced by about one third. In manganese, the
import deficit could be reduced by about 15%. In copper, the seabed
supplies could reduce the import deficit by about 15%.
Estimates of the possible value of this production must be viewed
purely as rough order of magnitude, since they are subject to
assumptions about market prices seven years hence. Nevertheless
some price assumptions were made which are believed to be con-
servative and on this basis the outpuL of these metals from the seabed
was estimated as possibly commanding a total market value of around
$428 million per year in the early 1980's, distributed as follows:
Nickel $243, 210, 000
rp~ ~on c~r~r~
- *2, ...&.``_/,
Manganese 66, 980, 000
Cobalt 43, 560, 000
$428, 330, 000
To further refine the balance of payment effect, account would have
to be taken of fees or royalties, if any, paid to an international
authority, as well as of expenditures for foreign equipment, supplies,
labor and services.
To the extent that metals from the seabed were produced with dollar
expenditures and brought to the United States for sale, there would be
a definite favorable impact on the U. S. balance of payments.
It should be noted that the metals and minerals concerned are in
good supply from various world sources. The attached table shows
the principal sources of current supplies from abroad. Considering
the availability and diversity of such sources, and the i~e1ative
quantities producible from land based~ as compared with seabed sources,
the various policy options with respect to deep seabed development
are not believed to have a determining effect on our security of supply
during, times of peace. Obviously mining operations on the open sea
would be highly cmlnerable in times of war.
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U. S. Imports by Country of Origin
1970-72 Averace
(Short Tons, Metal Content)
M~.nganese Ore Ferro- Manganese
Brazil 273, 365 Belgium/Luxembourg 3, 111
Gabon 231, 341 West Germany 2, 810
South Africa 74, 216 France 75, 861
India 16,902 India 17,195
Ghana 32, 016 Italy 1, 295
Angola 33,799 3apan 10,102
Zaire 75, 160 Mozambique 3, 216
All Others 92,676 Norway 11, 463
South Africa 95, 200
Total 859,475 Sweden 3,820
Brazil 1, 531
All Others 1, 556
Total 227,160
Copper
Chile 75. 554 Cobalt
Peru 101, 894
Canada 127, 718 Belgium/Luxembourg 1, 900
South Africa 24, 600 Canada 358
All Others 59, 430 Finland 493
Norway 418
Total 389, 192 Zaire 2, 652
All Others - 445
Nickel Total 6, 266
Canada 126, 465
Norway 13, 096
South Africa 3, 532
U. K. 3, 701
All Others jQ, 009
Total 156,803
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13. Question: In a final law of the sea treaty, how will the various
conflicting interests of coastal and Lechnologically advanced states
be accommodated with those of the international community and less
developed states on the specific subjects of coastal resources,
pollution, scientific research, and the deep seabed, as you suggest
is necessary for a broadly supported treaty.
Response: Final resolution of the varied and extremely complex
issues to be addressed at the LOS Conference will require protracted
and difficult negotiation. On some issues there is deep cleavage
between developed and developing countries. Other issues, however,
are not characterized by polarization by these two sides. Neither
developing nor developed groups reflect homogeneous view points
and each group is divided on many key issues.
There will be a great number of possible negotiating alliances at
the Conference. This projected diversity contributes not only to
the complexity of the negotiations, but also creates impetus for
the kind of compromise package necessary for a successful Conference.
During the preliminary stages of the negotiation there has been little
incentive for most participants to abandon their maximum bargaining
position. We believe that with the advent of substantive Conference
work the real bargaining on all sides will begin. We continue to
believe that there exists sufficient gbod faith and commitment to a
workable LOS treaty to justify cautious optimism about the outcome
of the Conference.
The outlines of what mi ght be the final compromise are not yet clear.
However, the discussions to date indicate at least broad consensus on:
(1) A 12-mile territorial sea, assuming certain other conditions
are met at the same time; the U. S. willingness to accept a 12-mile
territorial sea is conditioned on recognition of free transit through
and over straits used for international navigation.
(2) Freedom of navigation on the surface, submerged and in
the air beyond 12 miles.
(3) Broad coastal State jurisdiction over coastal fisheries and
seabed resources beyond 12 miles as~ part of an overall settlement.
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(4) An international regime and machinery for the seabed
beyond the limits of coastal State economic jurisdiction.
There are also certain key unsettled issues which include:
(a) The extent and nature of coastal State economic jurisdiction,
including whether it should be exclusive or subject to international
standards and accountability and whether special treatment should be
given to fisheries such as tuna and salmon.
(b) Free transit through and over international straits.
(c) The nature of the international regime and machinery in
the seabed area beyond coastal State jurisdiction; whether the inter-
national agency should have broad discretionary powers to determine
who exploits the deep seabed and under what conditions or whether
it would not have such powers but be granted only limited regulatory
functions.
(d) Authority to prescribe and enforce standards to control
pollution from vessels, particularly a jurisdictional system which
will both effectively protect the marine environment and preserve
the freeJrrn of nn~iig~tion; while meeting genuine co~F~l t~e con-
cerns.
(e) The problem of maintaining a high degree of freedom of
scientific research.
(f) The question of compulsory dispute settlement.
14. Question: What is your current thinking on revenue sharing and
what expression of interest and support for this concept can you report
from the summer session?
Response: As proposed by the United States, revenue sharing would
be applicable to both the International Seabed Resource Authority and
to the Coastal Seabed Economic Area. In general our revenue sharing
proposals are designed to ensure an equitable distribution of benefits
from the seabeds. The revenues would be used for international
community purposes, for the benefit of states irrespective of location,
whether landlocked or coastal, and with particular consideration for
the interests and needs of the developing countries. In terms of reaching
a negotiated settlement, revenue sharing can provide a means for an
equitable settlement of differences between States seeking broad and
States seeking narrow limits of resource jurisdiction~ In this connection,
PAGENO="0157"
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the benefits of revenue sharing are particularly strong in helping
to meet the interests of landlocked states, sjates with narrow
shelves and those with little petroleum potential on their shelves.
We were gratified this summer to see that the concept of revenue
sharing was beginning to get serious attention by some States as
a way of resolving differences among States seeking varying limits
of resource jurisdiction.
15. Question: In Auoust 1972 you referred to the concept of revenue
sharing as the equal distribution of benefits from the seabeds. " This
past Jhly, however, you called it a "method of achieving equity in a
final law of the sea treaty" and referred to the role of revenue sharing
as "an overall political settlement" of law of the sea issues. Does
this indicate a new executive branch view on the rationale for the revenue
sharing proposal?
Response: These descriptions of the concept of revenue sharing do
not indicate a new Executive Branch view on the rationale for the
revenue sharing proposal. Instead they reflect the fact that revenue
sharing serves a number of importar~t purposes in a comprehensive
l~7T o~ ~e sea settlement. Firet, ravanue sIiarii~g is a mt~an~ br
realization of the concept of the "common heritage of mankind" for
seabed resources in areas beyond the limits of national jurisdiction.
Second, revenue sharing provides a fund which would be available for
international community purposes, with particular regard for the economic
needs of the developing countries. Third, revenue sharing is an inter-
national aspect of resource jurisdiction in the Coastal State Seabed
Economic Area which may provide a means of resolving differences be-
tween states seeking narrow vs. broad resource jurisdiction limits.
This benefit of revenue sharing accrues because it provides a means
for the equitable settlement of interests among coastal vs. landlocked
states, among States having broad vs. narrow shelves, and among States
with varying potentials for exploitation of petroleum and other resources
on their shelves.
16. Question: In your statement you indicate that one of the purposes of
provisional application of the treaty prior to ratification, was to assure
that seabed mining would be conducted under an internationally agreed
regime. How do you expect to handle mining operations that have begun
prior to agreement on a treaty text -- with or without 5. 1134 type legislation? H
Response: We do not expect actual commercial production of deep sea
hard minerals to begin prior to agre~rnent on a Law of~the Sea Treaty.
We have, ho7ze'~nr, clearly in mind, the fact that American companies
have together already invested substantial sums of money with a view to-
ward the con~mencernent of commercial operations. We will spare no
effort in these negotiations to assure that that investment is protected.
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17. Question. You indicated that it is the Administrations
belief that the conference schedule should be adhered to since
little more progress can be made without political negotiations
taking place. Do you believe that all of the necessary compromises
could occur with equality in the planned eight-week conference
session? If not, what do you consider to be the latest acceptable
date for an agreement?
Response. The General Assembly will, in the course of the next
several weeks, convene the Law of the Sea Conference. A ten-
week session of political negotiations is planned for 1974 with
possible additional sessions if necessary to conclude not later
than 1975. We cannot, at this time, predict whether all of the
necessary compromises will occur in 1974. For our part, w~
would like to conclude the Law of the Sea Treaty in 1974. Our
ability to do so in 1974, however, is contingent upon an equal
showing of negotiating will by all other countries. TI that is
present, we will complete our work in 1974. If our willingness
to conclude an agreement is not met by an equivalent attitude by
all other countries, it will clearly not be possible for us to
~onclude the agreement in 1974.
IS. Quc~ticn. It appcar~ that the U. S. and the LDC's arc' f2r
apart in their ideas for an acceptable deep seabed regime. What
incentive do the LDCs have to compromise with us? What justi-
fication do you have for telling our potential deep sea miners to
hold up exploiting if we are still so far apart on a regime that
will be acceptable to them?
Response. One incentive which developing countries have to
agree with us on a deep seabed regime is the fact that we have,
together with a few other countries, the capital and technology
to bring the ideal of the common heritage of mankind to fruition.
Other factors, too, will play an important role in bringing about
the necessary compromises. As we have previously pointed out
in our answer to question six, a final Law of the Sea Treaty will
probably only be satisfactory to the world community if it is a
genuine accommodation which assures equity for us as well as
others. Moreover, recognition by the United States of rights
which other nations wish to establish can only be achieved in a
Law of the Sea Conference which is widely ratified by all of the
countries whose interests are principally affected. Various
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, .~J.t, ~ ~ --
~j~j ~ ~
tho Sca Cooforonco cannot expect the Un~tcc Statec ano oLner
countries to recognize the rights they seek in the absence of a
satisfactory multilateral settlement. We coslinue to oppose
unilateral coastal State solutions to the Law of the Sea problems.
Moreover, we believe that most countries, from the perspective
of their own national interests, also perceive that a secure
system of legal rights and obligations which is equitable can only
be achieved through negotiation and not through the bilatral, ad
hoc interaction of sovereign States or the use of force.
19. Question. Have there been any economic impact studies to
determine the net economic result to each and every major segment
of the U. S. economy by the various proposals which are being
advanced by the U. S.?
To be more specific--do you have studies showing what the dollar
effect is on the mining industry and oil industry by those positions
the U. S. advances--which affect that area of the economy?
Do you have such studies on the fishirg industry?
If the position advocated by the U. S. delegation were adopted and
became part of the treaty, what would be the result on costs ot
oil, materials, food to the U. S. taxpayer - - consumer.
Response. As described in the response to question twelve, some
estimates have been made with regard to the dollar effect of
seabed metal mining. However, the petroleum resources have as
yet been described only by geologicalanalogy, rather than through
exploratory drilling. In the absence of hard info imation obtained
from actual drilling and exploitation, it is not felt possible to
attempt to quantify tI~ dollar effect on the oil industry, although
it is expected that a substantial contribution can be made to the
U. S. oil supply from offshore sources.
The U. S. position with respect to seabed resources, both petroleum
and metallic, is to assure access to United States firms to areas
of the seabed that would be designated as being beyond national
jurisdiction, and under terms conducive to economic exploitation
and not less favorable than those afforded to potential exploiters
of other nationalities.
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The seabed area which will remain under national jurisdiction
has yet to be completely defined, although we are currently
relying on the terms of the Continental SheLf Convention of 1958.
However, in areas under national jurisdiction, U. S. firms would
of course be given appropriate national trea&ment.
In the absence of actual experience in the exploitation of seabed
resources, it is impossible to judge the cost of production of the
various resources, or to predict the affect on world prices of
such production.
However, to the extent that the resources are produced under
competitive conditions, they will of course contribute to insuring
adequate supplies to meet consumption demand at the prevailing
market price. Accordingly, we have no reason to believe that
the U. S. consumer would not benefit fully from the exploitation
of seabed resources under the positions being ~dvocated by the
U.S. delegation.
An economic study examining the impact the current U. S. fisheries
proposal will have on the national fishing industry and the economic
consequences on food supply, balance of payments, employment,
etc., is currently in preparation by National Oceanic and Atmos-
pheric Administration and will be taken into account in the final
overall preparation of the U. S. LOS position at the LOS conference
to take place in Caracas, Venezuela, in the spring of 1974.
20. Question. Consultations among and between regional groups
of Developing Countries outside the Seabed Committee forum have
strengthened the political base for Coastal State economic juris-
diction over a broad marine zone. The U. S. delegation has indi-
cated this as a fact and as a change of position has indicated its
willingness to accept the trend provided certain international
standards and protections are maintained in that zone. The
original U. S. proposals for a strong International Seabeds Authority
on the deep seabeds were put forth as a "bargaining chip" to
purchase a narrow Coastal State zone of jurisdiction. Is there
any advantage to the U. S. to maintain its thrust for a strong ISA
in the face of this "broad shelf" consensus? By doing so, are we
not giving something away for nothing?
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Response. A review of the various treaty proposals on the table
and debate in the Seabed Committee would clearly indicate that
the United States proposal for an international seabed Authority
is a carefully balanced proposal designed to avoid domination of
the internal workings of an internoflonal Authority by any large
group of States. Of all the proposals on the table, the United
States treaty is possibly the only one which takes into account
the views and desires of most countries and attempts to maintain
a dynamic balance within the organization. We would not have
characterized the U. S. proposal as either a strong or weak
Authority but rather as a balanced Authority which has some
freedom to act within the confines of a strictly drawn charter.
Hence, we do not describe our position as giving something away.
Rather, we think it more accurate to describe it as protecting
the important political and economic interests of all States.
21. Question. On 28 ~uly 1972, President Nixon sent Congress a
message concerning an agreement with Brazil. It recognized
on an interim basis the broad shelf claims of Brazil. Under this
agreement the U. S. must make large payments and must exercise
our police powers against U. S. citizens in protection of Brazilian
territorial claims beyond the three- or twelve-mile limit. By
this agreement, is not the U. S. itself endorsing unilateral acts
and conducting Law of the Sea negotiatious outside the forum of
the United Nations? This is not by~ any means an isolated example
of U. S. action outside the bogged-down Seabeds Committee. How
can the State Department justify its position on 5. 1134 in the face
of this type of bilateralism and recognition of unilateralism?
Response. We do not feel that the Brazilian shrimp agreement
recognizes Brazil's 200-mile territorial sea claim. The agree-
ment itself contains a clear disclaimer to this effect, and the
substance of the agreement in no way implies such recognition.
The purpose of the Brazil shrimp agreement is not jurisdictional
in character, but rather it is designed to protect a fishery resource
which is of great interest to both countries. The resource itself
lies partly within the recognized territorial waters of another
country, as well as on the high seas. We feel that the content of
the agreement is consistent with that purpose. The payment
which the United States makes to the Government of Brazil is
considered a reasonable fee for the enforcement services which
23-317 0 - 73 - 11
PAGENO="0162"
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they provide to implement the terms of tin agreement. These
enforcement actions are limited in nature and the right to trial
and punishment is entirely ~n the hands of the United States.
It is our view that the Brazil shrimp agreement is the type of
agreement which we would consider entering, into with any country
with whom we shared a common conservation problem, regardless
of wtiéther their juridical positions coincided with our own. We do
not feel that this agreement is an endorsement of unilateral action,
nor is it a circumvention of the LOS negotiations.
22. Question. Does the U. S. delegation see in the proliferation
of alternative texts a statement of common ideas or a multiplicity
of irreconcilable positions?
Response. Alternative texts in some areas represent areas of
fundamental differences; in others they are differing statements
of what basically appears to be common ground. There is broad
international agreement in a number of areas, such as a 12-mile
territorial sea subject to certain conditions; broad coastal State
jurisdiction over resources with some international treaty limita-
tions; protection of navigation and other high seas freedoms; and
the establishment of an International Seabed Resource Authority
(ISRA). Within these areas of agreement, however, there are
many issues on which differences of opinion exist. For mstance
with respect to ISRA, there are different views on issues such as
what should be the powers of the Assembly vs. the power~ of the
Council, and on the exact nature of the system for resource
exploitation. It should be noted that to some extent, alternative
treaty articles are the result of a Subcommittee decision not to
debate certain issues due to factors of timing and due to the
preparatory nature of the meetings. Thus, alternative text
language may, at this stage of the negotiations, reflect a number
of positions upon which negotiations will be held in the Conference
itseli.
23. Question. At the July-August 1973 Seabeds Committee meeting
in Geneva, there was some opinion expressed that the Enterprise
and Licensing systems were closer together substantively than they
were emotionally. Can the U. S. agree to any system whereby the
International Seabeds Authority functions as both the administrator
and the operator? Can such an arrangement function without dis-
crimination to competing State or private enterprise?
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Response. We do not believe that the United States should agree
to a system whereby the international Authority functions as both
the administrator of the seabed and the operator. We do not
believe that such an arrangement could function without discrimina-
tion. If a treaty were to include provision f®r the international
Authority to itself engage in commercial ventures, it would be
essential to include provisions which would insulate the commer-
cial operation from the administrative. Care should be taken,
however to avoid semantic problems. Even under the United
States proposal, only the international Authority is capable of
disposing of the right to mine in the deep seabed. Hence, under
both the Enterprise system and the Licensing system, it is the
international Authority alone which issues the legal right to carry
on commercial activities. Whether this limited amount of common-
ality will help show the way toward negotiating compromises remains
to be seen. An equally important difference between the two systems
is that under the Enterprise approach the Authority would have
the discretion to either discriminate against States or private
enterprise in the issuance of legalrights or prohibit them entirely.
Under the licensing systems that have been formulated by us and
a few other delegations, the Authority ~xiould not have such dis-
cretion. This difference, in our view, goes to the heart of the
negotiations in Subcommittee I.
24. Question. Do you believe it is~ possible to receive a two-thirds
majority vote on any of the positions advanced by the United States?
If so, which ones?
Response. As has been indicated above, there are certain issues
on which broad agreement already exists in the negotiations.
Moreover, participants in the current United Nations General
Assembly meeting have entered into a gentleman's agreement
which expresses the view that nations should make every effort
to reach agreement on substantive matters by way of consensus
and that there should be no voting on such matters until all efforts
at consensus have been exhausted. This agreement demonstrates
the importance attached to the achievement of a widely acceptable
law of the sea agreement.
We certainly believe that it is possible to receive a two-thirds
majority vote on all of tie basic objectives advanced by the United
States as part of a comprehensive t~aw of the Sea agreement. At
the same time, we recognize that States must be prepared to
PAGENO="0164"
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consider some modification of their positions in order for
meaningful negotiations to iake place. The precise outcome
in all cases cannot be predicted at this time. However~ we are
confident that the necessary support can be obtained at the
Conference for achievement of basic U. S. si~bstantive objectives.
25. Question. Do you think that it will be possible to include
objective ocean mining regulations in the body of the agreed treaty?
Is it acceptable as has been suggested in some quarters to grant
broad discretionary powers of administration and regulation to
the International Seabeds Authority in lieu of detailed provisions
relating to resource management?
Response. It is possible, in our view, to include objective ocean
mining regulations in the body of the agreed treaty. Based on our
experience this summer in Subcommittee I, we have concluded
that there is fairly widespread support for this view. We do not
regard the giving of broad discretionary powers of administration
and regulation to the Authority as acceptable and we recognize
that to avoid doing so, we must include detailed provisions limiting
and specifying those powers. As pointed out earlier, this will be
a principal focus of our attention in the next phase of the negotia-
tions.
26. Question. With regard to your proposals that the International
Regime should be put into immediate force and effect upon signa-
ture at the Conference:
Do you think it wise to subject U. S. ocean operations to such a
regime before Congress has had an opportunity to review the
results of the Conference durings its ratification process?
Suppose Congress declines ratification?
Keeping in mind that such a Provisional Regime will require
domestic legislation to implement it, are you drafting this legis-
lation so that it is available on your 1974-75 timetable for agree-
ments? Does the cautious optimism you have expressed cover
the drafting and enactment of legislation in the year-and-a-quarter
remaining on your schedule?
PAGENO="0165"
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Response. It is our view that if a~ successful agreement is
reached in the Law of the Sea Conference, it would be in the
best interests of the United States and all Stats in the interna-
tional community to implement certain aspecis of that treaty as
quickly as possible. We believe that Congress must play a
significant role in the process of achieving provisional applica-
tion. As such, we plan to be in cibse consultation with Congress
with respect to all aspects of the negotiations during the period
of preparation as well as the actual Conference itself. Further-
more, we also plan to consult with Congress as to the most
appropriate means and timing for achievement of provisional
application. In our internal planning, we are seeking to follow
a timetable which would allow provisional application as soon as
possible after agreement on the overall Law of the Sea treaty is
reached.
27. Question. The marine hard minerals industry alleges
that many provisions of the U. S. Draft Seabeds Treaty are
individually more burdensome than their land counterparts or
are unique burdens which have been Imposed by the Treaty
despite their absence in general terrestrial resource manage-
ment practice around the world. Examples include the complex
system of fees, taxes, rents, front-end bonu~e~ and high rcyaltie3
the stringent relinquishment system, the lack of provision for
exclusivity in manganese nodule licenses, the requirement to
obtain a reconnaissance permit, the abnormally short production
period, the stringent information transfer provision. Industry
spokesmen find it hard to believe that these provisions would
encourage a new industry. Has the Administration attempted
a review of these provisions and, if so, has that review resulted
in a modified policy for U. S. delegation use at the Law of the Sea
Conference?
Response. The Administration has under review the provisions
of the U. S. draft seabeds treaty which have been criticized by
our hard minerals industry. We have not yet made a determina-
tion to modify our policy in any particular respect but may well
do so in some respects. We agree~ in general that at least in the
first generation of deep sea mining rules should be formulated
so as not to pose clear disincentives to major investment as
necessary. We may not necessarily agree with industry as to
PAGENO="0166"
160
which rules or firiancialprovisions would have that effect. We
will continue to consult wit1~i industry as we have for the past
several years with a view toward finding the best possible formula
seen from their perspective as well as the perspective of the U. S.
resource manager and. the international community.
28. Question. With closed frontiers, expanding industry, and
the increasing land use problems, should not U. S. environmental
conservation policy and practices be tailored to the most efficient
and least destructive resource recovery activity? In this regard
might not ocean mining for U. S. mineral requirements be an
objective to be pursued with more vigor than is apparent at the
United Nations in order to mitigate strip and open pit mining
affects in our own mining states?
Response. We are pursuing a negotiation of a regime for ocean
mining vigorously in the United Nations. We recognize that there
are environmental benefits to be gained from ocean mining as
opposed to land mining.
29. Question. I understand that a central issue between developing
and developed countries on the deep seabed regime and machinery
is `who may exploit the area and that the developing countries
and the United States have absolutely opposite positions on this
issue. I understand that the developing countries want to exert
absolute control over both the exploration for and development
of seabed resources by means of a monopoly operating agency
called the Enterprise and that the Administration advocates a
first-come-first-served licensing system. Will you please
explain this situation in some detail and in particular give us
your views on how this gulf can be bridged in the Law of the Sea
Conference while protecting United States resource interests?
Can there be a compromise between these two extremes?
Response. We have in our answer to question 23 pointed out what
we think is the area of principal commonality between the supporters
of a monopoly Enterprise and the supporters of a Licensing system.
We have also pointed out what we think are the principal differences
between the two. In the negotiations this past summer in Geneva,
we made these same points and suggested that in the negotiation
of rules and regulations which could accompany either of the two
PAGENO="0167"
161
approaches, we might find .a way of bridging the gulf rather than
to continue to debate at a conceptual level. We think our appeal
in this regard was well received and at the next stage of negotia-
tions we will begin to explore on a more prat~tical level some of
the issues which need to be addressed. We are not prepared to
comment at this time on possible compromises between these two
extremes. We will, of couise, keep the Committee advised of
our efforts and would be happy to explain our approach more fully
in Executive Session.
30. Question: Administrative witnesses have said that passage
o~ S. 1134 would damage our negotiating position on the law of the
sea. However, it is difficult to imagine more extreme positions
than those already taken. How would the enactment of 5. 1134 lead
to a more difficult situation than that which exists?
Response. We remain of the view that enactment of 5. 1134 at
this time would be seen by most countries, including many of our
close friends in the negotiations, as a preemptive move wiuich
would call into question whether we were engagul in a bona fide
negotiation, even though such action, in our view, would not be
contrary fr~ intArnationa.1 Th.w. We a.aree that there are times in
a negotiation when a nation's bargaining hand is strengthened by
such preemptive moves. This is probably more true in bilateral
negotiations than in global negotiations where the attitudes of
countries toward some of the prinŕipal actors in the negotiations
may be much more important than are the attitudes in a bilateral
negotiation where group pressure and collective action are not
possible. We believe the Law of the Sea negotiation is a good
example of the kind of multilateral negotiation where our own
negotiating objectives would be imperiled by preemptive
unilateral action, and accordingly, we have rejected the concept
until such time as we conclude that we can no longer engage in
good faith negotiations and must act to protect our national
interests outside of the negotiating forum.
31. Question. When Administration witnesses appeared before
this Committee in Tune, great emphasis was placed on the con-
cept of a provisional regime. We would like to know what substan-
tive discussions took place in Geneva regarding this concept and
what the outlook is? Could you brief us on the work done by the
Administration to develop its provisional regime idea more fully
and clearly? Has the Administration given thought to specific
PAGENO="0168"
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legislation--including protections against the possibility of the
treaty itself not being ratified by the U. S. or never coming into
effective force as a treaty, and protection for investments made
during such a provisional period.
Response. The United States did not encourage substantial
discussions of the concept of provisional regime in Geneva last
summer except to point out that we would be willing to have the
concept of provisional regime apply both to the deep seabëds and
fisheries if not to other areas as well. Under the auspicies of
the NSC Interagency Task Force on the Law of the Sea, several
departments are now doing the research necessary to develop a
comprehensive and detailed position on provisional regime. We
are considering a great variety of issues including the ones you
mentioned. We are not yet prepared at this time to brief the
Committee on the work we have done to date. We hope, however,
to develop a detailed and comprehensive position before the sub-
stantive negotiations begin in Caracas in 1974 and will discuss this
matter with concerned Congressional committees well in advance.
32. Question. What are the major divergent views on the relative
powers ofthe pv~posed Seabed Assembly and the Council--including
concepts of weighted voting in the Council? Is it your opinion that
these ext remes will meet in the middle and soon enough for a timely
international agreement?
Response. In response to question 20, we discussed the major
views on the relative powers of the Assembly and the Council.
With respect to weighted voting in the Council, our own position
is strongly held and well known as are the positions of other
countries. The question of voting in the Council is undoubtedly
one of the most important in the negotiation and will be one of
those questions probably left to the very end of the negotiations
before political compromises can occur. 11 the international
community wishes to have a final settlement of the Law of the Sea,
this issue will be solved in time. 11 nations cannot bring them-
selves to make the necessary compromises; it will probably be
difficult, if not impossible to succeed in our efforts. We cannot
predict the outcome of issues such as this, we can only recognize
their fundamental importance to the success or failure of the
negotiations.
PAGENO="0169"
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33. Question. Are there hazards in the participation of the
United States in a Law of the Sea Conference where the positions
of the majority of non-industrial States are ~o different from
ours? Out of such a conference, could not there be a treaty
which the U. S. would not ratify. How can we avoid this? Would
not the passage of S. 1134 in fact establish the firmness of our
seabed position.
Response. There is always a certain amount of risk involved in
participating in a widely attended multilateral conference where
a complex variety of important issues must be resolved. The
best way to ensure that the results of the Law of the Sea Confer-
ence are acceptable to the United States is to negotiate an overall
treaty which protects all our maj oi~ national interests. The
Executive Branch has testified before the Congress on many occasions
to the effect that we do not believe the passage of 5. 1134 or similar
legislation at this time would facilitate the conclusion of a satis-
factory Law of the Sea Treaty.
34. Question. We understand that the progress on other issues,
such as fishing, Coastal State economic zone. nassacre throucrh
straits, etc., in Subcommittee II h~.s been almost non-existent,
that the work never proceeded sufficiently to draft any usgful
alternative treaty articles. How can this lack of progress be
compensated for? Aren't these issues alone apt to block achieve-
ment of a timely and satisfactory treaty?
Response. The pace of work toward the development of alterna-
tive treaty texts has been slower in Subcommittee II than in
Subcommittee I. This is largely due to the fact that the mandate
of Subcommittee II includes traditioněal law of the sea subjects
upon which many States have well-developed, long-standing
positions. It is generally recognized that the issues in Subcom-
mittee 11 involve numerous important economic, security and
political interests. In that sense, agreement on the Subcommittee II
issues may well be the key to a timely and satisfactory treaty.
At the ~Tuly-August 1973 U. N. Seabed Committee meeting there
was a profusion of alternative treaty texts submitted by States
on virtually every issue under consideration in Subcommittee IL
Consequently, the raw material for an orderly treaty on Subcom-
mittee II subjects is available. The: next ztep is to combine and
reduce alternatives and this process has begun.
PAGENO="0170"
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3~. Question. We understapd that the State Department has
begun to prepare an environmental impact statement on all
Law of the Sea issues which would be discussed at the 1974 Law
of the Sea Conference. Will you explain what~authority is contained
within this National Environmental Policy Act which creates a
duty to prepare an impact statement, the geographical scope of
which extends within the water column beyond the territorial sea
and on the seabed beyond the seward limits of the continental
shell?
Z~spons~. The plans of the Interagency Task Force on the Law
of the Sea concerning the preparations of an environmental impact
statement are presently being formulated. The National Environ-
mental Policy Act of l97~1 (P. L. 91-190) requires that every
Federal Agency ` shall include in every recommendation and
report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human environ-
ment a detailed statement. . ." In our judgment ratification
and implementation of the Law of the Sea Convention would fit
into that category of Federal actions requiring an environmental
impact statement. Such questions as the timing, scope and detail
of an environmental impact statement are now under consideration
by the Task Force and we expect to formulate a more definitive
policy in the near future.
Attachments: As stated
PAGENO="0171"
165
,~D S~.
UNITED STATESMISSION
U.S. INFORMATION SERVICE
80.. RUE DE LAUSANNE
~ 1211 GENEVA 21 - TEL. 327020
PRESS RELEASE
July 18, 1973
The United States today proposed global agreement on
the rights and duties of States in a broad area of the
seabeds off the coast. The proposal was made in the U.N.
Seabed Committee, which is preparing for a comprehensive
conference on the Law of the Sea next spring in Santiago.
The United States draft articles were introduced in a
statement by the Honorable John B. Stev~nson, Special
Representative of the President for the Law of the Sea
Conference and Chairman of the U. S. Delegation.
The draft articles would give coastal nations the
exclusive right to explore and exploit seabed resources
principally petroleum and natural gas, in an area to be
called the Coastal Seabed Economic Area. The articles
do not deal with fisheries which are the subject of a
previous United States proposal. Under the new articles,
coastal nations would also have the exclusive righ~ to
authorize and regulate all drilling as well as the con-
struction, operation, and use of offshore installations,
such as offshore ports and airports, affecting their
economic interests in the area and the waters above.
Reasonable safety zones could be established around off-
shore installations to protect persons, property, and the
marine environment. -
At the same time, the articles also emphasize the
duties of coastal nations. The activities under their
jurisdiction would have `to conform to international
standards to prevent pollution and unjustifiable inter-
ference with other uses ,of the marine environment,
although coastal nations' could apply higher environmental
standards to those activities if they choose. "While
giving coastal nations complete discretion to decide the
terms and conditions for foreign investment, the articles
would require that agreements for such investment be
strictly observed according to their terms, and that
there be just compensati',on in the event property of
fr~reign investors is taken." It is also proposed that
some revenues from mineral exploitation of the area should
PAGENO="0172"
166
be shared "as a reasonable method for achieving equity in
a final Law of the Sea Treaty.I Compulsory settlement of
disputes arising under the articles is contemplated, which
Mr. Stevenson called `the foundation of a. new world order
in ocean space.
The draft articles are based on the main points of
President Nixon's Ocean Policy Statement of May 23, 1970,
as elaborated by the U.S. Delegation since that time.
While they do not include specific proposed limits for the
Coastal Seabed Economic Area, Mr. Stevenson noted the
"preponderant vie.~ among other nations that `the outer
boundrry should be fixed in terms of a mileage distance
with 200 miles the generally preferred figure," but that
"a sizeable number of delegations would prefer in addition
to this mileage limit an alternative seaward limit which
would embrace the continental margin where it extends
beyond 200 miles."
With respect to the landward limit of the Coastal
Seabed Economic Area, Mr. Stevenson noted the main issues
invclved. At the present time, coastal States have exclu-
sive rights to seabed resources beyond the territorial sea
under the Continental Shelf Convention at least until the
waters reach a depth of 200 meters. However, the extent
of those rights is not agreed and the duties elaborated
in the Continental Shelf Convention are !!less satisfactory
than those in the proposed Coastal Seabed Economic Area..
Accordingly, Mr. Stevenson noted that beginning the Coastal
Seabed i~conomic Area at the outer limit rf the proposed
12-mile territorial sca would conform to "simplicity and
logic" and would be desirable in connection ~ith the
spelled out, but "allowance may have to be merle for the
fact that" the Continental Shelf Convention already
specifies the 200-meter depth figure.
In the course of discussion of these issues,
Mr. Stevenson made reference to en overall law of the
sea settlement which would deal with many other issues
in addition to seabed resources. Thus, in the context,~d
referring to the proposed 12-mile limit for the tarn
see, he reaffirmed the United States position that its
willingness to move to a 12-mile territorial sea is coń~
ditioned on international guarantees of free transit
through and over straits used for international navigation.
PAGENO="0173"
167
UNITED STATES MISSION
~ `~ iij~n: t~ u U.S. INFORMATION SERVICE
80, R U E D E L A U S A N N E
~ ~ 1211 GENEVA 21 - TEL. 327020
PRESS RELEASE
STATEMENT BY
THE HONORABLE JOHN R. STEVENSON
CHAIRMAN OF ThE UNITED STATES DELEGATION
TO THE
COMMITTEE ON THE PEACEFUL USES OF THE SEABED AND
THE OCEAN FLOOR BEYOND THE LIMITS
OF NATIONAL JURISDICTION
SUBCOMMITTEE II July 18, 1973
Mr. Chairman:
Almost a year ago, in a statement before the Main
Committee, my delegation said that the United States "can
accept virtually complete~ coastal State resource management
jurisdiction over resources in adjacent seabed areas if this
jurisdiction is subject to international treaty limitations
in five respects.' We also noted that the negotiating posi-
tions of various states "are now substantially closer
together than their juridical positions" and we noted with
interest the contribution to our work made by the Santo
Domingo Conference of Caribbean States and the Yaounde
Seminar of African countries. We now also have before us
the Declaration on the Issues of the Law of the Sea of the
Organization of African Unity. In addition, States have
continued to express negotiating positions on the question
of coastal resources which. indicate that there is indeed a
basis for believing that further progress can be made and
a successful Conference achieved.
Mr. Chairman, we look forward to discussion in the
Working Group of Subcommittee II on the question of fisheries.
Our own proposal on fisheries was submitted last August, and
of course is not affected by the proposals we are making
today regarding the seabeds.
During July, the Working Group of Subcommittee II has
debated item five on the list of subjects and issues--the con-
tinental shelf, and related matters regarding economic juris-
diction over seabed resources. We found that debate to be a
hel~ftl and useful exchange of views. We were impressed with
PAGENO="0174"
168
the efforts of all delegations to engage in a structured, reasoned and
temperate discussion on the question of the continental shelf and
seabed resources. We are most encouraged by the fairly widespread
agreement that has emerged in the Working Group on certain fundamental
issues with respect to seabed resources, and would like to address
some of these issues in connection with the introduction of our draft
articles.
There is no question but that most States believe that the
coastal State should have exclusive rights over the natural resources
of the coastal seabed and subsoil. Thus, the coastal State should
determine if exploration and exploitation will take place, who shall
do it and on what terms and conditions. We agree that the coastal
State should have such full resource managementtJurisdiction over such
coastal seabed resources. We do so, however, subject to the conditions
which I will elaborate in this statement. These conditions are designed
to ensure that coastal State rights are accompanied by corresponding
duties to protect the interests of other States and the international
community in general.
We also note the preponderant view that the outer boundary of
the coastal State's seabed economic jurisdiction should be fixed in
terms of a mileage distance with 200 miles the generally preferred
figure. However, a sizeable number of delegations would appear to
prefer, in addition to this mileage lin~t, an alternative seaward
limit which wouid embrace the continental margin where it extends
beyond 200 miles. My delegation would welcome the opportunity for
continuing consultations with other States on the outer boundary. It
should be clear, however, that if the outer boundary of coastal State
economic resource jurisdiction is to include the entire continental
margin, a precise method of delimiting that area will have to be found.
In this connection, Mr. Chairman, I would like to repeat the
comment that I made in the working group when this issue of whether
the outer boundary should extend beyond 2~'0 miles to the edge of the
margin was discussed. I indicated my concern that a number of countries
advocating a uniform 200 nile boundary were suggesting that the issue
be considered in terms of "compensation" to the coastal State for
renouncing its rights in the continental margin beyond 200 miles. I
am not at all clear what form this "compensation" could take and do
not see this as an effective way of obtaining the general agreement
of coastal States with a wide margin, nor of satisfying the aspira-
tions of the land-locked and
PAGENO="0175"
169
shelf-locked countries. I suggested that we devote more attention to
the converse, i. e., recognition of broad coastal State resource manage-
ment rights, but with provision icr an equitable accommodation of
other States' interests through measures such as revenue sharing which
are consistent with coastal State resource management.
From the point of view of my government, a new Law of
the Sea Treaty would not be adequate if it gave to coastal States com-
prehensive seabed economic jurisdiction without providing for pro-
tection of the rights of other States in the seabed economic area of
coastal States. We believe these rights must not only be clearly
provided for in the Law of the Sea Treaty but that a system should be
established which will assure that the coastal State does not go beyond
its seabed economic rights or unjustifiably interfere with other activities
conducted in the area or superjacent waters by other States. In this
negotiation, we are now dealing with large areas of ocean space in
which intense activity, some of which will not be resource oriented)
will occur in the future -- activity of interest both to the coastal State
and other States. We believe, therefore, that in the interests of
worldwide agreement on the rights of coastal States there must be co~
relative duties assumed by the coastal State to assure an harmonious
accommodation of interests.
In order to make clear our views on this subject, my
delegation introduced draft treaty articles entitled "The Rights and
Duties of States in the Coastal Seabed Economic Area" several days
ago. With your ipdulgence, Mr. Chairman, I would like to take this
opportunity to comment on some of the provisions of these draft
articles.
Article .1 (1) would assure the coastal State that it has
the exclusive right to explore and exploit as well as to authorize the
exploration and exploitation of the natural resources of the seabed
and subsoil within the coastal seabed economic area. This would
appear to be one of the principal eccnomic negotiating objectives of
the majority of coastal States and in particular of the coastal develop-
ing countries.
Article 1 (2) deals with the question of the delimitation
of the boundaries of tii~i~abed economic area. I have previously
discussed cur views on the outer boundary. With respect to the
inner boun~ary of the area, my delegation recognizes that simplicity
and logic would call for the coastal~State's economic rights and duties
to commence at the edge of the territorial sea. Moreover, it would
be desirable for the substance of the duties of the coastal State,
which I will describe in connection with Article 2 of our draft
artic'es, to apply' to the widest possible area. Nevertheless, we
PAGENO="0176"
170
recogni ze that all owance may have t o be r.~a e for t he fact t hat t he
Geneva Convention on the Continental Shelf al ready provi ~es coastal
States with the sovereign right to explore an exploit the resources of
the shelf to the depth of 200 r~eters with a somewhat i ff erent, an. in
our vi ew 1 ess sat i sf act ory, provi sion f or t he prot ect ion of ot her i n-
terests in, an-~ uses of, the area than is provi:e~ in our draft articles.
Not mi requently this 200 ~-eter ~epth is seawar of 12 n-il es. Hence,
there --ay oe some States which will not wish to subj ect the area be-
tween 12 miles and200 r:.etersto anew legal regime, or they r~'ay
obj ect to the appl icat ion, in that area, of one or more of the inter-
national standarcs we propose - - for exai~pl e, revenue sharing. If t hi s
turns out to be the case, t here may still be ot her ~:et ho s of accommo-
dating coastal States' interestsinthearea between 12 miles and 200
met ers which woul 2 not conflict with a new single inner limit of 12
mil Cs.
We welcome acti ye consul t at ion wit h ot her delegat i ons on
this question.
In equating the territorial sea with 12 ru 1 es f or the
purpose of dicussing the application of these draft A~licles, I
should reaffirm ourposition thatour willingnessto move to a12
mil e t erri t on al sea is condi t i oned on i nternat i onal guarant ee of f ree
transit through an1 over st~'aith uSe" for international navigation.
Article 1 (3~ The purpose of this paragraph is to ensure
that the coastal State has the exclusive right to authorize and regulate
the construction, operation an~ use of offshore installations which
af f ect it s economi c i nt erest s not oni y i n t he coast al seabed economic
area, but al so I n t he superj acent wat ers. Thi s i s to assure t hat as
t he world con:muni ty begi ns t o devel op new uses f or ocean space such
as t he const ruct i on of off shore port s, power p1 ants, ai rport s and the
like, the coastal State will have all necessary jurisdiction over
them, even if they are not attached to the seabec. Article 1 (3)
al so provi des f or an exclusive coastal St at e ri ght i n t he coast al
seabe~. economic area to authorize and regulate drilling not relate:
to resources, since s~.ch drilling is not covered by the coastal State's
resource j un sdi ct ion under ~rt i ci e 1 (1).
Article 1 (4) prOvides the coastal State first with the
ri ght t o est abl I sh reasonabi e safet y zones aroun' t he of f shore in-
stallations affecting its economic interests an:; second, with the
ri ght t o take appropri at e measures t o prot ect persons, property and
t he man ne envi ronir ent wi thi n such zones. To prot ect i nternat i onal
com muni ty I nt erest s and t he ri ght s of ot her St at es in maid ng use
of the area, particularly with respecttofreedoir. of navigation, the
Art ci e requires that the breadth of the zones as determined by the
coastal St at e conf orm t o i nt ernat i onal st andards whi ch are in
exi st ence or which may be establ i shed in the future by I 1dCO.
PAGENO="0177"
171
Article 2 expresses the, substance of the coastal
State~s duties. It provides the protection of the rights
of all other States in the coastal seabed economic area.
It is designed to reflect our view that if coastal States
are to be given such broad economic jurisdiction, this
jurisdiction must be balanced so as to assure harmony with
the interest of other States in the same area. In this
connection, it is important to bear in mind that coastal
States are not only affected by seabed activities off their
own coasts, but are also affected by the exercise of
jurisdiction over similar activities off the coasts of other
States.
Article 2 (a) reaffirms the customary international
law requirement that activities such as those described in
Article 1 may not unjustifiably interfere with other uses
of the area. The coastal State would ensure compliance with
international standards to prevent such interference.
Article 2j~) provides, in effect, that every coastal
State should have the duty to meet international standards
designed to ensure that as it satisfies its economic
objectives it does not, in doing so, damage either the
marine environment or the coastlines of other States. For
example, drilling within one coastal State's seabed economic
area can, if not conducted with adequate safeguards, damage
the waters beyond and the shores of other coastal States.
Thus, another coastal State may suffer environmental damage,
economic damage, or both. If, the coastal State alone were
to determine whether its own rules and regulations for oil
drilling were adequate, this would not provide a satisfactory
objective guarantee to the international community and other
coastal States. On the other hand, we recognize that minimum
standards may not be satisfactory to the coastal State.
Therefore, we have provided in Article ~. (6) that the coastal
State may apply h~her standards if it chooses.
Article 2 (d) relates towhat we have called integrity
of investment. While giving čoastal nations cornDlete dis-
cretion to decide the terms and conditions of foreign
investment, the articles would require that agreements for
such investment be strictly observed according to their
terms, and that there be just compensation in the event
property of foreign investors is taken.
Mr. Chairman, all of us recognize the extent to which
nations of the world have in recent years grown increasingly
23-317 0 - 73 - 12
PAGENO="0178"
172
inter-dependent economically and othe~iise. It is this inter-
dependence -- this mutual reliance of States on each other for the
efficient functioning of their societies -- that makes uc believe
that it is in everyone's interest that relati~'nships freely entered
into with respect to the exploitation of coastal State seabed resources
be respected. It is on the basis of these relationshi?s that exact-
ations are created and plans made; disruption of agre~d ~rel~tionships
can accordingly have far-reaching implications for States as weil as
private parties.
I must emphasize, Mr. Chairman, that we are in no sense seeking
to qualify the coastal State's exclusive resource management lurisdic-
tion. The coastal State can exclude all foreign investment if 1: so
elects. If it determines that it is in the coastal State's interest
that other nations or their nationals be given the right to axplore
and exploit the resources of the coastal State, either alone or in
joint ventures with the coastal State or its nationals, the coastal
State ~iill alone decide, in negotiations with others, what the terms
and conditions and duration of such arrangements will be. Our pro-
peso1 is simply that when those arrangements have been comDleted
and other nations rely upon them, the coastal State should be
obligated to observe them.
Mr. Chairman, with specific reference to the petroleum of the
seabed, I would observe that while stability of freely negotiated
contractual arrangements for the supply of petroleum is important
to O~i importing cauntries, it also should be of concern to seabed
produe.rs.
We have studied the trends of capital investments by petroleum
industries of developed countries and have noted during the past few
years a decided shift in investment patterns. Increasingly, albeit
at higher costs both to the producer and t~e customer, massive invest-
ments of capital have moved to h~~her cost areas in which petroleum
companies believed they were more assured of a continuity of supply.
This is underscored, moreover, by the enormous demoads that
offshore exploration and exploitation will make upon the capital
available for this development in the years tc come. Recent estiristes
suggest that the overall capital requirements of the petroleum industry
ráay far exceed what con be generated internally.
PAGENO="0179"
173
Accordin~1y we believe that producing countries will
best serve their own interests in attractin~ the capital
and technology necessary for offshore develorment if
stability of contractual arrangements is achieved through a
principle such as that set forth in ~rticle 2 (d). It would
seem likely that a country that has acceD5ed a treaty
obligation to ensure such stability will be substantially
more attractive to international sources of capital and
entrepreneurial talent.
Article 2 e raises the question of revenue sharing
which ha~ been wit~h his Committee from the very beginning
of its negotiations in Rio de Janeiro in 1968. My government
first proposed revenue sharing in President Nixon's Oceans
Policy Statement of May 23, 1970. We believe it is a reasonable
method for achieving equity in a final Law of the Sea Treaty - -
not only for landlocked and shelflocked countries, but for
those countries who have continental margins but which will
find little oil there and for~ those countries which seek to
broaden jurisdiction over the resources of the continental
margin. Revenue sharing is, in our view, an important element
in an overall comprehensive settlement of the law of the sea
issues which, as I indicated earlier, could have specific
application to the problem of resolving the issue of the outer
limi~ of coastal State resouráe jurisdiction. We note that
to date few nations have spoken in support of this concept.
We hope that situation will change and that at a future
stage of our negotiations we will be able to begin to discuss
speci:~'ic formulas for revenue sharing. Ic do not see,
Mr. C1~airman, how we will reach the state of discussing
specific revenue sharing arrangements until nations have some
better Idea of the role which revenue sharing will play in
an overall political settlement of the many issues in this
negotiation.
Article L~ makes clear that nothing in these Articibs
is to af~t ri~ghts of freedom of navigation and overflight
and rights to carry on other activities in accordance with
international law unless otherwise expressly provided in the
Convention. The meaning of the Article is clear, as is its
Importance.
For my government, Mr. Chairman, Article 5 on the
compulsory settlement of dispu~es goes to the core of this
negotiation. It is the foundation of a new world order in
ocean space. If nations cannot agree to settle their disputes
peacefully and be bound to do so and to obey the decisions
which are given, then all the standards and the rights and
duties of States whIch will be elaborated in this treaty
wilJ be of little practical value. If we are to establish
new relationships for the conduct of our affairs in the
oceans, those new relationships must include a system which
PAGENO="0180"
174
will permit all of us to settle our differences on the basis
of our rights and duties under a new comprehensive treaty
without resort to the use of force and without political
confrontation. This objective is, after all, the real
reason for this negotiation. Without this new treaty and
a'system for the compulsory settlement of disputes arising
under the treaty, international law will leave us with few
satisfactory alternatives to assure that what we all agree
to will in fact be respected. For our part, Mr. Chairman,
we could not agree to a great many of the things we have
ourselves proposed for a new Law of the Sea Convention in
the absence of a general system of compulsory dispute settle-
ment for ocean uses. When we speak of an overall comprehen-
sive Law of the Sea settlement, Mr. Chairman, this issue is
very much in the forefront of our minds.
In closing, Mr. Chairman, my delegation would like to
emphasize that we have observed a growing rapprochement on
the question of seabed economic rights in coastal areas.
We are very pleased at this, because it would appear that
coastal State resource jurisdiction is more important to a
larger number of delegations than any ot~ier issue. We
believe, moreover, that a satisfactory accommodation of
interests in this area should facilitate an overall
settlement in which differences with respect to the deep
seabed regime and transit through international straits are
more easily resolved.
We still feel, however,that while there has been
increasing appreciation ~f the desirability of broad coastal
State seabed resource management, there has been inadequate
consideration of the international standards which should
accompany that jurisdiction in order to provide an appro-
priate balance of coastal and other interests.
We look forward to disuussing these proposals and
the proposals of other delegations on this subject in th~
course of the coming weeks. The possibilities for achieving
a satisfactory treaty on the Law of the Sea in 197)4 in
Santiago will be substantially enhanced if our discussions
this summer prove fruitful.
PAGENO="0181"
175
A/AC. 138/SC. II/L. 35
16 July 1973
UNITED STATES OF AMERICA: DRAFI' ARTICLES FOR A cHAPTER
ON THE RIGHTS AND DUTIES OF STATES IN THE COASTAL SEABED
ECONOMIC AREA!/
ARTICLE 1
1. The coastal State shall have the exclusive right to
explore and exploit and authorize the exploration and
exploitation of the natural resources of the seabed and
subsoil in accordance with its own laws and regulations
in the Coastal Seabed Economic Area.
2. The Coastal Seabed Economic Area is the area of the
seabed which is
(a) seaward of ; and
(b) landward of an outer boundary of
3. The coastal State shall in addition have the exclusive
right to authorize and regulate in the Coastal Seabed
Economic Area or the superjacent waters:
(a) the construction, operation and use of offshore
installations affecting its economic interests, and
(b) drilling for purposes other than exploration and
exploitation of resources.
1~, The coastal State may, where necessary, establish
reasonable safety zones around such offshore installations
in which it may take appropriate measures to protect persons,
property, and the marine envirOnment. Such safety zones
shall be designed to ensure that they are reasonably related
to the nature and function of the installation. The breadth
of the safety zones shall be determined by the coastal State
and shall conform to international standards in existence or
to be established pursuant to Article 3.
5. (a) For the purposes of this Chapter, the term ttinstal-
lations" refers to all offshore facilities, installations,
or devices other than those which are mobile in their normal
mode of operation at sea.
~j This Chapter deals with seaheds resources, and does
not deal with fisheries. The proposal of the United States
with respect to fisheries beyond the territorial sea was
int:~duced in Subcommittee II on ~ August 1972 (A/AC.l38/
SC.1I/SR.kO) (Official Records of the General Asserrb~,
Twenty-seventh session, Supplement No. 21, A~72i)
PAGENO="0182"
176
(b) Installations do not possess the status Of islaiids.
They have no territorial sea or Coastal ~3eabed Economic Area
of their o~rn, and their presence does riot affect the delimi-
tation of the territorial sea of the coastal State.
6. The coastal State may, with respect to the activities
set forth in this Article, apply standards for the protection
of the marine environment higher than those required by
appl~cabla international standards pursuant to Article 2.
7. The coastal State may, with respect to the activities set
forth in this Article, take all necessary measures to ensure
compliance with its laws and regulations subject to the
provisions o~ this Chapter.
ARTICLE 2
The coastal State, in exercising the rights referred to
in Article 1, shall ensure that its laws and regulations,
and any other actions it takes pursuant thereto in the
Coaa~aL Seabed Economic Area, are in strict conformity with
the rrcvisions of this Chapter and other applicable pro-
visions of this Convention, and in particular:
(a) the coastal State shall ensure that there is no
unjustifiable interference with other activities in the
marine environment, and shall ensure compliance with
international standards in existence or promulgated by the
Authority or the Inter-Governmental Maritime Consultative
Organization, as approprIate, to prevent such interference;
(b) thc coastal State shall take appropriate measures
to prevent pollution of the marine environment from the
activities set forth ifl Article 1 and shall ensure com-
pliance with international standards in existence or
promulgated by the Authority or the Inter-Governmental
Maritime Consultative Organization, as appropriate, to
prevent such pollution;
(C) the coastal State shall not impede, and shall
co-operate with trio Authority in the exercise of its in-
spoction functions in connection with subpara~rnph (b)
PAGENO="0183"
177
(d) the coastal State shall ensure that licenses,
leases, or other contractual arrangements which it enters
into with the agencies or instrumentalities of other States,
or with natural or juridical persons which are not nationals
of the coastal State, for the~ purpose of exploring for or
exploiting seabed resources are strictly observed according
to their terms. Property of such agencies, instrumentalities
or persons shall not be taken, except f or a public purpose,
on a non-.discriminatory basis, nor shall it be taken without
the prompt payment of just compensation. Such compensation
shall be in an effectively realizable form and shall
represent the full equivalent of the property taken and
adequate provision shall havebeen made at or prior to the
time of the taking to ensure compliance with the provisions
of this paragraph;
(e) the coastal State shall make available in accordance
with the provisions of Article , such share of revenues
in respect of mineral resource exploitation from such part
of the Coastal Seabed Economic Area as is specified in that
Article.
1. All activities in the marine environment shall be
conducted with reasonable regard to the rights of the
coastal State referred to in Article 1.
2. States shall ensure compU~ance with international
standards in existence or to be promulgated by Inter-
Governmental Maritime Consultative Organization in
consultation with the Authority:
(a) regarding the breadth, if any, of safety zones
around offshore installations;~
(b) regarding navigation outside the safety zones, but
in the vicinity of offshore installations.
ARTICLE ~/
Nothing in this Chapter shall affect the rights of
freedom of navigation and overflight and other rights to
carry on activities unrelated to seabed resource exploration
and exploitation in accordance with general principles of
international law, except as otherwise specifically provided
in this Convention.
~/ It is as~m~d that the general articles of the Law of
the Sea Convention will contain an article such as Article 1~
applicable to all areas beyond the territorial sea.. Such an
article would obviate the need for several ar:;icles making
the same point here and in other chapters of the Convention.
PAGENO="0184"
178
ARTICLE 5
Any dispute with respect to the interpretation or app1i~
cation of the provisions of this Chaptei' shall, if requested
by either party to the dispute, be resolved by the compulsory
dispute settlement procedures contained in Article -, of
Chapter -.
PAGENO="0185"
179
UNIT~D STATES MISSION
U.S. INFORMATION SERVICE
80, RUE DE LAUSANNE
1211 GENEVA 21 - TEL. 327020
PRESS RELEASE
STATEMENT BY
JOHN NORTON MOORE
VICE CHAIRMAN OF THE UNITED STATES DELEGATION
TO THE
COMMITTEE ON THE PEACEFUL USES OF THE
SEABED AND THE OCEAN FLOOR BEYOND THE
LIMITS OF NATIONAL JURISDICTION
Subcommittee Ill -- July18, 1973
Mr. Chairman:
The problem of marine pollution extends to all of the
worlds oceans and directly affects each of us. The oceans
are a major part of the glObal ecosystem and their degradation
can threaten the health and well-being of everyone. Actions
taken by the international community in recent conferences
indicate a recognition of this fact and a pledge to take all
necessary measures to- prevent marine pollution. These actions
also indicate increasing recognition that the problem of
marine pollution is a global problem requiring a truly
international solution. We must also recognize that the
many new and intensified ocean uses to be considered by the
Law of the Sea Conference may pose significant risks of
environmental demage which must be dealth with promptly and
effectively. To meet these needs, my delegation has
prepared and distributed to this Committee in document number
A/4C.138/SC.III/L,)40 draft articles for the protection of
the marine environment.
The Law of the Sea Conference can and must establish
an adequate jurisdictional basis for a coordinated inter-
national response to global marine environment problems.
Such an adeouate basis requires an understanding of the
diverse threats to the marine environment and.the need
for a response tailored to each. Problems raised by
PAGENO="0186"
180
vessel-source pollution are fundamentally different from
those raised by land based sources or seabed resource
activities and they re~uire different solutions. .~n
adeouate basis also requires that we differentiate between
jurisdiction to set standards and jurisdiction to enforce
such standards. For example, jurisdiction to set vessel
constru~tion standards may raise quite different considera-
tions than jurisdiction to enforce such standards. Again,
Mr. Chairman, these differences require different solutions.
My delegation has sought in its draft articles to meet these
points.
The first section of our draft articles refers to
basic obligations to p~otect the marine environment. The
second section states the competence of international
organizations and States to establish standards for dealing
with a variety of problems concerning protection of the
marine environment. The third and fourth sections set out
a general basis for enforcement with respect to these
problems, including a system of cooperative enforcement
involving flag States, port States, and coastal States.
The fifth section gives the coastal States rights to take
action in extraordinary situations to protect against
environmental threats to their interests. Finally,
Mr. Chairman, the articles contain important new procedural
provisions, provisions relating to liability and provisions
for compulsory settlement of disputes.
Taking up each of these sections in turn, the first
section takes note of the work of the working group of this
Subcommittee in dealing with the basic obligation to protect
the marine environment. Thus, the draft articles build on
the work already done by the ~Jorking Group.
In the second section dealing with jurisdiction to
establish standards, we differentiate between pollution from
vessels and pollution from activities under coastal State
jurisdiction in the Coastal Seabed Economic Area, such as
resource exploration and exploitation and construction and
operation of offshore facilities.
As to seabed-source pollution, we provide that the
International S-3abed Resource Authority to be set up under
the Convention should establish standards for activities
under coastal State jurisdiction in the Coastal Seabed
Economic Area and for those activities which the Authority
controls in the area beyond. These standards will ensure
effer~tive measures to control such pollution. Since, of
coui~e, the coastal State will have primary responsibility
PAGENO="0187"
181
for. the . management ~nd control of seabed exploration and
exploitation activities, coastal States should have the
right to establish stricter standards for such activities
under their jurisdiction in the Coastal Seabed Economic
Area.
Mr. Chairman, during the March/April meeting of the
Seabed Committee, my delegation introduced a working paper
on the question of the competence to set standards for
contrcl of pollution from vessels. We have discussed in
the Working Group the reasons supporting our conclusion
in that paper that standards for vessel source pollution
must be internationally established and we need not
elaborate those reasons again here. My delegation, however,
would like to thank the members of the Subcommittee who
have commented on our working paper.
Mr. Chairman, because of its technical competence and
experience we believe that IMCO should be designated as
the international organization responsible for establishing
these international stendards for vessel-source pollution.
We are sensitive to the views expressed by some delegations
who have felt that the IMCO treaty process has not always
moved rapidly enough to deal with newly-emerging problems;
that the environmental expertise of IMCO should be
strengthened; or that the structure was not sufficiently
open to concerned States who wOuld like to participate.
Recently, we have put forward in the IMCO Council a
proposal for changing the IMCO structure to create a new
Marine Environment Protection Committee for dealing with
vessel-source pollution. This Droposal would ensure that
new technology and new problems are adequately and rapidly
dealt. ~ith and that all nations interested in participating
in the sett±ng of such standards would have an opportunity
to do so. There are two points I would like to stress in
this connectiom -
First, membership in the Committee will be open so
that any concerned State would be able to participate equally
in the formulation of regulations;
And second, the new Committee will be empowered to
adopt regulations and to circulate them directly to Governments
without the review or approval Of the 111CC Assembly or Council.
Such regulations would then come into effect automatically
unless objected to by a specified number or category of
States.
PAGENO="0188"
182
Returning to the draft articles introduced
by my delegation today, Mr. Chairman, the
articles also specifically provide for the
international establishment of. special standards for
special areas and problems. We recognize
the need for such special standards in order
to cope effectively with special ecological
circumstances of particular regions and thus
we have emphasized the need to respond to
these needs. !~lso, I should note that the
proposed Marine Environment Protection Committee
would have regional subcommittees to consider
and develop solutions for regional problems.
Of related interest, the articles' also provide
for cooperation among the various international
organizations active in the environment field,
including the United Nations Environment Program.
In addition to establishing international
competence to make standards for vessel source
pollution, the draft articles do provide for
two situations in which States would also have
the authority on their own to set stricter
standards for such pollution. Port States,
in accordance with their general right
to regulate vessels entering their ports
would be able to apply higher standards
to such vessels and, of course, flag
States would continue to be able to do
so for their own flag vessels.
PAGENO="0189"
183
Turning to the problem of enforcement, the sections on
enforcement, Sections C,D,E, and F, of the draft articles
are intended to provide adequate enforcement authority to
cope with the variety of pollution problems arising from
seabed activities end from vessels.
With respect to pollution from seabed activities, the
coastal State is given complete euthority to enforce both
its own and international standards for those activities
under its jurisdiction in the Coastal Seabed Economic Area.
Such activities are essentially under the management and
control of the coastal State and it should thus also have
the authority and responsibility to ensure that such acti-
vities do not pollute the marine environment. Since the
coastal State is not the only State that may be thmaged or
affected by pollution from such seabed activities, we have
provided for international inspection to ensure compliance
~vith the international standards.
With respect to pollution from vessels, flag States,
port States, and coastal States would all share specified
enforcement rights and duties. Moreover, ~ have provided
that States may, by agreement, authorize other States to
act for them in carrying out these rights and duties.
First, the flag State ~ould continue to have enforce.-
ment responsibility over its vessels although such autho-
rity *~ould not be exclusive. It .`.ould also assume a
specific obligation to enforce international standards
against vessels flying its flag, subject to a right in
other St~tes to resort to compulsory dispute settlement
procedures to make certain that this obligation is fully met.
Second, the port State could enforce pollutiox~ control
standards against vessels using its ports. In this con-
nection, I would like to emphasize that ~e provide, in
Article VII, that the port State can-take enforcement ac-
tion :±th respect to violations~ regardless of where they
took place.
Finally, the coastal State, ;ill have rights and mech-
anisms that .iill fully protect its enviroriment~'.l interests.
The draft articles contain methOds for dealing ~.ith the
four major marine pollution problems facing co~stal States:
serious maritime casualties off its coast; violations of
international standards presenting ±mminent danger of
major harmful consequences to the coastal State; persistent
end unreasonable failure of a State to enforce the interna-
tion~.l standards *~ith respect to vessels flying its flag;
and, also, general violations of the standards.
PAGENO="0190"
184
Maritime casualties may threaten major harmful con-
sequences to the coastal State. ~e feel that the coastal
State should be able to take direct action to prevent,
mitigatc~ or eliminate any such problem off its coast.
The 1969 Intervention Convention provides such a right
with respect to oil pollution and it is presently being
expanded to a~.p1y to other substances. Certainly all
coastal States must be able to act in such situations
:dthout delay.
There is also another tyne of situation in hich coastal
States should be able to take direct action. In the case of
a violation of the international standards which is suf-
ficiently serious to produce imminent danger of major harm-
ful damage, the coastal State should also be alloed to
take direct enforcement measures, including detention or,
:~here absolutely necessary, arrest, in order to prevent,
mitigate or eliminate the danger. This right goes sub-
~tantial1y beyond that of the Intervention Convention
since it is quite possible to have a serious pollution
nroblem ~dthout the occurrence of a maritime casualty.
To adequately protect coastal States, we must also
eliminate persistent and unreasonable flag State failure
to enforce the applicable standards. To achieve this, in
addition to providing for general enforcement actions by
other States, ~e provide a right for any State, coastal or
not, to lodge a.- complaint :~ith the dispute settlement
machinery to the effect that a particular flag State has
unreasonably and persistently failed to enforce the interna-
tional standards. If the complaint is uDheld, the dispute
settlement machinery may then s~.aecify addition~l enforce-
ment measures .~hich may be taken by coastal States against
all vessels of that flag violating the international
standards. Such measures could include measures to be
taken by coastal States on the high seas. Since such
measures could be taken until the flag State itself under-
takes continuing effective enforcement, the new right ;~ill
create a strong inducement for flag states to effectively.
control their vessels.
Finally, *;e have set up a general system, in Sections
D and F, to deal with ordinary violations in an effective
manner. Under this system, any coastal State ~;hich suspects
a violation of the international standards, for example afl
oil discharge, may request the suspected vessel to give
information specifying its name, next Dorts of call end
other relevant information. The vessel is required under
the draft articles to supply the information. If the
vessel is headc-~ for a port in the coastal State, the
PAGENO="0191"
185
enforcement vessel can then request en immediate on-bo~rd
inspection and c~n deny port entry if the reäuest is re-
fused. If, ho*zever, the suspected vessel is headed else-
where, the coastal State may forward evidence toe, port
of call of the vessel or to the flag State-, *hichevcrit
~ishes. Whichever State is notified, port State or flag
State, is required to undertake an investigation in which
the coastal State has a right to participate. If the in-
vestigation reveals a violation, then the port State may
institute proceedings and if the port State does not do
so, the flag State must. In this connection, ~ee propose
an article reauiring adequate penalties. I .~`ould also
like to emphasize again that the fla~ State obligations
to institute proceedings and to ensure adequate penalties
are enforcable through compulsory dispute settlement.
Mr. Chairman, :~Te believe ~hat this system will pro-
vide an effective enforcement regime .;h~ch ill ensure
that violations are deterred, It ~;ill also provide ef-
fective protection for those States :.hich may not have a
large capability for offshore enforcement. :~t the same
time, through reasonable procedures ~uch as bonding, ~c
ensure that voyages can continue after necessary investi-
gations are carried out so long as there would be no un-
reasonable threat to the marine environment.
The draft also includes articles relating to the
issues of State responsibility, pen2.lties, liability
for unreasonable enforcement measures, multiple proceedings
and cooperation. Most of these articles are self-explana-
tory and ~re ~i1l make any neccss~ry additional comments
on them when.they are discusscd[ in the Working Group.
Finally, the draft articles provide for compulsory
dispute settlement so that all States, coastal and non-
coastal, dill have adequate remčdies~ to ensure compliance
with all aspects of these ne! procedures and responsibilities.
A major interest which all nations share is to reach agree-
ment on a Law of the Sea Convention .:hich will minimize un-
certainty and potential conflict amon.'~ nations. If the
rights and duties of States to be elaborated in the Conven-
tion are to be meaningful, :e must agree to settle all
disputes peacefully. The United States could not, in fact,
agree to m'.ny proposals we have made ourselves in the
Seabed Committee if there is no~general system of compul-
sory dispute settlement.
Mr. Chairmen, I would like.to acid a. fe;: additional
comments relating to the pro~os~il recently made by the
United States' for establishing a' ne.-~ Marine Environment
PAGENO="0192"
* 186
Protection Committee in IMCO. I have attached a copy of
that propose.]. for the information of the members of the
Committee.
First, thc proposal does not in any ;ry detr'~ct from
the jurisdiction of the Seabed Committee or prejudice the
options of the La.; of the Sea Conference reg~rding the
jurisdiction of States. The Law of the Sea Conference
will be a Plenipotc-ntiary Conference char~ed.with deter-
mining the ~basic jurisdictional freme-~!ork for protection
of the marine environment end that competence cannot in
any ~ay be altered by actions in another forum. Regardless
of our differences on coastalState jurisdiction, we- all
agrec that there must be strong international standards.
Our pronosal in IMCO is designed to ensure that those in-
ternational standards are expeditiously and effectively
established and c believe that we should move vigorously
in every forum to achieve these ends.
Second, the pro~osel marks a step for:nrd to~ard a
more open system of establishing international standards
for vessel source pollution -- a system in which States
affected by such standards ;ould be able to participate
in setting them. Membership in the new Committee *~ill
be open so that any concerned State could participate
equally in the formulation of standards. States represent-
ing all major community interests at stake including pro-
tection of the- marine environment and navigational interests
could thus participate in the decision process.
~gain, Mr. Chairman, let me emmhesize that the stan-
dards adopted by the ne~ committee ;ill be directly
circulated to States party to the relevant convention end
will not be subject to revie~i by the IMCO Council or
Assembly. Such standards would come into effect automatica~1±y
unless objected t~ by a cert~'in number or category of States.
This is essential if standards and regulations are to be
rapidly brought into force in response to changes in
technology or fle-! kno~:ledge about the marine-environment.
Third, there can be no question but that IMCO has
broad authority to deal with vessel source pollution
problems. The IMCO Charter clearly authorizes such acti-
vities end the historical practice of IMCO strongly sup-
ports it. fl4CO has been active in the field of vessel
pollution control since its inception. Conventions con-
cluded under ita ausDices include- the 1962, 1969 and 1971
.~mendments to the 195)4 Oil Pollution Convention, the
Civil Liability and Compensation Fund Conventions, as
~elJ as the: draft articles prepared for the October Marine
Pollution Conference. Many State-s have participeted in
this ork of ~MCO and are parties to one or more of these
Conventions.
PAGENO="0193"
187
In closing, Mr. Chairm~in, the Low of the Sea Con-.
ference *rill establish the basic jurisdictional frame-
work for the protection of the marine environment ell
into the 21st Century. It is incumbent upon all of us
to ensure a forward looking framework which *iill ef-
fectively protect that environment. My delegation has
tabled today draft articles which ~iC believe will en-
sure such a framework. We believe also that they
will fully protect the interests of coastal States as
well as maritime nations and other members of the inter-
national community. We should remember in this con-
nection that all nations, whether .~oasta1 States,
maritime nations, or both, have a common interest in
effective protection of the marine environment. :`~.nd all
nations have a common interest in avoiding unnecessary
increases in transportation costs and unnecessary sources
of potential disagreement among nations. The challenge
for this Committee, is to find a framework ..hich ~ril1
bring together all nations in recognizing these common
interests. We hope, Mr. Chairman, that the draft articles
~:hich .10 have submitted today will assist in meeting this
challenge.*
23-317 0 - 73 - 13
PAGENO="0194"
188
UNITED STATES DRAFT ARTICLES ON THE
PROTECTION OF THE MARINE ENTIR~NNENT
AND THE PREVENTION OF MARINE POLLUTION
PAGENO="0195"
Section A:
Article I:
Article II:
Section B:
Article III:
Article IV:
Section C:
Article V:
Article VI:
Article VII:
Section D:
Article VIII:
Article ~:
Article X:
Article XI:
Article XII:
Article XIII:
Section E:
Article XIV:
Article XV:
Article XVI:
Section F:
Article XVII:
Article XVIII:
Article XIX:
Article XX:
Section_a::
Article XXI:
Article XXII:
Article XXIII:
Article XXIV:
189
TABLE OF CONTENTS
Obligations to Protect the Marine Environment
General Obligation
Particular Obligations
Competence to Establish Standards to Protect
the Marine Environment
International Standards in General
The Right and Duty to~ Implement Standards
General Competence to Enforce Standards to
Protect the Marine Environment
Enforcement Instrumentalities
Enforcement in the /~oastal Seabed Economic
Area7
Ordinary Enforcement Against Vessels
Cooperative Enforcement Measures Against Vesseli
The Right to Monitor
Denial of Port Entry
The Duty to Notify
Fort State Duties
Flag State Duties
Participation in Investigations*
Extraordinary Enforcement Measures Against
Vessels
Coastal State Remedy Against Flag States
Emergency Coastal State Enforcement Procedures
Intervention
General Articles Relating to Enforcement
Release of Vessels
Penalties
Multiple Proceedings
Cooperation
Other Articles Relating to the Marine Environmer
Liability for Unreasonable Measures
State Responsibility
Sovereign Immunity
Dispute Settlement
PAGENO="0196"
190
Section!~.: Obligations to Protect the Marine
Eń~ironxnent
Article I: General Obligation
Article II: Particular Obligations
(Two articles on these subjects were discussed during
the March/April meeting of the Seabed Committee. We take
note of those drafts and the footnotes and ~ri11, of course,
participate in the later consideration of them in the
Working Group and the Subcommittee.)
PAGENO="0197"
Section B: Competence to Establish Standards to
Protect the Marine En~Ironmen~
Article III: International Standards in General
1. The Authority established by Chapter of this
Convention shall 1~ve primary responsibility f6~stablishing,
as soon as possible and to the extent they are not in existence,
international standards with respect to the seabeds.
2. The Intergovernmental Maritime Consultative Organiza-
tion shall have primary responsibility for establishing, as
soon as possible and to the extent they are not in existence,
i~iternationalstandards with respect to vessels.
3. Such standards may include special standards for
special areas and problems, taking into account particular
ecological circumstances.
)4* These organizations shall cooperate with each other, -
other international organizations in the field, and the United
Nations Environment Program.
Article IV: The Right and Duty to Implement Standards
States shall adopt laws and regulations implementing
international standards in respect of marine based sources
of pollution of the marine environment or may adopt and
implement higher standards:
(a) in the exercise of their rights in the
/~oastal Seabed Economic Area7 with respect
~Eo the activities set forth in Chapter ______
Article - of this Con~(rention;
(b) for vessels entering their ports and offshore
facilities;
(c) for their nationals, natural or juridical,
and vessels registered in their territory
or flying their flag.
PAGENO="0198"
192
Section C: General Competence to Enforce St:~ndards to
protect the Marin~~nv1ro~c~
Article V: Enforcement Instrumentalities
For the purposes of this Chapter, State shall act
through duly authorized government vessels, aircraft, or
officials. :~fly State may, by agreement, euthorize one or
more other States to act for it in taking pollution enforce~
ment measures and shall so inform other States throu~,h IMCO,
or directly.
Article VI: Enforcement in the ~~oastal Seabed Yconomlc
Mea_7
1. In the exercise of its rights in the /~oastal Seabed
Economic ~~ree. 7 pursuant to Chapter _____ , theThoast~l State
shall enforce the standards applic~DI~~ accordance with the
provisions of this Chapter tO the activities set forth in
Chapter ________, ~rticle of this Convention.
2. The Authority established in Chapter ________, may
inspect, in accordance with Article _________, the~act~ies
specif~:d in paragraph one of this Articl~Tin cooperation
~~ith the coastal State, to ensure that the activities are
bein:~ conducted in compliance with the standards applicable
in accordance with the provisions of this Chapter.
Article VII: Ordinary Enforcement ~gainst Vessels
1. A State shall enforce standards applicable in
accordance with the provisions of this Chapter to vessels
registered in its territory or flying its flag (such State
is hereinafter referred to as the flag State).
2. A State may enforce standards .~pplicable in ac~
cordance with the provisions of thiS Chapter to;
(a) vessels using its torts or offshore facilitIes
irrespective of "here the violetion occurred, provided, how-
ever, that such proceedings are commenced no later thc.n /Ehrce
years7 ~fter such violation occurred (such ~ta~te is hereTn~
after referred to as the "port State ).
(b) vessels in its territorial sea for violations
therein, except as otherwise provided in this Convention.
PAGENO="0199"
193
Section 1): Coo~perative Enforcement Measures Against
Vessels
Article VIII: The Right to Monitor
A vessel within or beyond the territorial sea shall upon
request by any duly authorized government vessel, aircraft or
official in the vicinity whiŕh has reason to suspect a
violation of the applicable international standards, give
Information specifying its name, State of registry, next
scheduled ports of call, and~ any other information required
to be given by the applicable international standards.
Article IX: Denial of Port Entry
Any State may inform a vessel at any time that It will be
denied entry to its ports for non-compliance with any of its
environmental requirements or its refusal to allow an immediate
on-board inspection to determine the source of possible pollution.
Any State may, by agreement, authorize one or more other States
to act for it in this respect and shall so inform other States
through INCO, or directly.
ArcicleX: The Duty to Notify
~If a State has reason to suspect a violation of the
applicable international standards, It shall notify the flag
State or the State of one of the next ports of call or both,
of the alleged violation and forward the available evidence.
ArtIcle XI: Port State Duties
Upon receipt of such notification of the alleged violation,
the port State shall undertake, upon arrival of the vessel If
within six months of the alleged violation, an immediate and
PAGENO="0200"
194
thorough investigation. The port State shall prrmptly infcrm
the flag State and the notifying State of the results of the
investigation and its actions including a statement as to whether
it intends to institute proceedings and the result of any such
proceedings.
Article XII: Flag State Duties
Upon receipt of notification if within six months of an
alleg~d violation, the flag State shall undertake an immediate
and thorcugh investigation. If the result of its or a port
State's investigation indicates that a violation has occurred,
the flag State shall institute proceedings against the vessel,
its operator, its master, or. its owner, provided that It shall
not be required to do so if proceedings have already taken
place in respect of that violation. The flag State shall
inform the notifying State and any other State which could
institute proceedings of its decisiç~ns and actions.
Article XIII: Participation In Investigations
A notifying State m~y participate in any investigation
undertaken pursuant to its notification. A flag State may
designate an observer for any investigation involving one of
its flag vessels. An expert or experts designated by fl'ICO
shall be permitted to participate in -any investigation if so
requested by a State concerned and such expert or experts
may file a separate report with INCO.
PAGENO="0201"
195
Section E: Extraordinary Enforcement Measures and Inter-
vention against Vessels
Article XIV: Coastal State Remedy Against Flag States
If the dispute settlementrnachinery established in
Chapter finds, upon petition by any State, that a
particular flag State has unreasonably and persistently failed
to enforce the applicable international standards against its
flag vessels, the machinery may specify additional enforcement
measures which may be taken bycoastal States for violations by
any vessel of that flag. Such authorization shall be interim
in nature and shall be limited to those measures necessary to
bring about adequate flag State enforcement. Such authorization
shall be rescinded upon a showing by the flag State that it is
taking adequate measures.
Article XV: Emergency Coastal State Enforcement Prccedures*
Beyond the territorial sea, a coastal State may take such
reasonable emergency enforcement measures as may be necessary
to prevent, mitigate or eliminate imminent danger cf major
harmful damage t'~ its coast or related interests from pollution
arising from a partiicular occurrence reasonably believed to be
related to a violation of the applicable international standards.
Article XVI: Intervention
(The 1969 Intervention Convention allows coastal States
to take such measures on the high seas as may be necessary to
prevent, mitigate or eliminate grave and imminent danger to
should be noted that this differs from and is in addition to
the measures set out in the Convention relating to Intervention
on the High Seas in Cases of Oil Pollution Casualties.
PAGENO="0202"
196
their coastline or related interests from pollut±cfl or
threat of pollution by oil following upon a maritime casualty
or acts related to such casualty, which may reasonably be
expected to result in major harmful consequences. Negotiations
are presently under way in IMCO to expand the Conventien to
cover other substances in addition to oil and the issue is on
the agenda for the October 1973 Conference on r~arine Pollution.
Consequently, it may be advisable to await the results of these
negotiatIons before taking action ~nthe Issue in the law of
the sea negotiations).
PAGENO="0203"
197
Section F: General Articles ~lating to ~iforcement
Article XVII: Release of Vessels
A vessel shall be permitted to continue its voyage and
shall not be detained longer than its presence is essential
for investigative purposes. It shall be promptly released if
the investigation does not reveal a violation of the standards
applicable in accordance with the provisions of this Chapter.
Where there continues to be reason to believe a violation has
occurred, vessels shall be promptly released under reasonable
procedures such as bonding except where such release would
present an unreasonable threat of harm to the marine environ-
ment or where other action is required or authorized by the
applicable International standards.
Article XVIII: Penalties
All violations of the applicable international standards
shall be prohibited under the law of each State. The penalties
provided for such violations shall be applied so as to guarantee
fair treatment, shall be adequate in severity to discourage any
such violation, and shall, in any case, be at least as severe
as those applied by that State for violations in its territorial
sea.
Article XIX: Multiple Proccedings
Whenever a State other than the flag State has instituted
proceedings against a vessel, its operator, its master, cr its
owner, no other proceedings in respect c~f the same violation
may be instituted except by the flag State of the vessel or by
any other State in whose territorial sea or internal waters the
violation has taken place. In assessing penalties, a State
shall take into account any penalties assessed by other States
in respect of the same violation. This shall not restrict the
right of any State or person to institute a suit or claim for
damages caused by pollution.
Article XX: cooperation
States shall afford one another the greatest measure of
assistance in carrying out the objectives of this Chapter and
in particular in providing evidence and witnesses necessary
for investigations and proceedings.
PAGENO="0204"
198
SectionG: Other Articles Relatin~o the ~1arine
Environment
Article XXI: LiabilIty for Unreasonable Measur
A State shall be liable for damage resulting from
investigative, enforcement or intervention measures ~xeeoding
those reasonably necessary in the light of available information.
Article XXII: State Responsibility
1. A State has the responsibility to take appropriate
measures to ensure, in accordance with international law, that
activities under its jurisdiction or contro~. do not cause damage
to the environment of ether States or to the marine environment
beyond the limits of national jurisdiction.
2. States shall undertake, as soon as possible, jointly
to develop international law regarding liability and compensaticr
for polluti?fl damage including, inter alia, prc'cedures and
criteria for the determination of liability, the limits of
liability and available defenses.*
3. In the absence of other adequate remedies with respect
to damage to the environment of other States caused by activities
under the jurisdiction or control of- a State, that State has the
responsibility to provide recourse for foreign states or
nationals to a domestic forum empowered:
(a) to require the abatement of a continuing source
of pollution of the marine environment, and
(b) to award compensation for damages.
*The ~3ubcommittec may wish to consider whether or to what
extent the lew of the sea negotiations provide the appropriate
forum to address the details of this issue.
PAGENO="0205"
199
ArtIcle XXIII: Sovereign Immunity
This Chapter shall not apply to those vessels and aircraft
entitled to sovereign immunity under international law. How-
ever, each State shall ensure, by the adoption of appropriate
measures, that all such vessels and aircraft owned or operated
by it act in a manner consistent with the object and purpose of
this Chapter.
Article XXIV: Dispute Settlement
Any dispute with respect to the interpretation or aptlica-
tion of the provisions of this Chapter shall, if requested
by any party to the dispute, be resolved by the compulsory
dispute settlement procedures contained in Chapter__________
PAGENO="0206"
200
UNITED STATES MISSION
U.S. INFORMATION SERVICE
80. RUE DE LAUSANNE
1211 GENEVA 21 - TEL. 327020
PRESS RELEASE
STATEMENT BY AMBASSADOR DONALD L. McKERNAN
ALTERNATE REPRESENTATIVE OF THE UNITED STATES
CO~2.~ITTEE ON THE PEACEFUL USES OF THE SEABED AND THE
OCEAN FLOOR BEYOND THE LIMITS OF NATIONAL JURISDICTION
Subcommittee III -- July 20, 1973
Mr. Chairman:
Throughout these negotiations, my delegation has emphasized the
contributions of scientific research to mankind's knowledge not only
of the marine environment but indeed of the earth on which lge live.
Marine science has led to a better ~inderstanding of the environmental
consequences of marine pollution, the geology of the seabed, the
interaction of the ocean and the atmosphere, the productivity of the
living resources of the oceans, the ocean's chemical composition,
and a vast array of knowledge of importance to mankind as a whole.
In fact, our present knowledge of the manganese nodules of such
importance today to the deliberations of the Seabeds Committee is
the product of scientific research beginning with their discovery
over one hundred years ago by the research vessel H.M.S. CHALLENGER.
We shall have failed in our obligation to generations unborn if by
our actions we preclude similar discoveries which may be of importance
in the future.
As with virtually every issue before the Seabeds Committee,
the question of scientific research in the sea requires an accom-
modation of the interests of the international community and the
coastal State. An immutable characteristic of the oceans is that
its processes recognize no jurisdictional boundaries. Ideally,
therefore, a more complete understanding of such oceanic processes
could be obtained if marine scientists were free to carry out scien-
tific research anywhere in the seas without restraint or restrictions.
Balanced against this interest, however, are the legitimate rights
and interests of the coastal States. In the draft articles on scien-
tific research being presented today, there is a reasonable balance
of interests which will encourage continued research in the marine
environment. I should like to comment briefly on some of these
draft articles.
ARTICLE 1 states that preservation and enhancement of
the sea as well as its rational and effective use requires
greater understand.ing which can only be obtained through
scientific research. States, therefore, should promote and
facilitate the conduct of scientific research for the
benefit of the international community. This article also
P2
C,
S
~Iot4
PAGENO="0207"
201
affirms the principle that all states, irrespectIve of
location, as well as appropriate international organizations
may engage in the conduct of scientific research and requires
that such research be conducted in a manner :hich recognizes
the rights and interests of coastal States and the interna-
tional community, particularly the interests and needs of
developing countries.
ARTICLE 3 requires that scientific research be con-
ducted ;ith strict and adequate safeguards for the protec-
tion of the marine environment. Much of the kno.~ledge
derived from scientific research is presently being applied
to protect the ecology of the oceans end all agree that
more knowledge is necessary to enable us to better under-
stand the effects of our actions upon this community
environment. Scientists as a group ~ertainly recognize
that their research must be conducted in a manner that
avoids adverse effects on the ecology of the oceans.
Although we believe thet most scientific research does not
create environmental harm, we do believe that States whose
natioxnls conduct scientific research have en obligation
to ensure that such research complies with all applicable
international environmental standards.
ARTICLE 5 similarly is based on paragraph 10 of the
Declaration of Principles adopted by the UN General
Assembly in 1971. It cells upon all States to promote
international cooperation in scientific research. One of
the most effective means of disseminating knowledge and
increasing mutual understanding of problems and needs is
through cooperative programs, both bilateral end multi-
lateral. The United States has actively supported many
cooperative international programs. For example, the
International Indian Ocean Expcdition was a multilateral
cooperative program sponsored by UNESCO/bC which provided
~significant information about this relatively unstudied
body of w~tor. The deep-sea drilling conducted by the
GLOMAR CHALLENGER, initiated by the United States through
the National Science Foundation, has become an element of
support for the Internatir~nal Decade of Ocean Exploration.
In this program, the United States actively enco~n'ages
other countries to assist in the conduct of the research
and an:~lysis of the samples and readily disseminates research
results tp interested scientists, irrespective of nationality.
The U.S. Government as well as~ur academic institutions
have bilateral programs with many countries in Africa,
Latin America, Asia and elsewhere.
Another way in which knowledge obtained from scien-
tific rese~röh is disseminatedis through effective
publication of research programs through International
PAGENO="0208"
202
channels. Many programs presently exist where the results
of researc.h are disseminated through international channels.
Examples of such programs are the World Date Centers, Food
end I~gricultural Organization programs, and those of the
Intergovernmental Oceanographic Commission of UNESCO.
Through broadening of such programs, we can insure that
sci~itific research will benefit all of the international
community.
with respect to strengthening the scientific research
capabilities of developing countries, I would like to
quota from my statement of August 11 of last year when my
Government stated its willingness, in principle, "to commit
funds to support multilateral efforts in all appropriate
international agencies with a view towards creating and
enlarging the ability of developing states to interpret and
use scientific data for their economic.benefit and other
purposes; to augnent their expertise in the field of marine
science research; and to have available scientific research
equipment including the capability to maintain and use it."
We reiterate our willingness today.
When making that statement, I solicited on an urgent
basis concrete proposals for making progress in this area.
I would hope that in the current debate on the transfer of
research technology we will hear of some ideas on this
subject. While continuing our so]~it~tion for concrete
proposals, we would propose that attention be focused on
multilateral efforts to establish regional training centers
in marine science. During the period that developing
country capabilities are being strengthened, international
mechanisms should be established to assist developing
countries in assessing the implications for their interests
of scientific research data and results. As I shall explain
later, we have proposed that the flag state of the research
vessel be obligated to assist the coastal State in inter-
preting data and results when scientific research is
conducted in areas beyond the territorial sea where the
coastal state exercises jurisdiction over seabed resources
and coastal fisheries.
The United States intends to continue the cooperative
efforts to which I have referred, and Article 5 is designed
to provide a basis for further and expanded international
cooperation in this field.
ARTICLE 6 recognizes that the territorial sea is an
area in which the coastal State has rights and interests
which have long bean recognized in international law.
Coasta~ States in the exercise of their sovereignty, there-
fore, snould have the right to approve or reject tI~ conduct
PAGENO="0209"
203
of scientific research in their territorial seas. Ho~iever,
to obtaiii more complete understandin~ of the oceans for the
benefit of mankind as chole, coast-] States should coop-
erate in facilitating scientific research in their territorial
sea. Research cruises often are conducted at vast distances
from the homeport of the research vessel. Coastal States,
therefore, should promote the~ conduct of scientific research
by facilitating access by research vessels to their ports.
Such cooper~tion would enable the vess~ to take on board
needed supplies and eauipment, ~fflo.~d data and samples for
transshipment to laboratories for study and analysis, and
conduct such other activities as may be necessary to support
the reserrch program. None of this would derogate from the -
sovereignty of the coastal State.
ARTICLE 7 addresses scientific research conducted in
areas beyond the territorial sea where the coastal State
exercises jurisdiction over seabed resources and coastr~l
fisheries. It appears that the agreed limits of national
jurisdiction over seabed resources may be rather brod
Similarly, under the U.S. and other fisheries proposals,
there would be fairly extensive coéstal areas in which the
coastal State would exercise jurisdic~ion over resources.
Were the conduct of scientific research in these vast areas
of the ocean to be seriously impaired, mankind's future
knowledge and understanding of the oceans would be severely
curtailed. On the other hand, we believe that the legiti-
mate economic interests of the coastal State can be
protected without creating a regime which restricts scien-
tific in~uiry.
This article sets forth seven oblig'~tions on the
State of the researcher. I would like to elaborate on
these important obligations which we believe protect
coastal State interests yet permit the maximum accumulation
of knowledge for the benefit of mankind.
In order for the coastal State to meaningfully partici-
pate in the research, notific~tion given the coastal State
should include sufficient details of the research so that
the coastal State may better evaluate its desire to take
part in the research project. Such notificabion should
include a description of the research project and informa-
tion to facilitate coastal State participation or represen-
tation in the research. This notification should be given
well in advance of the proposed research project. As
cruise planning proceeds, as more specific information
becomes available, or as modifications are required, addi-
tional notifications should be given the coastal State.
PAGENO="0210"
204
After receipt of notification, the coastal State should
of course inform the notifying State of its contemplated
participation tc) allow the researcher adequtte time to take
into account such participation.
At its option, the coastal State could perticipate in
the research project directly or through an international
organization. For example, as part of the effort to expand
international participation in and benefit from research,
it may be pc~ssib1e to establish a mechanism by thich coastal
States could draw upon an international organization for
assistance in participating in a research project and in
understanding the implications of the research for its
interests.
We entirely agree that all data and samples desired
by the coastal State should be shared with it. Where data
is already generated and copying facilities are available,
this could be accomplished before the vessel left the area.
Of course, data generated in the laboratory once the vessel
returned would also be made available. Similarly, some
samples can be shared immediately, while others may require
additional time to provide the coastal State and the
researcher with samples whose scientific value are main-
tained. For example, a single rare biological specimen
obviously should be carefully handled and preserved, and
clearly cannot be split into two.
We reali~e that merely making the data and samples
available to the coastal State may not be meaningful and
that assistance may be required in interpreting the data
and the results of the research. Often, the data will
have implications for the coastal State that the researcher
is unaware of or uninterested in. Under our proposal,
there is an obligation upon the flag State to assist the
coastal State in assessing the implications of the date and
results for its interests. Alternatively, the program we
envisage, pursuant to Article 5, could provide the mechan-
ism for assisting the coastal State in the interpretation
of the practical implications of the research.
We also propose that the flag state certify that the
research is being conducted by a qualified institution
with a view to purely scientific research. Furthermore,
we pr~pose that the researcher be required to publish the
significant research results as soon as possible in an
open and readily available scientific publication and
supply a copy directly to the coastal State. Only through
such publication can the knowledge obtained truly benefit
all mankind. Finally, the article requires compliance
with all applicable international environmental standards.
PAGENO="0211"
205
Research vessels should comply with thosa environmental
standcrds applicable to vessels generally, as well as eny
that may epply specifically to research.
ARTICLE 8 provides for compulsory settlement ~f ~ny
disputes that may arise from the interpretation or applica-
tion of these provisions. Thus, there ;:ould be available
to the coastal State a means to ensure that States with
vessels engaged in research in areas defined in Article 7
comply with their obligations, including each of the
specific obligations to protect coastal State interests
that I have just discussed. It must be emph~sized that all
nations have a common interest in reaching agreement on a
Law of the Sea Convention whiáh will minimize uncertainty
and peacefully resolve dispi~tcs among nations. As we have
already pointed out in other subcommittees, should there
be no general system of compulsory dispute settlement, the
United States could not accept many of the proposals that
we have advanced in an attempt to achieve an accommodation
of interests. Our purpose after all is not merely to
create a. set of abstract rights and obligations, but to
establish a system which will make these rights and obli-
gations meaningful by ensuring their compliance. The
success of the legal system for the oceans which we are
here attempting to negotiate, in our view,.will depend to
a great extent on the kind of dispute sett~ment mechenism
which we adopt.
We believe that the regime we propose in these
articles gives science and scientists an opportunity to
investigate ocean phenomena to the fullest. In turn, it
accommodates the international community interest in
obtaining greater knowledge of the marine environment and
at the same time ensures respect for and protection of
the rights and interests of the coastal States. ~1e recog-
nize that some of the provisiOns of these draft articles
on the ca~nduct of research in the oceans may reauiz~
further elaboration. We anticipate a fruitful discussion
of these articles and others, and welcome all suggestions
to make these articles end the concepts contained in them
reflect the interests of the world scientific community,
coastal States, and the international community.
PAGENO="0212"
206
UNITED STATES OF AMERICA
DRAFT ARTICLES FOR A CHAPTER ON
MARINE SCIENTIFIC RESEARCH
ARTICLE 1
Scientiftc research in the sea being essential to an understanding
of global environment, the preservation and enhancement of the sea
and its rational and effective use, States shall promote and facilitat
the development and conduct of all scientific research in the sea for
the benefit of the international community. All States, irrespective
of geographic location, as well as appropriate international organi-
zations may engage in scientific research in the sea, recognizing the
rights and interests of the international community and coastal
States, particularly the interests and needs of developing countries,
as provided for ih.this Convention.
ARTICLE 2
Scientific research shall be conducted with reasonable regard to
other uses of the sea, and such other uses shall be conducted with
reasonable regard to the conduct of scientific research.*
ARTICLE 3
Scientific research shall be conducted with strict and adequate
safeguards for the protection of the marine environment.**
*A general treaty article on the subject of accommodation of uses
dealing with all uses of the sea might be included in the general
articles of the Law of the Sea Convention. This could obviate the
need for a specific article for each use, such as that suggested
above for scientific research, that prepared as Text 17 of the texts
dealing with principles for the seabed areas beyond the limits of
national jurisdiction (A/AC.l38/Sc4~22, 14 April 1973) or that
included in Article 2, paragraph 2, of the Convention on the High
Seas.
**The need for and wording of the article might be further con-
sidered in the light of the draft articles prepared by the Working
Group on marine pollution.
PAGENO="0213"
207
ARTICLE 4
Scientific research activities sJ~all not form the legal basis
for any claim to any part of the sea or its resources.*
ARTICLE 5
States shall promote international cooperation in scientific
research exclusively for peaceful purposes:
a. by participating in international programs and by encouraging
cooperation in scientific research by personnel of different -
countries;
b. through effective publication of scientific research programs
an~t dissemination of the results~ of such research through inter-
national channels and promotion of the flow of scientific research
to developing countries;
c. through measures to strengthen scientific research capabilities
of developing countries, including assistance in assessing the impli-
cations for their interests of scientific research data and resu1ts~
the participation of their nationals in research programs, and
education and training of their personnel.
ARTICLE 6
Coastal States in the exercise of their sovereignty shall cooperate
in f~cilitatińg the conduct of scientific research in their
territorial sea and access to their ports by research vessels.
*There may be merit in the inclusion of an article in the general
articles of the Law of the Sea Convention to the effect that no
claims to any part of the sea can be made except as specifically
provided in the Convention. This could obviate the need for a
specific article for each use of the sea (see e.g. Texts 4 and 11 of
the draft seabed articles prepared by the Working Group of Sub~
committee I; Article 2 of the U.S. draft seabeds treaty).
PAGENO="0214"
208
~TICLE 7
In areas beyond the territoi~ial sea where the coastal State
exercises jurisdicti~i pursuant: to !~rticles over seabed resources
and coastal fisheries, States ar~d appropriate international organi-
zations shall ensure that their~vessels conducting scientific researc1~
shall respect the rights end interests of' the coastal State in its
exercise of such jurisdiction, and for this purpose shall:
a. provide the coastal State at least days advance notifica-
tion of intent to do such research, contai~~ a description of the
research project which shall be kept up to date;
b. certify that the research will be conducted in accordance with
this Conventiam by a qualified institution with a view to purely
scientific research;
c. ~nsure that the coastal State has all appropriate opportunitie
to participate or be represented in the research project directly or
through an appropriate international institution of its choice; the
coastal State shall give reasonable advance notification of its dosirc
to participate or be represented in the research within days
after it has received notification;
d. ensure that all data and samples are shared with the coastal
State;
e. ensure that significant research results are published as soon
as possible in an open readily available scientific publication and
supplied directly to the coastal State;
f. assist the coastal State in assessing the implications for
its interests of the data and results directly or through the
procedures established pursuant to !~rticle 5;
g. ensure compliance with all applicable intern~tional environ-
mental standards, including those established or to be established by
/rnsert name or names of appropriate organizations7.
ARTICLE 8
Any dispute ith respe~ to the interpratation or epplic~ion of ti'
provis~.ons of~ this Chapter shall, if requested by either party to the
dispute., be resolved by the compulsory dispute sLttlcment procedures
conte4ned in Article -
PAGENO="0215"
209
STATEMENT BY AMBASSADOR DONALD L. MeIcERNAN
ALTERNATIVE REPRESENTATIVE OF THE UNITED STATES
CO~V21ITTEE ON THE PEACEFUL USES OF THE SEABED AND THE
OCEAN FLOOR BEYOND THE LIMITS OF NATIONAL JURISDICTION
Subcommittee III -- July 20,. 1973
Mr. Chairman: .
My delegation believes that all nations benefit i:rom
scientific research in the sea. However, methods must be
developed to assist all nations in obtaining the technical
knowledge necessary to profit more directly from scientific
research. Although there are a variety of ways in whie Ii
this knowledge ôan be transferred to those countries which
necd and can use such knowledge, we believe that this
transfer of. scientific knowledge can be accomplished most
meaningfully through a two~stage process.
First, developing countries should receive assistance
in interpreting data about marine areas of concern to them
in a manner that is relevant to their interests.
Second, means must be devised to provide the technical
capability for all countries not only to interpret the data
for themselves but also to actually engage in scientific
research in the marine environment.
Before elaborating on these concepts, I should like ~
review briefly proposals which we have made thus far to the
Seabeds Committee concerning the transfer of technical
knowledge and information from scient:ific research.
PAGENO="0216"
210
The draft seabeds treaty which my delegation tabled
before the Seabed Committee in 1970 includes several
provisions on technical training and assistance to developing
countries. Article 5 of this draft treaty provides that .a
portion of the revenues derived from exploitation of the
International Area should be used `~through or in cooperation
with other international or regional organizations, to
promote development of knowledge of the International Seabed
Area and to provide technical assistance to Contracting
Parties or their nationals for these purposes, without dis-
crimination."
Article )4Q of our 1970 draft seabeds treaty elaborates
upon the means by which the International Authority itself
should assist in the development and transfer of technical
knowledge through international or regional centers.
Similarly, Article 62 of our draft seabeds treaty imposes
an obligation on the Secretary-General of the Authority to
"collect, furnish and disseminate information which will
contribute to mankind's knowledge of the seabed and its
resources."
PAGENO="0217"
211
* In addition, in a statement before this Subcommittee on
~Th~ugust 11 of last year we stated our willingness, in principle,
1to commit funds to support multilateral efforts in all
appropriate international agencies with a view towards
creating and enlarging the ability of developing states to
interpret and use scientific data for their economic benefit
and othcr purposes; to augment their expertise in the field
of marine science research; and to have available scientific
research equipment including the capability to ma:i.ntain and
use it.° In that statement, we emphasized that these funds
would be in addition to financia1~ efforts by the International
Authority, We reemphasize our willingness today to partici-.
pate in such funding.
In making this statement, we solicited on an urgent
basis concrete proposals for making progress in this area.
Our delegation has given much serious thought to improvements
in sharing technical knowledge in the area of scientific
research. While continuing our solicitation for concrete
proposals, we would also like to share with the Subcommittee
some of our thoughts on this matte'~'.
PAGENO="0218"
212
As I indicated at the beginning of my remarks, we
believe that assistance in interpretation of clatacanbe
a valuable first step in the process of fuller utilization
of scientific research. The commitment to support inter-
national cooperation in marine science is set forth in the
General Assembly Resolution on Principles Governing the
Seabed and Ocean Floor Beyond the Limits of National
Jurisdiction, adopted by the General Assemb]y in December
of 1970 and incorporated into Article 24 of our draft seabeds
treaty. In honoring this commitment, States should move to
establish within an appropriate international organization
a mechanism whereby a coastal State could seek assistance
for interpreting data and samples obtained from scientific
research conducted in areas where the coastal State
exercises jurisdiction over seabed resources and coastal
fisheries. We believe that when scientific research is
conducted in these areas, the coastal Stateshbuld have a
right to participate or be represented in the research arid
that all desired data and samples should be shared with the
coastal State. As with interpretation of data, it should. be
possible for the coastal State to obtain assistance from
an international or regional organization in participating
in the scientific research on behalf~of the coastal State.
The coastal State could thus determine the priorities for
the scientists particpating on its behalf in the research
project. Similarly, the international or regional
PAGENO="0219"
213
organizatibn could assist the coastal State in analysis of
the scientific data from the perspective of the coastal
State. -
I would hasten to add some caveats to this proposal.
Not all scientific research projects generate data which
have immediate or direct relevance to coastal State economic
interests and the data may nótbe in a form that is usable
for more than one purpose. The assisting international or
regional organization could both assist the coastal State
in determining whether particular scientific data may have
such immediate or direct relevance and make certain that it is
analyzed in such a. manner so as to obtain maximum benefit
from the data.
Assistance in interpretation and participation should
constitute a satisfactory interim solution until all coastal
States acquire the ability to interpret the data, participate.
in the research project and ultimately conduct scientific
research themselves. Such capabilities obviously can only
come about through specialized education and training in
marine sciences. . -
This education and training should not be provided
exclusively in educational institutións in the developed
countries but also in the country or region most directly
PAGENO="0220"
214
affected. This would ensure that the training reflects the
priorities, interests and needs of the developing States.
We believe that it would be virtually impossible to establish
institutions for training in every developing country, but
it may be feasible to establish regional training centers.
Thus, regional training centers, as has been suggested by
other speakers, and by our draft Seabeds ~`eaty, nay be the
best solution to the problem.
To make such regional facilities effective, there must
be commitments bf support not only by developed countries hut
also by developing countries which utilize the facilities.
Such commitment should insure effective opportunity to utili2:e
the training of the scientists and~ technicians within their
home country.
In closing, I want to emphasize that it is in the
interests of science and all mankind to support efforts to
increase the scientific and technical capabilities of develop-
ing countries. Despite the impressive development of organized
science, we should not forget that the prospeôtive of a single
scientist in any country may provide the initial synthesis
or insight that makes a major breakthrough in scientific
* knowledge or our ability to apply that knowledge. The transfer
of marine scientific research capability is thus directly
related to the continued increase in knowledge and the continuec~
contribution of marine science to the international community.
We encouragC broad discussions on these issues in finding
prompt and effective means for achieving all these objectives.
PAGENO="0221"
215
STATEMENT BY
THE HONORABLE JOHN R. STEVENSON
CHAIRMAN OF THE UNITED STATES DELEGATION
TO THE
COMMITTEE ON THE PEACEFUL USES OF THE SEABED AND
THE OCEAN FLOOR BEYOND THE LIMITS
OF NATIONAL JURISDICTION
SUBCOMMITTEE II - July 25, 1973
Mr. Chairman:
Almost two years ago, my delegation introduced draft
articles dealing with the territorial sea and straits used
for international navigation. Since that time other proposals
have been made and positions elaborated, to which we have
responded. Accordingly, I will comment only briefly on some
points regarding straits at this time.
First, there can be no doubt or misunderstanding regard-
ing the importance my delegation attaches to the satisfactory
resolution of the question of transit through and over
straits in the context of a satisfactory overall Law of the
Sea settlement. Our views in this regard have been stated
on various occasions, and I need, only reaffirm them now.
Second, the time has long passed when we can afford the
luxury of debating motives in this Committee. No right of a
State -- to use its teri'itory or to use the seas -- implies
that it can do as it pleases without regard to the relevant
limitations on its behavior contained in the UN Charter and
all of international law. It is useful to recall that
despite our differences regarding the precise nature of the
legal regime applicable to the deep seabeds, we all agreed
on this very point in principle 6 of the Declaration of
Principles Governing the Seabed beyond the Limits
of National Jurisdiction.
Third, while a discussion of the views of States regard-
ing their existing rights in straits may be a useful and
necessary part of our work, let us not forget that the reason
for this negotiation is to achieve agreement on the rights
and duties of States for the future. For our part, we
believe we now have -- and have always had -- full high seas
freedoms such as freedom of navigation and overflight beyond
a three-mile territorial sea. We find the existence of these
rights in straits used for international navigation confirmed
by their historical and continuing exercise. But, as we
said on August ~, 1971, in connection with our proposal for
PAGENO="0222"
216
an agreed territorial sea limit of 12 miles, "to achieve
widespread international agreement we are prepared to give
up high seas freedoms in these international straits,"
retaining only `a limited but vital right" of free transit.
We would welcome similar attempts at accommodation from
those who view the existing situation differently from the
way we do. lie regret -- as we said on March 19 of this
year -- that what in fact was presented in the proposal
submitted by eight States in March "suggests an even more
restrictive and subjective concept of innocent passage than
under existing international law."
Mr. Chairman, it is two years since we stated unambig-
uously, "The doctrine of innocent passage is not adequate
when applied to" straits used for international navigation.
We explained our reasons then, and since that time, We did
not then, and we do not now, suggest that there is any need
to revise the concept of innocent passage as it applies to
the territorial sea generally outside straits. As we said
in 1971, the balance of international and coastal interests
is quite different in these two situations. At that time,
we also made clear that "subject only to the right of free
transit, territorial waters in ... straits would retain
their national character in each and every respect," and that
a vessel "exceeding the scope of its right ... would be
subject to appr~priate enforcement action by the coastal
State." In describing the right of free transit, and the
right of coastal States to designate corridors suitable for
transit, we stated that we were "prepared to consider whether
coastal and international interests could be similarly
reconciled in the case of island nations." Last summer,
on July 28, 1972, we made specific proposals to accommodate
the concerns expressed by straits States regarding the
safety of navigation and overflight.
We welcome the fact that other delegations, for their
part, have devoted considerable efforts to finding means of
accommodating these ccncerns. In this connection, we believe
the Italian delegation deserves the Committee's thanks for
a very constructive contribution to our deliberations on
this matter. Like others, we too wish to study the language
of the Italian proposal closely. But the underlying ideas
will certainly receive our most careful and sympathetic
consideration.
PAGENO="0223"
217
Mr. Chairman, if we are to agree on a new law of the sea,
we must all concentrate on describing necessary rights and
duties in necessary situations in a way that can promote an
ultimate accommodation of interests. It is not labels, but
substantive interests that are important. Excessive
reliance on terminology -- be it !j~-~oc~~'ç passaget or "free
transit" -- will not be helpful in moving us closer to an
accommodation of interests at this stage in our ~iork.
Bearing in mind the schedule for the Conference, and the
need for such an accommodation of interests, let us try to
narrow the issues and approach a substantive resolution of
a variety of the problems involved.
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UNITED STATES MISSION
U.S. INFORMATION SERVICE
80, RUE DE LAUSANNE
1211 GENEVA 21 - TEL. 327020
PRESS RELEASE
UNITED STATES MISSION
TO ThE UNITED NATIONS
NOTE TO CORRESPONDENTS Auguet 13, 1973 -
U.S. SENATE UNANIMOUSLY
SUPPORTS UNITED STATES LAW
OF THE SEA OBJECTIVES
The Honorable John R. Stevenson, Special Presidential
Representative for the Law of the Sea Conference, today
welcomed U.S. Senate Resolution 82 endorsing the objectives
set out in President Nixon's Ocean Policy Statement of
May 23, 1970. The resolution was introduced by Senator
Pell, ChaIrman of the Sub-Committee on Oceans and Inter-
national Environment of the Committee on Foreign Relations,
and by Senator Case, ranking minority member of that
Sub-Committee. The Resolution was unanimously reported
out favorably after Hearings by the Senate Foreign Relations
Committee and unanimously passed on July 9, 1973 by the
United States Senate.
Mr. Stevenson stated: `The United States Delegation
to the United Nations Seabed Committee greatly appreciates
the unanimous endorsement by the United States Senate of
the President's oceans policy objectives. We are mindful
of a virtually identical resolution passed by an over-
whelming vote in the House of Representatives last April.
Taken together, these endorsements of the United States
law of the sea policies by our Congress are clear evidence
of growing legislative interest in this subject and of the
broad support in the United States Government for speedily
reaching agreement on a just and effective ocean treaty.
The United States Delegation heartily welcomes this
Congressional support and we look forward to even closer
cooperation with the Congress in working toward achievement
of our objectives at the Law of the Sea Conference."
Attachment (S.Res.82)
PAGENO="0225"
219
Attachment
U.S. Senate Resolution 82
Unanimously Passed July 16, 1973
RESOLUTION
Whereas the oceans cover 70 per centum of the earth's
surface, and their proper~ use and development are
essential to the United States and to the other
countries of the world;
Whereas Presidents Nixon and J~osOn have recognized
the inadequacy of existing ocean law to prevent
conflict, and have urged its modernization to
assure orderly and peaceful development for the
benefit of all mankind;
Whereas the United States Draft Seabed Treaty of
August 1970 offers a practical method of
implementing these goals;
Whereas a Law of the Sea Conference is scheduled
to convene in November-December 1973, preceded
by two pre~aratory meetings of the United Nations
Seabed Committee;
Whereas it is in the national interest of the United
States that this conference should speedily reach
agreement on a just and effective ocean treaty,
Now, therefore, be it
Resolved, That the Senate endorses the following
objectives, envisioned in~ the President's ocean
policy statement of May 23, 1970, and which are
now being pursued by the United States Delegation
to the Seabed Committee preparing for the Law of
the Sea Conference --
(1) protection of --
(a) the freedoms of the high seas~ beyond
a twelve-mile territorial sea, for navigation,
communication, and scientific research, and
(b) free transit through and over triter-
national straits;
23-317 0 - 73 - 15
PAGENO="0226"
220
Attachment, Page 2
(2) recognition of the following international
cornraunity rights:
(a) protection from ocean pollution,
(b) assurance of the integrity of
investments.
(c) substantial sharing of revenues derived
from exploitation of the seabeds particularly
for the benefit of developing countties,
(d) compulsory settlement of disputes, and
(e) protection of other reasonable uses of
the oceans, beyond the territorial sea including
any economic intermediate zone (if agreed upon);
(3) an effective International Seabed Authority
to regulate orderly and just development of the
mineral resources of the deep seabed as the common
heritage of mankind, protecting the interests of
both developing and developed countries;
(24) conservation and protection of living resources
with fisheries regulated for maximum sustainable
yield, with coastal State management of coastal and
anadromous species, and international management of
such n~gratory species as tuna.
Sec. 2. The Senate commends the United States Delegation
to the Seabed Conirnittee preparing for the Law of the Sea
Conference for its excellent work, and encourages the
Delegation to continue to work diligently for early
agreement on an ocean treaty embodying the goals stated
in section 1.
PAGENO="0227"
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UNITED STATES MISSION
U.S. INFORMATION SERVICE
80, RUE 05 LAUSANNE
1211 GENEVA 21 - TEL. 327020
PRESS RELEASE August 13, 1973
John Norton Moore, the Vice Chairman o~ the United
States Delegation to the United Nations Seabed Committee,
told the Committee today that if coastal state jurisdiction
capable of affecting navigational freedoms were to extend
as far as 200 miles seaward, a majority of all coastal
states could effectively lose their access to the oceans.
Professor Moore pointed out that under a regime
recognizing some form of jurisdiction capable of interfering
with navigation in an area as far seaward as 200 miles,
approximately 61 coastal states would have no access beyond
their own jurisdiction to any ocean on which they face except
through such area of one or more neighboring states. These
61 coastal states would be totally `zone-locked'. An additional -
5 coastal states would be `partially zone-locked' in that
they would be completely cut off from access to one of the
oceans on which they face except through such an area of one
or more neighboring states. And at least 6 land-locked states
would, in addition to their present access problems, become
partially zone-locked in that the state or states on which
they are dependent for normal maritime access would them-
selves be zoněe-locked.
Because of this problem of zone-locked states,
Professor Moore urged the importance of fully preserving
freedom of navigation and other non-resource uses in
any extensions of coastal state economic jurisdiction which
may be agreed at the upcoming United Nations Law of the Sea
Conference. The Conference will begin this fall at the
United Nations in New York and will then move to Santiago,
Chile for a substantive session to be held during the spring
of 197~4.
Mr. Moore said that "environmental considerations must
play a major role in shaping a new law of the sea agree-
ment". In this connection he was critical of piecemeal
approaches to the problem of pollution from ships. He
pointed out that because vessels move throughout all
parts of the marine environment~ only a coordinated international
solution could effectively protect the environment. He also
pointed out that a piecemeal approach would be
PAGENO="0228"
222
economically unsound and that the unnecessary costs which
would result from a welter of conflicting national meas-
ures for ship construction and operation might well inhibit
international trade.
The United Nations Seabed Committee is composed of 90
members of the United Nations and has been given respon-
sibility for the preparatory work for the United Nations
Law of the Sea Conference. The Committee is currently
meeting at the United Nations in Geneva for its last sched-
uled preparatory session prior to the Conference. Issues
to be considered at the Conference include the breadth of
the territorial sea, free transit through and over inter-*
national straits, jurisdiction over fisheries and seabeds
minerals, scientific research, and the protection of the
marine environment.
PAGENO="0229"
223
UNITEDSTATES MISSION
un-~(,,~ i~
~ ~I~[Q~1~ 0 U.S. INFORMATION SERVICE
~ ~f ~ 80 R U E D E L A U S A N N E
1~Iot4 1211 GENEVA 21 - TEL. 327020
PRESS RELEASE
STATEMENT BY
JOHN NORTON MOORE -
VICE CHAIRMAN OF THE UNITED STATES DELEGATION
TO THE
CO~4ITTEE ON THE PEACEFUL USES OF THE SEABED AND THE
OCEAN FLOOR BEYOND THE LIMITS OF NATIONAL JURISDICTION
Main Committee--August 13, 1973
Mr. Chairman:
There has long been broad agreement in the Seabed Committee
that if a new law of the sea treaty is to achieve general
acceptance of expanded coastal state economic jurisdiction it
must also protect freedom of navigation and other non-resource.
uses. On previous occasions my delegation has stated that we
are prepared to accept broad coastal state economic jurisdiction
in adjacent waters and seabed areas beyond the territorial sea as
part of a satisfactory overall law of the sea settlement. Our
proposals on fisheries and the coastal seabed economic area have
also indicated the importance of protecting navigational and other
non-resource uses as we extend this economi,c jurisdiction. In
this regard my delegation has been pleased to note that the
importance of protecting navigation and overflight is explicitly
recognized in the principal draft `proposals concerning expanded
economic jurisdiction which have been introduced in Subcommittee II.
It is important, however, that we not compromise free access to
the oceans and other navigational rights by jurisdiction which,
though not explicitly aimed, at those rights, could have the effect
of unnecessarily restricting then. The discussion in Subcorrimittde
III has indicated that if coastal state jurisdiction over pollution
were to include general jurisdiction over vessel-source pollution,
the community interest in rights of navigation could be seriously
danaged without offering satisfa~tory protection to the marine
environment,
PAGENO="0230"
224
Mr. Chairman, all states need free access to the oceans.
Coastal states usually take this access for granted and think
of it as a Droblem only for landlocked states. But this basic
problem of access could be shared by a majority of coastal
states if we are not careful to separate the forms of economic
jurisdiction from jurisdiction affecting navigational rights and
other non-resource uses. Thus a study of the access of coastal
states to the oceans shows a surprising potential problem.
Under a regime recognizing some form of economic jurisdiction in
an area as far seaward as 200 nautical miles, approximately 61
coastal states would have no access beyond their own area of
jurisdiction to any ocean on which they face except through the
economic area of one or more neighboring states. These 61 coastal
states, comprising a majority of all coastal states, would be
totally `zone-locked'. An additional five coastal states would be
`partially zone-locked" in that they would be completely cut off
from access to one of the oceans on which they face except through
the economic area of one or more neighboring.states. And at least
six land-locked states would, in addition to their present access
problems, become partially zone-locked in that the state or states
on which they are dependent for normal maritime access would them-
selves be zone-locked.
Potentially zone-locked states include a substantial number
of states from all geographic regions. There are approximately
six in the Americas, 11 in Asia and Oceania, 17 in Europe, and 27
in the Near East and Africa. They are particularly concentrated
among continental Southeast Asian states, African states with short
coastlines, states bordering on the Caribbean, states bordering
on semi-enclosed seas which do not also have a direct ocean coast-
line, shelf-locked states, the Baltic Sea states, Northwest Europea:
states and the Bed Sea and Persian Gulf states. Perhaps as a more
immediate indicator of the potential seriousness of the problem,
of the 90 members of the Seabed Committee, more than half are poten~
tially zone-locked. However, the United States, as well as Austra1~
Brazil, Canada, France, Japan, Peru, and the United Kingdom, among
other coastal states participating in the work of this Committee,
are not potentially zone-locked. Attached as an appendix to this
statement is a list of these potentially zone-locked states.
The problem of the zone-locked state illustiates in its most
acute form the danger to the common interest -- and particularly
to coastal states -- if an expansion of economic jurisdiction were
to be accompanied by an expansion of jurisdiction capable of
affecting navigation. If, for example, jurisdiction for the pro-
tection of the marine environment were to extend generally to
vessel-source pollution, all seaborne commerce and other maritime
traffic to and from zone-locked states ôould, in effect, be subject
to the control of another state. Whether or not the judgments
of th2se neighboring states were always related to environmental
PAGENO="0231"
225
concerns, their judgments would not necessarily reflect the
interests of the zone-locked state. Nor would such jurisdic~on
permit the zone-locked state to participate in the decisions
affecting its ocean lifeline. For zone-locked states, this loss
of control would extend to all ocean shipping and other maritime
transit to or from their countries, not just to their flag vessels
or vessels owned by their nationals. And as the access problems
of land-locked states have illustrated, reliance on bilateral
solutions would be a frail reed f.or so important an interest.
National jurisdiction extending to vessel-source pollution
in a 200 mile pollution zone could result in restrictions On
navigation which would apply in ovq~ one.*third of th~ total -
area of the world's oceans. Jurisdiction over such pollution zones
would, to be effective, need to Include authority to promulgate
detailed regulations concerning vessel construction and operation.
Such regulations might include detailed requirements with respect
to, among other things, hull, fuel tank, machinery and equipment
construction, electronic and navigational equipment, the nature of
propulsion and fittings for steering and stabilizing, the manning
of the ship including the number and qualification of personnel,
the maximum quantity and method of stowage of cargo, loadline
requirements, the quantities of fuel, water and supplies, and
the kinds of maps, charts and other documents to be carried.
Such regulations might even include detailed enforcement regimes
Permitting forfeitur~ of ship and cargo under certain circumstance!
For zone-locked states, such far reaching regulations would be
potentially applicable to all their maritime access.
Mr. Chairman, the threat to zone-locked states is only the
most acute manifestation of the importance of fully protecting
navigational freedoms in an overall law of the se-a agreement.
Whereas zone-locked states would have no direct access to an ocean
which they face without passing through an economic area of one
or more neighboring states, all states, coastal as well as land-
locked, would be affected by expanded unilateral jurisdiction
capable of affecting navigational freedoms. The major shipping
routes of the world pass within 200 miles of many different
coastal states. Thus, on a typical voyage, it would not be un-
common to pass through the zones of ten or fifteen states if such
zones were permitted. Moreover, since many vessels are designed
for a wide variety of shipping routes, during their productive
lives they would be potentially subject to the jurisdiction of as
many as 120 coastal states.
The costs of an effective international system for the
control of vessel-source pollution are not burdensome. The un-
necessary costr, however, which would result from a welter of
conflicting national measures might well be great. It should
be emphasized that exporting and importing nations as well as
maritime states would bear these unnecessary costs. Such costs
v?ould be largely passed on in the form of increases in the cost
PAGENO="0232"
226
of shipping. These costs may also be reflected in reduced
international trade or in slower growth in trade as increased
shipping costs displace marginal products or materials and
encourage substitution of more expensive alternatives. My
country has a clear interest in avoiding these unnecessary costs
as do all exporting and importing countries. The impact on
developing countries heavily dependent on exports, however, could
be particularly severe.
We must, of course, make certain that a new law of the sea
agreement will protect the environmental and other needs of
coastal states as well as of the international community as a
whole. If the real choice were between effective environmental
protection and coastal state pollution jurisdiction capable of
impeding the oceans access of a majority of coastal states, the
world community would face a difficult choice. Fortunately,
environmental as well as navigational considerations support
international as opposed to piecemeal solutions to the problem
of vessel-source pollution. Vessels, unlike land-based or seabed
sources of pollution, move throughout all parts of the marine
environment and their discharges are widely dispersed by winds
and currents which know no international boundaries. A piecemeal
approach is therefore not appropriate ~o the nature of the problem
and would not provide an effective solution. Environmental
considerations must play a major role in shaping a new law of the
sea agreement. Our environmental decisions, however, should
meaningfully protect the ocean environment rather than merely
serv~; ~n~bstract concu~t..
Mr. Chairman, the threat to the common interest, including
particularly the threat to zone-locked states, suggests the
importance of fully preserving freedom of navigation and other
non-resource uses in any extensions of coestal state economic
jurisdiction. By maintaining a clear distinction between those
economic issues on the one hand, and navigational and other non-
resource issues on the other, we will enhance the chances for a
widely accepted law of the sea treaty. That, Mr. Chairman, is
an objective shared by all ń~i~nz.
PAGENO="0233"
227
APPENDIX
PARTIAL AND APPROXIMATE LIST OF
POTENTIALLY ZONE-LOCKED STATES
For purposes of this illustrative list, a potentially -
"zone-locked" state is defined as a state which does not have
direct ~.ccess to an ocean on which it faces except through
an area within 200 nautical miles of one or more other states.
This list bears a heavy caveat since any boundaries between any
forms of jurisdiction extending as far as 200 nautical miles
have, of course, not been determined.
PAGENO="0234"
228
I. TOTALLY ZONE-LOCKED COASTAL STATES--BY REGION
THE AMERICAS
1. Cuba
2. Honduras
3. Jamaica
4. Nicaragua
5. Panama
6. Trinidad and Tobago
EUROPE
1. Albania
2. Belgium
3. Bulgaria
4. Denmark
5. Federal Republic of Germany
6. Finland
7. German Democratic Republic
8. Greece
9. Italy
10. Malta
11. Monaco
12. Netherlands
13. Norway
14. Poland
15. Romania
16. Sweden
17. Yugoslavia
THE HEAR EAST AND AFRICA
1. Algeria
2. Bahrain
3. Cameroon
4. Congo
5. Cyprus
6. Egypt
7. Equatorial Guinea
8. Ethiopia
9. Gambia
10. Iran
11. Iraq
12. Israel
13. Jordan
14. Kuwait
15. Lebanon
16. Libyan Arab Republic
17. ~uritania
18. Qatar
19. Saudi Arabia
PAGENO="0235"
229
20. Sudan
21. Syria
22. Togo
23. Thnisia
24. Turkey
25. United Arab Emirates
26. Yemen
27. Zaire
PSIAJEXCEPT NEAR EAST) AND OCEANIA
1. Cambodia
2. Deipocratic Republic of Vietnam
Dcmocratic Peoples Republic of Korea
4. Fi.i
5. `~alaysia
6. N~uru
7. Republic of Korea
8. Republic of Vietnam
9. Singapore
10. Thailand
11. Western Samoa
II. PARTIALLY ZONE-LOCKED COASTAL STATES--THAT IS COASTAL
SThTES ZONE-LOCI ED ON ONLY ONE OF T~ 0 OCEANS ON UHICH
1. Costa Rica (Atlantic only)
2. Colombia (Atlantic only, although opening to
Pacific would be only a narrow
corridor to the south)
3. Guatemala (Atlanti,c only)
4. Mexico (Atlantic only)
5. Union'of So~ietSôcialist Republics(Atlantic only)
III. ILLUSTRATIVE LAND-LOCKED STATES ALSO PARTIALLY ZONE-LOCKED
--THAT IS LAND-LOCKED STATES DEPENDENT FOR THEIR NOR4AL
TRAFFIC ROUTING ON A TOTALLY ZONE-LOCKED STATE OR STATES.
1. Austria
2. Czechoslovakia
3. Hungary
4. Laos
5. Luxembourg
6. Switzerland
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230
UNiTED STATES MISSIOIN
U.S. INFORMATION SERVICE
80, RUE DE LAUSANNE
1211 GENEVA 21 - TEL. 327020
PRESS RELEASE
STATEMENT BY
AMBASSADOR JOHN R. STEVENSON
CHAIRMAN OF THE UNITED STATES DELEGATION TO THE
COMMITTEE ON THE PEACEFUL USES OF THE SEABED AND
THE OCEAN FLOOR BEYOND THE LIMITS OF NATIONAL JURISDICTION
PLENARY
August2Z, 1973
Mr. Chairman:
in the next few months ~ati ons will be making critical decisions
in preparation for the Conference on the Law of the Sea.
Each of our countries has a number of important interests
involved in this negotiation'. The question we must ask ourselves is
how these can be accommodated for the benefit of all within a frame-
work of broad agreement among States on the Law of the Sea, Surely
none of us can contemplate with serenity what the world would be like
in the absence of a timely and successful Conference.
The oceans are part of our immediate environment, and are
being used with increasing intensity every day. As ocean uses intensify,
the potential for conflict increases. There is a risk of conflict any time
one State or a group of States attempto to alter important legal rights
that another State believes it has. There is also a risk of conflict if the
law does not respond adequately and with reasonable promptness to
changing needs.
To avoid these risks, we must not only seek a treaty; we must
seek a treaty that is widely acceptable to all segments of the inter-
national community. A mere voting victory" of one or more groups
PAGENO="0237"
231
of interests, even by a substantial majority, will not produce such a
result. Both the procedures adopted and the substantive positions
nations advocate must be formulated in a manner that can best ensure
universal acceptance of the treaty. Otherwise, our efforts will have
been for naught.
The intensification of ocean uses also means that we cannot
afford further delay. We believe that the great majority of delegations,
although reflecting many shades of opinion, are committed to a timely
Conference and do not shrink from the challenge of accommodating each
other's interests.
Certainly, we should go to Santiago as well prepared as possible.
But additional preparation before Santiago is not inconsistent with
adherence to the Conference schedule, and should not be permitted to
divert us from the basic objective ota timely and successful Conference.
The experience of this final preparatory session of the Seabeds com-
mittee would suggest that until the Conference itself is actually underway
many states will postpone those hard decisions on oceans policy which
can alone afford the basis for effective negotiations as well as the
political direction for the completion of the technical work of drafting
treaty articles. Postponing the commencen-ient of the Conference,
even for a few months, might not only delay the commencement of
effective negotiations but jeopardize their success. Pressure for uni-
lateral action may mount within oer respective countries, and regional
and other interest groups may harden their positions. Far from consid-
ering delay we must recognize and act upon the fact that ocean uses are
developing so quickly that i~n some respects it will be necessary for the
Conference to sc~ck means to ensure the immediate implementation of
some parts of the Law of the Sea Treaty.
If the Conference achieves broad agreement tHat adequately
accommodates the interests involved, there is no reason why there
should be provisional application only with respect to the deep seabeds
portion of the treaty as we proposed at the March session of this
Committee. For our part, we recognize that many States regard the
need for a new agreed regime on other matters, such as fisheries,
as equally urgent, if not more so. We have already witnessed too much
conflict between States on these issues. It would be unfortunate indeed
for disputes to continue, after we have achieved a solution in a treaty
at the Conference, while waiting for completion of the ratification
process. Certain delegations inquired in March if the United States
would be prepared to support the provisional application of the fish-
eries aspects as well as the deep seabeds aspects of a Law of the Sea
treaty for tbc period between signature and ratification of the treaty.
Mr. Chairt.~an, we are prepared to support provisional application
PAGENO="0238"
232
for both the deep seabeds and fisheries aspects of the treaty, and to
consider provisional application in connection with other aspects of the
treaty as well. In this connection, we are considering and hope other
States will also consider how such provisional application can best be
effected under domestic law.
In order to achieve widely acceptable agreement at the Conference,
there obviously must be some common understanding of what the major
elemci-its of a timely and successful Conference are. I will not restate
at this time our views as to what these elements are. However, an
important point to bear in mind in assessing them is that we cannot
resolve major issues by relying on coastal States alone to exercise
their rights in a manner consistent with the interests of others. At
best, such an approach would deprive other States of their right to
participate in determining how their interests will be defined and pro-
tected. Accordingly, we believe there should be no ri ghts without
corresponding enforceable duties related to the exercise of those
rights. The problem with doctrines of rights without duties is that
they do not reflect the realities of international interdependence.
Every State here is party to treaties and subject to rules of inter-
national law that, in fact, limit the exercise of its rights even in its
own territory; we could not live together on this planet if that were
not the case. The acceptance of such limitations by international
agreement is in fact one of the clearest examples of a State exercising
its sovereignty within an international community of independent and
interdependent sovereign States.
A similar analysis applies to the relationship `which will be
established with ~` new seabed international machinery. If States arc'
to agr~" to give it significant powers, we must at the same time take
concolnitanL steps to assure that the treaty itself defiri~s and hlearly
specifics the limits of its mandate and also assures that in its opera-
tion the interests of all States are properly reflected in its decision
making processes and in its rule making system.
Iviy delegation appreciates the fact that proposals of States are
intended for negotiation. Nevertheless, while we have attempted to
readjust our proposals to accommodate the views and interests of
others, we have thus far `not seen sufficiently similar movement on the
part of some others. If this were to continue at Santiago, we could
approach the point where the potential for achieving a widespread ac-
comrnodation of major points of view would be lost. This negotiation will
fail if we attempt to derive solutions to all issues from concepts of abso-
lute rights or absolute freedoms. We regard as inadequate, arguments
that one pronosal or another is unacceptable because it is inconsistent
with certain Lencral concepts such as "national sovereignty" or an
PAGENO="0239"
233
`exclusive economic zone". We cannot accommodate the substantive
interests of States simply by the process of deductive reasoning from
such general concepts. Cn the other hand, the results of the substantive
negotiations on States' real interests~may be expressed in treaty language
and legal concepts that take into account political and juridical sensi-
tivities and the need for maximum acceptance of the treaty.
Mr. Chairman, in the ensuing negotiations we shall all be asked
to settle for less than our view o the optimum results in the interest
of avoiding international conflict in the oceans, in doing so we have no
desire to repeat the mistakes of 1958, where we compromised with
States that ultimately did not become parties to the treaty, and where
there were no mechanisms to ensure that conflict could be avoided or
resolved. As a result, disagreement continued both as to the legal
rules governing the use of the oceans and as to their proper interpre-
tation and application. In brief, we regard a system of incentives to
ensure ratification and a system of peaceful and compulsory settlement
of disputes as essential aspects of an overall comprehensive Law of
the Sea settlement,
Mr. Chairman, my delegation has been considering the issue
of procedures for compulsory dispute settlement for some time. For
this reason, all of the draft a~'ticles we have introduced at this session
contain a cross-reference to a section of the Law of the Sea treaty on
this matter, but do not address the issue of procedures. Cur general
view is that a sqstem is needed that ensures, to the maximum possible
extent, uniform interpret,ation and immediate access to dispute settle-
mont machinc:'y in urgent situations, while at the same time preserving
the ~xibiIity of States to agree to resolve their disputes by a variety
of means. We have noted in particular the wishes of many'States to
resolve disputes on the basis of procedures agreed on a r~gional basis.
What has emerged in our consideration of this question is the'idea of
dispute settlement by general, regional or special agreement but with
a Law of the ~ea Tribunal, which would be available in cases where
States do not agree to settle the disputes through other procedures.
We heve just introduced draft articles on this subject in the Main Com-
mittee and hope that in the coining months we shall have the opportunity
to discuss these annexed draft articlcs with a number of delegations to
obtain their comments and hopefully their support.
We do not believe that the substantive articles of the treaty that
emerge from the Conference will, in and of themselves, constitute a
complete answer to the basic problem of avoiding conflict regarding
the oceans that is the real justification for this ner~otiation. These
articles -~a~- n3rrow many of the issues on which disputes occur.
PAGENO="0240"
234
They will not eliminate the need for means to ensure the peaceful
settlement of disputes that are bound to arise. Our fundamental
premise for achieving a broadly ratified treaty is that objections to
coastal State or flag State jurisdiction, as the case may be, can be
met by placing concrete duties on the State exercising such jurisdiction.
Since `those duties are designed to ensure protection for the interests of
others, confidence that those duties will be fairly observed is likely to
spell the difference between a successful and unsuccessful Conference.
For our part, we could not agree to a great many of the things -
we have ourselves proposed for a new Law of the Sea Convention in
the abscnce of a general system of compulsory dispute settlement for
ocean uses.
Mr. Chairman, we can all be optimistic about the Conference
if States manifest a willingness before and during the Conference to
achieve a reasonable accommodation of interests in a timely fashion.
We accept the fact that the Conference is the place for the comprehen-
sive treaty settlement. To achieve this, we must initiate negotiating
procedures designed to produce agreed treaty texts that accommodate
all points of view, rather than documents that reflect all of our
differences. We will be prepa~ed to negotiate a Law of the Sea treaty
at Santiago that we and other countries can accept - - a treaty that
adequately accommodates the interests of all nations. Vie hope other
nations have the same approach.
Thank you, Mr. Chairman.
PAGENO="0241"
235
UNITED STATES OF AMERICA: DRAFT ARTICLES FOR A CHAPTER
ON THE SETTLEMENT OF DISPUTES
ARTICLE 1
In any dispute between the Contracting Parties relating to the
interpretation or application of the present Convention, any
party. to the dispute may invite the other party or parties to
the dispute to settle the dispute by direct negotiation, good
offices, mediation, conciliation, arbitration, or through
special procedures provided for by an international or regional
organization.
ARTICLE2 -
Notwithstanding the provisions of Article 1, arw Contracting
Party which is a party to a dispute relating to the inter-
pretation or application of this Convention which is required
by this Convention to be submitted to conpulsory dispute
settlement procedures on the application of one of the parties,
may refer the dispute at any time to the Law of the Sea Tribunal
(the Tribunal).
ARTICLE 3 . .
Notwithstanding the provioions of Article 2, if the parties
to a dispute have agreed in any general, regional, or special
agreement to resort to arbitration, any party to the dispute
shall be entitled to refer it to arbitration in accordance with
that agreement in place of the procedures specified in this
Chapter.
ABTICLE1~
The Tribunal shall be established and shall function ~in accord-
ance with the annexed Statute. Its members shall be nominated
and elected in accordance with the procedure provided for in
the g~atute of the International Court of Just; ice for the
election of the judges of the Court. They shall be lawyers
of recognised competence in law of the sea matters.
ARTICLE 5
~Then a dispute involves techn~cal questions, such as safety of
navigation, ship construction, pollution, scientific research,
fishing, or seabed exploration or exploitation, the Tribunal
shall be assisted in the consideration of the ease by four
technical assessors sitting with it, but without the right to
vote. These assessors shall be chosen by the President of the
Tribunal from the list of qualif~éd persons prepared pursuant
to the a~ne::ed Statute.
23-317 0 - 73 - 16
PAGENO="0242"
236
ARTIClE 6
The jurisdiction of the Tribunal shall comprise all disputes
submitted to it in accordance with this Chapter and all matters
specifically provided for in other Chapters of this Convention
or in any other international agreement, public or private,
which confers jurisdiction on the Tribunal with respect to a
dispute relating to the interpretation or application of this
Convention.
ARTICLE 7
The decisions of the Tribunal shall be binding upon the parties.
ARTICLE 8
1. The Tribunal shall expeditiously handle disputes which are
of an urgent character and shall in appropriate cases issue
binding interim orders for the purpose of minimizing damage to
any party pcnding final adjudication. The Tribunal may also
take such binding interim action in cases which have been sub-
mitted to arbitration under Articles 1 or 3.
2. The owner or operator of any vessel detained by any State
shall have the right to hning the question of the detention of the
vessel before the Tribunal in order to secure its prompt release
in accordance with the applicable provisions of this Convention,
without prejudice to the merits of any case against the vessel.
3. Nothing in thc~se A±ticles shall abridge~the sovereign
immunity to ~i~iich certain vessels and aircraft are entitled
under i.~~ernational law.
ARTICLE 9
Any undertaking to have recourse to a particular means for corn-
pulsory sett]ement of a dispute relating to the interpretation
or application of this Convention, whether contained in a general,
regional or special international agreement, a license, lease or
contract, constitutes an obligation to be carried out in good
faith.
PAGENO="0243"
237
UNITED NATIONS .
Distr.
GENERAL LIMITED
A S S E M B L Y A/C1/L6~47/Rev 1
ORIGINAL: ENGLISH
Twenty-eighth session
FIRST COMMITTEE
Agenda item 40
RESERVATION EXCLUSIVELY. FOR PEACEFUL PURPOSES OF THE SEA-BED
AND THE OCEAN FLOOR, AND THE SUBSOIL THEREOF UNDERLYING THE
HIGH SEAS BEYOND TEA LIMITS OF PRESENT NATIONAL JURISDICTION
AND USE OF THEIR RESOURCES IN THE INTERESTS OF FL&NKIND, AND
* CONVUNING OF A CONFERENCE ON THE LAW OF THE SEA
Australia, Austria, Canada, Chile, Colombia, Icela~~Iran,
* ç~y~Eaita, Nauritius,Eexi~o, Netherlands, New Zealand,
Norway, Swedan,_Trinidad and Tobar~o, Umanda. United Arab
1T'~4~ P~~~h1$~' ryf' n~'n~,4~ ~nr1 1f~~7.Uplp:
revised draft resolution
The General Assembly,
Recalling its resolutions 21~67 (XXIII) of 21 December 1968, 2150 (XXV) of
17 December 1910, 2881 (XXVI) of 21 December 1971 and 3029 (XXVII) of
18 December 1972, -
Having considered the report of the~Committoe on the Peaceful Uses of the
* Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction on the work
of its session in 1973, 1/
Recalling in particular paragraph 2 of General Assembl~ resolution
2750 C (xxv),
* Considerinc that the Committee has accomplished, within the limits of its
* mandate, the work which the General Assembly entrusted to it for the preparation
of the Third Uniact Nations Conference on the Law of the `Sea, and that it is
necessary to proceed to the immediate induguration of the Confei~ence in 1913 and
the convening of a substantive session in l971~, in order to carry out the
negotiations and other work required to complete the drafting of articles for a
comprehensive convention on the Law of the Sea with the participation of those
States which were bet members of the Committee,
1/ Official Records of the General Assembly, Twenty-eighth Session,
Supplement Mo. 21 (A/902l).
73-22095
PAGENO="0244"
238
A/C.l/L. 61~ 7/Rev. 1
English -
Page 2
1. Exoresses its anpreciation to the Committee on the Peaceful Uses of the
* Sea-Bed and the Ocean Floor beyond tho Limits of National Jurisdiction on the
- work it has done in preparing for the Third United Nations Conference on the Law
oftheSea;
2. Confirms its decision in raragraph 3 of resolution 3029 A (xxvii) of
18 December 1972 and decides to convene the first session of the Third United
Nations Conference on the Law of the Sea in New York from 26 November to
7 Decertber 1973 inclusive for the purpose of dealing with organizational matters
relating to the Conference, including the election of officers, the adoption of
the agenda and the rules of procedure of the Conference, the establishment of
subsidiary organs and the allocation of work to these organs and any other
purpose within the scope of paragraph 3 below;
3. Decides that the mandate of the Conference shall be to adopt a
convention dealing with all matters relating to the law of the sea, taking into
account the subject matter listed in paragraph 2 of General Assembly resolution
2750 C (XX\') and the list of subjects and issues relating to the law of the sea
formally approved on 18 August 1972 2/ by the Committee en the Peaceful Uses of
the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction and
bearing in mind that the problems of ocean space are closely interrelated and
need to be considered as a whole; .
1~. Decides to convene the second session of the Conference, for the purpose
of dealing with the substantive work of the Conference for a period of 10 weeks
from 13 May to 19 July l97~ at Caracas and, if necessary, to convene not later
than 1975 any subsequent session or sessions as may be decided by the Conference
and approved by the General Assembly, bearing in mind that the Government of
Austria has offered vienna as the site for the Conference in 1975;
5. Invites the Conference to make such arrangenent~ as it may deem
necessary to facilitate its work; - . . * . -
6. Refers to the Conference the reports of the Committee on the Peaceful
Uses of the Sea-Bed arid the Ocean Floor beyond the Limits of National
Jurisdiction on its work and all other relevant documentation of the General
Assembly and the Committee; *
7. Decides, having regard to the desirability of achieving universality of
participation in the Conference, to request the Secretary-General of the United
Nations to invite States Members of the United Nations, States members of the
specialized agencies and of the International Atomic Energy Agency and States
parties to the Statute of the International Court ol Justice as wellas the
following States to participate in the Conference: ___________________________
2/ Ibid., Tt~enty-aovcnth Seosioc, Suoplement No. 21 (1/8721), para. 23.
PAGENO="0245"
239
A/C.1/L.6147/flev.l
Erigli sh
Page 3
8. Requests the Secretary-General:
(a) To invite intergovernmental and non-governmental organizations in
accordance with paragraphs 8 and 9 of resolution 3029 A (XXVII);
(b) To provide surL~ary records in~ accordance with paragraph 10 of
resolution 3029 A (xxvii);
9. Pecides that the Secretary-Ger~eral of the United Nations shall be the
Secretary-General of the Conference and authorizes him to appoint a special
representative to act on his behalf andto make such arrangements, including
recruitment of necessary staff, taking into account the principle of equitable
geographical representation and to provide such facilities as may be necessary
for the efficient and continuous servicing of the Conference, utilizing to the
fullest extent possible the resources at his disposal;
10; Requests the Secretary-Ger~eral to prepare appropriate draft rules of
procedure for the Conference, taking into account views expressed in the
Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits
of National Jurisdiction and in the General Assembly, and to circulate the draft
rules of procedure in time for consideration and approval at the organizational
session of the Conference;
* 11. Invites States participating in the Conference to submit their
proposals, including draft articles, on the substantive subject-matter of the
Conference to the Secretary-General by 1 February 19714 and requests the
Secretary-General to circulate the replies received by him before the second
session with a view to expediting the work of the Conference;
12. Decides that the provisions of the preceding paragraph shall not
preclude any State participating in the Conference from submitting proposals,
including draft articles at any stage of the Conference in accordance with the
procedure adopted by the Conference, provided that States that have already
submitted any proposals and draft articles need not resubmit them;
13. Dissolves the CorLmittee on the Peaceful Uses of the Sea-Bed and the
Ocean Floor beyond the Limits of National Jurisdictioz~ as from the inauguration
of the Conference.
PAGENO="0246"
240
[From the Federal Register, Monday, Nov. 5, 1973]
OFFICE OF THE SECRETARY
OUTER CONTINENTAL SHELF
LEASING BEYOND 200 METERS
This notice supersedes notices in the Federal Register of April 20, 1973, page
9839, July 3, 1973, page 17743, and October 2, 1973, page 27307, in which the
Bureau of Land Management called for nominations for areas for oil and gas
leasing under the Outer Continental Shelf Lands Act for areas offshore Louisi-
ana on the U.S. outer continental shelf, seaward of 200 meters insofar as those
notices related to the President's Oceans Policy Statement of May 23, 1970.
It has been determined that it will not be necessary to insert any additional
provisions in leases to be issued beyond the 200 meter isobath to comply with
the President's Oceans Policy and to accommodate the international negotiations
now in progress regarding the law of the sea.
This determination has been made because it is the opinion of the Department
of the Interior that no changes in the current form of leases for outer conti-
nental shelf exploration and exploitation are required to ensure the effective
compliance by the United States with any new international treaty standards
which may result from the present international negotiations on the law of
the sea.
Pursuant to the President's statement of May 23, 1970, establishing the United
States Oceans Policy, the United States is seeking to achieve international agree-
ment in the United Nations Conference on the Law of the Sea which among
other things would require that in exercising their rights on the seabed, coastal
nations be obliged to conform their activities to any international standards
provided for in any Convention on the Law of the Sea to which the United States
shall become party, to the extent those standards apply to:
a. The accommodation of conflicting lawful uses in the area;
b. The protection of the area from pollution;
c. The assurance of the integrity of investment made for resource develop-
ment in the area.
The United States has submitted draft treaty articles to the United Nations
on this matter, and these articles as well as the proposals of all other nations in
this negotiation regarding the outer continental shelf are on file in the Depart-
ment of State (D/LOS). After review of the proposals made by other govern-
ments, the U.S. Government has concluded that these negotiations on the law
of the sea will not result in more extensive obligations on coastal nations re-
garding the conduct of exploration and exploitation activities in the areas in
question than those set forth above. The draft treaty articles submitted by the
United States also propose that coastal nations share revenues, and that the
treaty be subject to procedures for ensuring coastal State adherence, including
peaceful and compulsory settlement of disputes.
Furthermore, these would be obligations of the coastal nation, and would
not alter the revenue, financial, and other terms and conditions of leases issued
prior to the entry into force of any new law of the sea treaty.
Attention is invited to the National Petroleum Council report "Law of the
Sea" of May 1973 which endorses the United States effort to achieve interna-
tional agreement on these enumerated matters. The National Petroleum Council
is an officially constituted advisory body to the Secretary of the Interior.
In view of the positions of the United States and other nations in the law of
the sea negotiations with respect to the extent of and conditions for coastal na-
tions jurisdiction over the outer continental shelf and the opinion of the Depart-
ment of the Interior that existing legal authority is sufficient for the United
States to meet any new treaty obligations with respect to the conduct of opera-
tions on the outer continental shelf which may be required by any such Conven-
tion to which the United States may become a party, it has been determined that
it will not be necessary to insert any new provisions in leases issued seaward of
the 200 meter isobath.
W. R. WILSON,
Acting Deputy Assistant Secret airy of the Interior.
NOVEMBER 2, 1973.
[FR Doc.73-23598 Filed 11-2-73 ;9 :57 am]
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Senator METCALF. Before we adjdurn, subject to the call of the Chair,
I have some other material which, without objection, will be entered
into our hearing record, which we are trying to make a complete one
on this complex subject.
One is the article from the September 17, 1973, issue of Newsweek
magazine, about which I just questioned Mr. Ratiner. Then there is a
copy of the letter the Chair sent to Chairman Fuibright of the Senate
Committee on Foreign Relations and his reply. An identical letter
went on the same date to Chairman Miagnuson of the Senate Committee
on Commerce.
I also have for the record four articles from the recently published
"Law of the Sea" issue of the San Diego Law Review. They are the
foreword; "United States Oceans Politics," by Dr. Ann L. Hollick;
"The Law To Govern Deep Sea Mining Until Superseded by Interna-
tional Agreement," by Mr. John G. Laylin, and "The Deep Seabed
Hard Mineral Resources Act-A Negative View," by H. Gary Knight.
In addition, Mr. Barry Newman of `the Wall Street Journal has
begun an informative series of artiCles on seabed problems. I have for
the hearing record his first piece, and as others are available they also
will appear in the record of this committee.
And, finally, I am submitting for the hearing record an article, en-
titled "Guarding the Treasures of the Deep: The Deep Seabed Hard
Mineral Resources Act," which appeared in the June 1973 issue of the
Harvard ~Journal on Legislation.
[From Newsweek magazine, Sept. 17, 1973]
THE WEALTH OF OCEANS
One day last month, while delegates from 91 nations were arguing in Geneva
over who should have jurisdiction of the international deep-sea beds, a gawkily
rigged 618-foot ship, the Hughes Tool Co.'s Glomar Explorer, quietly weighed
anchor in Philadelphia Harbor and set out on a top-secret voyage that will
bring it to a destination some few hundred miles from Hawaii. There, while the
delegates at Geneva are still debating, the Glomar Explorer will begin mining
the riches of the depths-specifically, vast beds of potato-size nodules, rich in
manganese and other metals, which are spread in huge areas over the floors of
most of the great oceans.
If the enterprise proves successful, it will inevitably touch off a hectic inter-
national scramble to grab the resources of the seabeds-one that in many re-
spects will rival the exploitation of the land by U.S. mining magnates a century
ago. In the process, there will also be a widening of the rift between the indus-
trialized nations, which see their own security in the new supply of metals, and
the underdeveloped nations, which regard these resources as the heritage of
all mankind.
The manganese nodules have been accumulating on the seabed for millions of
years. In one of the slowest reactions known to science, tiny amounts of man-
ganese, copper, nickel and cobalt, along with various impurities dissolved in sea
water, have deposited on such substances as sharks' teeth, whalebones and stray
pieces of rock at a rate of a few millimeters every million years. About a quarter
of the deep-ocean bed is now littered with nodules and, according to Dr. Frank
Mannheim of the Woods Hole Oceanographic Institute, some parts of the Pacific
floor "are literally paved with them." The actual amount has been estimated at
billions of tons-more than enough to make the nodules an almost inexhaustible
resource. Just how expensive it will be to refine the metallic riches contained
in the nodules is unknown, but scientists, are convinced that they will be able to
do it economically.
Besides their quantity, the Pacific nodules have an extra attraction to mining
companies because their metal content is relatively high. Typically, the nodules
contain about 20 per cent manganese, an element essential in steelmaking, and
PAGENO="0248"
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1.5 per cent of both copper and nickel-copper is vastly important in the elec-
trical and plating industries, nickel as a component of stainless steel. There is
also roughly 0.3 per cent of cobalt, which finds uses in magnets, missiles and jet
engines. What gives the nodules added importance to the U.S. is the fact that,
of their four principal components, only copper is mined indigenously in large
amounts. Many major suppliers of the other metals are either Communist corn'-
tries, such as the U.S.S.R., or unstable underdeveloped nations. Thus the strategic
importance of an independent source of the metals is obvious.
Haul: The simplest method devised for bringing the nodules up from the
depths is probably the continuous-bucket concept, devised by Comdr. Yos'hio
Masuda of the Japan Self-Defense Agency. A series of dredge buckets of the
type used by oceanographers to pluck samples from the ocean floor is attached
to a length of cable that stretches from a ship to the nodule deposit and back to
the ship. The cable is rotated and dragged along the sea floor in such a way that
the buckets pick up the nodules, empty them into a suitable container on board,
and drop back to the depths for the next load.
Equally simple in concept, if not in technology, is the technique the Glomar
Explorer will probably use. This system is essentially a giant vacuum cleaner,
conected to dredging equipment, that is dragged along the sea floor. The nod-
ules are sucked up to the ship through a flexible hose.
In the long run, it is the legal problems of ocean mining that may prove the
thorniest. In recent years U.S. industrialists have looked on with desperation as
diplomats searched for an agreeable formula on the legal status of the nodules
and their would-be miners. One fear is that the present U.S. lead in technology
will slip away. "Our lead is fragile," concedes Leigh Ratiner of the Interior De-
partment. "If others exploit manganese nodules before we do, and obtain a mar-
keting advantage, we will still be importing it."
Up for Grabs: The disclosure of the Glomar Explorer's venture heightened
concern among negotiators at Geneva-as did legislation recently introduced in
Congress by mining interests that calls for bargain-basement government leases
of property on the sea floor for U.S. companies and subsequent protection and in-
surance of their claims by the U.S. Government. Last week, that particular hill
seemed dead in the Senate, but the underdeveloped nations now are pressing
ever more vigorously for the establishment of an international authority with
exclusive rights to exploit the mineral resources of the sea. They want the lion's
share of the proceeds allocated to themselves. Especially agitated are countries
such as Zambia and Zaire whose economies would be adversely affected by
mining of the nodules.
But for the moment, it is clear that the technology of ocean mining has now
overtaken the international negotiations on ownership of the seas' resources. A
major Law of the Sea conference scheduled to take place in Chile next spring
may represent a last hope for settling the problem without rancor or worse. If
that conference is a failure, warned Maltese delegate Arvid Parve in Geneva,
"the consequences would be very grave-a scramble, no law of the sea, total
chaos."
SEPTEMBER 13, 1973.
Hon. J. W. FULBRIGHT,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, D.C.
DEAR Mit. CHAIRMAN: On 19 September the Subcommittee on Minerals, Mate-
rials and Fuels will hold a public hearing to receive a status report on prepara-
tions for the upcoming Law of the Sea Conference at the meeting this summer of
the United Nations Committee on the Peaceful Uses of the Seabed and Ocean
Floor Beyond Limits of National Jurisdiction. Ambassador John R. Stevenson,
Chairman of the United States delegation to the Committee will be the prin-
cipal witness. He will be accompanied by other senior members of the delegation.
In light of your Committee's interest in the Law of the Sea, I wish to invite
you, the other members of your Committee and any members of your Committee
staff to attend these hearings. They will begin at 2:00 p.m. in Room 3110, Dirksen
Senate Office Building.
Very truly yours,
LEE METCALF,
Chairman, Subcommittee on Minerals,
Materials, and Fuels.
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Identical Letter to the Honorable Warren G. Magnuson, Chairman, Commerce
Committee.
U.S. SENATE,
COMMITTEE ON FOREIGN RELATIONS,
Washington, D.C., September 17, 1973.
Hon. LEE METcALF,
Chairman, Subcommittee on Minerals, Materials, and Fuels, Committee on Inte-
rior and Insular Affairs, U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN: Thank you for your letter of September 13, 1973, con-
cernIng your hearings on the forthcoming Law of the Sea Conference.
I appreciate your thoughtfulness in extending an invitation to the Foreign
Relations Committee Members and staff~ to attend these hearings. Although I
will not be able to attend, I have informed the Members of the Subcommittee
on Oceans and International Environment of your invitation. As you may
know, Senators Pell and Case, the ranking Members of that Subcommittee, are
official advisers to the U.N. Seabed Committee, and Senator Pell attended
the summer session of that Committee. I am sure that they will be interested in
the testimony of your hearings.
Sincerely yours,
J. W. FULBRIGHT,
Chairman.
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Foreword
HON. LEE METCALF*
The San Diego Law Review is to be congratulated for its fifth
annual Law of the Sea Issue. The timely and well written articles
appearing in this and past issues constitute a substantial contribu-
tion to contemporary scholarship related to evolving ocean policy.
It is a privilege for me to write the introductory note for this out-
standing issue.
With the editors' and readers' indulgence I will comment on the
articles submitted to me, giving my reaction to the content and
conclusions of each. I would note at the outset that most of the
authors are more familiar than I with the very complex issues
facing national and international decision makers saddled with the
responsibility of formulating law of the sea policy. Accordingly,
I am honored to have my brief note included as part of this impres-
sive issue.
Dr. Ann L. Hollick's article on United States Oceans Politics is a
well-researched and very readable account of the development of
U.S. seabed policy. It is perhaps the best published history of six
years of infighting among the various parties with vested interests
in our ocean policy.
Dr. Hollick has really performed a dual service with her care-
* United States Senator, Montana; Chairman, Subcommittee on Mm-
erals, Materials, and Fuels, Committee on Interior and Insular Affairs;
A.B., Stanford University; L.L.B., Montana State University.
May1913 Vol.10 No.3
PAGENO="0251"
2.45
fully constructed essay. It is not only a detailed and accurate
recounting of the development to date of the U. S. position in the
numerous issues relating to law of the sea, but is also an excellent
case study of policy formulation in. the U.S. government. This
particular case affords the student of government an opportunity for
vivid observation of the interplay between interest groups and a
prime example of how blurred the boundaries are between foreign
and domestic affairs-how non-exclusive the two spheres frequently
are.
I would footnote Dr. Hollick's article with a few observations of
my own relating to the emergence of an oceans policy.
During the period leading up to the May, 1970, White House
decision on ocean policy, Mr. Walter Hickel was the Secretary of
the Interior. Mr. Hickel was urged by his staff to visit Messrs.
Ehrlichman and Kissinger and the President himself in order to
present arguments to "save the shelf" and preserve existing United
States rights to mine the deep seabed (as opposed to the Defense
Department's readiness to trade these off for free transit). The
reader may recall that because of Hickel's criticism of Mr. Nixon's
Vietnam policy and of the excessive power of the White House staff,
his relationship with the President was tenuous at best. As a
result, Mr. Hickel did not press his cause beyond a discussion of
shelf limits and deep seabed questions with. Mr. Ehrlichman. At
the same time, visits and telephone calls between high State and
Defense Department officials and White House staff and the
President were intensive. Had the Nixon-Hickel relationship been
more cordial and had Mr. Hickel fought harder, a shelf decision
other than the so-called "trusteeship zone" decision regarding the
continental margin, and an approach to the deep seabed other than
the so-called "common heritage" characterization might have
evolved.
Dr. Hollick mentions, only in passing, the role of Congress in
ocean policy developments. In 1969 Senator Henry M. Jackson,
Chairman of the Senate Committee on Interior and Insular Affairs,
appointed me as chairman of a Special Subcommittee on the Outer
Continental Shelf to investigate certain issues, including the impact.
of various policy options under consideration by the Administration
on the development of our natural resources. I would like to
believe that the hearings of that Special Subcommittee contributed
positively to public education on the issues involved and their
importance to this nation.' I believe they provided additional
1. Outer Continental Shelf, Report by the Special Subcommittee on
Outer Continental Shelf to the Committee on Interior and Insular Affairs,
United States Senate, 21 December 1970.
PAGENO="0252"
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[VOL. 10: 425, 1973] Foreword
SAN DIEGO LAW REVIEW
input for the policy makers to consider and, along with subsequent
Congressional interest, have served to focus public opinion on this
vital issue.
The Senate Interior Committee has continued its active interest
in ocean policy developments both within the Administration and
within the United Nations Seabed Committee and General Assembly.
Our observations have led to doubts about the progress being made
toward a satisfactory resolution of law of the sea problems. We
have no assurance to date that out of the Law of the Sea Conference
will come a treaty which the Senate of the United States will vote
to ratify. While we do not wish to hinder progress toward a timely
and acceptable Seabed Treaty, if a successful conclusion of the
Law of the Sea Conference does not seem probable, I do not see
how Congress can responsibly refrain from legislation designed to
regulate and protect the deep ocean mining activities of U.S. firms.
The real value of Mr. Terry Leitzell's article on the 1972 Ocean
Dumping Convention is the insight it provides into the complexities
of attempting to negotiate an ocean pollution treaty amid com-
peting international efforts to deal with the same subject. What
is excluded from the coverage of the 1972 Convention on Ocean
Dumping provides clues as to such competing international ef-
forts:
The disposal of wastes incidental to the normal operations of
vessels and aircraft is already included in the 1954 Convention on
Pollution of the Seas by Oil and is the subject of the 1973 Con-
ference on Marine Pollution to be conducted under the auspices
of the Intergovernmental Maritime Consultative Organization.
The disposal of wastes or other matter directly arising from, or
related to the exploration, exploitation and associated offshore
processing of seabed resources remains within the scope of the
1974 Law of the Sea Conference and that of its preparatory body,
the U. N. Seabed Committee. To date, however, there has been
little achievement by the latter body in preparing for next year's
conference.
Another obstacle to international agreement regarding marine
pollution not mentioned by Mr. Leitzell is the attitude of some
developing countries on this issue. Many suspect that proposals
by developed countries to clean up the ocean are insensitive to
the aspirations of developing nations to advance economically.
These nations feel the developed countries have polluted unin-
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hibitedly in the race for industrial and technological superiority, and
now wish to impose standards that would impede developing
countries' growth.
Two other impediments to progress in combating ocean dumping,
mentioned by Mr. Leitzell, pertain to international organization
and the jurisdiction of coastal states to police ocean dumping be-
yond their territorial seas.
Resolution of the organizational issue related to which inter-
national body, if any, would be given administrative responsibility
for the Ocean Dumping Convention was deferred until the first
consultative meeting of the parties to the convention following its
entry into force. Thus, until this issue is resolved individual states
party to the convention will provide the exclusive means of its
enforcement.
The jurisdictional reach issue remains difficult to resolve because
of the conflict between those states which would limit a coastal
state's enforcement jurisdiction and other nation-states such as
Canada which would prefer to see a broader band of water over
which the coastal state would be given enforcement authority.
The outcome of the 1974 Law of the Sea Conference insofar as
coastal state jurisdiction is concerned will most certainly have a
substantial impact on the future resolution of this issue.
Regardless of these and other unsettled issues related to the curb-
ing of marine pollution, the Ocean Dumping Convention, as Mr.
Leitzell pointed out, is at least a first step.
Before discussing the articles pertaining to the Deep Seabed
Hard Mineral Resources Act by Mssrs. Knight and Laylin, I would
like to make an introductory point or two. First, the bill (5. 1134)
is now before my subcommittee. By the time this article goes to
press several days of hearings on this legislation will have been
completed. I would like to emphasize that my sponsorship of S.
1134 does not imply my support of all of its provisions. The
predecessor bill grew out of the appearance by representatives of
the American Mining Congress before my Special Subcommittee
on the Outer Continental Shelf in September of 1970. At that
time, as our hearing records will show, I told industry witnesses
that I would introduce their proposals for circulation and discussion.
I am not committed to this particular bill nor to any part of it.
That was my position when I introduced 5. 2801; it is my position
today. The purpose of the hearings is to expose this bill to the full
debate which is needed to assess its strengths and its weaknesses.
Preparatory to writing this introductory note it was necessary
to review carefully the two articles concerning the Deep Seabed
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[voL. 10: 425, 1973] Foreword
SAN DIEGO LAW REVIEW
Hard Mineral Resources Act. I have long believed that the ad-
versary process helps not only judges, but also legislators, to make
decisions best serving the public interest. Thus, I am grateful for
the opportunity to weigh the pros and cons put forward by Messrs.
Knight and Laylin concerning S. 1134.
Although I am not yet convinced of the wisdom of this bill or
its urgency, I must admit that of the two articles I found Mr. Laylin's
more in line with my views at present. I say so recognizing full
well that Mr. Laylin not only participated in the drafting of the
bill but also continues to actively represent one of the U.S. com-
panies quite active in ocean mining, whose officers testified before
my subcommittee in favor of the bill. There are, however, parts
of Mr. Laylin's testimony which raise questions in my mind which
I shall later discuss. First I will comment on Mr. Knight's article
and some of the assertions he has made.
Mr. Knight summarizes his arguments against the bill as follows:
(1) it is inconsistent with this Nation's present oceans policy;
(2) it will probably have an adverse effect on the current law of
the sea negotiations; and (3) it contravenes international expecta-
tions evidenced in the "principles" resolution of the General As-
sembly.
He bases these arguments on what he believes to be "inappropriate
timing."
I suppose Mr. Knight's first assertion is the one that gives me the
greatest trouble. He claims S. 1134 is not consistent with current
United States oceans policy. It would be more correct to say that
it is not consistent with current administration oceans policy. I
cannot resist the temptation to remind Mr. Knight that we have
ample proof in the last decade alone that just because there is an
administration blessing on a policy does not automatically sanctify
that policy. This is, after all, the same administration that gave us
some questionable policies in other areas. We in Congress happen
to be of the persuasion that Congress has a legitimate and vital role
to play in the formulation of U.S. policies-foreign and domestic.
Before a policy is U.S. policy, it should represent more than the
viewpoint of only one branch of government. In addition, it is a
false argument. To state that proposed legislation is unacceptable
because it does not conform to conventional administration wisdom
is like arguing against legislation to ban U. S. bombing in Cambodia
on the basis that it is inconsistent with U. S. Asian policy.
429
PAGENO="0255"
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I must also take issue with M. Knight's claim that it is "clearly
the intent of the Act" to establish a "flag nation" approach to deep
seabed mining. He implies that because the bill does not establish
any international legal system, the intent is to rely solely on
"domestic legislation." I do not see that it must be an "either-or"
proposition. In fact, the intent of this bill or, I presume, any similar
legislation that might be proposed, is to provide for interim regu-
lations relating to ocean mining until such time that an international
regime comes into effect. Indeed the bill reads "To provide the
Secretary of the Interior with authority to promote the conservation
and orderly development of the hard mineral resources of the deep
seabed, pending adoption of an international regime therefore." (em-
phasis added). Mr~ Knight concludes this particular phase of his
presentation by saying "It seems unlikely that the President would
sign such a bill if he wished to maintain the Administration's exist-
ing oceans policy." Mr. Knight might recall that the President in his
U. S. oceans policy statement on 23 May, 1970, made the following
remarks regarding development of the deep seabed:
"Although I hope agreement on such steps can be reached quickly,
the negotiation of such a complex treaty may take some time. I
do not, however, believe it is either necessary or desirable to try
to halt exploration and exploitation of the seabeds beyond a depth
of 200 meters during the negotiating process. Accordingly, I call
on other nations to join the United States in an interim policy.
I suggest that all permits for exploration and exploitation of the
seabeds beyond 200 meters be issued subject to the international
regime to be agreed upon."
I suggest that S. 1134 is simply a first step in developing such
an interim policy. It is not, I am sure, the final version that will
emerge from the legislative process.
I do not want to spend a disproportionate amount of ~time on Mr.
Knight's article but I feel I must at least briefly address myself to
a few other points contained in it. His second major argument
is that S. 1134 would have an adverse effect on current law of the
sea negotiations. I would say that is a possibility but not a certainty.
I do not believe Mr. Knight establishes how enactment of 5. 1134
would adversely affect the negotiations. He only speculates. One
could also speculate that enactment of S. 1134 would have precisely
the opposite effect-that it would demonstrate to our international
friends that while we favor an international regime we are not
prepared to wait until doomsday for it. The mere discussion of
legislation such as 5. 1134 may aôt to spur on the law of the sea
negotiations. In any case, the Congress of the United 5 can-
not responsibly meet its obligations to its citizens by pretending
that technology to mine the deep seabed is non-existent and relying
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[voL. 10: 425, 1973] Foreword
SAN DIEGO LAW REVIEW
on the fragile hope that an international regime soon can be agreed
upon.
Mr. Laylin addresses Mr. Knight's claim concerning the contra-
vention of "international expectations." I would only note that
Mr. Knight did not say the bill would be contrary to international
law, but to international expectations. Still S. 1134 takes due
regard to the U.N. General Assembly Resolution 2749. It is designed
to be compatible with "the international regime to be established,"
to be governed by that regime, and to share the benefits with other
nations.
Finally, I take exception to Mr. Knight's allusion to "inappropriate
timing." The Congress is not taking precipitous action. We are
inviting full and free debate on an important issue. We are too
often guilty of being "a day late and a dollar short." I believe
it is most timely that we examine this proposed legislation now.
Let us expose it to close scrutiny so that if we determine that
legislation is needed, we enact the best law possible. The surest
way to avoid mistakes is to avoid waiting until the last minute and
then under pressure, writing an ineffective or unwise law.
Mr. Laylin, on the other hand, points out that there is no inter-
national law limiting the freedom to mine the deep seabed. He
recognizes that 5. 1134 is intended as an interim measure eventually
to be replaced by an international regime. He subscribes to the
view that such legislation could discourage disorderly development
and hopefully forestall claims of prior rights based upon unregulated
activities. One Of my concerns is that in the absence of either an
international regime or United States statute, technology will lead
us to a new lawless frontier.
Mr. Laylin advocates that countries having a capability to carry
on deep seabed mining put reasonable restraints on themselves
and their nationals who encourage mining but do not permit
unnecessary assertions of rights, and suggests 5. 1134 was drafted
with that end in mind.
Although Mr. Layin states that an interim regime would be
preferable to legislation, he notes that there have been no signs
pointing toward that possibility. He outlines what the bill does
and does not do as an interim legislative measure and describes what
protection the bill would afford United States nationals engaged in
the mining industry.
431
PAGENO="0257"
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He points out that contrary to his promise of 3 May, 1970,
President Nixon has yet to put forward a proposal for an interim
policy. To date, in fact, the Administration has done little to
address the problem other than to reassure United States nationals
that they have a continuing right to mine the deep seabed.
Among other things, the bill would establish an Overseas Private
Investment Corporation-type insurance program in which the
government would practically be required to guarantee the United
States licensee mining companies a profit. Mr. Laylin states that
the mining companies' bankers insist on such an insurance program
because "venturing into an activity so unprecedented as deep seabed
mining is itself so risky from a nonpolitical angle that there should
not be added" all the risks "of a political nature." This argumenta-
tion smacks of hyperbole. So, too, does the argument that foreign
competitors mining the ocean floor, such as an agency of the
U.S.S.R., or Japanese and West German companies, will be sub-
sidized by their governments, and therefore the U. S. government
should insure the operations of its "underdog" mining companies.
Taking risks is what big business in the United States is all about.
I remain to be persuaded that in addition to insuring competition
between ocean mining companies, the bill need go further and
guarantee their success in competition against foreign mining
companies.
Mr. Laylin questions the Administration's belief that S. 1134 is
unnecessary because a seabed regime will be completed by 1974
or 1975. I, too, question the probability of such an event coming to
pass so soon, and therefore share Mr.~ Laylin's prediction that
the nations wanting an agreement on deep seabed mining "will go
ahea-i with one arrangement or another if the present lack of
progress continues."
What such "arrangements" will turn out to be remains to be
seen.
In my view, the progress toward arriving at an acceptable draft
seabed regime by the U.N. Seabed Committee at its Geneva session
this summer will play no small part in the determination of
whether S. 1134 could become one such arrangement.
432
23-317 0 - 73 - 17
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United States Oceans Politics
ANN L. HOLLICK*
The United States Government has been actively engaged since
1967 in the formulation of policy relating to the control and use of
the oceans involving a network of issues that surrounds the exploi-
tation of the seabed, the breadth of the territorial sea, transit rights
through straits, and the conservation and allocation of fishery re-
sources. Few issues Of foreign policy impinge on such a complex
array of national and commercial interests in the United States and
abroad and at the same time involve such a complex interaction of
interests and perspectives within the U. S. Government.
At the heart of these ocean issues and of the debate on the law
of the sea is the allocation and use of ocean space. In a broad sense,
the contending parties are coastal economic interests versus global
maritime interests. Governments as well as private interests may
* Executive Director, Ocean Policy Project; Assistant Professor, Ameri-
can Foreign Policy, School of Advanced International Studies, The Johns
Hopkins University, Washington, D.C. Dr. Hollick has been active in the
field of ocean policy since 1969 when she began work on her doctoral
dissertation. The thesis covered the domestic politics behind the formula-
tion of U.S. policy and was completed in August, 1971 (Ph.D., Johns Hop-
kins University 1971). She has participated in a number of national and
international ocean affairs conferences and has attended the preparatory
sessions of the U.N. Seabed Committee.
The research for this paper was supported by the National Science
Foundation.
May 1973 Vol. 10 No. 3
467
PAGENO="0259"
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espouse either a coastal or a maritime policy or a combination of
the two. The natural alliances, therefore, transcend national bound-
aries. Such alliances may link U. S. petroleum interests seeking
national jurisdiction over extended offshore areas with Latin Amer-
ican nations claiming a 200 mild jurisdiction. Or they may bind
naval establishments of maritime nations with land locked coun-
tries anxious to restrict the claims of coastal nations. Perhaps the
most pronounced division is between developed nations with global
maritime interests and developing nations anxious to curb the ac-
tivities of maritime powers off their coasts.
Since 1967, the forum for international negotiations between
these contending forces has been the U.N. Seabed Committee.1 Fn
1970, the Seabed Committee was officially designated as the pre-
paratory body for the Third United Nations Law of the Sea Con-
ference.2 The conference is scheduled to begin with a two week
organizational session in November/December 1973 in New York
to be followed by an eight week session in Santiago, Chile, during
April and May of 1974. The agenda items for the conference are
numerous and include the issues of an international regime for the
seabed, the breadth of the territorial sea, coastal state preferential
rights over resources beyond the territorial sea, straits used for in-
ternational navigation, the preservation of the marine environment
and scientific research.
While the United States is obviously the world's foremost mari-
time power, given its two long coastlines and its Hawaiian and
Alaskan archipelagos, it is also a nation with substantial coastal
interests.3 U.S. ocean policy is, therefore, characterized by a high
degree of conflict between coastal and maritime interests and rep-
resents a series of tenuous compromises. Since the first announce-
ments in 1970 of U.S. policies on seabed resource exploitation and
other law of the sea issues, the policy compromises have evolved
steadily away from ones favoring military-strategic interests to
ones favoring coastal economic interests. This evolution has been
due in part to international pressure and in part to an increase in
policy influence of domestic interest groups with substantial coastal
state concerns.
As announced in August 1970, United States policy with respect
to the exploitation of seabed minerals favored a narrow zone of
1. Committee on the Peaceful Uses of the Seabed and the Ocean Floor
beyond the Limits of National Jurisdiction.
2. G.A. Res. 2750 (1970), 10 INT'L LEGAL M~T~aIALs 224 (1971).
3. Indeed, under a universal 200 mile territorial sea, the United States
would gain more territory than any other nation.
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national jurisdiction and the establishment of an international sea-
bed regime beyond.4 Exclusive coastal state control over the miii-
eral resources of the Continental Shelf would extend only to the
200 meter isobath. Beyond that, in an intermediate zone reaching
to the outer edge of the continental margin, the coastal state would
act as a "trustee" for the international seabed authority. In the
deep seabed the international authority would license the exploi-
tation of minerals, and a substantial portion of the revenues gen-
erated in the international area (including the intermediate zone)
would be distributed to developing nations.
Since the announcement of this policy three years ago, there has
been a discernible shift in U. S. policy away from insistence that
national jurisdiction be limited to the 200 meter isobath; increas-
ingly evident is an accommodation to strong international and do-
mestic pressures in favor of a broader national resource or eco-
nomic zone. Although the U.S. has never explicitly abandoned the
200 meter isobath as the limit to coastal state seabed jurisdiction,
it no longer insists on it in policy statements. Instead the Govern-
ment simply delineates the provisions that must apply in coastal
zones of national resource jurisdiction. In such areas, the U.S. now
insists on international agreement to certain standards and provi-
sions for compulsory dispute settlement to protect other uses of the
area, and to safeguard the integrity of investments. These condi-
tions are, of course, acceptable to U.S. domestic interests planning
to operate in coastal areas.
On the second set of major policy issues before the United
States Government there has been a similar movement toward
greater concessions for coastal interests. The American position on
the breadth of the territorial sea, international straits, and fisheries
was presented to the U.N. Seabed Committee in August 1971.~ The
U.S. Government indicated that it was prepared to agree to a twelve
mile territorial sea provided that international agreement was
reached on freedom of transit through and over international straits
that would otherwise be closed by this extension of the territorial
sea. At the same time, the United States was prepared to accept
limited preferential rights for coastal nations over the fishery re-
4. Draft United Nations Convention in the International Seabed Area,
*U.N. Doe. A/AC.138/25; 9 INT'L LEGAL MATERIALS 1046 (1970).
5. U.N. Doe. A/AC.138/SC.II/L.4, 65 Dep't. State Bull. 261 (1971).
469
PAGENO="0261"
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sources off their shores. In the two years since this announcement,
there has been little modification of the U.S. position on straits and
the territorial sea. The U.S. fishery position, however, has evolved
to one of acceptance of coastal state management of coastal and
anadromous species of fish.
One cannot understand the U. S. position on these ocean issues
without understanding the pressures and concessions produced by
diverse national and commercial interests as they interact with
these same kinds of interests in other countries. These pressures
and concessions are transmitted through a policy process that ulti-
mately shapes the U.S. position. Although the process of formu-
lating ocean policy is in many ways distinctive, it nonetheless illu-
minates some perennial features of the foreign policy decision-mak-
ing process, with particular reference in this case to the Nixon
Administration and the operation of its National Security Council.
Perhaps the most fruitful approach to understanding how ocean
policy is formulated is that of bureaucratic politics. In this ap-
proach the actors or "makers" of ocean policy are public officials
and large bureaucracies engaged in a continuous process of bargain-
ing which is influenced throughout by domestic interests as well as
foreign interests. The ocean policies that result are a product of
contention-within the Government and with domestic and foreign
interests-and not of a rational centralized decision-making process.6
Several low-level generalizations or lessons emerge from a bu-
reaucratic politics approach to oäean policy. First, it is apparent
that the ocean policy process involves a blend of domestic and for-
eign policy considerations. As domestic interests have become
more involved in the process, the foreign policy latitude of both the
State Department and White House has diminished correspond-
ingly. While decisions and policies on the oceans have remained
a product of conflict and compromise, the active participation of
domestic interests has restricted the process of tradeoffs. Bureau-
crats that initially interjected themselves into a variety of ocean
issues now limit their policy involvement to issues of direct rele-
vance to their agency.
The policy process has been characterized by contention between
interests with varying degrees of political and economic power.
6. The bureaucratic politics approach to foreign policy is most articu-
lately elaborated in Allison, Conceptual Models and the Cuban Missile
Crisis, 63 AM. POL. Sci. Rsv. - (1970); Halperin, Why Bureaucrats Play
Games, FOR. P0L. - (1971); Allison and Halperin, Bureaucratic Poli-
tics: A Paradigm and Some Policy Implications, 24 WORLD POL. - (Sup-
plement) (19_).
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The most powerful private interest in the seabed debate has been
the petroleum industry. Equally powerful and initially in opposi-
tion to petroleum has been the Defense Department, representing
more traditional foreign policy considerations regarding use of the
oceans. What emerges from an examination of the policy role of
these and other ocean interest groups is the not-too-surprising fact
that an interest's influence on policy is a function of its economic
and political power7-of its contacts within the bureaucracy, the
Congress and the White House, of its ability to glean information,
and of the skill of its policy partisans.
A number of generalizations flow from a consideration of the
ocean policy of the Nixon NSC system. While the NSC system pre-
sided over by Henry Kissinger has ensured that contentious ocean
policy questions come to the White House for resolution, counter-
vailing factors have allowed lower level bureaucrats to retain sub-
stantial policy control. The process leading up to a White House
decision, and even the decision itself, may be largely determined
by the skill of contending bureaucrats in formulating and present-
ing options for Presidential consideration. Then, of course, the
implementation of policy, once a Presidential decision is reached,
allows the bureaucrat substantial freedom from White House super-
vision. This has been especially true of ocean policy where the
subject is relatively technical and its urgency has not been self
evident to high level officials. Due in large part to the complexity
of the issues, the ocean bureaucrat tends to deal exclusively with
ocean questions. This not only results in a rather closed group of
interacting policy experts but also tends to insulate these decision-
makers from close White House scrutiny.
UNITED STATES SEABED PoLIcY
The Policy Participants
Of the domestic interests affected by the disposition of the seabed
and its mineral resources, only four have had a significant influence
on or involvement in policy formulation through 1972-the petro-
leum industry, the military, the hard minerals industry, and the
marine science community. While the military and the scientist
7. Tables 1 and 2 provide a rough index of priorities accorded to agen-
cies and ocean uses by the Federal Government. See pp. 500, 501, irtfra.
471
PAGENO="0263"
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use the oceans for the more traditional purposes of mobility, the
petroleum and hard minerals industries share a more recent inter-
est in the exploitation of fixed mineral resources. The resulting
clash between these new and traditional ocean uses has been a cen-
tral element in the formulation of~U.S. seabed policy.
Seabed policy has two major aspects: (1) the delimitation of
national jurisdiction over seabed minerals and (2) the nature of
the seabed regime to be established beyond national jurisdiction.
Each of the four interest groups is concerned with different aspects
of seabed policy. While the petroleum industry is primarily intent
upon determining the location of the boundary of national jurisdic-
tion, the hard minerals industry is concerned with the seabed re-
gime to be established beyond that boundary. The military and the
marine scientist are affected by both of these questions insofar as
they might restrict their mobility on the oceans. Conflict has
therefore arisen over both the national boundary and the interna-
tional regime issues-between Defense and the petroleum industry
in the former case and between Defense and the hard minerals in-
dustry in the latter. The clash over the boundary issue began ear-
lier than that over the regime and was much more virulent, due in
no small measure to the relative power parity of defense and petro-
leum interests. Only in 1972 did the Department of Defense with-
draw from active involvement in the boundary issue to concen-
trate on the straits question.
The policy dispute over the boundary found its origin in the
1968 discovery that seabed petroleum deposits are generally lim-
mited to the continental margin. Although offshore petroleum
operations had been underway for over two decades, they were
confined to the shallow areas of the continental shelf and knowl-
edge of the area beyond was at best vague. In 1967 and early 1968,
new discoveries and developments led the petroleum industry to
reevaluate its interest in the deeper offshore areas. The Malta pro-
posal at the United Nations8 raised worldwide hopes of boundless
seabed treasure while simultaneously threatening to jeopardize na-
tional access to them. In the same period, estimates of the magni-
tude of offshore petroleum resources were skyrocketing as tech-
nological advances were lowering the cost of deep water operations.
Important in unifying the entire petroleum industry around a
8. Declaration and Treaty Concerning the Reservation Exclusively for
Peaceful Purposes of the Sea-Bed and of the Ocean Floor Underlying the
Seas Beyond the Limits of Present National Jurisdiction, and the Use of
their Resources in the Interests of Mankind, 22 U.N. GAOR -, U.N. Doc.
A/6695 (1967).
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single position on offshore jurisdiction were two reports emanating
from the U.S. Geological Survey in early 1968. In the first, the
Director of the Geological Survey indicated that commercial petro-
leum deposits would be restricted to the continental margin and
suggested that the legal definition of the Continental Shelf should
be adapted to correspond with the geological boundary.9 The im-
pact of this statement on subsequent petroleum policy was rein-
forced by new and substantially increased estimates of offshore
petroleum resources. The Geological Survey reported recoverable
reserves on the U. S. continental margins ranging from 180 to 220
billion barrels of petroleum liquids and from 820 to 1,100 trillion
cubic feet of gas.'°
On the basis of these findings, major segments of the U.S. petro-
leum industry moved quickly to stake out a policy position on the
location of the Continental Shelf boundary. The National Petro-
leum Council offered a definitive policy formulation in the interim
report entitled Petroleum Resources under the Oceau Floor." The
NPC's argumentation combined an ingenious early version of a na-
tional "energy crisis" with elaborate legal reasoning. Using the
rnterior Department's estimates, the NPC pointed to the substan-
tial resources off U.S. shores and advanced the view that it was
vital to the nation's security to guarantee national control of all the
energy resources of the continental margin. The alternative, it
was suggested, would be a dangerous dependence on foreign sup-
plies of petroleum.
To secure national control of these offshore petroleum resources,
the U.S. Government was urged to unilaterally assert sovereign
rights over offshore seabed resources to the outer edge of the con-
tinental margin. Such a move, the petroleum industry argued,
would be consistent with the intent of the Geneva Convention on
9. U.S. Dept. of the Interior (Geological Survey), Geologic Boundary at
the Continents, (Statement of W. T. Pecora) (Feb. 21, 1968).
10. U.S. Dept. of the Interior, McKelvey, et al, Potential Mineral Re-
sources of the TJnitecl States Outer Continental Shelf, Unpublished Report
of the Geological Survey to the Public Land Law Review Commission,
March, 1968. A year later the Geological Survey estimated potential
reserves in place to a depth of 200 meters to be 660-780 billion barrels of
oil and 1,640-2,200 trillion cubic feet of natural gas with reserves of the
same magnitude from 200 to 2500 meter isobath.
11. Published July, 1968; the final report came out in March, 1969.
473
PAGENO="0265"
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the Continental Shelf and would in no way impair high seas free-
doms in the area. According to Article 1 of the 1958 Geneva Con-
vention, coastal state jurisdiction over seabed resources, or the
limit of the legal Continental Shelf, extends to the 200 meter (656
feet) isobath or beyond that to the depth that admits of exploita-
tion. Although in 1969 producing wells were operating well within
the 200 meter isobath (340 feet), exploratory wells were being
drilled at depths far exceeding this limit (1,300 feet) ~12 Adding
the expected advance of recover~ capabilities to the geological
break between the margin and the deep seabed, the industry con-
tended that the intent of the Geneva Convention was to advance
the Continental Shelf boundary to he outer limit of the continental
margin. Underlying the early petroleum position was the tradi-
tional belief shared by both the domestic and overseas branches of
the petroluem industry that in gaining access to resources off the
U.S. coasts as well as off those of other nations it was safer and
more profitable for American firms to deal bilaterally with coastal
nations rather than with an unfamiliar international regime pos-
sibly weighted against U.S. interests.'3
As the petroleum industry began to advance this position within
the Government, the Defense Department position on the boundary
moved in the opposite direction. The military observed that the
Interior Department's issuing of leases at depths far greater than
the 200 meter isobath constituted de facto extension of the U.S.
Continental Shelf based on the exploitabiity clause of the Geneva
Convention. Although under the terms of the Continental Shelf
Convention resource jurisdiction was not to affect other uses of the
area, the military came increasingly to fear that such would not be
the case. Not only was it concerned about the effect of such exten-
sions on the placement of ASW detection devices, but Defense was
equally fearful that the limited resource sovereignty delegated to
a coastal state would gradually expand, through the phenomenon
of "creeping jurisdiction," to claims of total territorial sovereignty.
Thus the military came to the view that the seaward extension of
the Continental Shelf boundary as exploitation proceeded, together
with the expansion of coastal state sovereignty over superjacent
waters, would ultimately close off U.S. military access to coastal
areas around the world.
12. Hearings Special Study on United Nations Suboceanic Lands Policy
Before Senate Comm. on Commerce, 91st Cong., 1st Sess. 103 (1969).
13. For the most articulate public statements of this view within the
Government, See: 116 CONG. REC. 12240-42 (1970) (remarks of Senator
Hansen); 116 CONG. REC. 22169 (1970) (remarks of Congressman Bush).
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At that time the Defense Department solution to the threat of
creeping jurisdiction was to attempt to limit the size of special pur-
pose or resource zones in the oceans. Constrained from a resort to
force to protect its navigational rights from coastal state encroach-
ment, Defense Department representatives opted for a broad inter-
national agreement through a formal conference. With regard to
seabed minerals, the Defense Department sought international
agreement on a Continental Shelf extending no farther than the
200 meter isobath. To sell such a scheme to governments of de-
veloping nations the Defense Department proposed the establish-
ment of a generous and powerful seabed mineral regime in the
area beyond the narrow Continental Shelf.'4 In an unsuccessful
effort to convince the skeptical petroleum industry of the merits of
such a boundary, the Defense Department pointed out that 92% of
the world's continental margins were off foreign shores. To gain
access to these, it was far better for the petroleum industry to deal
with an impartial international seabed authority than to deal bi-
laterally with unpredictable national governments that might re-
sort to harassment, profit squeezing or outright expropriation.'5
The technological superiority of the American petroleum industry
and the dominant role that the U.S. Government would probably
play in an international seabed authority would presumably assure
favorable treatment for U.S. companies.
Inherent in the policy position that Defense was advancing within
the Government was a readiness to risk the petroleum industry's
resource interests, as industry saw them, in return for internation-
ally agreed rights of transit. The industry was predictably opposed
to such a tradeoff and fought it vigorously through the Interior
Department. The petroleum industry's ready access to informa-
tion and to policy makers within the Government contributed to
its effective and early input into the policy process.
The hard minerals and marine science interests were less fortu-
nate. Throughout 1969 and 1970 neither hard minerals nor science
was adequately represented in the closely-held policy deliberations
14. For public statements of these points see: H~wKIN and Ri~TmER,
LAW OF THE SEA: UNITED NATIONS AND OcEAN MANAGEMENT 19, 325-27
(L. M. Alexander ed.) (1971).
15. Ratiner, National Security Interests in Ocean Space, 4 NAT. RRE.
LAw 582 (1971).
475
PAGENO="0267"
261
within the Government. The primary concern of the hard minerals
industry with seabed policy has been with the nature of the regime
rather than with the location of the Continental Shelf boundary.
Of interest to the ocean miner is the manganese nodule, a dark
potato-shaped accretion containing varying amounts of a large
number of metals such as cobalt, nickel, copper, manganese, iron,
silicone and aluminum. While manganese nodules are scattered
widely over the deep floor, the nodules with the greatest propor-
tion of commercially attractive cobalt, nickel and cooper are gen-
erally found in the deepest parts of the oceans (at depths as great
as 18,000 feet) ~16 Because nodules of commercial value are rarely
found on the continental margin, locating the national Continental
Shelf boundary at any point up to the outer edge of the margin will
not significantly effect the miner of nodules.
First discovered in the 1870's, the manganese nodule came to be
considered as a potential resource only recently. As information
about nodules has increased, mining industry policy has undergone
several transitions-from early support for a broad Continental
Shelf, to a policy of a moving Shelf boundary, to a total disregard
of the boundary issue and a strong position on the regime beyond
national jurisdiction. In August 1968 the petroleum and hard min-
erals industries were in substantial agreement on the boundary
question as was reflected in a Joint Report sent to the American
Bar Association House of Delegates by the Sections of Natural Re-
sources Law, International and Comparative Law, and the Standing
Committee on Peace and Law through the United Nations. The
Joint Report supported the National Petroleum Council view that
the rights of coastal states to the minerals of the seabed already
extended to the foot of the continental margin. The Report also
considered it premature to consider establishing a regime for the
seabed beyond that boundary.
By 1969 the hard mineral interest group began to move away
from this position. In an August 1969 Joint Report by the same
Section of the American Bar Association, the split was evident.
The new Joint Report explicitly stated that some members no
longer supported the interpretation of the Continental Shelf bound-
ary that had been advocated a year before. Instead these members
argued that the Geneva Convention on the Continental Shelf "ex-
tends sovereign rights over the seabed beyond the 200 meter line
16. Brooks, Deep Sea Manganese Nodules: From Scientific Phenomenon
to World Resources, 8 NAT. RE5. L. 406 (1968); Rothstein, Deep Ocean
Mining: Today and Tomorrow, 6 COLUM. 3. Woai~n Bus. - (1971).
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only as technological progress makes exploitation in that area pos-
sible in fact."7
This diverging position on the Continental Shelf boundary coin-
cided with increased industry interest in the recovery of mangan-
ese nodules and increased knowledge of the location of commer-
cially attractive deposits. Although the mineral industry shared
the petroleum industry's aversion to international administrative
organizations, it came gradually to realize that mining companies
would be operating in areas beyond the limits of national jurisdic-
tion, no matter where the Continental Shelf boundary was drawn.
Ocean miners became increasingly concerned, therefore, with the
nature of the seabed regime which would govern deep sea exploi-
tation-a concern which was not shared by the petroleum interest
group given petroleum's stand on the extent of national seabed
jurisdiction.
Despite the lack of a direct interest in the boundary issue, the
hard minerals industry continued to involve itself in the boundary
dispute for tactical purposes in 1969 and 1970. The industry was
willing to support a narrow but outward moving boundary, if such
a boundary could be used to buy a satisfactory seabed regime.'8 By
a "satisfactory regime," the hard minerals industry meant a system
of freedom to explore the seabed, to stake a claim and to receive
an exclusive license to exploit the claimed area. An international
authority, in this view, should be no more than a registry agency,
17. A.B.A., Non-Living Resources of the Sea (A Critique), 2 NAT. Ri~s.
LAw. 429 (1969).
18. Hearings on Outer Continental Shelf Before the Senate Comm. on
Interior and Insular Affairs, 91st Cong., 1st and 2nd Sess. [Hearings]
pt. I, at 136 (1969) (statement of Joim G. Laylin): "[T]hose who have
primarily in mind of the extraction of oil are interested only in the area
landward of the foot of the continental slope. They have been informed, it
would appear, that there is little likelihood of oil pools below the bed
of the deep sea. In consequence they are not concerned with the regime
to be established for the deep sea bed. It does not matter to them that
their demands may hurt the efforts of the United States to bring about a
satisfactory regime for the deep sea.
"In contrast . . . [those] . . . who have in mind the interests of hard
metal miners find themselves agreeing with many of the contentions of
the Navy and the scientists. They do not object to a broad shelf, but they
do object to sacrificing the chances of reaching agreement on a satis-
factory deep sea regime by insisting willy nilly that the United States
now take the position that the outer limit of the shelf is now at the foot of
the continental slope."
477
PAGENO="0269"
263
and its financial exactions should be minimal. Although the min-
ing industry was willing to trade the petroleum industry's interest
in the boundary for a favorable seabed authority, it soon found the
Defense Department to be a dangerous ally. To induce other na-
tions to agree to a narrow Continental Shelf, Defense was urging
the establishment of a generoUs and powerful seabed regime to ad-
minister the exploration and exploitation of seabed resources and
to allocate substantial revenues from these activities to an interna-
tional development fund. Despite its opposition to the Defense
Department position, the hard minerals industry was not partic-
ularly successful in blocking it. Due to its position on the bound-
ary, the hard minerals interest had lost the support of the petro-
leum industry. And within the Interior Department, hard min-
erals had to compete with petroleum for the time and energy of
government bureaucrats responsible for seabed policy.
The problems of the marine science interest were somewhat dif-
ferent. Because the marine scientist shares the military's interest
in unrestricted access to the world's oceans, he is concerned both
with the boundary and with the regime. However, the scientific
community believes it can and should distinguish its research in
the oceans from commercial and military investigations. In all
ocean policy efforts, therefore, the scientist has sought to include
explicit guarantees for open sčientific research. Such guarantees,
however, necessarily imply the absence of a similar freedom of
military access for research, monitoring and even transit. They
were, therefore, strongly resisted by the military.
The policy position advocated by the United States in 1970, with
its strong emphasis on maintaining ocean freedoms, was consonant
with the scientific interest. While State Department officials rep-
resenting science and, to a lesser extent, the National Science
Foundation were in substantial agreement on the needs of science,
they were unable to override military opposition to explicit guar-
antees for freedom of scientific research. The scientific commu-
nity, therefore, failed to secure inclusion of the coveted guarantees
for scientific freedom in the U. S. Draft Seabed Treaty of 1970.
An aditional interest which has not been mentioned, and one
with limited influence on ocean policy until 1970, was that of the
Department of State itself-the Government's official foreign pol-
icy arm. The State Department's guiding purpose has been to ad-
vance U.S. ocean interests in international negotiations while main-
taining ordered and harmonious relations with other nations on a
broad range of ocean issues. Its overriding bias is toward reaching
an international agreement. To achieve these objectives the De-
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partment of State seeks to maintain control over the formulation
of ocean policy. This in turn has required strenuous efforts to
resolve domestic contention over ocean issues to arrive at a policy
position acceptable to all parties. When the seabed issue was first
introduced in the United Nations in 1967, the State Department
encountered a series of obstacles to the achievement of its objec-
tiVes. These impediments placed the Department in the unenvia-
ble position of having to stall in the face of growing international
pressures. The first difficulty was that of resolving internal bu-
reaucratic contention over control of ocean policy. This was tem-
porarily resolved in February 1970 when the then Legal Advisor,
John R. Stevenson, became the head of a consolidated Law of the
Sea Task Force.19 With Mr. Stevenson's retirement from govern-
ment in January 1973, the issue of directing overall U. S. ocean
policy has been once again raised.
A second difficulty in formulating early seabed policy was the
growing dispute between the Departments of Interior and Defense.
In a successful effort to forestall the imposition of a boundary pol-
icy by the State Department, the Department of Defense requested
an Under Secretaries Committee review of the seabed boundary
question. In response to this request, the White House issued a
National Security Study Memorandum in April 196920 proposing
that, in the absence of inter-agency agreement, the Under Secre-
taries Committee meet to consider the position that the United
States should take in the United Nations regarding the location of
the Continental Shelf boundary. The NSSM further proposed that
the Under Secretaries Committee attempt to reconcile the U.S.
position on the Continental Shelf boundary with that on the
territorial sea and related issues.
Between the April, 1969 NSSM and the January, 1970 meeting of
the Under Secretaries Committee, the State Department intensified
its efforts to reach a compromise acceptable to both sides. To ac-
commodate the interests of both the Department of Defense and
the Department of the Interior, the State Department proposed the
19. A useful discussion of the role of the legal advisor within the De-
partment of State may be found in Bilder, The Office of the Legal Ad-
visor: The State Depart'irtent Lawyer and Foreign Affairs, 56 AM. J.
INT'L L. 633-84 (1962).
20. The date of the Seabed N.S.S.M. given by John P. Leacacos is April
11, 1969. See Leacacos, Kissinger's Apparat, - FOR. POL. 25 (1972).
479
PAGENO="0271"
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adoption of an intermediate zone in the disputed area between the
200 meter isobath and the edge of the continental margin. In this
zone, the coastal nation would enjoy control over the exploration
and exploitation of seabed resources. While responsible for enforc-
ing standards to protect against pollution and navigation hazards,
the coastal nation would not have the right to exclude other na-
tions from conducting scientific research or military activities on
the continental margin beyond the 200 meter isobath. The State
Department compromise further stipulated that a small royalty of
2% based on the value of resources exploited in the zone would be
paid to an international community fund.
The State Department compromise proposal received a mixed
reception. While Interior did not object to it strenuously, the
Defense Department rejected it flatly. Defense argued that an
intermediate zone would be temporary at best and that giving the
coastal state exclusive jurisdiction over resource exploitation on
the continental margin would jeopardize the freedom of other na-
tions to use that area for other purposes. Explicit guarantees of
access for military or scientific purposes, Defense argued, would
simply not be acceptable to cŕastal nations. Only by combining a
narrow Continental Shelf with a satisfactory international regime
would there be any chance of halting the proliferation of unilateral
national claims.
The NSC System
With this final failure to reaëh agreement, the Under Secretaries
Committee meeting was scheduled for January 29, 1970, and the
major contenders assiduously recruited allies within the bureau-
cracy. Interior consolidated the backing of the Commerce Depart-
ment and won the added support of the Bureau of the Budget and
John Ehrlichman's White House staff. The Defense Department
found backing within the Justice Department and the National
Security Council (while continuing to lobby in the State Depart-
ment for a revision of its proposal). And, in back of its interme-
diate zone proposal, the State Department lined up the Transpor-
tation Department and the National Science Foundation.
Given the obvious power of the major antagonists-the petro-
leum industry and the military-allies seemed scarcely necessary
to ensure that the Under Secretaries Committee would not render
a judgment adverse to either interest. In any case, under the NSC
options system the Committee did not have the power to impose a
decision. Chaired by then Under Secretary of State Elliott Rich-
ardson, the Committee's mandate was limited to submitting a re-
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SA~ DIEGO LAW REVIEW
port to Presidential Assistant Henry Kissinger, for review and con-
sideration by the President.2' The result of the meeting, therefore,
was a foregone conclusion. While the pros and cons of the State,
Interior and Defense positions were heatedly discussed, they were
not resolved. The only decision taken was to send the policy dis-
pute further up the NSC ladder with Under Secretary Richardson's
recommendation accompanied by position papers from the dissent-
ing agencies.
In the month and a half immediately after the Under Secretaries
Committee meeting, the Defense Department and its supporters
mounted a particularly vigorous campaign against the State De-
partment position. In response to these objections and in his
capacity as Chairman of the Under Secretaries Committee, Elliott
Richardson proposed a fourth policy position on the Continental
Shelf boundary and the seabed regime. The new position was an
obvious compromise between the State Department position on an
intermediate zone and the Defense Department position in favor
of a narrow Continental Shelf. In his proposal Richardson sug-
gested that the concept of the intermediate zone be retained but
that the zone be expressly incorporated into the international re-
gime. The proposal went on to stipulate that, within the interme-
diate zone, the coastal state would have the exclusive right to grant
concessions and to collect royalties as a "trustee" of the interna-
tional community. Substantial royalties from exploitation in the
zone would be allocated to international economic development.
Richardson's proposal differed from the original Sthte Department
position on the outer limit of the national Continental Shelf bound-
ary and the size of royalties to be allocated to the international
community. It promptly superseded the earlier State Department
proposal as the new official State Department position.
The reactions of both Defense and Interior to the revised State
Department position were revealing. The Defense Department
continued to prefer its own concept of preferential bidding rights
for coastal nations, but it deemed the new proposal acceptable as
a "fall-back" position since it explicitly stipulated that national
21. For a description of the role and stature of the Under Secretaries
Committee in the National Security Council Committee hierarchy, see:
Smith, Foreign Policy: Kissinger at Hub, New York Times, Jan. 19, 1971,
at 1; Reston, The Kissinger Role, New York Times, March 3, 1971, at 39.
481
PAGENO="0273"
267
sovereignty would end at the 200 meter isobath and concentrated
its~ efforts on assuring the international character of the trustee-
ship zone. The Interior Department was far less sanguine about
Mr. Richardson's proposal. Interior's main objection was to the
provisions that would give the~ international community discretion-
ary authority in the intermediate zone and would only allow the
coastal state to act as "trustee." Such authority would mean that
the international community, of which developing nations consti-
tute a majority, would have the power to decide upon and to
impose production controls, to fix high royalty payments, to im-
pose other onerous restrictions upon the coastal state, or to exclude
the coastal state altogether from its trusteeship zone. Finally, the
Interior Department expressed concern that the Richardson pro-
posal, unlike its predecessor in the State Department, called for a
large amount in royalties to be paid to an international fund. The
Interior Department urged, therefore, a return to the abandoned
State Department position on the Shelf boundary and a seabed
regime.
With the formulation of the Richardson proposal and the reten-
tion of the original State Department proposal at the insistence of
Interior, there were four policy options to be considered by the
White House.22 Although these were sent to the President in
March, no decision on the options was forthcoming until the end
of May. An obvious cause of the delay was the fact that the Con-
tinental Shelf/seabed regime issue had to compete with more
urgent matters for the time and attention of busy presidential
advisors. The invasion of Cambodia is a case in point. A more
fundamental source of delay, however, was the difficulty for White
House officials of mastering the complex technical and legal issues
of the seabed question. Mr. Kissinger was particularly reluctant
to involve himself in a subject with which he had little experience.
Hence the problem was shoved aside.
This state of affairs might have persisted indefinitely had not
other parts of the White House intervened in the agency dispute.
Because the Continental Shelf/seabed regime problem spans do-
mestic as well as foreign policy considerations, Interior Depart-
ment officials directly solicited the support of John Ehrlichman,
the President's advisor for domestic affairs. Unlike Mr. Kissinger,
22. On the agency positions that were considered by the President, see:
Landauer, Nixon Is Urged to Yield Some Ocean Floor Oil to Help the
World's Poor, Wall Street Journal, March 27, 1970, at 1; Hearings, pt. II
399; Orr, Domestic Pressures Quicken U.S. Policy-Making on Seabed Juris-
diction, C.P.R. INT'L J. 676, March, 1970.
482
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Mr. Ehrlichman was quite prepared to take a position on this ques-
tion after an initial briefing by Interior Department officials. Mr.
Ehrlichman was concerned that an Executive branch policy in sup-
port of a narrow Continental Shelf would expose the President to
the politically damaging claim of "giving away" the nation's miii-
eral estate. Therefore, Ehrlichman opted for either the Interior
Department or the original State Department position. Officials of
the National Security Council received Mr. Ehrlichman's interven-
tion in a matter of foreign policy with less than complete enthu-
siasm. NSC officials were concerned that American strategic inter-
ests would be gravely endangered by the wide Continental Shelf
policies of the Interior and original State Department positions.
Thus the lines were firmly drawn between the President's foreign
and domestic affairs advisors and the issue was once again stalled.28
External events, however, combined to force strenuous efforts
within the White House to negotiate a mutually acceptable options
paper for the President. While the U.N. Seabed Committee was
pressing ahead with its deliberations, a growing number of coun-
tries were laying claim to extensive offshore jurisdiction-Brazil
to a 200 mile territorial sea and Canada to a 100 mile pollution
safety zone.24 At the same time, news of the interagency dispute
was leaking to Congress and the press.25 The Senate Interior and
Insular Affairs Committee was threatening to hold hearings which
would have exposed the interagency dispute and to issue a report
on its own in the absence of a prompt Presidential decision.26
23. Hearings, pt. II, at 399. On the operation of these two power cen-
ters in the White House, see: Semple, Nixon's Style as Boss Combines
Desire for Order and Solitude, New York Times, Jan. 12, 1970, at 1.
24. Secret Crisis, Wall Street Journal, March 20, 1970, at 1.
25. Examples include: Oceans of Oil, Nat. Observer, - (1970); Lan-.
dauer, supra note 22; Orr, supra note 22.
26. Unwilling to have the agency dispute aired publicly, the White House
sent John Whittaker to ask Senator Metcalf for more time to reach a uni-
fied Government position. Senator Metcalf agreed to postpone the hearings
from April 8 to April 22. The intra-White House disagreement, however,
was not easily resolved and on April 17, Senator Metcalf was once again
asked to delay the hearings. The Senator agreed but made it clear that in
the absence of a Presidential decision, his Subcommittee would issue a
report on its own. In a letter dated April 28, Kenneth BeLieu, Deputy
Assistant to the President, pledged that the Administration would present
a unified position to the subcommittee on May 27. Senator Metcalf speak-
ing on the Seaward Limit of our Legal Continental Shelf, Hearings, pt. II
at 423.
483
PAGENO="0275"
269
The challenge, therefore, was to prepare an options memoran-
dum for the President that was acceptable to both Ehrlichman and
Kissinger. The NSC staff drafted a series of memorandum for
review and comment by the domestic affairs staff. Of paramount
concern to Mr. Ehrlichman in the first drafts was the NSC's omis-
sion of the original State Department position as one of the options
to go to the President. It was that position, in Mr. Ehrlichman's
view, that offered the best compromise between domestic and for-
eign policy considerations. The Defense Department position did
not ensure national control over the valuable petroleum resources
of the U.S. continental margin. The Interior Department position,
on the other hand, ignored the problem of creeping jurisdiction.
And, in a contest between the Richardson and the first State De-
partment positions, Mr. Ehrlichman preferred the latter since it
recognized the inherent legal rights of states to the resources of
their continental margins.
The Ehrlichman views were taken into account in the final ver-
sion of the option paper that was sent to the President over Mr.
Kissinger's signature at the end of April. The NSC staff, however,
was responsible for the structuring of the memorandum, giving it
an obvious advantage in determining the President's decision.
After setting out the four agency positions and their rationales and
after explaining Mr. Ehrlichman's support for the original State
Department, the Kissinger memorandum concluded with the rec-
ommendation that the President choose the Defense or the Rich-
ardson option. The Richardson, position thereby became the ob-
vious middle position, and it w~s that policy that was ultimately
adopted by the President.
Following months of delay while the issue made its way to the
White House, the President's decision was taken after only brief
consideration and on the basis of a carefully constructed set of
options. Once President Nixon selected the Richardson option, the
"NSC system" again took over. In cooperation with the State
Department, the victorious agency, the NSC staff drafted a Na-
tional Security Decision Memorandum conveying the President's
decision to the heads of all interested federal agencies. The NSDM
not only outlined the principles that were to govern a prospective
treaty to be submitted to the United Nations Seabed Committee,
but it also specified that the State Department would be respon-
sible for preparing the treaty, the U.S. negotiating position, and the
necessary legislative measures, in coordination with the Depart-
ments of Defense and Interior.
The stipulation that the State Department coordinate its efforts
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to negotiate a Seabed Treaty with both Interior and Defense
merely confirmed the fact that the NSC system reserved all critical
foreign policy issues for White House decision. From the time of
the June 1969 National Security Study Memorandum, the State
Department had been effectively precluded from making an inde-
pendent decision on the seabed regime without the agreement of
all affected agencies. The January 1970 meeting of the Under
Secretaries Committee was simply one further step in the progress
of the decision to the White House. Elliot Richardson, Chairman
of the Committee, did not have the authority under the NSC sys-
tem to impose a decision. His recommendation simply went to the
President as one of several options advanced by the dissenting
agencies. The options as they reached the President were care-
fully structured and articulated by Mr. Kissinger and his staff,
with the intervention in this instance of Mr. Ehrlichman. At the
top of the pyramid was the President, advised by Mr. Kissinger to
adopt the Richardson or the Defense option. The success of the
Richardson position lay as much in its presentation as in its intrin-
sic merit or persuasiveness. No doubt Mr. Kissinger's and Mr.
Nixon's personal rapport with Mr. Richardson also played an im-
portant role in their choice.
While the NSC options system reserved the key or disputed ocean
policy decisions for the White House, the implementation of those
decisions was left to lower level bureaucrats. Important power,
thereby, remained in the hands of the technicians who had mas-
tered the complex legal, geological, strategic and economic ocean
issues.
The President's Seabed Policy
With the issuance of the May 22 NSDM, the task of announcing
and implementing the President's decision returned to the bureau-
cracy. The "President's seabed policy" was announced by John
Stevenson, the Legal Advisor, and Ronald Zeigler at a White House
press conference on May 23.27 The public was told that the Presi-
dent was calling for the renunciation of national claims to seabed
resources beyond the depth of 200 meters and for the establishment,
27. White House Press Release, News Conference #607; also in, 62 D~T.
STATE BULL., - (1970).
485
PAGENO="0277"
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beyond this point, of an international regime to govern the exploi-
tation of seabed resources. Two types of machinery would be
created to authorize resource exploitation in this international sea-
bed area. To the edge of the continental margin, an area called the
"trusteeship zone," the coastal state would administer exploitation
as a trustee for the international community. In return the "coastal
state would receive a share of the international revenues from the
zone in which it acts as trustee." Beyond the continental margin,
international machinery would authorize and regulate exploitation
and would collect "substantial mineral royalties" to be used for
economic assistance to developing countries. In addition the inter-
national regime would formulate "rules to prevent unreasonable
interference with other uses of the ocean, to protect the ocean from
pollution, to assure the integrity of the investment necessary for
such exploitation, and to provide for peaceful and compulsory set-
tlement of disputes."
The May 23 statement, Elliot Richardson informed the Congress,
represented only an initial "approach to dealing with the exploi-
tation of the continental margin." The President promised that the
Executive would introduce more specific proposals at the U.N. Sea-
bed Committee meeting scheduled in August 1970.28 On August 3,
the first day of the session, the United States presented a "United
Nations Draft Convention on the International Seabed Area." Five
officials from the Departments of State, Defense and Interior had
drafted the seventy-eight articles and five appendices of the Con-
vention. The ad hoc drafting committee included Bernard Oxman,
of the Legal Advisor's Office, chairman, Louis Sohn and Stuart
McIntyre of the State Department, Leigh Ratiner of the Defense
Department, and Vincent McKelvey of the Interior Department.
This lengthy and complex document, rather than the President's
May 23 statement, quickly became the focus of domestic opposition
to a narrow offshore resource zone. While the President's an-
nounced decision was not considered a legitimate object of attack,
its implementation in the draft Convention was.
Even before its presentation at the Seabed Committee, private
industry,29 the Congress3° and the Interior Department had stren-
28. Hearings, pt. II, at 30-35.
29. In the week of July 9-14 representatives of the National Petroleum
Council, American Petroleum Institute, Standard of New Jersey, Kenne-
cott Copper, Union Carbide, and Deep Sea Ventures met with the drafting
committee to review early versions of the draft treaty. Most vocal in its
opposition to its provisions was the petroleum industry. 12 OcE~u~T SCIENCE
NEWS, 1 (1970).
30. On June 29 Senator Metcalf requested that a copy of the draft
treaty be sent to his Subcommittee and subsequently expressed grave
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uously opposed many of the draft treaty's provisions and had suc-
ceeded in securing some modifications. Then with the draft treaty's
tabling at the Geneva meeting, the domestic contention over the
extent of the Continental Shelf merged with United Nations debate
over the breadth of an economic resource zone.
U.S. TERRITORIAL SEA, STRAITS AND FISHERIES POLICY
The principal strategy behind the U.S. seabed proposal was to
encourage other nations to adopt a narrow Continental Shelf policy.
It was also hoped, at least by Defense Department officials, that the
seabed proposal would have a positive effect on separate negotia-
tions then underway regarding the breadth of the territorial sea,
international straits and fisheries. The territorial sea, straits and
fisheries issues had been linked together since 1967 and 1968 when
they were first discussed with the Soviet Government and then
with U.S. and Soviet allies. Within each Government agency the
issues had been handled as a package by a group of officials distinct
from that dealing with seabed policy.
Among the three issues, those of strategic importance-straits
and the territorial sea-were accorded primacy. Fisheries was in-
corporated within the policy package as a tradeoff for concessions
on straits and territorial sea and because there was no policy objec-
tion raised by the fishing industry.31 The United States position
announced in 1970 was that it was prepared to recognize a twelve
mile territorial sea only if freedom of transit through and over
international straits were to be guaranteed by international agree-
ment.32 If the breadth of the territorial sea were universally ex-
doubts to Secretary of State Rogers about many of its provisions. The
Subcommittee urged that it be revised and not be presented at Geneva.
In an effort to accommodate these objections, officials from the Depart-
ments of State, Defense and Interior met in executive session on July 27
with members of the Subcommittee. Recommendations made in the text
of the draft included a downward revision of the percentage of fees to
be paid to the international trusteeship area, the reduction of status of
the draft treaty to a working paper, and the addition of a stipulation that
the appendices were included solely by way of example. Hearings, pt. II,
at 25; Orr, Soviet, Latin. Opposition Blocks Agreement on Seabeds Treaty,
C.P.R. NAr'L 3. 197, Sept. 1970; The U.S. Should Not Present a Seabed Treaty
at Geneva, 12 OCEAN SCIENCE NEWS 1 (1970).
31. Loring, The United States-Peurviart `Fisheries' Dispute, 23 STAN.
L. REV. 429 (1971).
32. Address by John R. Stevenson to Philadelphia Bar Association and
487
PAGENO="0279"
273
tended to twelve miles, 116 international straits would be covered
by territorial waters. In these straits high seas corridors would
cease to exist and transit would be subject to the regime of inno-
cent passage. To avoid the application of coastal state discretion
to these vessels, it was necessary to guarantee the right of freedom
of transit.
Although the Soviets adopted a twelve mile territorial sea in
1927, they have since become a maritime power with global inter-
ests. They have therefore fully supported the U.S. position on
freedom of transit through and over international straits. The in-
terests of the Japanese and Soviets, however, diverge from those
of the United States over fisheries. The second and third largest
fishing nations of the world, respectively, the Japanese and Soviets
were not in accord with the preferential fishing rights the United
States was prepared to grant to coastal nations dependent on their
coastal fisheries. United States proposals on fishing, however, were
designed to appease coastal rather than distant water fishing inter-
ests. By the late 1960's nine Latin American nations had claimed
zones of 200 miles to protect fishery resources off their shores. To
halt the trend toward such claims and to induce these na1~ions to
roll back established claims, the United States proposed that spe-
cial preferential rights over offshore living resources be granted to
coastal nations. According to the concept of preferential rights, a
coastal fishing nation would be able to reserve a portion of the
catch off its shores for its own fishermen.~3 The amount would be
determined by the coastal state's economic dependence on or extent
of investment in offshore fisheries. At the insistence of the De-
partment of Defense, this proposal deliberately avoided the con-
cept of a fishing zone that might subsequently evolve into a fixed
area of expanded coastal state jurisdiction.54
Among fishing nations, the United States ranks sixth, and it
fishes off its own coasts as well as those of other nations. U.S. pro-
posals with regard to preferential rights, therefore, were not detri-
mental to all U.S. fishing interests. They were, however, primarily
determined by external rather than domestic considerations-by
the need to balance Soviet and Japanese distant water fishing
Philadelphia World Affairs Council, Feb. 18, 1970, 62 DEPT. STAT1~ BULL.
314 (1970); 62 DEPT. STATE BULL. 343 (1970); U.S. Department of Defense,
"United States Policy with Respect to Territorial Seas", Department of
Defense Press Release, February 25, 1970.
33. Ratiner, United States Ocean Policy: An Analysis, J. OF MARITUVEE L.
AND COMM. 248 (1971).
34. Hearings on Territorial Sea Boundaries Before a Subcomm. on Sea-
power of the House Comm. on Armed Services, 90th Cong., 2d Sess. 9291
(1970).
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interests with the coastal interests of developing countries and by
the need to persuade the latter to accept a twelve mile territorial
sea and freedom of transit through straits.
Reasons for the early lack of policy input by the U.S. fishing
industry were twofold. First, the fishing industry, unlike the
petroleum industry, simply lacked the knowledge that discussions
were underway within and between governments and that the
Department of Defense was determining the fisheries position in
exchange for concessions on straits and the territorial sea. The
second problem hampering industry policy input was that of inter-
nal differences within the industry between coastal and distant
water fishing interests. With the public announcement of U.S.
policy on straits, territorial seas, and fisheries of February 18, 1970,
the industry was first apprised of governmental discussions. Al-
though the Stevenson reference to preferential rights was quite
sketchy in his speech to the Philadelphia Bar Association, it was
sufficient to alarm the distant water fishing segments of the U.S.
fishing industry. The reaction of the distant water fishermen to
the preferential rights approach was analogous to that of the Soviet
Union and Japan. The U.S. coastal fishermen, on the other hand,
shared the interests of developing coastal countries in obtaining
preferential rights to offshore resources. Neither segment of the
industry, however, appreciated being excluded from the policy
deliberations. Despite intra-industry differences, they recognized
that if they were to have a say in determining U.S. fisheries policy,
they would have to act in concert.35
The first sign of a tenuous resolution of industry differences was
visible in the adoption of the "species approach" presented by the
U.S. Government to the U.N. Seabed Committee on August 3,
1971.56 In this approach, the concept of preferential rights for the
coastal state was applied only to stocks that were adjacent to the
coast or that spawned in fresh water. Highly migratory oceanic
stocks were excluded, thereby protecting the U.S. tuna fleets fish-
35. 117 CoNG. REc. 21,155 (daily ed. Dec. 13, 1971) (remarks of Senator
Hatfield); 117 CoNG. REc. 19,908 (daily ed. Nov. 30, 1971) (remarks of
Senator Hatfield); 117 CONG. REc. 13,076 (daily ed. Dec. 7, 1971) (remarks
of Congressman Pell.
36. U.N. Doe. A/AC.138/SC.II/L.4 (30 July 1971); 10 INT'L LEGAL
MATERIALS 1018 (1971).
489
PAGENO="0281"
275
ing off the west coast of Latin, America. The U.S. proposed that
the actual fishing capacity of a coastal state be used to determine
the extent of its preferential rights in an offshore fishery. As that
capacity expanded, so would its, preferential rights. This posed an
obvious problem with regard to phasing out other national fishing
efforts in the area. In its approach to historic fishing rights, the
U.S. "species approach" of 1971 resembled the 1970 U.S. seabed pro-
posal. Both envisioned a strong role for international and regional
organizations in the regulation of high seas resources in order to
reduce pressure for unilateral extension of coastal state control
over offshore resources. Provisions for international cooperation
in the U.S. fishing proposal included inspection and dispute settle-
ment as well as joint conservation measures to prevent overfishing.
Only if all other measures failed was unilateral state action deemed
acceptable.
The elaboration of the species approach in the U.S. August 1971
statement was one facet of a speech dealing with international
straits and territorial seas as well. Whereas the fisheries segment
of the speech showed an evolution from previous statements and
reflected an increased industry input, the straits and territorial
waters position remained essentially unchanged reflecting a con-
sistent Defense Department support for these policies. The United
States was prepared to accept a twelve mile limit if the right of
free transit were provided for all vessels and aircraft through
and over international straits overlapped by territorial seas. Mr.
Stevenson stressed that free transit was a "limited but vital right"
and added that the right was merely one of "transiting the straits,
not of conducting any other activities." In a further elaboration of
U. S. views, Stevenson stipulated~ that the coastal state could desig-
nate corridors suitable for transit, and international traffic safety
regulations would be agreed upon. The right of a vessel to transit,
however, could not be left to the discretion of a coastal state.
UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA
The linking of the issues of straits, territorial sea and fisheries
in the U.S. statement of August 3, 1971, reflected the official U.S.
policy of keeping Continental Shelf and seabed issues separate
from the other law of the sea questions. The Government thereby
hoped to pre~erve its packages of tradeoffs-a narrow Continental
Shelf for a generous seabed regime and freedom of transit through
and over international straits in exchange for a twelve mile terri-
torial sea with preferential coastal state fishing rights in the area
beyond.
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In the course of 1971 and 1972 this division of issues, and the
tradeoffs thereby implied, gradually broke down.37 A combination
of pressures was working against the official U.S. grouping of trade~
offs. First, domestic interests were becoming more active in the
formulation of ocean policy. As the involvement of these domestic
industries increased, the priority formerly accorded U.S. strategic
considerations over resource interests decreased. Secondly, and at
cross purposes with domestic pressures, foreign nations were press-
ing for a single international conference to handle all law of the
sea issues.38 Developing countries were hopeful that by combining
and trading on all law of the sea questions, they would gain greater
concessions from the maritime nations.
The Domestic Perspective
U.S. bureaucratic machinery for ocean issues was consolidated in
early 1970. Separate staffs for Continental Shelf and seabed issues
on the one hand and straits, territorial seas and fisheries on the
other were merged into single offices in the Departments of State,
Defense and Interior. A central policy body designated as the
Inter-Agency Law of the Sea Task Force was officially established
on February 4 and held its first meeting on February 17 under the
chairmanship of John Stevenson. Mr. Stevenson also headed the
Delegation to the U. N. Seabed Committee. The Inter-Agency Task
Force comprises representatives of all affected Federal agencies
and bureaus including the Departments of State, Defense, Interior,
Commerce, Treasury, Justice, Transportation, the National Secu-
rity Council, the National Science Foundation, the Central Intelli-
gence Agency, the Office of Management and Budget, and the U.S.
Mission to the United Nations.
37. As noted above, the division of issues was not always observed in
practice by policy participants. When Defense Department officials
pressed for a generous seabed regime to encourage acceptance of a narrow
Continental Shelf, they hoped at the same time to discourage other coastal
state extensions of jurisdiction and to have the straits proposal favorably
received.
38. G.A. Res. 2574 A (XXIV) (1969), called on the Secretary General
to poll the membership on the desirability of calling a conference to discuss
all law of the sea regimes. Opposed by the U.S. and the Soviet Union,
it passed by a vote of 65 in favor, 12 opposed and 30 abstaining. G.A.
Res. 2750C (XXV) (1970), 10 INT'L LEGAL MATERIALS 224 (1971), called
for a third U.N. Conference on the Law of the Sea and identified seabed,
straits, territorial seas and fisheries issues as potential agenda items.
- 491
PAGENO="0283"
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In response to strong industry pressure, an Advisory Committee
on the Law of the Sea was formed in early 1972. The official pur-
pose of the Advisory Committee has been to advise the head of the
United States Delegation to the U.N. Seabed Committee. The
membership of sixty is divided into eight subcommittees: petro-
leum, hard minerals, international law and relations, marine sci-
ence, fisheries, international finance and taxation, marine environ-
ment, and maritime industries. One member each from the petro-
leum, hard minerals, marine science and international law and
relations subcommittees and two from the fisheries subcommitte
are given official status on the U.S. delegation to each session of
the U.N. Seabed Committee. The marine environment subcom-
mittee was officially represented for the first time at the July-
August 1973 session. Through this institutional structure and by
means of additional pressures through Congressional hearings and
legislation and informal contacts, each of the industry interest
groups has sought to make its interests felt and to participate
actively in the policy process.
The effect on the military interest of the increased participation
of other interests has been to circumscribe the ease with which
Defense Department officials had heretofore furthered strategic
interests by determining policy in other areas. Whereas the mili-
tary previously intervened in seabed as well as fisheries policy, it
is largely restricted to policy inputs relating directly to military
mobility-that is to straits and territorial sea boundaries affecting
navigation. This not only results from the increased policy partic-
ipation by other interests but is also in keeping with extensive
changes in Defense Department personnel. Responsibility for law
of the sea policy in the Defense Department lies no longer with the
Legal Office but is officially vested in the International Security
Agency. In keeping with overall trends in the Nixon Administra-
tion's Defense Department, the military has reasserted its suprem-
acy over civilian offices hand1ing~ law of the sea questions and the
Office of the Joint Chiefs of Staff plays an active role in decision-
making.
Substantial changes have also occurred in the policy behavior of
the other major protagonist over the Continental Shelf boundary,
the petroleum industry. After a strong blast at the 1970 U.S. Draft
Treaty on the Seabed, the petroleum industry lapsed into virtual
silence on the subject of the seabed regime and the boundaries of
national jurisdiction. That silence was first broken in the NPC's
summary report on the "U.S. Energy Outlook" of December 1972.
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Under recommendations for a U.S. Energy Policy the NPC suggests
that ". . . any proposed international treaty dealing with seabed
mineral resources should confirm the jurisdiction of coastal nations
over. . . the mineral resources of the entire submerged continental
mass off their coasts."39 In this recommendation, the NFC no
longer insists that national jurisdiction over these resources is "ex-
clusive" and no longer calls for an immediate unilateral U. S. dec-
laration of jurisdiction. Instead the NPC recommends that an
international treaty ". . . should provide for security of investment
made in resource development in areas of the continental margin
pursuant to agreement with or license from the coastal state." To
assure these investments, the NPC recommends referral of disputes
in the area ". . . to an international tribunal for compulsory objec-
tive decision." Support for international agreement on compulsory
dispute settlement for the continental margin is a significant move
away from the notion of exclusive coastal state jurisdiction, al-
though it is still far from acceptance of a strong international au-
thority in the area.
This shift in industry position, however limited, may be traced
in large measure to the rapidly changing international and domestic
environment in which petroleum policy is formulated. A major
shift in the international environment has been the growing diffi-
culty of dealing with producing nations that operate as a bloc
through the Organization of Petroleum Exporting Countries
(OPEC). OPEC successes in increasing the revenues to producing
countries, buttressed by threats of expropriation, have no doubt
undermined earlier industry confidence that it is safer and more
profitable to deal bilaterally with foreign governments than with
an international regime.
The domestic environment of petroleum policy has also shifted
with the advent of the recently discovered "energy crisis." Given
present projections of U.S. petroleum demand and domestic supply,
it is more difficult to assert that the United States must have juris-
diction over its entire continental margin. Estimated reserves off
the U.S. alone do not begin to satisfy the projected demand for
energy. In the future, the United States will be importing vast
quantities of petroleum from the margins as well as continents of
39. N.P.C. SUMM REP., U.S. E~GY OuTLooK, at 79 (Dec. 1972).
493
PAGENO="0285"
279
other nations. This raises the question for petroleum policy of
whether those imported supplies would be more secure if they were
recovered from areas controlled by an international regime, or
from areas under national jurisdiction.
An additional policy complication stemming from the "energy
crisis" relates to petroleum shipping: with increased imports to
the U.S., the petroleum industry will be in the same proverbial
boat as the military. Greater quantities of petroleum will be
shipped across the world's oceans and through the world's straits.
Like the military, the petroleum industry will be adversely affected
by coastal state pollution and resource controls that threaten to
hinder navigation or restrict straits transit. Canadian legislation
on Arctic waters effectively closing the northwest passage to the
Manhattan. is a sample of pollution restrictions that may be ex-
pected in the future.
As the ocean interests of the petroleum industry become more
diverse, a single policy is increasingly difficult to elaborate.
Whereas domestic sectors of the maj or petroleum companies for-
merly determined ocean policy in cooperation with the Interior
Department and its National Petroleum Council, the major firms
and more international sectors of the industry, with close relations
to the Department of State, are playing an increasing role. The
involvement of new segments of he industry has been reflected in
changes in personnel-the disappearance of the colorful, outspoken
oil man lobbying conspicuously through the Interior Department
and the appearance of the oil diplomat, working skilLfully and
quietly with the Department of State. It is also apparent in the
willingness evidenced by the industry to accommodate its shipping
interests to reasonable coastal state pollution controls.
Since the beginning of U.N. negotiations on the seabed, the hard
minerals industry has also adjusted its ocean policy to a changing
domestic and international environment. By 1971, several mining
firms were making substantial investments in developing technol-
ogy for the recovery of manganese nodules. Surprised by the far
reaching provisions of the U. S. Draft Seabed Treaty, the industry
responded with a vigorous approach to the U. S. Congress. The
American Mining Congress, at the request of Senator Metcalf,
drafted legislation for a. seabed regime that would be more congen-
ial to mining interests. Introduced originally as S. 2801 on No-
vember 2, 1971 (H. R. 13904, March 20, 1972), the bill lapsed with
the 92nd Congress. Identical legislation, however, has already been
reintroduced in the 93rd Congress (H R 9, January 3, 1973, S 1134,
494
PAGENO="0286"
280
[voL. 10: 467, 1973] TJnited States Oceans Politics
SAN DIEGO LAW REVIEW
March 8, 1973) ~40 The industry-sponsored legislation would au-
thorize U. S. firms to mine the deep seabed under a national licens-
ing system until the establishment of an international regime. It
provides for reciprocal recognition of similar practice by other
countries and for the establishment of a fund drawn from income
taxes with aid directed to less developed reciprocating states.
Opposition to this legislation has been voiced, both domestically
and internationally. Much of the domestic protest centers on the
provisions for a U. S. Government guarantee to reimburse the li-
censee for any loss of investment or for increased costs incurred in
a forty year period after issuance of the license resulting from re-
quirements or limitations imposed by a subsequently agreed inter-
national regime. Foreign as well as domestic opponents point out,
moreover, that enactment of this legislation could prejudge the
character of the international regime to be established through
negotiations in the Seabed Committee. Concern over such an out-
come is increased by knowledge that in the absence of timely agree-
ment on a suitable international regime, the State Department
would begin at once to formulate a legislative approach on a con-
tingency basis.4'
The increased attention devoted to the problems of the mining
industry is reflected in the number of Congressional hearings42 and
the corresponding inputs required of the Executive branch. The
resources and attention of Interior Department officials which
were formerly devoted to petroleum are now largely concentrated
on the hard minerals industry. This is due to a combination of
factors: the advent of new Interioi~ Department personnel, the
shift away from Interior of petroleum industry attention, the em-
phasis on the deep ocean floor as opposed to the continental margin,
and the heightened concern of the hard minerals industry and its
40. See Laylin, The Law to Govern Deep Sea Mining Until Superseded
by International Agreement, 10 SAN DIEGO L. REv. 433 (1973); Knight, The
Deep Seabed Mineral Resources Act_A Negative View, 10 SAN DIEGO L.
REV. 446 (1973); Appendix A thereto, 10 SAN DIEc~o L. REv. 461 (1973).
41. Letter from Charles N. Brower to Senator Fulbright, March 1, 1973,
p.5.
42. House Merchant Marine and Fisheries Comm., May, 1972; Senate
Interior and Insular Affairs Comm., June, 1972; Senate Commerce Comm.,
October, 1972; House Merchant Marine and Fisheries Comm., March 1 and
April 3, 1973; House Foreign Affairs Comm., March 21 and March 27, 1973.
495
PAGENO="0287"
281
Congressional allies with the direction of U. S. Government policy
in the law of the sea negotiations.
The fishing industry is also faring better than it was in 1971 and
it too has resorted to Congressional backing to gain a voice in the
ocean policy process. Using Congressional leverage, the industry
was accorded two seats on the U. S. Delegation to the U. N. Seabed
Committee. While the extra seat reflects sharp industry differ-
ences between coastal, distant water and anadromous interests, the
desire for a policy input has on the other hand buttressed the alli-
ance of U. S. fishing groups. This precarious coalition, maintained
through frequent, albeit heated, meetings, played a direct role in
the policy shift from a preferential rights approach to the species
approach currently espoused by the U. S. Government. The dura-
bility of the present species apprŕach, however, is uncertain given
strong coastal fishing pressures, both domestic and foreign, toward
the adoption of a 200 mile resource zone. The New England Gov-
ernors Conference called for 200 mile legislation in 1971 and several
states have since unilaterally enacted such measures.43 Through
Congressional and state activities, the industry has acquired a voice
in policy. It has also cemented relations with appropriate Execu-
tive agencies: the State Department's Special Assistant to the
Secretary for Fisheries and Wildlife and Commerce Department's
National Marine Fisheries Service located in NOAA.
Brief mention must be made of the evolving marine science input
into ocean policy. With the creation in 1972 of a Freedom of
Science Task Force within the Ocean Affairs Board of the National
Academy of Science, the marine scientist first began to take a
regular and direct part in the policy process. The support of
prestigious domestic and international scientific bodies was enlisted
and the scientific interest made its needs felt regularly through its
advisory seat on the U.S. delegation to the U. N. Seabed Com-
mittee. Then in 1973, the marine scientist gained a full-time
representative with the National Science Foundation's creation of
a position to represent marine science within the Government and
on the U. S. Delegation. In addition, the State Department's
Coordinator of Ocean Affairs continues to represent the scientific
interest.
Coincident with the full time participation of the National
Science Foundation in law of the sea negotiations at the March/
April 1973 session has been the renewed interest of the Depart-
43. SPORT FISHING INSTITUTE, SF1 BULL., Marine Fisheries and Law of the
Sea, at 1, Nov.-Dec., 1972.
496
PAGENO="0288"
282
[voL. 10: 467, 1973J United States Oceans Politics
SAN DIEGO LAW REVIEW
ments of Transportation and Treasury. Transportation officials
are concerned with non-military ocean transport and the U. S.
Coast Guard's interests. The Treasury Department view, going
beyond revenue considerations, is that overall U. S. ocean policy
must be based on sound economic concepts and must take into ac-
count benefits to the economy as a whole.
The net effect of the direct policy input of all interests affected
by ocean policy is difficult to discern at present. An early result,
visible first in U. S. statements made at the August 1972 session, was
a trend toward parity between the several U. S. interests-most
notably between strategic and resource interests. While there
had been no change in the firm U. S. position on straits and ter-
ritorial sea breadth, Mr. Stevenson's August 10 speech laid a new
emphasis on the national interest in ocean resources. Also at the
August 1972 session (only a year after the U. S. had introduced an
early version of the species approach stressing international regula-
tion of all fishing) the Government indicated that it was prepared
to move toward coastal state management of coastal and anadrom-
ous species.
Similarly, with regard to mineral resources, the U. S. position
has evolved toward a coastal state approach as a result of more
2direct interest group involvement. Most significantly, the Govern-
ment no longer contemplates limiting national jurisdiction to the 200
meter isobath. In response to strong domestic and international
pressures in favor of a broad Continental Shelf or some form of eco-
nomic resource zone, there was movement in the 1972 United
States position toward accepting an intermediate zone of juris-
diction. Although the U. S. Government has not submitted any
articles officially superseding the August 1970 draft treaty position
on the Continental Shelf and seabed regime, a careful reading of
subsequent U. S. policy statements reveals a changed attitude.
In an area extending to the outer edge of the continental margin
or to some agreed distance from shore, the United States now says
that it is prepared to accept coastal state regulation of the ex-
ploitation of mineral resources subject to international standards
and compulsory settlement of disputes. Other uses of the area
are not to be restricted and pollution controls are to be internation-
ally determined. Revenues from seabed resources would be shared
with the international community and foreign investment in the
area would be protected from expropriation.
497
PAGENO="0289"
283
Statements made at the March/April 1973 session in New York
elaborated existing positions. This may have been due in part to
the retirement of John Stevenson from Government and the result-
ing need for his successors to reaffirm continuity in the U.S. posi-
tion. John Norton Moore replaced Mr. Stevenson as head of the
delegation while Charles Brower chaired the Inter-Agency Task
Force on Law of the Sea. With the active participation of all ocean
users, further concessions or developments in U.S. policy have been
difficult at best. Given the very limited advances in the work of
the U.N. Seabed Committee, moreover, the Conference still appears
too distant to warrant the sacrifice of some domestic interests for
others. This situation remains highly fluid and might alter signifi-
cantly by the summer session Of the Seabed Committee in 1973. At
that meeting, new U.S. representatives will be present and increased
policy inputs by the agencies newly active-NSF, Transportation
and Treasury-may be expected. Mr. Stevenson will again head
the U.S. delegation and Mr. Moore will chair the Inter-Agency Task
Force.
International Perspective
The response of other governments to the seeming parity among
U.S. interests and to any policy shifts caused by new actors is dif-
ficult to predict. The negotiations are at an early stage where each
delegate is seeking to discover which interests other delegations are
or are not willing to compromise. Indeed a major purpose for
developing countries of combining all law of the sea issues in a
single conference was to increase the pressure for tradeoffs on the
maritime nations. By the August 1972 session of the Seabed Com-
mittee, the developing nations had succeeded in expanding the con-
ference agenda to twenty-five subjects.44 In the face of apparently
increasing parity among U.S. interests, however, the negotiations
will have to proceed much further before international pressures
for compromise will result in the sacrifice of some facets of the
U.S. position for the retention of others.
The success of developing nations in expanding the number of
44. In addition to the standard items of straits, territorial seas, fisheries,
the seabed regime, marine pollution and scientific research, some of the
new items include: land-locked countries, rights and interests of states with
broad shelves, rights and interests of shelf-locked states and states with
narrow shelves or short coastlines, regional arrangements, high seas,
archipelagos, enclosed and semi-enclosed seas, artificial islands and in-
stallations, the development and transfer of technology, dispute settle-
ment, zones of peace and security, archaeological and historial treasures
on the ocean floor and peaceful uses of ocean space.
498
23-317 0 - 73 - 19
PAGENO="0290"
284
[voL. 10: 467, 1973] United States Oceans Politics
SAN DIEGO LAW REVIEW
agenda items to be considered by the Conference may prove the
greatest obstacle to the progress of negotiations and ultimately to
the Conference itself. How the diverse agenda items will be pro-
cedurally considered remains in doubt as the last preparatory ses-
sion of the Conference begins in Geneva in July.
As of the March/April preparatory session, Subcommittees I
and III of the Seabed Committee were considering the seabed re-
gime and machinery, marine pollution and scientific research. All
other agenda items (such as the territorial sea, economic zone, pref-
erential rights, straits, fisheries, continental shelf) remained within
the purview of Subcommittee II. While the first and third Sub-
committees established thirty-three member working groups, Sub-
committee II had one ninety-one member working group of the
whole. Because the agenda items in Subcommittee II touch on the
critical issue of the extent of coastal state jurisdiction, no agreement
was possible on dividing the issues among smaller working groups.
And, given the interdependence of the various agenda items, the
work of the other subcommittees on the seabed regime, marine
pollution and scientific research will necessarily be hindered by
delays in the work of Subcommittee II.
Procedural dilemmas, of course, mask political differences. The
slow pace of Seabed Committee negotiations indicates the absence
to date of a willingness and/or ability to find legal formulae that
will adequately secure divergent political interests. Wide dispari-
ties in the member nations and in their resulting ocean interests are
far from reconciled. The early beginnings, however, of such a
reconciliation may be discerned in the draft articles embodying the
Santo Domingo principles on the patrimonial sea and the final docu-
ment of the Inter-American Juridical Committee. Whether the
Seabed Committee can build on these compromises will become
apparent in the July/August preparatory meeting.
499
PAGENO="0291"
%
19.6
19.4
15.1
8.7
9.4
8.2 t~D
7.1 ~x
5.6
TABLE 1
TOTAL FEDERAL MARINE SCIENCE PROGRAM AND PERCENT
OF TOTAL BY MAJOR PURPOSE: FYs 1966~71a
Major Purpose
Year
1966
1967
1968
Estimated
1969
Estimated
1970
Estimated
1971
$ %
$ %
`$
%
$ %
$~ %
$
National Security
Oceanographic Research
Ocean Exploration, Mapping,
Charting and Geodesy
Fishery Development and
Seafood Technology
Development of Coastal Zone
Environmental Observation
-and Prediction- -~--
Transportation
General Purpose Ocean
Engineering
International Cooperation and
Collaboration
Health
Non-living Resources
Education
National Data Centers
125.4 37.6
71.6 21.5
32.3 9.7
38.7 11.6
19.9 6.0
13.7 4.1
10.4 3.1
3.5 1.0
5.1 1.5
5.1 1.5
3.8 1.1
2.2 0.7
1.7 0.5
161.8 36.9
61.5 14.0
77.4 17.7
38.1 8.7
21.4 4.9
24.4 5~6
11.9 2.7
14.8 3.4
7.1 1.5
6.6 1.5
7.2 1.6
4.0 0.9
1.8 0.4
119.9
78.1
75.7
40.1
27.6
28.8
11.1
19.2
9.6
5.3
7.3
7.0
2.1
27.8
18.1
17.5
9.3
6.4
6.7
2.6
4.4
2.2
1.2
1.7
1.6
0.5
127.2 27.4
78.4 16.9
79.7 17.2
45.3 9.8
32.1 6.9
-~ -
33.7 7.3
16.7 3.6
19.1 4.1
8.4 1.8
6.0 1.4
8.0 1.7
6.7 1.4
2.2 0.4
127.0 24.7
78.4 15.2
89.9 17.5
49.8 9.7
43.5 8.5
39.8 7.7
23.5 4.5
24.8 4.8
10.0 1.9
5.4 1.0
10.5 2.4
8.2 1.6
2.6 0.5
102.0
101.5
79.7
45.5
48.9
-~-~
43.0
37.3
29.1
8.8 1.7
5.9 1.1
11.4 2.2
6.9 1.3
3.1 0.6
Total
333.4 100.0
438.0 100.0
431.8 100.0
463.4 100.0
513.3 100.0
522.5 100.0
Note: All dollars are in millions, all percentages are of yearly totals.
a For FY data 1966-70 see the following publications by the U.S. National Council on Marine Resources and Engi-
neering Development, Government Printing Office, Washington, D.C.
1966: Marine Science Affairs-A Year of Transition, February, 1967, p. 105.
1967: Marine Science Affairs-A Year of Plans and Progress, March, 1968, p. 171.
1968: Marine Science Affairs-A Year of Broadened Participation, January, 1969, p. 205.
1969: Marine Science Affairs-Selecting Priority Programs, April, 1970, p. 202.
1970: Marine Science Affairs, April, 1971, p. 13.
For FY 1971 see: U.S. Office of Science and Technology, The Federal Ocean Program, Government Printing Office, Wash-
ington, D.C., April, 1972, p. 106.
PAGENO="0292"
TABLE 2
TOTAL FEDERAL MARINE SCIENCE PROGRAM BY DEPARTMENT
AND INDEPENDENT AGENCY: FYs 1966~71a
Agency
1966
1967
1968
Estimated
1969
Esti
1
mated
970
Estimated
1971
$
%
$
%
$
%
$ %
$
%
$ %
Department of Defense
Department of Interior
National Science Foundation
Department of Commerce
Department of Transportation
Atomic Energy Commission
Department of Health, Education
and Welfare
State Department
Smithsonian Institution
Agency for Internat'l Development
National Aeronautics and Space
Administration
Environmental Protection Agency
174.9
56.5
47.7
25.0
8.1
8.3
5.4
5.0
1.5
0.1
0.9
52.8
15.2
14.4
7.5
2.4
2.5
1.6
1.5
0.4
b
b
277.7
64.1
24.8
35.3
8.3
11.3
7.7
5.1
1.6
2.0
0.1
63.4
14.6
5.7
8.0
1.9
2.6
1.8
1.2
0.4
0.5
b
240.6
70.5
38.1
33.6
15.4
13.8
6.5
6.6
1.9
3.0
1.8
55.7
16.3
8.6
7.8
3.6
3.2
1.5
1.5
0.4
0.7
0.4
259.7 56.0
80.8 17.4
34.9 7.5
38.1 8.2
19.8 4.3
10.6 2.3
7.3 1.6
6.9 1.5
1.9 0.4
1.5 0.3
1.9 0.4
263.7
29.2
30.3
118.3
23.4
9.5
6.5
7.7
1.9
2.3
2.3
18.2
51.2
5.6
6.4
23.1
4.5
1.9
1.3
1.5
0.3
0.4
0.4
3.4
231.2 44.2
27.5 5.3
49.4 9.5
139.3 26.7
34.3 6.6
7.7 1.4
6.0 1.1
8.3 1.6
2.8 0.6
3.3 0.7
12.2 2.3
Total
333.4
100.0
438.0
100.0
431.8
100.0
463.4 100.0
513.3
100.0
522.0 100.0
Note: All dollars are in millions, all percentages are of yearly totals.
a For FY data 1966-70 see the following publications by the U.S. National Council on Marine Resources and Engineer-
ing Development, Government Printing Office, Washington, D.C.
1966: Marine Science Affairs-A Year of Transition, February, 1967, p. 109.
1967: Marine Science Affairs-A Year of Plans and Progress, March, 1968, p. 176.
1968: Marine Science Affairs-A Year of Broadened Participation, January, 1969, p. 211.
1969: Marine Science Affairs-Selecting Priority Programs, April, 1970, p. 20.1.
1970: Marine Science Affairs, April, 1971, p. 13.
For FY 1971 see: U.S. Office of Science and Technology, The Federal Ocean Program, Government Printing Office, Wash-
ington, D.C., April, 1972, p. 106.
b Less than 0.1%.
cxD
PAGENO="0293"
287
The Law to Govern Deepsea Mining Until
Superseded by International Agreement
JOHN G. LAYLIN*
At present there is no international law, conventional or cus~
tomary, limiting the freedom to recover the mineral resources of
the seabed beyond coastal state jurisdiction,' nor is there yet any
United States statutory or common law limitation. A United
States company may invest millions of dollars finding deposits of
manganese nodules and millions more in setting up mining systems
and treatment plants adapted to the characteristics of the nodules
in this location, only to see others in the exercise of their freedom
rushing in and taking the nodules it counted on mining. The United
States has no right to legislate against such encroachment by per-
* A.B. Cornell (1925), LL.B., Harvard (1928); niember, New York
and District of Columbia Bars; the Council, and Committees on Ocean-
ography and Law of Treaties, Section of International and Comparative
Law, American Bar Association; Committee on Deep Sea Mining and Ex-
ecutive Council of the American Branch, International Law Association;
American Society of International Law. Mr. Laylin holds the following
honors and awards: Commander, Order of the Lion, Finland (1949);
Commander, Order of Dannebrog, Denmark (1958); Sitara-I-Pakistan,
Pakistan (1961); Comendador of Order San Carlos, Columbia (1967).
1. Other than the obligation that this freedom "shall be exercised by
all States with reasonable regard to the interests of other States in their
exercise of the freedom of the high seas." Convention on the High Seas,
signed 29 April 1958, effective 30 September 1962.
May 1973 Vol. 10 No. 3
433
PAGENO="0294"
288
Sons not subject to its jurisdiction, but it can limit the right of its
citizens from taking advantage of the investments in prospecting
made by others. It further can, by legislation, regulate the deep
seabed mining by all United States citizens or companies to promote
conservation and orderly development of the hard mineral resources
of the deep seabed, pending adoption of an international regime
under the multilateral convention that the U.N. Seabed Committee
is seeking to bring about.
If it were possible to achieve international regulation pursuant to
a multinational convention before mining operations begin, national
legislation to regulate the activities of United States companies
would not be necessary. The technique for arriving at broad-based
international agreement unfortunately is not keeping pace with that
for engaging in deep seabed mining. This is not to say that there
has not been progress in determining the elements of a deep seabed
mining convention essential to acceptability by the United States
and others interested in promoting the conservation and orderly
development of the hard mineral resources of the deep seabed.
Enough is known now to draft legislation which anticipates and
would gear into any convention the United States could accept.
Bills to authorize regulation of deep seabed mining by United
States companies have been introduced in both houses of the Con-
gress.2 The proposed legislation is intended as an interim measure
to fit into and be replaced by an international regime to be estab-
lished pursuant to a multilateral convention.
The proposed legislation provides for reciprocity with countries
adopting comparable statutes. This would be accomplished by pro-
hibiting persons subject to the jurisdiction of the United States
from encroaching upon mining activities of nationals of other
states carried on under similar regulations which would require
respect for mining activities authorized by the United States.
Notwithstanding adoption of comparable legislation by a signifi-
cant number of ocean mining countries, the need for a generally
agreed international regime to regulate the activities of the na-
tionals of all countries would continue. National legislation even
with widespread reciprocity is at best a stopgap. Such legislation
could, however, discourage disorderly development and would
hopefully forestall claims of prior rights based upon unregulated
activities-claims which could add to the difficulties of setting up
an international regime.
2. S. 2801 and H.R. 13904, 92d Cong., 2d Sess. (1972) and H.R. 9 and
S. 1134, 93d Cong., 1st Sess. (1973). Text reprinted at 461, infra.
434
PAGENO="0295"
289
[VOL. 10: 433, 1973] Deepsea Mining
SAN DIEGO LAW REVIEW
Resolutions adopted by the United Nations General Assembly
have disapproved of claims of sovereignty by any state over any
portion of the ocean's floor beneath the high seas, that is, beyond
territorial waters.3 This does not give assurance that some states
may not assert that activities they or their national have carried on
conferred a priority of right to continue those activities to the ex-
clusion of all others. Pending agreement by a substantial number
of nations, it is desirable that those states having the capability to
carry on deep seabed mining by agreement or parallel action put
reasonable restraints upon themselves and their nationals that en-
courage activity but do not permit assertion of rights beyond those
necessary to assure progress, equity and order in ocean develop-
ment.
Recognizing this, a number of students of the problem have sug-
gested that, pending agreement on a permanent international
regime, there be agreement on an interim regime. That would, of
course, be the best solution. $o far, however, there have been no
signs that broad agreement could be reached on an interim regime
any earlier than on the permanent regime. The thought has been
expressed that the likelihood of enactment of legislation such as
that introduced in the Congress might provide the necessary incen-
tive to reach early agreement on the international regime.
While the pendency of the proposed legislation did appear to
have encouraged some delegates in the Seabed Committee to get
down to business at Geneva this past summer, it provoked other
to turn from agreement on orderly development to agreement by
those lacking the capability to, engage through their own nationals
in deep seabed mining to prohibit mining by those having the
capability (the "Moratorium Declaration") .`~ The prospects that
3. G.A. Res. 2749 (XXV) (1972). The text of this and related resolu-
tions of the General Assembly, as well as many other documents bearing
on the law of the sea and seabed, are collected in S. ODA, Tm INTERNATIONAL
LAW OF THE OCEAN DEVELOPMENT (1972), [hereinafter cited as ODA].
4. The Moratorium Declaration was sponsored by the following thir-
teen states: Algeria, `Brazil, Chile, China, Iraq, Kenya, Libya, Arab Re-
public, Mexico, Peru, Venezuela, Yemen and Yugoslavia. It was feared
that these states would call for a fresh moratorium resolution in the 1972
session of the General Assembly. This was not done. The State De-
partment found this a favorable omen. The Acting Legal Adviser on
March 1, 1973 wrote Senator Fuibright:
One other significant development at this General Assembly,
fortunately in keeping with the spirit that dominated the nego-
435
PAGENO="0296"
290
the United Kingdom, U.S.S.R., West Germany, Japan, France or
the United States5 would agree not to engage in seabed mining
until a permanent regime has been established are equal to the
prospects that the sponsors of the moratorium declaration would
enter into an interim agreement promoting orderly development
before the permanent regime is set up. In each case the chances are
nil.
The sponsors of the moratorium declaration include states that
believe it to be to their benefit-if not to the benefit of mankind as
a whole-to keep the hard minerals which are found on the seabed
off the market as long as possible. The longer they can accomplish
this the longer they can enjoy increasing profits from the growing
demand for, and the diminishing supply of, land-based minerals.
Progress toward a permanent solution will be fostered by con-
vincing those delegates who have been blocking progress that
mining activity is not going to be retarded by moratorium declara-
tions or by dilatory tactics in the Seabed Committee meetings or
by insisting upon an international regime known to be unacceptable
to metals-consuming countries. The mining activity can be orderly
or chaotic. It would appear to be of genuine benefit to mankind
for all to support timely negotiating progress and reasonable interim
regulation-not futile prohibition. And it is to the interest of all
tiation of the Conference Resolution, was the fact that no new
resolution calling for a moratorium on deep seabed activities was
introduced. While it would not be accurate to interpret this as an
indication that States supporting the earlier moratorium resolu-
tion have changed their opinion, we believe that the avoidance of
a renewed and divisive debate on this subject was related to the
general attempts to ensure the best possible atmosphere as we
enter the final stage of preparatory work this year. Needless to
say, our own opposition to the moratorium remains unchanged.
5. The President and the State Department have repeatedly stated
that the United States adhered for itself and its nationals to the principle of
freedom of the high seas. The noteworthy May, 1970, announcement of
the President stated:
the negotiation of such a complex treaty may take some time.
I do not, however, believe it is either necessary or desirable to try
to halt exploration and exploitation of the seabeds beyond a depth
of 200 meters during the negotiating process.
ODA, supra note 3, at 344. As late as March 1, 1973, the Acting Legal Ad-
viser stated in a letter to Senator Fuibright:
Moreover, we wish to repeat that we continue to adhere to the
President's statement that it is neither necessary nor desirable to
try to halt exploration and exploitation of the seabeds beyond a
depth of 200 meters during the negotiating process, provided that
such activities are subject to the international regime to be agreed
upon, which should include due protection of the integrity of in-
vestment made in the interim period. Our opposition to H.R. 9
in no way alters this.
[Hereinafter cited as March 1973 statement].
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for those states that want the activity orderly and the regulations
reasonable to lead the way without further delay.
For those who sense that legislation of the kind now before the
Congress could prejudice installation of an international regime of
benefit to mankind as a whole, the constructive course to pursue is
to point out what regulation would be better than that proposed.
The critics thus far have revealed a lack of understanding of its
reach which calls for a simple statement of what it does and what it
does not do.
The proposed legislation now before the Congress (called here-
after the "interim bill") authorizes regulation under which persons
subject to the jurisdiction of the United States will be required to
1) obtain a license before engaging in mining of the deep
seabed;
2) refrain from mining in areas not covered by their licenses;
3) observe in their mining operations regulations designed to
protect
a) the marine* environment,
b) other uses of the sea, including prospecting and mining
by persons not subject to the jurisdiction of the TJnitecl
States in the very areas in which they are licensed to
mine.
Contrary to the apprehensions of some, the interim bill does not
1) purport to claim any territorial jurisdiction over any area of
the deep seabed;6
2) confer any rights as against any national other than one
under the jurisdiction of the United States;
3) contemplate regulations for protection of the environment
less stringent than would be a part of the multilateral convention
on the deep seabed.
One critic has assumed that the interim bill is comparable to the
Truman Proclamation.7 In fact, the two have nothing in common.
6. The Administration understands that the interim bills before
Congress, the first of which was S. 2801, do not claim any territorial
jurisdiction over any area of the seabed but have stated it is appar-
ent that S. 2801 (now H.R. 9), independent of the particular con-
tents or merits of the Bill, has become a symbol to many coun-
tries of defiance of the multilateral negotiating process.
Letter of the Acting Legal Adviser to Senator Fulbright, June 1, 1972.
This misunderstanding by some of our foreign friends has been fostered
by like misunderstanding of some: of our own citizens, including our
friend Professor H. Gray Knight. Se~ companion article in this issue.
7. The Proclamation issued 28 September 1945 stated;
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Truman claimed exclusive rights to continental shelf resources.
The interim bill which is concerned with activities beyond the legal
continental shelf makes no territorial or other claims to the exclu-
sion of any foreign state or its nationals. All states and their na-
tionals retain throughout the high seas their present freedoms, in-
cluding the freedom to mine. The only persons subject to regulation
by the United States are persons subject to the jurisdiction of the
United States.
Although President Nixon in his announcement of May 23, 1970,
called for establishment of an interim policy, the Administration
has yet to put forward its proposals for implementation.8 The in-
terim bill was worked out at the Senate Interior Committee's
request by a Committee of the American Mining Congress. Why,
one asks, should the mining industry ask to be regulated. Any
mining company that wants to recover nodules from the bottom of
the high seas is now free to do so. No license is required, yet the
industry advocates that it be prohibited from mining the nodules to
be fouiid on the surface of the seabed except under a license and in
accordance with regulations to be issued by the Secretary of the
Interior. The reason industry wants legislation is that the invest-
ment required for mining in commercially profitable quantities at
depths of as much as 15,000 feet, and for reducing the minerals
recovered to saleable copper, nickel and cobalt, is of such a magni-
The Government of the United States regards the natural resources
of the subsoil and seabed of the continental shelf beneath the
high seas but contiguous to the coast of the United States as apper-
taming to the United States, subject to its jurisdiction and control.
ODA, supra note 3, at 341.
8. The March 1973 statement discloses a sense of obligation to prepare
legislation to implement the President's policy. It states:
In reporting to you that the Administration is opposed to the
enactment of H.R. 9, we want to make clear that this does not
mean we are unalterably opposed to legislation of any sort, or that
we intend to disregard the problem of interim mining. Any of a
number of events could occur that would lead us to conclude that
legislation was necessary, and we intend to prepare as quickly as
possible for that contingency.
Prudence dictates that we also begin at once to formulate a
legislative approach on a contingency basis for two reasons. First,
it could conceivably become clear during the negotiations that we
have no reasonable basis for expecting a timely and successful law
of the Sea Conference. Second, we can prepare for privisional
entry into force of some aspects of the international seabed regime
once it is signed. While the approach in H.R. 9 does not appear
to us to be satisfactory, we intend to continue the useful dis-
cussions we have been having with industry representatives and
members of the public on this issue with a view to formulating
such an approach within the Administration.
Similarly, we have had interesting discussions of this problem
with other nations.
March 1973 Statement, supra note 5.
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tude that long-term financing in the hundreds of millions of dollars
is essential. The banks that have been approached have indicated
a willingness to lend the required amounts only after there is legis-
lation along the lines proposed.
The proposed interim legislation provides safeguards against
three risks, namely losses in recoverable mineral resources result-
ing from:
1) encroachment by persons subject to the jurisdiction of the
United States.
The safeguard on this is that all such persons are forbidden to
mine in the mining area except the company licensed to operate
there.
2) encroachment by persons not subject to the jurisdiction of
the United States.
a) Here the risk of loss is minimized by the program for recip-
rocal protection. Persons not subject to the jurisdiction of the
United States but subject to that of states with comparable legis-
lation will be forbidden by their own governments to mine in an
area under a license previously issued by the United States or
other reciprocating state. There is reason to believe that as a
practical matter every country whose nationals are interested in
and capable of deep seabed mining will, out of self-interest, pro-
hibit their nationals from encroaching into an area under such a
license in return for application of the reciprocity provisions of the
proposed statute. It will, as previously indicated, forbid U.S. na-
tionals from encroaching into an area under license by a recipro-
cating state.
b) As to encroachment by nationals of non-reciprocating states,
the proposed statute provides for OPIC-type insurance. Inasmuch
as there is reason to believe that the companies with the capabil-
ity of deep seabed mining will be nationais of reciprocating states
and so forbidden to encroach, no matter by which state they are
licensed, the chances of losses for which insurance benefits are
payable will be minimaL The premiums for this insurance not
paid out as benefits could be paid into the fund of the interna-
tional authority when established for distribution for the benefit of
mankind, particularly the lesser developed countries. In the view
of the author, possibly all of the amount paid in as premiums, less
only administration expenses, would thus be available for distri-
bution once the international authority has power itself to forbid
encroachment by the nationals of any state.
c) Limitation on the right of recovery by, or increased burdens
imposed pursuant to, the multilateral convention.
The coverage for this OPIC-type insurance, which would be
written by a government agency, would include losses attributable
to
439
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-limitation on the amount of recovery below a level fixed in
the interim license by reason of subsequent:
- shortening of the period covered by the license;
- interruption of production in the licensed area;
- relocation of that area;
- limitation in the annual rate of recovery;
- limitation in the annual rate of sale or price of the constituent
metals;
- increase in the charges payable by the miner.
Here again the risk of loss by the insurer is within its power to
limit. The United States is able now to anticipate to a considerable
degree the kind of multilateral convention it would be willing to
accept. The regulations under the interim bills could be drafted
now to fit into the regulations in and under the multilateral con-
vention. The variations, if any, are likely to be minor and not
costly. Any premiums not required to be paid out could, less
administrative expenses, be turned over to the fund for distribution
for the benefit of mankind, particularly the people of the developing
countries.
One could argue with the bankers that given the smallness of the
risk, they should not insist on the insurance. Their answer is that
venturing into an activity so unprecedented as deep seabed mining
is itself so risky from a nonpolitical angle that there should not be
added the risks discussed above, all to a large degree of a political
nature.
ft should be noted that U.S. companies will be competing with
companies that are state owned, as in the case of a Russian agency
of government, or state subsidized, as in the case with companies in
West Germany and Japan.
Why do the governments of these countries encourage deep sea-
bed mining? The answer to this question is for them the same as
it is to the question why the United States should insure its nation-
als against offshore political risks. All are industrial countries, for
the most part net importers of copper, nickel and cobalt. The
reliability of their and our traditional land-based sources of supply
is diminishing as the requirements for industrial and strategic pur-
poses are increasing. It is to their interest, as it is to ours and the
interest of most countries, developed or lesser developed, to make
available the resources of the deep seabed. The risk of expropria-
tion or failure of reliable production through political unrest does
not hang, as a sword of Damocles, over the marine sources of sup-
ply.
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So far as is known, no U.S. company has asked its government to
subsidize its deep seabed mining operations as other governments
are doing. The request for insuring-in contrast to subsidizing-is
modest and it is in better keeping with the American free enter-
prise competitive system. It is not believed that with the increasing
world demand the added supply from the ocean floors will lower
prices, but there is a real possibility that without the marine-based
supplies the price of the land-based supplies will rise. That, as has
been mentioned, appears to be the hope of some ore exporting
nations and their reason for obstructing agreement on a workable
international regime. If copper, nickel and cobalt prices can be
kept reasonable, the cost to the American taxpayer of insurance
that will help assure marine-based supplies at reasonable prices will
be more than offset by the savings in the cost of those metals which
enter into the manufactured products every consumer buys.
A question sometimes put is this. If legislation such as is pro-
posed is enacted by the United States and the other nations having
the capability of recovering deep seabed nodules and of separating
the basic metals, will not the incentive for them to pr6mote a multi-
national convention be lessene~l. If it is assumed that the program
of reciprocity between the industrial advanced nations will prove
to be so satisfactory to them that they cease to push for an early
multilateral convention on the seabed, there is reason to believe
that those countries whose delegates have obstructed agreement
on a workable international regime will change course 180 degrees
and themselves push for early agreement on a regime acceptable
to the industrial nations-on a regime that is truly to the benefit of
all of mankind-not the least to the consumers in nations that im-
port the metals to be made available for their own growing indus-
trial needs or in consumer products into which these metals enter.
Administration spokesmen have recently urged the Congress to
refrain from enacting interim legislat~on provided the following
schedule is adhered to:
Meetings of the Seabed Committee in March and July-August
1973, preparing for an organizational Law of the Sea Conference in
November-December 1973, and a Substantive Meeting of the Con-
ference in April-May 1974, with a possible further conference to
complete a Convention in 1974 or 1975.
The implication was strong that the Administration would not
oppose some sort of interim legislation if agreement was not reached
441
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296
prior to the General Assembly session in the fall of 1975.° This
has been followed up by a proposal in the Seabed Committee by the
United States delegate that consideration be given to a provisional
international regime effective from the date of signature of the
Multilateral Convention for a permanent regime until the necessary
ratifications have been deposited.'° The Seabed Committee has
asked the Secretary General to prepare for the July-August meet-
ing a report on precedents for such a provisional regime."
This is all right so far as it goes but it counts too heavily on ad-
herence to the schedule 1973-1975. The lack of progress to the end
of March in the Seabed Committee lends little to support confidence
in agreement in 1975 or for years thereafter. The position does
have the merit of strengthening earlier statements suggesting that
the nations wanting agreement will go ahead with one arrangement
or another if the present lack of progress continues.'2
In hearings following the Administration's March 1973 statement
of its position and the delegate's provisional arrangement proposal,
former Secretary of State Dean Rusk on March 27, 1973, testified:
We face the possibility, if I may use the phrase in these halls,
of a filibuster by the developing countries which might unfortu-
nately postpone indefinitely a generally agreed international re-
gime with respect to the resources of international seas. I per-
sonally feel that the long-range outlook for vital resources is so
serious that we should make it clear than an indefinite postpone-
ment is not acceptable. Perhaps the dozen or more countries who
are now developing the technology for such exploitation should,
9. The March 1973 statement explained:
Let me be quite clear about the timing of this course of action.
First, we will commence work on alternative approaches immedi-
ately, and will concentrate on the period between signature and
entry into force of the treaty; second, we will want to make a
continuing assessment of the negotiations to determine if a timely
and successful Conference will occur; and third, we will not ask
Congress to pass alternative legislation for the period before the
conclusion of the Conference if a timely and successful Conference
is predictable.
Let me also be clear as to what we mean by a "timely and
successful" Conference. We would not regard a Conference as
timely unless the schedule referred to in the preamble of the Con-
ference Resolution is adhered to: in other words, a Convention,
including arrangements regarding the provisional application of
the international seabeds regime, would be opened for signature in
1974 or, at the latest, in 1975. In practical terms, this means not
later than the summer of 1975, since many delegates would have to
be present when the U.N. General Assembly convenes in Septem-
ber. Id.
10. Statement of the United States Delegate to the U.N. Seabed Com-
mittee, March 19, 1973.
11. Resolution adopted March 26, 1973. Technically the resolution was
by a subcommittee of the whole which requires, and is assured of, approval
by the same members in a plenary meeting.
12. See note 8 supra.
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in that event, get together and make their own arrangements
among themselves with due regard for the legitimate interests of
the developing countries. I make it clear that this is my personal
opinion and should not be interpreted as reflecting any views I
have heard expressed by the Executive Branch of our Govern-
merit.'3
Professor L.F.E. Goldie in other hearings on the day following
Secretary Rusk's testimony submitted a scholarly paper giving
precedents for states and their nationals to acquire mining rights on
the ocean floor under existing international law which they could
exercise outside of a conventional international regime or could use
to gain special rights under the regime on the basis of a "grand-
father clause."4 Further procrastination by the Congress in mak-
ing it possible for American private enterprise to compete on the
ocean floor with foreign state supported enterprises could work to
the disadvantage of United States public interests. He made it clear
that he did not advocate the assertion of those rights by the Con-
gress and that the proposed interim legislation does not make or
support such an assertion.
My esteemed colleague whose article appears with this associates
himself with those who have stated that the interim bill now before
the Congress "does not best serve the resource management in-
terests of the United States as a whole." Some of the writers he
cites take this position because of certain mining provisions with
which they do not agree. This is not the place to discuss those
issues as we are concerned here with the international aspects. I
cannot believe he believes the interests of the United States on the
international plane will be served by jeopardizing availability of
the source of supply of minerals to the United States of which it
is a net importer and by worsening our adverse trade balance.
13. Hearings on S. Res. 82 Before the Senate Subcomm. on International
Organizations and Movements, 93d Cong., 1st Sess. (1973), a resolution
introduced by Senator Fell commending the United States delegation to
the Seabed Committee "for its excellent work." The resolution also
endorses the objectives envisioned in the President's "ocean policy statement
of May 23, 1970."
14. Testimony before the House Committee on Merchant Marine and
Fisheries, Subcommittee on Oceanography, March 28, 1973. Dr. Goldie
has assembled an impressive array of precedents for the acquisition of
mining rights in terra nullius, the outstanding one being the case of the
island of Spitsbergen before any state claimed sovereignty over it and
the retention of those rights under the "grandfather clause" principle
443
PAGENO="0304"
298
The effect of enactment now of interim legislation on the nego-
tiations in the Seabed Committee is a matter of conjecture on which
reasonable men can and do disagree. Professor Knight's judgment
that it would be adverse is shared by the Administration. The
writer's judgment is supported by the general principle that "faint
heart ne'r won fair lady" or that it is the timid two are frightened
by the barks that get the bites. That the pendency of the interim
bills has had a beneficial effect seems self evident. The Adniinis-
tration acknowledges this.
It "contravenes international expectations," Professor Knight
states. Fine lawyer that he is, he does not join those writers who
say it violates existing rights. The expectations of some it does
contravene, and properly so. Those countries that have expected
to deny to mankind the benefits of seabed resources by insisting on
a moratorium to be followed by an unworkable international au-
thority are bound to be disappointed.
That the United States has already contravened these expectations
is evidenced by the following statement made by the United States
delegate to the Seabed Committee on August 10, 1972:
The views of my delegation on resource issues have also been
stated on a number of occasions. Unfortunately, some delegations
appear to have the impression that maritime countries in general,
and the United States in particular, can be expected to sacrifice
in these negotiations basic elements of their national policy on re-
sources. This is not true. The reality is that every nation repre-
sented here has basic interests in both resource and non-resource
uses that require accommodation.
Accordingly, we believe it is important to dispel any possible
misconceptions that my government would agree to a monopoly
by an international operating agency over deep seabed exploita-
tion or to any type of economic zone that does not accommodate
basic United States interests with respect to resources as well as
navigation.'5
Our area of agreement can be enlarged with continuing exchange
of views. For instance, an interim measure enacted this year could
limit actual exploitation to a period after 1975 and then only if no
multilateral agreement had been reached. This would not hurt the
development of our recovery capabilities since the earliest that
commercial production could begin, if the law were enacted and the
necessary financing assured today, would be after 1975. The legisla-
tion is needed now because of the long "lead time" necessary to
build the ships and recovery equipment and land-based treatment
when Norway claimed sovereignty and the United States and others recog-
nized the claim.
15. Statement of United States Delegate to the U.N. Seabed Committee,
August 10, 1972.
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plants. Exploration could go forward under regulations which
anticipated the provisions of a Convention the United States could
support. With the signature bf a Convention the regulations of
the Secretary of the Interior would be made consistent with it, thus
implementing a provisional regime such as the United States dele-
gate has proposed.
Whatever disagreements remain between Professor Knight and
this writer, we join in subscribing to the lawyers' friendly ad-
versary process as the method best suited to assist others in reach-
ing their own conclusions. This not only gives the reader a choice
but also may lead to suggestions for better alternatives. To pro-
mote responsiveness to our points of disagreement we have ex-
changed early drafts of these companion articles. If we have failed
to meet each other head-on it is not for lack of trying.
445
23-317 0 - 73 - 20
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300
The Deep Seabed Hard Mineral Resources
Act - - A Negative View
H. GARY KNIGHT*
I. INTRODUCTION
The purpose of this article is to state the case in opposition to
enactment of the "Deep Seabed Hard Mineral Resources Act ("Act"
hereinafter) ~1 There are several other individuals and institutions
* Associate Professor of Law and Marine Sciences, and Campanile
Charities Professor of Marine Resources Law, Louisiana State University
Law Center; Member, Advisory Committee on the Law of the Sea (U.S.
Government Inter-Agency Law of the Sea Task Force); Coordinator, Lou-
isiana State University Sea Grant Legal and Socio-Economic Program.
The research for this article was supported partially by funds allocated
by Campanile Charities, Inc. for the Campanile Charities Professorship of
Marine Resources Law, and partially by funds from the Louisiana State
University Sea Grant Program, a part of the National Sea Grant Program
(National Oceanic and Atmospheric Administration, Department of Com-
merce), under Grant No. 2-35231. The United States Government is au-
thorized to produce and distribute reprints hereof for governmental pur-
poses notwithstanding any copyright notation that may appear hereon.
1. 5. 2801, 92d Cong., 1st Sess. (1971); H.R. 13904, 92d Cong., 2d Sess.
(1972); H.R. 9 93d Cong., 1st Sess. (1973). All are identical in language.
Hearings on H.R. 13904 were held on May 12, 16, and 25, 1972. See, Hear-
ings on Deep Seabed Hard Mineral Resources (H.R. 13904) before the
Subcomm. on Oceanography of the House. Comm. on Merchant Marine
and Fisheries, 92d Cong., 2d Sess. (1972) [hereinafter cited as Hearings on
H.R. 13904]. A Hearing on S. 2801 was held on June 2, 1972. See Hearings
on S. 2801 before the Subcomm. on Minerals, Materials, and Fuels of the
May 973 Vol. 10 No. 3
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which share the views expressed herein on this proposed legisla-
tion,2 but the majority of those previously testifying on the Act
appear to favor its passage. Probably the most articulate spokes-
man in favor of the Act, John~ G. Laylin, has written the article
which immediately precedes this one in this 1973 "Law of the Seas"
issue of the San Diego Law Review.3 I am sure that Mr. Laylin will
agree that although we both seek to apply high standards of scholar-
ship to our research and writing, nonetheless our articles are essen-
tially exercises in advocacy with the principal objective of en-
lightening the reader to both the issues and the conflicting opinions
involved in the deep seabed mining problem. Our mutual intent
is to give the reader a framework in which to reach his own con-
clusions about the optimal system for recovering seabed mineral re-
sources.
In opposing present adoption of the Act, I do not do so on the
basis that within its four corners it ill serves the interests of the
marine mining industry-on the contrary, I shall assume that it well
serves them since it was essentially a product of that industry.
There have, however, been statements to the effect that the Act
does not best serve the resource management interests of the United
States as a whole4 and I find myself in substantial agreement with
those views. However, I am limiting this critique to the broader
perspective of the Act's potential effect on the current international
Senate Comm. on Interior and Imsular Affairs 92d Cong., 2d Sess. (1972)
[hereinafter cited as Hearings on S.~ 2801]. No action was taken by either
subcommittee on the bills during the ninety-second session of Congress.
2. See. e.g., statement of Alan Cranston, `United States Senator from
California, in Hearing on S. 2801 at 10; letter from Robert B. Krueger to
the Subcommittee on Oceanography, House Committee on Merchant Marine
and Fisheries, May 9, 1972, reprinted in Hearings on H.R. 13904 at 192;
statement of Wolfgang Friedmann, Professor of International Law, Co-
lumbia University, in Hearings on HR. 13904 at 167; statement of Samuel
R. Levering on behalf of the Friends Committee on National Legislation,
in Hearings on H.R. 13904 at 183; and statement of John J. Logue, Director,
World Order Research Institute, Villanova University, in Hearings on H.R.
13904 at 149.
3. Laylin, The Law to Govern Deepsea Mining Until Superseded by
International Agreement, 10 SAN. DIEGO L. REV. 425 (1973).
4. See, e.g., Supplemental Statement of Leigh S. Ratiner, Director for
Ocean Resources, Department of the Interior, on behalf of the Inter-
Agency Task Force on the Law of the Sea, before the Subcommittee on
Oceanography of the House Committee on Merchant Marine and Fisheries,
93d Cong., 1st Sess, (March 1, 1973).
447
PAGENO="0308"
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law of the sea negotiations, including the United States position on
law of the sea issues, which goes beyond the industrial aspects of
deep seabed mining. As a result of this broader analysis, I have
concluded that the Act ought not to be adopted at this time-indeed,
not until the Third United Nations Conference on the law of the
Sea5 has had an opportunity to fully consider the issue and to
either (1) adopt an international regime governing mining of sea-
bed minerals, in which case the need for the Act would disappear,
or (2) fail to reach agreement thus leaving a void in conventional
international law on the subject which might well be filled by a
modified version of the Act.
II. ANALYSIS
My principal arguments against the present enactment of the
Act are threefold: (1) it is inconsistent with this nation's present
oceans policy; (2) it will probably have an adverse effect on the
current law of the sea negotiations; and (3) it contravenes interna-
tional expectations evidenced in the "principles" resolution of the
General Assembly.° All of these arguments are based essentially
on what I believe to be inappropriate timing. As noted above, if the
Third Conference succeeds there will be no need for the Act, yet
if it fails the Act might be an appropriate vehicle. In the interim I
think it inadvisable to impose the Act on the international efforts
to seek an overall revision of the law of the sea because these
negotiations involve ocean related issues other than marine mining
as well as possessing broader implications for world public order.
A. The Act is Not Consistent with Current TJnitecl States
Oceans Policy
During the early stages of the current international law of the
sea negotiations a number of alternative regimes were suggested for
governing the exploitation of non-living resources from the seabed
5. In December, 1970, the United Nations General Assembly adopted
resolution 2750C (XXV) calling for convocation of a Third United Nations
Conference on the Law of the Sea {hereinafter cited as Third Conference]
to be held sometime during 1973 unless postponed by the twenty-seventh
session of the General Assembly on grounds of insufficient progress of
preparatory work. The question of the regime to govern exploitation of
non-living resources of the seabed beyond the limits of national jurisdic-
tion is paramount on the agenda for the Third Conference. As a result
of adoption of General Assembly Resolution 3029 (XXVII), a procedural
meeting of the Third Conference is scheduled to take place concurrently
with the 1973 meeting of the General Assembly, and the substantive con-
ference is scheduled to begin in April-May, 1974, in Santiago, Chile.
6. G.A. Res. 2749 (XXV) (1970).
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and subsoil beyond the limits of national jurisdiction.7 Some sug-
gested dividing the world ocean on an equidistance principle, thus
creating "national lakes" and apportioning the entire seabed and
its resources among a few coastal states.8 Others suggested vesting
title to seabed resourcs in the United Nations, permitting that
organization to govern their disposition.9 Both of these alternatives
were rejected at an early date-the former because it was not polit-
ically acceptable to a sufficient~ number of nations, the latter be-
cause neither the United States nor the Soviet Union was interested
in permitting the United Nations to secure independent sources of
income.
A third view suggested that no policy decision be made at all
but rather that the world should wait on industrial/political de-
velopments in the field-a sort of "invisible hand" approach.'°
Two other alternatives remained under active consideration well
into the deliberations which ultimately led to the development of a
United States oceans policy." Qne was the "flag nation" system,
under which exploitation of seabed resources would be governed by
the law of the nation in which the vessel or other platform was
7. For a sampling of various positions advocated, see Christy, Alter-
native Regimes for Marine Resourëes Underlying the High Seas, 1 NAT.
RES. LAW. 63 (June 1968).
8. See Bernfeld, Developing the Resources of the Sea-Security of
Investment, 2 INT'L LAW. 67 (1967) and 1 NAT. RES. LAW. 82 (Jan. 1968).
For a map indicating how such a division of the world ocean might look,
see the chart appended to THE LAW OF THE S~: THE FUTURE OF THE SEA'S
RESOURCES (Alexander ed. 1968).
9. See Creamer, Title to the Deep Seabed: Prospects for the Future, 9
HARV. INT'L L.J. 205 (1968); Eichelberger, A Case for the Administration
of Marine Resources Underlying the High Seas by the United Nations, 1
NAT. RES. LAw. 85 (June, 1968).
10. See Wilkey, The Deep Ocean: Its Potential Mineral Resources and
Problems, 3 INT'L LAW 31 (1968); Ely, The Fashioning of a Regime to
Govern the Development of Undersea Mineral Resources, paper presented
to the Workshop on Law as Related to Ocean Development Problems
(George Washington University National Law Center, April 20, 1968).
11. In using the phrase "United States oceans policy" in this paper, I
am referring only to (a) Presidential pronouncements, (b) draft treaty
articles submitted by the United States, and (c) major statements made
by members of the United States delegation to the United States Seabed
Committee. There is room even within that limited framework, however,
for differences of opinion concerning just what United States oceans
policy is (or was) and there are even subject matter areas in which it
seems doubtful we have a single unified policy at the present time. Ac-.
cordingly, the representations of policy stated herein are purely my own
interpretation of the above documents and statements and do not nec-
essarily reflect the position of the United States Government.
449
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registered.12 tinder this system there would be no international
seabed authority, save perhaps for a registry office for the filing
of claims. The other alternative was the creation by international
agreement of a detailed set of rules governing exploration for and
exploitation of seabed resources complete with an attendant inter-
national organization to allocate exploration and exploitation rights,
receive and distribute revenues, and regulate resource extractive
operations.
In May, 1970, the President of the United States expressed a pref-
erence for the latter alternative,'3 and in August, 1970, the United
States submitted to the United Nations Seabed Committee the
"Draft United Nations Convention on the International Seabed
Area"4 which elaborates on the President's proposal with pro-
visions for an international oceans regime providing for participa-
tion by all nations. Based on these two documents, it is apparent
that United States oceans policy with respect to the regime to
govern exploitation of non-living resources of the seabed and sub-
soil beyond the limits of national jurisdiction contains at least the
following elements:
(1) The regime should be the product of international agreement,
not unilateral state action;'5
12. For a discussion of the "flag nation" approach, see Ely, American
Policy Options in the Development of Undersea Mineral Resources, 2
INT'L LAW. 215 222-223 (1968); Ely, A Case for the Administration of
Mineral Resources Underlying the High Seas by National Interests, 1 NAT.
RES. LAW. 78 (June, 1968).
13. Nixon, United States Policy for the Seabed, 62 DEP'T STATE BULL.
737 (1970), 9 INT'L. LEGAL MATERIALS 807 (1970). See also the statements
of Elliot L. Richardson, Under Secretary of State, and John R. Stevenson,
Legal Adviser of he Department of State, in Hearings on Issues Related
to Establishment of Seaward Boundary of United States Outer Continental
Shelf before the Special Subcomm. on Outer Continental Shelf of the
Senate Comm. on Interior and Insular Affairs, 91st Cong., 2d Sess., pt.
2 (1970).
14. U.N. Doe. No. A/AC.138/25, 9 INT'L LEGAL MATERIALS 1046 (1970).
For a detailed examination of the `United States draft seabed treaty, see
Knight, The Draft United Nations Convention on the International Sea-
bed Area: Background, Description and Some Preliminary Thoughts, 8
SAN DIEGO L. REV. 259 (1971). See also Gerstle, The UN and the Law of
the Sea: Prospects for the United States Seabeds Treaty, 8 SAN DIEGo
L. REV. 573 (1971); Stone, United States Draft Convention on the Interna-
tional Seabed Area, 45 TUL. L. Ray. 527 (1971); and Comment, The Nixon
Proposal for an International Seabed Authority, 50 Oiw. L. REV. 599 (1971).
15. President Nixon stated:
I am today proposing that all nations adopt as soon as possible
a treaty under which they would renounce all national claims over
the natural resources of the seabed beyond the point where the
high seas reach a depth of 200 meters . . . and would agree to
regard these resources as the common heritage of mankind. Nixon,
supra note 13.
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(2) Some form of international organization should be developed
to regulate seabed exploitation activities;'6 and
(3) Adequate provisions should be included within the frame-
work of such an international agreement and organization to estab-
lish or ensure (a) protection of the marine environment, (b) a sys-
tem of peaceful, compulsory disputes settlement, (c) integrity of
investment, (d) revenue sharing, bearing in mind the special needs
of developing nations, and (e) maintenance of multiple use of the
ocean environment.'7
In December, 1970, the United Nations General Assembly adopted
a resolution calling for convocation of the Third United Nations
Conference on the Law of the Sea to be held sometime during 1973
unless postponed by the 1972 regular session of the General As-
sembly on the grounds of insufficient progress of preparatory
work.'8 At the 1972 General Assembly session it was decided to
convene a procedural session of the Third Conference in 1973, con-
current with that winter's session of the General Assembly, and to
initiate the substantive portion of the Third Conference in Santiago,
Chile, in April-May, 1974.'° The United Nations Committee on the
The United States draft seabed treaty (note 14 supra) is, of course, the
specific international agreement which the United States proposed for
adoption at the Third Conference.
16. The President's statement of May 23, 1970 (note 13 supra) also
provides that:
The treaty should establish an international regime for the ex-
ploitation of seabed resources beyond this limit [the 200 meter
isobath] . . . [A] greed international machinery would authorize
and regulate exploration and use of seabed resources beyond the
continental margins.
The draft seabed treaty (note 14 supra) contains elaborate provisions for
an "International Seabed Resources Authority" (arts. 31-65) and equally
detailed articles on the system of resource disposition (passim; apps. A,
B, and C).
17. The President's statement of May 23, 1970 (supra note 13) included
the following language:
The regime should provide for the collection of substantial min-
eral royalties to be used for international community purposes,
particularly economic assistance to developing countries. It should
also establish general rules to prevent unreasonable interference
with other uses of the ocean, to protect the ocean from pollution,
to assure the integrity of the investment necessary for such ex-
ploitation, and to provide for peaceful and compulsory settlement
of disputes.
The draft seabed treaty also contains provisions on all of these points.
18. G.A. Res. 2750C (XXV) (1970).
19. G.A. Res. 3029 (XXVII) (1972).
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Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the
Limits of National Jurisdiction20 has been charged with responsi-
bility for preparatory work for the Third Conference and has been
considering the United States and other seabed regime proposals at
its semi-annual meetings which are now scheduled to continue
through 1973.21
Thus, the Administration has pursued an active and vigorous
policy of internal deliberation and international negotiation which
it hopes will lead to international agreements governing the extrac-
tion of seabed resources.
As noted above, there has been introduced in the Ninety-third
Congress the Deep Seabed Hard Mineral Resources Act, H.R. 9.
This bill would create, by reciprocal domestic legislation, a system
flag nation jurisdiction over hard mineral mining activities on the
seabed beyond the limits of national jurisdiction. In fairness, it
should be noted that some have argued that the Act does not con-
stitute a "flag nation" approach at all.22 In my view, however, "flag
nation" means simply that the only law governing operations on
the high seas is that of the state whose flag the vessel or platform
flies, and this is clearly the intent of the Act for it does not establish
any international legal system to govern deep seabed mining but
rather relies exclusively on reciprocal domestic legislation.23 Ob-
viously, such a flag nation system provides benefits only for tech-
nologically advanced nations which have or can rapidly develop a
marine mining capability, and, in effect, constitutes an appropriation
of deep seabed hard minerals by those very few nations. It would
foreclose participation in the establishment of rules and operating
regulations by other nations.
20. [Hereinafter cited as Seabed Committee]. The Seabed Committee
was established by U.N. General Assembly Resolution 2467A (XXIII)
(1968). It consisted originally of 42 members, but was expanded to 86 in
December, 1972 [GA. Res. 2750C (XXV) (1970), oper. para. 5] and to 91
in December, 1971 [GA. Res. 2881 (XXVI) (1971), oper. para. 3].
21. Through G.A. Res. 3029 (XXVII) (1972) the General Assembly
requested the Seabed Committee:
[I] the discharge of its mandate in accordance with resolution
2750C (XXV), to hold two further sessions in 1973, one of five
weeks in New York . . . and the other of eight weeks at Geneva
with a view to completing its preparatory work, and to submit
a report with recommendations to the General Assembly at its
twenty-eighth session.
22. See, e.g., Letter of John G. Laylin to the Subcomm. on Oceanography,
May 26, 1972, reprinted in Hearings on H.R. 13904 at 195, 196 [hereinafter
cited as Laylin letter].
23. See the discussion of the flag nation principle in Christy, supra
note 7, at 72-74; see also Letter of H. Gary Knight to the Subcomm. on
Oceanography, May 29, 1972, reprinted in Hearings on HR. 13904 at 198
[hereinafter cited as Knight letter].
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This effect of a "freedom of the high seas" doctrine (which is the
underlying premise of the flag nation system proposed in the
Act)24 was aptly described by United States Senator Lee Metcalf:
Those nations which have the capacity to lay submarine cables,
do oceanographic research, and mine the deep ocean floor benefit
from the freedom-of-the-seas doctrine. Those nations without
marine technology do not benefit.
When one understands that there are dozens of nations which
have never benefitted from the freedom-of-the-seas doctrine, one
can understand the motivation behind their growing demands for
greater participation. What is proclaimed by some to be equal
freedom for all nations on the high seas has become in fact unequal
freedom.25
On several counts, then, the approach of the Act is fundamentally
inconsistent with United States oceans policy.
First, it is United States policy to establish the seabed regime
through international agreements, while the Act relies on domestic
legislation. Granted, the supporters of the Act speak in terms of a
system of reciprocal domestic legislation, but the approach is still
national as opposed to international because the Act itself would
not be the product of international negotiations in which the differ-
ent national interests could be expressed and accommodated but
rather the product of a single industry as modified by the United
States Congress (which pattern would then be emulated by other
nations on, if the reciprocity is to be effective, a "take it or leave
it" basis). There would thus be no meaningful participation by
members of the international community in establishing operational
rules under the Act.
Second, it is the United States policy to establish international
machinery to govern seabed operations beyond limits of national
jurisdiction. The Act would utilize no international agency, relying
instead solely on national laws and institutions to allocate resources
and settle disputes.
24. The principle of the freedom of the high seas as embodied in Article
2 of the Convention on the High Seas, done April 29, 1958, [1962] 13 U.S.T.
2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82, in force Sept. 30, 1962, is that "[t]he
high seas being open to all nations, no State may validly purport to subject
any part of them to its sovereignty." Absent any jurisdiction based on
territory, the only remaining basis for jurisdiction on the high seas is on
a vessel registration basis, thus the relationship between the concept of
freedom of the high seas and the flag nation principle of jurisdiction.
25. Lee Metcalf, Report on the Outer Continental Shelf. 117 CONG. REc.
5758-59 (1971).
453
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Third, and with respect to the five elements set forth by President
Nixon,26 the Act does not adequately (or in some cases, at all) meet
the policy objectives there set forth. For instance, it is exception-
ally weak in terms of protection of the marine environment and
contains no system at all (save for the implicit diplomatic negotia-
tion) for peaceful, compulsory disputes settlement. Since the Act is
not part of an overall law of the sea agreement, it does not ade-
quately handle the problem of multiple uses of the marine environ-
ment nor does it establish a meaningful system for revenue sharing
(reliance is placed instead on the traditional format of Congression-
ally approved foreign aid).
In view of these basic inconsistencies, I believe that the Act
should be shelved pending the Administration's attempt to secure
the objectives it seeks, at least through conclusion of the Third Con-
ference. If in fact the marine mining industry feels that the Ad-
ministration's law of the sea policy is an inferior one, then the
better approach would seem to be to attempt to alter that policy
within the executive branch framework available theref or, and not
to thwart that policy by urging inconsistent congressional action.27
There is an element of futility in the latter approach anyway, since
ultimately (barring an override of a presidential veto) the Presi-
dent will have the last say on whether such a bill becomes law. It
seems unlikely that the President would sign such a bill if he wished
to maintain the Administration's existing oceans policy.
B. The Act's Adoption Would Have an Adverse Effect on Current
Law of the Sea Negotiations
As already noted, this nation is currently involved in complex
negotiations on law of the sea issues leading to the Third Confer-
ence. The negotiation process is extremely difficult because of the
existence of a very wide rage of ocean-related issues and a very
large number of countries and special interests. The adoption at
this time of a bill constituting a unilateral act with respect to ocean
resources by the United States could have a highly prejudicial effect
upon the conduct of these negotiations.
First, the adoption of the Act, with its unilateral nature and
appropriative coloration, might well break down any remaining
26. See text accompanying note 17, supra.
27. In fact, the marine mining industry has been taking both avenues,
arguing against Administration policy through the Hard Minerals Sub-
committee of the Advisory Committee on the Law of the Sea (U.S.
Government Inter-Agency Law of the Sea Task Force). As evidenced by
the Government's recent testimony on HR. 9 (see note 33, infra), that
effort was unsuccessful.
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barriers to extension of 200 mile (and more) exclusive economic
resource zones by developing nations. True, the Act itself makes
no specific claim of appropriation with respect to seabed resources,
but one must examine fact as veil as form. In fact, the single
underlying justification for the Act is the need for sufficient secu-
rity of tenure by the mining companies to satisfy their respective
boards of directors or lending institutions concerning the safety of
the economic investment being made. If the Act did not in fact
assure exclusive rights to seabed resources with appropriate legal
safeguards of that exclusive tenure, it would not serve that stated
objective. Thus, in fact, the Act does appropriate to the exclusive
use of the license holder certain designated seabed areas.28 What
many commentators, including me, fear is that all of the developing
countries whose maritime territorial ambitions the United States
has been holding at bay with the promise of an overall law of the
settlement would react to the Act by saying, in effect, that since
the developed nations had seized those things of value to them in
the oceans the developing nations were therefore entitled to seize
those things of value to them, namely exclusive resource jurisdic-
tion in 200 miles of adjacent coastal waters and seabed. Such a
course of action and reaction wOuld leave little for the "common
heritage of mankind."
The so-called "economic resource zone" concept, in which coastal
states would exercise preferential or exclusive rights with respect
to all living and non-living marine resources, is extremely popular
at the present time among developing countries and may well be
one of the outcomes of the Third Conference.29 Nonetheless, and
consistent with its current policy, the United States continues to
strive for a meaningful international content to resource extrac-
tive activities in the ocean. Were the effect of adoption of the Act
to be to encourage unilateral assertions of resource jurisdiction by
28. For pro and con arguments on this issue, see the Laylin letter, supra
note 22, and the Knight letter, supra note 23.
29. For a typical draft treaty proposal on the subject see Draft Articles
on Exclusive Economic Zone Concept (Presented by Kenya), U.N. Doe.
No. A/AC.138/SC.II/L.l0 (7 August 1972). Almost all of the economic
resource zone poposals submitted to date fail to include the five elements
referred to by President Nixon in hi~ May 23, 1970 statement (supra note
13) which elements were restated as essential elements of United States
oceans policy on August 10, 1972, by the head of the Nation's delegation to
the Seabed Committee.
45~
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310
other nations to extensive maritime areas, then the objectives of
United States policy in imposing certain international standards on
such zones would be greatly imperiled. Two hundred mile resource
zones without guarantees for freedom of navigation and interna-
tional standards concerning dispute settlement, revenue sharing,
conflict of uses, protection of the marine environment, and integ-
rity of investment, would be unacceptable to the United States,
while zones encompassing such considerations would clearly fur-
ther our national objectives in the ocean. In my view, our natir~n's
efforts to secure a meaningful international regime could be
thwarted if the effect of the Act were to precipitate of unilateral
claims whose ultimate effect would be to foreclose the possibility of
reaching international agreement on many vital ocean issues.
Second, and for the same reasons stated above, such unilateral
claims could have a prejudicial effect on national defense interests.
The Department of Defense ("DOD") has made clear that main-
taining maximum naval mobility is a vital element of our national
security system. DOD has succeeded in having adopted as part of
our current national oceans policy the internationalization rather
than the nationalization of seabed resources in order to protect
against the phenomenon called "creeping jurisdiction" in which
national jurisdiction for limited purposes supposedly tends to ripen
into territorial sea jurisdiction. DOD also fostered the presenta-
tion by the United States delegation to the United Nations Seabed
Committee of draft articles providing for free transit through inter-
national straits, a change from the old regime of "innocent pas-
sage."30 If extensive unilateral claims of jurisdiction over ocean
space by developing nations were to follow enactment of the Act,
DOD's interests in maximum naval mobility and passage through
straits could be seriously compromised.
Third, and finally, the effect of adoption of a flag nation system
for the deep ocean floor and the generation of national claims to
ocean space areas nearer shore would mean that a meaningful in-
ternational organization to govern activities in ocean space would
be unlikely, thus frustrating achievement of several long range for-
eign policy objectives of the United States such as compulsory dis-
putes settlement, reduction of conflict potential, and foreign aid.
30. Draft Articles on the Breadth of the Territorial Sea, Straits, and
Fisheries Submitted to Sub-Committee II by the United States of America,
U.N. Doc. No. A/AC.l38/SC.II/L.4 (1971). For a more extensive analysis
of the straights passage problem, see Knight, The 1971 United States Pro-
posals of the Breadth of the Territorial Sea and Passage Through Interna-
tional Straights, 51 ORE. L. REv. 759, 769-785 (1972).
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Concern has been expressed by proponents of the Act that cer-
tain developing countries are opposed to the recovery of deep sea-
bed mineral resources by anybody. These nations are purportedly
motivated by a desire to limit competition with respect to their
upland and offshore mineral resources. Accordingly, it is argued,
many developing countries-including some petroleum exporting
countries-will obstruct and frustrate efforts in the Seabed Com-
mittee and at the Third Conference to adopt an international re-
gime which would facilitate the exploitation of seabed mineral
resources. It is therefore conclUded by these individuals that the
interminable delay we can expect as the result of this posture will
adversely prejudice national interests in the development of marine
mining technology and the recovery of needed mineral resources.
I cannot find fault with the logic of such an argument, but I be-
lieve one of the underlying assumptions-the potential adverse
impact on prices-is not completely valid. Several studies have
been published concerning the economic implications of develop-
ment of seabed mineral resources. Among these is a report pre-
pared by the Secretary General of the United Nations titled Pos-
sible Impact of Sea-Bed Mineral Production in the Area Beyond
National Jurisdiction on World Markets, With Special Reference
to the Problems of Developing qountries: A Preliminary Assess-
ment.3' This report concludes that there would not likely be any
significant adverse economic impact from the production of man-
ganese nodules and other seabed minerals. Similar conclusions
were reached by the United States Government in its study en-
titled Economic Implications of Seabed Mineral Resource Develop-
ment.32 Thus, the facts indicate that the fears of these developing
countries about maintaining market prices for their mineral ex-
ports are probably unfounded. Once the data in these studies is
understood by the affected nations, I doubt seriously whether their
hesitancy over supporting an international regime to facilitate the
mining of deep-sea mineral will continue. On the other hand, en-
actment of the Act would, as noted above, likely have the effect
31. U.N. Doe. No. A/AC.138/36 (28 May 1971); see also the supplemental
Additional Notes on the Possible Economic Implications of Mineral Produc-
tion from the International Sea-Bed Area, U.N. Doe. No. A/AC.138/73 (12
May 1972).
32. July `6, 1971.
457
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312
of promoting national claims to ocean space and adversely affecting
the chances for international agreement on the use of ocean space.
C. The Act Would Be Contrary to International Expectation-s
Expressed in General Assembly Resolution 2749.
In December, 1970, the United Nations General Assembly adopted
resolution 2749 which provides, among other things, that:
1. The sea-bed and ocean floor and the subsoil thereof, beyond
the limits of national jurisdiction (hereinafter referred to as the
area), as well as the resources of the area, are the common herit~
age of mankind.
2. The area shall not be subject to appropriation by any means
by States or persons, natural or juridicial, and no State shall claim
or exercise sovereignty or sovereign rights over any part thereof.
3. No State or person, natural or juridicial, shall claim, exer-
cise or acquire rights with respect to the area or its resources
incompatible with the international regime to be established and
the principles of this Declaration.
4. All activities regarding exploration and exploitation of the
resources of the area and other related activities shall be governed
by the international regime to be established.
7. The exploration of the area and the exploitation of its re-
sources shall be carried out for the benefit of mankind as a whole,
irrespective of the geographical location of States, whether land-
locked or coastal, and taking into particular consideration the in-
terests and needs of the developing countries.33
This resolution was adopted by a vote of i08 in favor, none against,
and 14 abstentions. The United States voted in favor of the reso-
lution.
Although it is true that General Assembly resolutions do not
constitute binding legal obligations, nonetheless such resolutions
do, when adopted by such overwhelming majorities as was the case
with Resolution 2749, represent the expectations of the interna-
tional community and thus create political and moral norms which
should not be dismissed lightly.34 The legal regime proposed by
33. G.A. Res. 2749 (XXV) (1970).
34. It has been suggested that Resolution 2749 was ultimately adopted
only to break an impasse with the understanding that there was not a
true consensus on the major issues involved. Thus, this argument proceeds,
the unanimity evidenced by the 108-0-14 vote is misleading. This may or
may not be the case-it certainly would be worthwhile to engage in a study
of the circumstances surrounding adoption of that resolution-but in any
event the plain language of the document clearly imparts the expectation
that international rather than national solutions to seabed mining problems
are to be favored, and it is essentially on that basis that I argue the in-
compatibility of the Act and Resolution 2749.
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the Act contradicts each of the major premises of Resolution 2749
quoted above.
For example, paragraph 2 of Resolution 2749 states that the area
"shall not be subject to appropriation by any means," (emphasis
added) the latter wording clearly covering de facto claims or ap-
propriations regardless of the form in which they are couched. (I
have already alluded to the form-fact dichotomy of the Act in Part
II.B supra). Paragraph 3 is even more explicit in prohibiting ac-
quisition of rights other than in accordance with the international
regime to be established. Certainly the Act creates rights in the
seabed area, but it is not possible to say at this time whether they
are compatible with the international regime to be established.
However, viewing the principles resolution in its entirety, there
are some obvious discrepancies between the regime proposed by
the Act and those basic components of an international seabed
regime envisioned by the resolution.
Further, the lip service paid to revenue sharing by the Act does
not carry forward the objective of paragraph 7 of Resolution 2749
which calls for seabed activities to be "carried out for the benefit
of mankind as a whole. . . taking into particular consideration the
interests and needs of the developing countries." The Act serves
the marine mining industries of technologically advanced nations,
not mankind as a whole.
III. Co~cr~usio~r
As indicated above, the principal issue in consideration of the
Act is one of timing. The long range objectives of the Act are
laudable-exploitation of needed mineral resources and preserva-
tion of the technological lead of the United States in recovery and
beneficiation techniques. The only real question is whether we
take unilateral action now or attempt for another two years
(through the 1974-1975 Third Conference) to secure international
agreements on the subject. I have stated the case above for allow-
ing our Government to continue its negotiating efforts and believe
that that is the best course both for our Nation and the interna-
tional community.
IV. POSTSCRIPT
As this article was being completed, the United States Govern-
459
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ment (which had in 1972 avoided taking a firm position for or
against the Act), in testimony before the Subcommittee on Ocean-
ography of the House Committee on Merchant Marine and Fisher-
ies, took a position quite similar to that set forth in this article.35
I hasten to add that the expression of my own views probably had
little or nothing to do with the Government's decision. Nonethe-
less, the Administration has pleaded with Congress to give it until
the conclusion of the Third Conference (but no later than 1975) to
work out an acceptable international seabed regime. That position
is subject to review, however, and should insufficient progress be
made toward convening of the Third Conference, or should that
Conference fail to produce the requisite agreement, the Adminis-
tration has indicated its support for an approach such as that taken
in the Act (although members of the Inter-Agency Law of the Sea
Task Force are working on their own version of a seabed mining
bill).
If Congress heeds the advice of the Administration on this point,
then we will have the opportunity to see if the international com-
munity has reached a sufficient stage of sophistication to adopt an
international seabed regime, or whether it will take a step back-
ward in international law and relations by resorting to unilateral
activities in the ocean.
35. See Statement of Charles N. Brower, Acting Legal Advisor, De-
partment of State, and Acting Chairman, Inter-Agency Task Force on the
Law of the Sea, before the Subcomm. on Oceanography of the House
Comm. on Merchant Marine and Fisheries, 93d Cong., 1st Sess., March
1, 1973; and Supplemental Statement by Leigh S. Ratiner, note 4 supra.
460
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[From the Wall Street Journal]
THE SEA-MYSTERIOUS "NODULES" AT BOTTOM OF OCEANS
MAY YIELD A TREASURE
THEY CONTAIN VITAL MINERALS, AND AN INTERNATIONAL RACE
Is ON TO "MINE" AND USE THEM
"WIFE SWAPPER WITH NO WIFE"
(By Barry Newman)
GLOUCESTER PoINT, VA-In 1873, Queen Victoria ordered the guns rolled from
the deckS of the Steam corvette HMS Challenger, had a scientific laboratory
built on board and Sent the 240 crewmen and six scientists on a three-year voy-
age around the world to see if there was anything worthy of Britain's interest
at the bottom of the sea.
The Challenger returned with an array of specimens. Among the least interest-
lug were some crumbly, black rocks that looked like burnt potatoes. The innocu-
ous lumps inspired so little curiosity that a century later they are still stored in
London's British Museum. Nobody even bothered to find out what they were
made of.
In later years, other scientists on other expeditions did bother. A fitting symbol
of what they found is another research ship, the Prospector, tied up under a
bridge here at the mouth of the Chesapeake Bay. The Prospector has made 43
cruises of 30 days each over the last few years, hunting the deepest oceans for
none other than the black rocks ignored by the Challenger.
Those dull rocks turn out to conceal a considerable treasure. The "nodules," as
they are properly called, contain rich lodes of some metals industrialized society
considers most important: manganese, copper, nickel and cobalt. They are sprink-
led over vast areas of the ocean floor, at dark, cold depths of 12,000 to 20,000
feet. There could be as much as 1.5 trillion tons of nodules in the Pacific alone,
and unlike depleted land resources, nodules are growing at a pace of 16 million
tons a year.
Exactly how these precious lumps have been formed on the sea floor over the
past few million years is still a mystery to geologists. Some believe they come
from the sediment on the seabed, others that they are thrown up by volcanic
activity. And one theory holds that they are formed from metals in the seawater.
Today, there is a rush on by a new breed of mariner-miners to exploit them.
As many as 30 companies and several governments have already invested per-
haps as much as $300 million in development of technology to mine the deep.
Most of the work is being done under a pall of competitive secrecy. As a result,
a great deal of the information available is industry scuttlebutt gathered by
rivals.
Biggest and Most Secret
Known to be in the race are companies and government agencies in Russia,
Germany, France and Japan. The heaviest commitments are being made by three
U.S. companies. Kennecott and the Tenneco Inc. conglomerate are said to have
spent $20 million each on their ventures. Leading the pack, with expenditures
possibly as high as $100 million, is the most secretive company of them all-
Summa Corp., the privately held concern of Howard Hughes.
With an estimated $300 million to $500 million already poised to be pumped
into the business in the next three years, at least three commercial mines could
be operating before the decade is out, possibly as soon as 1976. Each would suck
about 10,000 tons of nodules a day from the ocean bottom. Minerals thus would
join food and oil as the third major resource man has won from the sea.
Of all the novel ideas for exploiting the sea floated since the 1950s, mining is
the only one to surface so dramatically. Desalting of sea water is making head-
way. There are schemes to breed food through "aquafarming" and to extract
drugs from ocean life. There is even serious thought being given to the cold water
from ocean depths for air conditioning and power production.
But apart from more practical plans for siting deep-water ports, airports and
nuclear power plants far at sea, mining remains the one untried vision to lure
solid investment, "Everything else," says an Interior Department expert, "is
more esoteric and more distant."
23-317 0 - 73 - 21
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A Stupcndous Task
Mining's advent might seem unlikely at first, considering the stupendous physi-
cal task of gathering the exotic nodules and bringing them up. But in a world
where atomic energy and space flight are realities, mining the ocean floor seems
less awesome to government and industry in developed nations than the threat
of minerals shortages and exproprations on dry land.
The U.S. is facing a minerals shortage as well as the more publicized energy
shortage. A 722-page report by the U.S. Geological Survey concluded in May that
"the future drain on our mineral resources w-ill become enormous" and supplies
"will be drawn in large measure from resources that are now only subeconomic,
or not even discovered."
Already, the U.S. must rely on imports for 19% of its copper, 84% of its nickel,
92% of its cobalt and 98% of its manganese, the metals in the nodules. (Copper
is used in nearly everything electric. Nickel and cobalt, largely interchangeable,
are steel alloys. And you can't make steel at all without manganese.) Opening
just the three ocean mines immediately projected, says the Interior Department's
ocean resources chief, Leigh Ratiner, would give the country 12% of the man-
ganese it now imports, 41% of the copper, 54% of the nickel and three times
current imports of cobalt.
"We import these metals," Tenneco Chairman N. W. Freeman says, "mainly
from developing countries which are generally unresponsive to U.S. foreign
policy or which are increasingly combining among themselves to manipulate
prices upward or to control production and distribution to further their economic
goals."
Deep-sea mining certainly would lessen this country's dependence on such
sources. At the moment, though, there isn't any international law governing use of
the deep seabed. So there isn't any way for a company to stake a claim and start
raking in the nodules. Aside from the personal proclivities of Mr. Hughes, this
is the reason for the secrecy that envelopes deep-sea mining.
Each of the main contenders has combed the sea floor in exploration ships for
concentrations of nodules that might qualify as mine sites. With the exception of
Mr. Hughes, who doesn't say anything, they admit freely enough that they have
struck pay dirt. But nobody will say where, for fear someone might muscle in
on their spot.
"The name of the game is finding a mine site and keeping it secret," says one
deep-sea explorer. "Right now anybody with the will and the vessel can go out
and explore there."
Tenneco's ocean-research subsidiary, Deepsea Ventures Inc., is the one com-
pany that allows visitors aboard its exploration ship, the Prospector. (The likely
reason being that Tenneco is looking for a partner in the project, and publicity
wouldn't hurt the search.)
The 152-foot ship is a 35-year-old converted Great Lakes freighter. In its belly,
it carries a huge winch with 25,000 feet of cable wrapped around it. On the end
is a big tripod fitted with TV cameras, lights, still cameras and sampling devices.
The tripod is dangled about six feet from the sea floor and sends bobbing TV
pictures of the nodules, spread out on the bottom like pebbles at the seashore,
while the rolling ship moves ahead slowly on the surface.
There's a bank of advanced electronic navigation gear on the ship's bridge to
pinpoint its position and outline the sprawling deposits, each of which can cover
as many as 10,000 square miles. To guard against espionage, the ship never once
radios its position to land during its month-long voyages, and all radio commu-
nications of any kind are scrambled.
Despite the secrecy, it is plain from reports by academic scientists that the
companies are all looking hardest in a narrow, east-west band of "siliceous ooze"
on the ocean bottom just south of Hawaii in the Pacific. "Here, almost a con-
tinuous carpet of nodules lies at the surface," says D. R. Horn of Lamont-
Doherty Geological Observatory. Mining will be made easier, he adds, by a sea-
bed of "gently rolling hills."
Getting the nodules to the surface will be a major engineering feat in any
event. The key competitors contend they have the technology fairly well in hand
already. Kennecott, Deepsea and, reportedly, Mr. Hughes have all opted for
systems that literally vacuum the ore from the seabed using monstrous hydraulic
pumps suspended beneath a mining ship.
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High-Powered Help
In 1970, Deepsea, the Tenneco unit, ran a successful small-scale test of a mining
rig with a converted World War II freighter. On a grander scale, the Hughes
organization last November launched~ a specially built, 618-foot ship called the
Hughes Glomer Explorer, said to be capable of towing a 4,000-ton pipeline. The
cost of ship and equipment is estimated at upwards of $80 million. Working on
the project with Mr. Hughes are such high-powered concerns as Global Marine
Inc., Lockheed Corp., Honeywell Inc. and the Battelle Memorial Institute.
To the barely concealed consternation of the three principals, a fourth concern
says it has a far less expensive technique that uses buckets hung on a plastic line
to scoop up the nodules and dump them into a ship. The idea's promoter is John
L. Mero, who heads a 25-company international syndicate called Ocean Resources
Inc. (The participants aren't publlcly~ disclosed, but a sampling includes Ethyl
Corp., NL Industries Inc., Phelps Dodge Corp., Societe Le Nickel of France and
Nippon of Japan.)
A commander in the Japanese navy named Yoshio Masuda invented the bucket
method. Dr. Mero calls him "an inventive genius" and lists among his other ac-
complishments a buoy that converts wave movements to energy for blinking
lights and blowing whistles. "Mero is a loser," scornfully says a rival. But Wash-
ington reports from Japanese government sources say the bucket system may be
operative within the year.
Once the nodules are dredged and loaded into ore carriers, by whatever means,
the next step is extracting the metals. Traditional smelting methods won't work,
because the metals are scattered molecule by molecule through the porous
nodules. The companies say some sort of chemical treatment is in order, but their
particular techniques are shrouded from view. (Neither Kennecott nor Deepsea
would let a reporter peek at their pilot plants, for all he could gain from looking
at a pile of plumbing.)
Environmentalists Unconvinced
Sites for the plants, which will cost over $100 million apiece, also aren't dis-
cussed, though the West Coast and Hawaii are mentioned as possibilities.
Another rumor has it that Mr. Hughes is thinking of building his plant in
Nicaragua, perhaps explaining why he~ spent so much time in the country before
being rousted out by last year's earthquake.
About all the companies freely assert about their chemical processes is that the
treatment plants won't cause any air pollution. (They will accumulate large
waste heaps, however.) The companies also insist mining won't disrupt the deep-
sea environment, where hardly any life exists to begin with. Environmentalists
aren't entirely convinced but are hoping international controls will include eco-
logical protections.
One area where ocean mining's impaét may be more strongly felt is in the mar-
kets for the metals to be produced. A mine would go into operation for an invest-
ment of between $150 million and $250~milllon, and resulting prices are expected
to be competitive with those for metals from land mines. (In a prediction the
others call outrageous, Dr. Mero contends prices "would be so low they'd force
the land mines off the market.")
An infusion of metals from the sea, whatever the price, would eat into poten-
tial markets for land mines. This is a threat to some companies and several de-
veloping nations that rely on metals as exports.
International Nickel Co. of Canada, which produces half the world's nickel,
has responded to the challenge by investing $12 million to investigate ocean-
mining technology, but with the intent, observers say, of protecting its flanks by
eventually marketing cheaper landmined metal. The company has participated in
some of the cooperative attempts to push ocean-mining legislation, but, says a
competing executive, "Inco is like the man who comes to the wife-swapping party
without his wife."
Metals-exporting nations such as Chile and Peru are attacking the current min-
ing activity as an incursion into "the common heritage of mankind." They want
a complete halt to work in the field until the United Nations produces a treaty
governing exploitation. A conference on the law of the sea convenes next year to
do just that.
The companies, however, say they can't wait. They want Congress to pass
interim legislation to protect their investments before the UN acts. "We keep
reading and hearing of all the need for minerals in the furture," T. S. Ary, rep-
resenting the American Mining Congress, told a Senate committee. "The sea is a
source of those materials. If we can just go out and get them."
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[From the Wall Street Journal]
THE SEA-QUESTION OF WHO OWNS OCEANS BECOMES VITAL
AS EXPLOITATION GROWS
FISHING DISPUTES, POLLUTION, OIL & MINERAL EXPLORATION
FUEL A LEGAL CONTROVERSY
CIGARETS, SAKE, SILENT STARES
(By David Brand)
For nearly an hour now, the U.S. Coast Guard cutter Confidence has been
churning through the icy waters of the Gulf of Alaska chasing what first ap-
peared as a blip on a radar screen and then as a pinpoint of light on the horizon.
At a steady 13 knots the distant speck grows rapidly into a shimmering globule
of light and then a lantern lighting up the yellowing predawn sky. Now the
Confidence has reached its goal: the massive hulk of the Tomi Maru, a Japanese
fishing ship.
Richard Wight, captain of the Confidence, quickly checks his position. He is in
international waters 34 miles south of Cape Yakataga on the Alaskan coast. With
an economy of orders, the crew lowers a small boat. And, as its small crew of
officers and enlisted men sits sleepy-eyed and huddled against the brisk Gulf
wind the boat speeds toward the Japanese vessel.
The crew's mission: to board the Tomi Maru and take it into port if it turns
out to have any salmon or halibut aboard.
Boarding a vessel on the high seas in search of fish might sound impossibly
dramatic. But in 1973 the oceans are a vast world of confusion, where national
territorial claims often replace international laws. Thus U.S. tuna boats are
regularly seized by Ecuador and Peru. And confrontations between Icelandic
gunboats and British fishing vessels are a daily news item.
Normally Washington wouldn't sanction the boarding of fishing ships beyond
the 12 miles from its shores that it has claimed as U.S. fishing territory. Only in
Alaskan waters, because of an unusual 20-year-old treaty, does the Coast Guard
have the authority to board Japanese fishing ships on the high seas.
If a Japanese captain is found to have salmon or halibut on board (both for-
bidden catches under this treaty) the Coast Guard may take his ship into the
nearest U.S. port. Under the treaty, the Japanese government is expected to pun-
ish offenders.
Teelvnology Prompts Questions
The fact that elsewhere Washington feels it can do little to prevent a rapidly
growing invasion of the rich fishing grounds around its coast angers U.S. fisher-
men. But, a State Department official explains, the plain fact that the U.S.
doesn't own its coastal seas.
If the U.S. doesn't, then who does? And who owns the coastal waters of other
nations? And who owns the seas in between? It's a problem of increasing interest
both to governments and industry these days as lawyers struggle to find title to
the two-thirds of the earth's surface that until now has been regarded as "free."
Until the end of World War II they gave it little thought. But then a bounding
technology made the oceans ripe for exploitation. First, supertrawlers with on-
board factories made possible the harvesting and processing of fish by the thou-
sands of tons. Then deep-water drilling rigs made it possible to extract oil and
natural gas from the ocean bed. Now the prospect looms of mining the ocean floor
for the manganese, copper, nickel and cobalt sprinkled across its surface.
Not only the w-ealth of nations is at stake. Scientists worry that the rapid rate
of pollution of the oceans both by plastics and by oil-the latter the result of
the enormous postwar increase in tanker and freighter traffic-will cause incal-
culable damage to marine life. And who, they ask, should be responsible for
cleaning up the mess?
"Freedom to Ewpioit"
Some ocean scientists are also concerned that many coastal nations are intent
on staking out large areas of their coastal water for national exploitation. This,
it's feared, could hamper the free movement of oceanographic vessels.
But there is general, world-wide agreement on one thing: The centuries-old
idea of the seas as free must be replaced by laws as to their use. "Freedom of
the seas now means only the freedom to overfish, pollute and exploit," says Vlad-
imir Baum, the United Nations Secretariat's expert on ocean affairs.
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319
It will be the UN that will seek to grapple with these problems when it hosts
a law of the sea conference in New York in November and in Santiago next year.
It may be, says John Stevenson, a legal adviser to the U.S. delegation to the
conference, that this will be "the world community's last opportunity to reach
a peaceful settlement to these problems." He adds: "It sounds incredible to say
it, but today we have a completely lawless regime for 70% of the globe. The
necessity to reach a result is overwhelming."
Blame It on Hugo Grotius
The reason man finds himself in this predicament can be traced to an erudite
Dutch lawyer called Hugo Grotius who in the early 17th century declared the
doctrine of the freedom of the sea. The oceans, he decided, couldn't be possessed
by any nation but were free to be used by all men (later it was said that Grotius
was in the pay of the Dutch government, which wanted to justify piracy against
the Portuguese).
But the idea of the seas as free caught on. changed only by the desire of pow-
erful nations in the 18th century to keep foreign warships away from their
shores. Thus a three-mile limit, beyond the range of cannon shot, became univer-
sal and lasted until after World War II.
Then, says Oliver Lissitzyn, a Columbia University law professor, the advanced
coastal nations began to see the potential of burgeoning technology. "They real-
ized," he says, "that if the oceans belonged to everyone, then so did their re-
sources."
It was the U.S. that began to close the door, Prof. Lissitzyn says, when in
1945, with an eye on vast offshore oil and gas deposits, Washington declared it
had control over the U.S. continental shelf, the submerged land mass that ex-
tends out from the coast-distances ranging from a few miles to 150 miles. This
gave American oil companies the right to exploit the seabed well beyond the
three-mile limit. Today U.S. mining companies are attempting to push this even
further. They want Congress to license them to exploit huge blocks of the sea
floor beyond even the continental shelf.
Some other nations began to use the freedom of the seas to their advantage.
In the 1950s the Soviet Union and Japan both built huge, long-distance fishing
fleets with trawlers that could stay at sea for several months at a time.
By the mid-1960s there were nearly 20 nations fishing off the U.S. coast right
up to the three-mile limit. U.S. fishermen saw their catch dwindling, and in 1966
Washington gave their fishing grounds some protection by adding a nine-mile
fishing zone to the limit. Now the U.S.. fishing industry wants Congress to give it
even more protection by declaring a 200-mile zone.
Some nations have in fact gone this far to keep foreign fishing ships away
from their coasts. Both Ecuador and Peru have had a 200-mile limit for 20 years
and have been enforcing it by seizing intruders (over the years the two coun-
tries have seized some 150 U.S. tuna boats and fined them a total of $6 million).
Iceland, which relies heavily on fish for its overseas earnings, last year extended
its limit to 50 miles which has led to angry confrontations with British trawlers.
The UN has twice tried to end the confusion over who owns what, once in 1958
and again in 1960. Both times the member countries failed to agree. But ironi-
cally, as the UN prepares to try again there is widespread fear that this time it
will succeed and that the law will give all coastal nations a 200-mile limit.
Columbia University's Prof. Lissitzyn believes a majority of UN member
countries now want 200 miles of coastal area under their exclusive control, par-
ticularly the newly independent states (about 50 have been created since the
1958 sea conference). But the UN's Mr. Baum points out that a 200-mile limit
would be more likely to profit advanced nations such as the U.S., which generally
also have the longest coastlines and together would get more than 50% of the
new ocean territory (it's also estimated that with such a wide limit, about 35%
of the oceans would cease to be high seas).
However, the U.S. is adamantly opposed to a 200-mile limit, one reason being
the near impossibility of enforcement. Instead, Washington says it would agree
to a new 12-mile territorial limit for all. But it also suggests that coastal states
should have exclusive control over their fishing grounds beyond a 12-mile limit
and of the mineral deposits on their continental shelves, or out to a depth of
650 feet.
A group of nations, including the U.S., has also suggested that the mid-ocean
exploitation of mineral deposits should be governed by a new world body that
would grant licenses to mining and oil companies, turn over revenues to an inter-
national fund and possibly also enforce pollution controls. Another proposal, by
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Malta, would create a world organization to govern all users of the oceans, from
fishing to mining.
If the 200-mile limit does become the law of the sea, then Capt. Wight of the
cutter Confidence can tell coastal nations something about how to patrol their
new ocean territory. "It's impossible," be says. "If you can catch violators in
so many thousands of square miles then you're just damn lucky."
From their base on Kodiak Island, the 210-foot cutters of the Alaska Patrol
(the Confidence and the Storis) must cover avast area of ocean stretching from
Attn Island at the tip of the Alentians, 1,200 miles to the west, to the Dixon En-
trance, nearly into British Columbia, 700 miles to the east.
In between is an endless expense of ocean that is likely to harbor at one time
300 Japanese fishing ships and 150 from the Soviet Union.
These are no ordinary ships but huge trawlers, capable of hauling in 10 tons of
fish at a time, and "long liners" that set their bait on lines strung out across the
miles of ocean. "The U.S. has nothing to compare with them," says Jim Branson
of the National Marine Fisheries Service in Kodiak. "In the size of their catch
the Japanese and the Soviets are outfishing us eight to one off the coast of
Alaska." But, he says, there's little the U.S. can do to stop them.
Admittedly the U.S. is powerless to stop Soviet ships from fishing in Alaskan
waters. But to hold back the might of the Japanese fishing fleet the U.S. does
have the power of a treaty that prevents Japanese fishermen from taking salmon
in the eastern Bering Sea and the North Pacific and from catching halibut in
the North Pacific.
The Japanese signed the treaty when they first began fishing in Alaskan waters
in 1952. At the time, observers say, Japan was still a beaten power and had little
choice but to agree. A State Department man concedes that today "this isn't a
very popular treaty in Japan."
The major reason for this unpopularity is that the treaty gives the U.S. the
unusual right to board Japanese fishing ships on the high seas. If illegal catches
of salmon or halibut are found on board, the Coast Guard can order the Japa-
nese captain to take his ship into the nearest Alaskan port for an unofficial court
of inquiry. The evidence is then banded over to the Japanese Fisheries Agency
for prosecution.
The Alaska Patrol, a joint effort of the U.S. fisheries service and the Coast
Guard, has been enforcing the treaty since 1961. In the early years, says Mr.
Branson, there was little activity. But in 1965 a Japanese ship was found
catching salmon in a forbidden area, and in 1967 the first halibut violation was
uncovered. Last year four salmon boats were handed over to the Japanese for
prosecution. The owners received heavy fines and suspended prison sentences,
and their boats were not allowed to fish for 100 days.
Of four offenders so far this year, three were found by a Coast Guard heli-
copter to be catching salmon off the Aleutians more than 600 miles into the il-
legal fishing zone. Mr. Branson describes watching the Japanese captains at-
tempting to hide the ships' names under tarpaulins and then throwing their
salmon nets into the sea to get rid of the evidence (these were later recovered by
the Coast Guard). The ships nearly got away, but a Japanese Fisheries Agency
patrol boat caught up with them several days later.
The fourth offender was a large trawler, the Asu Maru, which was taken into
Kodiak by the Storis in June. The Coast Guardsmen discovered halibut stored in
the ship's refrigerated hold during the course of a routine boarding of the Asu
Maru.
Capt. Wight, a bearded, affable man, knew his chances of catching a violator
were very slim when he left Kodiak recently for a patrol across the Gulf of
Alaska. During the 21,000 miles the Confidence has traveled this year, the crew
has made about 17 boardings but hasn't found any errant fishermen.
The captain also knew that even trying to find the Japanese ship was like
wandering lost in a large city. With thousands of miles of ocean around him he
must rely on the hawklike eyesight of his crew and on his radar, which can "see"
only 15 miles on all sides.
On this latest patrol his main hope is that an occasional Coast Guard plane or
helicopter patrol will spot a ship and radio its position. No patrols are scheduled,
so Capt. WTight decides to head for the Shelikof Strait on the western side of
Kodiak Island, where, it is rumored, halibut boats have been seen. It takes two
days to reach the area and to discover that the only fishing is being done by
small U.S. boats.
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The previous week Capt. Wight heard a report that Japanese trawlers were
in the Gulf of Alaska, south of Middleton Island. Another day is spent in reach-
ing the area, with only sightings of killer whales and porpoise to break the
monotony for the 65-man crew. But the trawlers have apparently left the area.
It isn't until the early morning hours of the fourth day that a blip is noticed on
the radar screen. The blip indicates that a large vessel is moving slowly about
13 miles to the south. "It's got to be Japanese," says the captain.
A lookout on the bridge searches the dusk-covered horizon with his binoculars
while the navigator works out the cOmputations that will put the Confidence on
a course that will enable it to intercept the distant ship.
Within an hour the Confidence is alongside the Tomi Maru, a Japanese long
liner. Capt. Wight orders the members of the boarding party out pf their beds,
including Timothy Canby, a young ensign who speaks Japanese.
Before the small boat is lowered. Capt. Wight repeats instructions to the crew
that permission to board the fishing ship must be given by the Japanese captain.
"We have to use diplomacy," he said later. "We can't force our way on board. The
last thing we want is an international incident."
The Tomi Maru's captain, Onodera Shohei, is waiting anxiously when the boat
arrives alongside. He immediately agrees to Mr. Canby's request to board.
An inspection of the deep-freezer hold reveals only a haul of black cod, perch
and pollack. Later, in the captain's cabin (which is replete with electronic gear,
from depth gauges to a machine that receives and prints out weather maps), the
crew of the Confidence and Capt. Shohei exchange gifts: cigarets for the Japa-
nese and sake for the Americans.
But dispite the captain's pleasantries, there is ill-disguised resentment by his
crew of the foreigners who are inspecting their vessel on the high seas.
As the U.S. boat draws away, Capt. Shohei and his crew stand silently watch-
ing. There are no good-bye waves.
[From the Wall Street Journal, Tuesday, Oct. 2, 1973]
THE SEA: POLLUTION OF OCEANS Is ENORMOUS THREAT, BUT FEW PEOPLE CAER
SCIENTIFIC UNCERTAINTY ADDS TO THE PROBLEM; "BUSINESS AS USUAL,
PENDING ANNIHILATION"
How dangcroi~s is oil slick?
(By Barry Newman)
It is the last pollution.
Last to seep into public consciousness; last to be treated by the rule of law;
last to be analyzed by science.
It is the last pollution because it is into the oceans-the ultimate sewer-that
all the wastes of man that aren't piled or buried on land must find their way.
And it is the last pollution because if the oceans-source of most oxygen-are
poisoned, life on earth as we knew it cannot go on.
The enormity of the prospect has led some to statements like these:
Sen. Ernest F. Hollings: "We are killing the great oceans of this planet, and
unless we stop this madness, mankind itself may perish from the face of this
earth. And that would be the irony of all ironies-man having evolved from
the oceans, only to die because he has killed the very source of all life."
And Jacques Cousteau, ocean explorer: "I think if nothing was done today,
iria~be 30, 40 or 50 years would be the end of everything."
These are momentous predictions. Yet the soothsayers are being shunted aside
by governmental unconcern, public unawareness and scientific uncertainty over
their prognostications.
~S'haring the riches
There is a "brick wall of indifference" toward ocean pollution at meetings
leading to the coming United Nations-sponsored Law of the Sea Conference, says
John Hussey, an expert on the Senate Commerce Committee staff. "Everybody
wants to share in the riches of the ocean," he says, "leaving protection of ocean
resources off in a corner."
The public seems unaware of ocean-pollution issues, despite the upwelling of
interest after a few dramatic oil spills. Organized environmentalists have taken
until this summer to address the problem, in the form of a last-minute Sierra
Club attempt to influence the Law of the Sea talks.
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"People had too many things to look at all at once when the environmental
movement hit," says Gene Coan, the Sierra Club official directing the effort.
"Ocean pollution is tough to get hold of. It is an order of magnitude more
complicated than any pollution problem confined to national boundaries."
Behind the indifference and unawareness of most people and many govern-
ments lies the most unfathomable difficulty: a great gap in scientific knowledge
about pollution of the seas. A gush of research following oil spills of the 1960s
barely has `begun to lay the groundwork for decades of study needed before pee-
pie can know just what pollutants are in the sea, how much there is of them,
where they go once there and what effect they eventually will have on life in the
oceans and on land.
Panoply of pollutants
"Despite `broad general consensus about the contaminants which represent the
greatest threat of global pollution," says Robert M. White, head of the National
Oceanic and Atmospheric AdminiStration, "knowledge of their full extent, their
fate and their impact on the ocean ecosystem is scanty at best."
What is known is that in the most intense instances of contamination around
coastal areas, pollution kills. The evidence is clear enough from the quick death
of marine life after `larger oil spills, the fact that 30% of this country's clam and
oyster beds are fouled by human wastes, and the near absence of life in harbors
stricken `by a panoply of pollutants.
The body of knowledge is growing steadily, fed `by platoons of scientists in
dozens of government, university and industry laboratories. But every new reve-
lation seems to open a Pandora's box of questions and contradictions.
Even basic statistics on the amount of oil en'tering the sea via spills have varied
widely. Now those unreliable estimates are themselves being upset by fresh sug-
gestions tha't a huge percentage of oil pollution comes not from ~pills but from
airborne anti-exhaust emissions drifting to the ocean surface. Here again, there
aren"t any numbers to trust. The best estimates, says Mr. White, "are still
tenuous."
The ubiquitous chemicals
`Breakthrougl1s are `being made in the discovery of new forms of pollution far
out to sea. The most celebrated revelation has been that a chemical family called
polych'lorinated biphenyls, used in paints, inks and plastics, can be found in
virtually every organism in the North and South Atlantic, at depths up to 11,000
feet.
But how these chemicals-as well as plastic particles and the propellants in
aerosal cans-have become so widespread is a mystery. How dangerous they are,
in small doses over the long run, is another enigma. (In large doses they can
change behavior and reproductive pa'tterns in the same manner as DDT, another
almost universal contaminant. Monsanto, the only U.S. producer, has stopped
making the polychlorinated biphenyls.)
Bostwick Ketchum, Associate Director of the Woods Hole Oceanographic In-
stitution, adds that "a variety of synthetic organic chemicals, including other
pesticides, detergents and pharmaceuticals are also undoubtedly reaching the
marine environment with impacts that are virtually unknown."
Scientific advances are sometimes softening earlier fears of ocean hazards.
Not long ago, it was thought tha't the crown-of-thorns starfish was destroying
coral reefs because of some man-induced perversion. Now, evidence indicates the
starfish's unfortunate appetite is a natural one. Mercury contamination was be-
lieved to be a great modern threat until the Smithsonian Institution found com-
parably high levels of the metal in fish that had been preserved for thousands of
years.
Backtracking like this, however, only demonstrates how limited knowledge is
a'bout pollution of the sea, and, as in many an unpolished science, conflicts crop
up between `the results of separate investigations. In the ocean-pollution field,
though, the stakes can be high. A donnybrook of major proportions is growing
around questions about the long-range effect of oil in the oceans. The petroleum
industry argues that oil degrades, or breaks down biologically, in the sea `and
therefore isn't harmful for very long. Other researchers, with evidence to the
contrary, say damage from a single oil spill can be felt for decades.
Max Blumer, a senior scientist at Woods Hole, is conducting an exhaustive
study of the effects of a relatively small oil spill that took place in Cape Cod's
Buzzard's Bay in September 1969. Long af'ter the visible presence of oil h'as gone,
small amounts are persisting in a surprisingly wide area around the site of the
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spill. Among Mr. Blumer's conclusions to date is that "oil degrades slowly only
in marine sediments, and it may be completely stable once it is taken up by
organisms."
Extremely low concentrations of oil and other pollutants may have "seriously
damaging biological effects," Mr. Blumer warns, adding that "our general ignor-
ance" of the details isn't an excuse `for complacency if such effects aren't im-
mediately obvious in gross observations of polluted areas."
With its own army of petroleum chemists, the oil industry is squaring off
against the conclusions of the Woods Hole study." Oil is messy and ugly and
gets on people's feet," says Arne Gabrud, director of environmental affairs for
the Armerican Petroleum Institute, "but it's nowhere near as insidious as ocean
dumping of garbage or heavy metals, or so serious as to justify interminable
delays in needed projects like the Alaska pipeline."
Ci~rbing the obvious
The institute is spending $500,000 a year on oil-pollution research. It has
financed a study, still unpublished, that Mr. Gabrud says will show that marine
animals contaminated b~ oil "cleanse themselves" when placed in clean water.
Mr. Blumer doesn't doubt the findings. He only asks that they be "placed before
the scientific public" for scrutiny.
Other scientists, however, complain of feeling pressured by the industry's
public-relations front. "You can really catch hell trying to publish a paper on
petroleum in the sea," says another Woods Hole Scientist. "They try to deny
everything you say, attack your analytical methods and completely discredit
you."
Nevertheless, the U.S. eongress has taken steps to curb the most obvious oil
spills. Legislation applying to all the nation's waterways went into effect in
1972 outlawing any spill that forms a visible sheen on the water. Civil penalties
were provided and a fund of public money established for cleaning up spills
when those responsible can't be found. The results apparently have been sub-
stantial. "I used to be able to go up Arthur Kill and see an oil slick almost any
time," Richard Dewling, an Environmental Protection Agency surveillance
director, says of a notorious New Jersey estuary. "I can't do that any more."
Further legislation calls for new safety standards in tanker construction and a
harbor traffic control system. Solid waste also has come under federal supervision
with a 1972 law setting up a permit system for ocean dumping.
But there are problems. Environmentalists and others accuse the Coast Guard
and the EPA of foot-dragging on enforcement. The administration has impounded
funds on another bill intended to improve planning of coastal development.
Technology for cleaning up big spills remains backward. (At August hearings
on its proposed $350 million refinery off the Maine coast, Pittston Co. admitted
a spill in a four-knot current couldn't be contained.)
No boundaries at sea
Perhaps the most telling problem, though, is the one that distinguishes ocean
pollution from the earth's other environmental ills: Pollution of the sea is an
international phenomenon that can never be controlled by the laws of a single
nation, no matter how forceful they are.
"Refuse dumped inside the Peruvian territorial waters equals refuse dumped
around the shores of Polynesia," Thor Heyerdahl, the anthropologist, told a
Senate committee after seeing globs of Oil throughout his drift across the Atlantic
in a reed boat. "Refuse dumped inside the Moroccan territorial waters equals
refuse dumped inside the Caribbean sea."
International controls plainly are the only means to deal with the problem
because "territorial" seas are perpetually mixing. The threat, moreover, can
only grow worse as oil shipment mutiply and offshore development of super-
ports and refineries becomes a reality.
There already are a few controls, among them three international conventions
dealing with prevention of oil pollution from tankers and liability for spill
damage. Cirtics including the Sierra Club attack them as unenforceable. Last
November, 91 nations endorsed international controls over ocean dumping by
ships and aircraft. The rules are stronger than dumping legislation adopted
in the U.S., but they don't touch at all on questions of land-source pollution.
As if ecology never happened
It remains for the Law of the Sea Conference, convening in New York in
November and then in Santiago next May, to draft genuine international ocean-
PAGENO="0330"
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pollution controls. Yet the prospects seem dim. "It is as though ecology . . . and
Stockholm (the UN Conference on the Human Environment of last year) bad
nev;?r happened," says Brian Johnson, a British authority on international law.
"It looks like business as usual, pending annihilation."
At this stage, the conference seems unlikely to create an independent pollu-
tion regulatory authority, provide any significant enforcement capability or im-
pose any controls over ocean pollution that originates on land. In the newest
and potentially most competitive area of deep-sea mining, the conference isn't
expected to ask for "impact statements" or to separate the agency that will en-
courage mining from the one that will regulate it.
The Sierra Club is outraged at the situation. On the mining issue, the club
maintains the conference may throw away a rare chance to proceed cautiously
before any environmental damage is done. Companies intent on mining the sea-
bed, on the other hand, are itching to get started. They insist damage won't re-
sult from what they plan to do. Perhaps they're right, but the potential for pol-
lution by deep-sea mining-which has never been attempted on a grand scale-
is substantially a scientific unknown. Nobody has proven that it might be harm-
ful, and until that is done, it seems unlikely that an international conference
worried about commercial considerations and minerals shortages will endorse
tough rules to control it.
As with pollution by oil and plastics and solid wastes, the issue of mining pol-
lution is again hamstrung by the dearth of fundamental scientific knowledge.
"The root of all these problems is that we don't even know what to predict will
happen in a natural ocean environment, much less in a polluted one," says Rich-
ard McGrath, a young marine biologist.
The tedious "baseline" work
Mr. McGrath is one of the legion of scientists doing the tedious work of gather-
ing "baseline" information about the character of the sea. He is working on one
small project for the National Oceanic and Atmospheric Administration. His job
is to find out what is alive at the bottom of Raritan Bay, a triangular funnel
through which pollution from the factories and refineries that dot the shores of
New Jersey's Arthur Kill pours into the Atlantic.
On his 50th excursion in nine months, the waters of Raritan Bay are smooth
and green-gray as the oceanographic agency's converted Army tugboat glides
through the garbage at the leading edge of eNw York harbor's ebb tide. For seven
hours under a steamy sun, Mr. McGrath and several college-student helpers grab
samples of the black, oily muck from the bottom of the bay in the jaws of a
small, spring-operated dredge. Each sample is sieved, and each living worm, clam
and crustacean is saved in a bottle.
Back at a laboratory on New Jersey's Sandy Hook, every animal in every sam-
ple will be picked out, identified and counted. It can take one researcher two weeks
to finish work on a single bottle. The purpose is to provide some touchstone for
future measurements of the effects of pollution in the bay and efforts to abate
it.
"After a while, every worm begins to look the same," says Barry Trotsky, one
of the student aides. "It isn't the kind of work you dream of when you hear the
word `oceanography,' and it may take 50 years for the results to be appreciated
or understood. But it's the work that has to be done."
[From the Wall Street Journal, Thursday, Oct. 18, 1973]
THE SEA: How AQUARIUM MIXES SHOW Brz AND SCIENCE To ADVANCE
KNOWLEDGE
INSTITUTION ON CONEY ISLAND IS HOME OF 1,286 CREATURES FROM A `SHRINKING
WORLD'
A Pengui'7v Takes the Subway
(By Donald Moffitt)
NEW YORK-Can stuff from the sea cure cancer and cold sores? What is bar-
nacle cement made of? Are whales smarter than people? Can a fish with a pedi-
gree 57 generations long tell us how the type of cancer called melanoma occurs?
Questions like these are getting answers, thanks in some part to a sentimental
television script and a dolphin named Flipper. His TV series, broadcast by NBC
from 1964 to 1968, helped promote a vast and enduring interest in the study,
PAGENO="0331"
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training and exhibition of marine animals. The crowds paying to see them, and
the public and private philanthropies paying for studies of them, are helping
support the facilities-a dozen major aquariums and oceanariums-where much
of the nation's research in marine biology is taking place.
One of the oldest and most professional of `these institutions is the New York
Aquarium and its research affiliate, the Osborn Laboratories of Marine Science,
both governed by the New York Zoological Society. At the aquarium and labor-
atories-near the Cyclone roller coaster and Nathan's Famous on Coney Island,
a few blocks from, streets with tawdry bars and hard-looking prostitutes-a cos-
mopolitan group of naturalists mixes Flipperish showmanship and pure science.
Cerebral Cetaceans
At times, it might as well be Marineland. In a pool outside the aquarium,
Alex, a 13-foot, 1,800-pound beluga whale, is amusing several hundred children
and their weary schoolmarms. Alex looks on bright-eyed as a trainer shows him
four big plastic squares, three black and one white. The squares are spaced
along the edge of a platform, and the children are told Alex has been signaled to
identify the white one. Sure enough, he swims right up to it, and then heads for
his reward, a fish, while the children cheer.
Science is interested that Alex can tell black from white. It is more interested
in the sophisticated, behind-the-scenes research that can explain why. At the
laboratories, you may find Myron S. Jacobs, a neuroanatomist, studying thin
slices of tissue from the brains of cetaceans-whales and dolphins. (It taaes
two years to dehydrate a whale brain and infiltrate it with a supporting medium
before slicing tissue samples.) Among other things, Mr. Jacobs has found that
the number of nerve cells in the cerebral cortex of these `animals exceeds man's
14 billion. If the cetacean cerebral cortex processes ideas and memories as man's
does, the animals indeed may be smarter.
Alex shares the acquarium with 1,285 other creatures, by latest count. They
represent 187 other species and subspecies ranging from big sea lions to tile
near-weightless organisms that make up the aquarium's sponge colonies. Most
are fishes, costing $20 to $50 each to procure; but prices on the protected mam-
mals, dolphins and whales, start at $2,000 or so. Thanks to air freight, even
the big ones can be shipped long distances safely. The fishes and other animals
generally thrive on diets of smaller fishes, squid, clams, shirmp, worms and
processed dry foods; they devour 500 pounds or so in all each day.
If keeping marine creatures were easy, and showing as many kinds as pos-
sible the only goal, running the aquarium would be routine. Instead, says
James A. Oliver, the aquarium's director, "We're trying to jump back and
forth from one hot stove to another."
Rain water and romance
Because 25% of the animals die each year, maintaining the population is a
continuous job. Some, of course, do live a long time. A walrus named Olaf, once
the prime attraction, made the aquarium his home for nine years before he died
in 196G. Some striped bass have been around since 1958, tarpons since 1957. But
the typical fish survives only four years.~
Collecting expeditions range as far as Alaska and Antarctica. Most are closer
to home. Many specimens-bluefish, pOmpano, rays and skates, cod, sea robins
and others-come from waters right off Coney Island. In yachts borrowed from
the zoological society's wealthy trustees, aquarium collectors sometimes visit
trawlers at sea to inspect catches for fish tl1ey need or can trade to other
aquariuma.
This is a chancy way to gather desirable specimens, so the aquarium tries to
breed its own, especially the rarer, endangered and expensive species. But breed-
ing wild fish can be frustrating, because~many will cooperate only in response to a
complex set of biochemical and enviroilmental cues either unknown to aquarists
or hard to duplicate.
For years, fish keepers tried unsuccessfully to breed the black piranha from
South America. Then in 1970 the aquarium's Werner Schreiner found that drop-
ping the water level in the fishes' tank and pouring in fresh water would prompt
them to spawnS Apparently this procedure simulated the seasonal cycle of dry
weather followed by the natural runoff of rain water that cues spawning in their
natural environment.
PAGENO="0332"
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Recreating a shrinking world
"We were the first to breed and maintain this particular species of piranha,"
says Mr. Oliver, a Missouri-born zoologist specializing in herpetology who directed
the American Museum of Natural History for 10 years before joining the
aquarium in 1970. For its feat, the aquarium won the Edward H. Bean Award
of the American Association of Zoological Parks and Aquariums (now the
National Recreation and Park Association), given for "the most notable birth of
a fish."
Displaying these strange creatures can pose difficult questions, for many of
them would be hidden or camouflaged in a totally natural environment. To stay
as nearly self-supporting as possible, Mr. Oliver observes, the aquarium must
"fill a recreational function". At the same time, policy, tradition and curatorial
philosophy require that the aquarium be educational. "We mean educational in
the broad sense of exposing city children and adults to the shrinking aquatic
world," says Simon Dresner, curator of publications for the zoological society.
In keeping with this aim, the aquarium's newer exhibits attempt to teach as
well as to display odd animals. Each of seven new tanks, for example, contains
fishes in habitats that illustrate such principles of survival as symbiosis, camou-
flage and other protective coloration. Other new exhibits, with reconstructed
reefs, mangrove swamps and grassy flats, show how various creatures are adapted
to filling specific ecological "niches." You can't see all of the animals all of the
time, but the aquarium displays detailed explanations of what and where they
are.
As part of a long-planned but still unfinanced multimillion-dollar expansion
(the zoological society must depend on the hard-pressed city government for
part of the needed capital), the aquarium plans even more-naturalistic displays.
If the money comes, the city-owned property next door, where Coney Island's
famed Cyclone now- is located, would become a miniature cross-section of Long
Island, a strip that would fall from hilltop to seashore over 15 acres. It would
have a trout stream, a freshwater pond, a bay, swamps, and marshes. All would
attract, or be stocked w-ith, fishes, mammals, reptiles, amphibians and birds found
in the wild. Unlike the wild, an underground glass-walled tunnel would permit
visitors to get a worm's-eye view of nature without violating the exhibit's scien-
tific integrity.
Opened in the Bronx Zoo in 1902, the aquarium was the first permanent public
fish display in the United States. (The first anywhere, in the London Zoo opened
in 1853.) Shuttled from the Bronx to Battery Park at Manhattan's southern tip,
the aquarium moved to Coney Island in 1957. It cost $1,550,000 to build. Since then
another $1.5 million has gone for expansion and renovation. Officials estimate it
would cost $6 million to $7 million to duplicate today.
Planning, engineering and construction took 12 years, because the technology
of keeping big amounts of pure salt w-ater was just being perfected. Toxic in its
reactions to metal, salt water contains 67 chemical elements and thousands of
species of microscopic organisms whose lives and deaths affect its toxicity,
acidity, and food, oxygen and carbon dioxide supplies, all of which must be con-
trolled precisely.
Drilling for salt water
For big outdoor tanks the aquarium poured concrete reinforced by steel (al-
though sea w-ater even in such tanks, after 20 years or so, can penetrate and
corrode). For movable habitats inside, designers created tanks of strong, light-
weight composition board, high-strength glass up to two-and-a-quarter inches
thick, and nonmetallic aerators and filters. The water came from 200 feet under-
ground. Two w-ells drilled to a sand layer at that depth can produce 800 gallons a
minute of pure salt w-ater at just the right temperature, 53 degrees, for most of
the aquarium's inhabitants. In all, the tanks now hold and circulate about a
million gallons of water.
A staff of 30 maintains and protects the aquarium, along with an electronic
alarm system; though vandalism is infrequent, somebody once broke in and
tried to harpoon a whale, and a missing penquin once turned up inexplicably
in a New York subway car. Another 30 people, scientists and technicians, staff the
adjoining Osborn Laboratories.
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Osborn is notable, even among marine research institutions, for two reasons:
Nearly all its projects cut across traditional dividing lines to engage scientists
in two or more specialties, and nearly all its projects are related to health-
partly because institutions like the National Institutes of Health and the Rocke-
feller Foundation finance much of its research.
Its director is George D. Ruggieri, a chemical embryologist whose scientific
studies interrupted so much of his theological work that it took him 12 years to
become a Jesuit priest. After being ordained, he went back to work as a scientist.
With several other researchers, among them Ross F. Nigrelli, former Osborn
director, and Martin Stenipien Jr., Father Ruggieri is helping to isolate new
biochemical compounds from sea animals and test their effects on others.
Medicine from a sponge
About 80% of the world's creatures live in the ocean. rflfl5 leads scientists to
believe that more naturally occurring antibiotics may be found there than on
land. But medical research largely has focused on land animals. Thus, some
researchers believe, the sea offers a vastly larger potential for truly startling
discoveries.
Some experimental evidence backs this belief, and sponges offer a good ex-
ample. Scientists long suspected that sponges produce potent and possibly bene-
ficial chemicals. Few other creatures eat sponges, they seem immune to most
diseases from the microscopic organisms they eat and live with, and yet they
can't run away from predators and they have no obvious defenses.
In the early 150s, a Yale biochemist, Werner Bergmann, found in common
West Indian sponges some new compounds he called spongothymidine and
spongouridine, related to the chemical "building blocks" that form deoxyri-
bonucleic acid, a basic genetic material. The compounds proved to be antiviral
agents. Since then, a chemically similar, synthetic "analog" called D-arabinosyl
cytosine has been found effective in treating virus infections like herpes simplex,
which causes cold sores and may be related to cervical cancer.
One of Mr. Bergmann's students at the time was Martin Stempien, then a
Yale undergraduate. "I was so impressed by Bergmann's research," he says,
"that I stayed on and did graduate work in sponges."
Now on the Osborn staff, Mr. Stempien has begun a systematic search for new
toxic and therapeutic chemicals in sponges. Over the years he and his colleagues
have analyzed the chemistry of some 400 species and found a number of new
compounds which, though not necessarily useful as drugs, could lead to the
synthesis of analogs that may be.
The gxtless wonder
Largely because of Mr. Nigrelli, a pathologist, Osborn has become a leading
source of information on fish diseases. Mr. Nigrelli also is a discoverer of holo-
thurin, a cancer-inhibiting chemical fOund in the highly toxic intestines of a
starfish relative, the sea cucumber. This animal booby-traps predators by ex-
pelling his intestines at them. Then he hides out to grow new ones.
Berlin-born Klaus Kallman always wanted to be a geneticist but, he says,
"I didn't like mice." So he wound up at Osborn studying genetics in some coin-
mon tropical fish, the swordtails and platyfish. Among many other things,
Mr. Kallman has found how the same gene that controls the rate of sexual
maturation and size in playfish also determines their coloring.
Why the relationship? Dull-colored platies are big and slow to mature, but
they're not so likely to be eaten by predators before they spawn. Smaller, bright-
colored platies, on the other hand, mature so fast they get a chance to spawn
before they're gobbled up by their neighbors.
By crossbreeding and backbreeding platyfish native to separated rivers, and
contrasting the results, Mr. Kaliman found something even more curious. Dif-
ferent genetic combinations were the cause of identical color patterns in fishes
from different rivers. This suggests, for one thing, that the color patterns and
related factors are so important that nature demanded the same results even
from different genetics.
Some of the Kailman research has been financed by the National Cancer
Institute. Some swordtail-platy hybrids develop melanoma, cancer of the pigment
cells, `believed to be of genetic origin. The genetics can be mapped easier and
with more certainty than in human studies because of the fishes' long pedigrees;
some of those at Osborn have been bred for 57 generations.
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[From the Wall Street Journal, Friday, Nov. 2, 1973]
THE SEA: AT WOODS HOLE, LIFE Is CASUAL BUT DEDICATED TO
EXPLAINING OCEANS
`OCEANOGRAPHIC'S' SCIENTISTS SEEK OIL, TEST CURRENTS, PROBE THE EARTH'S
HISTORY
The Knorr, the Chain ~ Alvin
(By Thomas EhriCh)
WOODS HOLE, MASS-Cameron Gifford scoops up two nickel-sized baby oysters
and marvels at how fast they're growing, four to five times the normal rate.
They're thriving on sewer water from a nearby Air Force base. And so are
algae, abalone, seaweeds and "sea lettuce" in other tanks nearby. They're all
part of a miniature "eco-system" being tested here at Woods Hole Oceanographic
Institution to see if marine life can "recycle" sewage.
Cam Gifford also marvels at his own growth. Just one year ago, he was in a
"comfortable rut" chairing the biology department at Earlham College in land-
locked Richmond, md. Today, after a year at Woods Hole, the neatly bearded
41-year-old scientist feels more alive. Freed from bureaucratic details, he has
more time for research and more time to himself. He's reading novels as well as
scientific fare and is about to make that ultimate commitment to seaside life,
buying a larger sailboat.
The "Oceanographic" does that to people. Ever since it began 43 years ago as a
summertime diversion for yacthsmen-scientists, the institution has been luring
top scientific talent to this picturesque Cape Cod village.
At first glance, the institution seems scarcely different from the resort area
surrounding it. Casual attire is the rule. Shorts are standard attire in summer.
Jeans and old khaki trousers in winter. Only the director and two assistants wear
ties regularly, and even they don't w-ear jackets. Everyone is on a first-name
basis. There's a notable absence of memos, meetings, appointments and bureau-
cratic boggle.
Underwater mountains
But the resort look is deceiving. After the~"ve bicycled or boated to work, the
scientists here dive into a bewildering and exhausting array of research ac-
tivities aimed at explaining the vast oceans and making them more useful to
man.
Geologists here, for example, are seeking clues to the earth's history and new
sources of oil by surveying the continental margins off West Africa and Brazil,
taking core samples in the Indian Ocean, mapping the Atlantic floor and diving
10,000 feet to look at massive underwater mountains and valleys.
Woods Hole's physical oceanographers, aided by new methods, are reexamining
the oceans' currents, especially the mysterious Gulf Stream. Biologists are prob-
ing effects of ocean pollution and seeking new sources of seafood. The far-
ranging chemistry department is studying oil spills, pollutants in the marine food
cycle, chemical communication among sea animals and the puzzling, mineral-
rich "hot brines" of the Red Sea.
Woods Hole's particular pride is its ability to do research in the deep ocean.
Its six-vessel research fleet, complete with seagoing computers to perform its
complex analyses, last year logged some 130,000 miles at sea. It has pioneered
development of measuring and sampling techniques used by oceanographers
throughout the world.
"Rich man's hobby
The institution even has a modest education program, including a joint doctoral
degree program w-ith the Massachusetts Institute of Technology, summer fellow-
ships for undergraduates, summer seminars for scientists, and an experimental
course in marine policy and ocean management for social scientists and law
students.
Woods Hole has come a long way since 1930, when Henry Bigelow, a Harvard
biologist, set out with $3 million of Rockefeller and Carnegie money to start
an Atlantic coast research operation comparable to the Scripps Institute of
Oceanography in California.
Oceanography then was a "rich man's hobby," says Paul Fye, director of Woods
Hole. Its chief activity was "water catching," an empirical exercise that sought
little more than to describe basic ocean characteristics through measurements of
salt content and temperature.
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Mr. Bigelow chose the village of Woods Hole largely because it already had a
scientific reputation, both as home of the Marine Biological Laboratory and the
U.S. Fisheries `Commission, and because it was a favorite summer retreat for
Cambridge intellectuals. The 296-year-old village, located at `the southwest elbow
of Cape Cod, was a whaling center in the early 19th century and inter was a
center for converting seagull droppings into fertilizer.
Tearful farewell
Mr. Bigelow put up a classic New England brick building, complete with white
cupola, and had a specially designed research vessel, the Atlantis, built in
Denmark. The majestic 142-foot, two-masted sailing ship was sold to the Argen-
tine government in 1966, and when the new owners "sailed her out of the harbor
I don't think there was a dry eye on the dock," says Mr. Fye.
For 10 years, *the institution opened only during the summer. A handful of
scientists would take out the Atlantis for sampling expeditions lasting a week
or so. The main project was to map the currents of the North Atlantic. It was
leisurely and, thanks to the Atlantis, "very romantic," Mr. Fye says.
World War II ended the idyll. The Navy drafted Woods Hole `to do research
on underwater acoustics and underwa'ter explosives and `to find ways to prevent
barnacles and other marine life from fouling ships' bottoms. The marine-fouling
work paid off, the Navy later said, `by cutting fuel bills 10% and saving many
ships.
It was the acoustics work, however, that paved the way for modern oceanog-
raphy. "That was the work that encouraged the Navy to `believe they had to know
more about the oceans than they did," says 82-year-old biologist Alfred C.
Redfield, one of Mr. Bigelow's early recruits.
With Navy support, Woods Hole has kept growing. Though it's a priva'te,
nonprofit institution run by 24 trustees, the Oceanographic gets nearly `all its
funds from the government, mainly `the Office of Naval Research. This year's
$17 million budget, triple the level of 12 years ago, includes only $1.8 million
from nongovernment sources.
Woods Hole's fleet reflects the Navy's interest. `The 245-foot R. V. (for
research vessel) Knorr was built and is owned by the Navy. `The 213-foot R/V
Chain is a converted Navy salvage tug. The Atlantis II, 210 feet long, was
built by Woods Hole using funds from `the National Science Foundation, another
large government supporter. Woods Hole has two smaller vessels for coastal
work, plus the tiny three-man submarine Alvin and its oddly shaped mother
ship, Lulu, a catamaran made from east-off Navy pon'toons. `Both Alvin and
Lulu are owned by the Navy. Woods Hole soon will have another large research
ship, the 179-foot Oceanus, which `the National `Science Foundation is financing.
The institution's campus sprawls over 20 acres in the congested center of
Woods Hole. It includes modern lal~ plus nearly every other gv'ailable structure
in town, including a former Methodist church, an ex-drugstore and many former
residences. Next spring, half of the 750-person staff will move two miles away
to a densely wooded new 183-acre campus overlooking Vineyard Sound.
A GEOLOGICAL DISCOVERY
Woods Hole doesn't claim dramatic discoveries, but rather takes pride in
steadily pushing `back the frontiers, particularly in deep-ocean research. For
example, geologist K. 0. Emery recently filled in one missing piece of the "con-
tinental drift" theory, which holds that the North and South American continents
once were joined with Europe and Africa in a single l,and mass.
Experts believe Europe and North America started spreading some 190 mil-
lion years ago, wedged `apart by tremendous volcanic forces. As they s'pread, the
North Atlantic was formed. And it was thought that the southern continents
didn't spread for another 80 million years or so.
Not so, Mr. Emery concluded on a quiet Sunday in July. He was `back at his
75-year-old gray shingle house `after six months at sea, toying with some new
data, when he reached the conclusion that the South Atlantic i's substantially
older t1~an `anyone thought, at least 165 million years old, which means all four
continents started separating at roughly the same time.
"It was kind of an esthetic pleasure," Mr. Emery says of his discovery. It
might also help in a less-lofty pursui't, the search for oil. For d'ating the ocean
bottom is crucial to locating underwater oil deposits, as Mr. Emery's previous
work has shown repeatedly. Over the years, he has located one large oil field
13 miles off China, another north of Borneo and, most recently, three oil fields
PAGENO="0336"
330
off the west coast of Africa. He also predicted that oil can be found in Georges
Bank, off the eastern U.S. coast. Oil companies closely follow Mr. Emery's
travels and occasionally send to Woods Hole for its latest findings.
AN ANOMALY IN AN OLD SWEATER
Val Worthington, a healthy 53-year-old oceanographer, is working on a new
theory concerning the Gulf Stream, which n~any people think is a warm current
flowing from the Caribbean to Europe, influencing weather as it goes.
"Palpably false," declares Mr. Worthington, lunging to the blackboard in his
waterfront office to explain that the Gulf Stream isn't all that warm ~ind doesn't
go anywhere near Europe. Just south of Cape Cod, it turns clockwise and flows
back toward the Caribbean, according to his theory. He hasn't fully convinced
the 40 or so oceanographers around the world whom he considers his peers
that he's right, but he's working on it. As to how the Gulf Stream is formed and
held together, "that's rather a puzzle," concedes Mr. Worthington. It's also his
next project.
Although he blends right in with the rest of the staff here in his old sweater
and scuffed loafers, Mr. Worthington is an anomaly at Woods Hole today. A
Princeton dropout who signed on in 1941 as a technician and learned his science
on the job, he's one of only two senior scientists (a rank comparable to full
professor) who lack even a bachelor's degree. Even most low-ranking staffers
sport multiple degrees, and competition is fierce to get on the staff-and to stay
on under a strict up-or-out, publish-or-perish policy-even though salaries
($13,000 to $35,000 for the scientific staff) ~iren't spectacular `by academic
standards.
There's a growing trend .toward "multinational" ocean research at Woods Hoh~
and elsewhere. A series of 10,000-foot dives by U.S. and French oceanographers
200 miles south of the Azores next spring, for instance, will explore part of a
massive mountain chain that stretches from the Arctic around the tip of Africa
to the Indian Ocean.
BOX LUNCH ON THE BOTTOM
Alvin, Woods Hole's 23-foot submersible, just got a new 1.93-inch-thick titanium
hull for the occasion. "That hull is the eighth wonder of the world," says Alvin's
keeper, Larry Shumaker. Inside the seven-foot-diameter hull, scientists dressed
in street clothes and carrying box lunches will w-ork protected from temperatures
of one or two degrees above fréëzing and pressure of 4,500 pounds a square inch.
Other international Woods Hole projects include a 19-institution study of
the chemistry of the world's oceans, a survey of the Black Sea, a world-wide
deep-sea drilling project and an intensive look at ocean currents between Ber-
muda and the Bahamas.
Not all of Woods Hole's research takes place at sea, however. In fact, some
of its scientists rarely venture past the beach.
Jelle Atema, a young chemist, works surrounded by water tanks in a spartan
lab among the pine trees on the new quisset campus trying to figure out how
fish communicate through chemical secretions.
Mr. Atema is looking particularly at lobsters and catfish, their senses of smell
and taste and the hormones, or pheromones, that they secrete. He thinks this
chemotaxis study may help man gauge the effects of pollution on fish and might
also aid efforts to culture fish for food production.
Max Blumer is another chemist who rarely goes to sea. One recent project was
created by accident on a stormy day in 1969, when an oil barge broke up off
the beaches of Buzzards Bay, just around the corner from Woods Hole. The
barge spewed 700 gallons of fuel oil into the water, enabling Mr. Blumer's
hastily deployed research team to examine in minute detail the full progress of
an oil spill. He's currently working on a project to find out where the organic
matter in the oceans comes from and w-here it goes.
Red ~ea Riches
Chance discovery played a role in the work of 37-year-old geologist David
Ross, too. He was studying mysterious "hot brines" in a 50-square-mile valley
at the bottom of the Red Sea. The water at the bottom is a reddish sluge that's
twice as hot as the surface water and eight times as salty. Almost as an after-
thought, Mr. Ross analyzed some of it and found it "the richest minerals deposit
on the sea floor," loaded with lead, zinc and copper worth some $2.5 billion, he
says. It hasn't been determined whether the sludge can be mined economically.
PAGENO="0337"
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Such discoveries can lead to tricky political situations, which is why Woods
Hole is careful to invite along scientists from any country whose territorial
waters its ships enter. Even so, Mr. Ross fears territorial worries may start
impinging deep-ocean research as nations jealously guard and expand their
coastal claims.
"Oceanography is changing, it's more political, more social oriented," says
Mr. Ross. "We're more conscious today of the social relatedness of our work,"
agrees director Paul Fye. Currently one-third of the research here concerns en-
vironmental problems; much of the rest has one eye on practical payoffs like Ken
Emery's oil discoveries.
Woods Hole is changing in other ways, too. Impersonality is on the rise. In the
old days, founder Henry Bigelow regularly toured the labs and gathered the
small staff in his office for after-hours chatter. Nowadays, luncheon meetings
called "peanut butters" (after the sack lunches staffers bring) are about the only
broad personal contact. Few scientists know much about what their colleagues
are doing; one old-timer says he suspects some don't even know director Fye.
Gone, too, is much of the "old salt" atmosphere of bygone days. To the new
breed of oceanographer the sea is merely a research tool, and, says fund raiser
Hoyt Watson. "People aren't thinking of their friends here as shipmates, just
as friends." Geologist James Heirtzler, whose office is littered with eerie pic-
tures of the ocean bottom, looks out on a street. Asked if he minds not hav-
ing an ocean view, lie says: "I don't need to see the water."
23-317 0 - 73 - 22
PAGENO="0338"
PAGENO="0339"
333
HARVARD JOIiR1N~AL
~on
LEGI SLATION
ARTIcLE
THE CLEAN AIR ACT: ANALYZING THE AUTOMOBILE INSPECTION,
WARRANTY, AND RECALL PROVISIONS Jack M. Applernan
NOTES
THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS
OF 1972: AMBIGUITY AS A CONTROL DEVICE
GUARDING THE TREASURES OF THE DEEP: THE DEEP SEABED
HARD MINERAL RESOURCES ACT
EXECUTIVE PRIVILEGE AND THE CONGRESSIONAL RIGHT OF INQUIRY
INCOME MAINTENANCE: NIxoN's FAP, MCGOVERN'S UTC, THE
NEW BRITISH PROPOSAL, AND A RECOMMENDATION
INDEX
CUMULATIVE INDEX-VOLUMES I-X
Volume 10 No. 4 June 1973
COPYRIGHT © 1973 BY THE
HARVARD LEGISLATIVE RESEARCH BUREAU
PAGENO="0340"
334
GUARDING THE TREASURES OF THE DEEP:
THE DEEP SEABED HARD MINERAL
RESOURCES ACT
Introduction
On May 23, 1970, President Nixon announced a new1 United
States oceans policy.2 The policy responded to the growing need
for clarification and development in the law of maritime mineral
resources.3 The Oceans Policy Statement and its attendant draft
treaties4 have been the subject of intensive scholarly analysis,5 but
one part of the statement has escaped this scrutiny. This is the
President's call for an interim regime which, pending the estab-
lishment of an international regime, would allow continued ex~
ploration and exploitation of the seabed beyond the present limits
of national jurisdiction.6 Although the call for an interim regime
1 This policy originated in the Marine Resources and Engineering Development
Act of 1966. 33 U.S.C. §~ 1101-24 (1970). The Commission established by this Act
recommended a policy very similar to that proposed by the President. COMMISSION
ON MARINE SCIENCE, ENGINEERING, AND REsouRcEs, OUR NATIoN AND THE SEA 141-55
(1969) [hereinafter cited as Oup~ NATION AND THE SEA].
2 United States Oceans Policy, 6 WEEKLY C0MP. FEtES. Doc. 677 (1970) [herein.
after cited as Oceans Policy Statement].
3 Much has been written about this need. See, e.g., J. ANDRASSY, INTERNATIONAL
LAw AND THE REsouRcEs OF THE SEA (1970); L HENKIN, LAW FOR THE SEA'S MINERAL
RESOURCES (1968).
4 The Oceans Policy Statement indicated that the United States would `~intro~
duce specific proposals at the next meeting of the United Nations Seabeds Commit-
tee to carry out [the new policy]." Oceans Policy Statement, supra note 2, at 678. Sub-
sequently two draft treaties were tabled at meetings of that Committee. Draft
United Nations Convention on the International Seabed Area, 25 U.N. GAOR Supp.
21, at 130, U.N. Doc. A/802l (1970) [hereinafter cited as Draft Convention]; Draft
Articles on the Breadth of the Territorial Sea, Straits, and Fisheries, 26 U.N. GAOR
Supp. 21, at 241, U.N. Doe. A/8421 (1971).
5 See, e.g., Humphreys, An International Regime for the Exploration and Exploita.
tion of the Resources of tile Deep Seabed- the United States Hard Minerals indus-
try Position, 5 NATURAL RESOURCES LAW. 731 (1972); Krueger, An Evaluation of
United States Ocean Policy, 17 MCGILL U. 604 (1971); Ratiner, United States
Oceans Policy: An Analysis, 2 3. MARITIME L. & COM. 225 (1971).
6 At present international convention governs development of resources on the
continental shelf. Convention on the Continental Shelf, done April 29, 1958, [1964]
15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311. It is the area seaward of the con~
tinental shelf which will be the subject of the proposed international regime and
hence the subject of any interim regime. Unfortunately, the Convention left open
the definition of the exact limits of the continental shelf by defining it as "the sea-
PAGENO="0341"
335
1973] Deep Seabed Hard Minerals 597
escaped the attention of most writers,7 it caught the attention of
the United States hard mineral8 interests.9 They responded by
drafting S. 2801, the Deep Seabed Hard Mineral Resources Act,1°
which was introduced by Senator Metcalf (D.-Mont.). Hearings on
S. 2801 were held in both the Senate" and the House,'2 but it was
never reported out of committee. Identical legislation has been
introduced in the Ninety-third Congress'3 amid growing pressure
for an interim regime. This Note addresses the problem of estab-
lishing an interim regime for hard minerals and assesses whether
S. 2801 is a proper response to this problem. The Note concludes
that the bill is not a proper rçsponse, but its adoption in modified
form would be a useful instrument of national policy.
bed and subsoil of the submarine areas adjacent to the coast but outside the area of
the territorial sea, to a depth of 200 meters or, beyond that limit, to where the
depth of the superfacent waters admits of the exploitation of the natural resources
of the said areas 15 U.S.T. at 473, 499 U.N.T.S. at 312 (emphasis added). This
"exploitability" criterion has come ba~k to haunt the draftsmen of the Convention.
As technology has pushed the outward limit of exploitability further and further
from the coasts, the territorial limit of the shelf has become unclear. However, most
authorities agree that there is some limit to the shelf, and consequently there is
some seabed area beyond any nation's jurisdiction. This Note focuses on that area.
7 The Commission on Marine Science, Engineering, and Resources recognized the
need for an interim regime. OUR NATION AND THE Sea, supra note 1, at 155. But
even that body did not discuss the form of the proposed interim regime.
8 Hard minerals are non-living substances other than those which are normally
recovered in liquid form, i.e., other than oil, natural gas or other forms of hydro.
carbon. S. 2801, 92d Cong., 1st Sess. § 2(d) (1971).
9 Nor did it escape the attention of the United States petroleum interests. See
Hearings on Issues Related to Establishment of the Seaward Boundary of United
States Outer Continental Shelf and Related Matters, Including S. 3970, to Amend
the Outer Continental Shelf Lands Act, Before the Subco'nm. on Minerals, Mate.
rials, and Fuels of the Senate Comm. on Interior and Insular Affairs, 91st Cong.,
2d Sess. 43-54 (1970) (testimony of Luke W. Finley on behalf of American Petroleum
Institute) [hereinafter cited as Hearings on S. 3970]. The petroleum interests, how-
ever, felt their interests were protected for the foreseeable future by existing legisla-
tion, Id. at 53. This Note deals only with interim arrangements for the development
of hard minerals.
10 Identical legislation was also introduced in the House, H.R. 13904, 92d Cong.,
2d Sess. (1972).
11 Hearings on S. 2801 Before the Subcomm. on Minerals, Materials and Fuels
of the Senate Comm. on Interior and insular Affairs, 92d Cong., 2d Sess. (1972)
[hereinafter cited as Senate Hearings].
12 Hearings on H.R. 13904 Before the Subcomm. on Oceanography of the House
Comm. on Merchant Marine and Fisheries, 92d Cong., 2d Sess. (1972) [hereinafter
cited as House Hearings].
13 S. 1134, H.R. 9, 93d Cong., lot Sess. (1973).
PAGENO="0342"
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598 Harvard Journal on Legislation [Vol. 10:596
TECHNOLOGY OUTSTRIPS INTERNATIONAL LAW
A. Background
At the close of the Second World War two things became ap-
parent: the great mineral wealth14 found in the seabed could be
exploited by new technology15 and international law had not kept
abreast of this potential use of the seabed.16 To remedy this
divergence President Truman issued the Proclamation on the Con-
tinental Shelf,17 which reserved the mineral resources of our con-
tinental shelf'8 for the use of the United States. Coastal state
rights in the continental shelf rapidly became customary inter-
national law and were subsequently codified in the 1958 Geneva
Convention on the Continental Shelf.'9 By 1966 the prospect of
deep ocean mining20 caused President Johnson to comment:
14 A comprehensive description of this immense wealth was developed in 1969. 3
Coasr~nssIoN ON MARINE SCIENCE, ENGINEERING, AND RESOURCES, PANEL REPORTS: MA-
RINE RESOURCES AND LEGAL-POLITICAL ARRANGEMENTS FOR THEIR DEVELOPMENT pt.
\`II (1969) [hereinafter cited as PANEL REPORTS].
15 Krueger, The Background of the Continental Shelf and Outer Continental
Shelf Lands Act, 10 NATURAL RESOURCES J. 441, 464 (1970).
16 There was international agreement only on appropriation of minerals under-
lying the internal waters and territorial sea of a nation. Internal waters are all
waters lying landward of a system of coastal baselines. Normally the baseline is the
low water line along the coast. Convention on the Territorial Sea and Contiguous
Zone, art. 3, done April 29, 1958, [1964] 15 U.S.T. 1606, T.I.A.S. No. 5639, 516
U.N.T.S. 205. The territorial sea is a belt of the sea adjacent to the coast measured
from this baseline. Id. art. 1. The width of the territorial sea was traditionally three
miles, and the United States still claims this width. However, many states now
claim wider territorial seas. L HENKIN, supra note 3, at 13 n,30. Within these areas
the coastal state had exclusive right to all minerals; outside of them there was no
general agreement. Krueger, supra note 15, at 464.
17 Proclamation No. 2667, 3 C.F.R. 67 (1913-1948 Comp.).
18 Geologically, the continental shelf is "[t]he zone around the continent extend-
ing from the low water line to the depth at which there is a marked increase of
slope to a greater depth." Summary of the 8th Session, 1 Y.B. INT'L L. COMM'N 131,
U.N. Doc. A/CN. 4/SER. A (1956). The continental shelf is generally taken to end
at a depth of 200 meters. J. ANDRASSY, su~ra note 3, at 3-8. Beyond the continental
shelf lie the continental slope, the continental rise, and the deep ocean (abyssal
plains). Together shelf, slope, and rise comprise the continental margin. The con-
tinental shelf constitutes approximately 10 percent of the seabed. OUR NATION AND
THE SEA, su~ra note I, at 61.
19 [1964] 15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.TS. 311. Article 2 codifies
President Truman's assertion of sovereignty. Id. at 473, 499 U.N.T.S. at 312.
20 See, e.g., J. ANDRASSY, supra note 3, at 17 nn.2 & 3. Although many hard min-
eral deposits have been discovered on and under the seabed, the Commission on
Marine Science, Engineering, and Resources states: "The only presently known
materials of potential economic importance on the deep ocean floors beyond the
continental slopes are the manganese nodules and crusts." P~EL REPORTS, su~ra
PAGENO="0343"
337
1973] Deep Seabed Hard Minerals 599
[U ]nder no circumstances must we ever allow the prospects
of rich harvest and mineral wealth to create a new form of
colonial competition among the maritime nations. We must
be careful to avoid a race to grab and hold the lands under
the high seas. We must ensure that the deep seas and the
ocean bottoms are, and remain, the legacy of all human
beings.2' /
In 1967 the issue was br to or front in the United
Nations when Ambassad~ Pr o f Malta ubmitted a resolution
calling for the reservatioi~ as t `commo heritage of mankind,"
of that part of the seabed outside th o the 1958 Convention
on the Continental Shelf.22 The Prado esolution was never
adopted, but it sparked an extensive international debate of the
seabed question.23 During this debate the need for an interim
regime to govern seabed use was first formally recognized when
the General Assembly adopted a resolution declaring a morato-
rium on "all activities of explOitation of the resources of the area
of the seabed and ocean floor, and the subsoil thereof, beyond the
limits of national jurisdiction "24 This was followed by
President Nixon's Oceans Policy Statement~ which recognized the
need for an interim regime but took quite a different view of its
form.
Since the Oceans Policy Statement, international negotiations
on the establishment of an international regime for the seabed
have proceeded at a tedious pace. There have been two major ac-
complishments: the unanimous adoption by the General Assem-
note 14, Pt. VII!, at 106. Industry attention has focused on manganese nodules. See,
e.g., Senate Hearings, supra note ii, at 33 (testimony of C. H. Burgess, Vice Presi-
dent, Exploration, Kennecott Copper Corp.). The economic value of these nodules
has been the subject of considerable dispute. OUR NATION AND THE SEA, su~ra note
1, at 130.
21 Comments made by the Prcsident~ at the commissioning of the research vessel,
The Oceanographer, July 13, 1966, 2 WEEKLY COMP. Par.s. Doc. 930, 931 (1966).
22 U.N. GAOR, Annexes, Agenda Item No. 92, at 1, U.N. Doc. A/6695 (1967).
23 The developments in the United Nations are discussed in detail in Krueger,
supra note 5, at 606-34.
24 G.A. Res. 2574D, 24 U.N. GAOR. Supp. 30, at II, U.N. Doc. A/7630 (1970).
Resolutions of the General Assembly do not have a binding effect on member
nations. Krueger, supra note 15, at 447 n.21. The United States as consistently
taken this position with regard to the "Moratorium Resolution." Letter from John
R. Stevenson to Senator J. William Fülbright (D.-Ark.), May 19, 1972 (on file at
office of Professor R. R. Baxter, Harvard Law School).
25 Oceans Policy Statement, supra note 2.
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600 Harvard Journal on Legislation [Vol. 10:596
bly of the "Declaration of Principles Governing the Sea-Bed and
the Ocean Floors, and the Subsoil Thereof, Beyond the Limits of
National Jurisdiction";26 and most importantly for this discussion,
the setting of a firm schedule for a Law of the Sea Conference to
adopt, inter alia, an international convention on the seabed.27
B. Commitment to International Regime
The United States is now in a position similar to the one at the
time of the Truman Proclamation. Technology has developed that
allows exploitation of seabed materials, but the law of the seabed.
is cursed with the uncertainties left upon the signing of the Con-
tinental Shelf Convention in 1958.28 The one major difference is
that the United States is now committed to an international solu-
tion of the problem. If there were no such commitment, or the
reasons for the commitment were so weak as to justify the adverse
effects of breaching ~t,29 it would be possible to proceed with the
26 G.A. Res. 2749, 25 U.N. GAOR Supp. 28, at 24, U.N. Doc. A/8028 (1971)
[hereinafter cited as Legal Principles Resolution]. The relevant portions of this
resolution state:
1. The sea-bed and ocean floor, and the subsoil thereof, beyond the limits
of national jurisdiction (hereinafter referred to as the area), as well as the
resources of the area, are the common heritage of mankind.
2. The area shall not be subject to appropriation by any means by States
or persons, natural or juridical, and no State shall claim or exercise
sovereignty or sovereign rights over any part thereof.
3. No State or person, natural or juridical, shall claim, exercise or acquire
rights with respect to the area or its resources incompatible with the
international regime to be established and the principles of this Declara-
tion.
4. All activities regarding the exploration and exploitation of the re-
sources of the area and other related activitics shall be governed by the
international regime to be established.
7. The exploration of the area and the exploitation of its resources shall
be carried out for the benefit of mankind as a whole, irrespective of the
geographical location of States, whether land-locked or coastal, and taking
into particular consideration the interests and needs of the developing
countries - . . -
27 27 U.N. GAOR, Annexes, Agenda Item No. 36, at 16, U.N. Doc. A/8949 (1972).
The schedule as established calls for a preliminary session at New York in November
and December 1973 to deal with organizational matters and a second session at
Santiago, Chile, in April and May 1974 to deal with substantive matters. The
resolution expressed the expectation that the Conference would be satisfactorily
concluded `(no later than 1975."
28 See note 6 supra.
29 There is no legal commitment for the same reasons that the "Moratorium
Resolution" is not legally binding. See note 24 supra. The commitment that exists
is primarily a moral and political one. See text accompanying notes 101.06 infra.
PAGENO="0345"
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1973] Deep Seabed Hard Minerals . 601
development of the deep seabed resources on some legal rationale
other than an international regime.8° The United States has mani-
fested its commitment to an international regime not only through
President Nixon's statement and the attendant draft treaty,3' but
also through its implicit support of the U.N. Sea-Bed Commit-
tee,32 in which the United States has advocated an international
solution to the seabed problem.~~ The reasons for this commit-
ment have been extensively discussed.84 They can be summarized
in the observation that the United States has many and varied
interests35 in the whole of ocean space, many of which are conflict-
ing, and these interests can best be accommodated in an inter-
national regime.3°
C. A Question of Timing
Recognizing the need for, and our commitment to, the estab-
lishment of an international regime for the deep seabed is one
thing; the political realities of the pace at which such a regime
might develop are quite another. One projection places the rati-
fication of the necessary treaties at least five years hence,37 while
others are considerably less optimistic.38 If a projection is based on
the bringing into force of the Continental Shelf Convention,89
30 For a discussion of other possible international regimes, see R. FRIEDHEIM,
UNDERSTANDING THE Dr.BATE ON OCEAN RESOURCES, Feb. 1969 (The Law of the Sea
Institute Occasional Paper No. 1).
81 Draft Convention, supra note 4.
32 Committee on the Peaccful Uses of the Sea-Bed and the Ocean Floor Beyond
the Limits of National Jurisdiction established by G.A~ Res. 2467A, 23 U.N. GAOR
Supp. 18, at 15, U.N. Doc. A/72l8 (1968). The establishment of the Sea-Bed Com-
mittee was a response to and a substitute for the Prado Resolution. It was given a
broad mandate to study the seabed question. See Krueger, .cupra note 5, at 607.
33 See note 26 and accompanying text supra.
34 See, e.g., OUR NATION AND THE SEA, supra note 1, at 141; L. IIENKIN, sUpra note
3, at 10; Ratiner, supra note 5, at 231.
35 Besides the country's interests in mineral resources, which might dictate as
large an extension of jurisdiction as possible, we make major military use of the
oceans and have a large offshore fishing industry. These latter interests are best
accommodated by relatively narrow limits of national jurisdiction.
36 In fact, some authorities have suggested that these interests can only be ac-
commodated by an international regime. See E. BROWN, TarE LEGAL REGIME OF
HYDROSPACE (1971); W. FREIDMANN, Trix Fururm OF THE OCEANS 114-20 (1971).
37 Marine Resources Comm. of the Section of Natural Resources, ABA, The Pro-
posed Seabeds Treaty, 5. NATURAL RESOURCES LAw. 132, 151 (1972) (statement of Rob-
ert B. Krueger).
38 Senate Hearings, supra note 11, at 27 (testimony of T. S. Ary, Vice President,
Union Carbide Exploration Corp.).
59 For an account of this experience, see J. ANDRASsY, supra note 3, at 49,
PAGENO="0346"
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602 Harvard Journal on Legislation [Vol. 10:596
and if adherence to the schedule of the 1974 Law of the Sea Con-
ference40 results in the signing of a treaty for an international
regime by the summer of 1975, the earliest the treaty could be
expected to come into force would be 1980. With such a delay it
is necessary to ask whether any action in the interim is warranted.
D. The Position of the Mining Industry:
Immediate Development
United States mining interests vigorously contend that develop-
ment of the seabed resources must proceed during the interim
period. First, miners argue that a critical need exists for the
minerals which can be extracted from manganese nodules,41 be-
cause the United States is presently dependent on foreign sources
for large quantities of these minerals42 and this dependency will
grow as future demand increases.43 The argument's corollary is
that mining of the deep sea minerals will create new jobs and help
to alleviate our unemployment problems.44
This argument makes a good case for the eventual exploitation
of deep seabed minerals. No one doubts that exploitation should
eventually proceed. However, no evidence indicates that the
United States is unable to obtain the minerals it needs at the
present time or will be unable to do so during the period required
to establish an international regime. In fact, the contrary position
is maintained by some.45 The situation could change if the inter-
40 See note 27 supra.
41 Those manganese nodules, which contain concentrations of manganese (24 per-
cent), nickel (1.4 percent), copper (1.2 percent), and cobalt (0.25 percent), are pres-
ently considered potentially profitable. PANEL REtORTS, StiI)7a note 14, pt. \TIJ, at 111.
American miners have identified several deep ocean areas where there are enough
nodules with these concentrations to allow mining of one million tons per year over
a 40-year period. The miners consider deposits of that size necessary if recovery is
to be profitable. House Hearings, supra note 12, at 12, 17 (testimony of John E.
Flipse, President, Deepsea Ventures, Inc.).
42 The United States imports approximately 95 percent of its manganese, 72 per-
cent of its nickel, 15 percent of its copper, and 100 percent of its cobalt. SECRETARY
OF THE INTERIOR, FIRST ANNUAL REPORT UNDER THE MINING AND MINERALS POLICY
AcT OF 1970, at 37 (1972) [hereinafter cited as FIRST ANNUAL REPORTI.
43 Senate Hearings, supra note 11, at 34 (testimony of C. H. Burgess, Vice Presi-
dent, Exploration, Kennecott Copper Corp.).
44 Id. at 56; cf. Letter from Charles N. Brower, Acting Legal Adviser and Acting
Chairman, Inter-Agency Task Force on the Law of the Sea, to Senator J. William
Fuibright, Mar. 1, 1973, app. at 11 (on file at office of Professor R. R. Baxter, Harvard
Law School) [hereinafter cited as Brower].
45 Senate Hearings, su~ra note 11, at 66 (statement of Samuel R. Levering, Sec-
PAGENO="0347"
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1973] Deep Seabed Hard Minerals 608
national regime were inordinately delayed. But this possibility
gives little, if any, force to an argument intended to justify
immediate action.
Second, because large sums4° have been expended to develop the
technology necessary to exploit the seabed minerals, the United
States has a technological lead over the other nations which are
capable of deep ocean mining.47 The miners assert that this
technology cannot now be put~ to use and no further investments
can be made because of the insecure political environment of the
deep ocean.48 Furthermore they claim that this impasse will cause
a loss of our technological lead, the development money already
spent, and the opportunity for rewards, because the other coun-
tries capable of deep ocean mining will proceed with development
despite the political climate.49 If the United States stands still
while they proceed, it may becbme difficult or impossible to catch
up. S. 2801 supposedly provides the necessary political climate to
allow American miners to continue development.
The technology argument has some force, but not nearly as
much as its proponents ascribe to it. Although large sums have
already been spent on deep seabed mining, these expeditures are
only a small percentage of the amount that will have to be spent
retary of S.O.S. (Save Our Seas) (United States Committee for the Oceans)); cf.
Brower, supra note 44, app. at 7.
46 Dccpsca Ventures, Inc., the ocean mining subsidiary of Tenneco Inc., estimates
its total expenditures on manganese nodules at about $20 million through mid-1972.
Senate Hearings, supra note ii, at 73 (statement of N. W. Freeman, Chairman of the
Boards of Tenneco Inc. and Dccpsca Ventures, Inc.). The Administration estimates
that $90 million has been spcnt by the three U.S. firms who have publicly announced
such expenditures. Brower, su~ra note 44, app. at 9.
47 Senate Hearings, supra note 11, at 31-33 (testimony of T. S. Ary, Vice President,
Union Carbide Exploration Corp.).
48 Id. at 71 (statement of Samuel R. Levering, Secretary of S.O.S. (Save Our Seas)
(United States Committee for the Oceans)). -
49 John Flipse, President of Deepsea Ventures, Inc., in a dialogue with Senator
Metcalf, states the point this way:
Senator METCALF. In your opinion, would these foreign countries, some
of which have already been outlined by previous witnesses, would they wait
until ratification of an international treaty or a United Nations-sponsored
regime?
Mr. FLIPSE. It is my conviction that they would not, inasmuch as their
expenditure in that area raises [sic] from a maximum of 25. percent of the
cost to the minimum of no cost. It is this underwriting or subsidy in the
foreign area which permits them to move ahead with much less regard for
a stable political environment.
id. at 43.
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to develop a mine site.5° Thus, the economic cost of waiting until
the establishment of an international regime would be relatively
small. The deep seabed miners of the other technologically ad-
vanced countries are faced with the same problems as our deep
seabed miners. If the risk of loss of investment is high, they are
going to be as reluctant as American miners are to proceed with
the large additional investments required.5' Also the American
lead in technology can be maintained by research and develop-
ment. Although the deep sea miners contend that additional
funds will not be invested until the political climate improves,52
quite the opposite would seem to he indicated. The protection of
the present investment by additional expenditures appears wise,
because of recent evidence suggesting an early conclusion to the
proposed Law of the Sea Conference.58 The fear of loss of invest-
ment should be eliminated once an international regime assures
miners of a protected right to mine a particular portion of the
seabed.
Third, the miners claim that adoption of S. 2801 would help to
redress the current balance of payments deficit by partially replac-
ing present foreign sources of supply of the metals concerned with
what is the equivalent of domestic production.54 The balance of
payments argument appears insignificant. The Administration es-
timates the total value of our imports of the four nodule metals at
only $600 million.55 Only a portion of this total would be replaced
in the foreseeable future by deep ocean mining.56 Immediate
50 Estimates of the total investment required to bring a particular nodule site
into commercial production vary. T. S. Ary, Vice President, Union Carbide Explora-
tion Corp., estimates the cost at $250 million. Senate Hearings, su~ra note 11, at 32.
Deepsea Ventures estimates the cost at $166 million. Id. at 74 (statement of N. W.
Freeman, Chairman of the Boards of Tenneco Inc. and Deepsea Ventures, Inc.).
51 It has been suggested that the position of foreign deepsea miners is different
from our own in that they are subsidized by their governments. id. at 43 (testimony
of John E. Flipse, President of Deepsea Ventures, Inc.). However, it is not clear
that the governments which are presently subsidizing research and exploration will
also subsidize the large investments required for commercial production without
some assurance that they will recover their investments.
52 Id. at 43.
53 See note 27 supra.
54 Senate Hearings, supra note 11, at 35 (testimony of C. H. Burgess, Vice Presi-
dent, Exploration, Kennecott Copper Corp.), 72 (statement of N. W. Freeman, Chair-
man of the Boards of Tenneco Inc. and Deepsea Ventures, Inc.).
55 Brower, supra note 44, app. at 4.
56 See note 64 infra.
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adoption of S. 2801 would still be followed by a substantial delay
until commercial quantities of the metals could be produced.57
This delay would further reduce any balance of payments ad-
vantage that would accrue during the limited period before the
international regime would encourage seabed development. Fur-
thermore, the animosity which would follow adoption of the
miners' proposal58 would likely reduce purchases of our goods and
might jeopardize our extensive investment interests in the coun-
tries which produce the manganese nodule metals.59 It would seem
far better to deal with these supplier countries on as friendly a
basis as possible rather than antagonize them by reducing pur-
chases of their exports.°°
Fourth, the miners contend that the metal resources made avail-
able by the bill would become a strategic reserve which would
strengthen our defense posture6' and give us more freedom in set-
ting our foreign policy.62 This argument depends of course on our
reliance on other countries for these resources. No doubt these
metals are important strategically, and they should eventually be
put-to use for the benefit of mankind.63 But to argue that the re-
sources are strategically necessary at this time is shortsighted. The
metals that can reasonably be obtained from the deep seabed in
the near future do not meet our present needs.04 Thus, we will be
57 Senate Hearings, supra note 11, at 42 (testimony of John E. Flipse, President
of Deepsea Ventures, Inc.).
58 See part 11(A) infra.
59 Senate Hearings, supra note 11, at 70 (statement of Samuel R, Levering,
Secretary of S.O.S. (Save Our Seas) (United States Committee for the Oceans)).
60 The United States also has a net trade surplus with the nations which
produce the manganese nodule metals. Id. The economic effect of removing the
American market for their metals on the sale of American goods to them is
speculative, but it could result in a decrease in such sales.
61 Id. at 30 (testimony of T. S. Ary,~ Vice President, Union Carbide Exploration
Corp.), 35 (testimony of C. H. Burgess, Vice President, Exploration, Kennecott Cop.
per Corp.).
62 House Hearings, supra note 12, at 11 (testimony of John E. Flipse, President,
Deepsea Ventures, Inc.).
63 L. HENKIN, supra note 3, at 3; Statement of Dr. Vincent E. McKelvy before
Subcomm. I of the U.N. Sea-Bed Committee, Mar. 14, 1972, U.N. Doc. A/AC.
138/SC. I/SR. 42 (1972).
64 The Administration has estimated that if the three production units which are
now forecast from industry activity were in full production by 1975, the resultant
metals would only comprise 12 percent of our projected import requirements of
manganese, 53 percent of nickel, 41 percent of copper, and all of our cobalt require-
nients. Brower, su~ra note 44, app. at 5. This would leave some 84 percent of our
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dependent upon others for a portion of our supply of these metals
for the foreseeable future. In addition, the nodules yield only
four strategic metals; and we are dependent upon imports for
myriad other raw materials.65 The same countries which supply
our manganese, nickel, copper, and cobalt, as well as their eco-
nomic allies, also supply us with these other materials.66 For a
short-run gain it seems unwise to prejudice these requirements by
arousing unnecessary animosity.67
The argument also fails to consider the effect of immediate ac-
tion on other strategic uses of the oceans. A good deal of the deter-
rent effect of our missile submarines depends upon the freedom
of the seas,68 and the approach taken by S. 2801 is likely to preju-
dice the free movement of these submarines by causing a parti-
tion of the seas.69 Such a partition also adversely affects our use of
international straits, which are necessary for the effective utiliza-
tion of both our naval and merchant fleets.7° For this reason, many
military writers advocate an international solution to the prob-
lem.71 In addition, with no evidence that our present supply of
minerals is insufficient, an argument that it is strategically neces-
sary to develop this new source now is unpersuasive. The seabed
minerals will still be available to satisfy our strategic needs when
the proposed international regime becomes operative.
Fifth, the miners argued that adopting the scheme proposed by
the bill would strengthen the United States position during the
total manganese rcquirements, 34 percent of our nickel, and 9 percent of our
copper to be imported. See note 42 supra. However, there is no prospect that these
firms will be in production by 1975.
65 FIRST ANNUAL REPORT, supra note 42, at 37.
66 For example, Peru, which supplies part of our copper requirements, also
supplies 20 percent of our import requirements of lead. FIRST ANNUAL REPORT, su~ra
note 42, app. I, at 134. Mexico, an economic ally of Peru, see note 74 infra, supplies
11 percent of our lead import requirements. Id.
67 That the developing nations are vitally concerned with the economic effects
of seabed mining is evidenced by their requests for economic studies of the matter,
the most recent of which was a resolution passed by the Twenty-seventh General
Assembly. 27 U.N. GAOR, Annexes, Agenda Item No. 36, at 18, U.N. Doc. A/8949
(1972).
68 W. FRIEDMANN, supra note 36, at 52.
69 Cf. note 35 supra.
70 Cf. Draft Articles on the Breadth of the Territorial Sea, Straits, and Fzsheries,
26 U.N. GAOR Supp. 21, at 241, U.N. Doc. A/8421 (1971).
71 See, e.g., Gehring, Legal Rules Affecting Military Uses of the Seabed, 54 MiLI-
TARY L Ray. 168 (1971).
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1973] Deep Seabed Hard Minerals 607
bargaining process for an international regime.72 They assert
that if the United States shows readiness to proceed with ocean
mining by implementing interim legislation, the negotiations will
be speeded toward a successful conclusion.73 Such impetus is re-
quired because certain nations~ are seen as delaying the negotia-
~ in order to further their interests. These nations are large
suppliers of our import requirements for copper, nickel, manga-
nese, and cobalt,75 and U.S. ocean mining will compete with this
production.76 Delaying tactics have also allegedly been used to
strengthen these nations' bargaining positions. Delay is seen as
leverage to force the United States to compromise seabed mining
to protect its other ocean interests.77 This argument's entire force
depends upon immediate passage of interim legislation. However,
the real effect of immediately implementing such legislation, as
will be seen, would be the exact opposite of what its proponents
suggest.
The miners have failed to de~monstrate a clear need to proceed
72 House Hearings, su~ra note 12, at 16 (testimony of John E. Flipse, President,
Dccpsca Ventures, Inc.); Letter from J. Allen Ovcrton, President, American Mining
Congress, to Robert M. White, Administrator, National Oceanic and Atmospheric
Administration, U.S. Department of Commerce, Washington, D.C., Apr. 12, 1972,
in House Hearings, supra note 12, at 103.
73 Id. at 45 (testimony of John G. Laylin, Member of the Bar of the District of
Columbia and New York State, and of the Committee of the Law of the Sea and
Deep Seabed).
74 In particular the ocean miners are concerned about an alignment of nations
called the "Group of 77." The "Group of 77" is a private caucus of developing
Latin and Afro-Asian states which ally themselves within the United Nations to
produce a large voting block in situations when this might be tactically advanta-
geous. Cf. SENATE COMM. ON INmRI0R AND INSULAR AFFAIRS, 92D CONG., 2o SESS.,
THE Law OF THE SEA CRisIs pt. 2, at 15 (Comm. Print 1972) [hereinafter cited as
Tim LAW OF THE Sr.A Ciusisj.
75 Approximately 75 percent of our manganese imports, 65 percent of our copper
imports, and 60 percent of our cobalt imports can be identified as coming from
countries which align themselves with or are in the "Group of 77." Substantially all
of our nickel imports now come from Canada and Norway. Fiasr ANNUAL. REPORT,
supra note 42, app. I.
76 Fears of adverse effects from such competition are probably unfounded. The
Secretary General of the United Nations predicts there would be. little effect on
world metal prices due to the foreseeable amounts of deep ocean mining. U.N.
Secretary General, Additional Note on the Possible Economic Implications of
Mineral Production from the International Sea-Bed Area, 27 U.N. GAOR Supp. 21,
at 109, 118 n.16, U.N. Doc. A/AC. 138/73 (1972) [hereinafter cited as Additional
Note].
77 See M. GERSTLE, THE Pouncs OF U.N. VOTiNG (1970) (The Law of the Sea
Institute Occasional Paper No. 7); THE LAW OF THE Ss~t Caisis, supra note 74, pt. 2,
at 10,
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with immediate development. Moreover, the miners' fears of pro-
ceeding under the existing legal framework do not appear to have
any substance. Their fears in this regard are twofold. First, miners
contend that if they do proceed they will be subjected to foreign
claim-jumping. However, metallurgical processing plants, which
comprise the largest part of the total investment, must be custom
built to the particular nodule site.78 Considering the enormous in-
vestment required for each site and the multiplicity of possible
sites,79 there would be little incentive for the few organizations
involved80 to claim-jump should American miners decide to pro-
ceed.8' The metals extracted from the nodules must also be mar-
keted without severely depressing their world prices. This consid-
eration would limit the number of firms which could initially
make a profit mining.82
Second, the miners fear that without formal assurances of their
exclusive rights over their individual seabed mining claims, their
investment may be prejudiced by the terms of the future regime.
To prevent this, they included in their proposal a section which
would have a considerable lock-in effect. Their solution is stronger
than necessary. The President has given his assurance that the
miners' interim investments will be protected, which should be
sufficient. Moreover, added protection is apparent from the Law
of the Sea Conference schedule. If the schedule is adhered to, the
requirements imposed under the future regime will be known be-
fore commercial production can commence.83 It is unrealistic to
assume that an international regime would make the terms of con-
78 Senate Hearings, supra note Ii, at 42 (testimony of John E. Flipse, President
of Deepsea Ventures, Inc.), 73 (statement of N. W. Freeman, Chairman of the
Boards of Tenneco Inc., and Deepsea Ventures, Inc.).
79 House Hearings, supra note 12, at IS, 17 (testimony of John E. Flipse, President
of Dccpsea Ventures, Inc.).
80 At the present time only the United States, West Germany, and Japan are
known to be actively pursuing deep ocean mining. Brower, supra note 44, app. at 11.
However the Soviet Union and France are apparently beginning exploration also.
Additional Note, supra note 76, at 113.
81 Compare House Hearings, su~ra note 12, at 36 with Additional Note, su~ra
note 76, at 43.
82 Brower, supra note 44, attachment at 4. But cf. Additional Note, supra note
76, at 117.
83 The most optimistic projections place commercial production at least five
years off. The first two of these years will entail further development at relatively
little cost. Senate Hearings, supra note 11, at 42 (testimony of John E. Flipse, Presi~
dent of Deepsea Ventures, Inc.).
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1973] Deep Seabed Hard Minerals 609
tinued mining so onerous as to render it economically unfeasible.
In any event, the technology and capital to develop the deep sea-
bed will have to come from the technologically advanced nations,
so that the terms of the future regime must at least be attractive
enough to bring about the necessary investments.84 Those terms
will likely be sufficiently attractive to protect preexisting miners.
E. The Mining Interest's Proposal
When the desire of American mining interests to proceed with
an interim regime became apparent,85 Senator Metcalf issued an
invitation to the American Mining Congress to draft domestic leg-
islation for him to introduce.86 The result was the introduction of
S. 2801 by Senators Metcalf, Jackson (D.-Wash.), Belimon (R.-
Okia.), and Stevens (R.-Alas.).87
S. 2801 attempts to establish a mandatory system of first-come-
first-served88 licensing of surface and subsurface "blocks"89 for the
mining of hard minerals.90 Such licenses are to be issued by the
Secretary of the Interior and will last for 15 years or until "com-
mercial recovery" of minerals begun within that time ends, which-
84 A form of international monopoly has been proposed by some states which
might preclude this result. See, e.g., 26 U.N. GAOR Supp. 21, at 93, U.N. Doc. A/AC.
138/49 (1971). The United States, however, has clearly indicated that such a scheme
would be unacceptable. U.N. Doc. A/AC. 138/SC. I/SR. 58 (1972). In any event even
a monopoly would have to obtain the necessary technology somewhere.
85 Hearings on S. 3970, supra note 9, at 55 (testimony of T. S. Ary, Vice President
of Union Carbide Exploration Corp., on behalf of the American Mining Congress).
86 Id. at 56.
87 117 CONG. REC. 38890 (1970). For an interesting view of the development of
S. 2801, see J. GOULDEN, TIlE SuPFJtzAwYEas 22 (1972).
88 S. 2801, 92d Cong., 1st Sess. § 5 (1971).
89 Id. §~ 2(c), 4, 5. Section 2(c) defines a block as:
[AJn area of the deep seabed having four boundary lines which are lines of
longitude and latitude, the width of which may not be less than one-sixth
the length and shall include either of two types of blocks: (i) "surface
blocks" comprising not more than forty thousand square kilometers and
extending downward from the seabed surface to a depth of ten meters;
(ii) "subsurface blocks" comprising not more than five hundred square
kilometers and extending from ten meters below the seabed surface down-
ward without limitation .
This is the definition also used in the Draft Convention, supra note 4, app. A, § 5.
It has been criticized as being too large. Senate Hearings, supra note 11, at 70
(statement of Samuel R. Levering. Secretary of S.OS. (Save Our Seas) (United States
Committee for the Oceans)). The Administration also appears to have had second
thoughts about its validity. Brower, supra note 44, app. at 18.
90 Although the definition of hard minerals in § 2(d) is general, * 4(a)(i) spedfI-
23-317 0 - 73 - 23
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ever is later.°' Any "qualified" person can obtain a license on a
block by applying in writing and tendering a ~5000 fee.92 All li-
censes and other transactions concerning licensing are to be re-
corded in an "International Registry Clearinghouse" established
for that purpose.°3
The heart of the bill, however, does not lie in these rather
straightforward provisions. It lies in the concept of the "recipro-
cating state."°4 According to the bill, "No person subject to the
jurisdiction of the United States shall directly or indirectly de-
velop any portion of the deep seabed except as authorized by li-
cense issued pursuant to this Act or by a reciprocating state."oa
When granting licenses under the Act, the Secretary is directed to
recognize the rights (i.e., the exclusiveness of a claim to a block)
not only of U.S. persons, but also of licensees of reciprocating
states.°° Thus, the bill seeks to establish a scheme whereby those
states with the technology to develop the hard mineral resources
of the deep seabed would mutually agree not to engage in claim-
jumping. Hopefully there would be enough reciprocating states to
create an internationally accepted arrangement and thereby avoid
the necessity for an international regime or at least substitute for
it until one comes into force.97
Recognizing the United States commitment to an international
regime°8 and President Nixon's statement that interim measures
cally includes manganese nodules as pertaining to surface blocks. S. 2801, 92d Cong.,
1st Sess. § 4(a)(i) (1971).
91 Id. § 4(c). Commercial recovery is defined in § 2(g) as "recovery of hard
minerals at a substantial rate of production (without regard to profit or loss) for
the primary purpose of marketing or commercial use
92 Id. § 5(a). The Secretary of the Interior is to establish regulations which will
determine who is a "qualified" person.
93 Id. § 5(b). The function of the clearinghouse is only to record claims. No
provision is made for settling disputes over these claims, a requirement that most
authorities consider critical. See, e.g., L. HENKIN, supra note 3, at 53; ci. Draft Con-
vention, supra note 4, arts. 47~60.
94 A reciprocating state is "any foreign state designated by the President as a
state having legislation or state practice or agreements with the United States which
establish an interim policy and practice comparable to that of the United States
under this Act S. 2801, 92d Cong., 1st Sess. § 2(i) (1971).
95 Id. § S (emphasis added).
96 Id. § 4(a).
97 See Laylin. Past, Present, and Future Development of the Cu.stomary Law of
the Sea and Deep Seabed, 5 I~r'r. L~w. 442 (1971).
98 See part 1(B) supra.
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1973] Deep Seabed Hard Minerals 611
should be subject to that regime, the bill makes all licenses sub-
ject to "any international regime for development of the deep sea-
bed hereinafter agreed to by the United States . . . .°° However,
this subordination to the future regime is conditioned on two re-
quirements: that the regime recognize the right of the licensees to
develop their blocks; and, more importantly, that the United
States indemnify the licensees for any loss of investment and pay
any added costs caused by the establishment of the regime.1°°
II. S. 2801: AN EFFECTIVE INTERIM REGIME?
A proper response to the problem of an interim regime should
take account of the various United States interests in ocean space,
enhance our stature and bargaining position in the negotiating
process for an acceptable international regime, or at least not prej-
udice our position, and provide the optimal climate for orderly
development of deep ocean mineral resources. S. 2801 accom-
plishes none of these objectives. It ignores long-range national oh-
ject-ives and political reality. MOst of the supposed benefits do not
respond to pressing needs or would prejudice other competing in-
terests.
A. Effect on United States Interests
As previously observed, the United States has various compet-
ing interests in ocean space. Accommodation of these competing
interests is the main reason for the commitment to an interna-
tional regime. Although the proponents of S. 2801 claim that they
are seeking an interim regime to be superseded by a future treaty,
the provisions of the bill belie this. Section 10 provides that the
United States will indemnify our licensees for "any loss of invest-
ment or increased costs"101 caused by a switchover to the interna-
tional regime. This provision, coupled with the provision that the
international regime must recognize the exclusive rights granted
to existing licensees, effectively locks the United States into the
scheme of the bill.
99 S. 2801, 92d Cong., 1st Sess. ~ 10(a) (1971).
100 Id.
101 S. 2801, 92d Cong., 1st Sess; § 10 (1971) (emphasis added).
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On the one hand, the developing nations would never accept a
regime which would acknowledge prior rights of licensees. Such a
regime would be contrary to what they interpret as the meaning
of "common heritage of mankind,"102 a concept which the United
States accepted when it voted for the Legal Principles Resolution.
On the other hand, the Senate would have to give its advice and
consent before the adoption of the international regime. If such
approval would subject the treasury to large. liability, as it could
under § l0,'°~ it is unlikely that approval would be forthcom-
ing.104 This lock-in effect will not go unnoticed by the developing
nations.105 They are likely to regard the initial licensing by the
Secretary of the Interior under the bill as tantamount to unilat-
eral extension of United States jurisdiction over the deep seabed
or an attempt by the United States to impose an American re-
gime.106
In effect S. 2801 creates a "flag nation"°T approach to jurisdic-
tion over the seabed as opposed to the international jurisdiction
contemplated by the Legal Principles Resolution and openly es-
poused by the United States. Such a national approach can only
benefit the technologically advanced nations.108 Of course, states
with no present capability of seabed mining could ostensibly join
in the scheme; but it is hard to see how they would benefit from
doing so other than by minimal receipts from the escrow fund.109
102 The interpretation of this term is, of course, open to dispute. See E. BROWN,
supra note 36. The important thing, however, is not this fact, but rather how the
developing nations interpret the term. This will be what determines their vote.
103 The Comptroller General sees this liability as almost unlimited. Letter from
Robert F. Keller, Deputy Comptroller General of the United States, to Edward A.
Garmatz (D.-Md.), Chairman, House Committee on Merchant Marine and Fisheries,
Mar. 29, 1972, in House Hearings, supra note 12, at 6.
104 Id. at 155 (testimony of Dr. John J. Logue, Director, World Order Research
Institute, Villanova University).
105 The introduction of 5. 2801 certainly did not go unnoticed by the developing
nations. During a meeting of the U.N. Sea-Bed Committee on Mar. 9, 1972, the~
delegate from Chile commented on S. 2801: "[FJor the United States to grant
licenses for deep seabed mining before a regime is agreed upon would be a
mockery of all the efforts of the United Nations Sea-Bed Committee." U.N. Doc
A/AC. 138/SC. I/SR. 35 (1972). Senator Metcalf's reply to this statement is con-
tained in 118 CONG. Rrc. S3929 (daily ed. Mar. 14, 1972).
106 Brower, supra note 44, at 4.
107 House Hearings, supra note 12, at 58 (statement of H. Gary Knight, Campanile
Charities Professor of Marine Resources Law, Louisiana State University Law Center).
108 Id.
109 The bill contains a provision for the setting aside of certain suws loT the use
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1973] Deep Seabed Hard Minerals 613
In order to benefit from the receipt of mining royalties, develop-
ing nations would have to attract capital from countries capable of
exploiting the minerals. But such countries presumably would al-
ready be reciprocating states. To attract this capital, the develop-
ing nations would have to offer better terms than those offered by
the technologically advanced reciprocating statcs. But. if a devel-
oping nation's domestic law allowed for more favorable terms, it
is unlikely that it could qualify as a reciprocating state under
S. 2801."°
While it is claimed that S. 2801 is just an interim measure, the
developing nations will not recognize it as such.11' If -they view
the scheme as a permanent "flag nation" regime contrary to their
interests, their likely response will be larger and larger jurisdic-
ti~na1 claims over the oceans?12~ This response is, of course, logical
as it is the only way these nations can compensate themselves for
the taking of what they rightfully consider part theirs. The ex-
perience with the Truman Proclamation, which was the first large
unilateral extension of jurisdiction over the seabed, confirms this
response.113
of developing reciprocating states. S. 2801, 92d Cong., 1st Sess. § 9 (1971). Little
revenue can be expected to accrue, however. Payments consist of an unspecified
percentage of the license fees received and an unspecified percentage of income tax
revenues attributable to hard mineral recovery. License fees are only $5000 per
block, so even if the entire fee were put into the escrow fund, no substantial revenue
would accumulate. Payment of a portion of the income tax attributable to the
mining would not result in any substantial revenues if present domestic tax law,
including depletion allowances, is used. Senate Hearings, supra note 11, at 69
(statement of Samuel R. Levering, Secretary of SOS. (Save Our Seas) (United
States Committee for the Oceans)).
110 House Hearings, supra note 12, at 46 (testimony of John G. Laylin, Member
of the Bar of the District of Columbia and New York State, and of the Committee
of the Law of the Sea and Deep Seabed).
111 Cf. Brower, supra note 44, at 4. It is no wonder this is so. The bill's pro-
ponents thinly veil their desire that S. 2801 become the permanent regime. Compare
House Hearings, su~ra note 12, at 45 with id. at 47 (testimony of John G. Laylin,
Member of the Bar of the District of Columbia and New York State, and of the
Committee of the Law of the Sea and the Deep Seabed).
112 E. BROWN, supra note 36; House Hearings, supra note 12, at 155 (testimony
of Dr. John J. Logue, Director, World Order Research Institute, Villanova Univer-
sity).
113 The Truman Proclamation caused many states without extensive continental
shelves to extend the limits of their territorial waters. J. ANDRASSY, supra note 3, at
50-51. Many authorities have warned against the possibility of a "partition" of the
seas should international negotiations fail. See, e.g., B. BaowN, su~ra note 36. This
phenomenon is well illustrated by the recent extension of jurisdiction made by
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Review of the proposals made by some of the developing na-
tions at recent U.N. Sea-Bed Committee meetings indicates the
form unilateral extensions of jurisdiction might take. These pro-
posals generally advocate a broad zone of exclusive coastal state
jurisdiction.114 Although the United States "trusteeship" zone115
is a similar proposal, a significant difference exists."6 Under the
Draft Convention provision is made for compulsory settlement of
disputes. If broad economic zones are established by unilateral ac-
tion, as is the likely result of S. 2801, there would be no such pro-
vision. Without compulsory dispute settlement it is likely that the
mining industry's investments in all areas other than those directly
under United States jurisdiction would be less secure than they
would be under an international regime.'17 This is a high price to
pay for deep seabed mining, since the majority of the ocean's
wealth lies in the continental margins which would undoubtedly
be included in these coastal state controlled economic zones."8
B. Effect on United States Bargaining Position
Possibly the lock-in effect described abov&'° would not result
in permanent abandonment of an international regime. The rea-
Sons for the United States to adopt an international regime would
still remain. In fact, they might become more pressing. Further-
more, the Administration has indicated it will not lightly disre-
gard the objective of establishing an international regime for the
development of the mineral resources of the deep ocean)2° How-
Canada. See Biter, The Canadian Arctic Waters Pollution Prevention Act: New
Stress on the Law of the Sea, 69 Micri. L. REV. 1 (1970).
114 See, e.g., Declaration of Santo Domingo, 27 U.N. GAOR Supp. 21, at 70, U.N.
Doc. A/AC. 138/80 (1972); Conclusions in the General Report of the African States
Regional Seminar on the Law of the Sea, held in Yaounde, 27 U.N. GAOR Supp.
21, at 73, U.N. Doc. A/AC. 138/79 (1972).
115 Draft Convention, supra note 4, art. 26.
116 There are additional differences which are significant in other respects. For
example, the royalties which would be collected under nationally controlled
economic zones would be paid to the controlling state, while under the "trustee-
ship" zone concept a larger portion of the funds would be used for the benefit of
all developing states. This difference would not significantly affect United States
interests as we would not be a beneficiary of these sums in either event.
117 Logue, The Trillion Dollar Opportunity, in THE FATE OF THE OCEANS XVI
U- Logue ed. 1971).
118 Id. at xxix.
119 See text accompanying notes 101-06 supra.
120 Brower, supra note 44, at ~.
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1973] Deep Seabed Hard Minerals 615
ever, implementing the scheme of S. 2801 would severely preju-
dice the ability of our representatives to negotiate an interna-
tional regime.
The claims which developing nations are currently making in
the U.N. Sea-Bed Committee demonstrate their strong national-
ism,'2' but these claims are still negotiable. Once unilateral action
solidifies the claims, they will be difficult or impossible to re-
verse;'22 and the best remaining hope would be an international
regime covering the areas not, swallowed up. Such a regime will
be much less desirable than the one which can be expected absent
interference from S. 2801. Even if the developing nations exhibit
more restraint in their actions than we would have exhibited by
the enactment and use of S. 2801, our bargaining position will be
prejudiced. The nations of the world have collectively expressed
their desire that the wealth of the deep seabed be reserved for the
benefit of mankind.123 The United States has consistently sup-
ported this position. To adopt an approach so diametrically op-
posed to this expression, even if it can be legally justified,'24 will
surely result in distrust of our motives and more difficult bargain-
ing.'25
Moreover S. 2801 will reduce the flexibility that our negotiators
121 Sce note 114 su~ra.
122 Not one unilateral extension of jurisdiction since issuance of the Truman
Proclamation in 1945 has been withdrawn despite strong protests in many instances.
123 Legal Principles Resolution, supra note 26.
124 Sec note 24 supra.
125 As stated by Professor Knight:
Although it is truc that General Asscmbly resolutions (10 not constitute
binding legal obligations, nonetheless such resolutions do, when adopted by
such overwhelming majorities as was the case with [the Legal Principles
Resolution], represent the expectations of the international community and
thus create political and moral norms which should not be dismissed
lightly. The legal regime proposed by S. 2801 contradicts each of the
major premises of [the Legal Principles Resolution]. Thus, [S. 2801} not
only conflicts with National oceans policy as manifested in the United States
draft seabed treaty. . . but it also conflicts with an international resolution
of almost universal acceptance which reflects the expectations of the entire
international community. Only a National need of the highest priority
should be permitted to override this international expectation, and I
suggest that the needs of the deep seabed mining industry do not at present
constitute such a priority.
House Hearings, supra note 12, at 61 (statement of Dr. H. Gary Knight, Professor,
Marine Resources Law, Louisiana State University).
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616 Harvard Journal on Legislation [Vol. 10:596
need to arrive at a satisfactory result.126 The bill makes decisions
in areas unnecessary to the resolution of the eventual limits of na-
tional jurisdiction. It touches on things as basic as the size of the
areas covered by licenses, the flow of funds to an eventual interna-
tional organization, and the method by which licenses will be
granted, i.e., first-come-first-served rather than competitive li-
censing. These issues are now subject to negotiation and our
negotiators have flexibility in resolving them. Such flexibility will
be effectively foreclosed by S. 2801, thus making a desirable accom-
modation less likely.127 Of course, anything that makes our bar-
gaining position more difficult will also have a tendency to delay
a final resolution.128 While it is not essential to reach a speedy con-
clusion to the seabed negotiations, it is desirable to proceed as
rapidly as effective negotiating will allow. In this sense, S. 2801
is contrary to our best interests and conflicts with the urgent need
for a satisfactory conclusion so highly touted by the bill's propo-
nents.
III. A SUGGESTED RESPONSE
If S. 2801 is not a proper response, what would be an improve-
ment? A better response would incorporate the few positive as-
pects of S. 2801 and form a firm foundation for a future seabed
regime should international negotiations fail.
A. Delaying Clause
The enactment of legislation with a clause which delays its im-
plementation will utilize the one positive feature of S. 2801 and
avoid its detrimental effects. The proponents of 5. 2801 contend
that it would help to spur on negotiations by showing that the
United States will not sit still while others engage in delaying tac-
tics. A distinction must be drawn, however, between preparation
126 Id. at 119 (testimony of C. H. Burgess, Vice President, Exploration, Kennecott
Copper Corp.).
127 See generally Brower, supra note 4, app.
128 A vivid example of the type of delaying tactics which animosity can provoke
is a draft resolution introduced in the March 1972 U.N. Sea-Bed Committee meeting
by Kuwait. 27 U.N. GAOR Supp. 21, at 69, U.N. Doc. A/AC. l38/L. 11/Rev. 1
(1972). It was feared that this resolution would occupy a substantial portion of the
August 1972 meetings of that committee, but it did not. House Hearings, supra
note 12, at 242 (testimony of John R. Stevenson, Legal Adviser, Department of State)
PAGENO="0361"
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1973] Deep Seabed Hard Minerals 617
and immediate action. S. 2801 is beneficial as a threat to those
who may advocate substantial delay to the international regime.
Once action such as the issuance of licenses is taken, this threat is
lost, as such action is difficult tO reverse.129
The adoption of legislation with a delaying clause would indi-
cate an advanced state of readiness to those accused of delaying
tactics, yet maintain the necessary threatening quality.130 Such leg-
islation would also demonstrate a high degree of restraint by the
United States and thus indicate good faith bargaining. Incorporat-
ing a delaying clause in any proposed legislation would present
few problems. The critical decisions would be the length of the
delay and the factors, if any, which should trigger implementa-
tion~. Because the Law of the Sea Conference is now firmly sched-
uled, a clause delaying implementation of legislation until after
the scheduled completion date of the Conference, say January
1976,131 seems appropriate. Our negotiators would have the needed
flexibility at that Conference, and any adverse effects of the new
legislation on the negotiations would be minimized. After this
date ithplementation should be at the President's discretion, once
he finds that an international regime will not be brought into ex-
istence or that the balance of policy considerations has shifted in
favor of implementation. If the 1974 Conference results in a
treaty that is open for signature at the Conference's conclusion,
there will still be a substantial period before the treaty comes into
force.'32 During this period Congress should authorize immediate
implementation of the applicable treaty provisions and thereby
supersede S. 2801.133
B. A Cre4ible Proposal
Prior to the conclusion of the 1974 Law of the Sea Conference,
a delaying clause would cure most problems of S. 2801. But if
those negotiations break down, S. 2801 would be severely made-
129 L. HENKIN, supra note 3, at 36.
130 This phenomenon is the basic premise of nudear deterrence. See generally,
H. KISsINGER, THE NECESSITY FOR CHOICE (1960).
131 See note 27 supra.
132 See J. ANDRASSY, su~ra note 3, at ~9.
133 Brower, su~ra note 44, at 5; cf. Civil Aviation Convention, done Dec. 7,
1944, [1947] 61 Stat. 1180, T.I.A.S. No. 1591, 15 U.N.TS. 295.
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618 Harvard Journal on Legislation [Vol. 10:596
quate as a permanent framework. Part of the lock-in effect is due
not to the prospective implementation of a "flag nation" scheme,
but to the weighty indemnification provisions of S. 280 1.134 Even
if a "flag nation" approach were found necessary after 1976, con-
ditions could change so as to make an international regime both
possible and desirable. The present indemnification provisions of
S. 2801 would effectively preclude this, but some protection of in-
vestment would still be required.135 This* protection could be ac-S
complished by indemnification against loss of investment, not loss
of investment and profits as S. 2801 now provides. Such change in
the indemnification provisions would provide future flexibility,
make the proposal more acceptable to the Treasury, and lessen
the lock-in effects that could arise despite the delaying clause.
Domestic legislation should also be as widely accepted as pos-
sible in order to mature into a satisfactory international legal
framework in the event an international regime becomes impos-
sible.136 S. 2801 is so biased in favor of the mining interests of the
technologically advanced nations it would not garner this wide
acceptance. Thus, any legislation in this area should be made
more credible to nations not possessing the necessary technology.
Changing the indemnification provision would be a strong start
in this direction, but other changes are also required. S. 2801 pres-
ently contains no real incentive to cause developing nations to be-
come reciprocating states.'37 Such an incentive could be provided
by making escrow fund payments more realistic.138 The legisla-
tion should require that payments to this fund be a percentage
royalty of the gross value of the minerals extracted,13° and licenses
should be issued on a competitive bidding basis.14° Funding the
134 Sec S. 2801, 92d Cong., 1st Sess. § 10 (1971).
135 OUR NATION AND THE SnA, supra note 1, at 156.
136 Even the proponents of S. 2801 recognize this. House Hearings, su~ra.nbte 12,
at 110 (testimony of T. S. Ary, vice President, Union Carbide Exploration Corp.).
137 See text accompanying notes 107-10 supra.
138 See note 109 supra.
139 Senate Hearings, supra note 11, at 69 (statement of Samuel R. Levering,
Secretary of S.O.S. (Save Our Seas) (United States Committee for the Oceans)); cf.
Draft Convention, supra note 4, app. A. Royalties rather than a percentage of tax
revenues are presently used as the revenue mechanism under the Outer Continental
Shelf Lands Act, under which all petroleum leases on our continental shelf are now
made. 43 U.S.C. § 1334 (1970).
140 Possibly bidding could be on the basis of the maximum percentage royalty
the licensee would be willing to pay into the escrow fund.
PAGENO="0363"
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1973] Deep Seabed Hard Minerals 619
escrow fund in this manner would give the developing nations a
real incentive to reciprocate and would comply more fully with
the intent as well as the letter of the Legal Principles Resolution.
The major objection to competitive bidding is that large invest-
ments could be lost through such a procedure, since the company
which discovered the deposit might not be the successful bidder.14'
This objection could be overcome by reimbursing unsuccessful
bidders out of royalty payments for their reasonable and verified
exploration costs applicable to the licensed area, i.e., a "finder's
fee." The blocks to be licensed under S. 2801 have been criticized
as being too large.142 Block size was taken from the Draft Gonven-
tiOn,143 but at best that was a rough estimate.144 Because there is
no firm basis for setting block size, it would be prudent to leave
the determination of block size to regulation by the Secretary of
the Interior. This would allow~ flexibility as experience develops
and prevent windfall profits.
The minimum annual expenditures required under S. 2801 are
too small to prevent speculation. The bill requires minimum ex-
penditures, including those for off-site facilities, of only $6,150,000
over the first 15 years of a license.145 Such minimums represent
only about 2.5 to 3.7 percent of the total expected development
cost of each nodule site,'4° and an even smaller percentage of the
total expected pretax return from the site. However, like block
size, the proper minimum required expenditures can be better
determined with experience. Again regulation may be the best ap-
proach.
If negotiations for an international regime break down, it is
also probable that no agreement will be reached on the limits of
the continental shelf. A narrow limit would still be desirable to
accommodate our other ocean interests, but other states should be
required to accept such a limit before we become firmly com-
mitted. To accomplish this dual objective royalty revenues de-
141 House Hearings, su~ra note 12, at 91 (testimony of T. S. Ary, Vice President;
Union Carbide Exploration Corp.).
142 Senate Hearings, supra note 11, at 77 (statement of F. L. La Que, President
of the International Organization for Standardization).
143 Draft Convention, supra note 4, app. A., § 5.
144 Brower, supra note 44, at 18-20.
145 S. 2801, 92d Cong., 1st Sess. § 7 (1971).
146 See note 50 supra.
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620 Harvard Journal on Legislation
rived from the area between the 200-meter isobath and the end of
the continental margin should be held in a special fund to be paid
over to the escrow fund upon acceptance of the 200-meter limit by
a reasonable number of reciprocating states. Finally, a general re-
vamping of the language of the remaining provisions in S. 2801 is
required to remove any overtones of bias in favor of mining in-
terests.147
W. CONCLUSION
The approach taken by S. 2801 is deficient in many respects. Its
implementation would probably cause a partition of the oceans
and prejudice our bargaining position with regard to an interna-
tional regime. Interim legislation can be developed without these
defects. Such legislation should contain an appropriate delaying
clause, be designed to protect against loss of flexibility, and be a
workable and politically acceptable substitute for an international
regime.
David W. Proudfoot*
147 The environmental provisions of new legislation should be stronger than
they are under S. 2801. Determination of environmental standards should be left
to regulation, as was done in S. 2801, but with the added proviso that they would
be determined in consultation with the appropriate United Nations organizations
and reciprocating states.
Member of the Class of 1973 at the Harvard Law School.
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[Whereupon, at 4:35 p.m., the hearing was adjourned, subject to
the call of the Chair.]
PAGENO="0366"
PAGENO="0367"
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APPENDIX
[Under authority previously~ granted, the following ~tatements and
communications were ordered printed:]
Mr. &anley H. Dempsey
General Attorney, Western Division
American Metcal Climax, Inc.
UNDERSEA MINERALS
INTRODUCTION
The mineral supply situation of the United States is being
scrutinized by a number of governmental and private bodies. It
is becoming clear that our nation does not have an assured supply
of reasonably priced minerals and that in the future we will
become more and more dependent upon foreign sources of minerals.
Mineral imports add to the nation's trade deficit and our
reliance upon mineral production abroad creates concern for our
national security.
The development of a domestic ferromanganese nodule industry
under interim legislation such as that proposed in 5. 1134 would
contribute to United States mineral supplies and would help
reduce trade deficits. It would also contribute to our knowledge
of the deep ocean and provide us with alternative mineral
producing technology.
DOMESTIC MINERAL SUPPLY ISSUES
The first Annual Report of the Secretary of the Interior
under the Mining and Minerals Policy Act of 1970 states that U.
S. demand for metals tripled between 1950 and 1971, and the
metals share of the total mineraL demand valued at 42 billion
dollars rose-from 28% tc~ 36%. Growth of domestic demand for
individual metals will follow discrete rates, but an overall rate
of 4% annually is foreseen.
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The Secretary has stated that industry and government must
work together to assure a continued and expanded production of
minerals at reasonable cost from secure sources. Technological
progress for more efficient ore production and mineral processing
is urgently required. Incentives for locating new mines and
fully developing existing mines are needed also. Improved
combinations of materials to enhance performance, changes in
materials usage and implementation of appropriate recycling
procedures will assist in increasing our supply of the metals our
society demands.
The United States has been generously endowed with ore grade
deposits of many minerals, but so far mineral explorers have not
been able to find large nickel, cobalt, platinum, aluminum,
chromium or titanium deposits within the territory of the United
States. In fact, the United States is self sufficient in only
four mineral commodities; molybdenum, coal, tungsten, and
magnesium (metal). It seems unlikely that mineral supplies
adequate for our needs can ever be developed within our borders.
Increasing United States mineral supplies by constructing
new domestic mines or expanding old ones is made difficult
because of the confusion surrounding environmental standards and
siting issues. The mining industry has been particularly
disrupted by the uncertainty arising out of government's
haphazard entry into the field of environmental regulation.
Changing land use controls, including widespread withdrawals of
public lands from mining, are interrupting orderly development of
U.S. mineral resources. The mining industry supports efforts to
secure a quality environment, and believes that as the nation
gains maturity in regulating environmental impact these mine
siting problems will probably diminish, but the difficulties we
PAGENO="0369"
363
are now experiencing will affect mineral supplies far into the
future. Mining is a long lea& time activity.
BALANCE OF PAYMENTS
Since shortly before World War II, the United States has
been a net mineral importer in steadily increasing proportion.
The attached chart indicates the trend and extent of this
deficit, which at 1970 prices for metals alone exhibits the
following trend: 1950, $1,000,000,000; 1970, $5,000,000,000;
1985, $16,000,000,000; and 2000, $36,000,000,000.
0
23-317 0 - 73 - 24
PAGENO="0370"
364
These charts pictorially
increasing metal deficits for
U.S. Cobalt
display this trend of `rapidly
three particular metals.
Demand and Supply
400-
300 .
US MtN~ PR0DU~ON1 !i~ - ~
~JrPRODUCTION
YEAR
U.S. Copper Demand and Supply
Nickel Demand and Supply
1950 1955 1950 1955 1970 1975 1980 1985 1990 1995 2003
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365
In 1970 our net imports of three metals which can be
produced from ferromanganese nodules were as follows: cobalt,
75%; copper, 6%; and nickel, 66%. This represented a trade
deficit of $540,000,000, more than 10% of our entire metals
deficit. At 1970 prices and expressed in 1970 dollars, this
continuing trend of cobalt, copper and nickel net imports will
cost the United States in 1985 $1,700,000,000, and in the year
2000, $4,500,000,000.
Trade deficits are not the only problem arising out of
reliance on mineral imports. Dependence upon foreign controlled
sources of minerals runs the risk that a foreign government may
deny or restrict our access to such minerals. A few years ago it
was not foreseeable that such seemingly open nations as Australia
and Canada would restrict the ability of U.S. industry to obtain
raw materials from within their borders. Political changes in
those two countries are now doing just that. Thus, a new and
dependable supply of cobalt, copper and nickel is of considerable
economic interest. In addition, many nations which have exported
raw metals to the United States, now desire to participate in
more mineral processing, gaining the employment, technology, and
profits which in turn would be lost to the United States.
WHY THE UNITED STATES SHOULD
ENCOURAGE DEVELOPMENT OF A FERROMANGANESE NODULE
INDUSTRY
Ferromanganese nodules lying in abundance on the deep sea
floor appear to provide a portion of the answer to the growing
minerals crisis, and U.S. industry believes that it has, or will
soon develop the ability to produce needed metals from these
nodules. U.S. industry is willing to commit capital and
technological knowhow to the development of an undersea minerals
industry which would have a positive impact upon U.S. employment,
minerals supply, balance of payments and trade, and technological
base.
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366
Although we have known about the existence of nodules on the
ocean floor for almost one hundred years, it has only been in the
last ten to fifteen years that increased knowledge about the
metal content of these nodules has generated commercial interest
here and abroad. Ferromanganese nodules contain over twenty
elements, among them: iron and manganese; cobalt, nickel and
copper; chromium, molybdenum, and zinc; and rare earth minerals,
titanium, palladium, platinum, and gold.
The major commercial interest in ferromanganese nodules is
focused at this time upon the metal values of cobalt, copper and
nickel. Disparate metal values can be cited, depending upon the
type and location of the nodules; on April 30, Metals Week
reported that a recent assay by the Lamont-Doherty Geological
Observatory of nodules in a possible mining target area southeast
of Hawaii indicates the following metal values: cobalt, 0.23%;
copper, 1.16%; and nickel, 1.28%.
Metals Week has reported that processing costs range between
$10.00 and $30.00 per ton of nodules, and that recoverable metal
values are expected to run between $50.00 and $100.00 per ton of
nodules. Actual nodule mining economics will depend upon the
amount and types of equipment used, the capacity of the mining
operation and processing plant, transportation, market prices,
and many other factors. Initial scientific research discloses a
potentially huge supply of nodules which is constantly being
regenerated, in contrast to most other natural mineral resources.
Just one mining operation producing one million tons of nodules
per year could produce significant amounts of metal, as shown in
the chart below.
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367
Percent 1970 Percent 1970
U.S. U.S.
Metal Tons/Year~ Consumption Net Imports
Cobalt 2,400 36 39
Copper 10,000 0.5 2
Nickel 12,600 8 8
Suffice it to say the production of cobalt, copper and
nickel from ferromanganese no~u1es by U.S. based corporations can
have a significant positive impact upon the balance of payments
deficit.
It has been estimated that an initial investment of two
hundred to three hundred million dollars would be required for
one company to enter the nodule mining business, and no more than
a half dozen entrants are expected in the foreseeable future. It
was reported in the Winter, 1973, issue of the Natural Resources
Lawyer that thus far approximately $90,000,000 have been spent by
U.S. industry in studies, potential site location, prototype
systems, and pilot plants. Other nations are similarly
encouraged. For instance, Japan is promoting a continuous line
bucket dredging system, and a German consortium with government
support is spending over $3,OO0,000 annually.
ALTERNATE MINING SYSTEMS
At present there exist within the United States certain
compet4tive advantages with respect to the development of
ferromanganese nodules, and these advantages should not be lost.
The technological breakthroughs which will be developed in
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undersea mining will not only provide us new foreign markets but
will carry over into other aspects of U.S. industry.
It is immediately important at home for the United States to
possess alternative technologies and alternative mineral sources
in confronting the developing minerals crisis. As is being
demonstrated in the energy field, a lack of alternative sources
of energy and alternative technologies for making the energy
available to users has amplified the magnitude of energy
deficiencies. The requirements for supplying the minerals
demands of the U.S. economy are too great to risk turning away
alternative mineral production technology.
It is useful and necessary for government to encourage
development of solutions to the problems caused by our increasing
minerals deficit. No single approach to solving this impending
minerals crisis will be a panacea; however, mining ferromanganese
nodules from the deep ocean floor will provide near term relief
of some metals deficits. The long range potential for increased
knowledge, advances in technology, new employment, and expanded
mineral recovery will benefit not only the United States but all
people.
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369
LOUISIANA STATE UNIVERSITY
AND AGRICULTURAL AND MECHANICAL COLLEGE
BATON ROUGE . LOUISIANA. 70803
Law School
Law Center April 12, 1973
Hon. Lee Metcalf
Chairnan, Subcommittee on Minerals,
Materials, and Fuels
Committee on Interior and Insular Affairs
United States Senate
Washington, D. C. 20510
Dear Senator Metcalf:
I read with great interest in the April 2, 1973 issue of the
Congressional Record of your proposed hearings on the "Deep Seabed
Hard Mineral Resources Act" scheduled for May 17, June 5, 18, and
19, 1973. As stated in your announcement, June 19 will be allocated
to organizations and individuals interested in international manage-
ment of the deep seabed.
I am enclosing a copy of an article which I prepared for the San
Diego Law Review stating the case in opposition to the "Deep Seabed
Hard Mineral Resources Act." I would greatly appreciate your
making this article a part of the record of the June 19 hearings.
If you think there would be any merit in my appearing personally
to testify I would be happy to db so, but I would be satisfied that
the members of your Subcommittee were exposed to the views expressed
in my article. Incidentally, the article is a revised version of
testimony which I gave last year on H.R. l39O~ before the Subcommittee
on Oceanography of the House Committee on Merchant Marine and Fish-.
eries.
I appreciate you considering this request.
*Very truly yours,
~
H. Gary Knight
Campanile Charities Professor
of Marine Resources Law
HGK:bm
Enc.
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370
THE DEEP SEABED HARD MINERAL
RESO~JRCES ACT -- A NEGATIVE VIEW
H. Gary Knight
I. Introduction.
!phe purpose of this article is to state the case in
opposition to enactment of the "Deep Seabed Hard Mineral Resources
Act (°Act" hereinafter) .V There are several other individuals and
ihstitutions which share the views expressed herein on this proposed
le~islation,~~' but thd majority of those previously testifying on
t~he~Act appear to favor its passage. Probably the most articulate
spokesman in favor of the Act,John G. Laylin, has written the article
w~iich immediately precedes this one in this 1973 "Law of the Seas"
Fasue ofthe San Diego Law Review. I am sure that Mr. Laylin will
agree that although we both seek to apply high standards of scholarship
t~o our research and writing, nonetheless our articles are essentially
exercises Id advocacy with the principal objective of enlightening the
readerto both the issues and the conflicting opinions involved in the
deep seabed mining problem. Our mutual intent is to give the reader a
framework in which to reach his own conclusions about the optimal sys-
tem for recovering seabed mineral resources.
in opposing present adoption of the Act, I do not do so on the
basis that within its four corners it ill serves the interests of the
marine mining industry -- on the contrary, I shall assume that it does
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so since it was essentially a product of that industry. There have,
however, been statements to the effect that the Act does not best
serve the resource management interests of the United States as a
who1e~-/ and I find myself in substantial agreement on those views.
However, I am limiting this critique to the broader perspective of
the Act's potential effect on the c~urrent international law of the
sea negotiations, including the United States position on law of the
sea issues, which goes beyond the *industrial aspects of deep seabed
mining. As a result of this broader analysis, I have concluded that
the Act ought not to be adopted at this time -- indeed, not until the
Third United Nations Conference on the Law of the Sea ("Third Confer-
ence' hereinafter)~1 has had an opportunity to fully consider the
issue and to either (1) adopt an international regime governing mining
of seabed minerals, in' which case the need for the Act would disappear,
or (2) fail to reach agreement thus~ leaving a void in conventional
internatioi~al law on the subject which might well be filled by a modi-
fied version of the Act.
II. Analysis.
My principal arguments against the present enactment of*
the Acb are threefold: (1) it is inconsistent with this Nation's pres-
ent oceans policy; (2) it will probably have an adverse effect on the
`current law of the sea negotiations; and (3) it contravenes interna-
tional expectations evidenced in the "principles" resolution of the
General Assembly.~" All of t~iese a±~guments are based essentially on
what I believe to be inappropriate timing. As noted above, if the,
Third Conference succeedt there will be no need for the Act, yet if it
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372
fails the Act might be an appropriate vehicle. In the interim I
think it inadvisable to impose the Act on the international efforts
to seek an overall revision of the law of the sea because these
negotiations involve ocean related issues other than marine mining
as well as possessing broader implications for world public order.
A.- The Acl is Not Consistent with Current United States
Océ~ans Policy.
During the early stages of the current international law
of the sea negotiations a number of alternative regimes were suggested
for governing the exploitation of non-living resources from the sea-
bed and subsoil beyond the limits of national jurisdiction.1~' Some
suggested dividing the world ocean on a equidistance principle, thus
creating "national lakes" and apportioning the entire seabed and its
resources among a few boastal states.~ Others suggested vesting
title to seabed resources in the United Nations, permitting that
their
organization to govern/disposition.- Both of these alternatives
were reSected at an early date -- the former because it was not polit-
icälly acceptable to a sufficient number of nations, the latter be-
cause neither the United States nor the Soviet Union was interested
in perelitting the United Nations to secure dependent sources of income.
A third view suggested that no policy decision be made at all
but rather the world should wait on industrial/political developments
10/
in the field -- a sort of invisible hand approach.-
Two other alternatives remained under active consideration well
into the deliberations which ultimately led to the development of a
United States oceans policy.~-~' One was the "flag nation" system,
PAGENO="0379"
373
under which exploitation of seabed resources would be governed by
ti-ic law of the nation in which the vessel or other platform was
registered.i?1 Under this system there would be no international
seabed authority, save perahps for a registry office for the filing
of claims. The other alternative was the creation by international
agreement of a detailed set of rules governing exploration for and
exploitation, of seabed resources cbmplete with an attendant inter-
national orgqnization to allocate exploration and exploitation rights,
receive and distribute revenues, and regulate resource extractive
operations.
In May, 1970, the President of the United States expressed a
preference for the latter alternative,2~" and in August, 1970, the
United States submitted'to the United Nations Seabed Committee the
"~aft United Nations Convention on the International Seabed Area4-~-~'
whicli elaborates on the President's proposal with provisions for an
for
international oceans regime providing/participation by all nations.
Based on these
two documents, it is apparent that~United States oceans policy with
respect to the regime to govern exploitation of non-living resources
of. the seabed and subsoil beyond the limits of national jurisdiction
conttthsat least the following elements:
(1). The regime should be the product of international agreement,
r~otunilateral state action;~-~-"
(2) Some form of international organization should be developed
16/
to regulate seabed exploitation activities;- and
(3) Adequate provisions should be included within the framework
of.such an international agreement and organization to establish or
PAGENO="0380"
374
ensure (a) protection of the marine environment, (b) a system of
peaceful,.compulsory disputes steelement, (c) integrity of investment,
Cd) revenue sharing, bearing in mind the special needs of developing
nations, and (e) maintenance of multiple use of the ocean environ-
17/
ment . -
In December, 1970, the United Nations General Assembly adopted
a resolution calling for convocation of the Third United Nations
Conference on the Law of the Sea (`Third Conference' hereinafter) to
be field sometime during 1973 unless postponed by the 1972 regular
session of the General Assemblyon the grounds of insufficient
progress of preparatory work. At the 1972 General Assembly session
it was decided to convene a procedural session of the Third Conference
in L973, concurrent with that winter's session of the General Assembly,
and to initiate the substantive portion of the Third Conference in
Santiago, Chile, in April-May, l9?LI.12-" The United Nations Committee
on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the
Limits of National Jurisdiction C"Seabed Committee" hereinafter)~-"
has been charged with responsibility for preparatory work for the
`Third Conference and has been considering the United States and other
seabed regime proposals at its semi-annual meetings which are now
scheduled to continue through l973.~'
Thus, the Administration has pursued an active and vigorous
policy of internal deliberation and international negotiation which
it hopes will lead to international agreements governing the extrac-
tion of seabed resources.
As noted above, there has been introduced in the Ninety-third
Congress the "Deep Seabed Hard Mineral Resources Act," N.H. 9. This
bill would create, by reciprocal domestic legislation, a system of
PAGENO="0381"
375
flag nation jurisdiction over hard mineral mining activities on
the seabed beyond the limits of national jurisdiction. In fairness,
it should be noted that some have argued that the Act does not con-
stitute a flag nation" approach at all.~-~-~' In my view, however,
"flag nation means simply that the only law governing operations on
the high seat is that of the state whose flag the vessel or platform
flies; and this is clearly the intent of the Act for it does not
ésttblish any international legalsystem to govern deep seabed mm-
ińg but rather relies exclusively on reciprocal domestic legisla-
Obviously, such a flag nation system provides benefits
only for technologically advanced nations which have or can rapidly
develop a marine mining capability, and, in effect, constitutes an
appropr~ation.of deep seabed hard minerals by those very few nations.
I~*would foreclose pqrticipation in the establishment of rules and
operating regulations by other nations.
This effect of a. "freedom of the high seas" doctrine (which
is the underlying premise of the flag nation system proposed in the
was aptly descrAbed by United States Senator Lee Metcalf:
those nations which have the capacity -
to lay submarine cables, do oceanographic
research, and mine the deep ocean floor
benefit from the freedom of the seas doc-
trine. Those nations without marine
technology do not benefit.
When one understands that there are
dozens of nations which have never bene-
fitted from the freedom of the seas doc-
trine, one can understand the motivation
behind, their growing demands for greater
participation. What is proclaimed by
some to be eqpal freedom for all nations
on the high seas has become in fact
unequal freedom.~/ -
PAGENO="0382"
376
On several counts, then, the approach of the Act is fundamentally
inconsistent with United States oceans policy.
First, it is United States policy to establish the seabed
regime through international agreements, while the Act relies on
domestic legislation. Granted, the supporters of the Act speak
in terms of a system of reciprocal domestic legislation, but the
approach is still national as opposed to international because the
Act itself would not be the product of international negotiations
in~ vthich the different national. interests could be expressed and
accommodated but rather the product of a single industry as modified
by the United States Congress (which pattern would then be emulated
by other nations on, if the reciprocity is to be effective, a "take
it o~r leave it" basis). There would thus be no meaningful partici-
pationby members of the international community in establishing
opes~ational rules under the Act.
~econd,~ it is the United States policy to establish inter-
.~ational machinery to govern seabed operations beyond limits of
national j~risdiction. The Act would utilize no international agency,
relying instead solely on national laws and institutions to allocate
resources and settle disputes.
Third, and with respect to the five elements set forth by
President Nixon (see text accompanying note 17 suora), the Act does
not adequately (or in some cases, at all) meet the policy obje.ctives
there set forth. For instance, it is exceptionally weak in terms
of protection of the marine environment and contains no system at
all (save for the implicit diplomatic negotiation) for peaceful,
compulsory disputes settlement. Since the Act is not part of an
PAGENO="0383"
377
overall law of the sea agreement, it doss not adequately handle the
problem of multiple uses of the marine environment nor does it
establish a meaningful system for revenue sharing (reliance is
placed instead on the traditional format of Congressionally approved
foreign aid).
Il-i vie~i of these basic inconsistencies, I believe that the
Act should be shelved pending the Administration's attempt to secure
the objectives it seeks, at least through conclusion of the Third
Conference. If in fact the marine mining industry feels that the
Administration's law of the sea policy is an inferior one, then the
better approach would seem to be to attempt to alter that policy
within the Executive branch framework available therefor, and not
to thwart that policy by urging inconsistent Congressional action.~1
There is an element of futility in the latter approach anyway, since
ultimately (barring an override of a Presidential veto) the President
~i1i have the last say on whether such a bill becomes law. It seems
unlikely that the President would sign such a bill if he wished to
~aimtain the Administration's existing oceans policy.
~.. The Act's Adoption Would Have an Adverse Effect on
Current Law of the Sea NegotiatAons.
As already. qoted, this Nation is currently involved in
complex negotiationson law of the sea issues leading to the Third
COnference. The negotiation process is extremely difficult because
of the existence of a very wide range of ocean-related issues and
a very large number of countries and special interests. The adoption
at this time of a bill constituting a unilateral act with respect
PAGENO="0384"
378
to ocean resources by the United States could have a highly
prejudicial effect upon the conduct of these negotiations.
First, the adoption of the Act, with its unilateral nature
and appl~opriative coloration, might well break down any remaining
barriers to extension of 200 mile (and more).exclusive economic
resource zones by. developing dations. True, the Act itself makes
rio specific claim of appropriation with respect to seabed resources,
bat *one must examine fact as well as form. In fact, *the single
underlying justification for the Act is the need for sufficient
security *of tenure by the mining companies to satisfy their respec-
tive boards of directors or lending institutions concerning the
safety of the economic investment.being made. If the Act did not
Id fact assure exclusive rights to seabed resources with appropriate
legal safeguards of that exclusive tenure, it would not serve that
stated objective. Thus, in fact, the Act does appropriate to the
e~zc1usive use of the license holder certain designated seabed areas.~-"
What many.commentators, including me, fear is that all of the
deve]~opi~ng countries whose maritime territorial ambitions the United
States has been holding at bay with the promise of an overall law of
the settlement would react to the Act by saying, in effect, that
since the developed nations had seized those things of value to them
in the oceans the developing nations were therefore entitled to seize
those things of value to them, namely exclusive resource jurisdiction
In 200 miles of adjacent coastal waters and seabed. Such a course
of action and reaction would leave little for the `common heritage of
mankind."
The so-called "economic resource zone" concept, in which
PAGENO="0385"
~379
coastal states would exercise preferential or exclusive rights
with respect to all living and non-living marine resources, is
extremely popular at the present time among developing countries
and may well be one of the outcomes of the Third Conference.~'
Nonetheless, ond consistent with its current policy, the United
States continues to strive for a meaningful international content to
resource extractive activities in~.the ocean. Were the effect of adop-
tio~ of the Act be .to encourage unilateral assertions of resource
jurisdiction by other nations to extensive maritime areas, then
the objectives of United States policy in imposing certain interna-
tional standards on such.zones would be greatly. imperiled. Two
hundred mile resource zones without guarantees for freedom of
navigation and international standards concerning dispute settle-
ment, revenue sharing, conflict of uses, protection of the marine
environment,, arid integrity of investment, would be unacceptable to
the United St.ates~*while. zones encompassing such considerations
would clearly further our National objectives In the ocean. In my.
view1 our Nation's efforts to secUre a meaningful international regime
could be thwarted if the effect of the Act was to precipitate uni-
lateral claims whose ultimate effect would be to foreclose the
possibility of reaching international agreement on many vital ocean
Issues.
Second, and for the same reasons stated above, suc.h unilateral
claims could have a prejudicial effect on national defense interests.
The Department of Defense ("DOD') has made clear that maintaining
maximum naval mobility is a vital element of our national security
system. DOD has succeeded in having adopted as part of our current
23-317 0 - 73 - 25
PAGENO="0386"
380
National oceans policy the internationalization rather than the
nationalization of seabed resources in order to protect against
the phenomenon called creeping jurisdiction' in which national
jurisdiction for limited purposes supposedly tends to ripen into
territorial sea jurisdiction. DOD also fostered the presentation
by the United States delegation to the United Nations Seabed Com-
mittee of draft articles providing for free transit through inter-
national straits, a change from the old regime of "innocent pas-
sage."~-~' If extensive unilateral claims of jurisdiction over ocean
space by developing nations were to follow enactment of the Act,
DOD's interests in maximum naval mobility and passage through
straits could be seriously coijipromised.
Third3 and finally, the effect of adoption of a flag nation
system for the deep ocean floor and the generation of national
claims to ocean space areas nearer shore would mean that a meaning-
ful international organization to govern activities in ocean space
would be unlikely, thus frustrating achievement of several long
range foreign policy objectives of the United States such as com-
pulsory disput~s settlements reduction of conflict potential, and.
foreign aid.
Coticern has been expressed by proponents of the Act that
certain developing countries are opposed to the recovery of deep
seabed mineral resources by anybody. These nations are purportedly
motivated by..a desire to limit competition.with respect to their
upland and offshore mineral resources. Accordingly, it is argued,
many developing countries -- including some petroleum exporting
countries -- will obstruct and frustrate efforts in the Seabed
PAGENO="0387"
381
Committee and at the Third Conference to adopt an international
regime which would facilitate the exploitation of seabed rrineral
resources. It is therefore concluded by these individuals that the
interminable delay. we can expect as the result of this posture will
adversely prejudice National interests in the development of marine
mining technology and the recovery of needed mineral resources.
I cannot find fault with the logic of such an argument,
but I believe one of the underlying assumptions -- the potential
adverse impact on prices -- is not completely valid. Several studies
have been published concerning the economic implications of develop-
ment of seabed minerat resources. Among.these is a report prepared
b~r .th~ Secretary General of the United Nations titled "Possible
Ii~ipct of Sea-Bed Mineral Production in the Area Beyond National
Jurisdiction on World Markets, With Special Reference to the Problems
o~C Developing Countries: A Preliminary Assessment."~-2-" This
report concludes that there would not likely be any significant
adverse economic impact from the production of manganese noduled
and other seabed minerals. Similar conclusions were reached by the
Uriiteçl States Government in its study entitled `Economic Implica-
tions of Seabed Mineral Resource Development" (July 6, 1971). Thus,
the facts indicate that the fears of these developing countries
about maintaining market prices for their mineral exports are probably
unfounded.. Once the data in these studies is understood by the
affected nations, I doubt seriously whether their hesitancy o.ver
supporting an international regime to facilitate the mining of deep-
sea mineral will continue. On the other hand, enactment of the Act
would, as noted, above, likely have the effect of promoting national
PAGENO="0388"
382
claims to ocean space and adversely affecting the chances for inter-
national agreement on the use of ocean space.
C. The Act Would Be Contrary to International Expectations
Expressed in General Assembly Resolution 27149.
In December, 1970, the United Rations General Assembly
adopted resolution 27149 which provides, among other things, that:
I. The sea-bed and ocean floor and the
subsoil thereof, beyond the limits of na14ional
jurisdiction (hereinafter referred to as the
area), as well as the resources of the area,
are the common heritage of mankind.
2: The area shall not be subject to
appropriation *by any means by States or
persons, natural or juridicial, and no
State shall claim or exercise sovereignty
or sovereign rights over any part thereof.
3 ~To State or person, natural or
juridicial, shall claim, exercise or acquire
rights with respect to the area or its
resources incompatible with the international
regime to.be established and the principles
of this Declaration.
~L All activities regarding exploration
and exploitation of the resources of the
area and other related activities shall be
governed by the international regime to
be established.
7.. The exploration of the area and the
exploitation of its resources shall be car-
ried out for the benefit of mankind as a
whole, irrespective of the geographical
Th~ation of States, whether land-locked or
coastal,.and taking into particular con-
sideration the interests and needs of
the developing countries.~'
This resolution was adopted by a vote of 108 in favor, none against,
and 114 abstentions. The United States voted in favor of the resolu-
tion.
PAGENO="0389"
383
Although it is true that General Assembly resolutions do
not constitute binding legal obligations, nonetheless such resolu-
tions do, when adopted by such overwhelming majorities as was the
case with Resolution 27149, represent the expectations of the
international community and thus create political and moral norms
which should not be dismissed lightly.~" The legal regime pro-
posed by the Act contradicts each of the major premises of Resolution
27149 quoted above.
For example, paragraph 2 of Resolution 27119 states that the
area "shall not be subject to appropriation by any means," (emphasis
added) the latter wording clearly covering de facto claims or appro-
priations regardless of the form in which they are couched. (I
have already alluded to the form-fact dichotomy of the Act in Part
ii.~ ~ Paragraph 3 is even~ more explicit in prohibiting
acquisition of rights other than in accordance with the international
regime to be established. Certainly the Act creates rights in the
seabed area,but it is notpossiblč to say at this time whether
they are compatible with the international regime to be established.
However~ viewing the principles re~olution in its entirety, there
are some obvi~us discrepancies between the regime proposed by the
Act and those basic components of an international seabed regime
envisioned by the resolution.
Further, the li~ service paid to revenue sharing by the
Act does not carry forward the objective of paragraph 7 of Resolution
27149 which calls for seabed activities to be "carried out for the
bedefit of mankind as a whole . . taking into particular considera-
tion the interests and needs of the developing countries." The
PAGENO="0390"
384
Act serves the marine mining industries technologically advanced
nations, not mankind as a whole.
III. Conclusion.
A~ indicated above, the principal issue in considera-
tion of the Act is one of timing. The long range objectives of the
Ac~ are laudable -- exploitation of needed mineral resources and
preservation of the technological lead of the United States in re-
covery and beneficiation techniques. -The only real question is
whetheh we take unilateral action now or attempt for another two
years (through the l97~-l975 Third Conference) to secure international
agreements on the subject. I have stated the case above for allow-
ing our Government to continue its negotiating efforts and believe
thdt that is the best course both for our Nation and the interna-
tional community.
IV. Posts'cript.
As this article was being completed, the United States
Government (which had in 1972 avoided taking a firm position for or
against the Act), in testimony before the Subcommittee on Oceanography
of the House Committee on Merchant Marine and Fisheries, took a posi-
tion quite similar to that set forth in this article.~-~-" I hasten
to add that the expression of my own views probably had little or
nothing to do with the Government's decision. Nonetheless, the Admin-
istration has pleaded with Congress to give it until the conclusion
of the Third Conference (but no later than 1975) to work out an
PAGENO="0391"
385
acceptable international seabed regime. That position is subject
to review, however, and should insufficient progress be made toward
convening of the Third Conference~ or should that Conference fail
to produce the requisite agreement, the Administration has indicated
Its support for an approach such as that taken in the Act (although
members of the Inter-Agency Law of the Sea Task Force are working
on their own version of a seabed mining bill),
If Cpngress heeds the advice of the Administration on this
point, then we will have the opportunity to see if the international
community has reached a sufficient~ stage of sophistication to adopt
an interantional seabed regime, or whether it will take a step
b~ckward in international law and relations by resorting to unilateral
activities in the ocean.
PAGENO="0392"
386
Footnotes
* Associate Professor of Law and Marine Sciences, and
Campanile Charities Professor of Marine Resources Law, Louisiana
State University Law Center; Member, Advisory Committee on the Law
of the Sea (U.S. Government Inter-Agency Law of the Sea Task Force);
Coordinator, Lousiiana State University Sea Grant Legal and Sodio-
Economic Program.
The research for this article was supported partially
by funds allocated by Campanile Charities, Inc. for the Campanile
Charities Professorship of Marine Resources Law, and partially by
funds from the Louisiana State University Sea Grant Program, a
part of the National Sea Grant Program (National Oceanic and
Atmospheric Administration, Department of Commerce), under Grant
No. 2-35231. The United States Government is authorized to pro-
d~cp and distribute reprints hereof for governmental purposes
moti~ithstanding any cppyright notation that may appear hereon.
1.: S. 2801 and H.R. l390~4 (92d Cong., 2d Seas., 1972) and
E.R. 9 (93d Cong., 1st Sees. ,l973). All are identical in language.
Hsarings on H.R~ l390~ were held on May 12, 16, and 25, 1972 [see
Hearings on Deep Seabed Hard Mineral Resources (HR. l390~) before
the Subcommittee on Oceanography of the House Committee on Merchant
Ngrine and Fisheries (92d Cong., 2d Sess., May 12, 16, and 25, 1972)
(Hearings on H.R. l390t" hereinafter]. A Hearing on S. 2801 was
held on June 2, 1972 [see Hearings on S. 2801 before the Subcommittee
on Minerals, Materials, and Fuels of the Senate Committee on Interior
PAGENO="0393"
387
and Insular Affairs (92d Cong., 2d Sess., June 2, 1972) `Hearing
on S. 2801" hereinafter)]. No action was taken by either subcom-
mittee on the bills during the ninety-second session of Congress.
2.. See, e.g., statement of Alan Cranston, United States
Senator from California, in Hearing on 5. 2801 at 10; letter from
Robert B. Krueger to the Subcommittee on Oceanography, House Com-
mittee on Merchant Marine and Fisheries~ dated May 9, 1972, reprinted
inHearings on H.R. 139014 at 192; statement of Wolfgang Friedmann,
Professor of International Law, Columbia University, in Hearings
on H.R. 139014 at 167; statement of Samuel R. Levering on behalf of
the Friends Committee on National Legislation, in Hearings on H.R.
1390'1 a8 183; and statement of John J. Logue, Director, World Order
Research Institute, Villanova University, in Hearings on HR. 139014
at; 1149.
3.. Laylisi, "The Law to Govern Deepsea Mining Until Super-
seded by'Interriational Agreement,"~ 10 San Diego Law Review (1972).
11.- See,. e.g., Supplement~1 Statement of Leigh S. Ratiner,
Director for Ocean Resourcd's, Department of the Interior, on behalf
o~'the Inter-Agency Task Force on the Law of the Sea, before the
Subcommittee on Oceanography of' the House Committee on Merchant
Marine and Fisheries (93d Cong., let Sees., March 1, 1973).
5. In December, 1970, the United Nations General Assembly
adop~ed resolution 2750C (XXV) calling for convocation of a Third
th'iited Nations Conference on the Law of the Sea to be held sometime
during 1973 unless postponed by the twenty-seventh sessionof the
General Assembly on grounds of insufficient progress of preparatory
work. The question of the regime to govern exploitation of non-living
PAGENO="0394"
388
resources of the seabed beyond the limits of national jurisdiction
is paramount on the agenda for the Third Conference. As a result
of adoption of General Assembly Resolution 3029 (XXVII), a procedural
meeting of the Third Conference is scheduled to take place concur-
rently with the 1973 meeting of the General Assembly, and the
isscheduled to
substantive conference / begin in April-May, l97~, in Santiago,
Chile.
6; ~ Res. 27~9 (XXV) (1970).
7~; ~ora sampling of various positions advocated, see
Christy, "Alternative Regimes for Marine Resources Underlying the
High Seas, 1 Natural Resources Lawyer (No. 2) 63 (1968).
8.~ See Bernfeld, Developing the Resources of the Sea --
Security of Investment," 2 The International Lawyer 67. (1967) and
1 Natural Resources Lawyer (No. 1) 82 (1968). For a map indicating
hov Such a division of the world ocean might look, see the chart
appended to Alexander, ed., The Law of the Sea: The Future of the
Se~'s Resources (1968).
9.: See Creamer~ ~Tit1e to the Deep Seabed: Prospects
f'o'r the Future~".9 Harv. Int'l L. J.. 205 (1968); Eichelberger, "A
Case for the Administration of Marine Resources Underlying the High
Seas by the United Nations," 1 Natural Resources Lawyer (No. 2) 85
(1968).
1O.~ See Wilkey, "The Deep Ocean: Its Potential Mineral
Resources and Problems,' 3 International Lawyer 31(1968); Ely,
"The Fashioning of a Regime to Govern the Development of Undersea
Mineral Resources,"paper presented to the Workshop on Law as
Related to Ocean Development Problems (George Washington University
National Law Center, April 20, 1968).
PAGENO="0395"
389
11. In using the phrase United States oceans policy" j~
this paper, I am referring only to (a) Presidential pronouncements,
(b) draft treaty articles submitted by the United States, and (c)
major statements made by members of the United States delegation to
the United Nations Seabed Committee. There is room even within
that limited framework, however, for differences of opinion concern-
ing just what United States oceans, policy is (or was) and there are
even subject matter areas in which it seems doubtful we have a single
unified policy at the present time. Accordingly, the representations
of policy stated herein are purely my own interpretation of the above
documents and statements and do not necessarily reflect the position
of the United States Government.
12. For a discussion of the `flag nation" approach, see
Ely, "American Policy Options in the Development of Undersea Mineral
Resources," 2 International Lawyer 215, 222-223 (1968); Ely, "A Case
for the Administration of Mineral Resources Underlying the High Seas
by National Interests," 1 Natural Resources Lawyer (No. 2) 78 (1968).
13. Nixon, "United States Policy for the Seabed," 62 Dep't
State Bull. 737 (1970), 9 Int'l Legal Materials 807 (1970). See
also the statements of Elliot L. Richardson, Under Secretary of State,
and John R. Stevenson, Legal Adviser of the Department of State, in
Hearings on Issues Related to Establishment of Seaward Boundary of
United States Outer Continental Shelf before the Special Subcommittee
on Outer Continental Shelf of the Senate Committee on Interior and
Insular Affairs (91st Cong., 2d Seas., Part 2, 1970).
l~. U. N. Doc. No. A/AC.l38/25, 9 Int'l Legal Materials
l0~6 (1970). Fora detailed examination of the United States draft
PAGENO="0396"
390
seabed treaty, see Knight, `The Draft United Nations Convention on
the International Seabed Area: Background, Description and Some
Preliminary Thoughts," 8 San Diego Law Review 259 (1971). See also
Gerstle, "The United Nations and the Law of the Sea: Prospects for
the United States Seabeds Treaty," 8 San Diego Law Review 573 (1971);
Stone, "United States Draft Convention on the International Seabed
Area," 145Tul. L. Rev. 527 (1971); and Comment, "The Nixon Proposal
for an International Seabed Authority," 50 Or. L. Rev. 599 (1971).
15. Président Nixon stated:
I am today proposing that all nations adopt
as soon as possible a treaty under which they
would renounce all national claims over the
natural resources of the seabed beyond the
point where the high seas reach a depth of
200 meters . . . and would agree to regard
these resources as the common heritage of
mankind. Nixon, note 13 ~
The United States draft seabed treaty (note l~ supra) is, of course,
the specific international agreement which the United States pro-
posed for adoption at the Third Conference.
16. The President's statement of Nay 23, 1970 (note 13
suora) also provides that:
The treaty. should establish an interna-
tional regime for the exploitation of seabed
resources beyond this limit [the 200 meter
isobath] . . . [A]greed international machinery
would authorize and regulate exploration and
PAGENO="0397"
391
use of seabed resources beyond the continental
margins.
The draft seabed treaty (note i~i supra) contains elaborate provisions
for an "International Seabed Resources Authority" (Arts. 31-65) and
equally detailed articles on the system of resource disposition
(passim; Appendices A, `B, and C).
17. The President's statement of May 23,. 1970 (note 13
supra) iń6luded the following language:
The. regime should provide for the collection
of substantial mineral royalties to be used for
international community purposes, particularly
economic assistance to developing countries.'
- It should also establish general rules to pre-
vent unreasonable interference with other
uses of the ocean, to protect the ocean from
pollution, to assure the integrity of the
investment necessary for such exploitation,
arid, to provide for peaceful and compulsory
settlement of disputes.
The draft seabed treaty also contains provisions on all of these
points.
18, G.A. Res. 2750C (XXV) (1970).
19~ G.A. Res. 3029' (XXVII) (1972).
20. The Seabed Committee was established by U. N. General
Assembly Resolution 2~67A (XXIII) (t1968). It consisted originally
of 112 members, but was expanded to 86 in December, 1970 [G.A. Res.
2750C (XXV) (1970), oper. para. 5] and to 91 in December, 1971
PAGENO="0398"
392
[G.A. Res. 2881 (XXVI) (1971), oper. para 3].
21. Through G.A. Res. 3029 (XXVII) (1972) the General
Assembly requested the Seabed Committee:
[I]n the discharge of its mandate in
accordance with resolution 2750C (XXV), to
hold two further sessions in 1973, one of
five weeks in New York . . . and the other
of eight weeks at Geneva . . .. with a view
to completing its preparato~y work, and to
subnit a report with recommendations to the
General Assembly at its twenty-eight session
22. See, e.g., the letter of John 0. Laylin to the Sub-
committee on 0ceanog~aphy dated May 26, 1972, reprinted in Hearings
onli.R. l390~ at 195, 196 ["Laylin letter' hereinafter].
23. See the discussion of the flag nation principle in
Christy, note 7 ~ at 72~714; see also the letter of H. Gary
Knight to the Subcommittee on Oceanography dated May 29, 1972,
reprinted in Hearings on H.R. l39O~4 at 198 ["Knight letter" here-
inafter].
2k. The principle of the freedom of the high seas as
embodied in Article 2 of the Convention on the High Seas [done
April 29, 1958, 13 U.S.T. 2312 (1962), T.I.A.S. No. 5200, ~450
U.N.T.S. 82, i-nforce Sept. 30, 1962] is that "[t]hehigh seas being
open to all nations, no State may validly purport to subject any
part of them to its sovereignty." Absent any jurisdiction based on
territory, the only remaining basis for jurisdiction on the high
PAGENO="0399"
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seas is on a vessel registration basis, thus the relationship
between the concept of freedom of the high seas and the flag nation
prinoiple of jurisdiction.
25. Lee Metcalf, "Report on the Outer Continental Shelf,"
Congressional Record, March 10, 1971, at 5758, 5759.
26. In fact, the marine mining industry has been taking
both avenues, arguing against Administration policy through the
Hard Minerals Subcommittee of the Advisory Committee on the Law of
the Sea (u.s. Government Inter-Agency Law of the Sea Task Force).
As evidenced by the Government's recent testimony on H.R. 9 (note
31 most), that effort was unsuccessful.
27.. For pro and con arguments on this issue, see the
Laylin letter, note 22 suora, and the Knight letter, note 23 supra.
28. For a typical draft ~reaty proposal on the subject
see "Draft Articles on Exclusive Economic Zone Concept (Presented
by Kenya)," u: N. Doe. No. A/AC.l38/SC.II/L.lO (7 August 1972).
Almost all of the economic resourse zone proposals submitted to date
fail to intlude the five elements referl'ed to by President Nixon in
his Nay 23, 1970, statement (note 13 supra) which elements were re-
stated as essential elements of United States oceans polity on
August 10, 1972, by the.head of the Nation's delegation to the Seabed
Committee.
29. "Draft Articles on the Breadth of the Territorial Sea,
Straits, and Fisheries Submitted to Sub-Committee II by the United
States of America," U. N. Doc. No. A/AC.138/SC.II/L.'4 (1971). For
a more extensive analysis of the straits passage problem, see Knight,
"The 1971 United States Proposals on the Breadth of the Territorial
PAGENO="0400"
394
Sea and Passage Through International Straits, 51 Or. L. Rev.
759, 769-785 (1972).
30. U. P. Doc. No. A/AC.138/36 (28. May 1971); see also the
supplemental `Additional Notes on the Possible Economic Implications
of Mineral Production from the International Sea-Bed Area," U. N.
Dcc. NO. A/AC. 138/73 (12 May 1972).
31. G.A. Res. 27~9 (xxv) (1970).
32. It has been suggested that Resolution 27~9 was ultimately
adopted only to break an impasse with the understanding that there
was not a true consensus on the major issues involved. Thus, this
argument proceeds, the unanimity evidenced by the lO8-O-l~4 vote is
misleading.. This may or may not be the case -- it certainly would
be worthwhile to engage in a study of the circumstances surrounding
adoption of that resolution -- but in any event the plain language
of the document clearly imparts tI~e expectation that international
rather than national solutions to seabed mining problems are to be
favored, and it is essentially on that basis that I argue the
Incompatibility of the Act and Resolution 27149.
* 33. See Statement of Charles N. Brower, Acting Legal
Adviser, Department of State, and Acting Chairman, Inter-Agency Task
Force on the Law of the Sea, before the Subcommittee on Oceanography
of the House Committee on Merchant Marine and Fisheries (9~d Cong.,
1st Seas., March 1, 1973); and Supplemental Statement by Leigh S.
Ratiner, note 14 suora.
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395
DE PA RTM E NT OF STATE
~ Washi~gto~, b.c. 20520
JUL 26 1973
Senator Henry M. Jackson
Chairman, Committee on Interior
and Insular Affairs
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
Please refer to your letters of October 30, 1972 and
February 15, 1973, as well as the Department of Interior
replies to that correspondence, dated November 15, 1972
and March 7, 1973. These letters pertain to your request
for research assistance from the Department of Interior
on three studies regarding marine mineral resource develop-
ment. In the Department of Interior letter of March 7, we
informed you that the Interagency Task Force on the Law of
the Sea was preparing a response to the second study concerning
the continental margin as that study raised a number of broad
issues which were appropriate for consideration by the inter-
agency group. We also indicated that the second study would
be completed well before now. Subsequently, we made arrange-
ments with members of your staff for the Department of State
to respond to the second study. I apologize for the delay.
However, I trust that the completed study, which includes
the recently completed National Petroleum Council Report on
the Law of the Sea, will still be of value to you.
As you requested, the following analysis concentrates on
the mineral and energy aspects of the world's continental
margins. In complying with that request, we are, nevertheless,
compelled to point out that the Law of the Sea deliberations
involve many other important aspects in addition to issues
connected with continental margin mineral resources. Other
equally important national int~erests include achieving multi-
lateral agreement on a 12-mile territorial sea with unimpeded
transit through and over straits used for international
navigation, conservation and allocation of fisheries, a deep
seabed mining regime as well as rules governing preservation
of the marine environment and freedom of oceanographic
research. Within the context of those broad subject categories,
there are a large number of related topics and issues which
will be negotiated at the Conference. The task of the U.S.
Delegation will be to maximize what is in our national interest
23-317 0 - 73 - 20
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-2-
within each subject category. We are not prepared to sacrifice
any of the basic elements of the President's oceans policy.
In analyzing the questions raised in the second study, we have
tried to reflect our concern with the achievement of our
overall objectives while, at the same time, devoting particular
attention to the mineral and energy aspects upon which you
asked us to focus. Our responses have been tailored to the
order in which the questions were presented.
1. Who are the present and potential users of the world's
continental margin and overlying high seas areas?
a. Present users include:
1) Governments and private companies interested
in petroleum and natural gas exploration and production;
2) Governments and private companies interested in
hard mineral exploration and production as well as
dredging of sand, gravel and shell;
3) Governments, private companies and individuals
interested in conservation and allocation of fisheries;
4) Governments and private companies involved in
or dependent upon maritime transport;
5) Governments concerned with defense and security
interests which extend to the seabed of the continental
margin as well as to the high seas and airspace above;
6) Governments and private research institutions
concerned with marine scientific research;
7) Governments and private companies interested
in laying, maintaining or using submarine pipelines
and cables;
8) Governments (national, state and local), pri-
vate companies and individuals concerned with the use,
protection and preservation of the marine environment
(e.g., recreational uses, marine , public
health considerations and the like).
b. Potential users of the world's continental margin
and overlying high seas areas are difficult to enumerate
in that no one knows what technological advances
PAGENO="0403"
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3-
will be made in the future. We can predict, however,
that artificial islands and other offshore installations,
such as power plants, deep water parts, floating air-
ports and subsea habitats will come into being. In
addition, the continenta]J margin may be used for a
variety of scientific purposes, including offshore
scientific research platforms. Such activities as
mariculture and underwater recreation will doubtless
also increase.
2. What environmental, navigational, economic and financial,
regulatory and jurisdictional ~roblems attend their use of
the area?
a. Petroleum and natural gas exploration and production
(on the OCS)
With respect to environmental problems which attend
offshore oil and gas development, there are two basic
categories:
1) Geophysical exploration
There is no evidenc~ of any significant environmental
risk or problems connected with geophysical exploration
related to oil and gas development on the OCS. The
three basic types of surveys that are conducted with
respect to geophysical operations involve seismic, mag-
netic, and gravity surveys with seismic reflection surveys
accounting for approximately 95% of all marine geophysical
exploration. These surveys do not involve drilling, use
of explosives, sampling or other methods which result
in disturbance of the sea bottom.
Even though the process of creating sound waves by
exploding a charge of dynamite has become outdated and
is seldom used, the U.S. Geological Survey would not
authorize the use of such an explosive charge that would
have a detrimental effect on the environment. The
complete change-over from explosives to air guns,
vibroseia or "sleeve exploders" for use in seismic
reflection surveying has been accomplished to overcome
ecological problems associated with the dynamite shooting.
Tests have been conducted to determine the effect of
compressed air charges on oysters, water, the sea bottom,
chemical composition, water-mass stratification and
general hydrological characteristics. Generally, there
PAGENO="0404"
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-4-
has been no indication of any damage to the oysters,
water and water bottoms. Chemical analysis shows that
the air charges have little or no effect on the chemical
composition of the waters. However, stratification of
chemicals existing before the tests is found to be less
pronounced after the test. [see Attachment 1 (J-l . a)].
2) Drilling and production
The drilling for, and production of., hydrocarbons
will probably always pose some risk to the environment.
Oil spills may result from natural disasters, equipment
failure and human error. The use of more sophisticated
equipment and the reliance on "fail safe" devices will
help to reduce the probability of equipment failure azid
human error. Strict enforcement of operating regulations,
stipulations, and OCS orders, and closer policing by
regulatory bodies will also contribute toward reducing
the risk to the envthronment. These factors will not,
however, completely eliminate the risk.
Chronic waste discharges in water from offshore
production are found in the presence of a small amount
of oil in produced water. U.S. regulations currently
control this discharge to 50 parts per million. Work
is currently being conducted to effectively reduce the
permissible amount of oil discharged with produced water.
Accidental waste discharges from offshore operations
occur in the form of oil spills. Spillage may be sub-
stantial, or in the form of a minor or series of minor
spills.
Both short and long term effects can be expected
from a major spill. Short term effects in an estuarine
or shallow water zone may be obvious in terms of destruc-
tion to marine and wildlife. Long term effects of a
major spill or of a series of minor spills are more
subtle. The damage may be hidden in the destruction of
food sources or the loss of larvae resulting in the
reduction or elimination of a generation of organisms.
Other long-term damaging effects may include alteration
of the substrata, genetic effects, and other sublethal
effects.
Offshore oil and gas production does not contribute
significantly to air pollution or siltation.
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-5-
To some, the offshore structures of the oil and
gas industry do produce an adverse environmental effect
from an aesthetic point of view. These structures
detract from the natural appearance of beach areas from
which they are visible. This is, however, a short term
impact as structures are removed upon depletion of pro-
duction. [see Attachments 1 (d-l.b), 2 (J.7, J.8), 3 and
15 (pp. 27-28)]. These structures are permitted by Article
5 of the Convention on the Continental Shelf, subject to
certain safety requirements contained therein. For a
representative analysis of the environmental impact of
petroleum production in oCe continental margin area, see
Attachment 3.
Oil and gas production offshore has resulted in some con-
flicting land use and concern for navigation safety. These
conflicts are now at a minimum. Fishing, particularly by
shrimp and pelagic fish, has never been better in the Gulf.
Dome type structures are being placed over protruding valves
on underwater pipelines to prevent or minimize snagging of
trawl nets. These conflicts can be minimized by strict com-
pliance with regulations governing the location of structures
and pipelines and cleanup operations upon abandonment of
locations, can further reduce these conflicts.
Obviously both the environmental and navigational problems
create the potential for economic and financial problems, both
in terms of additional costs of prevention and in terms of
liability for damages occasioned by the occurrence of environ-
mental or navigational accidents. [see Attachment 2 (J.5)].
Petroleum and natural gas~ exploration and production on
the continental margin require rather large investments and
high operating costs [see Attachment 2 (H. l-.4), and 15 (pp.
17-23)]. Since the petroleum industry has been turning
increasingly to outside sources of capital* in recent years,
there has been an attendant emphasis on security of tenure.
To the extent that coastal States adopt economic and fiscal
policies towards natural resources development which are
viewed as justifiable exceptions to internationally accepted
*One source estimates that the petroleum industry in
future years will seek up to 40 percent of its capital out-
lays from external sources. (Richard C. Sparling and Norma
J. Anderson, with John G. Winger, Capital Investments of the
World Petroleum Industry, 1971, The Chase Manhattan Bank
(December 1972), pp. 24-25.).
PAGENO="0406"
400
-6-
norms for the treatment of foreign investment, there will
exist uncertainty as to the integrity of investment in of f-
shore areas under coastal state jurisdic±ion. This uncer-
tainty involving the potential for expropriation without just
compensation, as well as coastal state demands to renegotiate
the terms of contracts relating to resource development, should
be considered a critical economic problem for petroleum and
natural gas exploration and production.
In connection with all of the economic and financial
problems described above, offähore oil and gas operations
must contend with competitive sources of both land-based oil
and gas, as well as other sources of energy [see Attachment 4].
The competitive postion of these operations will necessarily
deteriorate, if the coats associated with their economic
problems increase, relative to the costs of production for
alternative sources.
Jurisdictional problems arise when borders between coastal
states (or other jurisdictional units, e.g., states in the
U.S.) on the continental margin are in dispute. Related to
the issue of who has authority to dispose of resources and to
regulate their disposition is the problem of the kinds or rules
and regulations made applicable by the jurisdiction having
that prescriptive authority. Attachment 5 to this study
provides a summary of U.S. regulation of oil and gas leasing
on the OCS [see also Attachments 2 (G.l-.4) and 6].
b. Hard mineral exploration and production (including
sand, gravel and shell dredging.
Although some placer deposits have been mined on the
continental shelves of other nations, the chief commercial
interest for offshore mining in the United States focuses
on surficial deposits of such materials as sand, gravel
and shell. The problems faced by hard mineral extraction
operations on the continental margin are in many ways
similar to those of offshore oil and gas.
One major difference lies in the source of environ-
mental impact, which comes primarily from dredging or
other gathering operations in the raising of surficial
deposits. Secondary environmental effects occur when
onshore refining operations introduce detrital materials
back into the marine environment. In preparation for
the application of new regulations to the U.S. OCS,
designed specifically for hard mineral extraction, the
PAGENO="0407"
401
-7-
Department of the Interior is currently preparing a draft
environmental impact statement on offshore dredging of
surficial deposits.
To the extent that offshore dredging utilizes vessels
for part or all of its operations, hard mineral mining
companies will experience navigational problems of a very
general nature (positioning at sea; safety; discharge of
waste products, etc.).
In the past, the hard mineral industry has claimed
that it faced regulatory problems on the submerged lands
of the coastal States and~on the U.S. OCS and the Department
of the Interior has recently proposed certain amendments
to the regulations under CSCLA [see Attachments 6 and 8].
c. Maritime transport
Environmental problems associated with maritime
transport result primarily from tanker operations and
port and processing facilities.
1) Tanker operations.
The environmental impact of tanker operations
can result from the following operations:
- Loading
- ~hnreside ballast treatment (at the leading
end)
- Tank cleaning operations
- Accidental discharges
- Of f loading
The danger from oil spills is much greater from tanker
accidents than from offshore production. Tanker
traffic in U.S. ports is already enormous. Accu-
rate figures on the influx of oil into the wor'd's
waters are not available, but the various estimates
that have been made agree that the contribution from
offshore operators is very small. The major contri-
butions are from marine vessels and automobile crank
case oil disposal, with lesser amounts from other
PAGENO="0408"
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-8-
sources. The 1970 Pollution Incident Reporting
System (PIRS) data indicate that approximately
0.0015% of the oil handled in the U.S. was spilled
during transfer operations and that an average of
0.0091 spills per operations occurred.1
In the restricted waters surrounding harbors
and ports, the 1970 experience indicates that about
0.00009 percent of the oil handled is accidently
discharged and that an average of 0.003 accidental
discharges per operation occur.
The worldwide tanker casualty analysis indicates
that 0.0192 percent of the oil transported is spilled,
exclusive of transfer operations. Additional data
on the incidence of vessel-source pollution is
included at Attachment 7.
The above oil pollution from tanker operations
can be viewed as both chronic and accidental.
Navigational problems include the positioning
of ships at sea (with the attendent problems of
complying with appropriate rules of the road, etc.,
depending on the particular location of the vessel)
as a means to avoid collis.kns which may produce
adverse environmental effects; and navigational
safety, which includes the development of mere
sophisticated equipment incident to avoiding colli-
sions with other vessels, with natural obstacles
to navigation, or with artificial islands or fixed
platforms designed for continental shelf resource
extraction or research. Economic and financial
problems revolve around changes in navigational
safety devices as well as increased environmental
protective measures with regard to the carriage of
oil and other hazardous substances. Economic and
financial problems also relate to the costs which
could be imposed as a result of changes in the
present jurisdiction and regulatory regimes. The
advent of supertankers creates additional problems
such as the funding of their construction, the
economics of commodity transfer in very large
crude carriers, the safety features in these new
tankers, and responsibility for spilled oil on
the high seas. (see Attachments 1 (5-ld), 9 and 14).
1Environmental Impact Statement for the Trans-Alaska Pipeline,
Vol. 4.
PAGENO="0409"
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-9-
2) Port and processing facilities.
The environmental impact resulting from port
facilities would result mainly from the potential
hazard from tanker accidents, such as grounding,
collision, and structural failure. Pipeline con-
struction from the terminals to refineries and
storage facilities causes short-term damage to
bottom resources through siltation. It also
causes damage to marshland areas through disruption
of normal water flow patterns and relationships
between fresh and saline water. The impact of
deepwater port facilities will depend on whether
monobuoys or artificial islands are utilized.
Damage to both bottom and marshlands can be mini-
mized by proper laying procedures.
Environmental risk from these operations would
be those attendant to, normal pipeline operation,
e.g., pipeline leaks and more importantly, breaks
from construction and anchor dragging. (The
problem of anchor dragging is minimized on the U.S.
OCS where pipelines must be buried if laid in
water depths of 200 feet or less.)
The risks can be minimized by clearly desig-
nating pipeline locations and by the use of
automatic shut-down equipment that would detect
any sudden drop in pr~essure on the line to first
shut off pumping equipment and then automatically
closing sectionalized valves to minimize the quantity
of oil released.
Environmental ri~sks are also attendant to
unloading operations in port, mostly as a result
of human error. This risk is included in the
discussion of tanker operations above.
Environmental risk and problems of processing
facilities include air pollution and waste water
discharge. We do not have precise data on the
scope of these problems.
d. Conservation and allocation of fisheries
Again, insofar as environmental and navigational
problems are concerned, this industry has the same
PAGENO="0410"
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-10~-
problems as most others operating in the marine environ-
ment, viz., discharges from vessels and safe navigation.
With regard to allocation, there are unique economic
and financial problems attendant on fishing operations
which are primarily due to the "common property" status
of the resource. Under existing national and interna-
tional laws title to fish vests only upon capture.
Without regulation, this "open access" characteristic
has tended in the past to lead to overcapitalization
and resultant dissipation of economic rent. There
have been conservation efforts particularly through
bilateral and multilateral arrangements, to ensure
maintenance of sustainable biological yield, and some
efforts to make the industry more economically efficient,
but serious problems still plague the industry as a
whole. As to regulatory and jurisdictional problems,
these are inextricably interwoven with the economic
and financial problems already noted. Principally, the
issues involve the limits of national jurisdiction over
fisheries and the regulatory regimes imposed on fishermen
operating within the confines of any such national area.
e. Defense and Security Interests
In common with all other types of ships, military
ship operations result in the accumulation of oily
water waste in bilges which must either be retained
aboard for collection ashore or discharged into the
marine environment. Military tanker operations involve,
albeit to a lesser degree than commercial tanker opera-
tions, potential danger of accidental discharge of oil
cargoes into the marine environment through maritime
casualties and at-sea refueling operations. The disposal
of oily ballast water and tank cleaning residue so as
to minimize impact on the marine environment is a
problem faced by military and commercial tankers alike.
Finally, military ships generate trash, garbage and
human waste, the disposal of which may impact on the
marine environment, although to the extent these
substances are bio-degradable they represent a problem
only in confined waters sucfl as harbors, i.e., in
marine areas not included in the scope of the question.
While military operations in the marine environment,
lb common with all other aviation and maritime transport
activities, involve responsibilities directed toward
the avoidance~ of collision, stranding, or other hazards
\
PAGENO="0411"
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-11~-
to life and property, (i.e., position determination,
compliance with the rules of the road, etc.), these
responsibilities are not commonly regarded in the
context of the ongoing international Law of the Sea
negotiations as problems associated with the use of
the marine environment by military forces.
In the context of the ongoing Law of the Sea
negotiations, the use of the marine environment by
military forces does not pose problems of an economic,
financial or domestic regulatory nature.
Under international law the United States iB not
obligated to recognize or give effect to thrritorial
sea claims in excess of three miles in breadth, nor
to claims to zones of special coastal state jurisdic-
tional competence (i.e., relating to fishing, customs,
fiscal and sanitary requirements) in excess of 12
miles in breadth. Not all states agree that their
jurisdictional competence is limited in the manner
described, however, and many have claimed territorial
seas in excess of three miles. To the extent that
these claims purport to restrict or prohibit the
unrestrained operation of military forces in areas pf
the marine environment beyond a three mile limit
there exists the potential for jurisdictional disputes
and international discord.
United States security objectives in the Law of
the Sea negotiations are~ premised on the following
determinations with respect to military operations
in the marine environment: (1) National security
requirements will permit an internationally agreed
expansion of territorial sea limits to no more than
12 miles, provided there is concurrently achieved a
broad multilateral agreement preserving the right of
unimpeded transit through and over international straits.
(2) Zones of special coastal state competence relating
to resource exploitation~ (which may well exceed 12
miles in breadth) must nbt include the competence to
regulate the operation o~ military forces and activities
within such zones, and sufficient international functions
and characteristics must be incorporated in the juris-
dictional makeup of such zones to preclude a later
assertion by coastal States of an evolving regulatory
competence over the operation of military forces
therein. (3) Finally, the United States must retain
PAGENO="0412"
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-12--
the jurisdictional competence, with respect to its
own military forces, to determine the appropriate
accommodation between the requirement to conduct
military operations in the marine environment and the
desire to minimizE the environmental impact of such
operations.
To the extent that the foregoing objectives are
not shared by or are disputed by other states, there
exist potential problems in achieving U.S. objectives.
The problems are associated, however, not so much with
the use of the marine environment by military forces,
as with attempts by other states to alter the present
interantional rules which allocate competence to regu-
late other uses of the marine environment. It has been
the U.S. view that these attempts by other states are
not motivated primarily by objections to military uses
of the marine environment, ~ se, and accordingly that
it will be possible to devise s~table provisions to
accommodate U.S. interests with the interests and con-
cerns of other states participating in the negotiation
process.
f. Scientific Research
Scientific research shares many of the problems
discussed previously in other sections of this study.
For instance, many vessel pollution problems are as
applicable to research vessels as to those of the ma±i-
time transport community, and drilling on the Continental
Shelf for the purpose of scientific inquiry poses a
threat to the marine environment much the same as drill-
ing conducted for commercial production of hydro-carbons.
Scientists also encounter some additional problems as a
result of the unique character of their activities.
These are mainly regulatory or jurisdictthonal in nature
and arise from the assertion by various coastal states
that scientific research is the basis for exploitation
of resources. These states feel that the activities of
the scientists pose an economic threat to them and that
they should have the competence to completely control
the conduct of research on the Continental Shelf and in
the water column above. Inconsistent and arbitrary
restrictions placed onthe conduct of scientific activities
result not only in increased financial coats, but in
substantial hinderances to the actual conduct of scien-
tific inquiry. This issue is one w~ich the United States
PAGENO="0413"
407
-13-
is attempting to resolve in the Law of the Sea negotiations.
g. Submarine Pipelines and Cables
The risk to the environment from the construction
of undersea pipelines is small, affecting the marine
life in the immediate vicinity, and is of short duration.
The main risk involved is that of an oil spill resulting
from a rupture of the line whi~e in operation. This
probability may be reduced by requiring adequate burial.
The magnitude of the spill may be reduced through the
use of pressure sensitive devides to shut off transport
when a rupture occurs. The impact on, and risk to,
the environment does increase greatly at those points
of landfall for the offshore lines.
There may also arise multiple use problems where
conflicts arise between, e.g., fishermen trawling the
bottom and the existence of cables or pipelines in the
area, or overlapping p~pe1ines. The environmental risk
from onshore pipelines is greatest in coastal marshes
and estuaries. In those areas where lines can be buried,
disruption of the local environment may be only temporary.
However, in many cases the lack of availbble back-fill
material may necessitate canal dredging operations.
These operations contribute to marsh destruction by
erosion, acceleration of fresh water drainage, fostering
salt water intrusion, and destruction of vegetalion.
Accidental discharge of oil through a rupture in the
line, though localized in nature, would have a severe
impact on the environment because of the difficulty of
removal. [see Attachment 1 (J-l.c)]
In the act of laying pipelines and cables, the
vessels involved may encounter all of the problems
previously identified in connection with maritime
transport. For an example of the regulations governing
submarine pipelines and cables on the U.S. OCS, see
Attachment 11.
h. Recreational Uses of the Coastal and Marine
Environment
The principal environmental problems inshore would
relate to the overburdening of existing facilities
coupled with the commercial development of recreational
facilities. The conflict would manifest itself in the
PAGENO="0414"
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-14-
value of the local economy vis-a-vis the quality of the
environment. Furthermore, the entire range of economic
and jurisdictional problems arises in connection with
coastal zone management programs in force or planned,
which are intended to reconcile the conflicting uses of
the coastal lands and adjacent waters.
Recreational uses may also be in conflict with
the use of the oceans for dumping of wastes and con-
struction of offshore facilities. In addition, ocean
habitats may present jurisdictional problems that
need to be considered.
3. What are the present mechanisms for the resolution
of su~h problems?
a. National Mechanisms
Users of the world's continental margin and the
overlying high seas areas may be subject to either of
two broad categories of national jurisdiction: nationality
or territorial. Examples of the first category include
duly registered vessels being subject to the applicable
laws of the country whose flag they fly and indi~idua1s
being subject to the appropriate laws of their state of
nationality. The second general jurisdictional category
applies to the extent that users are operating within
the limits of national jurisdiction. In this case,
the laws and regulations of the coastal State provide
the existing mechanism for resolving these problems.
To determine precisely what mechanisms are available
for the settlement of disputes would entail a detailed
analysis of the laws and regulations of every country
in the world. With respect to U.S. laws and regulations,
attachments 2 (A.l-A.5, E.2, F.l, F.2, J.3, J.4, J.6),
11 and 12 are relevant.
b. International Mechanisms
Users of the world's continental margins and overlying
high seas areas may undertake operations where they are
subject to international rules and regulations. This
is especially true of activities in seabed areas beyond
national jurisdiction or in high seas regions. In such
cases the basic mechanisms for conflict resolutions are
outlined in Article 33 of the Charter of the United Nations
which specifies "negotiation, inquiry, mediation, concili-
ation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other means of
their own choice". Whether national or international
PAGENO="0415"
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-15-
dispute settlement mechanisms are being considered,
present arrangements are inadequate for the users of the
world's continental margins and overlying high seas areas.
National mechanisms are seldom compulsory and, even if
used, are difficult to enforce.
4. What additional disputes settlement procedures may be
necessary?
The present mechanisms for resolving the environmental,
navigational, economic and financial, regulatory and juris-
dictional problems associated with the use of the continental
margins and overlying high seas areas have become increasingly
inadequate as existing uses have expanded and as new uses
have proliferated. The rise in~ the frequency and types of
uses has created strains on existing mechanisms and revea,led
that outmoded dispute settlement procedures must be replaced
or supplemented. These new or revised procedures should be
designed, in the words of President Nixon, to "save over two-
thirds of the earth's surface from national conflict and
rivalry".
In the current law of the sea negotiations, the United
States has stated that we can accept virtually complete
coastal State resource management jurisdiction over resources
in adjacent seabed areas if this jurisdiction is subject to
five international treaty limitations. The U.S. Representative
to the U.N. Seabed Committee outlined these elements in an
address delivered to the Committee on August 10, 1972:
"1. International treaty standards to prevent
unreasonable interference with other uses of the ocean.
A settlement based on combining~ coastal State resource
management jurisdiction with protection of non-resource uses
can only be effective if the different uses are accommodated.
This requires internationally agreed standards pursuant to
which the coastal State will ensure, subject to compulsory
dispute settlement, that there is no unreasonable interference
with navigation, overflight and~ other uses.
"2. International treaty standards to protect the
ocean from pollution. As a coastal State, we do not wish
to suffer pollution of the oceans from seabed activities
anywhere. We consider it basic that minimum internationally
agreed pollution standards apply even to areas in which the
coastal State enjoys resource jurisdiction.
PAGENO="0416"
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-16-
"3. International treaty standards to protect the
integrity of investment. When a coastal State permits
foreign nationals to make investments in areas under its
resource management jurisdiction, the integrity of such invest-
ments should be protected by the treaty. Security of tenure
and a stable investment climate should attract foreign invest-
ment and technology to areas managed by developing coastal
States. Without such protection in the treaty, investment
may well go elsewhere.
"4. Sharing of revenues for international community
purposes. We continue to believe that the equitable distri-
bution of benefits from the seabeds can best be assured if
treaty standards provide for sharing some of the revenues from
continental margin minerals with the international community,
particularly for the benefit of developing countries. Coastal
States in a particular region should not bear the entire
burden of assuring equitable treatment for the landlocked
and shelf-locked States in that region, nor should they
bear the entire burden for States with narrow shelves and
little petroleum potential off their coast. The problem is
international and the best solution would be international.
We repeat this offer as part of an overall settlement despite
our conclusion from previous exploitation patterns that a
significant protion of the total international revenues will
come from the continental margin off the United States in
early years. We are concerned about the opposition to this
idea implicit in the position of those advocating an exclusive
economic zone.
"5. Compulsory settlement of disputes. International
standards such as those I described are necessary to protect
certain non-coastal and international interests, and thus
render agreement possible. Accordingly, effective assurances
that the standards will be observed is a key element in
achieving agreement. Adequate assurance can only be provided
by an impartial procedure for the settlement of disputes.
The disputes, in the view of my delegation, must be settled
ultimately by the decision of a third party. For us then the
principle of compulsory dispute settlement is essential."
There is an obvious relationship between the above five
points and the problems identified in section 2 of this study.
International standards, such as those proposed by the United
States, would become an integral part of the "law" which any
dispute settlement machinery would apply to the continental
margin area (see Attachment 13).
PAGENO="0417"
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-17-
Problems related to pollution of the marine environment
cannot be effectively resolved solely by national action.
Whatever the causes of the marine pollution, the consequences
often extend beyond the jurisdiction of a single State.
Internationally agreed minimum treaty standards offer the
best means to ensure that States will cooperate in preserving
and protecting the marine environment. This course of action
should benefit all affected parties by imposing obligations
on those responsible for the pollution. As disagreements
are bound to arise over the natre and extent of this obligation,
a system of compulsory dispute settlement is clearly desirable
to ensure fair and impartial consideration by a disinterested
body of experts.
In a similar way, international treaty standards should
be applicable in the continental margin area to prevent
unreasonable interference with other uses of the ocean. There
is no necessary incompatibility between navigation, overflight
and other uses in the area above the continental margin and
the development of the resources associated with the margin.
However, it is necessary to maintain a proper balance between
the respective rights and duties of equally entitled resource
and non-resource users. This accommodation can best be
achieved by the establishment of international standards with
recourse,as appropriate, to compulsory dispute settlement.
The continental margin off the United States constitutes
approximately 8% of the world's continental margin area. It
is in our interest to have access to the resources of the
continental margins off other State's coasts, and we believe
that measures to protect the integrity of investments in
these areas will best accommodate that interest, particularly
in areas under coastal State resource management jurisdiction.
Such an approach promotes stability which investors favor;
at the same time, it attracts the capital and expertise
necessary for responsible development of continental margin
resources. It is a basic rule of all legal systems that
mutual rights and duties freely contracted should be respected.
If disagreements do occur, it is in the interest of the
parties concerned to have a right to seek relief through
arrangements deemed acceptable in advance of the occurence
of the dispute. The chances for arbitrary action by any
party are thereby reduced.
Disputes will naturally arise relating to the application
of these standards to continental margin uses, and the
establishment of a dispute settlement mechanism to which all
23-317 0 - 73 - 27
PAGENO="0418"
412
-18-
disputes can and must be referred is important to the overall
resQlution of conflict in the area. A Tribunal for dispute
settlement was envisioned in the draft "United Nations
Convention on the International Seabed Area" submitted by
the United States to the United Nations Seabed Committee
on August 3, 1970. That Tribunal would decide all disputes
and advise on all questions relating to the interpretation
and application of the Convention, and its jurisdiction
would be compulsory.
5. What common international objectives do the users share
with each other and with governments of the coastal States
having present or potential jurisdiction over such areas?
a. Private users, whether individuals or companies,
have a variety of mutual concerns connected with their
use of the world's continental margin and the overlying
high seas areas.
1) Peace and stability.
It is obviously in the common interest of all users
to avoid conflict and to promote order. The most efficient
use of the ocean's resources entails a clear understanding
of what various users may expect. These rights and
duties are governed by international and domestic law
which should provide the stability needed for orderly
use of the area.
2) Unimpeded flow of commercial navigation.
Private users have a great stake in the continued,
unimpeded use of the waters and airspace above the
continental margin for commercial navigation and aviation.
The nature and extent of this right varies with the
present or potential jurisdiction involved. In terri-
torial seas, merchant vessels have a recognized right
of innocent passage. In straits used for international
navigation and overflight which are or may be overlapped
by territorial waters, innocent passage is especially
inadequate for the doctrine may be abused in the event
that coastal States subjectively interpret what is
prejudicial to their "peace, good order or security."
Consequently, private individuals or companies share a
common desire to have a right of free and unimpeded
transit, particularly in straits used for international
navigation. In waters which might overlie any prospective
economic zone, archipelago or other region of coastal
state preferential right to resources, a right of unimpeded
PAGENO="0419"
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-19-
flow of commercial navigation and aviation is essential
for all private users. In this regard, it is necessary
to ensure that restrictions on such purposes are not
imposed illegally under the guise of the need to protect
another interest, e.g., combatting marine pollution or
managing resources.
3) Protection of the marine environment.
Private users influence the quality of the marine
environment, and, thus, their respective interests.
For example, fishermen can~ be seriously affected by
excessive pollutants caused by tanker accidents as can
be recreational users. A ôlose interrelationship exists
between respect for the protection and preservation of
the marine environment and its continued, productive
use.
4) Maximizing economic return.
Private users often share a mutual concern with
maximizing the economic return of their activities on
and above the world's continental margins. Each is eager
to avoid unnecessary costs. Uniform environmental
standards for vessel operation can help to reduce the
expenses inherent in varying regulations which might be
applicable in this world-wide area. Minimum standards
regarding environmental controls on resource development
could promote uniformity in this area as well. In this
connection the stability necessary to ensure integrity
of investment is promoted by private users knowing what
to expect and having recourse to compulsory dispute
mechanisms in the event of disagreement. Additionally,
such standards could preclude a competitive disadvantage
for U.S. firms subject to rnDre stringent requirements
than other nations might apply to their firms in the
absence of these standards.
b. Private users and coastal States
1) Peace and stability.
Private users and coastal States share the ob-
jectives of maintaining peace and stability on and above
the world's continental margins (see 5.a.l above).
Stability and peace are of great concern to coastal
States in that the continental margin areas ld~e off
their shores and disruptive events can directly affect
them. Compulsory dispute, settlement can benefit both
types of users.
PAGENO="0420"
414
-20-
2) Unimpeded flow of commerce.
Coastal States and private users each have a vital
interest in the use of the waters and airspace above
the continental margin for freedom of navigation and
overflight. Objectives of private users are identified
in 5.a.2 above. Many coastal States are heavily dependent
upon sea transport for the import and export of, inter
alia, minerals and petroleum essential to their economies,
and all states have an interest in the expanding
passenger and cargo air traffic.
3) Protection of the marine environment.
As noted in 5.a.3 above, there is an intimate
interrelationship between the rights and obligations
of coastal States and private users regarding the
preservation and protection of the marine environment
associated with the world's continental margin areas.
Coastal States have legitimate concerns with maintaining
the quality of the living resources near their shores,
their beaches and the water itself. There is a growing
awareness of the obligation of all States to preserve
and protect the marine environment. Private users
should share in the benefits and burdens of this effort.
4) Maximizing economic return.
To the extent that coastal States internalize some
of the benefits created through private uses, they share
an interest in maximizing return. However, coastal
States may, in many instances, be more interested in
rational development and conservation of resources than
in maximizing economic benefits.
c. Common international objectives of all coastal States
1) Protect the marine environment in areas adja-
cent to their coasts.
All coastal States should share an interest in
preserving the quality of the marine environment and
can be expected to seek measures for controlling
pollution from both resource exploitation and vessels,
as well as for ensuring navigational safety.
2) Develop the resources of the continental margins
and overlying waters.
PAGENO="0421"
415
-21-
Coastal states should share a common interest in
developing both living and non-living resources of the
continental margins and overlying waters near their shores
for a variety of reasons, principally for benefits to
their national economies and governmental revenues.
3) Participate in the uses of the continental
margins and overlying waters near other states.
All coastal States should wish to assure that they
and their nationals can benefit from the use of conti-
nental margins other than those close to their own
country. For example, states may wish to fish off other
coasts or invest in mineral exploitation in areas under
another state's lurisdiction. As pointed out abnve,
states also share a common~ interest in maintaining the
free flow of maritime commerce.
While all coastal States may share these basic objectives,
different governments may place higher priorities on some than
on others. A coastal State, particularly a developing one, may
attach a greater importance to the authority to control the
development of resources off its own coasts than to the
opportunity to participate in developing resources off
neighboring coasts. Such a state may believe that the
resources off its own coasts have a greater potential value
than those of its neighbors', or it may lack the economic and
technological capacity to extend its activities beyond its
own jurisdiction. In some cases, the government may simply
be unwilling to relinquish any of its prospective "sovereign
rights" of control over resources adjacent to its coast in
exchange for the opportunity to: gain rights in other conti-
nental margin areas.
Other coastal States, with less resource potential and
perhaps more developed economies, could conceivably assign
high priority to using continental margins near others.
In view of the range of priorities which other coastal
States may assign to these common objectives, the United States
occupies an almost unique position, shared only by a few other
developed states. Not only are we a major overseas investor
and heavily dependent on impored resources produced from
other states' continental shelf areas, but one of the world's
richest continental margins also lies of f our coasts. In
addition, we attach great importance to ensuring the free
flow of international navigation. Hence, the United States'
PAGENO="0422"
416
-22-
basic national interests require that in the law of the sea
negotiations we promote as equally important each of these
commonly shared coastal State objectives.
Sincerely yours,
\J~<~ J~L~
Charles N. Brower
Acting Legal Adviser
PAGENO="0423"
417
LIST OF ATTACHMENTS
Attachment 1 - U.S. Coast Guard Response to the Senate
Committee on Interior and Insular Affairs
to Selected Questions and Policy Issues
Related to Oversight Hearings on the
Administration of OCSLA, April 1972.
Attachment 2 - U.S. Department of the Interior Response to
the Senate Committee on Interior and Insular
Affairs to Selected Questions and Policy Issues
Related to Oversight Hearings on the
Administration of OCSLA, March 23, 1972.
* Attachment 3 - U.S. Department~ of the Interior, excerpted
material from Final Environmental Statement
for Proposed 1973 Outer Continental Shelf East
Texas General Oil and Gas Lease Sale and other
department materials.
Attachment 4 - U.S. Department of the Interior Memorandum on
Offshore Oil and Gas Statistics, March 2, 1973.
Attachment 5 - Summary of Procedures in Oil and Gas Leasing
and Regulation on the U.S. Outer Continental
Shelf, V.E. McKelvey, Director, U.S. Geological
Survey.
Attachment 6 - U.S. Geological Survey Notice of Proposed
Regulations on Geological and Geophysical
Explorations in the Outer Continental Shelf.
Attachment 7 - Hearings before the Committee on Commerce,
United States Senate, Ninety Second Congress,
First Session on S.2074 to Promote the Safety
and Protect the Environmental Quality of Ports,
Waterfront Areas, and the Navigable Waters of
the United States, September 22, 23 and 24,
1971.
Attachment 8 - U.S. Geological Survey, Notice of Proposed
Regulations on Mining Operations in the Outer
Continental Shelf, May 9, 1972.
Attachment 9 - Working Paper on Competence to Establish
Standards for the Control of Vessel Source
Pollution, submitted by the United States
to the UN Seabed Committee, April 2, 1973.
PAGENO="0424"
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-2-
Attachment 10 - Excerpts from the President's Energy
Message, April 18, 1973.
Attachment 11 - U.S. Geological Survey, Approval Procedure
for Oil and Gas Pipelines, OCS Order No. 9,
October 30, 1970.
Attachment 12 - Statement by Robert M. White, Administrator,
NOAP~, U.S. Department of Commerce, before
the Senate Committee on Interior and Insular
Affairs, March 24, 1972.
Attachment 13 - Statement by the Honorable John R. Stevenson,
U.S. Representative to the UN Seabed Committee,
August 10, 1972.
* Attachment 14 - Draft Environmental Impact Statement, Maritime
Administration Construction Program, Prepared
by the Maritime Administration, U.S. Department
of Commerce.
Attachment 15 - `Law of the Sea - Particular Aspects Affecting
the Petroleum Industry", Prepared by the
National Petroleum Council, May 1973.
* This material has been retained in the Committee files.
PAGENO="0425"
419
Office of the Legislative Counsel
Department of the Interior
Moon 7259, Interior Building
Washington, P. C. 20240
ATTN: Mr. Jack Allen
Dear Mr. Allen:
The enclosed material contains the Coast Guard response to the Senato
Interior and Insular Affairs Committee on selected questions and policy
issues related to overview hearings on the administration o~ the Outer
Continental Shelf Lands Act of 1953. Your comments on this enclosed
material are requested.
Due to the extremely tight time frame, we are requesting that you provide
your comments directly to Captain A. B. How at 426-2430 no later than
2:00 pin on April 20, 1972. Please contact Mr. Nathaniel Scurry of the
Office of Management and Budget at 395-3935 only if there are unresoI aOie
issues of a policy nature. Your cooperation in this matter will be
deeply appreciated. If we do not hear from you, we will assume
concurrence.
Sincerely,
A. B. HOW
Captain, 13. S. Coast Guard
End
PAGENO="0426"
420
J. EI1VIROU~ENTAL PROTECTION
1. What are the nature and magnitude of environmental risks and prob-
lems related to OCS Oil and gas development in: (a) Geophysical exploration?
(b) Drilling and production? (c) Undersea pipeline construction and operation
(ci) Tanker operation? (e) Port and processing facilities? (f) Onshore
pipeline construction and operation? To what extent is each of the above
a matter of: (a) Chronic waste discharges in water? (b) Episodic (accidental
waste discharges in water? (f) Navigation safety?
Environmental risks related to OCS oil and gas development include a
number of areas in which the Coast Guard has considerable interest, expertise,.
and responsibility. In some cases, the Coast Guard involvement is that of
the Federal agency with primary responsibility; in others it is more peri-
pheral and related to long standing statutory respojisibility concerning
safety of l.ife and property at sea. This involvement includes law enforce-
ment activity combined with recorirnendation and moral suasion in many areas
of safety where Federal regulation does not presently exist.
An effective forum for development of Coast Guard regulations and for
exchange of views regarding safety and pollution avoidance has long existed
through the mechanism of the National Offshore Operation Industry Advisory
- Corrrnittee to the Marine Safety. Council (formerly the Offshore Operations
Advisory Council). Typical of the contributions of that Panel is the
"Manual of Safe Pra~ctices in Off~hore Operations" (November 1967), a volume
of recorrmehded safe practices. The extensive minutes of the Committee's
meetings reflect the broad scope, of its concern with safety and environmental
conideration. -
J-1 `What are the nature and magnitude of environmental risks and problems
related to OCS oil and gas development in:
(a) Geophysical exploration?"
Geophysical exploration in 00$ areas generally entails the environmental
risks normally associated with t~e cp~raticn of water craft as well as those
associated with the exploration process itself. Although not directly involved
with the latter, the Coast Guard has been involved throu~h co~olairts hi
PAGENO="0427"
421
J.l. cont'd.:
fishermen over the effects that the explosive charges formerly used quite wid
in exploration have onfish. The vessels themselves are addressed by marine
safety regulations with application and scope dependent upon the vessel size,
propulsion, and operation. Comprehensive regulations (46 CFR 188 to 198)
issued during 1968 address the inspect~ion and certification of oceanographic
vessels but apply to very few of the v~essels used in oij exploration.
Hence, these vessels generally are exempt from comprehensive regulations
despite their carriage of considerable quantities of highly flammable
compressed gas for exploration usage. Since such cargo constitutes a
threat to port safety, the loading is accordingly monitored by Coast
Guard personnel. .
PAGENO="0428"
422
- ~- - --~--
J-l "Sthat are the nature and ma~itude of cnvironmeflt~ risks and
problems related to OCS oil and gas development in:
(b) Drilling and production?".
ResponsibilitY for conservation of resources and avoidance of
product loss during drilling and productiOfl~ some of which is conducted
on unmanned platforms, is tasked to the Department of Interior. The
Coast Guard has responsibility for all discharge removal as well as
for prevention of pollution from the vessels which supply the drill
and production rigs. As previously described, extensive surveillance
by Coast Guard air and water craft is conducted to locate `spills so
as to assure prompt remedial action.
Discharge prevention measures include the requirements for
markings and devices to avoid vessel/rig collision and for shipping
fairways. Considerable effort is expended in assuring that warning
devices are operable. The need to assure that the rigs are located
so that they do not force the huge vessels now transiting the OCS area
to make difficult maneuvers to navigate cannot be 0veremphasized.
In accordance with the 1958 Convention on the Continental Shelf,
Title 33 of the Code of Federal Regulations was amended to provide for
the establishment of Safety Zones around offshore structures engaged
in oil explOit3ti01~~ The regulations became effective on 7 January 1972.
PAGENO="0429"
423
J-l `~What are the nature and magnitude of environmental risks and
problems related to OCS oil an~1 gas development in:
(c) Undersea pipeline construction and operation?"
The transportation and connection of pipeline components is -
usually via vessels, all of which are subject to some degree of Coast
Guard ccntrol. Tho environmental risks associated with laying the
pipelines are subject to review by other agencies. However, this
review does not consider hazards to life such as the radiation exposure
to which the workers are subjected during non-destructive testing of
pipeline joints.
The location and protection given to pipelines directl~r relates
to their likelihood of being damaged by storms, by fishing harvest
activities, or by the operations of ships. For the most part pipelines
are untrenched and accordingly are vulnerable to these hazards,
constituting a significant pollution potential. The size of this
potential is related, to the effectiveness of devices installed to
isolate pipeline sections in the event of a rupture. Undersea pipelines,
even when buried beneath the seabed, may be damaged by vessels, anchors
or spuds. Since pipelines are rarely direct obstructions to navigation,
regulations do not presently require marking, charting the location, or
centralizing location of pipe in areas of the fairways,
Although Coast Guard authority does not speak to the locations of
pipelines, our involvement in pollution surveillance and removal, in
marine safety and in pollution prevention prompts our concern over less
than optimum pipeline location and protection. The needs of the mariner
definitely should be considered in approving pipeline location. This
PAGENO="0430"
424
ould require the location of many pipelines to be marked, particularly
where they cross fairways and channels. In addition, these pipelines.
should be constructed in a manner that makes them more resistant to
damage by external hazards.
An interesting development concerns the usage of manned submersible
vessels for examination of pipelines, capped wells, and other underwater
installations. The Coast Guard is the lead agency in developing safety
* regulations for these vessels and is also charged with providing them
with assistance in times of emergency.
PAGENO="0431"
425
J1 "What are the nature and magnitude of environmental risks ant'
problems related to OCS oil and gas development in:
(d) Tanker operations?" 4
Any sizeable incre~se in tank vessel traffic in the areas proximate
to our shores would result in increased risk of environmental degradation
unless offset by a continued, vigorous marine safety enforcement program,
possibly supplemented by additional authority to control marine traffic.
Short distance transport from theOCS site to the mainland using tank
vessels rather than pipeline would presumably, for economic ~easons,
utilize barges or self propelled vessels smaller `than those used to import
oil from overseas. Potential oil discharges from such operations would
result from factors such as tank cleaning or ballasting, structural failure,
bilge pumping, equipment failure, tank overfill, and collisions or ground-
ings. * *
Presently tolerated tank cleaning and ballasting techniques conducted
outside the line Of demarcation set by the present international convention,
including the "load on top" procedure, result in sizeable polluting dis-
charges which are at least somewhat distributed throughout the oceans.
Greatly increased tanker traffic in our coastal waters could not include
utilization of these procedures without a corresponding increase in environ-
mental damage. Tank cleaning andballasting in some degree would still
be necessary but would have to be adapted to meet our already stated goal
of "complete elimination of intentional oil discharge into the ocean."
Fortunately, considerable work already has been done in this area under the
auspices of the Intergovernmental Maritime Consultative Organization (IMCO).
INCO member's efforts include the initiation of special studies to develop
practical international standards to be incorporated in a 1973 IMCO Marine
\ / /
PAGENO="0432"
426
Pollution Convention. The United States has taken the lead in conducting
two of these studies germane to the problems of tank cleaning and
ballasting--"segregated ballast tankers and `dual purpose collapsible
tanks." The first study has been completed by a joint effort of the
Coast Guard, the Maritime Administration, and the American Institute of
Merchant Shipping. This study will allow assessment of the cost effective-
ness of tanker designs incorporating various degrees of segregated
ballast in mitigating pollution from intentional and accidental causes.
The second study area is being performed by the Massachusetts Institute
of Technology, under a Coast Guard contract. It seeks to determine
the feasibility of various configurations of flexible membranes in controll-
ing pollution. Study in this area of pollution avoidance is promising
but still in the early exploratory stage.
It is premature to speculate concerning the optimum design of tank
vessels to be used in OCS oil transport. However, it seems desirable to have
some form of clean ballast system in order to avoid dealing with the alternat~
of providing for the disposal of dirty ballast without environmental damage.
Through regulations published pursuant to the Tanker Act and other
statutes, the . Coast Guard exercises comprehensive control over the
structural adequacy, manning and operation of U.S. tank ships and tank
barges. Periodic inspection of hull and equipment, investigation of cas-
ualties, a personnel licensing and certification program,and remedial
procedures to remove the documents of individuals found guilty of
misconduct, negligence, or incompetence in performing their duties combine
to provide an effective marine ~ oriented program. Needed author-
ity specifically addressing pollution prevention was delegated to the
PAGENO="0433"
427
Coast Guard pursuant to the Water Quality Improvement Act of 1970 which
amended the FWPCA. Comprehensive regulations
based on this Actwere published asa Notice of Proposed Rule Making on
24 December 1971, and considered ata Public Ilearingheld on 14 February
1972. These regulations address tank cleaning and ballasting; bilges,
leaks and fueling spills; vessel casualties; and oil transfer operations. They
supplement those already being enforcedand address all of the several
potential sources of oil pollution mentioned above except that of colli-
sion or groundings.
Avoidance of collisions or groundings is~partially addressed by
existing licensing qualifications as well as by requirements for vessel
structural adequacy and the comprehensive aids to navigation system which
the Coast Guard ha~ established to assist the mariners
Utilization of relatively small vessels to transport oil from
OCS sources would reduce the number of supertankers arriving from overseas
and could minimize the consequences of any single water transport caused
pollution incident. Greatly increased vessel traffic, particularly of
large difficult-to-maneuver vessels such as supertankers, would raise
collision probability on the O~ unless preventive traffic control
measures were instigated.
Such traffic control measures on the OCS might well be similar
to those contained in the Coast Guard's proposed "Ports and Waterways Safety
Act." Just as some ports may require a complex system of traffic lanes,
check points, communication networks, surveillance devices, and central control
stations while others may require a comparatively simple traffic separation
System coupled with effective communications or no system at all, so too would
be the case with OCS marine traffic concentration points. In a related
development, the establishment of shipping fairways has been an important
23-317 0 - 73 - 28
PAGENO="0434"
428
step in promoting navigational safety in the vicinity of oil and gas
operation in the Gulf of Mexico. It may well bo that traffic separation
schemes similar to those adopted by member nations of IMCO, and which
are already being operated under Coast Guard supervision in the approaches
to certain U. S. ports, also will provide a partial answer. The need
for a proper mix of these several approaches to assuring navigational
safety requires the participation of the Coast Guard in planning for
any future large scale O~S oil development.
As indicated previously, the Coast Guard r~gulates tank vessels
of U. S. registry. However, if vessels under foreign registry engage
in the transport of oil from OCS sites, the question then arises as to
the control that canbe exercised over these vessels. It appears that
OCS sites would, pursuant to the OCSLk, be deemed points within the
United States for the purpose of the coastwise trading laws. Under
such an interpretation vessels engaged in the transportation of oil or
passengers between the sites and the coast of the U. S. would be required
to be documented by the U. S., a procedure which would contribute to
effective control of their operations.
J-l "What are the nature and magnitude of environmental risks and
problems related to OCS oil and gas development in:
(e) Port and processing facilities?" - . -
Loss of product in shoreside transfer terminals has occurred despite
the previously described regulations controlling vessel construction and
operations, and despite other Coast Guard enforced regulations in Title 33
of the Code of Federal Regulations which address shoreside terminal transfer.
PAGENO="0435"
429
Under the relatively recent authority of the FWPCA amendments
of 1970, the Coast Guard has published proposed regulations and
has held a public hearing on February 14, 1972. These proposed regula-
tions cover a host of equippage, communications, spill avoidance and
recovery.devices, and terminal operations which should significantly
reduce the likelihood of product loss at marine transfer terminals.
After consideration of the public cOmments received, the Coast Guard
will publish final regulations in the hear future.
PAGENO="0436"
430
A. THE PRESENT LEGAL REGIME FOR THE OUTER CONTINENTAL
SHELF
Question A. I.
What Federal statutes directly contribute to or constitute the existing
legal regime for the management of the resources of the OCS (including
relevant Executive Orders or other executive branch policy statements
and relevant court decisions)?
Answer:
The rights of the United States in the Outer Continental Shelf are set
in the Geneva Convention on the Continental Shelf (1958). The basic
authority for the management of resources of the Outer Continental
Shelf is the Outer Continental Shelf Lands Act (43 U. S. C. §~ 13 31-1343).
In conjunction with this statute, the Submerged Lands Act (43 U. S. C.
§~ 1301-1315) must be read to determine the extent of the Federal area
of the Continental Shelf. The National Environmental Policy Act of
1969 (42 U. S. C. §~ 4321-4347) also affects the Departments manage-
ment of OCS lands, and section 102(1) requires the Department to
administer and interpret the OCS Act `to the fullest extent possible
in accordance with the policies and provisions of NEPA.
The discharge of oil into the waters of the contiguous zone, which
includes portions of the OCS, is governed by the Water Quality Improve-
ment Act of 1970 (33 U. S. C. § 1161-1164).
31 U. S. C. ~ 483a requires the receipt of fair market value for the
grant of rights under the OCS Act.
The Presidents Clean Energy Message of June 4, 1971, is the most
recent Executive branch statement affecting the management of the
OCS. Prior to that is the President's U. S. Oceans' Policy Statement
of May 23, 1970.
Question A. 2.
What, in summary form, is the major goal or purpose of each of these
statutes, orders or policy statements (e. g. resource development,
oceanographic research, fish and wildlife protection, pollution control,
etc.)?
Answer:
The basic purpose of the OCS Act is to assure that the natural resources
of the seabed and the subsoil of the Outer Continental Shelf will be sub-
ject to Federal jurisdiction, control, and power of disposition. Pursuant
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to this general purpose, the OCS Act provides for the disposition of the
mineral resources of the OCS. Particular emphasis is laid on the dis-
position of oil, gas, and sulphur, but provision is made for the dispo-
sition of other minerals.
The purpose of NEPA is to provide a national policy which will encour-
age productive and enjoyable harmony between man and his environ-
ment. Pursuant to NEPA the Department has prepared environmental
impact statements in connection with major Federal actions on the OCS
significantly affecting the quality of the human environment.
The purpose of the Water Quality Improvement Act is to prevent the
discharge of oil upon or into the navigable waters of the United States,
onto adjoining shorelines, or upon or into the waters of the contiguous
zone.
The purpose of 31 U. S. C. ~ 483a is to obtain for the United States a fair
return for rights granted.
The President's Clean Energy Message directed the Department to
accelerate the offering of tracts for OCS lease and to prepare a five-
year schedule for lease sales.
Question A. 3.
Which entities within which Federal agencies have been assigned OCS
responsibilities and what formal and informal coordinating relation-
ships (inter-agency committees, memoranda of understanding, etc.)
exist among these agencies regarding OCS administration? (Provide
organization chart showing agencies and their links.)
Answer:
The Secretary of the Interior is authorized by section 5 of the OCS
Act (43 U. S. C. § 1334) to administer the provisions of that statute
relating to leasing of the OCS. Within the Department of the Interior
the Bureau of Land Management administers the OCS leasing provi-
sions (43 CFR Part 3300) and the Geological Survey administers the
OCS operating regulations (30 CFR Part 250). The Geological Survey
is also responsible for geological and geophysical exploration under
section 11 of the OCS Act (43 U. S. C. § 1340). The Secretary of the
Army has certain responsibilities, exercised through the Corps of
Engineers, for preventing certain obstructions to navigation under
section 4(f) (43 U. S. C. § 13 33(f)). The Coast Guard has other respon-
sibilities with respect to navigation under section 4(e). Section 5(e)
authorizes the Secretary of the Interior to grant rights of way for
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minerals on the OCS, but provides that determinations as to propor-
tionate amounts to be transported by such pipelines shall be made, with
respect to natural gas, by the Federal Power Commission and, with
respect to oil, by the Interstate Commerce Commission.
Under section ll(c)(2) of the Federal Water Pollution Control Act,
33 U. S. C. 0 1161, the National Oil and Hazardous Materials Pollution
Contingency Plan has been established to provide coordinated and inte-
grated responses by departments and agencies of the Federal Govern-
ment to pollution spills affecting the contiguous zone and. the continental
shelf bottom.
Question A. 4.
What changes in the existing legal regime or Federal organizational
structure for management of the OCS have been proposed or recom-
mended by Federal advisory committees or by the Administration and
what, in summary form, is the purpose of these recommended changes?
Answer:
The Department has made no recommendations for amendment of the
OCS Act, nor has there been any major organizational change recom-
mended. The Public Land Law Review Commission Recommendations
No. 72 through 77, inclusively, apply to the OCS. Three were of par-
ticular importance in respect to this question. Recommendation No. 72
called for consolidation of OCS functions within the Government to the
greatest possible degree. The Commission also recommended coordi-
nation of activities with the States. Recommendation No. 75 called for
amendment of the OCS Act to give the Secretary authority for more
flexibility in the methods of holding competitive sales.
Question A. 5. -
What additional changes in the existing legal regime or Federal organi-
zational structure merit Congressional consideration and review?
Answer:
The Department has no changes in the OCS Act. The Administration
has proposed establishment of a Department of Natural Resources as a
Federal organizational structure.
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information on areas proposed for sale. Based on this review a more
refined estimate of the potential supply of hydrocarbons is made and
the size of the sale (in acreage) is~ modified as necessary.
The general rule is to select (a) drainage tracts, and then a mixture of
(b) tracts in moderately developed areas, and (c) rank wildcat tracts.
Drainage tracts have the highest priority.
The environmental implication of all tracts that are selected for leasing
consideration is preliminarily reviewed and analyzed at this stage. En-
vironmental impact statements are then prepared and public hearings
held. As a result, some tracts may be deleted for environmental reasons.
Current law precludes the offering of individual lease tracts in excess of
5, 760 acres. We usually offer full size blocks and attempt to cover all
of a given geological structure (or~ prospect) with the number of blocks
necessary to offer the entire structure at one time.
Question E. 2:
What is th~ procedure currently used by the Federal agencies for taking -
into account recreational, fish and wildlife, and other environmental
values in choosing tracts to be leased?
Answer:
In the tract selection process, the environmental impact of all tracts that
are selected for leasing consideration is reviewed and analyzed in a gen-
eral way. After tracts are selected, detailed environmental analysis of
tracts are made, environmental statements are prepared and public hear-
ings held.
In view of the recent Louisiana offshore sale court decision, we will
interpret the requirements of NEPA as set out by the Court of A~pea1s
decision, Natural Resources Defense Council, Inc., et al, V. Rogers
C. B. Morton, January 13, 1972.
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F. LEASE ADMINISTRATION
Question F. 1.
What, in general, are the current procedures for lease supervision and
inspection? Are there concrete indications of improved surveillance
and compliance over past experience? To what extent has the risk of
accidents such as those which occurred near Santa Barbara and off-
shore Louisiana been reduced, and to what factors are reductions (if any)
due?
Answer:
The regulations under which Outer Continental Shelf Oil and Gas
Operations are conducted were revised effective August 22, 1969, to
provide more stringent requirements in regard to safety of operations
and to minimize the danger of oil pollution from those operations.
The regulations are implemented through OCS Orders which set forth
requirements on specific items of equipment and operating procedures.
These Orders are issued by the Regional Oil and Gas Supervisor after
approval by the Chief, Conservation Division. Continual review of
the Order~s is conducted to insure they are kept current. Latest
revisions of the Gulf Coast Orders were made effective August 28, 1969,
and October 30, 1970, and the Pacific Coast Orders effective June 1,
1971. Discussions are currently being held preparatory to further
up-dating.
In the Santa Barbara Channel daily inspections of operations are made
on Platforms "Hiilhouse' on lease OCS-P 0240 and Platforms A' and
"B" on lease OCS-P 0241; these include the drilling and workover rigs,
proper testing of safety and BOPE equipment, personnel BOPE drills,
and proper procedures being used and recorded in tour sheets. The
inspection also includes pollution, housekeeping and the use of accepted
oil field practices.
Once a week, platforms `Hogan" and "Houchin" on lease OCS-P 0166
are inspected in addition to the daily inspection on leases OCS-P 0240
and OCS-P 0241. In brief, the inspection of the production facilities
includes visual inspection of their controls; the different process
vessels; the gas compressors and the associated controls, the different
manifolds; headers and associated control equipment, antipollution
systems, and sewage, waste water and solid waste disposal systems.
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In addition to the daily and weekly inspections cited above, semiannual
inspections are performed on each platform and onshore facility.
Detailed inspection and physical testing of each control on every item
of equipment is performed, insuring its conformance to OCS regulations.
In the Gulf of Mexico, due to the ma~gnitude of operations, platforms
are inspected less frequently than they are in the Santa Barbara
Channel. Although the items inspected on a drilling or producing
operation are essentially the same as in the Santa Barbara Channel it
has been found necessary to modify the inspection program.
To insure consistent interpretation and enforcement of the OCS Orders
and regulations in the Gulf Coast Region, the substance of these
requirements has been expressed as a list of Potential Incidents of
Non-Compliance (PINC). This list of PINC's reflect the existence of
potentially hazardous conditions if specified equipment is missing or
inoperable or if specified procedures are not followed. Survey
inspectors conduct inspections daily of drilling and producing operations
throughout the Gulf of Mexico using a standard check list (inspection
form) to determine if Incidents of Non-Compliance (INC's) exist. The
standard check list assures that checks on the existence and operability
of required safety and pollution control equipment along with field and
office records which reflect the oil company's operational procedure
are made without overlooking critical items. Enforcement action is
taken if an INC is found. The enforcement action (warning or a shut-in
of operations) for an INC relates to the degree a particular item
contributes to unsafe operations, hazardous conditions, environmental
damage or resource waste. Periodically inspections are conducted on
sites chosen on a random basis during a one week interval. Tabulation
of the results of these inspections provides an indication of the degree
of compliance with OCS Orders and Regulations throughout the Gulf
* of Mexico OCS.
The inspection program initiated in the Santa Barbara Channel during
1969 and the modified Gulf of Mexico inspection program started during
1971 have produced significant results.
Incidents of noncompliance with regulations and orders have been greatly
reduced.
The number of small oil leaks and spills has been cut in half.
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Several major -accidents, particularly fires, have been avoided as the
result of the installation of new safety systems.
Research has been stimulated, resulting in improved safety devices
and systems.
Although it has not been possible to date to quantitatively define the
risk involved in drilling and producing operations, operations are
being conducted more safely now than in the past. This is evidenced
by the above. Improvement in operations has resulted from the
following actions that have been taken since the Santa Barbara blowout:
We have strengthened our OCS Regulations to require additional safety
features on platforms and pipelines; testing of safety devices prior to,
and during, production use; more careful control of drilling and
casing operations; prior approval of plans and equipment for explor-
ation and development drilling; suspension of any operation threatening
life, property, or damage to other resources or the environment;
reporting of all leakage and spills; and control and total removal of
pollutants at the lessee's expense.
We have increased our inspection capability by more than doubling our
staff, and by utilizing helicopter support and a radio communication
system in the Gulf Coast area.
We have standardized our inspection procedures; provided a statistical
basis for inspection strategy; and increased the number of unannounced
inspections and, thereby, our visibility, which in itself serves as a
deterrent to violations of orders.
We have participated in the development of inter-agency contingency
plans for oil spill cleanup.
Question F. 2.
What measures (including in-house and consultant studies under way
or recently completed) have the Federal agencies taken or planned
regarding improvement of OCS administration?
Answer
A study on quality control and hazard analysis has been conducted for
the Geological Survey by a team of NASA experts from the Marshall
Space Flight Center, the Mississippi Test Facility, and the Michoud
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Assembly Facility. The report of this study was released on December 8,
1971, and we are now in the process of evaluating its several recom-
mendations.
An operational safety study is being undertaken by the Marine Board
of the National Academy of Engineering. A final report of this study
is expected this fall. In the meantime, the Board is keeping us in-
formed of its tentative findings.
An internal systems study of our lease management operations, in
particular our regulatory controls,: inspection criteria, and enforce-
ment policies is now nearly complete. We have already incorporated
some of the recommendations into our inspection program.
In addition to such studies and consultations, we are requesting the
Secretary's permission to establish a continuing Advisory Committee
on Safety of OCS Petroleum Operations. This committee will advise
the Director of the Survey in matters related to safety and pollution
control in operations on Federal lands of the Outer Continental Shelf,
and will serve as an independent audit of the effectiveness of our
operations and procedures.
We are also in the process of contracting for a hazards analysis of
selected existing systems on drilling and production platforms. This is
being done in order for us to be in :a.bette~~ position to determine the
desirable parameters of such an analysis as a requirement of lessees
prior to commencing operations.
The acceleration of the OCS oil and gas leasing schedule, concurrently
with our intensified effort to adequately protect the marine environment,
require an increase in BLM staff in Washington and New Orleans and a
greatly accelerated research program. The BLM FY 1972 budget
supplement provided additional staff in Washington principally to pre-
pare environmental impact statements for OCS oil and gas lease sales.
It also provided two additional positions in New Orleans to begin an
inventory of all existing pipelines on the OCS and coastal marshes and
to develop specifications for the construction and laying of these pipelines.
The FY 1973 budget which is now before the Congress provides for an
addition of three environmental analysis teams composed of five men
each, to be initially headquartered in New Orleans, and several contract
research studies. These study teams will gather data and conduct
analysis that will provide inputs and back up for the preparation of
environmental impact statements required for lease sales.
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G. JURISDICTIONAL ISSUES
QuestionG. 1.
What jurisdictional issues remain unresolved regarding
a) The seaward limits of the OCS?
b) The seaward limits of state jurisdiction?
c) The authority of the Secretary of the Interior
i) to suspend and extend leases?
ii) to promulgate "conservation' regulations?
iii) to permit or authorize the use of the OCS for
purposes other than mineral development?
What is the effect of the lack of resolution of any such issues on the
effectiveness with which the OCS is administered; to what extent are
they or can they be responsible or delays in lease sales?
Answer:
a) Article I of the Convention on the Continental Shelf, 15 U . S. T.
(Part I) 1471, defines the term `continental shelf" as "the seabed and
subsoil of the submarine areas adjacent to the coast but outside the area
of the territorial sea, to a depth of 200 meters or, beyond that limit,
to where the depth of the superjacent waters admits of the exploitation
of the natural resources of the said areas." This is accepted by the
Department as the definition of the seaward limit of the OCS. However,
discussions concerning international marine matters are now being held
at the United Nations preparatory to the 1973 Law of the Sea Conlerence,
the results of which may affect the seaward limits of the OCS. United
States representatives are involved in the discussions.
b) The limits of State jurisdiction have not been determined
exactly in any area. The seaward limits of the Atlantic coast States'
jurisdiction are involved in litigation now as well as those of Florida,
Louisiana, California and Alaska. No further comment on this
litigation would be appropriate at this time,
c)(i) The Secretary's authority to suspend lease operations in
the interest of conservation and to extend leases whei~ operations have
been so suspended is involved in the present case of Gulf Oil Corp. v
Morton, Civil No. 71.1669 FW, U.S. District Court, Central District
of California. No further comment would be appropriate at this time -
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(ii) The-author..ty q~f the Secretary to promulgate conservation
regulations has not been challenged, but the question of what is covered
by the term `conservation' is an additional issue in the GuLf case.
(iii) The use of the OCS for nonmineral purposes is not involved
in any pending legal disputes.
The litigation involving the seaward limits of the coastal
states inevitably affects the holding of lease sales in tho~e areas.
The other issues mentioned in this question have not delayed the
holding of lease sales.
Question G.2.
Provide a summary of pending proposals for offshore terminals,
supertanker facilities, offshore nuclear facilities, and other develop-
mental projects which in whole or in part would be located on the OCS.
What, if any, Federal permits and/or licenses are required under
present law for these projects? Is~additional Federal legislation
dealing specifically with proposals of this nature required or desirable?
Answer:
a. The Geological Survey has received a plan of development for the
Santa Ynez unit area in the Santa Barbara Channel. The plan contem-
plates OCS loading terminals should planned shore facilities not be
available.
b. The BLM has had a recent inquiry regarding the erection of a ship
terminal on the OCS near the mouth of the Mississippi River offshore
Louisiana. -
c. There are no pending proposals before AEC or the Office'of Oil
and Gas at this time.
d. There have been several concepts proposed for such facilities and
our general comments on this question are:
1. There are over 50 foreign ports and terminals being built
worldwide, capable of handling giant dry bulk ships and supertankers
of over 200,000 DWT, however, none of these are proposed for U.S.
waters. In June 1971, Louisiana officials denied a proposal for an
offshore port in the Gulf of Mexico. There are approximately 700 deep
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draft ships of over 100,000 DWT in operation in the world that cannot
enter U.S. porfs. Only Long Beach and Puget Sound ports can be
entered by 100,000 dwt vesses.l There has been a Sea Grant Program
report `Work Plan for a Study of the Feasibility of an Offshore
Terminal in the Texas Gulf Region' published in June 1971 that could
apply to any U.S. coastal state.
2. The military has a wide variety of projects utilizing the ocean
floor which range from communication and navigational aids to early
warning systems. Although there have been proposals for undersea
Long-Range Missile Systems, these programs involve complicated
problems of technology as well as disarmament considerations at the
17 Nation Geneva talks.
3. Congress has directed the Corps of Engineers to make a study
of commercial navigation channel and harbor requirements along the
Gulf Coast, including, but not limited to offshore facilities. This
study requirement is contained in a resolution adopted May 2 , 1971,
by the Public Works Committee of the United States Senate and a
number of more localized resolutions approved by the Public Works
Committee of the Senate and the House of Representatives.
Question G. 3.
What formal or informal procedures are used by the Federal agencies
to ascertain and consider the interests and views of individual coastal
States regarding Federal leasing and management decisions for
OCS lands?
Answer:
The Department desires to maintain a close working relationship with
the involved staets in regard to Federal leasing and management,
decisions for the natural resources of the OCS lands. In conducting
resource inventories and planning studies prior to leasing decisions,
we will continue to work closely with appropriate state agencies. In
the preparation of environmental impact statements for proposed OCS
lease sales, we consult with the involved states about their problems
and concerns in the process of preparing the draft environmental
statement. In the formal review procedures for environmental state-
ments, states are invited to review both the draft and final statements.
States also participate in the public hearings which are held for the
draft environmental statements. All state comments are considered
in the decision-making process concerning OCS leasing and management.
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Question G.4.
What should the role of State government be with respect to Federal
decision-making concerning
a) Exploration
b) Leasing
c) Environmental regulations on OCS lands bordering the
States' jurisdiction?
Answer:
The role of State governments in the decision-making process of
OCS leasing offshore their boundaries is advisory. The State's
views are carefully considered priOr to leasing decisions, particularly
insofar as environmental matters are concerned.
In OCS areas in which no previous leasing or development has taken
place, it is especially important that the States be consulted. The
Secretary of the Interior has personally met with Governors of
Atlantic coastal States to discuss this issue in detail. Close coordin-
ation with the States will continue until a final decision to lease or
not to lease is made.
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H. ECONOMIC COSTS
Question H. 1.
What has been the average cost (exclusive of bonuses, royalties, and
other "rents") of
a) Exploration,
b) Development, and
c) Production
of petroleum (oil, natural gas and natural gas liquids) from the Outer
Continental Shelf?
Answer
Average cost of OCS oil production (exclusive of bonuses, royalties
and other rents)
Gulf of Mexico
($/B)
Exploration
Geophysical, geological, etc. . 15
Development
Well drilling, etc. . 77
Production
Operating expenses . 59
Total $1.51
Question H. 2.
How have these average economic costs compared to the average
economic cost of
a) Petroleum from domestic onshore areas, and
b) The landed prices of imports?
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Answer -
a) Average economic costs for onshore production (exclusive
of bonuses, royalties and other rents)
$/B
Exploration . 17
Development . 77
Production .64
Total $1.58
b) Landed prices of foreign crude vary considerably by country
of origin, the producing company, by mode of contract for transportation
and by volume, quality and gravity of the crude oil in question.
As a guide, however, to landed prices of selected foreign crude oils
on the U. S. East Coast, the following Table is a best estimate for the
present time and under present conditions. The f. o. b. prices are
based on the latest available reported prices with increases due to
OPEC agreement to dollar revaluation added on. The tanker freight
rates are based on AFRA (average freight rate assessment) rates for
the second quarter (used by OPEC in their calculation of temporary
freight premiums) set at W 75. 4. The crudes range in gravity from
340 to 4O~ and sulphur content varies widely so that no true cost com-
parison can be made. It is also important to note that tanker rates
have softened considerably over the past 12 months with concomitant
easing of AFRA rates from W 94. 4 this time last year to the W 75.4
cited above.
Question H. 3.
What are the anticipated economic costs of petroleum produced from
future OCS leases and how will these costs compare with:
a) The anticipated costs of alternative sources of hydrocarbons
from onshore areas (including new energy sources such as
liquid or gaseous products of coal and oil shale), and
b) With the landed prices of imports?
23-317 0 - 73 - 29
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Answer -
The anticipated economic costs of petroleum produced from
future OCS leases (cx bonuses, etc)
$/B
Exploration . 15
Development . 87
Production . 59
Total $1.61
a) The anticipated costs of alternative sources of hyd:rocarbons
from onshore areas:
1. Stimulation of additional gas production
2. Increased onshore exploration,, leasing and production
3. Alternative fuels and synthetic
a. Oil Shale
b. Tar Sands
c. Coal Gasification
d. Coal Liquefaction
a. 1.) Stimulation of Additional Gas Production
Unregulated intrastate buyers have been able to secure practically all
new supplies of gas, but at prices generally higher than the price of
interstate gas, suggesting that broader price increases would be like-
ly were a free market allowed to exist for interstate gas as well. The
extent of additional production which could be stimulated, and the costs
of such production, are difficult to determine in the absence of firm
data on the price elasticity of gas supply.
An example from recent experience may illustrate the sorts of in-
creases required. The example is the Ohio intrastate market, chosen
because it is close to market areas, although not a large producer of
gas. Between 1969 and 1971, Ohio intrastate wellhead prices increased
from 24~ to 38~ per MCF, or more than 59 percent. During the same
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period there was a 73 percent increase in well completions. Since
rates of return of gas transmission companies are regulated, city-gate
prices would presumably rise as an increment of well-head price,
rather than in proportion to it. Thus the $. 14/mcf increase in well-
head price ($. 24 to $. 38Imcf) would be added to an average city gate
prices of about $. 40/mcf. There are, however, significant undis-
covered resources of natural gas in the United States.
Nuclear Stimulation: It is estimated that 300 trillion cubicfeet of
natural gas in the Rocky Mountains, not now recoverable economically,
could be made recoverable by nuclear stimulation technology. Economic
analysis indicate that this gas could be recovered at welihead prices
of 30'~ to 60~ per MCF, and delivered to markets at 55ç~ to 85~ per MCF.
*a. 2.) Increased Onshore Exploration, Leasing, and Production
Additional oil production could be obtained from onshore resources in
the lower 48 States by a variety of methods. Subsidies or other econ-
omic incentives could add to onshore domestic productive capability,
but there have been few studies of the cost or effectiveness of such
programs. Alternatively, certain additional Federal oil resources
onshore could be leased. Any new and significant onshore production
to be added would be from sources not now considered economic or
available for lease. Increased rate of onshore production from known
fields would hasten reserve depletion without discovery of new fields.
Economic Incentives: Additional production from onshore sources other
than the Naval Petroleum Reserves and the North Slope would likely
be from existing provinces where significant additional production is
not now deemed economic. To stimulate such additional production
would require an explicit subsidy for onshore production, or a general
rise in prices. Either measure- - subsidy or price rise- -would impose
additional costs on the consumer and the economy. Incentives are
usually interpreted to mean price rises or favorable tax treatment, but
are rarely quantitative. There is a frequently quoted consensus of
independent operators that crude oil prices would have to rise $. 50 to
$1. 00 per barrel to induce a substantial rise in exploratory activity.
a. 3.) Accelerated Production of Alternative Fuels & Synthetics
Oil Shale. There is no commercial production of shale oil in the United
States at this time. Government and private research have developed
mining and retorting oil shale technology to a point where shale may be
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considered a practical future energy source. However, since develop-
ment is now only in the pilot plant stage, oil from shale probably will
not be available in significant quantities before 1980. Most research
groups have estimated a price i~n the range of $5. 00-$5. 50 per barrel
with present technology.!'
Tar Sands. There are substantial reserves of tar sands in Canada,
and technology for commercial-scale exploitation is very nearly at
hand. The more attractive tar sand deposits are in Canada and most
of the supply from this source will originate there. U. S. development
of tar sands will have to await improved technology or incr~ased price.
Coal Gasification. While no coal to pipeline-gas process has yet reached
commercial production in the United States, several companies are
studying commercial application of a variety of conversion processes,
some of which have been known for a number of years. The Department
of the Interior is investigating various processes for producing pipe-
line quality gas from coal. The Office of Coal Research has erected
two coal gasification pilot plants and has funded a third. Research by
the Bureau of Mines has culminated in the development of a fourth
process ("Synthane") for which a pilot plant is being designed; a con-
struction contract could be let in the autumn of 1972. Most processes
predict a price range between $. 80 to $1. 00 per MCF.
Coal Liquefaction. In the Department ~f the Interior, the Bureau of
Mines and the Office of Coal Research (OCR) are conducting research
on the conversion of coal to a general petroleum substitute. OCR has
two pilot plants in existence and is shortly to begin construction of a
third--each using a different process. Other processes are being
investigated on a smaller scale.
Question H.4.
To the extent that OCS production is an alternative to imports, what
is the expected net impact per unit of petroleum production upon the
U. S. balance of payment? (The balanc~ of payments impact of imports
includes net foreign investment and foreign earnings of U. S. petroleum
companies, and producer country imports from the U. S. financed by
these petroleum revenues.)
1/ At current crude oil prices, a 100, 000 b/d operation, as estimated
by the Bureau of Mines, could yield a 12 percent rate of return.
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Answer
Assume all incremental increases in imports must come from the
Middle East. Increased imports to 1975 are in the range of 4 MB/D
and by 1980 in the range of 7 MB! D, according to most estimates.
Middle East
(Millions of Dollars)
1975 Net one time capital outflow - 304
Annual proximate outflows -3, 825
Oil @ $1. 97 !B -2, 803
Freight@.70 /B -1,022
Annual purchases of U. S. Goods + 432
Third Country return flow +. 768
-2, 929
-1,029
-7, 690
-5, 902
-1, 788
+ 756
+1, 344
-6,619
Balance of payments impact based on Oil Import Task Force methodology.
1980
Net one time outflow
Annual proximate outflows
Oil @ $2.31 !B
Freight @ $. 70 ,IB
Annual purchase of U. S. Goods
Third Country
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448
Question J. 3:
What, in summary, are:
a) Treaty
b) Federal statutory
c) Regulatory and lease-contract
provisions governing liability of OCS leases for damages and cleanup
costs arising from oil and gasoperations conducted pursuant to OCS
leases?
Answer:
Although the OCS Act contains no specific provision applicable to a lessee's
liability for damages and cleanup costs arising from oil and gas operations
under an OCS lease, by regulation (30 CFR 250. 43 (b)) a lessee is abso-
lutely responsible for the control and removal of a pollutant arising from
drilling or production operations which damages or threatens to damage
aquatic life, wildlife, or public or private property. 30 CFR 250. 43 (c)
provides that the lessee's liability to third parties, other than for cleanup,
"shall be governed by applicable law."
Question J. 4:
What follow-up action was taken by Interior, the Environmental Protection
Agency, the Coast Guard and other Federal agencies after each OCS mishap
and what interagency agreements and plans, related to coordinated Federal
handling of any future OCS mishaps, have been made as a result cf these
experiences?
Answer:
The Department of the Interior, after consulting with other agencies revised
its OCS leasing and operating regulations, 30 CFR Part 250 and 43 CFR Part
3300, as well as the Pacific Region OCS Orders, after the Santa Barbara
Channel spill to provide more stringent controls on operations and better
safeguarding of the environment. Following the Chevron Main Pass 41 fire,
Gulf Coast OCS Orders Nos. 8 and 9 were revised and strengthened. In
addition more personnel were added in order to inspect operations more
frequently, and six full time helicopters were contracted to provide more
effective transportation for these personnel as well as for increased poi-
lution surveillance. Each OCS mishap is investigated in order to determine
the cause, if possible, and to determine if further improvement is needed in
the area of safety and anti-pollution. The Environmental Protection Agency
PAGENO="0455"
449
has conducted various studies on the possible environmental impact of
some of the major mishaps. The Coast Guard holds formal investigations
on OCS mishaps where its area of responsibility is involved.
Interior, Coast Guard, and EPA are three of the primary agencies in-
volved in the National Oil and Hazardous Substances Pollution Contingency
Plan issued in 1970. It was revised in 1971 as a result of the experiences
gained from various major spills, including those on the OCS. Some of the
regional contingency plans in effect cover the OCS areas, with the Coast
Guard responsible for on-scene coordination in the event of a major spill.
Further, the Department of Transportation and the Department of the
Interior have entered into a memorandum of understanding specifically
defining their respective responsibilities and authority in oil spill response
measures involving OCS operations.
PAGENO="0456"
450
Questic-~ J.~:
What quantitative information is available about the total costs of past
mishaps on the OCS, including oil and gas lost, private and government
cleanup costs, loss of fish and wildlife, damage of tourism, reduced
property values, and administrative costs?
Answer:
Mead and Sorenson in their paper titled `The Economic Cost of the Santa
Barbara Oil Spill: have the most definitive information on the total costs
of that OCS mishap. They estimated the various costs and losses for that
spill as follows:
`SOil and gas lost $ 130, 000
Private (Union, et al) cleanup 10, 487, 000
and control costs
Loss of fish and wildlife 32,400
Damage to commercial fishing 804, 250
industry
Damage to tourism Negligible
Property value loss 1,197,000
Administrative costs* 639, 00(Y
Recreational value lost 3,150, 000
TOTAL-- $ 16,439,850
The Main Pass 41 fire was estimated to have cost Chevron about $10
million for drilling relief wells, estinguishing the fire, and containment
and cleanup equipment. An estimated additional $5 million was necessary
for restoration of damaged facilities, loss of oil and gas, and returning
the wells to production. There were no private or governmental cleanup
costs, no indicated loss of fish or wildlife, damage to tourism, or reduced
property values. Several suits by oystermen, shrimpers and fishermen
alleging possible damage have been dismissed or otherwise unsuccessful
to date. As a result of a Grand Jury investigation, Chevron was fined $1
million Tor failure to comply with the storm choke requirements. Estimates
were not made of administrative costs for the governmental agencies
involved.
Shell's losses in the Bay Marchand fire have been estimated in excess of
$30 million including loss of oil and gas production, drilling relief wells,
containment and cleanup costs, and restoration of damaged facilities. There
were no private or governmental cleanup costs, no indicated loss of fish or
wildlife, damage to tourism or reduced property values.
The recent Amoco fire off the Louisiana coast was estimated to cost in
excess of $15 million under conditions similar to th.e Shell fire.
PAGENO="0457"
451
Question J.6:
What contingency plans and cooperative arrangements have been effected
by industry regarding accidents in offshore oil and gas operations? How
would these affect response time, total cost, and environmental impact?
Are further measures desirable or required?
Answer:
More than 70 contingency organizations or cooperative arrangements
presently exist in the United States principally for the purpose of combating
waterborne oil pollution. Two of these, Clean Seas, Inc., in the Santa
Barbara Channel and the Offshore Operators Committee in the Gulf of
Mexico deal primarily with contingencies involving OCS oil and gas oper-
ations. In addition, negotiations are now being finalized between the off-
shore operators in the Gulf of Mexico and a private service organization
to provide an even more efficient response to oil spills in that area.
The response time to oil spills will be much faster, the total costs lowered
and the environmental impact reduced by these arrangements. The only
further measures desirable or required are continued improvement in
containment, collection and cleanup devices and more reliable response~
procedures as indicated by additional experience in this area.
PAGENO="0458"
452
Question 3. 7:
What additional geological, biological, eigineering or other information
is necessary with regard to improving the environmental safety aspects
of offshore oil and gas operations? Is there research that ought to be
completed before any further offshore leasing? Are there specific in-
stances or areas in which leasing should be postponed pending completion
of further studies? What time, effort and costs would be involved in this
research?
Answer:
The Geological Survey is currently contracting for shallow high-resolution
seismic data which will be used to delineate near surface structural con-
figuration in the Gulf of Mexico. This will assist in the determirR tion of
any subsurface h~a~z~rds which should be considered in the design of casing
programs and the setting of production platforms. As areas are identified
/~iTére additional engineering studies would be beneficial in advancing the
safety aspects of ocl and gas operations they are being undertaken. The
Survey iŕ-~~ering into a~contract for hazards analysis which will be used
to establish criteria for industry requirements. Future planning in this
area will also be guided by the recommendations from the quality control
and hazards analysis study conducted for the Geological Survey by the
National Aeronautics and Space Administration; operational safety study
being undertaken by the Marine Board of the National Academy of Engineer-
ing; and the year-long internal systems study of the lease management
program.
We do not believe that any further offshore leasin g should be deferred
pending additional research, nor are there specific instances or areas in
which leasing should be postponed pending completion of further studies.
An informal canvassing of the oil industry last year showed its confidence
in present technology to conduct drilling and producing operations safely
in all ar ~s considered for leasing.
Additional research is needed on both the short-term and long-term effects
of oil pollution on the marine environment in estuaries and in deep water.
Such research should include the effects of chronic low level oil pollution
as well as large accidental spills. Research is also needed on technique
of pipeline construction and location so that adverse effects on march land
can be minimized.
PAGENO="0459"
453
We believe tirat it is important to initiate base-line studies in OCS areas
where oil and gas productionhas not been initiated. Such studies would
include the existing level of hydrocarbon content in the water, sediments
and in the tissue of marine organisms. * The effects of future developments
could be more accurately analyzed if such base-line data were available.
Although the above studies are necessary, exi sting evidence does not indi-
cate that development in any areas should be delayed until such studies are
completed. Planning studies prior to decisions to lease will attempt to
identify such areas.
As with any other pollutant, the total volumes are of utmost concern. Oil
spillage from OCS operations, while significant, does not approach the con-
tribution from tankers. It is difficult, therefore, to evaluate the separate
effects of OCS spillage.
Stringent enforcement of tanker discharge regulations and OCS operations
is the critical factor with regard to improvement of environmental safety
aspects. In conjunction with this enforceynent, port w.ste discharge facil-
ities for tankers should be expanded and the ultimate recycling or disposal
of waste tanker oil should be resolved.
stion J,8:
What is the state of scientific knowledge on the effect of oil spills on fish
and wildlife and the marine environment? What is the level of Federal funding
for research and development in this area? Are there research opportunities
which are not being pursued for lack of funding?
we
Additional research is needed on both the short-term and long-term effects
of oil spills on the marine environment for both estuary and `deep water
areas. Research on long-term effects is particularly sparse. As noted in
J. 7,above, baseline studies of existing hydro-carl~on levels are recommen-
ded in areas where no leasing has been undertaken.
The most complete and up-to-date summary of scientific knowledge of oil
spill effects on fish and wildlife and the marine environment is that presented
in the TAPS environmental impact statement. The general conclusion is that
oil can cause damage to marine ecological systems. The degree and extent of
the damage would depend upon the volume of oil spilled or discharged and its
persistence and dispersion in the environment.
PAGENO="0460"
- 454
After considerable debate and controversy the emerging philosophy
concerning oil pollution appears to be keyed along much broader research
aspects than before. The occasional spectacular spill followed by a crash
research program concerned with live/dead ratios and other immediately
visible effects of oil pollution, is being overtaken by more deliberate re-
search concerned with chronic pollution levels, the persistence and ultimate
fate of the oil, and its effect on biota, including the food chain culminating
in man.
Present funding in this area is limited and most of it is budgeted tothe
Environmental Protection Agency. The petroleum industrl also is con-
tributing.
We consider that the research opportunities are underfunded. There is
need for a research program to: 1) gather base line biological data for all
our coastal areas; and 2) to conduct detailed research on the effects of oil
in both chronic (low-level) and acute(high-level) exposure on various elements
of the biota. Current and past research in these areas is an insignificant
part of what it should be in view of the need to expand production and trans-
portation of petroleum products in the marine environment.
PAGENO="0461"
455
United States Dep~rtrnent of the Interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
March 2, 1973
Memorandum
To: Mr. Paul Barbian, Foreign Economic and
* Commercial Reporting Division, Department of State
From: Director for Ocean Resources,
Department of the Interior
Subject: Response to Request for Information and Reference
* to Congressman Fraser's Letter to the Secretary
of State
In response to your request~ for information to assist in
preparing the Secretary of State's reply to Congressman
Fraser~s letter of January 29, I have collected the follow-
ing statistics, with the help of the Office of Oil and Gas,
in reference to item 2 in the Congressman's letter:
2.a. The most recent figures on the annual dollar value of
a) U.S. onshore crude oil production, and b) U.S.
offshore production of crude oil.
Items for 1971 * Onshore 1/ Offshore 2/ OCS 3/
Total Crude Prqc~uction,
1,000 Bbls. 2.1 2,839,160 196,205 418,549
Total Value of Production,
$1,000 5/ $9,516,751 $694,566 $1,481,681
Average V~lue, $/bbl. $3.35 $3.54 $3.54
17 Onshor~Ii~cludes all upland production from all sources.
2/ Offshore is state-owned production from submerged land out
to beginning of OCS boundary.
3/ OCS is the Federally-owned Outer Continental Shelf beginning
at State's jurisdictional boundary limit and extending
seaward.
4/ Crude production includes condensate produced with the
crude oil.
5/ Value for offshore oil is estimated at sane rate as OCS
value.
PAGENO="0462"
456
2.b. A comparison of the price of crude oil produced off
the U.S. coasts and that of cheaper imported oils.
Estimating the sale price of foreign crude oil is
extremely difficult. There are some guidelines, however,
that are useful in estimating representative prices that may
be expected. Based on tax paid, costs now plus current margins
for profit have been used. To these figures, estimates for the
additional charges resulting from participation agreements and
an estimated dollar devaluation of about 10% are added. The
following table depicts the estimates for foreign cr~udes no
later than April 1, 1973, probably sooner.
Coip~parison of Comparable Domestic Offshore Crude Prices
with Foreign Crudes Landed at U.S. Ports
Source and Gravity of Crude Landed Price 1/ at Destination
Libyan 400 $4.l2/bbl. N.Y. Harbor
Gulf OCS 40° $4.18-$4.40/bbl. N.Y. Harbor
Libyan 40° $4.36/bbl. Baton Rouge, La.
Gulf OCS 40 $3.85-$4.07/bbl. Baton Rouge, La.
Nigerian 34° $4.Ol/bbl. N.Y. Harbor
Gulf OCS 34° $4.08-$4.30/bbl. N.Y. Harbor
Nigerian 34° . $4.20/bbl. Baton Rouge, La.
Gulf OCS 34~ $3.73-$3.95/bbl. Baton Rouge, La.
Indonesian 35° ~ $4.37/bbI. Los Angeles
California OCS 35 $3.65-$3.70/bbl. Los Angeles
1/ Transportation charges for foreign oils are estimated at
Worldscale 110 for medium range tankers. Duty is added at
10-1/2 cents per bbl. Variance of domestic landed prices
is dependent on distance of offshore platforms to port
terminals. Domestic tanker rates to New York harbor are
based on ATRS rate of flat scale. .
These estimates are based on large contracts with chartered
tankers. Spot sales and spot tanker charges will probably be
considerably higher than those shown above.
PAGENO="0463"
457
2.c. Estimate of the potential value of deep sea oil production
when it becomes technologically feasible.
Obviously, there are problems with projecting the future
value of petroleum exploitation from the deep seabed. With
respect to the volume of that exploitation, the Director of the
U.S. Geological Survey, Dr. Vincent McKelvey, in a statement
before the UN Seabeds Committee in August 1971 estimated the
following:
"It is difficult to pre~lict how much of this production
may cone from beyond depths of 200 meters. In an earlier
report, I speculated that it might be on the order of
500-1,000 million barrels by 1980, but the Secretary General
indicated in his report that 500 million barrels a year by
1980 could be considered a high figure. A greater
production than one thousand million barrels or so a year
from beyond 200 meters is unlikely because ample supplies
of liquid fuels should be available from other lower cost
sources. Moreover, it takes considerable time to achieve
major production in a new province. For example, it has
`taken about 25 years to achieve an annual production of a
thousand million barrels from the Gulf of Mexico. Never-
theless, the prospect for discovery of giant fields,
containing on the order of 500 to 1,000 million barrels
or more and from which petroleum can be produced at costs
low enough to offset the higher cost of installations in
deep water, are certain to attract exploration and to lead
to productioa that may be expected to increase gradually
over the years.
"Whatever the amount that, comes from beyond the 200
meter depth during the next decade or two, it is certain
to represent only a minor proportion of projected world
production. In fact, it will not even satisfy the increment
of new demand. With the average annual growth rate of
about 7 percent anticipated for the next decade, the
increment of new demand in 1980 would be about 2.3
thousand million barrels--more than four times the 500
million barrels considered by the Secretary General to be
the maximum probable production from the seabed beyond
the 200 meter depth by 1980. Although the rate of growth
for petroleum production is expected to diminish after
1980, the Secretary General's projection indicates that
new demand in 1990 would be more than 3,000 million
barrels."
PAGENO="0464"
458
-4-
2.c.
There is no valid way we can predict what the future price
per barrel of oil exploited beyond the 200 meter depth will
be. We can only estimate what it may cost to find that oil.
The price of oil depends on the total availability of oil for
sale. Cheaply produced oil will keep the price down ~nd the
search for more costly oil is discouraged. The price of oil
from wherever will be geared to the competition it has to meet.
Oil quality is not related to geography or topography.. Of f-
shore oil is going to be more costly to find, as it is now,
when compared to onshore drilling. The recently completed NPC
report U.S. Energy Outlook goes into detail on these varying
costs. It.is sufficient to say that in the period 1968-1970
wells shallower than 5,000 feet cost 8-1/2 times more to drill
offshore than onshore. When the depth of the well goes to
15,000 feet this ratio drops to 2.4 to 1 and when depth of the
well goes below 20,000 feet, the ratio drops to 1.8 to 1.
The current offshore wells, however, have been mostly drilled
in waters shallower than 200 meters. When this water depth is
exceeded, underwater completions and different techniques
will be necessary and the costs will rise sharply again.
2.d. Estimates of the dollar value of all ocean oil production
if the Law of the Sea Conference were to adopt 1) the U.S.
Draft Seabeds Treaty, and 2) exclusive coastal state
jurisdiction for 200 miles from the coast.
It is not at all probable that the adoption by the Law of
the Sea Conference of one of these options would result in a
significantly different amount of offshore oil production than
that resulting from adoption of the alternative formula.
It should be noted, however, that under the U.S. position
on offshore mineral resource development as reflected in the
statement by the U.S. Representative to the UN Seabeds Committee
on August 10, 1972, it is possible that we would see an increase
in oil production. That statement indicated that it is the view
of the U.S. Government that in continental margin areas coastal
states should agree inter alia to international standards for the
integrity of investments made within this area.
In the event the world community agrees to these inter-
national standards, one can hypothesize that petroleum producers
will be attracted to such new additional offshore areas for
investment as will then afford them a stable investment climate.
In spite of higher costs of operation in offshore areas relative
to the costs of land production, it is possible that under an
PAGENO="0465"
459
-5-
international agreement which protects the integrity of invest-
ment in offshore areas, petroleum investment would increase
in areas which previously were politically unattractive. This
analysis, of course, is speculative since the economics of
petroleum production are complex. However, it is a factor
which should not be overlooked in evaluating the differences
between U.S. oceans policy and those other nations who propose
exclusive coastal state jurisdiction not subject to international
standards, such as those to which we have referred.
In x~esfonse to item 3 of Congressman Fraser's letter., the
Department of the Interior can provide the following information:
Copper, nickel, cobalt and manganese are the four metallic
elements of principal economic interest contained in manganese
nodules. In 1971 the United States consumption pattern for
these metals was the following:
Volume Value (Millions)
Nickel
U.S. Consumption (Primary) 128,816 tons* $ 342.7
U.S. Production (Primary) 13,319 tons 35.4
U.S. lmports 142,183 tons 378.2
Copper
U.S. Consumption 1,623,000 tons 1,655.5
U.S. Production 1,522,000 tons 1,552.4
U.S. Net Imports 127,522 tons 130.1
Cobalt
U.S. Consumption 12,500,000 lbs. 30.6
U.S. Production Minimal --
U.S. Imports 10,912,000 lbs. 26.7
Manganese
U.S. Consumption 3,176,924 tons 170.3
U.S. Production None --
U.S. Imports 2,186,970 117.2
*Short tons
1/ Exact data for dollar value of these minerals is not available
for 1971. In order to arrive at some estinate of dollar value,
available volume statistics from Conmoditv Data Su~maries, a
Bureau of Mines publication, were si~nlv muloiD1ie~ by average
prices for each metal in 1971. A scatistical adjustment for
stock-floys an~ sc~ccncarv srcfucc:oc (s~:c~cz for coc~:ei) has not
been made, and, accordingly these estimates may be subject to a
margin of error.
23-317 0 - 73 - 30
PAGENO="0466"
460
-6-
In 1971, imports of primary nickel were the equivalent to 100%
of our total consumption, imports of cobalt equaled 87% of our
consumption, manganese imports equaled 68% of consumption, and
net copper imports equaled approximately 7% of our total
copper consumption. The difference in price between imported
and domestically produced supplies of nickel, cobalt and
manganese is not extremely useful since the United States
depends so heavily upon foreign sources of supply for these
metals. Conversely, the U.S. is the world's largest producer
of copper and the price differential between imported and
domestically produced supplies is relatively unimportant.
With respect to the potential value of deep sea mining production
to the U.S. economy, Table 1 is illustrative.
We can assume that of the three U.S. firms currently considering
deep sea mining operations, one company will use a four-metal
refining process (producing nickel, copper, cobalt and manganese)
and two will use a three-metal process (producing nickel, copper
and cobalt). Our understanding of the economics associated
with the two metallurgical processes indicates that a minimum
production unit of one million dry tons of nodules per year
will be necessary for the four-metal process, but that the three-
metal process may require three million tons per year. The
date of 1978 has been arbitrarily selected as a year in which it
can be assumed, based on the present state of deep sea mining
technology, that the three U.S. companies referred to above
will be in commercial production.
Tables 2 and 3 demonstrate the estimated gross value of output
of the three and four-metal processes. Assuming, then, that
today's prices remain in effect, the annual value of output from
a three-firm U.S. industry producing 7 million tons of nodules
per year would be $441,600,000.
In order to present some indication of the size of a new U.S.
ocean mining industry, public statements by industry spokesmen
can be reviewed. It is possible to predict, based on these
statements, that a company will invest approximately $400 million
for each production unit. The total size of investment for a
three-firm industry during its first generation, e.g., during the
next decade or so, nay be over $1 billion.
PAGENO="0467"
461
-7-
I am enclosing a copy of Summary Petroleum and Selected
Mineral Statistics for 120 Countries, Includinq Offshore
Areas, a recent publication of the U.S. Geological Survey,
and hope that you will include this in the materials you send
to Congressman Fraser, as it is an extremely useful document.
Leigh S. Ratiner
Enclosure
~
ce~
~c, L.fl.
*D~r. fl6"i
)~ ~ (&)
PAGENO="0468"
462
TABLE 1
Relationship of Potential Marine Production to
Projected 1978 U.S. Demand for
Nickel, Copper, Cobalt and Manganese
Cobalt
1.5% growth rate 31,000,000 lbs. 218.2% 283.3%
Manganese
1.9% growth rate 250,000Wshort 10.9% 13.6%
tons
1/ The hypothetical deep sea mining industry would process 7 million tons
of dry nodules per year. From public statements of industry spokesmen,
we have concluded that manganese nodules of current commercial interest
will average 25% manganese, 1.25% nickel, 1% copper and .22% cobalt.
Assuming these average ore grades and 100% metal recovery for simplicity,
each ton of dry nodules could conceivably produce 500 lbs. of manganese,
25 lbs. of nickel, 20 lbs. of copper and 4.4 of cobalt.
2/ Estimates of 1978 imports are based on the 1972 ratio of imports to
demand.
3/ Bureau of Mines projected rate of growth for total world nickel
demand.
4/ Other sources, including industry spokesmen and the UN Secretary-
General, project the rate of growth in nickel demand to be around 6%.
5/ While manganese extracted from marine nodules may be produced in
various forms, this analysis assumes that the more valuable high purity
manganese (rather than ferromanganese) is to be marketed by the
hypothetical four-metal producer. Therefore the 10.9% figure for
marine mining's share of aggregate U.S. demand may not be realistic.
~ickel3,~primary)
3.4 - growth rate
/6.0 4/ growth rate
Copper
4.2%
- Marine
Marine Produc-
Production tion as
from 3-Firm % of U.S.
Industry ~/ Demand
175 million lbs. 44.2%
175 million lbs. 37.4%
70,000 short 2.5%
tons
Marine
Produc-
tion
as % of
U.S. Net
importsY
47.8%
39.9%
36.1%
U.S. Demand
396.3 million lbs.
468,100,000 lbs.
2,764,776 short
tons
14,210,000 lbs.
2,295,087 short
tons
PAGENO="0469"
% of Gross
~p~put/year _________ ___________ Value
Mn 250,000 tons* 58.8
Ni 25,000,000 lbs. 27.5
Cu 10,000 tons 8.8
Co 4,400,000 lbs. ______ 4.9
TABLE 3
Source of Revenues for Three-Metal Producer
Estimated Gross Value
___________ Price2! (millions) __________
$ 1.40/lb. $105.0
1,120.00/ton 33.6
1.40/lb. 18.5
Total $157.1
*Short Tons
1/ While manganese extracted from marine nodules may be produced
in various forms, this analysis assumes that the more valuable
high purity manganese (rather than ferromanganese) is to be
marketed by the hypothetical four-metal producer.
2/ Estimated prices are based on the following projections:
Manganese - Market demand for high purity manganese is low
at its current price of approximately $.30/lb. Accordingly,
the estimated price in this analysis has been decreased by
50% ($.l5/lb. or $300.00/ton) in order to hypothecate its
marketability, when produced on this scale.
Nickel - Current nickel prices range from $l.40-l.53/lb.
Since estimated supplies appear adequate for projected nickel
demand, a stability at current price levels can be assumed.
Copper - Copper is priced today at around $.56/lb.
Discounting cyclical price variations, there are no
predictions of significant long-term price fluctuations.
Cobalt - Since market opportunities for marine cobalt appear
to be limited at current price levels, and since cobalt is
a partial substitute for nickel, it is assumed in this analysis
that ~he price of cobalt will become identical to that of
nickel.
463
TABLE 2
1/
Source of Revenues for Four-i~1etal Producer-
Gross Value
___________ (millions)
$ 75
35
11.2
6.2
$127.4
Estimated
Price 2/
$ 300.00/ton
1.40/lb.
1,120. 00/ton
1.40/lb.
Total
~put/year
Ni 75,000,000 lbs.
Cu 30,000 tons
Co 13,200,000 lbs.
% of Gross
Value
66.8
21.4
11.8
PAGENO="0470"
464
Sumn~ary of procedures in oil and gas leasing
and regulation on the U.S. Outer Continental Shelf
By
V. E. McKelvey
Director, U.S. Geological Survey
LEGISLATION AUTHORIZING OCS EXPLORATION AND DEVELOPMENT
Outer Continental Shelf Lands Act of 1953 provides for:
Geological and geophysical non-exclusive exploration permits.
Leases issued on competitive bidding on cash bonus + fixed
royalty or royalty + fixed bonus (practice has been bonus
bidding and one-sixth royalty)
- Maximum lease size 5,760 acres (9 sq. mi.)--5 year term or
life of production
- Supe~ryision of operations by Geological Survey area Oil and
Gas Supervisors
- Protection of aquatic life and the environment
PAGENO="0471"
465
RESPONSIBILITIES FOR OCS
~The Secretary of the Interior
Orderly and timely resource development
-~ Protection of the environment
-~ Receipt of fair value
Bureau of Land Management
-~ Official OCS leasing maps,
Call for nominations, tračt selection and announcement
-- EIS's for each sale
-- Holding the sale and lease issuance
-- Common carrier pipeline right-of-ways
Corps of Engineers
-- Fixed structures'-Navigational aids
- National defense
Ceologic7al Survey
-- Technical input to tract selection and EIS's )
-- Pre~*sale evaluation-tract values ) Advisory
-- Post-sale technical analysis of bids )
-- Lease supervision )
Regulatory
-- Conservation of resources )
- Collection of royalties
PAGENO="0472"
466
Regulations and Orders
BLM - 43CFR 3300 -- LEASING OF OCS
43CFR 2883 -- RIGHTS-OF-WAY FOR "COMMON-CARRIER" PIPELINES
CS - 3OCFR 250 - REGULATE OIL, GAS AND SULPHUR OPERATIONS IN
THE OCS
Cs - 3OCFR 225 - DISPOSAL OF GOVERNMENT ROYALTY OIL
GS - OCS ORDER NOS.
1. HARKING OF WELLS, PLATFORMS, AND FIXED STRUCTURES
2. DRILLING PROCEDURES
3. PLUGGING AND ABANDONMENT OF WELLS
4. SUSPENSIONS AND DETERMINATION OF WELL PRODUCIBILITY
5. INSTALLATION OF~-SUBSURFACE SAFETY DEVICE
6. PROCEDURE FOR COMPLETION OF OIL AND GAS WELLS
7. POLLUTION AND WASTE DISPOSAL
8. APPROVAL PROCEDURE FOR INSTALLATION AND OPERATION
OF PLATFORMS
9. APPROVAL PROCEDURE FOR OIL AND .GAS PIPELINES
10. SULPHUR DRILLING PROCED~URES
11. OIL AND GAS PRODUCTION RATES
12. PUBLIC INSPECTION OF RECORDS
PAGENO="0473"
467
FEDERAL FUNCTIONS IN OCS OIL AND GAS EXPLORATION AND PRODUCTION
G&G Regional Studies (GS)
- Seismic, gravity, and magnetic surveys
-- Bottom sampling
Identify target areas for detailed studies
Issuance of G&G Exploration Permits (GS)
-- Seismic, gravity, and magnetic permits
-- Bottom sampling and corehole permits
- For leased, unleased, and frontier areas
Five Year Tentative Lease Sale Schedule (BLH-GS)
- Provides industry and Government adequate time to acquire the
basic data needed to evaluate each sale area
- Revised and up-dated as necessary
-- Provides for orderly and timely, development
PAGENO="0474"
468
Prenonination Suirnnary Report (GS)
- Prepared in accordance with the regulations
- Describes the general geology of the sale area
Provides potential resource estimate for sale area
Call for Nominations (BLH)
- Published in the Federal Register
- Covers large areas embr~acing several million acres
- Identified on official leasing naps
-- Allows 60-90 day period to submit nominations
- Provides indication of industry's interest in individual
sale tracts
Selection and Announcement of Tracts for Sale (BLN-GS)
-- Tract selection based on geologic, geophysical, engineering,
and economic data and industry's nominations
- Tracts are selected which have best potential for oil and gas
production
-- Selected tracts are published in the Federal Register
-- Tract announcement permits Government and industry adequate
tine to acquire additional data needed to evaluate the proposed
sale tracts
- Provides the general public adequate tine to consider possible
problems affecting individual tracts
PAGENO="0475"
469
Preliminary Pre-Sale Evaluation (GS)
- Size and nature of individual structure
- Environment of deposition of the sediments
-~ Thickness of prospective section
- Comparison with similar producing structures
- Productivity of geologic trend or trends involved
-- Potential drilling hazards
-~ Probable value of the sale in terms of estimated recoverable
reserves to be discovered
Provides technical input to EIS for each sale
Environmental Impact Statement (BLM with input from CS)
- Prepared in accordance with Section 102(2)(c) NEPA
-- Draft statement prepared and submitted to CEQ
- Public hearing held
-- Final statement to CEQ and sale notice published
- From completion of draft EIS to sale date in 150 days
Final Pre-Sale Evaluation of Recoverable Resources and Tract Value (CS)
-- Estimated recoverable reserves are computed for each structure
and each tract to be offered for sale
-- A monetary value is determined for each tract by the risked
discounted cash flow method
-- The tract value is a reference point and is a primary factor
in determining the adequacy of bids
- Nonte Carlo simulation models for determining tract values
was tested for the December 1972 sale
- The Monte Carlo method uses a range of values for each component
of the DCF method to determine a range of values for each
tract
PAGENO="0476"
470 -
I
Receipt and Public Opening of Sealed Bids (BLM)
- Terms and conditions of the sale are published in the Federal Register.
at least 30-days prior to the sale
-- The Manager, BLM, publicly opens and reads all sealed bids
- The right is reserved to reject any or all high bids
Regulations require that decisions be rendered within 30-days of the
bid opening
Post-Sale analysis of Bids and Acceptance or Rejection (BLM with advice from GS
-- BLM and CS jointly and separately review the bids submitted on eadh
tract
- CS reviews in detail all technical data for those tracts on which
the high bid was below the pre-sale tract value
-- CS forwards to the BLH Manager its recommendation c~f which high
bids to accept and which to reject
-- BLM reviews each high bid using a systematized matrix approach,
which includes GS technical inputs
- Upon completion of the review, the BLM Manager makes the decision
to issue or not issue leases
Lease Issue (BUt)
- Leases are issued sublect to the terms, conditions, and any special
stipulations in the sale notice
PAGENO="0477"
471
Objectives of a safety system
Prevent accidents from happening
Contain and minimize effects if accidents happen nevertheless
-~ Repair damage
Elements of a safety system for OCS oil and gas operations
Identification and assessment of environmental risks
Identification and assessments of risks within operational system
Hazards analysis
Failure mode and effects analysis'
Early warning and weakness-detection capability
Quality control - `:
- Fail-safe and back-up systems
-- Training of personnel
- Safety motivation
Regulations
Inspection
PAGENO="0478"
* ACTIONS TAKEN
* More strnigent regulations and orders
Increased work-plan review capability
Increased inspection capability
Systematic inspection procedures
Dialogue with industry
Accident investigation procedures
"Safety Alert" system
Env~tronmental Impact Statements
Advisory Committee .
Reorganization o~ Conservation Division
Special studies
NASA -- quality control
NAE -- operationalsafety
USGS -- safety and pollution control
Hazards analysis contracts
SAFETY OF OCS OPERA IONS
PROPOSED ACTIONS
* Equipment failure reporting system
* Publication of accident reports
Information exchange
Systems analysis requirement
Research and Development program
Training program * *.
Additional. increase in inspection staff
* Standards development program
* Systematic updating of OCS Orders
* Motivation program *
Standardized industry inspections
ConservAtion Division
March 9, 1973
for F? `74 budget
PAGENO="0479"
473
Supervision of Operation8
- Review and approval or rej ect~on of applications to drill
and applications to install Platforms
-~ Inspection of ~1rilling rigs, exploratory drilling operations,
and Platform Drilling Operations
-- Review and approval or rejection of production plans, unitization
plans, and commingling plans
- Issuance of pipeline rights-of-way
- Inspection of production platforms, wells, and pipeline safety
- Collect royalties
-- Review and approval or rejection of plans for Conservation of
Resources, MER, Secondary Recovery, and Lease Abandonment
- Inspection of operations for conformance, to regulations, for*
safety, for Conservation of Resources, NER, Secondary Recovery,
and Lease Abandonment
\
PAGENO="0480"
474
Enforcement of Regulations Achieved by:
-- Rejection of plans
-- Shut-down of operations
- Referral to Justice Department of knowing and willful violations
- Visibility of inspection force
-- Recognition of GS competence, impartiality, and integrity
Studies to Improve Safety of Operations
-- Internal .
--NASA /
-- NAE -
- Coordiüation between BLM and GS on pipeline safety
-- Director's Safety Co~ittee
PAGENO="0481"
475
UNITED STATES
DEPARTMENT OF THE INTERIOR
GEOLOGICAL SURVEY
[30 CFR Part 251]
GEOLOGICAL AND GEOPHYSICAL
EXPLORATIONS IN THE OUTER CONTINENTAL SHELF
Notice of Proposed Regulations
Notice is hereby given that pursuant to the authority vested in
the Secretary of the Interior by the Outer Continental Shelf Lands Act
of August 7,1953 (67 Stat. 462; 43 U.S.C. 1331-1343), Section 7 of the
Fish and Wildlife Act of 1956 (70 Stat. 1119, 1122; 16 U.S.C. 742f) and
other authority it is proposed to add Part 251 to Title 30, Code of
Federal Regulations. The purpose of Part 251 is to prescribe the policies
and procedures under which permits will be issued to conduct geological
and geophysical explorations in the Outer Continental Shelf.
It is also proposed when Part 251 is adopted to revoke all
existing authorizations to conduct geological and geophysical explorations
in the Outer Continental Shelf, as follows:
(1) Notice dated September 17, 1953, Outer Continental Shelf,
Geological and Geophysical Explorations (18 F.R. 5667) and f9otnote 1
(Texas).
(2) Notice dated March 23, 1954, Outer Continental Shelf, Geological
and Geophysical Explorations ([buisiana) (19 F.R. 1730).
(3) Notice dated March 31, 1955, Outer Continental Shelf,
Geological and Geophysical Explorations (California) (20 F.R. 2093).
23-317 0 - 73 - 31
PAGENO="0482"
476
(4) Notice dated March 27, 1956, Outer Continental She1f~,
Geological and Geophysical Explorations (Florida) (21 F.R. 2129).
(5) Notice dated August 25, 1958, Outer Continental Shelf,
* Geological and Geophysical Explorations (Alabama) (23 F.R. 6760).
(6) Notice dated August 5, 1960, Outer Continental Shelf,
Geological and Geophysical Explorations (Georgia) (25 F.R. 7811).
(7) Notice dated September 6, 1960, Outer Continental Shelf,
Geological and Geophysical Explorations (Atlantic Coast Area)
(25 F.R. 8759). *
(8) Notice dated July 28, 1961, Outer Continental Shelf,
Geological and Geophysical Explorations (Pacific Coast Area off
:~ Oregon and Washington) (26 F.R. 6874).
(9) Notice dated March 7, 1964, Outer Continental Shelf,
* Geological and Geophysical Explorations (Alaska) (29 F.R. 3369).
(10) Memorandum dated May 14, 1965, from the Director, Geological
* Survey tO the Secretary of the Interior, approved by the Secretary
of the Interior on May 20, 1965, authorizing the 4rea Oil and Gas
Supervisor, Gulf of Mexico Area, to approve core drilling on the *
Continental Slope of the Gulf of Mexico. * .
(11) Memorandum dated February 16, 1967, from the Director,
:. Geological Survey, to the Secretary of the Interior, approved by
the Secretary of the Interior on March 1, 1967, authorizing the
Area Oil and Gas SuDervjsor. Eas~tern Area, to approve core
drilling on the Continental Slope of the Atlantic Ocean.
PAGENO="0483"
477
It is the policy of the Department of the Interior, whenever
practicable, to afford the public an opportunity to participate in the
rule making process. Accordingly, interested parties may submit written
comments, suggestions, or objections with respect 1~o the proposed
regulations to the Director, U. S. Geological Survey, Washington, D. C.
20242, within 60 days of the date of publication of this notice in the
Federal ~
Part 251 is added to Chapter II of Title 30 of the Code of Federal
Regulations, to read as follows: -
Part 251 - GEOL0GICAL~ AND GEOPHYSICAL EXPLORATION,
OUTER CONTINENTAL SHELF . .
General Provisiori.s
Purpose
Authority and scopeS
Definitions
Responsibilities -**
Conditions required before operations may be conducted
Appflcations and Permits
Applications
Permits
General obligations of permittee
Core or test drilling
Reports
Sec.
251.1
251.2
251.3
251 .4
251.5
251 .10
251.11.
* 251.12
251.13
* - 251.14
PAGENO="0484"
478
Cancellation, Penalties and Appeals
251.20 .Revocation and cancellation
251.21 Penalties
251.22 Appeals
AUTHORITY: The provisions of this Part 251 issued under Section 11
of the Outer Continental Shelf Lands Act of August 7, 1953 (67 Stat.
464, 469; 43 U.S.C. 1334, 1340), Section 7 of the Fish and Wildlife Act
of August 8, 1956 (70 Stat. 1119, 1122; 16 U.S.C. 742f), and other
authorities.
* Secretary of the Interior
*Certified to be a true copy of the original.
* GENERAL PROVISIONS
.1
/
~ 251.1 Purpose. . *
The purpose of the regulations in this part is to prescribe
policies, procedures, and requirements concerning the conduct of
geological and geophysical explorations for mineral resources and
scientific research inthe Outer Continental Shelf. The regulations
in this part will be administered under the supervision of the Director,
* Geological Surv~y, by the Area Oil and Gas Supervisors of the United
States Geological Survey, except as otherwise indicated herein.
PAGENO="0485"
479
~ 251.2 Authority and ~
(a) The regulations in this part are issued pursuant to Section 11
of the Outer Continental Shelf Lands Act of August 7, 1953, (67 Stat.
469, 43 U.S.C. sl34O); Section 7 of the Fish and Wildlife Act of
August 8, 1956 (70 Stat. 1119, 1122; 16 U.S.C. 742f); and other
authorities.
(b) It is the policy of the Department to encourage scientific
research and geological and geophysical exploration in the Outer
Continental Shelf in compliance with applicable laws, these regu-
lations and permit terms to assure protection of the natural resources.
Authorization by the Department to engage in such activities conveys
no right to a lease and constitutes no commitment by the Government
to offer the area covered by the authorization for leasing.
(c) The regulations in this part apply to all geological and geo-
physical explorations conducted in the Outer Continental Shelf of the
United States, except that in the case of geological and geophysical
explorations conducted by or on behalf of a lessee of the United States
on its lease, sections 251.13(a), Cc) and (d), and 251.14(j). (2)., (b) (6).,
(bY (7). shall not aDDly. *., T.
PAGENO="0486"
480
~ 251.3 Definitions.
When used in this part the following definitions shall apply:
*(a) Director. The Director of the Geological Survey.
(b) Geological exploration. Operations which utilize geologic techniques,
including core and test drilling and various bottom sampling methods, to
produce information concerning the mineral resources of the Outer Continental
Shelf. The term does not include scientific research.
(c) Geophysical exploration. Operations which utilize geophysical techniques;
including gravity, magnetic and various seismic methods, to produce infor-
mation concerning the mineral resources of the Outer Continental Shelf. T1)e
term.does not include scientific research.
(d) Scientific research. Any investigation concerning the physical aspects
of the Outer Continental Shelf conducted by a scientist o~ scientific insti-
tution for purely research purposes, the results of which will be promptly
released to the public or made available through timely publication.
(e) Outer Continental Shelf. All submerged lands(l) which lie seaward
and outside of the area of lands beneath navigable waters as defined in
the Submerged Lands Act (67 Stat. 29) and (2) of which the subsoil and
seabed appertain to the United States and are subject to its jurisdiction
and control.
(f) Supervisor. A representative of the Secretary, under administrative
direction of the Director, through the Chief, Conservation Division,
PAGENO="0487"
481
Geological Survey, authorized and empowered to regulate operations and to
perform other duties prescribed in the regulations in this part.
(g) Person. A natural person, an association, a State, a political sub-
division of a State, or a private, public or municipal corporatiQn.
(h) OCS Order. A formal numbered order issued by the Supervisor and
available in his office, with the prior approval of the Chief, Conservation
Division, Geological Survey, that implements the regulations contained in
30 C.F.R. Part 250 and applies to operations in a region or a major portion
thereof.:
PAGENO="0488"
482
~ 251.4 Responsibilities.
(a) The regulations in this part shall be administered by the Director,
through the Chief, Conservation Division of the Geological.Survey, subject
to the supervisory authority of the Secretary of the Interior.
(b) The Director shall receive and respond to notifications concerning the
* conduct of the types of scientific research described in Section 251 .5(c).
(c) The supervisor is authorized and directed to act on applications to
conduct geological and geophysical explorations in the Outer Continental Shelf.
(d)~ The Supervisor shall require compliance with applicable law and regu-~
* lations, the terms and conditions o:F the permit, OCS orders, and other
orders issued by the Supervisor
* (e) Subject to the approval of the Chief, Conservation Division, Geo1ogi~a'l
Survey, the Supervisor may issue OCS orders implementing the requirements
of the regulations of this part when such implementations apply to an entire
region or a major portion thereof. The Supervisor may issue written or oral
orders to govern operations under a specific permit. Oral orders shall be
confirmed in writing by the Supervisor as promptly as possible.
* (f) The Supervisor is authorized to cooperate with state authorities and
to utilize state inspection services for the protection of aquatic life
and other values when such services are available. * *
(g) The supervisor shall advise the appropriate officials of other bureaus
and offices of the Department and other Federal and state agencies of the
PAGENO="0489"
483
nature and location of exploratory activities conducted pursuant to this
part whi~h pertain to their respecLtive programs and interests; and may
consult with these other agencies in the development of permit
stipulations and conditions when necessary for safe operations and protection
of the environment and resources
PAGENO="0490"
484
~ 251.5 Conditions required before ooerations may be conducted.
(a) Any person desiring to conduct geological or geophysical exploration
to produce information concerning the mineral resources of the Outer
Continental Shelf shall obtain a permit before, conducting such work. TT
(b) Agencies of the United States using Federal employees and federally-
owned facilities are not required to obtain a permit to conduct geological
or geophysical explorations to produce information concerning the mineral
resources of the Outer Continental Shelf, but shall advise the Supervisor
on a continuing basis of the nature and locations of their exploration *. *.
activities. Non-Federal persons desiring to conduct such geological or
geophysical exploration for, or on behalf of, a Federal agency shall obtain
a permit to do such work unless the head of the agency concerned advises the
Secretary that compliance with one or more of the terms o~ the permit or the
regulations in this part would be contrary to the public interest.
(c) Any person or any agency of the United States desiring to conduct
scientific research in the Outer Continental Shelf which (1) involves the
use of solid or liquid explosives or (ii) involve~ penetration of the seabed
to depths in excess of those specified in section 251 .l3(L~shall notify
the Director through the Supervisor before commencing such work and shall
comply with such conditions as the Director considers necessary to the
protection of natural resources and aquatic life.
PAGENO="0491"
485
APPLICATION AND PERHITS
~ 251.10 Applications.
(a) Geological and geophysical exploration. No form is prescribed
for application for permits to conduct geological and geophysical
explorations. Applications to conduct non-explosive geophysical
explorations must be filed in duplicate with the Supervisor at least ten
working days before the work for which the permit sought is scheduled
to begin. Applications to conduct geological explorations and explosive
geophysical explorations must be filed in duplicate with the Supervisor
at least 30 working days before the work for which the permit sought is
scheduled to begin. The applicant may make an oral or telegraphic request
for a permit and the Supervisor may give such oral or telegraphic approval
as may be warranted; provided, that the transaction shall forthwith be
confirmed in the manner otherwise required by the regulations in this
part. All applications shall include: (1) identification of all persons,
as defined in 251 .3(g), participating in the proposed exploration;
(2) description of the type of exploratory work proposed, i.e., whether
geological or geophysical, together with a description of the techniques,
equipment, ins~truments and other gear proposed to be employed in the
work; (3)' a map, plat, or chart depicting the area or areas proposed to
be explored and clearly showing the bounds of the area or areas within
which the proposed operations would be conducted in the case of geo-
physical exploration or describing the proposed locations of the core
holes or bottŕm sampling in the case of geological exploration; (4) the
times at which the proposed work is planned to be conducted and (5) such
PAGENO="0492"
486
-. other information as the Supervisor considers necessary and requests of
the applicant
(b) Application filing locations
(1) Applications to conduct geological and geophysical explorations for
oil, gas~ and sulphur shall be filed in the following Geological Survey offices:
(i) For areas off the Atlantic Coast--the Area Oil and Gas
Supervisor, Eastern Area Washington 0 C
(ii) For areas in the Gulf of Mexico--The Area Oil and Gas
Supervisor Gulf of mexico Area metairie, Luuisiena
(iii) For areas off tne coast of the States of California, Oregon
~nd Washington--the Area Oil ansi GaS Supervisor Pacific Area,
L~s Angeles California
(iv) For areas off the State of Alaska--the ~\rea uil ana Gas
Supervisor, Alaska Area, Anchorage, Alaska.
(2) Applications to conduct geological or geophysical exploration
for minerals other than oil, gas and sulphur shall be filed in the following
Geological Survey offices
(i) For areas off the Atlantic Coast and in the Gulf of Mexico--
the Area Mining Supervisor, Eastern Area, Washi~~~ton, D. C.
(ii) For areas off the State of Alaska, California, Oregon, and
Washington--the Area i~iiniuy Supervisor, Alaska--Pacific Area, Menlo
Park, California. . .
(3) Notifications required of scientists and scientific institutions
by section 251.5(c) shall be filed with the Director through the Supervisor.
PAGENO="0493"
487
~ 251.11 Permits.
(a) Separate permits for geological and for geophysical exploration
will be issued.
(b) Each permit will authorize the exploration operations to be con-
ducted as described in the application, except to the extent that the
description is modified by the terms of the permit, and will notify
the permittee that it must comply with the terms and conditions of
the permit, OCS orders, other orders of the Supervisor, the regulations
in this part, and with other applicable laws and regulations to assure
that operations will not: (i) interfere with or endanger actual opera-
tions under leases in the (X~ter Continental Shelf; (ii) cause pollu-
tion; (iii) cause undue harm to aquatic life; (iv) create hazardous
or unsafe conditions; or (v) unreasonably interfere with or harm other
uses of the area.
PAGENO="0494"
488
~ 251.12 General obligations of permittee.
(a) A permittee shall conduct the operations under its permit in compliance
with the terms and conditions of. said permit, the orders of the Supervisor,
the regulations in this part, all other applicable laws and regulations,
and in a manner which will not interfere with or endanger actual operations
under any lease, or unduly harm aquatic life, result in pollution, create
hazardous or unsafe conditions, or unreasonably interfere with other uses
of the area.
(b) Upon the direction of the Supervisor, any permittee authorized to
conduct geological or geophysical operations shall utilize the services
of an inspector or inspectors qualified to observe and advise the permittee
and the Supervisor of any effects of the operations on the environment,
aquatic life, and other uses of the area. The inspector or inspectors
may be Federal employees or other qualified persons designated or approved
by the Supervisor, including an employee of the state adjacent to the area
where the operations are conducted. The inspector shall observe operations
under the permit and inform the permittee and the Supervisor concerning
any adverse effects of the operations upon the environment, aquatic life,
and other uses of the area. Reasonable charges for the services of a
non-Federal inspector or inspectors shall be paid by the permittee. The
permittee shall, on request of the Supervisor, furnish quarters and
transportation for a Federal representative to inspect operations at no
cost therefor.
(c) A permittee shall not use solid or liquid explosives as energy sources
for exploration unless approved by the Supervisor.
PAGENO="0495"
489
~ 251.l3 Core or test drilling.
(a) Geological exploration involving coring or drilling in the Outer
Continental Shelf will be permitted only in undeveloped areas which have
not been offered for lease by the~ United States.
(b) Geological exploration by means of coring or drilling shall be
conducted in a manner necessary to prevent blowouts, to prevent release
of fluids from any stratum into the sea, and to prevent communication
between separate fluid-bearing strata of oil, gas, or water. Drilling
conducted without return circulation systems and blowout safety controls
shall not penetrate more than 50 feet of consolidated sediments and in
no case penetrate more than 300 feet of total sediment unless a greater
depth of penetration is approved by the Director. The permittee shall
utilize appropriate protective measures specified by the Supervisor,
which may include a gas detector to provide early warning should hydro-
carbons escape; preplanned precautions to prevent uncontrolled flow of
oil or gas; cessations of drilling upon detectidn of hydrocarbons; filling
the drill hole with heavy mud or cement; and other safety devices or
procedures as the Supervisor considers necessary.
(c) In order to minimize risks and to minimize drilling costs ~arising
out of duplicative geological exploration involving penetration of the
seabed of the Outer Continental Shelf, the Supervisor may require an
* applicant to afford all interested persons an opportunity to participate
in the program on a shared-cost basis. In a manner prescribed by the
PAGENO="0496"
490
Supervisor notice of the applicant's intention to conduct the exploration
shall be published by the applicant and shall, (1) contain a summary state-
ment of the proposed program, (2) allow reasonable time, but not less than
30 days from the date of publication for other persons to agree to partici-
pate in the program, and (3) state that persons who do not participate
in the program before it is undertaken may participate in the results of
the program by paying a share of the costs of the program and a fee for
late participation of not more than 50 percent of the costs to each original
participant in the program. A copy of the published notice(s) shall be filed~
with the application. For computing the direct cost of a participant in
a geological exploration program, the total cost of the program shall be
divided by the number of participants. Such figure shall be revised when
additional (including late) participants join the group.
(d) Before .a permit authorizing coring or drilling will be issued, the
applicant must furnish to the Bureau of Land Management a corporate
security bond of not less than $100,000 conditioned on compliance with
the terms of the permit, unless he already maintains with or furnishes to
the Bureau of Lan~1 Management a bond in the sum of $300,000 conditioned on
compliance with the terms of exploration permits issued to him on the
Outer Continental Shelf in (a) Gulf of Mexico, (b) along the Pacific
Coast, (c) along the Atlantic Coast, or (d) other area of operations, as
may be appropriate.
The bond furnished or maintained by the applicant will be on a form
approved by the Director.
PAGENO="0497"
491
)
~ 251.14 Reports
(a) General. The permittee shall submit a final report to the Supervisor
within 30 days from the completion of any exploration. Interim reports
on a weekly or monthly basis may be required. Final reports shall
contain the following:
(1) a description of the work performed under the permit; (2) charts,
maps, or plats depicting the areas in which the exploration was conducted
and specifically identifying the lines over which geophysical traverses
were run or the specific locations at which geological explorations were
conducted, including a reference sufficient to identify the data produced
during each such exploration operation; (3) a statement of the times at
which the exploration took place; (4) a report from the permittee or
inspector (if one observed the operations) as to any adverse effects of
the exploration on the environment, aquatic life, and other uses of the
area in which the exploration was conducted; (5) the data required to be
submitted in paragraph (b) of this section; and (6) such other information
as the. Supervisor may prescribe.
(b) Geological exploration. In addition to the requirements in (a) above,
upon the Supervisor's request, the permittee shall submit to the Supervisor
for his t~eview-or retention the following:
(1) Accurate and complete records of each drilling operation.
(2) Paleontological reports identifying microscopic fossils by
depth (not the resulting fossil age interpretations based upon
such identification) unless washed samples are maintained by
23-317 0 - 73 - 32
PAGENO="0498"
492
the permittee for paleontological determination and are made
available for inspection by the Supevisor.
(3) Copies of logs or charts of electrical, radioactive, sonic and
other well logging operations.
(4) Analyses of cores or bottom samples or a representative cut or
split of the core or bottom sample~
(5) Detailed descriptions of any hazardous conditions encountered
during operations, including near losses of well control,
abnormal geopressures and losses of circulation.
(c) Security of data submitted. Data submitted pursuant to the regulations
in this part will be treated as follows:
(1) Data of general scientific interest not germane to the permittee's
competitive position will be made available for public inspection
promptly.
(2) Other data will be protected from public disclosure for a period
of ten years after the date of issuance of the permit, unless
(i) it is- released earlier with the consent of the permittee,
or (ii) the tracts on which the survey was conducted have been
offered for lease- by the United States, in which event the data
will be protected from public disclosure for a period of 5 years
following the date of the lease sale or for a period of 10 years
after the date of issuance of the permit, whichever is greater.
PAGENO="0499"
493
CANCELLATION, PENALTIES AND APPEALS
~ 251.20 Revocation and Cance11ation.~
*The Supervisor is authorized to suspend or revoke a permit under which
an operation is being conducted, or is proposed to be conducted, which in
his judgment threatens immediate, serious, or irreparable harm or damage
to life, including aquatic life, to property, to valuable mineral deposits,
or to the environment, or for non-compliance with these regulations or the
terms and conditions of the permit.
Sc 251.21 Penalties.
(a) Except as provided in section 251 .5(b) of the regulations in this
part, any person who conducts geological or geophysical explorations to
produce information concerning the mineral resources of the Outer
Continental Shelf without a permit issued under this part or who fails
to comply with the terms of the permit will be subject to the penalties
prescribed in sec. 5(a)(2) of the Outer Continental Shelf Lands Act.
(b) Any person who commences scientific research which involves the
use of explosives or involves penetration of the seabed to depths greater
than those specified in section 251.13 of which the Director has not
been notified pursuant to 251.5(c), or who fails to comply with conditions
prescribed by the Director for the protection of aquatic life and other
values will be subject to the penalties prescribed by law.
PAGENO="0500"
494.
~ 251.22 App~a1s.
(a) A party adversely affected by an action of the Supervisor under
the regulations in this part may appeal to the Director as provided
in section 250.81 of this Chapter.
(b) A party adversely affected by a decision of the Director may
appeal to the Director, Office of Hearings and Appeals, Office of
the Secretary, in accordance with the general rules set forth in
Department Hearings and Appeals Procedures, 43 CFR Part 4, Subpart
B, and the special procedural rules in Subpart G of 43 CFR Part 4,
applicable to proceedings in appeals cases which do not lie within
the appellate jurisdiction of an established appeals board of the
Office of Hearings and Appeals.
PAGENO="0501"
495.
Alternative Sections 251 .2 and 251 .14
251 2 Authority and scooe
(a) The regulations in this part are issued pursuant to Section 11
of the Outer Continental Shelf Lands Act of August 7, 1953, (67 Stat.
469, 43 U S C ~ 1340), Section 7 of the Fish and Wildlife Act of
August 8; 1956 (70 Stat. 1119, 1122; 16 U.S.C. 742f); and other authorities.
(b) It is the policy of the Departmer~ to encourage scientific research
and geological and geophysical exploration in the Outer Continental Shelf
in compliance with applicable laws, these regulations and permit terms to
assure protection of the natural resources. Authorization by the
Department to engage in such activities conveys no right to a lease and .
constitutes no commitment by the Government to offer the area covered by
the authorization for leasing. ... *.~ .
(c) The regulations in this part apply to all geological and geophysical
* explorations conducted in the Outer Continental Shelf of the United States,
* except that in the case of geological and geophysical explorations conducted
* by or on behalf of a lessee of the United States on its lease, sections
251.13(a), (c) and (d), and 25l.l4(a)(2), (b)(6),(b) (7), and (c) (1)
shall not apply. . * ** *** ... *
PAGENO="0502"
496
~ 251.14 Reports.
(a) General. The permittee shall submit a final report to the Supervisor
within 30 days from the completion of any exploration. Interim reports
on a weekly or monthly basis may be required. Final reports shall
contain the following:
(1) a description of the work performed under the permit; (2) charts,
maps, or plats depicting the areas in which the exploration was conducted
and specifically identifying the lines over which geophysical traverses
were run or the specific locations at which geological explorations were
conducted, including a reference sufficient to identify the data produced
during each such exploration operation; (3) a statement of the times at
which the exploration took place; (4) a report from the permittee or
inspector (if one observed the operations) as to any adverse effects of
the exploration on the environment, aquatic life, and other uses of the
area in which the exploration was conducted; (5) the data required to be
submitted in paragraphs (b) or (c) of this section; and (6) such other
information as the Supervisor may prescribe.
(b) Geological exploration. In addition to the requirements in (a) above,
upon the Supervisor's request, the permittee shall submit to the Supervisor
for his review or retention the following:
(1) Accurate and complete records of each drilling operation.
(2) Paleontological reports identifying microscopic fossils by
depth (not the resulting fossil age interpretations based upon
such identification) unless washed samples are maintained by
PAGENO="0503"
497
the permittee for paleontological determination and are made
available for inspection by the Supevisor.
(3) Copies of logs or charts of electrical, radioactive, sonic and
other well logging operations.
(4) Analyses of cores or bottom samples or a representative cut or
split of the core or bottom sample.
(5) Detailed descriptions of any hazardous conditions encountered
during operations, including near losses of well control,
abnormal geopressures and losses of circulations.
(c) Geophysical exploration. In addition to the requirements in (a)
above, upon the Supervisor's request, the permittee shall submit to the /
Supervisor for his review or retention the processed information and
data developed in the geophysical exploration with extraneous signals and
interference removed, in a format and quality suitable for interpretive
evaluation.
Cd) Security of data submitted. Data submitted pursuant to the regu-
lations in this part will be treated as follows:
(1) Dala of general scientific interest not germane to the permittee's
competitive position will be made available for public inspection
promptly.
(2) Other data will be protected from public disclosure for a period
of 10 years after the date of issuance of the permit, unless
(I) it is released earlier with the consent of the permittee, or
(Ii) the tracts on which the survey was conducted have been offered
forjlease by the United States, in which event the data will be
protected from public disclosure for a period of 5 years following
the date of the lease sale or for a period of 10 years after the
date of issuance of the permit, whichever is great~er.
PAGENO="0504"
498
Alternative Section 251.14
251.14 Reports.
(a) General. The permittee shall submit a final report to the Supervisor
within 30 days from the completion of any exploration. Interim reports
on a weekly or monthly basis may be required. Final reports shall contain
the following: /
(1) a description of the work performed under the permit; (2) charts,
maps, or piats depicting the areas in which the exploration was conducted
and specifically identifying the lines over which geophysical traverses
were run Or the specific locations at which geological explorations were
conducted, including a reference sufficient to identify the data produced
during each such exploration operation; (3) a statement of the tines at
which the exploration took place; (4) a report from the perrnittee or
inspector (if one observed the operations) as to any adverse effects of
the exploration on the environment, aquatic life, and other uses of the -
area in which the exploration was conducted; (5) the data required to be
submitted in paragraphs (b) or (c) of this section; and (6) such other
information as the Supervisor nay prescribe.
(2) Security: Data submitted of general scientific interest under this
section not germane to the permittee's competitive position will be made available
for public inspection promptly.
(b) Geological exploration. In addition to the requirements ~n (a) above,
upon the Supervisor's request, the permittee shall submit to the Supervisor
for his review or retention the following:
(1) Accurate and complete records of each drilling operation.
(2) Paleontological reports identifying microscopic fossils by
PAGENO="0505"
499~
depth (not the resulting fossil age interpretations based upon
such identification) unless washed samples are maintained by
the permittee for paleontological determination and are made
available for inspection by the Supervisor.
(3) Copies of logs or charts of electrical, radioactive, sonic and
other well logging operations.
(4) Analyses of cores or bottom samples or a representative cut or
split of the core or bottom sample.
(5) Detailed descriptions of any hazardous conditions encountered
during operations, including near losses of well control,
abnormal geopressures and losses of circulations.
(6) Security: Data obtained by "grab samplers," darts, free fall samplers
and other similar devices submitted under this section will be
protected from public disclosure for a period of 2 years after
the date of issuance of the permit unless it is released earlier
with the consent of the permittee.
(7) Security: Data obtained by conventional coring methods submitted
under this section will be protected from public disclosure for
a period of 10 years after the date of issuance of the permit
unless (i) it is released earlier with the consent of the
permittee, or (ii) the tracts on which the survey was conducted
have been offered for lease by the United States, in which event
the data will be protected from public disclosure for a period of
5 years following the date of the lease sale or for a period of
10 years after the date of issuance of the permit, whichever is
greater.
PAGENO="0506"
500
(c) Geophysical exploration. in addition to the requirements !n (a) above,
upon the Supervisor's request, the permittee shall submit to the Supervisor
for his review or retention the processed information and data developed in
the geophysical exploration with extraneous signals and interference removed,
in a format arid quality suitable for interpretive evaluation.
* (1) Security: Date submitted under this section will be protected
from public disclosure for a period of 10 years after the date of issuance
of the permit unless (i) it is released earlier with the consent of the
permittee, or (ii) the tracts on which the survey was conducted have been
offered for lease by the United States, in which event the data will be
protected from public disclosure for a period of 5 years following
the date of the lease sale or for a period of 10 years after the date
of issuance of the permit, whichever is greater.
PAGENO="0507"
501
DEPARTMENT OF TUE INTERIOR
GEOLOGICAL SURVEY
(30 CFR Part 260)
MINING OPERATIONS IN TUE OU'rER CONTINENTAL SHELF
Notice of Proposed Regulations
Notice is hcreby given that pursuant to the authority vested in
the Secretary of the Interior, under section 5 of the Outer
Continental Shelf Lands Act of August 7, 1953 (67 Stat. 462, 464;
43 U.S.C. 1334), it is proposed to add Part 260, as set forth
below, to Chapter II of Title 30, Code of Federal Regulations, to
govern operations conducted on the Outer Continental Shelf for
minerals otherthan oil and gas, sulphur and salt.
It is the policy of the Department of the Interior, whenever prac-
ticable, to afford the public an opportunity to participate in
the rule-making process. Accordingly, interested parties may
submit written comments, suggestions, or objections with respect
to the proposed addition of 30 CFR Part 260, to the Director,
.IJ. S. Geological Survey, Washington, D. C. 20242.
No time limit has been set on the submission of comments on these
proposed regulations. A draft environmental impact statement on
the proposed regulations is in preparation. When that statement
has been published, we shall request comments and hold hearings
on that statement, and the closing date for comments on these
proposed regulations will coincide with the closing date for
comments on the draft environmental impact statement. Comments
on the proposed regulations will also be received at the hearings.
After the Department has received the comments on the draft state-
mont, a final environmental impact statement will be published.
Only thereafter will a final decision on the issuance of regu-
lations and on the content of those regulations, if issued, be
made~ .
Secretar~ of the Interior
PAGENO="0508"
502
Part 260 - Mining Operations in the Outer
Continental Shelf
GENERAL PROVISIONS
Sec.
260.1 Purpose and authority
260.2 Scope
260.3 Definitions
ISDICTION AND FUNCTIONS OF MINING SUPERVISOR
260.10 Jurisdiction
260.11 General functions
260.12 Regulation of operations
260.13 Temporary approvals
260.14 Sampling
260.15 Drilling ~and abandonment of test holes
260.16 Rights of use and easement
260.17 Platforms, pipelines, and conveyors
REQUIREMENTS FOR LESSEES
260.30 General obligatidn of lessees
260.31 Designation of operator
260.32 Lecal agent
260.33 Exploration, development, and mining plans
260.34 Bore holes and records
260.35 Maps
260.36 Pollution and waste disposal
260.37 Accidents, fires, and malfunctions
260.38 Workmanlike operations
260.39 . Royalty and rental payments
ROYALTIES AND AUDITS
260.60 Value basis for computing royalties
260.61 Royalty
260.62 Audits
D~FAULT AND APPELLATE PROCEDURES ,,
260.70 Default
260.71 Appeals
260.72 Judicial review
PAGENO="0509"
503
REPORTS AND RECORDS
260.80 Monthly report of operations
260.81 . Special forms or reports
260.82 Public inspection of records
Authority: The provisions of this Part 260 issued under Sec. 5,
67 Stat. 464; 43 U.S.C. 1334.
CROSS REFERENCE: For further regulations pertaining to the
issuance of mining leases covering submerged lands in the Outer
Continental Shelf, see 43 CFR Part 3300.
PAGENO="0510"
504
V GENERAL PROVISIONS
§ 260.1 Purpose and authority.
(a) Section 8(e) of the Outer Continental Shelf Lands Act
(43 U.S.C. s 1337(e)), referred to in this Part as "the Act",
authorizes the Secretary of the Interior to issue leases for
minerals other than oil and gas and sulphur on lands subject to the
Act. Section 5(a)(l) of the Act (43 U.S.C. s l334(a)(l)) authori-
zes the Secretary to issue such rules and regulations as may be neces-
sary to carry out the provisions of the Act. The regulations included
in this Part will be applicable to all operations conducted under any
lease issued pursuant to Section 8(e) except a lease issued thereunder
for salt. Any lease issued for salt will be subject to the regulations
in Part 250.
(b) Section 5(a)(l) also provides that the Secretary may at
any time prescribe and amend such rules and regulations as he deter-
mines to be necessary and proper to provide for the prevention of
waste and conservation of the natural resource of the Outer Continental
Shelf, and the protection of correlative rights therein. Amendments
to this Part made for any of these three purposes will upon issuance
become applicable not only to future leases,but also to existing leases
even when inconsistent with their express terms.
(c) Subject to the supervisory authority of th~e Secretary of the
Interior, the regulations in this part shall be administered by the
Director of the Geological Survey through the Chief, Conservation
Division.
PAGENO="0511"
505
§ 260.2 .~ic.22.~*
The regulations in this part shall govern operations conducted
under exploratory, development, and production leases issued for
minerals other than oil and gas, sulphur and salt on the Outer
Continental Shelf.
PAGENO="0512"
506
~ 260.3 Definitions.
The following terms as used in the regulations in this part shall
have the meanings here given:
(a) Secretary. The Secretary of the Interior.
(b) Director. The Director of the Geological Survey, Washington,
D. C., having administrative direction of the enforcement of the regu-
lations in this part.
(c) Mining Supervisor. A representative of the Secretary,
under administrative direction of the Director, through the Chief,
Conservation Division, Geological Survey, authorizes and empowered
to regulate operations and to perform other duties prescribed in the
regulations in this part', or any subordinate of such representative
acting under his direction.
(d) Outer Continental Shelf. All submerged lands (1) which lie
seaward and outside c~f the area of lands beneath navigable waters as
defined in the Submerged Lands Act (67 Stat. 29) and (2) of which the
subsoil and seabed appertain to the United States and are subject to
its jurisdiction and control.
(e) Lease. A lease issued under Section 8(e) of the Act for
any mineral other than salt, or the land covered by the lease,
whichever is required by the context.
(f) Lessee. The party authorized by a lease, or an approved
assignment thereof, to develop and produce the leased deposits in
accordance with the regulations in this part, including all parties
holding such authority by or through him.
PAGENO="0513"
5o7~
(g) Operator. The individual, partnership, firm, or corporation
having control or management of operations on the leased land or a
p~rti~ t~reof. The operator ~ay be a lessee, a designated agent of
the lessee, or holder of rights under an approved operating agreement
or sublease.
(h) OCS Order. A formal numbered order issued by the mining
supervisor, with the prior approval of the Chief, Conservation
Division, Geolopcal Survey, that implements the regulations in this
part and-e-ppU~s to operations in a region or a major ~ortion thereof.
JURISDICTION AND FUNCTIONS OF MINING SUPERVISOR
~ 260.10 Jurisdiction
Subject to the supervisory authority of the Secretary and the
Director, exploratory, development, mining, and processing operations,
handling and measurement of production, determination and collection
of rental and royalty, and, in general, all other operations conducted
on a lease by or on behalf of a lessee are subject to the regulations
in this part and are under the jurisdiction of the mining supervisor
f-or any region as delineated by the Director.
23-317 0 - 73 - 33
PAGENO="0514"
508
~ 260.11 General functions.
The mining supervisor is authorized and directe4 to act upon
the requests, applications, and notices submitted under the regu-
lations in this part and to require compliance with applicab~e lays,
terms, a li~.a5.e ra .ations, and 005 orders to the e~
that all operations shall be conducted in a manner that will to the
extent feasible protect the living and non-living natural resources
of the Outer Continental Shelf and result in the maximum economic
recovery of the mineral.resources in a manner compatible with sound
conservation, environmental and multiple use practices. Subject to
the approval of the Chief, Conservation Division, Geolgoical Survey,
the mining supervisor may issue OCS orders implementing the require-
ments of the regulations of this part when such implementations apply
to an entire region or a major portion thereof. The mining supervisor
may also issue written or oral orders to govern operations on specific
leases. Oral orders shall be confirmed in writing by the mining
supervisor as promptly as possible. Prior to the issuance of OCS
orders and other orders and rules, the mining supervisor may consult
with, and receive comments from, lessees, operators, and other
interested parties. Before permitting opera~tions on the leased land,
the mining supervisor will require that adequate measures for pro-
tection of the environment and other natural resoutces be taken and
will determine that a lease is in good standing, that the lessee is
authorized to conduct operations, and that an acceptable bond has
been filed.
PAGENO="0515"
509
~ 260.12 ~gulation of *qperations.
(a) DutIes of mining supervisŕr. The mining supervisor in accordance
vith-tfle-t~eg!~]ations in this part shall inspect and regulate all operations
and is authorized to issue 0CS~orders and other orders and rules neces-
sary for him to supervise operations ~f-f-ectively and to prevent damage
/
to, or waste of, amy natural resource, or injury to life or property.
The mining supervisor shall receive, and shall, when in his judgment
it is necessary, consult with or solicit advice from lessees, officials
of interested Departments and agencies, and representatives of state
and local governments. . S
- (b) Departures from orders.
(1) The mining supervisor may prescribe or approve in writing,
or orally with written confirmation, minor departures from the require-
ments of OCS orders and other orders and rules issued pursuant to (a)
above, when such departures are necessary for the conservation of
natural resources, protection of aquatic and wildlife species, or pro-
tection of human health and safety, property, or the environment.
(2) All requests or recommendations for major departures
from the requirements of OCS orders, whether on an individual operation
or area basis, shall be approved by the C1~iief, Conservation Division.
(c) Emergency suspensions. The mining supervisor is authorized,
either in writing or orally with written confirmation, to suspend any
operation, including production, which in his judgment threatens immediate and
PAGENO="0516"
510
serious harm or damage to life, including aquatic and wildlife species,
to property, to the leased deposits, to other valuable mineral deposits or to
the environment. Such emergency suspension shall continue until in his
judgment the threat or danger has terminated.
(d) Other sus:e~ss.
(1) In addition to the provisions of section 12 (c) and (d) of
the act providing for suspension of operations and production, in the
interest of conservation the mining supervisor nay direct or, at the
request of a lessee, nay approve the suspension of operations or pro-
duction, or both. A suspension of operations or production to permit
compliance with the provisions of the National Environmental Policy Act
of 1969 (42 U.S.C. ~ 4321 - 4347), or any regulations or guidelines
issued thereunder, will be deemed a suspension in the interest of
conservation.
(2) The mining supervisor is authorized by written notice to
the lessee to suspend any operation, including production, for failure
to comply with applicable law, the lease terms, the regulations in this
part, OCS orders, approved exploration, development or mining plans, or
any other written order or rule, including orders for filing of reports
and drill logs within the tine specified.
(e) Reduction of rental and royalty. In order to increase the
ult~imate recovery of minerals and in the interest.~f conservation, the
Director of the Geological Survey, whenever he determines it necessary
to promote development or finds that a lease cannot be successfully
PAGENO="0517"
511
operated under the terms provided therein, may reduce the rental,
minimum royalty, or royalty on the, entire leasehold, *r on any deposit,
tract, or portion thereof segregated for royalty purposes. An application
for any of the above relief shall be filed in triplicate with the mining
supervisor. It must contain the serial number of the lease; the name of
the record title holder; a description of the area included in the lease;
and. a tabulated statement for each month, covering a period of not
less than six months prior to the date of filing the application, of
the aggregate amount of minerals subject to royalty computed in accordance
with the lease and applicable regulations. Every application must also
contain a detailed statenent of expenses and costs of operating the entire
lease and of the income from the sale of any leased products, and all facts
tending to show whether the workings can be successfully operated upon the
rental or royalty fixed in the lease. Where the application is for a reduc-
tion of royalty, full information shall be furnished as to whether royalties
or~~t~&it~-of production are paid to others than the United States,
the amounts so paid, and efforts made to reduce them. The applicant must
also~file agreements of the holders of the lease and of royalty holders
to a permanent reduction of all royalties from the leasehold, other than
the royalties payable to the United States~, to an aggregate not in excess
of one percent of the gross value of the products produced.
PAGENO="0518"
512
~ 260.13 Temporary apDrovals.
Whenever the regulations in this part require a lessee to obtain
approval of the mining supervisor, the lessee may make an oral or telegraphic
reçuest for such approval, and the mining supervisor may give such oral or
c;:~n~c a:?:oval as nay be varranted. However, ~th the lessee and
the nining supervisor shall forthwith confirm their oral or telegraphic
actions in writing as otherwise required by the regulations in this part.
§ 260.14 Samplinn.
(a) When d~e:ned necessary or advisable, the mining supervisor is
authorized to require the lessee to make adequate tests in an acceptable
manner without cost to the lessor to determine the presence, quantity,
and quality of mineral deposits.
(b) The mining supervisor may, at the time of approv~1 of any notice
to sample bottom deposits or to drill any hole to determine the identity
and character of any deposit, stipulate reasonable requirements for the
taking of samples or cores. All drilling shall be reported in duplicate
on standard drill log number 9-1147.
~ 260.15 Drilling and abandonment of test holes.
The mining supervisor shall in accordance with such plan as may
be approved or prescribed by him, demand that test drilling be con-
ducted in accordance with the terms of the lease and of the regu-
lations in this part, and subject to such other conditions, including
depth, as he may deem advisable, and require plugging ama abandonment
of amy wells drilled.
PAGENO="0519"
513
~ 260.16 Rights of use and easement.
(a) In addition to. the rights and privileges granted to a lessee
under a lease, the mining supervisor may grant such a lessee, subject
to such reasonable conditions as tbe mining supervisor may prescribe,
the right of use or an easement to construct and maintain platforms
and floating or fixed structures, and to use the same for carrying on
exploration, development, production and processing operations, and
housing of personnel engaged in operations, not only in connection
with the lease on which the platform, structure, or island is situated,
but also for the conduct of operations on any other lease, State or
Federal. .
(b) The mining supervisor may grant to a holder of a Federal lease
the right of use or an easement to construct and maintain platforms
and floating or fixed structures on areas of the Outer Continental
Shelf, near or adjacent to the leased area, and to use same for handling,
treating, and storing the production from the leased area. Such rights
of use or easement if on an area subject to any mineral lease issued or
maintained under the act shall be granted only after the lessee under
such lease has been notified and afforded an opportunity to voice objec-
tions thereto, and any such right shall be exercised only in such manner
so as not to interfere unreasonably with operations of the lessee under
`I
such lease. .
(c) In addition to the rights and privileges granted to a Federal
PAGENO="0520"
514
lessee u:i~cr any lease issued or maintained under the act, the mining super-
visor upon proper application nay grant to a holder of a Federal lease or
State lease issued by a Statc which extends the sane rights to holders of
Federal leases, subject to such reasonable conditions as the min~ing
supervisor may prescribe, the right of use or an easement to construct
and maintain pipelines or cor.veyors on areas of the Outer Continental Shelf
which arc constructed, owned and maintained by the lessee and used for
purposes such as: (1) moving production to a central point for gathering,
processing, storin~, or measuring; (2) delivery of production to a point
OL sale; (3) dellvery-oL production to a pipel~ne, conveyor, ship, cargo,
platform or floating or fixed structure oneratad by a transportation
company; or (4) moving fluids 9t slurries in connection with lease opera-
tions, such as for sluicing or injection purposes. The mining supervisor
is authorized to approve any reasonable offshore or onshore location as
a delivery point. Rights of use or easement across areas covered by a
lease shall be granted only after the lessee under such a
lease has been notified by the applicant and afforded a reasonable
opportunity to express its views with respect thereto, and any such
rights shall be exercised only in a manna: so as not to interfere
unreasonably with operations of the lessee unden such lease. The
foregoing right of use and easement shall no: apply to pipelines or
conveyo~rs used for transporting production after custody has been crams-
f erred to a purchaser or carrier as provided for in section 5 (c) of the
Act and regulations in 43 CER 2553.
PAGENO="0521"
515
(d) Once a right of use or easement has been exercised by the
erection of platforms, floating or fixed structures, or pipelines,
the right shall continue only so long as they are maintained and are useful
for the purpose specified therein, as determined by the mining supervisor,
even beyond the termination of any lease on which they nay be situated,
and the rights of all subsequent lessees shall be subject tb such rights
of ~ise and easement by prior lessees. Upon termination by the mining
supervisor of the right of use and easeent, the lessee shall re=ove or
othervise dispose of all platforms, floating or fixed structures,
pipelines, conveyors, and other facilities and restore the premises to the
satisfaction of the mining supervisor..
~ 260.17 PL~tforms, nieii~s. and convevors.
(a) The mining supervisor is authorized to approve the design,
other features, and plan of installation of all platforms and floating
and fixed structures as a condition of the granting of a right of use
or casenent under paragraphs (a) or (b) of section 260.16 or authorized
under any lease issued or maintai~d under the act.
(b) The mining supervisor is authorized to approve the design, other
features, and plan of installation of all pipelines and conveyors for
which a right of use or easenent has been granted under paragraph (c) of
section 260.16 or authorized under any lease, including those porticas
of such lines which extend onto o~ traverse areas other than the Outer
Continental Shelf.
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516
REQUIRE>~ENTS FOR LESSEES
§ 260.30 (`en~'ral oblic~nt~on ~if lessces
(a) The lessee shall comply with provision of applicable laws
and regulations, the terms and conditions of the lease, the require-
ments of the approved exploration, development, or mining plan, OCS
orders and other written or oral orders or instructions of the mining
supervisor in performing exploration, development, mining, ~nd pro-
cessing operations under the lease. Lessees shall take precautions
to prevent waste and damage to mineral-bearing formations and shall
take such steps as nay be needed to prevent injury to life or health
and to provide for the health mmd welfare of employees.
(b) The lessee shall take such action as may be needed to prevent
air, land, and water pollution, damage to aquatic and wildlife species,
obstacles and hazards to navigation, and unnecessary disturbance to
the environment. Where any question arises as to the necessity for
or the adequacy of an action to meet the requirements of this para-
graph, the determination of the mining supervisor shall be final,
subject to the right of appeal as provided in section 260.71.
(c) All operations conducted under these regulations in this
part must be consistent with applicable water and air quality standarda.
(d) w:~i the mining supervisor determines that water pollution
exists~, the mining supervisor may require that a lessee maintain a
record of quantity and quality of waste and refuse discharged from
mining and processing operations, including the chemical content.
PAGENO="0523"
517
In order to obtain this information, the lessae n:ay be required to
install suitable monitoring systcn.
Ce) Full report of accidents or fires~shcll be promptly mailed
to t~ n:n~r.; supervisor by the operator or his representative. Fatal
accidents, accident ch threatens damage ~o the deposit or equipmenc~,
or accidents which could cause water pollution, damage to aquatic and
wildlife species, or hazards to navigation shall be reported promptly
to the mining supervisor by telegram or telephone.
(f) The lessee shall submit report required by Part 200 of this
chapter or any other reports required by the mining supervisor.
PAGENO="0524"
518
§ 260.31 fl~; I tuition of oner::to~.
In all cases where opcrataor.s are not coneucted by the record
/
owner but arc to be conducted under authority of an unapproved operating
agreement, assignment, or other arrangement, a "designation of operator"
shall be ~bmi:ted to the mining supervisor, inc nar.ner and fo~m approved
by him, prior to conmencecent of operations. Such designation will be
accepted as authority of operator or his local representative to fulfill
the obligations of the lessee and to sign any papers or reports required
under the regulations in this part. All changes of address and any te~-mina-
tion of the authority of the operator shall be immediately reported, in
writing, to the mining supervisor or his representative. In case of such
termination or of controversy between the lessee and the designated operator,
the operator, if in possession of the lease, will be required to protect the
interests of the lessor.
~ 260.32 Local agent.
When required by the miming supervisor, the lessee shall designate
a representative empowered to receive notices and comply with orders of
the mining supervisor issued pursuant to the regulations in this part.
PAGENO="0525"
519
§ 260.33 Exploration, developments and mining plans.
(a) General. Before conducting any operations under a lease,
the operator shall submit, in triplicate, to the mining supervisor
for approval exploration, development or production plans, as
appropriate, which shall show in detail where and how the proposed
exploration, development, mining, processing and transportation
operations are to be conducted. The plans shall be consistent with
and responsive to the requirements of the lease for the prevention of
air, land, and water pollution, interference with navigation, and damage
to aquatic and wildlife species and other natural resources. When
necessary, the mining supervisor will consult with and obtain the
recommendations of specialists *in~ other interested Federal agencies
and departments and interested local and State agencies, and shall
promptly approve the plans or indicate what modifications of the plans
are necessary to conform to the provisions of the lease, regulations
and any special stipulations. Na operations shall be conducted except
under an approved plan. Failure to comply with this section will sub-
ject the lease to cancellation.
(b) Exploration plan. The mining supervisor may require that an
exploration plan include, among such items as he may deem advisable,
the following:
(1) A description of the type of exploration operations to
be conducted.
(2) The equipment to be used.
PAGENO="0526"
~52O
(3) Adequate naps showing the location where exploration
work is to be performed.
(4) A description o~ neasure to be taken to prevent or con-
trol air, land, and water pollution, damage to aquatic and wildlife species
and other natural resources, hazards to public health and safety, and
hazards to navigation.
(c) Nin5.nq and develonment olans. The mining supervisor may require
that a mining and development plan include, among such items as he may
deem advisable, the following:
(1) A general description of the environmental conditions and
aquatic and wildlife species in the area of operations.
(2) A detailed description of the nature and occurrence of the
mineral deposits in the leased area. Adequate naps and sections should
be included.
(3) A detailed description of development and mining methods
to be used, th~a proposed sequence of mining or development, the
expected production race, and the method and lccation of the proposed
processing operation. Adequate maps and engineering designs should
be included.
(4) A detailed description of ti-e method of transporting the
minerals from the lease to onshore, and adequate naps showing the
locations of pipelines, conveyors or other transporta;ion facilities.
(5) A detailed description of the method for discharge and
disposal of waste and refuse, including its chemical and physical
characteristics.
PAGENO="0527"
521
(6) A detailed description of measures to be taken to prevent,
limit, or control air, land, and water pollution, damage to aquatic and
wildlife species and other natural resources, hazards to public health
a~d safety, and hazards to navigation.
SC..] ~t5S ~ ~~?~~at10n, ve~a~nent an~ ninI~ ~ans
may be changed by mutual consent of the mining supervisor and the
operator at any time to adjust to changed conditions or to correct an
oversight. To obtain approval of a changed or supplemental plan, the
operator shall submit a detailed written statement of the proposed
changes or additions and the justification for the changes proposed.
]f circumstances warrant, or if preparation of an exploration, develop-
ment or mining plan for the entire operation is dependent upon unknown
factors which cannot or will not be determined except during the progress
of the operations, a partial plan may be approved and supplemented from
time to time. The operator shall not, however, perform any operation
except under an approved plan.
Ce) Abandonment. Plans for abandonment of a leasehold operation
mustE be submitted in detail by the lessee and approved by the supervisor.
In general, the bottom must be left free of lease operational structures
presenting a hazard to navigation dr to commercial fishing, unless
authorized by the mining'supervisor after consultation with appropriate
personnel of the Corps of Engineers or the National Marine Fisheries
Service. -
PAGENO="0528"
522
§ 260.34 Bore holes and records.
(a) When drilling for minerals the surface or drive casingshall
not penetrate more than 300 feet below the ocean floor or 50 feet into
consolidated sediments without cementing. Any modification or omission
from this surface casing requirement must be approved in advance by the
mining supervisor.
(b) The lessee shall keep at his field headquarters or at other
locations conveniently available to the mining supervisor, accurate
and complete logs of all drill holes or bottom sampling. The logs shall
contain a description of all the materials or formations penetrated; the
content of each sample recovered including all data from any analysis
performed on the sample; and any other pertinent information. Logs
shall be reported on form 9-1147 and submitted in triplicate to the
mining supervisor as soon as the hole is completed.
PAGENO="0529"
523
~ 2~O.35 ~!i!il~*
(a) Maps of the operations shall be drawn to a scalc acceptable to
the mining supervisor. All maps shall be appropriately marked with ref-
ercnce to official lease tract boundaries. The maps shall be kept cur-
rent and submitted to the mining supervisor annually, or more often
when required by the mining supervisor. The accuracy of maps furnished
shall be certified by a professional engineer, professional land surveyor,
or other professionally qualified person.
(b) The operator shall prepare such maps of the leased lands as in
the judgment of the mining supervisor are necessary to show the geological
conditions as determined from geological and geophysical surveys, bottom
sampling, drill holes, trenching, dredging, or mining. All excavations
shall be shown in such manner that the production of minerals for any
royalty period can be accurately ascertained.
(c) If any map submitted by an operator is believed to be incorrect,
the mining supervisor may cause a survey to be made, and if the survey
shows the map submitted by the operator to be substantially incorrect in
whole or in part, the cost of making the survey and preparing the map
shall be charged to and promptly paid by the operator.
(d) In event of the failure of the operator to furnish the maps
required, the mining supervisor shall enploy a competent surveyor to
make the required survey and maps, and the costs thereof shall be charged
,1
to and promptly paid by the operator.
23-317 0 - 73 - 34
PAGENO="0530"
524
6 260.3 ~ 11 Ut.h~fl ~ ~ cli ~
(a) Th~ lessee shall not pollute ~ or water or damage
aquatic and wildlife species o~ cause ~ny other unnecessary disturbance
to the environment. The lessee shall dispose of all waste materials as
prescribed by plans approved under section 260.33. All spills or water
pollution by hazardous materials of a size or quantity which cannot be
immediately controlled shall be reported by the lessee without delay
to the mining supervisor and to the Coast Guard and other agencies in
accordance with provisions of the applicable pollution contingency plan.
Other spills of waste materials shall be recorded by the lessee and
reported to the mining supervisor.
(b) If the waters of the sea are polluted by the drilling or pro-
duction operations conducted by or on behalf of the lessee, and such
pollution damages or threatens to damage aquatic and wildlife species,
other natural resources or public or private property, the control and
removal of the pollutant, wheresoever found, proximately resulting
therefron shall be at the expense of the lessee. Upon failure of the
lessee to control and remove the pollutant, the mining supervisor, in
cooperation with other appropriate agencies of the Federal, State, and
local governments, or in cooperation with the lessee, or both, shall have
the right to accomplish the control and removal of the pollutant in
accordance with any established contingency p.an or b'y other means at
the cost of the lessee, but such action shall not relieve the lessee of
any responsibility as provided herein.
(e) Th~.' 1 `~nii'' `n .3 3:ili III Ly Co third imrL I('II otIic~r Lhaii ~ ci (~1$t I ~
up the pollutant in accordance with paragraph (b) of this section, shall
be governed by applicable law..
PAGENO="0531"
525
!J 2(~() . 3/ At I c!.9i : I r .`::,.i Ill
The lessee shall conduct all its exploration, devc1.,j,,ii~z~i and
mining operations in a uzinncr which will prevent accidents and fires
and shall immediately notify the mining supervisor of all serious
~eciJ~nts aad fires on the lease, and shall submit in writing a full
report thereon within 10 days. The lcsscc shall notify the ~iining
supervisor within 24 hours of any other unusual condition, problem,
or malfunction.
~ 260.3S W~ir~;uanlike operations.
The lessee shall perform all operations in a safe and workmanlike
manner and shall maintain equipment for the protection of the lease, its
improvements, for the health and safety of all persons, and for the pre-
servation ar~d conservation of the property and the environment. All unsafe
or hazardous conditions shall be corrected immediately.
~ 260.39 Royalty and rental payments
The lessee shall pay all rentals when due and shall pay when due
all royalties in the dollar amounts determined by the mining supervisor
as payable under the terms of the lease. Payments of rentals and
royalties shall be by check or draft on a solvent bank, or by money
order, drawn to the order of the United States Geological Survey.
PAGENO="0532"
526
ROYAT.TrES AN!) AIWITS
§ 260.60 Value basis for computing royalties.
The value of production, for the purpose of computing royalty,
shall be the value of the product at the point of shipment to market, as
determined by the mining supervisor, due consideration being given to
the highest price paid for a part or for a majority of production of
like quality in the same area, to the price received by the lessee, to
posted prices, and to other relevant matters. Under no circumstances
shall the value of production for the purposes of computing royalty
be deemed to be less than the value computed on such reasonable unit
value as shall have been determined by the Secretary. In the absence
ef good reason to the contrary, value computed on the basis of the
highest price paid or offered at the time of production in a fair and
open market for the major portion of like-quality products produced
and sold from the area where the leased lands are situated will be
cOnsidered to be a reasonable value.
§ 260.61 Roya1~y.
Royalty shall be paid monthly based on production removed or
sold from the leasehold during each month. Records of production
removed or sold shall-be signed by representatives of the lessee and
of the purchaser or the transporter who have witnessed the weights and
measurenents reported, or shall meet such other requirements as the
mining supervisor may approve.
PAGENO="0533"
527
§ 260.62 Audits.
An independent audit of the lessees' accounts and books by
qualified, disinterested certified public accountants nay be required
annually or at such other tines as nay be directed by the mining super-
visor, and at the expense of the lessee. The lessee shall furnish free
of cost duplicate copies of such annual or other audits to the mining
supervisor, within 30 days after the completion of each audit.
DEFAULT AND APPELLATE PROCEDURES
~ 260.70 Dcfault. .
Whenever the lessee fails to comply with the provisions of the
regulations in this part, the mining supervisor is authorized to give
a 30-day notice of such default by registered letter to the lessee at
his record post office address as provided in section 5(b)(l) of the
act. If the lessee fails to correct the default within 30 days of
receipt of the notice, the mining supervisor is authorized to recommend
to the Secretary, through the Director, (a) lease cancellation pursuant
to section 5(b) (1) and (2) of the act, (b) appropriate action under
the penalty provisions of section 5(a)(2) of the act, or (c) the
~xercise of ~ny other legal or equitable remedy~which the lessor may
PAGENO="0534"
528
~ 260.71 ~pp~i1s.
(a) A person adversely affected by an order or decision of the
mining supervisor made pursuant to the provisions of this part shall.
have a right of appeal to the Director and the further right of appeal
to the Director, Office of Hearings and Appeals, Office of the Secretary,
from an adverse decision of the Director, unless such decision was
approved by the Secretary prior to promulgation. Compliance with any
such order or decision shall not be suspended by reason of an appeal
having been taken unless such suspension is authorized in writing by
the Director, or by the Director, Office of Hearings and Appeals,
dependant upon with whom the appeal is pending, and then only upon a
determination that such suspension will not be detrimental to the lessor
or upon the submission and acceptance .of a bond deemed adequate to
indemnify the lessor ftom loss or damage.
(b) An appeal to the Director may be taken by filing a notice
of appeal with the mining supervisor, within 30 days from service of
the mining supervisor's order or decision. The notice of appeal shall
incorporate or be accompanied by such written showing and argument on the
facts and the law as the appellant may deem adequate to justify reversal
or modification of the order or decision. Within the same 30-day period,
the appellant will be permitted to file with the mining supervisor
additional statements of reasons and written argu~ments or briefs.
(c) The mining supervisor shall transmit the appeal and accom-
pan~ ig apers, together with a full report and recommendations, to
PAGENO="0535"
529
th~ Dircctor, who will review the record and render a decision in the
C3S%~.
(d) Oral argument in any case pending before the Director will
be allowed on motion in his discretion and at a time to be fixed
by him.
(e) Appeals to the Director, Office of Hearings and Appeals, shall
be made pursuant to procedures set forth in 43 CFR Part 4, Department
Hearings and Appeals Procedures.
(f) Procedures with respect to notice of hearings, and the con-
duct thereof, and in respect to appeals from decisions of hearing
examiners upon such hearings, shall~ follow insofar as practicable the
procedural rules applicable to hearings and appeals in public lands
cases within the jurisdiction ~f the Board of Land Appeals set forth in
43 CFR Part 4, Department Hearings and Appeals Procedures. If the
hearing examiner shall find that a viola~ion exists, the lessee shall
have an extension of tine of 30 days after the lessee's receipt of
the hearing examiner's decision upon such a hearing within which to
correct the violation of regulations or of lease terms, or, if the
violation is one which cannot be corrected within such extended period,
such longer time as may be required provided the lessee has commenced
in good faith within such extended 30-day ~eriod and thereafter pro-
ceeds diligently to correct the violation.
(g) With the exception of the tine fixed for~'filing a notice of
appeal, the time for filing any document in connection with an appeal
to the Director may be extended by the Director. A request for an
PAGENO="0536"
530
cxtcn~;ion of tine must be filed within the time allowed for the
filing of the document and must be filed in the same office in
which the doct~ment in connection with which the extension is requested
§ 260.72 Judicial review.
Nothing contained in this part shall be construed to prevent
any interested party from seeking judicial review as authorized by law.
PAGENO="0537"
531~
REPORTS AND RECORDS
§ 260.80 Monthly report of operations.
A separate report of operations far each lease must be made for
each calendar month, beginning with the month in which operations are
initiated, and must be filed in duplicate with the mining supervisot
on or before the 20th day of the succeeding month, unless an extension
of tine for the filing of such report is granted by the mining supervisor.
The report shall disclose accurately and in detail all operations con-
ducted during each month, and present a general summary of the status
of operations on the leased lands. The report must be submitted each
month until the lease is terminated or relinquished or unless omission
of the report is authorized by the mining supervisor. The report ehall
show for each calendar month the location of each operation, the number
of days operated, the quantity, quality and value of lease products pro-
duced, sold and disposed of and other information as may be required by
the mining supervisor.
~ 260.Sl S~cial foros or rcnorts
When special forms or reports other than those referred to in the
/
regulations in this part may be necessary, instructions for the filing
of such forns or reports will be given by the mining supervisor.
PAGENO="0538"
532
5 260.82 Public inspection of records.
Geological and geophysical interpretations, maps, and data and
commercial and financial information required to be submitted under
this part shall not be available for public inspection withoutthe
consent of the lessee so long as the lessee furnishing such data, or
his successors or assignees, continues to hold a lease of the lands
involved.
Secretary of the Interior
Dated
PAGENO="0539"
533~
April 2, 1973
WORKING PAPER ON COMPETENCE TO
ESTABLISH STANDARDS FOR THE CONTROL
OF VESSEL SOURCE POLLUTION
Presented by the
United States of I~merica
PAGENO="0540"
534
I. SOUI~C~S OF `~IM~ POLLUTTOrT
There are many sources of pollution of the marine environ-
ment incluc~ing outfio~! from rivers and outfall structures,
atmosoheric transoort of mollutants from lana, natural seapecre,
offshore mineral develomment activities, vessel oil .discharge
and the introduction of oil and other caraoes into the oceans
from vessels, due-to collisions and other maritime cesualties.
Land-hased -sources provide the.largect quantities of
pollutants to the marine environment. Land~basec1 pollutants
include riverborne substances from domestic sewage, industrial
wastes and agricultural run-off, air~borne mollutants such as
vaporized hydrocarbons, and direct discharcras of sewage and
other wastes from coastal communities. with regard to petroleum,
for examole, lanc~-~ased sources account for an estimated 50 to 90
nercent of the estimated total of 2 to 5 million iaetric tons of
oil "hich enter the oceans annuall") There are significant
~uantitie~ of oil entering the marine environment from air-borne
hydroczrhons which are very difficult to detect and measure (and
which nay he considerably larger than the entire-total shown
Im~~lnei.nvironnental ~ualit~',' tiational `~esearch Council,
(`ational Acadeny of Sciences, ~uciust 1971) ~a.nSs Ir'oact on
the `lohal Fnvironment-~eomrt of the Stud" of Critical T'.nviron-
mental Pro1~leps (SCFn)n5'4ansacbusr~tts Thstitute of Thchnoloqv,
1970)' tmankers and ~co)~o~y,~ Transnorteticn. `~ol. 79, (Society
of I~aval ~rchitects and 1 rine~~inaers, 1971).
PAGENO="0541"
535
2
above). ?~lthouqh international cooperative efforts such.
~s the Stockholm Conference or. the J~uman !~nvironrient an~ the
London Conference on Ocean Dumping have heaun to deal with these
prohierns, further wbr~ is urgently needed to ensure effectiv'~
orotection of the oceans. The United States shares the view,
however, that the Seabed Corm~ittee does not have the expertise
to deal adequately with the technical asnect~ of these comnlex
problems. `~`hile the qencrz~l undertaking relating to all sources
of marine pollution ~an* `le fruitfully discussed here, the
snecific pr~hlem~ involved in controls on land-based sources
raise ~iany issues of a very different order from those that
will he discussed at the Law of the Sea Conference.
~ second source of pollutant3 to the marine environment
is the natural seenaqe of oil from the seabed. The amount
* of nollution from such natural see~aqe is not known although
there is some evidence that it may he sicni~icant. There is,
of courser no kno'~n method of controlling this source and it
is thus not dealt with in thi' ~aoer.
~ third source is pollution~ from seabet3 mineral cleveloo-
merit. Such activities orovide a small percentaoe of total
marine pollution. ror examole. it is estimate'~. that the re-
dominant sea1~-ed resource activkty of oil develo~rncnt oroduces
less than 2 nercent o~ the oil :nollution of the oceans. If
Only maritjn~ sources are considererl, soahed activities make
Un ahou~ 5 percent of oce~.n oil mollntion with vessels
PAGENO="0542"
536
accounting for the other 95 percent.2 ~f course, seabed
e~cpl~itat~or~ will intensify, and the United States has pre-
sented specific draft treaty articles for a regime and machinery
to deal with pollution from the deep seabed as well as on
the continental margin. ..
A fourth principal source of pollution to the marine
environment is pollution from vessels. Such vessel source
pollution has been a principal focus of this Subcommittee's
work. -
`II. VESSEL SOURCE POLLUTION
Vessels introduce pollutants into the marine environ-
ment in three principal ways -- through oil and other cargoes
entering the water due to collisions orother maritime casual-
ties, through loading, unloading and bunkering operations, and
through the intentional operational discharge of oil. There
are, of course, other pollutants released from. vessels such as
sewage and garbage but these do not present problems of the
same magnitu~1e (there are international efforts underway to
develop technical means of control for such pollutants);
A. Collisions and Other Maritime Casualties
Most casualties occur in congested areas in internal
waters, at port entrances or in heavily traveled shipping
2"Tankers and E~i6~~T s~inra note 1.
PAGENO="0543"
537
-4-
lanes close to the coast. Thus, jndi~r3.~u.i1 states can and
should act effectively to reduce pollution from such incidents
by the provision of adecTuate navigational aids, `!arniflgs of
dangers to navigation and other assistance to the mariner
to ensure that collisions, groundings and other casualties
are minii~ized. Also, such international actions as provision
of compulsory traffic separation schemes in congested areas,
and.re~uirinq double-bottom construction for large tankers,
as proposed by the United ~3tates in these and I!~CO negotiations,
can assist in solving these ~robierns.3 In addition, authority
to take remedial action is given to coastal states in the Con-
ventionPelatina to Intervention on ~1ie Hi~h Seasin Cases
of Oil Pollution Casualties (which is presently being revised
to expand it to cover other substances in addition to oil).
Oil spills resultino from casualties contribute about 10 per~
cent of vessel source oil pollution,4 and methods for preventing
such spills must continue to be developed. S
13. Loading and flunkering Onerations S
It is estimate-I that a~~roximately 5 to 10 percent of
vessel source oil nollution is caused by soills occurriflq
during hunkering and loading o~erations.5 This source of
pollution is beina reduced through orovision of automatic
loading controls on larqe tankers and imnroved psrsonnel
training. ~lso, sienificant advances are heino
3Ihid. .
PAGENO="0544"
538
-5-
macic in the ~evciopmer~t of no' techniciucs to clean th~ ~r~ills,
Y:any norts are no'~ mrovidinq the er'ui~mcnt and ncrsonnol to
deal raDidly and effectively ~*iith such spills but continuing
ef forts are needed by maritime and port states.
C. Operational mischarcres
The major source of vessel nollution is the intentional
oneretional cUscharqe of oily ~`astes from commercial vessels.
Oocra~ional disc1-arge is due to the numnina of oily bilge "aste'~,
tanker ballasting n, and the cleanirg of tanker cargo
tanks nrior to a change in the tvre of carco or prior to over-
haul. Such discharges are estimated to account for aeoroxi-
maCely three-fourths of alloil ~ollution from vessels, "7ith
tank ~~`ashings and hallastinq providing about twice as much oil
pollution as bilge nurrr~ing.6
After dischareinci a carcio of oil, a tanker must take
aboard sea~'ater in her carco tan~-c~ for use as ballast to
facilitate handli~ in oc'rt and to nrovicie nroner seahee~iP~
characteristics. ~`or exammle, safe pavigation rercuires ballast
of aoproxinatel" ~ percent of c~eac~ ~`eiqht tonnaae un'~er normal
con&~.tions and as much as R'~ percent in extreme t.ieátber con-
clitions. Since come oil remains in the tnnks by adhering to
the tanh surface, the ballast `~ater i'ill mix "ith that residue
and become "oily." s the tanks must `~e cnnty before a r~e'
carao of oil can `~e taken aboard, the oily ballast `yater is
dis~ose'.o~ in one cif tl7o `~ays -- `~irect lischnrme at sea or
PAGENO="0545"
539
sooiration of the oil an' its ~etcntion on hoard under the
`load- on-top' system. In t~nkerz structurally equinme~
for `load--on--tom', the tanks are washed with sea water which
is then colincted in a slop tank (the othar tanks are then
clean and can take on water for ballast). During the ballast
voyage the oily water in the slop tank slowly separates into
a layer of oil and a layer of water, after which the water
can ~e discharqec~. A new cargo can then be loaded on top of
th~ retained oil or the retained oil can he discharged into
a shore reception facility. This procedure is not fully effect-
ive since settling is affected by turbulent sea conditions and
other factorc and since some voyages are simoly not, lengthy
enough for the process to be comoleted, hut it is estimated
that the system is 8~ percent effective. 7'lthouqh `load-on-too"
tankers carry three-fourths of the oil transported by sea,
they produce only about one-fourth of the operational oil dis-
charge due to ballastine and tank cleaning.7
Solutions to the tanker ballast and tank cleaning problems
to be considered in the Conference on ~arine °ollution to he
held ir~ London in October of~ this year inclurle?
(1) Construction of large tankers with sufficient
~:seqregated ballast' soaces, oreferablv through double bottom
construction, to eliminate the need normally to put ballast
water into cargo tanks: and
7Thi~.
23-317 0 - 73 - 35
PAGENO="0546"
540
-7-
(2) Providin' all other tan1cern with load-on-top
facilities.
construction of on shore facilities to receive all oily
residues would he required as a part of both of these solu-
~ons. . .... -
The United States recently prepared a study analyzing the
effectiveness of~segregated ballast" tankers.8 it was found
that segregated ballastinf would elininate approxinately 95
percent of the oil pollution fran operational discharge. The
other 5 perCent would result from the cleaning of tanks before
undergoing repairs and before changes in type of.cargo and
frorn washing tanks to alleviate sludge buildup during normal
operations. This 5 percent would need to he handled by pro-
vision of shore reception facilities.
For existing tankers and for small new tankers not con-.
structed with segregated ballast facilities, load-on-top would
be required under the proposed 1973 larine Pollution Convention.
One method would be to retain the oily waste on board for dis-
charge to shore facilities and another would be f or a very
low rate of discharge of s:~all aiounts of oil at sea. In
certain special areas, where port states are prepared to under-
take the n~cessary obligations, such as the iediterrafleafl, the
draft Convention provi'~es that the contracting.littoral states
8Segregated ~3allastThnkers rrinloyinrj L~ouble gottons. (?` sup-
porting doc~'-.ent to i:tco UT VIII/12 ~-iP ::fl'/3(c) ~f~.iitted hy
tlia Unite. Ttat2s.) . .
PAGENO="0547"
* 541
8
will establish nhore reception facilities to receive all
oily wastes and prohibits any dincharges at sea in such
areas. In other areas, limitations would allow only a rate
and amount of discharge at sea that would not produce any
visible sign of oil. Shore facilities would be provided to
receive the renaming residues.
With respect to oily bilge~water (which produces almost
one-third of operational discharge), the draft Convention
for the 1973 ?.larine POliUtjQfl Conference contains require-
ments which would severely limit disCharge.These restrictions
are identical to those set out immediately above relating to
retention on board or minimurLt discharge and would apply to
all or most commercial vessels.
The draft Convention also provides for the maintenance
of an oil record book. All major operations such as shifting
of cargo, discharges, tank cleaning, etc., would he required
to he recorded in the hook which will be open to inspection
by flag or port state authorities.
III. THE flE~D FO~ A~1 Ir1?Er~Nz~.Tio;1AL SOLUTIO~1
A fundamental objective of the Law of the Sea Conference
is to reach agreement on effective measures which will protect
the marine environment. This objective is shared by all nations.
Another fundamental objective, shared by all nations, is pro-
tection of the freedom of navigation -- an objective which is
vital for international trace, communication and peaceful
relations among nationn~
PAGENO="0548"
542
A principal issue in the consideration of standards to
control vessel source pollution is the authority to establish
standards which will eliminate or minimize environmental damage
caused by vessels. Only a system of exclusively international
standards will provide an effective means to control vessel
source pollution while protecting the community interest in
both of these fundamental objectives. There are at least five
principal reasons which support exclusively international
standč~rds. `* `
First, the international community has basic interests
which should be represented in the formulation of such standards.
One basic concern, of particuiar interest to coastal states,
is to protect the marine environment from pollution. A
second basic concern, of particular interest to exporting
states, importing states, and maritime states, is the avoid-
ance of unnecessary increases in transportation costs. Par-
ticipation by these concerned states in the establishment of
st~dards will ensure that a proper balance, is maintained.
On the other hand, if coastal states were to be given the
authority to establish standards by themselves, such standards
night not adequately reflect either the interests of existing
maritime states or the developing states as they become mari-
time nations or the interests of the international community
in effective protection of the marine environment.
Second, because of the difficulty or impossibility of a
vessel complying with several sets of different, and possibly
inconsistent standards, there should be a single set of
uniforn standards observed by all states. Although vessels
PAGENO="0549"
543
10
utilizing major ocean routes pass close to shore for only a
fraction of a normal voyage, they could be subject to many
separate sets of standards if coastal states were authorized
to establish standards in an area adjacent to the territorial
sea. For example, on a voyage from the Persian Gu1~ to Europe,
a heavily traveled oil transport route, a vessel might be sub-
ject to as many as fifteen different sets of standards. Since
compliance with differing standards would be difficult and costly.
vessels may try to avoid these areas, If possible, thus in-
creasing voyage length and time. Avoidance of these areas might
even force a vessel into a different load line area, thus re-
quriing a lighter cargo load. The result would be higher
shipping costs, which in the end would be passed on to pro-
ducers and consumers. A legalregime which accords coastal
states the authority to supplement international standards does
not avoid these problems. Moreover, it should be kept in mind
that thehigher costs associated with divergent standards will
not necessarily result in improved protection for the marine
environment. .
Third, exclusively international standards are required
for effective protection of the full marine environment. Since
ocean currents carry some amounts of pollution from one ocean
area to another and from far offshore to inshore areas, indivi-
dual coastal state standards could not as effectively reduce
Such pollution. All of the principal oceans have major
currents ~`lo'ding generally from o:i~ ~o:~t~:~;; ~ a:~cthor and
PAGENO="0550"
544
11
across ~~road ex'~anses of.o~n ocean.. To dorionstrate the
magnitude of these currents, the ralor north ~merican current
system washes the shores of 23 coastal states of Africa, South
~merica, ~orth 7.meric~ and Europe. In crossing any major
oceans, shiPS `~`ill encounter one or more of these major currents
and may discharge oil into them many riles from shore. Inshore
currents may carry quantities of oil onto beaches and inshore
areas hundreds, of miles away from the point of discharge. ~
cause of the size of the areas and the distances involved,
individual coastal state pollution control standards cannot
possibly core. with the entire problem. ~oreover, individual
coastal state standards may simply t~ansfer the effects of
pollution from one state to another. Such a transfer could
add to friction between nations and would not meaningfully
contribute to the protection of the marine environment.
Certain areas, of course, may recuire special measures for
effective protection. Such measures, ho~'ever, could and.
should he interi~ationaliy established.
Fourth, an exclusively international approach is better
able to respond to chances in the tecb.noloqy for the control
or poflutthn and to new knowledge about threats to the marine
environment. Our concern, of course, musthe protection of
the entire marine environment. In meeting that concern, it Is
far more efficient to continually update one set of inter-
national standards than to alter over lOfl national stanc~ards.
Moreover, an-international at~p~oach pruvides a focus for utiii:~i~
PAGENO="0551"
545
12
the expertise of all nations in establishing international
standards. .
`Fifth, concerns regarding economic advantage and dis~
advantage a~nong states are increasingly evident in attempts to
* deal effectively with environmental problems. Individual
states may fear the economic effects on themselves.'of imposing
* environmental controls that others may not impose. A system
of exclusively international standards would largely eliminate
these competitive economic concerns and would encourage a
willingness to impose higher standards on an agreed basis.
IV. SU~ARY
Standards for the control of vessel source pollution must
effectively protect the fundamental environmental and navigation-
al interests of all nations. If authority to establish such
standards were given to coastal states, whether such authority
were exclusive or only supp~Lemental, there could be no assurance
* that adequate account would be taken of the need to accommodate
such interests. There could also be no assurance that such
standards would effectively serve either interest. ~his does
not mean that special standards could not be established to
* deal with the problems of special areas, but such standards
should be established internationally. The global nature ~Of
the marine pollution problem: requires that solutions to this
problem, as with other international problems, must be
international.
PAGENO="0552"
546
April 18, 1973
Off ice of the White House Press Secretary
THE WHITE HOUSE
TO THE CONGRESS OF THE UNITED STATES:
Deepwater Ports
It is clear that in the foreseeable future, we will have
to import oil in large ouant~ties. We should do this as
cheaply as we can with minimal damage to the environment.
Unfortunately, our present capabilities are inadequate for
these purposes.
The answer to this problem lies in deepwater ports
which can accommodate those larger ships, providing im-
portant economic advantages while reducing the risks of
collisIon and aroundinc. Secant studies by the Council
on ~ OX525t
comsider~4iy ~ :~iItLcn Ii' ~`ower b;zt larr~or
tankers and deepwater facilities, as opposed to the many
small tankers and conventional facilities which we would
otherwise need.
If WO (to not c ii arç~e our (1(' rpw it; c tort C' ~.p :i ci t;::. i t
is clear that both Ancrlcan anti forc t~n coc~.;'anJ ci tzt 11
expand oil transshipment terminals in the bahama:; and the
Canadian ;iaritine Provinces. From these terminals, oil will
be brought to our conventional ports by growing nUmbers of
small and mediun size transshin~ient vessels, thereby increasing
ti;e rishs 01' pollution from shipping operations and accidents.
At the same tine, the United States will lose the jobs and
capital that those foreign facilities provide.
Given these considerations, I believe we must move
forward with an ambitious program to create new *deepwater
ports for receiving petroleum imports.
The development of ports has usually been a responsi-
bility of State and local governments and the ,private sector.
However, States cannot issue licenses beynad--the three-mile
limit. I am therefbre proposing legislation to per~mit the
Department of the Interior to issue such licenses. Licensing
would be contingent upon full and proper evaluation of en-
vironmental impact, and would provide for strict navigation
and safety, as well as proper land use requirements. The
proposed legislation specifically provides for Federal
cooperation with State and local authorities. -
PAGENO="0553"
547
April 18, 1973
THE WHITE HOUSE
THE PRESIDENT~S ENERGY MESSAGE
SUMMARY OUTLINE - FACT SHEET
la-I Port:;
~ are at, 1.~:..;l, Go n-nt.:: or hiin,~ 1::].l1~--;; im~ntl~'-~ n
operation worldw.tdc which are c~jib1.e of handling sh~ pa of
175,000 deadwc~g1it tons. (OUT) or, mci-c. These facilities
generally have eater depths of at least 80 feet. There are
no ports in the Un:~ted gtates now capable of handling these
large ships; consequently, the U.S. is currntly not able to
benefit directly from the significant economic savings and
environmental benefits from the use of offshore ports and
sup ..rtankers.
With a few exceptirns, the United States has a shallow
contInental shelf and no natural deepwater harbors. Most
major U.S. ports are currently dredged to depths between 35
and ~l5 feet. It is generally. no1~ fea~iblč to build deepwater
ports in the United States by dredging or improving existing
harbors. Thus, most deepwater ports would have to be buil~
offshore beyond state waterz in~ international waters, some-
times at distances of twenty or th~.rty miles from the shoreline.
At the end of 1971, more than one--fourth of the world's total
oil-carrying capacity consisted of ships in the 175,-000 DW~I'
class and over. A total of 223 such ships were in operation
and 321 more were on order. Nevi orders rer5resent approximately
50~~ of existing tanker tonnage of'~all regIstries.
Total tanker arrivals for the 118 contigUous states in 1971 was
67,770, with 56,700 (811~) of these in Petroleum Administration
District I (PAD I) whi6h is the Eastern;$e.aboard. West Coast
arrivals totaled 14,1420 and Gulf Coast ar±ivals were 6,650. Most
of the shipments were products froiń the Gulf *Coast and the
Caribbean to PAD I. The average sIze of the ships currently
carrying imported crude is about 29,000 DUT. -
By 1980, Eastern Seaboard (PAD I) imports of foreign oil by
very large crude carriers (1~LCC) are expected to average between
1 and 3.5 million barrels. per day, virtually all of which will
cone from Africa or the Persian Gulf. If the U.S. does not
rapidly develop deepeater port capability, foreign transshipment
terminals in the Bahanas and the Canadian i:aritime Provinces will
probably be developed by U.S. and foreign companies. The U.S.
will then be serviced by increasing numbers of small and medium
sized transshipment vessels, increasIng the risks of pollution
from vessel casualties and opératicns and requIring expansion of
conventional port facilities.
Significant economies can be achieved from use of larger vessels.
Dollar per ton freIght costs cculd bc re~aoed nearly 30~ by
incr~-~ --~ ci ~ c~ 1 =
econo;~j, ~ cam be reaLLaca- utili~L::g.
PAGENO="0554"
548
The Pr~oide t has proposed lcz;.1:; at ton ~:h tch wt ii p; vidc
authority for the 3ccretary ci' t~ie Intcr ~or , in cc~n.:;lt:ttiOU
with other concerned Fedcj'al ai~eneicn and otate gov~rnment5,
to issue a license In wat;~:rs heyc~ia atat~~ juri~dicticn for
the construction and operatIon ol' deeeo:ater ports. The
legi3iation is intended to simply provide a complete leCOl
regime for licc:;sing beyond the three mile limit, under strict
environmental safeguards and with provisions for navigation
and safety. The President reccgnizcs the importance of the
states in developing por and associated onshore. facIlities.
The legislation does not precn;pt state authorIty, but extends
state laws to any deepwater port licenc d by the Department of
the Interier, as long as those laws are not in conflict with
Federal laws. -.
p
The President's legi~lationmake~ provihion for issu~nce of the
necessary license for the ri~hts-of-wăy for an associated
pipeline by amending the Outer Continental Shelf Lands Act.
(OCSLA). Under the OCSLA, `the Secretary of the Interior
currently grants rights-of-way foi~ pipelines constrUcte~ to
bring oil and gas ashore from offshore drilling operations.
PAGENO="0555"
549
No 9
October 30 ~l9!0
DEPARTFE:IT OF THE INTERIOR
GEOLOGICAL SURVEY
CONSERVATION DIVISION /
BRANCH OF OIL AND GAS OPERATIONS
GULF OF MEXICO AREA
NOTICE TO LESSEES AND OPERATORS OF FEDERAL OIL AND GAS LEASES
iN THE OUTER CONTINENTAL SHELF, GULF OF MEXICO AREA
APPROVAL PROCEDURE FOR OIL AND GAS PIPELINES
This Order is established pursuant to the authority prescribe~ in 30 CFR
250 .ll.and in accordance with 30 CFR~25O.19(b). -Section 250.19(b)
provides as follows: -
~b) The Supervisor is authorized to approve the design, other
features, and plan of installation of all pipelines for
which a right of use or easement has been granted under
Paragraph (c) of Section 250.18 or authorized under any
lease issued or maintained under the Act, including those
portions of such lines which extend onto or traverse areas
other than the Outer Continental Shelf.
The operator shall comply with the following requirements. Any departures
froth the requirements specified in this Order must be approved pursuant to
30 CFR 250.12(b).
1. General D~4g~. All pipelines shall be designed and maintained
in accordance with the following:
A. The operator shall be responsible for the installation
of the following control devices on all oil and gas
pipelines connected to a platform including pipelines
which are not operated or owned by the operator.
Operators of platforms installed prior to the effective
date of this Order shall comply with the requirements
of subparagraphs (1) and (2) within six months of the
effective date of this Order. The operator shall
submit records semi-annually showing the present status
and past history of each device, including dates and
details of inspection, testing, repairing, adjustment,
and reinstallation. -
(1) All oil and gas pipelines leaving a platform
receiving production from the platform shall
be equipped with a high-low pressure sensor
to directly or indirectly shut-in the wells
on the platform.
PAGENO="0556"
550
(2) (a) All oil and gas pipelines delivering produc-
tion to production facilities on a platform
shall be equipped with an automatic shut-in
valve connected to the platform's automatic
and remote shut-in system.
(b) All oil and gas pipelines coming onto a plat-
form shall be equipped with a check valve to
avoid backflow.
(c) Any oil or gas pipelines crossing a platform
which do not deliver production Ło the plat-
form, but which may or may not receive pro-
duction from the platform, shall be equipped
with high-low pressure sensors to activate an
automatic shut-in valve to be located in the
upstream portion of the pipeline at the plat-
form. This automatic shut-in valve shall be
connected to either the platform automatic
and remote shut-in system or to an independent
remote shut-in system.
(d) All pipeline pumps shall be equipped with high-
low pressure shut-in devices.
B. All pipelines shall be protected from loss of metal by
corrosion that would endanger the strength and safety of
the lines either by providing extra metal for corrosion
allowance, or by some means of preventing loss of metal
such as protective coatings or cathodic protection.
C. All pipelines shall be installed and maintained to be
compatible with trawling operations and other uses.
D. All pipelines shall be hydrostatically tested to 1.25
times the designed working pressure for a minimum of
2 hours prior to placing the line in service.
E. All pipelines shall be maintained in good operating con-
dition at all times and inspected monthly for indication
of leakage using aircraft, floating equipment, or other
methods. Records of these inspections including the dater
methods, and results of each inspection shall be maintained
by the pipeline operator and submitted annually by April 1.
The pipeline operator shall submit records indicating the
cause, effect, and remedial action taken -regarding all pipe-
line leaks within one week following each such occurrence.
PAGENO="0557"
55i
F. All pipelines shall be designed to be protected against
water currents, storm scouring, soft bottoms, and other
environmental factors.
2. Application. The operator shall submit in duplicate the following
to the Supervisor for approval:
A. Drawing on 8" x lOs?' plat or plats showiiig the major
features and other pertinent data including: (1) water
depth, (2) route, (3) location, (4) length, (5) connect-
ing facilities, (6) size, and (7) burial depth, if
buried.
B. A schematic drawing showing the following pipeline safety
equipment and the manner in which the equipment functions:
(1) high-low pressure sensors, (2) automatic shut-in
valves, and (3) check valves.
C. General information concerning the pipeline including the
following:
(1)
Product or products to be transported by the
pipeline.
(2) Size, weight, and grade of the pipe. -
(3) Length of line.
(4) Maximum water depth.
(5) Type or types of corrosion protection.
(6) Description of protective coating.
(7) Bulk specific gravity of line (with the line empty).
(8) Anticipated gravity or density of the product or
products.
(9) Design working pressure and capacity.
(10) Maximum working pressure and capacity.
(11) Hydrostatic pressure ancT hold time to which the
line will be tested after installation.
(12) Size and location of pumps and prime movers.
(13) Any other pertinent information as the Supervisor
may prescribe.~
PAGENO="0558"
552
3. Cornoletion Report. The operator shall notify the Supervisor when
installation of the pipeline is completed and submit a drawing on
8' x lO3~" plats showina the location of the line as installed,
accompanied by all hydrostatic test data including procedure,
test pressure, hold time, and results.
/ /~
/ X-~'~~-~' 2it~z~
Robert F. Evans
Supervisor
Approved: October 30, 1970
Russell G. Wayland
Chief, Conservation Division
PAGENO="0559"
553
Statement by
Robert M. White
Administrator. -
National Oceanic and Atmospheric Administration
U.S. Department of Commerce
before the
Committee on Interior and Insular Affairs
United States Senate
March 24, 1972
Mr. Chairman and members of the Committee:
I am Robert N. White, Adninistrator of the National Oceanic
and Atmospheric Administration. With me are my associates, David H.
Wallace, Associate Administrator for Marine Resources and Raud E.
Johnson, NOAA's General Counsel. I appreciate this opportunity to
testify before your Committee on the administration of the Outer
Continental Shelf Lands Act as it relates to S. Res. 45, a study
of National Fuels and Energy Policy.
Since your invitation to these hearings was specifically directed
to NO~\A, my testLmony today ~iill relate priTar~il~r to NOAA's fuattiens.
..~
However, the answers to the questions whicft accompanied your invitation
to the hearings will include responses from all appropriate components
of the Department of Commerce and be coordinated with other Federal
agencies as you requested.
PAGENO="0560"
- ~554
.The Nation's operational center for weather an~ environmental
satellite data activities.
Each of the main organizational components of NOAA. contributes
information and services that assist industry and government in the
conservation and development of ocean resources. Specifically, the
following major programs have direct application in this area:
o Marine mapping and charting services are composed of basic
charting activities and specialized services for safety of navigation,
nanagement of coastal zones and exploration and utilization of our
ocean resources.
The National Ocean Survey of NOAA provides reconnaissance scale
athymetric and geophysical maps of the continental shelf and selected
deep ocean areas. In cooperation with the Department of Interior and
industry our maps and data are assisting in identifying new resource
~reas and providing information for management of these areas.
o Gathering, analyzing and disseminating knowledge of marine fish
life history, abundance and distribution. This information is fundsmental
to the assessment of fishing and man's other impacts on fishery resources.
The National Narine Fisheries Service carries out programs of
esearch, conservation and management and various supporting activities
for U.S. corrsncrcial and sport fishing interests. These programs con-
ribute information which is essential to the design of rationale programs
or multiple use of the Continental Shelf. and its superjacent waters.
PAGENO="0561"
555
6
o Determining and predicting the environmental effect of marine
,mining. This activity, which is carried on by NOAA's Marine Minerals
Technology Center, is of importance to the infant marine mining industry
which promises economic benefits if, we can deal with environmental
concerns.
A virtual moratorium now exists for nearshore mining of hard
minerals due to the apprehension by State and local governments con-
cerning possible environmental degradation. A cooperative program with
the State of Massachusetts on development of sand and gravel deposits
is now underway. -
o Developing and operating systems to monitor and predict environ-
mental conditions such as weather and ocean hazards so that, through
extensive and readily available products, services and warnings, life
and property can be protected and the efficiency of commercial,
industrial and agricultural activities improved. This is especially
important for offshore development.
.NOAA's ocean forecasting service provides warnings and other
advisories about severe storms, strong winds and hazardous ocean condi-
tions, Eo protect life and safety at sea, and to increase the
efficiency of all marine operations. Twenty National Weather Service
Offices provide forecasts and warnings to coastal, trans-oceanic and
Great Lakes shipping; commercial and sports fishermen; offshore mineral
industries and water pollution control agencies. Marine environmental
23-317 0 - 73 - 36
PAGENO="0562"
556
7
information for nearshore users is broadcast over VHF/FM stations
along the coasts by cooperative stations of other agencies. A seismic
sea wave warning system is maintained in the Pacific basin to protect
coastal communities against these earthquakes-generated hazards.
o Operating a network of environmental data centers to meet the
rz.equirements of industry, commerce, agriculture, other segments of the
economy.
NOAA is the primary national repository for much data and infor-
mation relating to the atmosphere, ocean, solid earth and space, and
associated environmental interactions.
o NOAA Operates the national environmental satellite system to
monitor weather, ocean and solar conditions daily on a global basis.
* The data produced by these satellites have become indispensable
in the detection, tracking and forecasting of hurricanes and major
storm systems, and other environmental conditions which directly affect
operations on the Outer Continental Shelf. .*
In addition to its key role in weather forecasts the satellite is
a versatile observational platform providing a variety of other products.
They are now providing information on areal distrilution of sea and lake
ice,,which can now be accurately charted, thereby contributing signifi-
cantly to the safety of shipping and offshore operations. Soon we will
be able to delineate sea surface temperatures and ocean current systems.
As you can see from the foregoing description, Hr. Chairman,
NOAA'~ activities related to the Outer Continental Shelf are manifold.
PAGENO="0563"
8 :
Add to this the fact that many other Federal agencies also have interests
in the Shelf, not to mention the broad diversity of activities carried
on there by private industry, and it is clear that the Executive
Departments and Agencies must work cooperatively in the development
and implementation of their plans and programs. The prim~ary coordinating
mechanisms for marine activities in the Federal Government is the
Interagency Committee on Narine Science and Engineering (IC~ISE) of the
Federal Council for Science and Teéhnology. The Department of
Commerce is a member of this Committee along with 11 other agencies.
We believe that the IGMSE has a good potential for assistance
in the coordination of Federal agency programs that concern the Outer
Continental Shelf. Of particular interest to this Committee is the
formal agreement we have established with the Geological Survey, namely
a NO/tA-USGS program review board, to coordinate programs where we have
a strong interface and mutual interests. The co~rdination of marine
geological and geophysical surveys has received primary attention, among
other subjects. Programs of bathymetric and geophysical mapping are
planned and executed jointly in some areas so as to obtain the most
efficient use of personnel, ships and equipment.
Admiral William W. Behrens, formerly the Oceanographer of the
Navy, was recently appointed Associate Admiiiistrator for Interagency
Relations and Naval Deputy to the Administrator. He will be NO/tA's
PAGENO="0564"
558
9
primary focal point for policy level coordination with other Federal
agencies.
Mr. Chairman, I have presented to you a very general description
of NOAA with highlights on how our broad programs relate to the oceans
and to the continental shelf. I have also briefly touched upon some
of the mechanisms in being to coordinate Federal activit~,r on the shelf.
It might be instructive at this point to more specifically describe
how NOA-A activities relate to the petroleum industry in this area,
and how that industry relates to others... This consists of: -
1. The specialized ocean environmental services consisting
of ocean weather and sea state forecasting and advisories
about severe storms, strong winds and hazardous ocean
conditions.
2. Marine climatology analysis, i.e., furnishing of data and
long time series information on winds, sea state, tides and
currents, bottom conditions and other factors which are
necessary for design and operation of offshore platforms.
3. Mappimg and charting services cbiisisting of bathymetric,
geophysical and navigational i~tformation. This assists with
* both the location of resources and also with marine construction
and operations.
4. Geodetic and boundary surveys.
5. Assistance in coordination with other activities, .
particularly fishing interests ofa commercial and
recreational nature.. -
PAGENO="0565"
559
UNITED STATES MISSION
U.S. INFORMATION SERVICE
80, RUE DE LAUSANNE
1211 GENEVA 21 - TEL. 327020
STATEMENT BY THE HONORABLE JOHN R * STEVENSON
UNITED STATES REPRESENTATIVE TO THE COMMITIEE ON THE PEACEFUL
USES OF THE SEABED AND THE OCEAN FLOOR BEYOND THE LIMITS OF
NATIONAL JURISDICTION
PLENARY, August/s, 1972
Mr * Chairman:
In recent weeks, both you and your colleagues on the Bureau have
emphasized that this is a critical session for the United Nations
Seabed Committee. We agree. Therefore, we believe it is appropriate
to consider the future of these negotiations and, in that context, the
future ~f the Law of the Sea. It is over two years since President
Nixon said:
The stark fact is that the law of the sea is inadequate
to meet the needs of modern technology and the concerns
of the international community. If it is not modernized
multilaterally, unilateral action and international
conflict are inevitable.
Mr. Chairman, if we are to find negotiated, international solu-
tions to the law of the sea, we must do two things promptly.
First, we must all be prepared to accommodate each other's inter-
ests and needs. We are preparing~a comprehensive law-making treaty
to govern not only the conduct of sove±eign States and private
persons in the ocean, but also the natural resources of an area
comprising two-thirds of the earth's surface. Its effectiveness
will depend in large measure on the extent to which it represents
a consensus of all, rather than a group of States. To esileve this,
we must identify those national interests that are of fundamental
importance to each of us, and avoid time-consuming and potentially
divisive debate on less important matters.
Second, we must achieve agreement before events overtake our
ability to do so. I cannot stress too strongly that none c~ us
can or should stop technology and its use. If we act wisely end in
a timely manner, we can ensure by agreement that the technology
will be used in a manner that provides maximum benefit for all
mankind.
Our efforts here, Mr. Chairman, are known to many people in my
own country and in many others represented here today. The people
who use the seas, and the people~ whose livelihoods either now or
in the future de~otd on the sea, are watching us. In the United
States there is a growing uneasiness about our work. Most Americans
concerned with the sea are dedicated to multilateral solutions to
problems which have international ramifications, but they are
becoming increasingly sceptical ab~ut the chances for success. Other
delegations hwre may perceive similar developments taking place in
their own countries. We must not allow confidence to be shaken in
our abilitylo negotiate timely solutions to the problems we face.
Against this background, I would like to comment on some aspects
of the substance of these negotiations.
Ocean uses can be divided into two broad categories: resource
uses and non-resource uses. The first group principally concerns
fishing and seabed resources. The non-resource uses include such
important interests as navigation and overflight, scientific research
and the preservation of the ocean environment.
PAGENO="0566"
560
-2-
The view of my delegation on non-resoi.itce uses have been clearly
stated on a number of occasions. It is oui4 candid assessment that
there is no possibility for agreement on a breadth of the territorial
sea other than 12 nautical miles~ The United States and others have
have also made it clear that their vital interests require that
agreement on a 12-mile territorial sea be coupled with agreement on
free transit of straits used for international navigation and these
remain basic elements of our national policy which we will not
sacrifice. We have, however, made clear that we are prepared to
accommodate coastal State concerns regarding pollution and navigatien&
safety in straits and have made proposals to that effect in Subcommitt
II.
The views of my delegation on resource issues have also been
stated on a number of occasions. Unfortunately, some delegations
appear to have the impression that maritime countries in general, and
the United States in particular, can be expected to sacrifice in
these negotiations basic elements of their national policy on resource
This is not true. The reality is that every nation represented
here h~s basic interests in both resource and non-resource uses that
require accommodation.
Accordingly, we believe it is important to dispel any possible
misconceptions that my government would agree to a monopoly by an
international operating agency over deep seabed exploitation or to
any type of economic zone that does not accomodate basic United
States interests with respect to resources as well as navigation. I
would like to amplify this point with a few remarks on some of these
basic elements.
Coastal Resources Generaliy
Mr. Chairman, in order to achieve agreement, we are prepared to
agree to broad coastal State econcmic jurisdiction in adjacent
watera and seabed areas beyond the territorial sea as part of an
overall law of the sea settlement. However, the jurisdiction of
the coastal State to manage the resources in these areas must be
tempered by international standards which will offer reasonable
prospects that the interests of other States and the international
community will be protected. It is essential that coastal State
jurisdiction over fisheries and over the mineral resources of the
continental margins be subject to international standards and
compulsory settlement of disputes.
Seabed Resources-- Coastal Areas
We can accept virtually complete coastal State resource
management jurisdiction over resources in adjacent seabed areas if
this jurisdiction is subject to international treaty limitations in
five respects:
1. International treaty standards to prevent unreasonable inter
ference with other uses of the ocean. A settlement based on combining
coastal State resource management jurisdiction with protection of
non-resource uses can only be effective if the different uses are
accomodated. This requires internationally agreed standards pursuant
to which the coastal State will ensure, subject to compulsory dispute
settlement iH lea~diiable interference with navigatior
overflight and other uses.
2. International treaty standards to protect the ocean from
pollution. As a coastal State, we do not wish to suffer polI~Ei~n of
hh~oceans from seabed activities anywhere. We consider it basic
that minimum internationally agreed pollution standards apply even
to areas in which the coastal State enjoys resource jurisdiction.
3. International treaty standards to protect the integri~y of
investment. When a coastal State permits forelJghThatfonals to n~i~i
ih~ts in areas under its resource management jurisdiction, the
~grity of suc1~ investments should be protected by the treaty. Secur
ity of tenure and a stable investment climate should attract foreign
Investment and technology to areas managed by developing coastal
States. Without such protection in the treaty, investment may well
go elsewhere.
PAGENO="0567"
561
-3-
4. Sharing of revenues for International community p~poses.
We continue to believe that~the equitable distribution of benefits
from the seabeds can best be assured if treaty standards provide for
sharing some of the revenues from continental margin minerals with
the irternational community, particularly for the benefit of developing
countries. Coastal States in a particular region should not bear
the entire burden of assuring equitable treatment for the landlocked
and shelf-locked States in that region, nor should they bear the
entire burden for States with narrow shelves and little petroleum
potential off their coast. The problem is ixfl~ernational and the best
solution would be international. We repeat this offer as part of
an overall settlement despite our conclusion from previous exploitation
patter~~that a significant portion of the total international
revenues will come from the continental margin off the United States
in early years. We are concerned abut the opposition to this
idea implicit in the position of tho~ advocating an exclusive
economic zone.
5. Co uls~~y settlement of disputes. International standards
such as t ose ici9Uid are necessary to protect certain non-
coastal and international interests, and thus render agreement
possible. Accordingly, effective assurances that the standards
will be observed is a key element in achieving agreement. Adequate
assurance can only be provided by an impartial procedure for the
settlement of disputes. These disputes, in the view of my delegation,
must be settled ultimately by the decision of a third party. For
us then the principle of compulsory dispute settlement is essential.
Seabed Resources -- Deep Seabeds
In meny respects, the deep seabeds present the newest and most
exciting aspects of our work. Although we cannot agree that inter-
national law prohibits the exploitation of deep seabed resources in
accordance with high seas principles, we fully share the desire to
establish an equitable, internationally agreed, regime for the area
and its resources as the common heritage of mankind. The sooner
we do so, the earlier we will terminate essentially divisive and
counter-productive disputes over the present legal status of deep
seabed exploitation as well as over the position taken by some
delegations, with which we have consistently disagreed, that common
heritage means the common property of mankind.
Our interest in the prompt establishment and effectiveness of an
equitable international regime for the seabed is demonstrated both
by the comprehensive draft treaty we presented two years ago and
by President Nixon's statement that any prior exploitation of the
deep seabed area must be "subject to the international regime to be
established."
The basic interests we seek to protect in an international
seabed regime are reflected in the five points to which I refdrred
earlier, coupled with our proposal for international machinery to
authorize and regulate exploration and use of the resources of the
area. An effective and equitable regime must protect not only the
interests of the developing countries but also those of the developed
countries by establishing reasonable and secure investment conditions
for their nationals who will invest their capital and technology in
the deep seabeds. In order to provide the necessary protections for
all nations with important interests in the area, it is also
necessary to establish a system of decision making which takes this
into account and provides for compulsory settlement of disputes. We
do not regard these objectives as inconsistent with the desire of
other countries for equitable participation in deep seabed exploita-
tion and its benefits.
Finally, Mr. Chairman, it is our view that the benefits to be
derived from the operation of this new treaty should only be made
available to those nations who are prepared to ratify or accede to it.
Those benefits, as all of us in this room know, are manifold. New
technology for mining in the seabeds is rapidly opening up new
prospects for important mineral supplies. As development proceeds,
vast new 14eee~will emerge as man begins the eerious exploration of
the ocean and fits resources. Mining in the oceans will generate
U,
I.~ ~
PAGENO="0568"
562
-4-
revenues as well. All these benefits, Mr. Chairman, should be shared.
We are capable in this Committee of making the decisions which will
enable these benefits to be realized, but we must get about the busi-
ness of making these decisions promptly or we will be preaided from
doing so.
Fisheries
With respect to fisheries, our basic irterest is to assure rational.
use and conservation of all fish stocks. To achieve this~ we believe
coastal States should have substantial jurisdiction over all
fisheries, including anadromous species, except where the migratory
~abits of certain fish stocks dictate another system--for example,
~ne highly migratory tuna should be managed pursuant to multilateral
rrangements. In coastal areas jurisdiction should be limited by
~uch international standards as would assure coMervation and full
itilization of the living resources.
It is widely understood that the United States shares the
interests of many other coastal States. However, the fact that over
80% of our fisheries are off our own coast does not mean that we are
prepared to abandon the remaining 20%--the distant-water segment of
our industry. There are reasonable ways to accomodate the interests
of both coastal and distant-water fishing States and to assure the
~in& of special cooperation between States in a region that many
delegations have urged. We believe ti-at a solution of the fisheries
~iroblem should take into account the migratory habits of fish and the
uanner in which they are fished. Thus, we can support broad coastal
State jurisdiction over coastal and anadromous fisheries beyond the
territorial sea subject to international standards designed to endure
conservation, maximum utilization and equitable allocation of
fisheries, with compulsory dispute settlement, but with international
regulation of highly migratory species such as tuna.
Our detailed proposals on this matter have been elaborated
further in Subcommittee II, The proposals reflect our continuing
belief that both sound conservation and rational utilization must
take into account the biology and distribution of living marine
resources. But they also respond to the expressed desire of
coastal States for direct regulatory authority and preferential. rights
over coastal and anadromous fisheries. However, it is fundamental
t1~ fish stocks must be conserved, and that there must be maximum
utilization of stocks not fully utilized by local fishermen. Moreover,
account should be taken of traditional fishing activities of other
nations, as well as the desire of States to enter into special
arrangements with their neighbors. We remain convinced that
highly migratory oceanic species can only be properly regulated
through international organizations~ It is our hope that our new
proposals will move the Committee closer to a solution to the
complex fisheries problems involved.
Conclusion
Mr. Chairman, I would like to conclude my statement with some
general comments. While my delegation must confess its disappointment
in our progress to date, we must also point out those areas where we
believe important progress has been made.
Looked at from a broad perspective, we see various signs that
make us cautiously optimistic. It is clear that the negotiating
positions of various States are nez substantially closer together than
their juridical positions. This is particularly the case with
respect to the width of the territorial sea and coastal State
jurisdiction over resources beyond the territorial sea.
Mr. Chairman, I welcomed the interesting reports of the disting-
uished representatives of Venezuela and Kenya on the results of the
Santo Domingo Conference of Carribéma States and the Yaounde Seminar
of Africati countries. While~ppleiiding their contribution to the
continuing development of a generally acceptable agreement, I should
point out they do not fully take into account a number of the factors
I have discussed earlier in this statement. I note in particular
the absence of any reference to internt~tional standexds and dispute
PAGENO="0569"
563
-5..
eettlement procedures applicable to coastal State resource Juris-
diction and of any distinction in the treatment of living resources
based on their migratory characteristics. However, these documents
certaitily provide a starting point for' serious negotiations and, if
harmonized with my own delegation!e statement today, there might
be a potential for merging together in a new tveaty what are other-
wise widely disparate positions. Perh'ips then the very beginnings of
an outline might emerge which could become the basis for a successful
1973 Conference. I hope so, Mr. Chairman.
Another source of hope is the work of Subcommittee I. We have
given priority to the negotiation of the regime and we are beginning
to see not only concrete results but an open and constructive ne-
gotiating atmosphere. The distinguished representative of the
Cameroon, Chairman of the First Subcommittee, and your distinguished
colleague from Sri Lanka, Chairman of the Working Group, have
through their tireless efforts helped break new ground in this
Committee which makes us believe that where there is political will,
our negotiations will bear fruit.
This new political will, however, must infuse our work in the
other subcommittees as well and it must occur now. The "list"
must be disposed of ard work begun on the drafting of articles. We
are confident, Mr. Chairman, that once such work begins it will
move rapidly and a successful conference will be within our grasp.
But if we wait longer, Mr. Chairman, we wonder if a successful
conference will ever be possible. Let us all begin to work now to
avoid such a tragedy.
Finally in closing, Mr. Chairman, I want to express to you
the sincere appreciation of my delegation for your wi~dom, guidance
and firm leadership through what we hope will be one of the most
important and successful negotiations to have taken place in our
times. We wish you continued success at this endeavor and will
give you all our support.
Thank you, Mr. Chairman.
PAGENO="0570"
564
COLLEGE OF LAW
SYRACUSE UNIVERSITY
October 16, 1973
Hon. Lee Metcalf, Chairman
Subcommittee on Miner~.1s, Materials and Fuels
Committee on Interier and Insular Affairs
United States Senate
Washington, D.C. 20510
Dear Senator Metcalf:
Many thanks for sending me a copy of your letter of October 1, 1973 to Ambassador
John R. Stevenson, together with a copy of the list of questions you sent him
of the same date.
There are two further questions which I feel might well be asked in order to
test the effectiveness of the State Department's position on "creeping jur-.
isdiction" and the protection of American rights generally. (Your question
#10 touches on one aspect of this issue.)
These are intended to help discover what is the ultimate and irreducible meaning
and scope of Ambassador Stevenson's use of the term, in his testimony of Septem-
ber 19, 1973, "compulsory dispute settlement machinery".
I regret very much that I have not had an opportunity, nor the encouragement, of
sending.you the enclosed, for what it may be worth, at an earlier and presumably
moreconvenient date,so that it could have been incorporated in the list of ques-
tions you sent to Ambassador Stevenson on October 1, 1973.
Enclosed herewith is a formulation of my suggested questions.
Also enclosed, with my compliments and best regards, is a reprint, from this
year's Spring issue of the Virginia Journal of International La~ of my article
"A Modest Proposal for Preventing International Law from Being aBwrthen to the
International Community and to Law Teachers." Some of my comments on recent
trends in the law of the sea may be, I hope, of interest. They are on pages
335-337.
Most respectfully,
L.F.E. Goldie
Professor of Law
Director International Legal
Studies Program
LFEG :mt
encs.
P.S. I should be most grateful if you would make the enclosed part of the record
of your future hearing on 5. 1134.
ERN~~T I. WHITE HALL SYRACUSE. N.Y. 13210 315.47C.IO4L I EXT. 3326
r.
PAGENO="0571"
565
QUESTIONS ON `COMPULSORY DISPUTE SETTENENT MACHINERY"
,t. The State Department's position, as reflected in the testimony submitted
before the Subcossnittee on Minerals, Materials, and Fuels of the Senate Committee
on Interior and Insular Affairs on September 19, 1973, is that the United States
may safely make many consessions to groups of countries which have demanded
legal change and the creation of new institutions contrary to the interests
States
and values of the Unitedf, provided that the new agreements contain "an effective
dispute settlement mechanism". (Examples of the legal changes and political
institutions being demanded by many countries,the creation of which are inimical
to United States interests,are the currently supported maritime law innovation
of the "patrimonial" or "economic" zone of two hundred sea-miles in breadth from
the coasts of the claimant states and an exclusive "enterprise" or "operating"
authority with competence to enter into joint ventures and consortia with pri-
vate enterprises.),
Note should be taken of the well-known fact that the Soviet bloc of countries,
Communist China and Communist regimes in South-East Asia, and many states of the
,,,ocLd.
developing/reject completely the compulsory judicial or arbitral settement of
disputes. If the only machinery then available were compulsory "mediation"
(which implies a "legislative" or "legal: change" approach) or compulsory "fact
finding",without any imposition of an obligation to perform a prescribed legal
duty, could the Department of State advise the Senate that the rights and
interests of the United States were adequately protected, and that the Senate
could, with a clear conscience, give its advice and consent to the Yatification
of a convention which recognized the "patrimonial" or "economic" sea, or estab-
lished an operating or enterprise seabeds authority with a monopoly of prospect-
ing for, winning and marketing seabed hard minerials even when it was author-
ized to enter into joint enterprises and consortia with private business, when
PAGENO="0572"
566
the only protection afforded would be that of "compulsory" mediation or fact
fisading?
--oOo--
II. The United States Senate has, in the past, frequently followed a policy of
attaching a "Connolly Reservation" as a requirement of its advi~e and consent
to the United States' accessions to multilateral conventions creating com-
pulsory machinery of judicial settlement. The first example was this country's
accession to the compulsory jurisdiction provisions of Article 36 of the Statute
of the International Court of ~ustice, another is to be found in its reservations
to the judicial settlement protocol of the 1958 United Nations Conference on the
Law of the Sea at Geneva. Since the International Court of Justice has held
that a similar reservation could operate reciprocally against the applicant country,
could the Department of State, consistently with its position of insisting
that the obligatory nature of the settlement of disputes is America's bulwark,
counsel the Senate to give its advice and consent to the ratification of an
international convention recognizing the "patrimonial" or "economic" sea as a
valid claim in international law or vesting monopoly rights in a deep seabed op-
erating or enterprise authority, in the event that the Senate should deem it
necessary to append a "Connally Reservation" type of condition to the United
States' accession to the provisions setting up the "compulsory dispute set-
tlement machinery" envisaged in Ambassador Stevenson's testimony of September
19, 1973?
/ f( ~
/y ~ ~i7~
PAGENO="0573"
567
~ ~: /~h~.'
iv.~6t :4'?'4~id 1~r~ ~ 7 "~
~ ~
V]i~GINIA JOURNAL
OF
INTERNATIONAL LAW
A Quarterly Review of Public and Private Law
ARTICLES
TREATMENT UNDER THE FOREIGN DIRECT INVESTMENT REGULATIONS
OF THE ACQUISITION OF A FOREIGN BUSINESS ENTERPRISE
John Ellicott and Barbara M. Rossotti
FOSTERING EXPORT TRADE BY SMALL BUSINESS
James B. Pearson
COMMENTS
THE LEGAL REGIME OF THE DEEP SEABED PENDING MULTINATIONAL
AGREEMENT
John G. Laylin
A MODEST PROPOSAL FOR PREVENTING INTERNATIONAL LAW FROM
BEING A BURTHEN TO THE INTERNATIONAL COMMUNITY AND
TO LAW TEACHERS
L. F. E. Goldie
NOTES
THE AUTHORIZATION OF INTERVENTION IN A STATE COMMITTING
GROSS VIOLATIONS OF HUMAN RIGHTS
BOOK REVIEWS
THE AUSTRIAN-GERMAN ARBITAL TRIBUNAL. IGNAZ SEIDL-HOHEN-
VELDREN
Peter E. Herzog
HARMONIZATION OF EUROPEAN COMPANY LAWS. ERIC STEIN
Thomas Schoenbaum
THE EVENTS IN EAST PAKISTAN, 1971: A LEGAL STUDY. THE INTER-
NATIONAL COMMISSION OF JURISTS
Syed Hussain
Digest of International Law Cases In United States Courts,
1972
VOLUME 13 SPRING 1973 NUMBER 3
PAGENO="0574"
568
A Modest Proposal for Preventing
International Law from Being A Burthen
to the International Community and
to Law Teachers*
L. F. E. GOLDIE **
One evening recently I was dutifully perusing a new book on inter-
national law-one of a seemingly never-ending flood. Like all of its
fellows, it aimed to give us a fresh perspective on the subject. That
did not preserve it from substituting legal history by a statement of
the standard European (and American) international lawyers' ver-
sion of the Solar Myth, which tells us that the present order of sover-
eign states was born out of the ravishment of Christendom by the
Renaissance and the Reformation. As I nodded over this repetition of
inaccuracy, I dreamt I was transported in time and place to the Dean-
ery of Saint Patrick's Cathedral in Dublin in the Age of Reason. An
imposing figure resembling portraits of Dr. Jonathan Swift was sit-
ting at a writing table completing a manuscript. He put down his
quill. Scattering sand over the last sheet, he handed me what he had
been writing. He accompanied his gesture with the statement:
I have been vouchsafed a vision of your troubled time and
your troubled profession. I have therefore set out in this
manuscript some thoughts which I have derived from the
essay I wrote to bring the plight of the children of Ireland
to the attention of the charity which we are told all mankind
possesses. It was a wonderment to me that there were some
grave men of affairs who thought my cry from the heart
offered an excellent project for enhancing the prosperity of
butchers and innkeepers, and so began investigating how
theflesh of young Irish children could be rendered a market-
* able commodity. Be prepared, then, for there are those of
your fellows who may well deem these few words to be a
practical and meritorious proposal offered in all seriousness
and ripe for implementation.1
* With acknowledgments to Dean Jonathan Swift's essay, A Modest Proposal
for Preventing the Children of Poor People from being a Burthen to their
Parents or the Country, and for Making them Beneficial to the Publick
(1729) (Footnotes have been added, with apologies to Dean Jonathan
Swift, by L.F.E. Goldie in order to render the Dean's animadversions more
congruent with twentieth-century canons of style and hence more readable
to the serious).
** Professor of Law and Director of the International Legal Studies Program,
Syracuse University College of Law.
1. This melancholy experience of gravitas has a more modern parallel. When
George Orwell submitted the manuscript of his book Animal Farm (which
was destined to be both an influential statement and a best seller) to the
PAGENO="0575"
569
332 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 13:3
Having listened to these observations with which Dr. Jonathan
Swift, Dean of St. Patrick's Cathedral, Dublin, 1713-1745, for it
must have been he, accompanied the gift of his manuscript, I awoke.
Miraculously, I still held the paper in my hand. This I now submit
for public scrutiny with all due deference and acknowledgment of the
source of its inspiration. It is as follows:
* * *
It is a melancholy object to those who teach international law to
learn from textbooks, hear in the classrooms, read in student essays,
glean from newspaper editorials and television commentators, the
apparently universal belief that the function of the law of nations is
merely to limit the freedom of state action, or to dress up the naked-
ness of power in some conventionally decent apparel. On all hands we
learn that, like Mr. Justice Holmes' bad man, states weigh the ad-
vantages of breaching international law against the disadvantages of
inviting self-justificatory resort to it by their rivals who may thereby
engage in cynical reprisals against those breaches and so enhance
their power at the expense of the: lawbreakers. Such a belief as this
would agree, surely, with Master Hobbes of Malmsbury that between
states there is no true legal order, but war which consists not neces-
sarily in the act of fighting, "but in a tract of time wherein the will
to contend by battle is sufficiently known." 2 There is, however, one
difference. Unlike Hobbes' theory:, the modern point of view accepts
international law as a cloak of decency which hides the reality of con-
tinuous contention and hostility from many of the human race or, at
most, like a prancing courtier, justifies the power of the stronger.
The philosophy of international relations which informs this view
accepts as true that the interest, of states is to employ all their re-
sources to seek and hold power, that is, to dominate their neighbors
or to save themselves from subjection. This point of view discounts
any belief that the art of statecraft is to make all necessary and
honest endeavors to protect citizens and promote international peace
and justice. Not only do many influential statesmen and publicists
appraise the international order on the basis of rejecting interna-
tional law's becoming an accepted instrument for achieving those
purposes, but also their preference appears to be that the law of na-
tions should be debased into a means of inflaming the sanctimonious
or the passionate self-righteousness of peoples. For I am assured by a
very knowing teacher of international relations, who is a respected
acquaintance, that international law is only consulted when state
policy has been decided upon, and then merely to determine the
plausibility of a position. I have no doubt that it serves similarly to
assist in decking out the nakedness of other states' espičgleries in
Dial Press in 1944, it was returned. The note giving the reason for rejec-
tion stated that "it was impossible to sell animal stories in the U.S.A."
See Letter to George Moore, 4 THE COLLECTED ESSAYS, JOURNALISM AND
LETTERS OF GEORGE ORwELL 109-10 (5. Orwell & I. Angus eds. 1968).
2. T. HOBBES, LEVIATHAN 82 (Oakeshott ed. 1955).
PAGENO="0576"
570
1973] A MODEST PROPOSAL 333
some kind of decent array. Hence there are those who propagate the
tale that states' representatives are forced to join in a race for sur-
vival through chicanery, violence, self-justification, and the sale of the
ideals they hold most dear. This prodigious perversion of human
values and the helplessness of those who believe that international
law should implement an order geared towards peace and the best
utilization of resources, rather than patiently suffer the stretching
of legalisms to justify states' unmeritorious self-righteousness, may
be counted additional grievances against the law of nations as it now
would appear to be practiced and taught.
I shall now therefore humbly propose my own thoughts which I
hope will not be misunderstood nor be liable to the least objection.
We must now question the utility of international law if it has
failed, as it would appear to have done, to become acknowledged as a
means of affirmatively structuring cooperation between states for the
achievement of common ends, the management of conflicts, the cuing
of states' intentions and expectations, and of the control of the social
and material environment for the betterment of all. Faced by the
danger of being deceived by reliance on such a broken reed, it now
appears to be in the general interest of us all to combine resolutely
and aim to save the human race from the deceptions international
law would appear to engender, and to banish this dangerous ingredient
from our political affairs. We should resolutely deny its existence,
equally in the classroom as in governmental affairs. We should purge
it from our minds when thinking of a better world. This surgery
would have the beneficial effect of cutting the ground from under those
who invoke the law of nations to justify wrongdoing or unscrupu-
lously calculate the results of infringing it as nothing more than an
element in a cost-benefit analysis without any long-term view of the
harm to the international legal order such a transactional approach
may entail.
The effect of removing their cloaks of self-righteousness from states
might well be to thrust them into negotiating with one another in good
faith in order to achieve a peaceful order, for there would be no illu-
sions or fictions standing protectively between them and the naked
anarchy beloved by the philosophers of rower and feared b~ all other
kinds of men. But my purpose is not simply to remove a camouflage
which merely protects the spokesmen for a Machiavellian view of the
international order from general obloquy; it is also to provide a
touchstone for seeing other philosophies of international relations
without their pretended ornaments and coverings. Thus we may
examine the further advantages of declaring the abolition of inter-
national law.
First, there are those great optimists who believe, like the Abbe
Siéyčs, that the drafting of legal documents solves all problems.3
3. This presentation, in charity, leaves out of account another employment,
in international negotiations, of elaborately drawn projections. They can
be used to exhaust one's opponents by the exercise of subtle maneuvers in
PAGENO="0577"
571
334 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 13:3
These sciolists necessarily support a mechanical legal science and a
mechanical concept of the nature: of man. They propose projects of
ever-increasing complexity in order to eliminate the unpredictable,
contentious, and imprecise qualities of human life. They assume that
all disputes can be formulated in a clear dialectic and so admit of
their resolution by judicial decision, arbitration, or negotiation in the
light of reasoned analysis or subsumption under an objective cate-
gory of international law. Thus they assume as given that which is to
be achieved, namely, a mutual respect among states for the logically
applicable procedure, rule or institution of international law. Should
my modest proposal be accepted, they would become disembarrassed
of the bases of their self-deception and of the circuity of their logic,
as we all would be of the skepticism tow~trds international law as a
whole which they engender in the breasts of many observers.
Second, as we pierce the veil of time and view the law of nations as
it is administered in the second half of the twentieth century, we must
sadly question a system of law which not only permits, but, so some
aver, may be invoked so as to command its own avoidance.4 According
to those writers, ships may fly any flag of their owners' choosing,
provided it is the glorious oriflamme of a state (any state), no matter
how insignificant that polity may be. When Aristotle Onassis chose
the Panamanian flag for his fleet which in 1954 decimated the whales
of the South Pacific, contrary to the International Whaling Conven-
tion, he saw his chosen ensign merely as a protective symbol of law
avoidance.5 That sordid episode had an unforeseen consequence. It
provided Chile, Ecuador and Peru with a praiseworthy vehicle with
which to emphasize the maritime claims they had agreed to assert in
1952 whereby their sovereignty was to extend "at least" 200 sea miles
from their shores. Concern for: whales may have recently diminished.
Now there is a popular demand to reduce, if not eliminate, the oil
pollution devastation of the oceans which is now going on apace. For
we are calmly but pointedly told by a very reliable source that upward
of one million metric tons of oil were spilled into the ocean in the year
1969. This figure, I should add, does not include oil from refineries,
nor from natural submarine seepages, nor from oil spills from rigs
and drilling activities such as those in Santa Barbara and the Gulf of
Mexico. Hence, we should not be surprised to find that the flag which
flies over the world's largest fleet of cargo ships, symbolizes a state
haggling over words, clauses and paragraphs during conferences. Thus,
they offer a more polite and conversational form of preventing an un-
desired proposal from becoming effective than would a blunt and brutal
veto or even an obstinately defended negative position. For that reason it
may provide an even more effective means of blocking negotiations for a
change from the status quo.
4. A leading example of this widely-accepted prestigiation act is B. BOCZEK,
FLAGS OF CONVENIENCE: AN INTERNATIONAL LEGAL STUDY passim (1962).
See, for an uncovering thereof, Goldie, Book Review, 12 INT'L & COMP.
L.J. 991 (1963).
5. See A Man at War, FinanCial Times (London, Nov. 20, 1954).
23-317 0 - 73 - 37
PAGENO="0578"
572
1973] A MODEST PRoPoSAL 335
that is amongst those least likely to enforce measures intended to
limit, if not prevent, the oil pollution and devastation of the oceans.
Thus does a Greek merchant in the carrying trade seek to avoid the
cost of his responsibilities to the ocean environment and to us all. He
can wrap his ship in a flag of convenience. International law, some
will argue, will thereupon assure his ship an immunity from the laws
of all other states, including that of his own natitonality. As the state
of his chosen and convenient flag lacks the will or the capacity to en-
force these agreements,° that owner will thus effectively become im-
mune from regulation universally. Soon we all may be forced to follow
the advice which a Greek tanker owner is said to have given when
questioned about his ships polluting the oceans. "Build swimming
pools," he is reported to have said.7 If international law were abol-
ished, an alleged prohibition against states who are urgently seeking,
with justice, to prevent the pollution of their shores by oil would be
removed. This would, I dare assert, redound greatly to the general
advantage. -
Third, in the later years for which I am now writing, an argument
has been put abroad saying that international law provides a benign
environment, indeed the exactly appropriate environment, for the
burgeoning of a phenomenon in international maritime affairs often
designated "creeping jurisdiction." The many exponents of this theory
tell us that wherever a state enjoys exclusive rights for some purposes,
it tends to acquire further exclusive rights for other, perhaps all,
purposes, jeopardizing regional, international and community in-
terests in the freedom of the seas. The supporters of this theory thus
identify international law, rather than blame the pusillanimity of
governments and publicists, as occasioning the present failure of es-
pousals of the world community's interests in the freedom of the
seas. States' exclusive jurisdiction can only creep forward if the com-
munity interests withdraw before them. When a marshal of France
suggested to his officers that they observe and learn from the tactics
of a parrot as he advanced up the bar of his cage, he had no illusion
that such a "creeping advance" would be automatic. It depended upon
superiority of power and will. So it is with "creeping jurisdiction."
In the context of the international law of the sea, those whose inter-
est is in vindicating the freedom of the high seas are in sad disarray.
6. Thus a highly respected journal recently stated, in discussing the North
Sea and English Channel States' recent (1969) agreement attempting to
curb pollution practices in their adjacent waters:
If a foreign vessel is caught discharging oil in mid-Channel the
evidence is passed to the country where it is registered for legal
action to be taken. But a nation like Liberia, with the largest
tanker fleet in the world, simply does not have enough machinery
for enforcement.
The Channel: Playing Canute with Pollution, 239 THE ECONOMIST 77
(April 10, 1971). But see Plugging Some Leaks, 239 THE ECONOMIST 80
(May 8, 1971).
7. See 224 THE ECONOMIST 794 (Sept. 2, 1967).
PAGENO="0579"
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336 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 13:3
States who are determined to appropriate ever-increasing areas of
the volume of the oceans and their: beds and subsoil now are permitted
to wield superior will and strength. The failure of will on the part of
those whose interests lie with the freedom of the seas, not the present
legal environment, nurtures "creeping jurisdiction." This pusillanim-
ity has a further deleterious consequence. Believing that "creeping
jurisdiction" (like spinsters' fears about burglars under their beds)
can bring abhorrently irreversible situations into existence, some
governmental advisers close the doors of their reason against quite
acceptable proposals for protecting coastal zones from catastrophic
injuries. Instead of reasoning, they wave old fetishes about the law
of the sea before us all and wonder at our skepticism. So,.here again,
my modest proposal would remove alibis and excuses. It might even,
perhaps, induce some realistic thinking about the problem of allocating
to states what present technological advances may indicate as their
due, and of fully recognizing the due of the world community and
possibly even that of regional communities.
My animadversions on creeping jurisdiction now Jead me to com-
ment on a favorite and misleading platitude of the day. On all hands
people uncritically accept as true the lightsome remark that freedom
of the high seas serves the interests of the Great States and therefore
the restriction of that freedom must inevitably provide a vital lifeline
for the lesser and poorer nations. True it is all that states, great and
small, individually seek to increase, to the maximum degree, their own
exclusive uses of the common seas' resources. In such enterprises the
richer and more assertive might well be seen as benefiting more from
their common heritage than the poorer or more modest. In such a
free-for-all many states cause their jurisdictions to creep, and leap,
seaward in an enclosure movement. But I have yet to find the enclosure
of a manor's commons which profited its yeomanry. For I am told by
a worldly-wise London friend that all private Acts of Enclosure are
introduced into the Parliament by Members who are drawn from the
village squirearchy. These landed gentlemen carry through their bills
either on their own behalf or~ to assist friends placed in a similar
standing in the agricultural interests of their counties. Is the situa-
tion among nations so different? Like great magnates, great states
could live well upon abundant resources which a seaward enclosure
movement would add to their present wealth. Small states, by con-
trast, would, with only rare and perhaps bizarre exceptions, be en-
titled to more meagre patches of the commons. Lastly, landlocked
states would suffer the fates of cottagers who previously owned no
land of their own but could wring sustenance from the village com-
mon, but who, after an enclosure, become landless save for their little
garden plots, and so must find masters in order to stay alive and feed
their families.
Should the seas become enclosed, may not ships be forced to pay
tolls and transit fees along routes which formerly were free? And
may not fishermen become merely rent-paying tenants and licensees,
PAGENO="0580"
574
1973] A MODEST PROPOSAL 337
as if states held the divided fields of the formerly common oceans in
fee? The costs, which these tolls and rents would add to all commodi-
ties drawn from or moved across the sea, would inevitably fall, like
infamous excise taxes, most heavily upon the poorest and those least
likely to reap an equivalent benefit from being able to impose similar
charges in their turn. The smaller states would thus be excluded from
the major benefits of an enclosure of the oceans, but they would still
bear a disproportionate share of the higher costs and prices which
would result from the engrossment of the oceanic commons into the
exclusive patrimonies of coastal states.
Be these thoughts as they may, I am not so wedded to my proposal
that I would not gladly abandon it if some other expedient could be
found. This should be able, with equal directness, to remove self-de-
ceiving camouflages from those who would expound on international
law as a Machiavellian device or as a means of mechanical perfection.
Furthermore, it should urgently stress to the nations that peace be-
tween them depends on their actively devising the most just means
of giving to all access to the fruits of the oceans and of according
respect, recognition, and the right of full participation to all men.
Before another scheme is offered, however, I would desire its author
or authors to consider mature'y the following points. First, as things
now stand, statesmen's visions of international law have so misled
them that they have been unable to communicate their intentions ap-
propriately or to calculate those of the people with whom they are in
contention. This has led to disruptions of the international order and
the enhancement of danger to all of us. A new project should not re-
store the possibility of inadvertent self-deception and mutual mis-
understanding on the part of the leaders of nations. Second, by em-
phasing individual rights rather than focusing attention upon com-
monly sharable gains, international law has frequently supported
arguments for blocking necessary negotiations to establish managerial
regimes for improving and increasing the resources of rivers or of the
sea. It has justified the opponents of the settlement of disputes by
negotiation to rest intransigently on "their rights." An alternative
scheme should give greater room to the settlement of differences and
of achieving distributive justice by negotiation, or "bargaining in
good faith." 8 Third, each state seems to be permitted to denominate,
as the occasion arises, what supposed rules of international law bind
the governments with which it is in contention, and the rules from
which it is itself loosed. Hence the term "international law" may
merely conceal the legal order's want of a true legal content. It may,
indeed, give rise to a merely false security. Our projectors should bear
in mind that insecurity frankly faced is to be preferred over a false
8. For an argument that the International Court of Justice has a doctrine
somewhat analogous, in important particulars, to that now enshrined in
the American labor law doctrine of "good faith bargaining" as an inter-
national legal doctrine, see Goldie, The North Sea Continental Shelf Cases
-A Ray of Hope for the International Court, 16 N.Y.L. FORUM 325, 359-
67 (1971).
PAGENO="0581"
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338 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 13:3
security. Fourth, the development of international legal studies in the
law schools may attract students away from other offerings in the cur-
riculum. This has led a very eminent law teacher to foretell, in a para-
ble,9 the downfall of law schools through their faculties agreeing to
permit increases in their international law offerings, and a far less
eminent one to decry international legal studies as "reactionary." The
authors of alternatives to this proposal would serve their causes if
they were to give these comments due consideration, for pedagogical
support could weaken them, regardless of the actual merits of theii~
projects.
* * *
In laying the foregoing paragraphs before my colleagues, I must
profess the sincerity of my heart and say that I have nothing personal
to gain from the general dissemination of the Dean's modest proposal.
As I am a teacher of international law, it might, indeed, take the bread
from my own table, especially as I am past the age of readily learning
a new profession.
9. Prosser, The Decline and Fall of the Institut, 19 J. LEGAL ED. 41 (1966).
PAGENO="0582"
576
COLLEGE OF LAW
SYRACUSE UNIVERSITY
October 25, 1973 (~J
Hon. Lee Metcalf, Chairman
Subcommittee on Minerals, Materials and Fuels
Committee on Interior and Insular Affairs
United States Senate
Washington, D.C. 20510
Dear ~emator Metcalf:
Many thanks for your letter of October 8, 1973. Because I understand
that copies of Chairman Amerasingh~rerbatim speech (in contradistinction
to the brief paragraphs given to him in the Sunmary Record of the Sea-
beds Committee's closing session on August 24, 1973) are becoming very
scarce, I am enclosing herewith, with the greatest respect and good
wishes, a xerox copy of my own copy, which I was fortunate enough to
obtain.
In particular, I respectfully suggest, there may be passagas of interest
to you on pages 7 (fifth full paragraph and the succeeding one), 8, 12
(middle paragraph), and 13.
I sincerely hope that I have not stepped out of line in writing this
letter and in sending you the enclosed. Nothing could be further from
my intentions.
Most respectfully,
-,
L.F.E. Goldie
Professor of Law
Director, Interns tiona 1
Legal Studies Program
LFEG/mt
enc.
PAGENO="0583"
577.
CO~Th1ITI~ 011 THE PE&CEP'IJL U~S OF THE SEd-BED Alfl) THE
OOH&N FLOOR Bi~YO~fl) `THE LLS~ITS OF NATIONAL
J~JflISDICTIOl1
STATEEENTBYT}1D CHAIIP1P~1,~ MR. H.R. AlH~?ASflTGiM~ OF Silt L~MIIA, AT THE
I~iOiLc~~'~9fl
Distinguished delegates,
The curtain viii in a fey minut3s, I , be rung down on a performance
that has had a run which has only been e±celled by the famous musical
My Pair Lady and the even more famous thriller, Agatha Christie's Mouse Trap.
I do not for a moment imply that the nuw Law of the Ssa which is to be
~formulated is comparable to a Mouse Trap. I hope ~you will bear with me if
I look back over the last six yaars and if in doing so I repeat much that
already appears in the Report of the distinguished Rapporteur of the Committee
which we. have, adopted today.
* My only excuse is that any drama must conform to the Aristotelian
principle or norm that it must have a beginning, a middle and an end. To
omit any of these components is to destroy the whole.
It is six years since the General Assembly, aoting on the admirable and
imaginative initiative of the distinguishud ~
Ambassador Pardo, adopted resolution 2340 (XXII) which entrustedthe study
of the question o~ the reservation exclusively for peaceful purposas of the
sea-bed. and the ocean floor, and the subsoil thereof, undarlying the high seas
beyond the limits of present national juri.sdiotion, and the use of theip
resources in the interests of mankind to an Ad Hoc Committee of 35 members.
* The study was to covar three aspects~
(a) a survey of the past and present activities of the United Nations,
the specialized agencies, the International Atomic Rhsr~r Agency
* and other intergovernmental bodies w5~h regard to the sea-bed
and the ocean floor and of existing agreements concerning
* these areas~ . .
(b) the scientific, technical, economic, legal and other aspects
of the item;
(o) the practical means of promoting international eo-operaticn
in the exploi-ation, conservation and use of the sea-bed and
the ocean floor, and the subsoil thereof, as contemplated
in the title of the item and of their resources.
S /*,*
PAGENO="0584"
5.8
At its 23rd session in 1963, the General Asserebly, after considering
the Ad Hoc Committee's report, established a Committee on the Peaceful Uses
of the Sea-bed and the Ccean Floor Beyond the Limits of lTational Jurisdiction
composed of 42 States (resolution 2467 A (xxiii)).
* The mandate of this Committee differed ~rom that of the Ad Hoc Committee
both in scope and purjose. It was to wake m~ecommendations on:
* (a) the elaboration of the legal principles and norms which would
promote international co-operation in the exploration and use
of the sea-bed and the ocean floo~', and the subsoil thereof,
* beyond the limits of national jurisdiction, and ensure the
exploitation of their resources for the benefit of mankind and
the economic and ot1~er reçuirementz which such a régime should
satisfy in order to meet the interests of humanity as a whole;
(b) the ways and means of promoting the exploitation arid use
of the resources of this area, and of international co-operation
- to that end taking into account the foreseeable develorment of
technology and the economic implications of such exploitation and
- bearing in mind.the fact that such exploitation sbo~ild benefit
mankind as a whole;
(c) the intensification of international co-operation and the
stimulation of the exchange and the widest possible dissemination
of scientific icaomrlodge on the subject;
* (a) measures of co-operation to he ado~ted by the international
community in order to prevent the marine pollution which may
result from the exploration and exploitation of the resources
of the area.
The Committee was also reqnested to study within the context of the title
of the item and taking into account the studies and international negotiations
being undertaken in the field of disarmament, the reservation exclusively
for peaceful purpozes of the sca-bed and the ocean floor without prejudice
to the limits which may be agreed upon in this respect and make recoamnenda-
tions on this aspect of the cuestion as well to the General Assembly.
At its 24th session the General Assembly, realizing that the problems
relating to the high seas, territorial waters, contiguous zcnem, the
continental shelf, the supcrjacent waters and the sea-bed and the ocean
I-...
PAGENO="0585"
579
floor beyond the limits of national jurisdiction wore closely linked together,
adopted a resolution - 2574 (xxni) - in part A of which it requested the
Seorctar~o-General to ascertain the views of Macfoci' States on the desirability
of convenAng at an early date a conference on the law of the sea to review
those aspects of the law of the sea to which I have just referred, as well
as fishing and conservation of the living resources of the high seas,
particularly in order to arrive at a clear, precise and internationally
accepted definition of the area of the sea-bed and the ocean floor which
lies beyond the limits of national jurisdiction, in the light of the inter-
national régime to be established for that area.
Under part B of the resolution, the General Assembly requested the
Cotanittes to expedite its work of prepariny a comprehensive and balanced
statement of' arinciples designed to promote international co-eperaticn in
the exploration and use of the sea-bed and the ocean floor, and the subsoil
thereof, beyond the limits of national jurisdiction and ensure the exploitation
of their resources for the `benefit of manhind, irrespective of the geographical
locati on of States, taking into account the special interests and needs of
the developing countries, whether land-locked or coastul.
The Committee was also requested to formulate recommendations regarding
the eooncmic and technical conditions and, the rules for the explcitation
of the resources of this area in the context of the régime to be set up.
In part C of resolution 2574 (Dciv), the General Assembly while noting
* the study on international machinery p~epareC1 by the Secretary-General and
which was annexed to the Corneiit'toe's roport, requected the Secretary-General
to prepare a further study on various types of international machinery,
particularly a study covering in depth the status, str~icture, functions and
powers of an international machinery, having juris~iction over the peaceful
uses ŕf the sea-bed and the ocean floor and the subsoil thereof, beyond the
limits of national jurisdiction, including the power to regulate, co-ordinate,
supers-ise and control all activities relating to the exploration and exploitation
of their resources for the benefit of mankind as a whole irrespective of the
geographical locations of States, taking into account the special interest
and needs of the developing countries whather land-lock~d or coastal.
The Secretary-General's Report was to be submitted to the Committee on the
Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National
Jurisdiction fo~ consideration during one of its sessions in 1970.
PAGENO="0586"
580
N of ~he r oJ~Lc~ ~he 5~neral sen~iy cleolaref tha~
pending the establishment of the proposed internaioieal rd~ime,
(a) States and persons, physical or juridical, are bound to
refrain frbn all activities of exploitation of the
resources of the area of the sea-bed and ocean floor,
and the subsoil thereof, beyond. -the limits of national
jurisdiction;
(b) No claim to any part of that area or its resources shall
be recognized.. -
- This came to `so Imeowa as the moratorium resolution. In stating that
this resolution wa.s adopted I do not imply in the least that it was
imanimously adoptod. -
At its 25th session the General Assembly adopted, on the recommendation
of the Committee,: a Declaration of Principles Governing the Sea-Bed and
-the Ooean Floor, and the Subsoil Thereof, beyond the Limits of National
Jurisdiction. This represents the principal landmark in the work of the
Committee during the last cix years (resolution 2749 xxv)). At -the same
session, its 25th Anniversary session, the General Assembly by
resolution 2750 C (~~~i) enlarged the membership of the Committee to 86 and
made significant changes in its mandate. It decided to convene in 1973 a
conference on the law of the sea which would deal with the establishment
of an equitable international rtlgimo including an international machinery
for the area and the resourcee of the sea-bed and the ocean floor, and, the
subsoil thereof, beyond the limits of national jurisdiction, a precise
definition of the area and a broad- range of related issues including those
- concerning the rdgimss of the biph seas, the continental shelf, the territorial
se~ (including the question of its breadth and, the question of international
straits) end. contiguous zone, fishing and corisexvaticn of the living resourcos
of the high seas (incluiing the question of the preferential rights of
coastal States), the preservation of the marine environment (inducing,
inter alia, the prevention of pollution) and scientific research. The
enlarged Committee was requested to prepare for the conference on the law
of the sea: -
I...
PAGENO="0587"
581
(i) draft treaty articles embodying the international régime -
including an intoniational machinery - for the area and the
- resources of the soa-bed and the ocean floor, and the subsoil
* thereof, beyond the limits of national juriscliotion, taking
into account the e~uitab1o sharing by all States in the benefits
to be derived therefrom, bearing iii mind the special interests
- and needs of developing countries, whether coastal or land-locked,
on the basis of the Declaration of Principles Governing the Sea-Bed
* ~id the Ocean Floor, and the Subsoil Thereof, beyond the Limits
of National Jurisdiction, and
(ii) a comprehensive list of subjects and issues relating to the
* law of the sea referred to e~rlier, which should be dealt
with by the conference and draft articles on such subjects and issues.
The Committee was thus transforreeci into a preparatory Committee for the
Third. United Nations Conference on the Law of the. Sea.
* At its 26th session the General Assembly by resolution 2881 ()GUJI)
renewed the Committee's mandate and added to its membership the People's
Republic of China and four other mambesu.
At its 27th session the General Assembly by resolution 3029 ~S~VIi)
reaffirmed the Committee's mandate and reqnested it to hold two sessions in
1973 with a view to completing its pre~aratory work and to submit a report
with recommendations to the General Assembly at its 28th session and, in the
light of the decision taken under paragraph 5 of that same resolution, to the
Conference. Under raragraph 5, the General Assembly decided to review at its
28th session the pro~grose of the preparatory worh of the Committee and, if
nece~sary, to take meaeures to facilitate completion of the substantive work
of the Conference maci any other action, it may deem appropriate. In paragraph 3
of the resolution the General Assem~ly~ requested the Secre-~ary-General to convene
the first session of the Third United Nations Conference on the Law of the Sea
in New York for a period of aPproximately two weeks in November and Incember 1973,
for the purpose of dealing with organizational matters, including the eloct'ion
of offioers, the adoption of the agenda and the rules of procedure of the
Conference, the establishment of subsidiary organs and the allOcation of
work to these organs. . *. . * * *
I...
PAGENO="0588"
582
In paragraph 4 of the resolution the Assembly decided to convene the
second session of the Conference for tho purpose of dealing with substantive
work, at Santiago, Chile, for a period of eight ~;eehs in dpril and Nay 1974
and such subsequent sessions, if necessary, as may be decided by the Conforonce
and approved by the General Assembly, bearing in mind that the Government
of Austria had offered Vienna as a site for the Conference for the succeeding
year.
In paragraph 6 of the sane resolution the General Assembly authorized
the Secretary-General, in consultation with the Chairman of the Committee,
to make such arrangements as may be necessary for the efficient organization
and administration of the Conference and the Committee, utilizing to the
fullest extent possible the resources of staff at his disposal. In paragraph 7
of the resolution the General Assembly decided to consider as a matter of
priority at its 26th session any farther matters requiring decision in
connexion with. the Conference, including the participation of States in
the Conference.
Towards the end of the Spring Session this year, the Committee requested
the Chairmen to hold informal consultations with the geographical groups end]
individual members, as necessary, regarding crganizational matters concerning
the Conference, including the rules of procedure of the Conference. The
intention was to secure as large a measure of agreement as possible on matters
of orgc.nization and procedure so as to facilitate the work of the inaugural
session. These informal consultations were started by the Chairman in
~ow Yor~: towards the conclusion of the Spring Session and were continued d~iring
the present session.
* ~he Chairman also conducted informal consultations? during this session,
within a consultative group comprising contact groups of the various regional
groups and others in an attempt to identify the major issues and to narrow
the differences that existed within the Committee. Although this exchange of
views on mattcrs of substance was more enlightening than fruitful in the sense
of positive results, it cannot be claimed that anything concrete was achieved.
As regards the conmultat~ons on organization, they served a valuable purpose
as, for the first tine, i'oprosentatives of all the regional groups and certain
individual members met together and exchanged ideas on the subject. The
Chairman would urge the various regional groups to examine these problems
further within their respective groups in Now Yor'~ after the end of this session.
I...
PAGENO="0589"
583
The Chairman himself would wish to cohault with the various groups and the
consultative group in order to secure sose ineasur~ of understanding which
would cxpodite the proceedings at the inaugural session.
Needl9ss to say, the Chairman considers it indispensable that consulta-
tions and discussions on these matters within the regional groups .should not
be confined to the members of this Committee, but should include also those
members of these groups rho arc not members of the Committee.
The question of vital importance is whether the Committee has made
sufficient pro~vese with its preparatory work to justify a recommendation
to the General Assembly `that it should~ adhere to the original decision to
hold the first substant~.ve session in Santiago, Chile, in 1974.
As I have stated earlier, the principal landmark in the work of the
Committee- during the last six years was the adoption of the ~claration of
Principles Governing the Sea-Bed and the Ocean Fleer (2479 (~ocv)).
The next most important landmark was the approval by the Committee of
the -List of Subjects and Issues rhich should be dealt with by the Ccnference.
This List of Subjects and Issues was the result of strenuous negotiations
and could well servo as the basis of the agenda for the Third United Nations.
Law, of the Sea Conference * It has been clearly stated that it is not a
comprehensive list, nor does it represent an order of priority.
If the mandate of the Committee had been discharged in its ideal form,
there would have bean a consolidated text on the two main sections of its
mandate - (a) the international rdgi~ie - including internaticnal machinery -
and the question of limits and the equitable sharing of benefits derived
from exploration and oxploitaticn of the resources of the sea-bed and the
ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction,
and (b) the other related issues of the law of the sea as specified in the
List of Subjects and Issues.
The ideal was impossible of attainment for the simple reas on that,
unlike the proparationa for the previous two United Nations Conferences on
`the Law of the Sea, hold in 1953 and 1960, which were entrusted `to the
International Law Commission, a body of professional jurists and legal
technicians, the preparations for the Third United Nations Law of the Sea
Conference had to be undortekon by a large Committee whose approach was
I...
PAGENO="0590"
584
essentially political. This differer~ce in approach reflects the changes that
had occurred in the interval between the Second United Nations Law of the
Sea Conference and the time when the United Nations first considered the
question brought before it on the initiative of Ambassador Pardo of Malta.
It is neither a matter of surprise nor for criticism, therefore, that the
results of this Committee's efforts bear no resemblance to the final outcome
of the International Law Commission's encleavours in relation to the previous
two Conferences on the Law of the Sea. The resolution implies that this
Committee should assist the General Assembly in arriving at a decision whether
the preparatory work it has done is of such a quality and nature as to justify
the General Assembly's adhering to its decision that an inaugural session
of the Third United Nations Law of the Sea Conference should be held while
the 28th session of the General Assembly is in progress, and that the first
substantive session should be held in Santiago, Chile in April/May 1974.
Per this purpose we must have a clear understanding of what was intended to
be meant by preparatory work and also what was feasible, having regard to the
composition and character of the body entrusted with that work. Different
delegations have adopted different yardsticks for measuring the progress that
we have made. Some treat the effort as a flat race, measured purely in
terms of distance. Others regard it as resembling a 400 metres hurdles race
and would say that hardly any hurdles have been cleared * Unlike in athletics,
the hurdles here are net of uniform height. Still others would treat it as
an obstacle race. It cay be possible to extend indefinitely the Olympic Games
metaphor, but we cannot profit by a mere statement of these positions. There
is not enough agreement withIn the Committee to justify a recommendation
to the General Assembly as expressing the čoasensus of the Committee. It is -
fairly clear, however, that a large number favour adherence to the schedule
of holding the first substantive session in ~~pril/~y 1974 in Santiago after
the inaugural session which would be held while the General Assembly is in
progress this year, as they believe that unless a start is made in Santiago
there will be no inoentivo to delegations to embark en the delicate and
arduous process of negotiation in order to resolve or even narrow the differences
that now exiet within the Committee. There is great psychological merit
and force in that argument as it would inject into the international
community a sense of urgency and create a momentum that would carry us
towards the conclusion of a treaty. On -the other hand, there are delegations
I...
PAGENO="0591"
585
which categorically state that we ha~e not made six~ficient progress and that
the preparatory work must continua and that for this purpose -the Committee's
mandate must be roaffirmed.
There is agreement,. and. even a clear demonstration of willingness in
~bat regard, that infernal negotiations should be conducted between now and
* then, and by that I neon between the conolusion of this Committee's session
* and the Conference in Santiago in April/May 1974, in ordor to eeLablish the
basis of a political understanding and accommodation which would contribute
* to a reconciliation of divergent views.
Some would wish -to have an agreed text rather than alternative texts.
If we were to try to attain that ideal and make that an essential prerequisite
for the commencement of the Conference, we would, I `fear, defer that happy
consummation till the Greek i(alends.
Me are not an International' Law Commission, a group of what I have
described as professional experts who do not represent goveinseutal policies
but act as jurists and legal technicians and the `results of whose work would
be subjected to political dissection at an international conference.
No advantage would be derived if~the proponents of each idea imagined
-t~iemselves to bathe sole supporters of reason and equity and to enjoy a
special monopoly of those virtues. Tedious repetition and assertion of any
single point of view would lead us nowhere. Satherthan persist in reiteration,
we should persevere in negotiation.
There has been much talk about odapromise, but we should try to appreciate
the fact that compromise is a two-way street. `It is not like parallel lines
which, according tosia-thematical laws, meat only in infinity.
It is to be left to the General Asseably to make an assessment of the
preparatory work so far dcno by the Committee and to determine whether or
not the Third United Nations Law of the Sea Conference should' commence its
inaugural session during the 28th ses~ion of the Ceneral Assembly and the
first substantive session should be held in Santiago, Chile in April/May 1974.
I...
PAGENO="0592"
586
It remains for me to express my sincere appreciation of the confidence
and trust that have been reposed in me by the members of this Corniaitteo and
which has permitted me to remain as Chairman of this Committee and its
predecessors over the last six years. It has been a remarkable experience
in my career. Not only has it been of highly educative value as I hav~
had the privilege of associating with some of the keenest brains in the
* intornaticnal logal oornmnnity, but it has also given me great personal
* satisfaction as I have been able to fern personal friendships which I shall
cherish always. These persenal friendships count for much more in international
life than any other factor. It reminds me of Walt Whitman's memorable words
* where he referred to that fcrmnnt element of manly friendship that is more
binding than treaties. If we could foster this relationship in our inter-
national dealings we could progress much more rapidly towards the ideal
of one world. -
I have had in the last six years the remarkable privilege of meeting
diplomats and international lawyers whose views may have differed very widely
from thc policies of my own Government, but that in no way impaired the
personal relationship that existed between~us. To those who have participated
in the deliberations of this Committee end i-t~ predecessors since the
~dd Hoc Commit-tee of 35 was established in 1968, I wish to extend my sincere
thanks arid gratitude. It has been a most rewarding experience and has
enriched not only my imeowlodge of the sub~ect but also my personal relation-
ships. One of the mcst revealing experiences during the last six years
has been the position of the United yations Secretariat - those members who
have boon associated with us closely over the past six years, and the
representatives of the specialized agencies who have co-operated with us so
willingly and spontaneously in our work. With singular zeal and conspicuous
devotion the Secretariat attached to this Committee has responded to the many
exacting demands that have been made oi it for studies which were often
of a highly complex character. They have not flinched from their task and
their duty despite the hazards that may at tines have been involved. I cannot
mention all those who have made a vital contribution to our work but perhaps
those to whom personal reference is not made would excuse me if I referred
I...
PAGENO="0593"
587
specially to the Under Secret General for Legal , Mr. Stavropoulos,
and the Committee Secretary, Mr. Ibvid Hall. In the last six years Mr. Hall
has boon constantly at my side. More recently, Mr. Stavropoulos has been
very closely cssociatoc3. with me and has boon a sourco of inspiration end
invaluable help. To them both I e:tend my sincerest thanks and I am qilite
sure -that members of the Committee will share my sentiments when I say that
the Committee owes a great debt to those two devoted international civil
servants. There are many others, such as the Secretaries of the Sub-Ccmniitteos
and their supporting staff, whom I should like to mention but I fear that in
seeking to mention then I may by omitting one commit a fatal error. To all
the members of the Secretariat who have served us during those last six years -
the interpreters, translators, précis-writers cmi those others who remain
unseen and anonymous but who have contributed in rio small measure to the
success and the progress of our work I should like, on behalf of the Committee,
to express our profound gratitude.
Us have met very often in Geneva and have enjoyed the tine we have
spent bore. To the Director-General of the European Office of the United
Nations and the members of his staff I should like, on behalf of the Committee,
- to express our warmest thanks for all the efforts they have made to provide
us with the best available facilities end -to make cur stay here pleasant and
congenial. S. S
There are a few who have been more closely associated with me throughout
the years than others * I refer in particular to the Chairmen of the three
Sub-Committees, the present Chairmen and their predecessors, and once again
I refrain from referring to them by name in case I commit an unpardonable
error by omitting reference to a single one. In addition to those, there are
the Vice-Chairmen of the three Sub-Commit-toes and their counterparts who
* preceded them before the organization took this form. There are the
Rapporteurs - the Rapportour of the Main Committee and the Rapportcurs of the
three Sub-Committees and, here too, their predecessors, some of whom are not
* with us at this time. They have borne a very heavy responsibility and
* discharged it in ertremely trying circuine±ances, but they have dincharged it
* with good cheer end I should say, so far as I am concerned, to my coaplete]
satisfaction. There are the members of the Bureaux of the Main Committee
and of the Sub-Committees whose guidance and assistance in the regular meetings
of the Bureaus have proved most helpful, and all the other members of the
I...
23-317 0 - 73 - 38
PAGENO="0594"
588
Committee to ~thom I am deeply grateful for their oo-operation and understanding.
At times I may have appeared to be inpatient, I nay have interrupted, speakers -
soi:iething I was very loath to do - but I have done so without regard to
country or personality but only to ensure the smooth progress of our work.
If in doing so I have offended anybody, I must e:press my profound apologies.
But often in a good cause we are coiipelled to give offence, but the cause
is much more important than the individual and they will appreciate the
* - spirit in which I' acted.
What happens to us after today is something for the General Assembly
to decide, but we can all take satisfaction `that even if we may b~ judged
not to have succeeded, none can say that we failed to try. I do not intend
this `to be in any sense a valedictory message. It might well be that this
is the last meeting of the Committee on the Peaceful Uses of the Sea-bed
end the Ocean Floor Beyond the Limits of Mational Jurisdiction, but whether
it is the last meeting or not I wish to express my sincerest thanks to all
* those who have been members of this Committee and, its predecessors and all
those who have held office in this Coenittee and its predecessors, to all
the members of the Secretaridt, and all those who have assisted us in our
work and to the representatives of the specialized agencies, the inter-
governmental organizations - and here I should like to make special mention
of the Fisheries Cosreittee of the Food and Agriculture Organization, the
* International Oceanographic Commission and the Intergcnrernmon'tal Maritime
Consultative Organization - for their unfailing co-operation.
Many other intergovernmental bodies havo participated in our work and
while I may not have mentioned them individually I should like to extend to
them our sincere thanks. Various resolutions of the General Assembly
during the last six years relating to our Commamittee and our work have requested.
us to co-operate with the specialized agenciec, the International Atomic
Thiergy Agency, and other intergovernmental organizations and have in tui~i
requested those bodies to co-operate with us. The most recently established
of these is the United Pations Thivironment Programme whose activities cover
ai~ area in regard to which we have a special mandate. Resolutions of the
General Assembly have required us to ensure that there is no duplication
- of effort and no overlap. This Committee has consistently and
conscientiously tried to avoid any such duplication and overlap and. I am
I...
PAGENO="0595"
589.
sure that ii is the policy of those othór bodies also to do the same.
Finally, it remc~ins for me to reflect on the prospects for a
suocessful Law of the Sea Conference, and once again I must state ~hat
I have stated bcfore, that if we are to:iinve a viable and durable law
of the sea, in must recoynize the supremacy of one rule, the rule of
justice and ecruity. I am qul-te certain that those who have the power but
not the numbers will realize their wealthoss, cad, that those who have the
numbers but not the power cannot merely rely on their numerical strength.
There is an urgent need for negotiation and -that negotia-t~.on should proceed,
not necessarily on the basis of geographical groups but also groups of those
who share common interests and. concerns. Negotiation and compromise offer
the `best hope of success. We should not fritter away thin opportunity.
We shou3.d not, because if we do so it would be many years before -we may
moat again to draft a consolidated law ~f the sea which would be enduring
and bring peace and harmony which are the offspring of justice. I trust
±ha-t spirit will inspire us when we move to the next stage of our work.
Let us try to work towards a law which will bring order withoat
extravagance and equity without exuberance. It must be a law appropriate
to the circumstances of the modern world and. oonsonan-t with the principles
of tile main legal instrument that holds us together, the Charter of the
United Nations.
I thank you, distingiished delegates and friends, for your patience,
your understanding, your friendship and your co-operation. As you
leave for your hones I wish you a safe ~nd pleasant. journey.
PAGENO="0596"
COMMITTEE ON THE PEACEFUL USES OF THE
SEA-BED AND THE OCEAN FLOOR BEYOND
THE LIMITS OF NATIONAL JURISDICTION
Distr.
GENERAL
A/AC.138/88
12 June 1973
ORIGINAL: ENGLISH
EXA~LES OF PRECEDENTS OF PROVISIONAL APPLICATION, PENDING
THEIR ENTRY INTO FORCE, OF MULTILATERAL TREATIES, ESPECIALLY
TREATIES WHICH HAVE E~ABLISEED INTERNATIONAL ORGANIZATIONS
AnD/OR REGIMES
Report of the Secretary-General
CONTENTS
INTRODUCTION
THE PROVISIONAL INTERNATIONAL CIVIL AVIATION ORGANIZATION
THE.,PREPARATORY COMMITTEE OF THE INTER-GOVERNMENTAL MARITIME
CONSULTATIVE ORGANIZATION
THE PREPARATORY COMMISSION OF THE INTERNATIONAL REFUGEE
ORGANIZATION
THE INTERIM. CO!~MISSION OF THE WORLD HEALTH ORGANIZATION
THE PREPARATORY COMMISSION OF THE INTERNATIONAL ATOMIC
ENERGY AGENCY
THE INTERNATIONAL SUGAR AGREEMENT, 1968 .
THE EUROPEAN FISHERIES CONVENTION OF 9. MARCH 19614.
THE EUROPEAN CENTRAL INLAND TRANSPORT. ORGANIZATION . . .
Paragrap~~,
l_114 2
15-31 10
32 - 140
16
41_148 19
149-59 22
60-71 26
72-81 30
82..- 91 314
92 - 100 38,
500
UNITED NATIONS
G ENE RAL
ASSEMBLY'
73-120314
GE. 73-47488
I...
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Page 2
INTRODUCTION
1. At the 93rd meeting of the Committee on the Peaceful Uses of the Sea-Bed
and the Ocean Floor beyond the Limits of National Jurisdiction, held on*
6 April 1973, the Rapporteur of Sub-Committee I introduced a recommendation
of the Sub-Committee that the Secretary-General be asked to make a factual, study
of examples of p. scedents of the provisi nal application of multilateral treaties.
The Main Committee adopted the recommendation.
2. The wording of the recommendation put forward by Sub-Committee I was `as
follows:
"Sub-Committee I recommends'to the Main Committee that the Secretary-
General be requested to describe factually, for the Sub-Committee's use at
its summer sesSion in 1973, examples of precedents of provisional application,
pending their entry into force, of all or part of multilateral treaties,
especially treaties which have established international organizations
and/or r6gimes.
"This recommendation is not a pronouncement on, nor does it prejudge
in any way, the nature, characteristics, forms or structure of the r6gime
and machinery for the sea-bed and the ocean floor and the subsoil thereof
beyond the limits of national jurisdiction which are to be established, in
the general context of the Law of the Sea to be considered at the forthcoming
Conference. It does not constitute a recommendation on the advisability of
the concept of provisional application of the r6gime and machinery, or on
the relevance of past precedents. Nor does it prejudge the question
whether only that part of a treaty relating to the r6gime and machinery
concerning the sea-bed area beyond the limits of national jurisdiction and
its resources would apply provisionally or whether provisions relating to
other questions of the Law of the Sea would also apply provisionally. These
questions have not been discussed by the Sub-Committee." 1/
3. The present study, which has been made by the Secretary-General pursuant to
the Committee's request, describes the arrangements made in a number of cases in
order to give prvisional effect to tre~ ~ies establishing international
organizations or r6gimes. In keeping with the terms of the request, the study does
not purport to give a comprehensive survey of all the issues which may be involved
or to relate these to matters before the Committee, nor to examine all the
examples which might be cited. In a nuniber of cases the provisional arrangements
described were mentioned during the Sub-Committee's discussions at the 1973 spring
session. To these others have been added in order to illustrate the nature of
steps taken in the course of establishing a variety of organizations or r6gimes.
Having regard to the wording of the request and the views eicpressed in the courso
of the Sub-Committee's discussions, the examples set out below are cases in which
i/ A/AC.l38/SC.I/L.2O.
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A/AC~l38/88.
English
Page 3
provisional, measures `were taken with respect to multilateral treaties that
subsequently came into force., thereby establishing `international organitations Oi''
rgines of a~non-provisional :character;' instances in which the arrangements ~5ade
rcmained-px~owisiona]. have not therefore been included.
4. The, first four cases which are. examined concern the:arrangements made to
cover the period between the date of preparation of the constitutional instruident
of four speciali~ed agčnciés, the International Civil Aviation Organization `(ICAO),
the Inter-Governmental Maritime Consultative Organization (IMCO), the `International
Eofugee Organisation (130) and the World Health Organization (wHo), and the entry
into force of that instrument following ratification or other act of formal
acceptance. 2/ Miiab the same pattern was followed in the case of the preparatory
`cody establishedbefore the entry into force of the IAEA Statute. The three
ramaining cases illustrate a different mpproach as regards the nature of the
treaty arrangements which were made. .
5. In the case of the specialized agencies and the International Atomic Energy
Agency (ThEA), it was considered desirable, pending the establishment of the
rermanent body, to adopt a separate instrument which would enter into force at
once or within a short time, providing for the establishment of a body which
might act as the preparatory organ for the new organization and, to an extent which
varied, according to the nature of the case, perform some of its functions. An
arrangement of this kind, in which there were two instruments, normally both
of then treaties, one (the constitution) dependent on ratification or other act
of subsequent approval,, and the other, capable of early application, specifying
the preparatory arrangements to be made until the major instrument came int6
operation, is distinct from the procedure whereby the main treaty is itself
formally brought into provisional effect. It was the latter course which was
followed . in the case of' the international commodity agreement examined and the
tworegional treaties.
6. The International Sugar A~reemnent, 1968, which is studied as an example of
tha kind of arrangements made in major recent commodity agreements, itself
provided for the possibility that States might agree to apply the. Agreement on,
a provisional basis pending ratification or formal act of acceptance with t4e
fill range of rights duties and responsibilities involved thereby coming into
operation before the Agreement entered into force definitively
I In the case çmf the two regional treaties the arrangements made were
basically of the same character in that they provided for the provisional
oplication of the agreement in question although in these instances this effect
2/ These cases are examin&i as examples only. Broadly similar arrangements
vere made in respect of many other bodies, including the United Nations itself
and the United Nations Educational, Scientific and Cultural Organization (UNESCO).
PAGENO="0599"
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A/~.l33/83
English
Page ~
was achieved through the use of separate treaty instruments. 3/ Thus the l961~
European Fisheries Convention was accompanied by a Protocol of the same date,
providing that States which had ratified or approved the Conventionmight proceed
to apply that latter instrument on a provisional basis. The facts relating to the
European Central Inland Transport Organization were somewhat more complex; an
agreement was concluded, which came into force upon signature, providing for the
provisional application of another agreement~ then only in draft form, relating
to the establisba~nt and operation of thL proposed Organiza~ion. The draft
agreement was itself then signed at a later date.
8. The two patterns which have just been distinguished - and no doubt there
could be others, or refinements upon this distinction - reflect the two articles
in the Vienna Convention on the Law of Treaties dealing with the question of
the entry into force and the provisional application of treaties. The two
provisions are set out below.
"Article 2~
Entry into force
1... A treaty enters into force in such manner and upon such date as
it may provide or as the negotiating States may agree.
2. Failing any such provision or agreement, a treaty entersAnto
force as soon as consent to be bound by the treaty has been established
for all the negotiating States.
3. When the consent of a State to be bound by a treaty is established
on a date after the treaty has come into force, the treaty enters into force
for that State on that date, unless the treaty otherwise provides.
3/ Amongst other examples which might be mentioned of the use of the ~ame
procedure, particular reference may be made to the Agreement providing for the
provisional appiLcation of the Draft lot rnational Customs Conventions on Touring,
on Commercial Road Vehicles and on Interr.ational Transport of Goods by Road,
United Nations Treaty Series, vol. ~5, p. 1149. That Agreement, which entered
into force on 1 January 1950, provided, as its title indicates, for the provisional
application, as between the parties, of the draft instruments in question. The
Agreement was to be regarded as denounced by the parties concerned as and when
the various conventions came into force. As a result of successive denunciations,
the Agreement, including two Additional Protocols (ibid., vol. 145, p. 158 and
vol. 65, p. 319), was terminated on 1 January 1965, in respect of the Draft
International Customs Convention on the International Transport of Goods by Road,
and on 1 January 1966 in respect of the Draft International Customs Conventions
on Touring and on Commercial Road Vehicles.
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14~ The provisions of a treaty regulating the authentication of its
text, the establishment of the consent of States to be bound by the treaty,
the manner or date of its entry into force, reservations, the functions of
the. de~positary and other matters arising necessarily before the entry into
force of the treaty apply from the time of the adoption of its text."
`Article 25
~bvisional application
1. A treaty or a part of a treaty is applied provisionally pending
its entry into force if:
(a) The treaty itself so provides; or
(b) The negotiating States have in some other manner so agreed.
2. Unless the treaty otherwise provides or the negotiating States
have otherwise agreed, the provisional application of a treaty or a part
of a treaty with respect to aState shall be terminated if that State
notified the other Statesbetween which the treaty is being applied
provisionally of its intention not be become a party to the treaty."
9. According to these provisions the provisional application of a treaty only
occurs, strictly speaking, when the treaty itself so provides or the negotiating
States have in some other manner so agreed. The International Sugar Agreement,
1968, is an example of a multilateral treaty which itself expressly provides for
provisional entry, into force, under specified conditions. The two regional
arrangements which are described illustrate the adoption of other means - in
these cases, the conclusion, by simplified means, of a separate treaty - whereby
the major treaty is brought into force provisionally.
10. Whereas these cases therefore illustrate the application of article 25, the
other examples described below - and .which include the main cases referred to in
speeches made during the session of the Committee held in spring 1973 - are
instances in which recourse was had to the adoption of a separate instrument,
again, usually by simplified means, in order to make provisional organization
arrangements pending the entry into force of the major treaty and the establishment
of the permanent body. These cases' may thumbs regarded as particular examples
of the application of article 21~ so far as the manner of entry into force of the
treaty instruments in question is concerned, and indeed of the other provisions
of the Vienna Convention generally. 14/ Although linked in their history and in
the reason why they were concluded, they are in -fact instances in which two
instruments were concluded, applicable in succession in different periods of time,
as well as in their formal aspects.
14/ An exception should be made, however, of the Preparatory Committee
of IMCO, which was established by a Conference resolution.
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A/AC.l38/88
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11. The following table summarizes, in a comparative form, the arrangements made
with respect to the cases described in the present study..
Provisional
organization
or r6gime
Main instrument
and requirement
for bringing it
into effect
Means by which
provisional
organization
or r6g~me
established
Time taken to
bring provi-
sional organi-
zation or r6gime
into effect
Provisional
International
Civil Aviation
Organization
Convention on
International
Civil Aviation,
Ratification or
adherence by
26 States
required
Agreement,
requiring
signature
followed by
acceptance by
26 States
~
7 months
(7 December 19144-
6 June 1945)
Preparatory
Committee of
IMCO
IMCO Constitu-
tion. 21 States,
7 of which had
1,000,000 g.t.
of shipping, had
to become parties
Resolution of
United Nations
Maritime Confe-
rence, 19148
~
.
Took effect on
adoption,
6 March 19148
.
Preparatory
Commission of
the IRO
.
IRO Constitution.
15 States, provi.
ding 75 per cent
of the budget,
had to become
parties
Agreement, re-
quiring signature,
coming into force
when 8 States bad
signed the IRO
Constitution
Two veeks
(15-31 December
19146)
~
.
Interim
Commission
of WHO
WHO Constitution.
26 States had
to become
parties
Agreement,
requiring
signature
~
Took effect on
signature,
22 July 19146
Preparatory
Commission
of IAEA
IAEA Statute.
Ratification
required by 18
States, including
3 out of 5
specially named
Annex to IAEA
Statute
*
~
~
Took effect
when IAEA
Statute opened
for signature,
26 October 1956
.
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Page?
ProvisiQnai~.
Organizatj~~
or reginie:
* :~-. Main instrument:
and' requirement.
V for bringing it' V V
- into effect
V V Means byVVh±Cb. VVV
provisional" V V
V `VVV organization V* V
or regime V': V V V
eslish~e~
International.
Sugar V V~ V
Organization
V V Time, taken tO. V
V bring prov- :, V"' V
V onal organi~.
V V zation or r~g~jgie V
into effecj~
International
VS Su~a.r Agreement,
1968. Entered 1: V
into force deth.
nitively when a"
V V specified pro-. V
portion of V V V
exporting and V
importing . States V
had deposited V
formal instru~
ments
B~ an article V V
in Agreement
* expressly pro_V
viding that
States might V
indicate their
willingness' to
apply the V V
Agreement
provisiOnally
`V The Agreement VV `~ V
V Vwas adopted~on
V 214 October. 1968 V V V
and came into
V ,~ Véffect provi-
* sionally on
* 1 January 1969.
It then came
into effect
V definitively on
17 June 1969
Régime estab-
lished undei~
19614 European
Fisheries
Convention
19614 European
Fisheries
Convention.
Ratification
or approval by
8 States
required
1) Protocol of
Provisional V
Application,
requiring
signature by at
least 2 States. V
V 2V) A State V V
whichV had rati-
Vfied or approved
the Convention
might th~nV apply
V ,theConventjon. ` V
provisionally,
before it had
V cone into force,,
after notifying
the depository
V State. V V *~, V V
V 1) The Protocol
itself entered
into force 9
V days after
signature
(9-18 March 19614).
V 2) Two States
agreed ~ap~ly *V
the Convention
provisional~y on
- 11 September and
- 1. October 19614 V V
* V respectivelY.',.
V -` /,
PAGENO="0603"
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597
Provisional
organization
or r6gime
Main instrument
and requi~ement
~~kringing it
into effect
Means by which
provisional
organization
or rdgime
established
Time taken to
* bring pr~y~~
s5onal oi~gag~
zation or r6~~gg.
into effect
European Central
Inland Transport
Organization
Agreement con-
earning a
Provisional
Organization
for European
Inland Trans-
port, which
brought the
draft Agree-
ment into force
provisionally
The Agreement
* concerning a.~
Provisional
Organization~ *.. -.
came into effect
on signature,
8 May 19145
Agreement con-~
cerning the
establishment
of a European
Central Inland
Transport
Organization.
The Agreement
was only in
draft form
when it was
provisionally
* brought into
force. When
completed it
came into
force on
* signature.
12. The account given below of each of the examples has been .divided under
four subheadings: establishment; functions; organization; and financial
arrangements. The heading "estblihmet" covers the circumstances in which
the arrangements in auestion were eotered into, their general nature and the
relationship of those arrangements to the permanent body or treaty. The tasks
assigned to the provisional body or established under the provisional regime
are dealt with under the next heading, "functions". In most cases the
provisional bodies studied were designed either to carry out the preparations
necessary for t1-~ establishment of the ".mture machinery ar~- the smooth
functioning of tne permanent r~gime, or, antually to commence, on a provisional
basis, the execution of the responsibilities of the permanent body. The exact
mixture of functions varies from case to case. Of the examples studied, two,
the.Preparatçry Committee of IMCO and the Preparatory Commission of IAEA
performed functions which come closest to :beingmerely those of "preparatory"
character, concerning, for example, the drawing up of the agenda of the first
formal meeting of the permanent body, preparation of a draft budget and rules
procedure, study of the site of the headquarters, and similar matters. The
provisional arrangements made with respect to the three other specialized
agencies, ICAO, lEO and WHO, were more extensive in that, in these instances,
besides making administrative arrangements for the permanent body, some of the
substantive functions of the latter were also assumed. The Provisional Civil
of
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Aviation Organization, which js the cleé±est exéthple of this type, had largely
the same structure as the permanent body and performed a number of regulatory
functions until the permanent organization came into being. In the case of the
International Sugar Agreement, 1968, the full range of functions was assumed
by the organization during the provisional period. Somewhat special considerations
apply~in the case of the two r~gionalarrangements, 5but here tooths full range
of functions involved was brought into early application. S `S S
13. The heading "organization" describes the nature of the organizational
arrangements made with respect to the provisional body or r6gime Lastly,
the heading tfinancial arrangements" describes the methods used in order to
finance the provisional arrangements. It may. be noted that in the case of the
futurespecialized agencies (other than ICAO) and the IAEA,the Secret~zr~y-Genera1
was requested to make a loan from United Nations funds, to be repaid when the
permanent body was established. S
l1~. S~ From the nature of the case, most of the examples studied were relatively
short-lived, and the records and documents now available are not always complete
or do~not provide detailed information as regards all aspects of their operation.:
It is difficult in some cases to determine with precise accuracy exactly when
these provisional bodies or arrangements came to an end and the exact procedures
followed in order to terminate or transfer their responsibilities. In the
following study, therefore, though the Secretary-General has endeavourec3 to
present the information in as uniform and complete a way as possible, it was
not always feasible.~o cover the issues in an ~dentical ~ndequ~11y5ep~cifiC S
manner in all mstance~
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THE PROVISIONAL INTERNATIONAL CIVIL AVIATION ORGANIZATION
Establishment
15. The International Civil Aviation Confurénce, held in Chicago from 1 November
to 7 December l9I~, adopted the following instruments: the Interim Agreement on
International CivLl Aviation; the Convention on International Civil Aviation;
the International Air Services Transit Agreement; the International Air Transport
Agreement; and Drafts of Technical Annexes (Annexes A to L). ~/
16. The Convention on International Civil Aviation laid down various general
principles and obligations relating to the conduct of international civil aviation
and provided for the establishment of the International Civil Aviation
Organization (ICA0). The Interim Agreement on International Civil Aviation,
which was adopted to cover the period until the Convention came into force, ~/
established the Provisional International Civil Aviation Organization (PICAO), ~J
an organization of a technical and advisory nature of sovereign States for the
purpose of collaboration in the field of international civil aviation (article I
section 1) The articles of the Interim Agreement fell into two main groups
The first seven related to the organizational aspects of PICAO which paralleled
those of the future permanent body The remainder dealt mainly with substantive
5/ Final Act and Related Documents, International Civil Aviation Conference,
l91~14, United States Government Printing Office, Washington, 19~7 For the records
of the Conference see Proceedings of the International Civil Aviation Conference,
Chicago, Iflinois, 1 November-7 December 191414, two vols., United States Printing
Office, Washington, 19148. The Convention on International Civil Aviation is
contained in United Nations Treaty Series, vol. 15, p. 295, and the Interim
Agreement, ibid., vol. 171, p. 31~5.
6/ Article 91 provided that the Convention was subject to ratification
by signatory States and would come into force 30 days after the deposit of
instruments of ratification or adherence by 26 States. Fifty-two States were
represented at the Conference.
7/ This body replaced the more limited "Interim Council" originally
envisaged in item 14 of the agenda of the Conference. According to the invitation
to the Conference, dated 11 September 191114, sent out by the United States, the
"Interim Council was to act "as the clearing house and advisory agency during
the transitional period". Its functions would have included receiving and
considering recommendations from working committees dealing with the establishment
of air transport services on a provisional basis, reporting on desirable revisions
in routes and services during the interim period, and maintaining liaison with
participating countries.
I...
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issues and corresponded to various provisions of the Convention on International
Civil Aviation 8/ The Interim Agreement thus provided broadly speaking on an
interim basis what the Convention on International Civil Aviation stipulated
in more extensive as well as more permanent form
17 The Interim Agreement was open -1o Sthtes i~hi~h signed it at the Conference
and tb certaie non-signatoi~y States 9/ Signa4or5r states vera required to
inform the Unite~ States at the earliest possible date whethel' signature on
their behalf constituted an acceptance of the Agreement and an obligation
binding them (artic]~e XVII) Non-signatory States could accept the Interim
Agreement upon nOtificatiob that they accepted it as a binding obligation. The
acceptance of 26 States was required to bring it into force (article XVII). Th~
Interim Agreement was opened for signature on 7 December 1944, the same day as
the Convention and the necessary number of acceptances was received by
6 June 1945 on which day the PICAO came into being ~Q/
8/ The subjects dealt with and the treaty references are set out below:
Interim
Subject . - Agreement Convention
Flight over te'rritory of member article VIII Chapter II,articles 5-16
States...:.
Measures to facilitate air IX IV articles 22-28
navigajion
Conditions to be fulfilled with X V articles 29-36
respect to aircraft .
Airports and air navigation XI XV, articles 68-76
facilities ..- -
Joint operating organizations XII XVI, articles 77-79
and, arrangements . . . .~
Undertaking~ of member States in XIII XIV article 67
respect of filing of contracts
and agreements with other
member States, filing of reports XVII, articles 81
by afrlines, ai~'d applications: . and 83
of aviation practices. . ~"- ... .
~j 4ny State a M~mber of the United Nations and any State associated
with them as well as any State-which remained neutral during the present world
conflict (article XVII)
10/ -The depository GovernmeiIt, -the United States, - announced that a total
of 30 acoeptances had been received by.that date. For a-list of the 51 States -
which submittednotifications of acceptance'; see United Nations ~Treaty Series,
vol 171 p 346
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18. Article I, section 3, of the Interim Agreement provided that PICAO was
established until "a new permanent convention on international civil aviation
shallhtve come into force or another conference oninternational civil aviation
shallThive agreed upon other arrangements. It was specified that the interim
period was in any case not to exceed three years from the entry into force of
the Interim Agreement. The exercise of any functions assigned to PICAO were
to cease on completion or be transferred to another organization (article VII).
The Convention oi~ International Civil Aviation entered into force on ~4 April l9I~T,
on which date ICAO came into operation. The Interim Council continued to operate
under the provisions of the Interim Agreement until the beginning of the First
ICAO Assembly, when the permanent council was elected. In accordance with
article VII of the Interim Agreement the records and property of PICAO were
transferred to ICAO.
19. PICAO was given "such legal capacity as may be necessary Cor the performance
of its functions" and full juridical personality "wherever compatible with the
constitution and laws of the State concerned" (article I, section 1k).
Functions
20. Both the functions and the structure of PICAO were similar to those of the
permanent organization. This was intended to ensure working continuity and to
allow the transfer to take place with little more than formal changes.
21. Besides the specific functions assigned under the Interim Agreement to the
Interim Assembly, the Interim Council and specialized committees, 11/ PICAO was
also required to carry out certain functions under the International Air Services
Transit Agreement and the International Air Transport Agreement. 12/ In addition
11/ See parae. 23, 28 and 29 below.
12/ Article VI of the Interim Agreement. Members of the Interim Assembly
and the Interim Council who had not accepted these Agreements had no vote on
any matter referred to these bodies under the provisions of the relevant
Agreement.
The Internationml Air Services Transit Agreement (the "two freedoms
Agreement") provided for the granting of the right of transit and the right to
land for non-traffic purposes in respect of scheduled international air services.
United Nations Treaty Series, vol. 8~, p. 389. The International Air Transport
Agreetheht (the "five-freedom Agreement") provided for the granting of (a) the
right of transit; (b) the right to land for non-traffic purposes; (c) the right
to put down passengers, snail, and cargo taken on in the territory of the State
whose nationaiity the aircraft possessed (d) the right to take on passengers
mail and ca~'go destined for the territory of the State whose nationality the
aircrgft possemitd; (a) the right to take on passengers, mall and cargo destined
for the territory of any other contracting States and the right to put down
passengers, mail and cargo coming frcm any such territory. United Nations
Treaty Series, vdl. l7l~ p. 387.
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the Chicago Conference adopted several resolutions requesting PICAO to perform
various tasks.' PICAO was'asked to transmit to participating States recommendations.
relating to amendments of' the Draft of Technical Annexes' to. the International,
Civil Aviation Convention (resolution II); and to give consideration to the
question of the publication of flight documents and forms in representative
languages of areas through which major international air routes operate
(resolution Ix) The Conference also re~meended that the matters on wbicb it
had not beenpossible to reach agreement' during the' Conference (e.g. `questiops
relating to the sections of an international air' convention' relating primarily to
air transport) should be~ studied by the Interim Council, which was asked to
submit a report with recommendations to the Interim Assembly
~~z~ion
22.. The Interim Assembly was composed of all, States which had accepted the
Interim Agreement. Annual sessions could be convened by the Interim Council.
Each State had one vote. . ., ` -
23 The Interim Assembly was empoweren to take action upon the reports and
matters referred to it by the Council, to, establish `subsidiary commissions and
committees,- to approve the annual budget, to determine financial arrangements,
and to delegate to the Council such powers and authority as might be necessary
for th~ discharge of the-duties of the organization (article II). It could
also deal with matters within the sphere of'action of the organization not
specifically'assigned:~to the Council. T~' :"::.` "--`"
24. The first and only session'of the Interim Assembly was held'in May 1946.
The session discussed, among other things, the steps to be taken to expedite
the coming into force of the Convention on International Civil Aviation ~/ and
to ensure a smooth transition from provisional to permanent `status without~
interruption in, the work.. , , . `
25. The,.Interim Council. was composed, under article III,"section `1, of the
Interim Agreement, of iip to 21 member States elected by the Interim Assembly
for.a period of two years. It was specified that, in the-election of Interim'
Council members, adequate.representation `ias to be given to: (a) States of'
chief importance in-air transport; (b) States, not otherwise included,' making the
largest contribution to:the.provision of facilities for international civilair
navigation; and (o), States, not otherwise included, whose election would ensure
the representation `of all major. geographical areas. For a period of about nine
months.(-August,l945 to May 1946) the place of the twenty-first-member of the.-
Council was left open in order to meet the requirements laid down concerning the
composition of the Interim Council. Individual representatives serving on the -
Interim Council could not be actively associated with the operation of an
international air service or have a financial interest in such a service
(article III, section 2).
13/ PICAO Journal, vol. 1, No. 6, June 1946, pp. 40-41. At that time
only five States had ratified the Convention.
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26. The Interim Council had a President and three Vice-Presidents. Meetings
of the Council were convened bythe President, who acted as the Council's
representative and performed such functions on its behalf as wér.e assigned to
him (article III, section 3).
27. Non-Council members were allowed to participate in the deliberations of
the Council whenever the decision to be taken specifically concerned them.
Neither a. Council nor a non-Council member could vote in any matter involving
a dispute.:in which they were engaged.
28. The powers, duties and functions of the Interim Council were similar to
those of the permanent Council as provided for in the Convention on International
Civil Aviation. l1~/ Besides certain organizational matters (e.g. the appointment
of the Secretary-General, preparation of the budget and establishment of
subsidiary qrgans), the Interim Council's responsibilities included the
following (a) to maintain liaison with member States and to call upon them for
such pertinent data and information as might be required in order to give
consideration to recommendations made by them; (b) to receive, register and hold
open to inspection by member States, all existing contracts and agreements
relating to routes services lending rights airport facilities or other
interdational air matters to which any member State or any airline of a member
State was a party (c) to supervise and co-ordinate the work of the techniCal
comma tees and ~orking groups and committees (e g the financial committee)
(d) to make recommendations on technical matters to member States of the Interim
Assembly individually or collectively (e) when expressly requested to act as an
arbitration body on any differences arising among member States relating t~
international civil aviation matters; 15/ and (f), on direction of the Assembly,
to convene the first Assembly when the Convention on International Civil
Aviation came into force
29. Technical committees: Three techniCal committees, established pursuant to
the Interim Agreement, performed specialized functions laid down in the Agreement
(article III, section 6). The purposes of the Committee on Air Navigation were
to secure the highest practical degree of uniformity in regulations, standards
and procedures in all matters which might facilitate improve and promote air
navigation It was particularly concerned with the development of international
standards" and "~ecommended practices" w_th respect to such matters as
communications systems navigation aids air traffic control practices air
worthiness of aircraft, licensing of operating and mechanical personnel, and
registration and identification of aircraft The Committee on Air Transport
dealt with such ~uestions as international air traffic, facilities, subsidies,
tariffs, costs of operation, and organization and operation of air services.
l1~/ Articles 5l~ and 55 of the Convention correspond generally tdthe powers,
~luties and functions of the Interim Council as provided for in article III of
the Interim Agreement.
15/ The Interim Council might render an advisory report, or, if the parties
expressly: .agreed in advance, give a binding decision.
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These two committees also had technical divisions composed of experts from member
States. The Committee on International Convention on Civil Aviation was
created "to continue the study of an international convention on civil aviation"
(article III, section 6.3.C.). This provision was included in the draft of the
Interim Agreement at the time when it ~tas considered unlikely that the Convention
could be completed at the Chicago Conference. The mandate of the Committee was
retained after the Convention was completed, in view of the possibility that
amendments might be necessary. Although it proved unnecessary to convene
another conference on civil aviation, the Interim Council decided to establish
the Committee. Upon the recommendation of the Interim Council, the Committee was
retained in the permanent organization. All three Committees continued their
existence in the same form for some time within the framework of ICAO. 16/
30. The Secretary-General: article IV of the Interim Agreement provided that
the Secretary-General should be the chisf executive and administrative officer
of PICAO and responsible to the Interim Council. He was required to follow the
policies of the Interim Council and given full power and authority to carry out
the duties assigned to him. He reported to the Council through the President
who, as the representative of the Council, decided whether the matter could be
settled directly or had to be referred to the Council. He was authorized to
appoint the staff of the secretariat necessary for the functioning of the various
organs of the PICAO. The Secretary-General was also responsible for investigations
undertaken by the technical staff of the secretariat regarding disputes, complaints
or hardship of member States under the provisions of the Transit and Transport
Agreements. 17/ The purpose of such investigation was to .gather facts relating
to these matters, for submission to the Interim Council through the President.
Financial arrangements
31. An advance of approximately $20,000 was made by the host country in order to
finance the PICAO in its early stages. Member States were invited to make
advance payments of their contributions to cover the initial expenses until
budgetary provisions could be made. The expenses were then proportioned by the
Interim AsCembly among the member States in terms of tbeir capacity to pay
(article v). financial regulations were drawn up and a five-member Finance .
Committee established. 18/ The Interim Assembly was authorized to suspend the
voting right of any member.State that failed to discharge its financial
obligations within a reasonable period The Interim Agreement provided that each
member.: State should bear the expenses of. its own delegates to the Interim Assembly,
the Interim Council,. and to committees or subsidiary working groups.
16/ PICAO dOcument 2781, C/323 and PICAO Monthly Bulletin, March l9~7, p. 2.
17/ See, e.g., article II, section 1, of the International AIr Services
Transit Agreement and article IV, section 2, of the International Air Transport
Agreement.
18/ PICAO document 1091, C/82, PICAO Journal, vol. 1, No. 1, p. 82.
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THE PREPARATORY COMMITTEE OF THE INTER-GOVEREMENTAL MARITIME
CONSULTATIVE ORGANIZATION
Establishment . .
32 The United Nations Maritime Conference which met froa 19 February to
6 March l9~8, was convened by the Economi' and Social Council in order to consider
the establishment of an intergovernmental maritime organization. 19/ The
Conference opened for signature and acceptance the Convention on the
Inter-~Governmental Maritime Consultative Organization (IMCO) Article 60 provided
that the Convention would enter into force when 21 States, of which seven would each
have a total jonnage of not less than 1 million gross tons of shipping, had become
parties. 20/ In order that the Organization, once established, might begin its
work without ddla~; the' Conference adopted a resolution setting up the Preparatory
Committee of IMCOA'.21/ The resolution specified that the first meeting of the
Preparatory Committee should be held immediately after the conclusion of the
Conference'and'that.it'should cease to:, exist upon resolution of the first session
of the IMCO Assembly (paragraphs 3 and 7). A considerable period in fact elapsed
until the conditions set out in article 60 were met and it was not until
17 March l'958'tbat the IMCO Convention entered into force. a~i
19/ The Final Act and related documents, including the IMCO'Convention, are
contained in United Nations Treaty Series vol 289 p 3 et sal, The Conference
used as a basis for discussion a draft agreement prepared by the United Maritime
Consultative Council. `It may be noted:that an Agreement'for a Provisional
Maritime Consultative Council entered into force on 23 April l9~7; United Nations
Treaty Series, vol. 11, p. 107.
20/, States might become parties by: (a) signeture without reservation as to
acceptance (b) signature subject to acceptance followed by acceptance or
(c) acceptance (article ~7)
21/' Annex A to the Final Act. Two other resolutions dealt with the
convening of a Conference on' Safety of `Life at Sea and the report of a preparatory
committee of experts on co-ordination of safety at ,sea and in the air. .
22/ In a letter of 10 April 1959,' addressed to the United States Mission,'.'~'
concerning the fulfilment of the conditions required by article 60 the Legal
Counsel of the United Nations stated inter alia that `The determination `of the'
tonnage was made on the basis of the `Lloyds' Register, `in consultation with the"
Chairman of the Preparatory Committee'o'f'~be Inter-Governmental Maritime .
Consultative Organization". The letter: is reproduced in annex V to the written
statement of the Government of the United States of America, I. C. 1. Pleadings~,
Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime~me
Consultative Organization, p. 163. ` `
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Functions
33. The functions of the Preparatory Committee, as set out in paragraph 2 of the
Conference resolution, were designed to enable IMCO to begin, its operations as
soon as possible after the IMCO Convention had gained the necessary acceptance.
The Preparatory Committee was required to convene the first session of the IMCO
Assembly within three months from the entry into force of the Convention. In order
that the first session might proceed witl'ut delay, the Preparatory Committee was
asked to submit to the Governments represented at the United Nations Maritime
Conference, and to any other Governments which had signed or accepted the Convention,
the provisional agenda for the first session and necessary documents and
recomma.sdations relating thereto, including
(i) Proposals for the implementation of the functions of IMCO'and~a budget
for the first two years,
(ii) Draft rules of procedure,
(iii) Draft financial and staff regulations.
In addition it was asked to suggest a scale of.members' contributions to the
budget of IMCO. The Preparatory Committee was also requested, under
paragraph 2 (d) and (e) of the Conference resolution, to prepare a draft annex to
the Convention on the Privileges and Immunities of the Specialized Agencies and to
enter into negotiations with the United Nations with a view to the preparation
of a relationship agreement between the United Nations and IMCO, on the basis of a
draft approved by the Conference.
314. The Preparatory Committee held in all four sessions. 23/ Following an
initial session in March 19148, the Committee met again in November 19148 when it took
action on administrative and financial matters and made preparations for the first
session of the IMCO Assembly, including the adoption of a provisional agenda and
draft rules of procedure. Thereafter there was a pause in activity until 1957.
In that year it was decided that, in view of the long period since the' conclusion
of the Convention in 19148, the preparations for the first session would need more
thorough exploration. Owing to changes in the situation which continued to occur,
however, it was inconvenient to start these preparations before the Convention was
in force. Accordingly the Governments of States'which had become parties to'the
Convention agreed by correspondence, effective 11 November 1957, that the Assembly
should be convened within six months, instead of three, from the date the Convention
came into force. 21~/ After the Convention came into force on 17 March 1958, the
parties again agreed by correspondence, effective 1 June 1958, to further extend
23/ See generally IMCO/A.I/l, "Opening of the session by the Chairman of the
Preparatory Committee and presentation of the report of the Preparatory Committee
to the Assembly".
214/ mid., paras. 14-5.
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the date of the convening of the Assembly, and accepted the proposal of the
Chairman of the Preparatory Committee that he request the Secretary-Genera]- to make
preliminary arrangements for convening the fl4CO Assembly in January 1959. Owing
to the heavy schedule of meetings taking place within the United Nations during
1958, facilities could not be made aitilable before that time.
35. The third session of the Preparatory Committee was then held on 3 an4
14 June 1958 The Committee took additional measures and re ised some of itS
former preparations in the light of events which had occurred since the second
session in 19148.' It also revised the provisional. `agenda for the first sessiOn
of the IMCO Assembly. During this session the Committee examined the draft
agreement between the United Nations and IMCO adopted by the United Nations
Maritime Conference. A joint meeting was held between representatives of the
Preparatory `Committee and the United Nations Committee on Negotiations with
Inter-Governmental Agencies. The General Assembly had approved the relationship
agreement in resolution 2014 (Iii) of 18 November 19148, although it could not, come
into force until it had been approved by the IMCO Assembly as well. The fourth
session was held in London on 5 January 1959, immediately before the convening
of the first session of the IMCO Assembly.
36. The first session of the IMCO Assembly was held from 6 to 19 January 1959.
The Preparatory Committee submitted the documents it had been asked to prepare,
for the consideration of the Assembly, which thereupon took the necessary action.
The Assembly also'adopted `areaolution dissolving the Preparatory Committee.
37 It may be noted that since the functions given to the Preparatory Committee
under the Conference resolution related exclusively to the administrative ,an~
organizational requirements for bringing the future agency into operation, the
preparatory body did not assume responsibility for the performance of substantive
functions assigned to IMCO in several international instruments concluded after
the 19148 Conference The 19148 Internations.l Conventio~i for the Safety of Life at
Sea 25/ and the 19514 International Convention for the Prevention of Pollution
of the Sea by Oil 26/ conferred functions and duties on INCO which had been
provislohally performed by the United Kingdom pursuant to provisions in those
agreements At its first session the IMCO Assembly resolved on the
recommendation of the Preparatory Committee to accept the fupctions and duties
involv'ed, and ŕl~O to assume responsibiLty for the 19148 International Regulations'
for Preventing Collisions at Sea, 27/ which had likewise been carried out by the
United Kingdom. *``,` ``
25/ United Nations Treaty Series, vol. i61#, p. 113.
26/ Ibid vo3~ 327 p 3
27/ Ibid., vol. 191, p. 3.
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Organization
38. TheHPreparatory Committee consisted of representatived of 12 States named:in
the Conference :resolution: Argentina, Australia, Belgium, Canada, France, Greede,
India, Nether1an~1z, Norway, Sweden, United*Kingdomand United States. .Ite1ectč~T.~'
a Chairman and adolited'its own rules of procedure. Observers of ~therStates
attended the third session. . `` .
39. Staff: paragraph 6 of the Conference resolution provided that the
Prepanatory Committee might enter into agreement with the Secretary-General
conceTning the provision of. personnel and other secretarial* services under mutually
satisfactory arrangements. The Preparatpry Committee secretariat whichwas
established continued to function until after the first session of.the.IMCO
Assembly. . .
Financial arrangements
140. Paragraph 5 of the Conference resolution provided that the expenses of the
Preparatory Committee, other than those of the members, sh6uld be met from: funds
advanced by governments, which could be s~t out against future contributions to
IMCO or loaned by the United Nations The Preparatory Committee was empowered
to explore th&feasibilit~-'of obtaining a loan from the United Nations and,'if
mut'~~ally acceptable, to enter into a loan agreement. The ôbligationunder any such
loan,, it. was stated, would b~ aonsidered by the Governments represented at the
Conference as a~fii~st claim fOr rC~ŕyrient by IMCO within the first two y~ars of its
existence. The United Nations in fact advanced funds for the expenses of the
Preparatory Committee and for the first session 3f the IMCO Assembly, which were
subsequently repaid. 28/
THE PREPARATORY COMMISSION OF THE INTERNATIONAL REFUGEE ORGANIZATION
Establishment . . .
141 The Preparatory Commission of the International Refugee Organization (IRO) was
established by the Agreement on Interim M~asures to be taker~ in respect of Refugees
and Displaced Persons, signed at New York on 15 December 1946. ~/ The Agreement
entered into force on3l December 1946, after eight States baa signed the
gffiJ IMCO/A.I/l3 and i4. .
~/ .::United Rätions~reaty Series, vol. 18, p.. 122.
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Constitution of lEO, 30/ as required under article 9. of' the Agreement. The
Preparatory Commission was charged with the task of taking "all necessary and
practicable measures' for the purpose of bringing the Organization into effective
operation as soon as pó~aible" (article 2 `(a)). Article 8 of the Agreement
provided' that the Preparatory Commission was to cease to exist upon the election of
the Director-General of lEO, at which time its property, assets and records were
to be handed over to the permanent body.
Functions ..`
l~2. Pending the establishment of lEO, the Preparatory Cosesission was called upon to
perform broadly the sane functions as the proposed' permanent body with respect to
refugees and displaced persons. 31/ These included arrangements for the orderly
transfer of responsibilities from various existing organizations concerned with
refugees and functions relating to the repatriation of refugees, identification,
registration and classification, care and assistance, legal and political
protection, transport, and the resettlement of refugees and displaced'persons in
countries able and willing to receive them. The Executive Secretary put forward
a number of measures, approved by the `Preparatory Commission, which aimed at the
effective irnplem~ntation of the provisions for repatriation. The Executive
Secretary was instructed to get in touch with Members of the United Nations with a,
view towards enlisting their co-operation and generosity with respect to immigration
The Executive Secretary also submitted for consideration a plan according to which
governnierits would agree to `accept whatever might be determined as their
reasonable sl-iare of the total number of refugees and displaced persons requiring,
resettlement. Although most of these `plans were not implemented, they paved the,
way for the subsequent conclusion by IRO'of bilateral agreements with individual
governments willing to accept refugees as immigrant settlers.
1~3~ Besides such operational functions as it was called upon to perform, the
Preparatory Cthsmission was `authorized to arrange for the convening of the ISO
General Council as soon after the entry into force'of the lEO Constitution as
practicable; to prepare the provisional agenda for the first session and documents
relating thereto; to suggest plans for~the programme for the first year of lEO;
and to prepare draft financial, and staff regulations and draft rules of procedure
for `the lEO General Council and Executive Committee (article 2).
30/ Ibid., vol. 18, p. 3. The Cánstitution was opened for signature on
15 December l91~6. Under the provisions of article 18 of the ISO Constitution, States
might become parties by: Ci) signature without reservation as to approval;
(ii) signature subject to approval followed by acceptance; (iii) acceptance. It
was specified that the Constitution was to come into force when at least 15 States,
whose required contributions to part I `of the operational budget amounted to
75 per cent of the total, had become parties. `
31/ See generally Holborn, The International Refugee Organization, Its History
and Work, l9~46-l952.
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141~~ The IRO Constitution came into' force on 20 August 19148, and the Preparatory
Commission convened the first session of the lEO General Council on
13 September 19148. During its first session the General Council took a number of
steps essential to the establishment of ISO, including the election of the
Director-General, thus terminating the preparatory body.
Organization - - `
145. The Preparatory Commission was composed of a representative of each Government
which signed the IRO Constitution (article 1). The Director of the
Inter-governmental Committee on Refugees, the Director-General of the United
Nations Relief and Rehabilitation Agency and the Director of the.International
Labour Organisatiôn were invited tO attend in a consultative capacity.
146. Committees: the Preparatory Cor~mission established an Advisory Committee which,
made recommendations concerning the action required to enable IRO to enter into
effective operai~ion and advised theExecutive Secretkry on the preparatory
measures undertaken.
14T. Executive Secretary: an Executive Secretary was appointed who performed such
duties as the preparatory body determined and was responsible for the appointment
and direction of the staff (article 5).
Financial arrangements
148. Article' 6 of the Agreement provided that the expenses of the Preparatory
Commission were to be met by advance contributions `from governments, deductible
from subsequent contributions to IRO, and from such funds and assets as were
transferred fi~om existing organizations.' These arrangements proved unsatisfactory
and during its initial period the Preparatory Commission faced considerable
,difficulties owing to shortage of funds. Whep `no advance contributions were made,
the Commission decided to appeal to the Secretary-General to make an advance from
the Working Capital Fund of the United Nations, as had been dOne in the case of
the Interim Commission of the World Health Organization, 32/ and in accordance vith
resolution 68 C (I), adopted by the General Assembly on 114 December 19146, - -
concerning the'Working Capital. Fund. In :ssponse to this rc'~uest the Secretary-
General agreed to place at the disposal o the Prepara~óry Cosmission the sum
of $250,000 in order to' meet salaries ~nd administrative expenses, subject to
subsequent reimbursement. The Secretary-General also made available the services
of members of the Refugee Division of the Secretariat and provided office
accommodation and other forms of assistance. 33/
32/ See para. 59 belbw.
33/ Holborn, çp. cit., p. 62.
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THE INTERIM COMMISSION OF THE WORLD HEALTH ORGANIZATION
Establishment
149* The Constitution of the World Health Organization (WHO) was signed on
22 July 19146, at the International Health Conference held in New York. ~j/ As the
Constitution was not to enter into force until 26 States Mesfers of the United
Nations had become parties, 35/ an Arrangement for the establishment of the
Interim Commission of WHO 36Twas concluded at the Conference, on the same day as
the WHO Constitution itself was opened for signature. The Arrangement entered into
force for all signatories on the date it was signed (article 12).
50. The purpose of the Interim Commission was to make the necessary preparations
for the first session of the World Health Assembly and to carry on certain essential
tasks which could not be interrupted or delayed pending the coming into force of the
WHO Constitution and the establishment of WHO. The Arrangement provided that the
Interim Commission "shall cease to exist upon resolution of the Health Assembly
at its first session, at which timethe property and records of~the Interim
Commission and such of its staff as may be required shall be transferred to the
Organization" (article 11).
Functions
51. Under article 2 of the Arrangement the Interim Commission was given the
foflowing functions:
(a) To convoke the first session of the World Health Assembly not later than
six months after the Constitution came into force;
(b) To prepare and submit to the signatories of the Arrangement the provisional
agenda for the first session of the World Health Assembly, and necessary documents
and recommendations thereto, including:
(i) Proposals as to programme and budget for the first year of WHO,
314/ WHO Constitution, United Nations Treaty Series, vol. 114, p. 185. For the
proceedings and final act of the Conference, see WHO Interim Commission, Official
Records of WHO, No. 2, Proceedings and Final Act of the International Healtt~
Conference, held in New York 19 June-22 July 19146.
35/ Article 79 of the WHO Constitution provided that States might become
parties by: (i) signature without reservation as to approval; (ii) signature subject
to approval followed by acceptance; or (iii) acceptance. Acceptance requires the
deposit of a formal instrument with the Secretary-General.
36/ Arrangement concluded by the Governments represented at the International
Health Conference, United Nations Treaty Series, vol. 9, p. 33. (Hereafterreferred
to as the "Arrangement".)
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(ii) Studies regarding location of the headquarters of WHO,
(iii) Studies regarding the definition of geographical areas with a view to
the establishment of regional organizations as contemplated in chapter XI
of the Constitution,
(iv) Drdft financial and staff regulations;
Cc) To enter into negotiations with the United Nations with a view to the
preparation of an agreement or agreements as contemplated in Article 57 of the
Charter arid article 69 of the Constitution;
(d) To take the necessary steps to effect the transfer from the United
Nations to the Intei~im Commission of the functions, activities and assets of the
League of Nations Health Organization, and to take similar action with respect to
the Office international d'hygiene publique;
Ce) To take over various health functions assigned to the United Nations
Relief and Rehabilitation Administration;
(f) To enter into the necessary arrangements with the Pan American sanitary
organization and various intergovernmental regional health organizations, with a
view to giving effect to article 5l~ of the Constitution;
(g) To establish effective relations and enter into negotiations with a view
to concluding agreements with other intergovernmental organizations as
conteaplated in article 70 of the Constitution;
(h) To study the question of relations with non-governmental international
organizations and with national organizations in accordance with article 71 of the
Constitution, and to make interim arrangements with such bodies;
Ci) To undertake initial preparations for revising, unifying and strengthening
existing international sanitary conventions, and to review existing machinery and
undertake preparatory work with regard to the revision and establishment of various
international health statistics; /
(j) To establish effective liaison with the Economic and Social Council and
its commissions;
(k) To consider any urgent health problem brought to its notice by any
government, to give technical advice in regard thereto, to bring urgent,health needs
to the attention of governments and organizations which may be in a position to
assist, and to take such steps as may be desirable to co-ordinate any assistance
so provided. - -
52. The Interim Commission was also cafled upon to submit a report of its
activities to the first session of the World Health Assembly (article 10).
I...
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53. It was originally expected that the Interim Commission w&ald be in existence
only for a short period. Owing to. .delays in ratification of the Constitution the
Interim Commission remained in being for nearly two years. The activitie~
undertaken by the Interim Commission during this period covered all the fuoctions
listed above, particular attention being given to the assumption of functions of
earlier health organizations and the integration of existing regional health
organizations and non-governmental bodies, technical activities, and preparations
for the first Wor 1 Health Assembly. The :nterim Commission had to undertake a
good deal of tcchnical. work which could i~ot aeait the inauguration of the permanent
organization. In doing so it was obliged to establish an order of priority, so as
so ensure effective action within the resources available, and its work had to be
adjusted to the complex machinery of the United Nations and its specialized agencies,
and of other official and voluntary bodies. 37/
514. As regards preparations for ~the first World Health Assembly, the Interim
Commission realized that the permanent organization would hardly~be able during
the first year of its existence to develop hard and fast programmes for all the
health matters requiring international attention. In drawing up the agenda and
drafting the first year's programme, the Commission accordingly suggested an order
of priority with respecl to the items involved and indicated the cases in which,
in its view ac~ion hou?d be initiated 38/
55. The Interim Commission thus had to undertake a number of tasks which had not
been foreseen at the International Health Conference in 19146. The policies and
methods of work it adopted had a considerable influence on those of WHO itself in
its early years.
Organization .
56. The Interim Commission consisted, under the terms of article 1 of the
Arrangement, of 18 Stal~es entitled to designate persons to serve on it. Each of
these States were required to designate a person technically qualified in the field
of health. The International }InaLth Conference, at its 114th meeting, adopted a
motion stating that membership of the Interim Commission would constitute a prior
claim to membership of the WHO Executive Board to be elected by the first World
Health Assembly. The Commission was entitled to elect its Chairman and other
officers and to a~pt ito own ru3es of prc~edure (article 14). It met not lees
than once every four months (article 7).
57. Committees: tha Interim Commission was empowered to establish such committees
as it considered dosirable (article 3). The Commission set up five committees,
throuNh which much of its work. via carried en: .
37/ WHO, Official Records of WHO (Report of the Interim Commission to the
FirstVorld Health Arsembly: Activities), No. 9. Geneva 19148.
38/ WHO, Official Records of'fHO (Report of the Interim Commission to the
First World Health Assembly: Provisional Agenda), No. 10. Nenova IO14R
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(i) Committee on Administration and Finance
(ii) Committee on Relations
(iii) Committee on Technical Questions
(iv) Committee on Priorities
(v) Committee On Headquarters~2J
58. An Executive Secretary was appointed by the Interim Commission, to act as its
Chief technical and administrative officer (article 5). He was ex officio secretary
of the Interim Commission and all committees established by it, and had direct
access to national health administrations, as well as performing such other
* functions and duties as the Commission determined. Hewas authorized to appoint
such technical administrative staff as might be required (article 6). Pending the
recruitment of staff the Executive Secretary was instructed to utilize such
technical and administrative assistance as the Secretary-General might make
available. At the outset the Interim Commission was largely dependent upon the
United Nations for its personnel and administrative services, and was guided by
United Nations precedents in regard to staff and financial regulations and
procedures. 140/
Financial arrangements
59. The Secretary-General agreed, following consultation with a committee of the
Conference, to make an allotment for 19146 of up to $300,000 from the United Nations
Working Capital Fund, and he ,expressed his belief that the General Asseimibly would be
willing to appropriate such further funds, up to $1 million as might be necessary
for 19147 .141/ Should these funds be insufficient the Commission was authorized to
accept advances from governments against their future obligations to WHO (article 8).
The. Executive Secretary was required to prepare budget estimates for the Interim
Commission, which were subject to its review and approval(article 9).
39/ WHO, The First Ten Years of WHO, Geneva 1958, p. 55.
140/ Thid., p. 69.
141/ WHO. Interim Commission, Official Records of WHO, No. 2. Proceedings and
Final Act of the International Health Conference. Held in New York from
19 June to 22 July. l91m6, p. .29.
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THE PREPARATORY COMMISSION OF THE INTERNATIONAL
ATOMIC ENERGY AGENCY
Establishment
6o. In the course of meetings~V held in 1955 and 1956 to draw up the Statute of
the International Atomic Energr Agency (IAEA), it was proposed that a body should be
established to tLe preparatory measures `etween the signat,sre of the IAEA Statute
and its entry into force. Accoraingly, n Annex, entitled "Preparatory Commission",
was attached to the draft instrument submitted to the Conference convened to
consider the Statute of lANA,. held at United Nations Headquarters from
20 September to 26 October 1956. 143/ The Statute 1414/ was opened for signature on
26 October1956 and came into force on 29 July 1957. 1t5/ Article XXI, paragraph G,
of ths.S'satute provided that the Annex to this Statute shall come into, force on
the first day this Statute is cyei~ for signature'. 146/ The Annex, providing for the
establishment of the Preparatory Commission, thus came into force on
26 October 1956. 147/
* 6i. It was stated in the Annex that the Preparatory Commission "shall remain in
existence until the Statute comes intoforce and thereafter until the General
Ccnference.has convened and a Board of Governors has..been selected in accordanCe
with article VI." (Annex, paragraph A). The Prepar~tory Commission held its last
meeting on 26 September 1957, immediately prior to the fulfilment, on
L October 1957, of the conditions laid down for its dissolution.
Functions
62. The functions of the Prep~ratory Commission, as set out in paragraphs C.3 to
C..7 of the Annex, were to make preparations for the operation and work of lANA.
Paragraphs C3 and C.14 of the Annex charged the Preparatory, Commission with the
treks of making the necessary arrangements for `the first session of the lANA
General Conference end for the designation of the Beard of Governors of IAEA, in
arcordance with' the relevant provisions of the Statute. Following the entry into
force of the Statute on 29 July 1957, the Preparatory Commission convened the
first session of the General C.nnfersnce, for which it prepared the provisional
42/ These were meetings of the Negotiating Group and "Working Level Meetings".
ItS! For the proceedings of the Conference see IAEA/CS/l to /13.
1414/ United Nations Trediy Series, `vol. 276, p. It. See generally P. Szasz, Law
and Practices of the International Atomic EnergrAgenç~, lANA Legal Series,
I~o. 7, 1970.
145/ Under article XXI, paragraph E, of the Statute entry into force required
ratification by 18 States, including at least three of the following five States
named in the Statute: Canada, France, UdSR, United Kingdom and United States.
146/ Some 70 States signed the Statute on the first day, 26 October 1956, and a
further 10 States within the .90-day period allowed for signatures.
itT! At the Conference the functiotss of the Preparatory Committee were amended
i.e include certain additional functions,' but no basic changes were made in the draft
which had been prepared. See IAEA/CS/Annsx I/Amend.2.
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agenda and draft rules of procedure. The items to be dealt with by the Conference
were divided by thePreparatoryCosmissioninto two parts: aprovisionalagenda,
for the initial; regular session; and a recommended list of items for a special
session. The principal task of the regular session was to elect thembers of the
Board of Governors. Immediately following that election and theestablishment
of the Board of GOvernors, the regular session of the General Conference was
adjourned Orid the special sessiOn convener3, to deal with items for which action by
the Bodrd was required
63. Under pë±dgraph~C;5 of the Annex the Preparatory Commission was requested to
make studies, reports aOd recommeOdations for the initial meetings of the General
Conferen~C aOdtheBoárd on subjects of concern to the IAEA requiring immediate
attention. These subjects included the financing of the Agency, the programmes
and budget fortlie first year,-technical problems relevant to advance planning of
IAFA operations, and the establishment of a permanent staff. Plans relating to these
matters were `set out in a report, "The Programme, Staff, Budget and Financing of
the Agency during its First Year", 148/ submitted to the General Conference by the
Preparatory Commission. Attached to the report were draft resolutions concerning
appropriations for the initial financial period of the Agency, the establishment
of a Working Capital Fund and voluntary contributions.
614. The Preparatory Commission was also asked to deal with the question of the
location of the permanent headquarters of IAEA. The Conference on the IAEA Statute
adopted a recommendation addressed to the Preparatory Commission, requesting it to
be guided by the expressed preference of the Conference that the headquarters of the
Agency sao~O1d be established in Vienna. In response to this request the Preparatory
Comrn.issibn recommended to the IAEA General Conference that the Agency' s permanent
seat be lOcated in Vienna. 149/ The Commission was authorized under paragraph C.6.
*to make becommendations concerning the provisions of a headquarters agreement
defining the status of the Agency and the rights and obligations of the Agency and
the host Government. On the basis of negotiations with the Austrian.Government, the
Commission submitted to the Board an almost complete draft of ~he headquarter's
agreement. 50!
65. Pursuant to paragraph C.7 (a) the Preparatory COmmission entered into
negotiations with the United Nations on th draft of a relatfonship agreement. 51/
The result was submitted to the General Conference and to the Board of Governors.
In accordante with paragraph C.7 (b), the Commission alsO submitted
recommehdatiOns concerning the guiding principles for relationship agreements
between the Agency and the specialized agencies 52/
148/ See ED. IAEAIGC.l/l-Gov/1.
149/ GC/(S)/l8.
so! Thid.
51/ IAEA/GC.l/3-Gov/14/Add.l.
52/ IAEA/GC.l/14-Gov/5.
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Organs
66. The Preparatory Commission was composed of representatives of 18 States,
12 of which were named in the Annex 53/ and 6.5l~/ chosen by the Conference of
the IAEA Statute. The Preparatory Commission was authorized to elect its own
officers, adopt rules of procedure, meet as often as necessary, determine its own
place of meeting and establish such committees as it deemed necessary
(paragraph C.l). Its first meeting was convened by the President pf the
Conference on the ThEA Statute. Pursuant to its temporary rules of procedure a
President and a vice-President were elected, who held office throughout the
existence of the Commission. Permanent rules of procedure were prepared by the
Executive Secretary, on the basis of standard United Nations.rules, and after
examination by a drafting committee, adopted at the Commission's 8th meeting..
67. Committees: the Commii;sion established the following Committees:
A working group of the whole, to study and:make recommendations with respect
to the programme and activities of the Agency;
A committee on permanent facilities, to assist the Executive Secretary in
preparing a report on the Agency's needs in respect of facilities, and the
availability of such facilities; and
Several ad hoc committees, such as the working group to review the draft
agenda for the General Conference.
68. Executive Secretary: under the authority granted to it, the Preparatory
Commission appointed an Executive Secretary The Commission originally felt that it
could not legally employ anyone beyond :the date of its own existence. This
consideration later appears to have been outweighed by the practical desirability of
providing for staff continuity duri~ig the initial period of the Conference and the
Board. 55/ The Executive Secretary's contract was accordingly prolonged, as were
most staff appointments, to a date 30 days after the closing of the first General
Conferenoe. The Executive Secretary served ex officio as Secretary-Geheral of
the first regular session of the General Conference and of the special session.
He was desi~ated Acting Director-General of the Agency and held office until the
first Director-C ~neral assumed his post xi 1 November 1957.
69. Draft Staff Regulations were prepared by the Executive Secretary on the basis
of those of the United Nations and, after revision by the drafting committee, were
adopted at the ninth meeting of the Commission. The draft Staff Regulations
provided that periods of service with the Preparatory Commission might, at the
diecretion of the Director-.General, be considered as if they had been periods of
service with the lANA itself.
53/ Australia, Belgium, Brazil, Canada, Czechoslovakia, France, India,
Portugal, South Africa, USSR, United Kingdom and United States.
5)4/ Argentina, Egypt, Indonesia, Japan, Pakistan and Peru were elected by
secret ballot at the 39th meeting of the Conference.
55/ IAEA/PC/OR.5l, p. 10.
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Financial arrangements
70. The Preparatory Commission was authorized, under paragraph B of the Annex,
to secure a loan from the United Nations in order to cover its expenses and to make
the necessary arrangements for repayment. of the loan by the Agency. It was also
provided that, should these funds be insufficient, the Commission might accept
advances from governments, to be deducted from their subsequent contributions.
71. Under General Assembly resolution 981 (x) of 16 December 1955 the Secretary-.
General was authorized to grant loans from the Working Capital Fund to preparatory
commissions of agencies to be established by intergovernmental agreement under
the auspices of the United Nations and to finance their work pending the receipt
by the agencies concerned of sufficient contributions under their own budgets.
With the concurrence of the Advisory Committee on Administrative and Budgetary
Questions, as required under the resolution,:the~ Secretary-.GenCral acceded to a
request for a loan totalling ~621~ 000 Since this met the full amount required
the Commission did not solicit any advances from governments. The sum was
subsequently repaid by lANA, following receipt of contributions.
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THE INTERNATIONAL SUGAR AGREEMENT, l968~"
Establishment
72. The text of the Agreement was established by the United Nations Sugar
Conference, 1968, which met at Geneva from 17 April to 1 June 1968 and from
23 September to 214 October 1968. It was adopted by the Conference at its final
plenary meeting held on 214 October 1968. 57/ The Agreement was designed, in the
words of its preamble, to raise the level of international trade in sugar, to
~.maintain a stable price which would be reasonably remunerative to producers, to
provide adequate supplies for importers, to bring world production and consumption
into closer balance, to facilitate the co-ordination of sugar marketing policies
and the organization of the market, and to provide for active participation in, and
growing access to, the markets of the developed countries for sugar from the
developing countries. The International Sugar Organization was established, as the
N
56/ A considerable number of commodity agreements have been~'applied
provisionally, either under the terms of the agreement itself or of~a protocol. The
main reason for this has been the need to establish the organizational arrangements,
including the .quota system, at the start of the commodity year (or "quota year") in
question. In addition there is the consideration that since commodity agreements
are usually for a fixed duration (e.g. for a period of five years) and succeed one
another, it is important that there should be no gap in time between the cessation
of responsibilities under one agreement and the application of the next.
While the extremely complex nature of these agreements, and the different
commodities involved, have prevented precisely identical procedures being adopted
in all instances, the relevant provisions of the International Sugar Agreement,
1968, and the related practice, are set o~tt below as an example of the arrangemen~s
made in a rela~ively recent and typical case. The provisions of this Agreement
are similar to those contained in the International Coffee Agreement, 1968, which
entered into force provisionally on 1 October 1968 and definitively on
30 December 1968, in accordance with article 62, paragraphs (1) and (2), of that
Agreement, United Nations Treaty Series, vol. 6147, p. 3. The International Coffee
Agreement, 1962, also entered into force provisionally for six months under a
generally parallel arrangement. ibid., vol. 1469, p. 169. The International Agreement
on Olive Oil, 1956, was, in effect, brought into effect provisionally, as between a
limited number of States, under a Protocol amending the International Agreement on
Olive Oil, 1956, ibid., vol. 336, p. 177 and vol. 302, p. 121.
57/ United Nations Treaty Series, vol. 6514, p. 3. For the report of the
Conference, see United Nations Sugar Conference, 1968, Summary of Proceedings,
TD/SUGAR.7/l2.
23-317 0 - 73 - 40
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successor to the Council set up by the 1958 International Sugar Agreement
to administer the provisions of the Agreement and to supervise its operations In
a series of cháptérs the Agreement made provision fOr the operation of aquota
System and the regulation of exports; the use of support measures and provisions
relating to access to 7narkets; the maintenance of stocks at agreed levels; the
conduct of an annual review and for the performance of various ancillary
responsibilities by the Organization ~r by States parties
73. As regards its final clauses, elaborate arrangements were made in
chapter XVII of the Agreement The Agreement was open for signature until
214 December 1968 by any Government invited to the Conference (article 59).
Artic'e 60 provided that the Agreement was subject to ratific~ation, acceptance or
apcroval by signatory Governments in accordance with ,~heir respective
constitutional procedures Except as provided in article 61 instruments of
ratification acceptance or approval were to be deposited with the Secretary-
General not later than 31 December 1968 If however a signatory Government was
unable to comply with the requirements of article 60 within the time-limit
specified it might notify the Secretary-General that it wa~ undertaking to seek
ratification acceptance or approval as rapidly as possible and in any case not
later thaj. 1 July 1969 (article 61 paragraph (1)) Any Government permitted to
accede, 59/ under conciitions established by the International Sugar Council in
agreen~ent with that Goveririent, might also notify the Secretary-General that it was
undertaking to satisfy the constitutional procedures required to accede to the
Agreement as rapidly as possibL and at least within six months of the condi~ions
being established (ibid ) Any Government furthermore which gave a notification
to the Secretary-General n~ight if the Council was satisfied that it could not
deposit a formal instrument by 1 July 1969 be permitted to deposit such an
instrignent at a later dale but in any case not later than 31 December 1969
(article 61 paragraph (2)) Any such Government was to have the status of an
Observer until it had indicated that it would apply `ie Agreemer+ provisionafly
714. Article 62, entitled `indication to apply the agreernnt provisionally", is
reproduced* below. -
(1) Any Government which gives a notification pursuant to article 61 may
also indicate in its notification or at any time thereafter that it will
apply the Agi~ement provisionally
"(2) Di~ring any period the Agreement is in force, either provisionafly
or definitively, and before th~ deposit of its instrument of ratification,
acceptance approval or accession or the withdrawal of its indication a
Government indicating that it will apply the Agreement provisionally shall be a
provisional Member of the Agreement until the time-limit contained in the
notification given under article 61 expires. If, however, the qouncil is
~ United Nations Treaty Series vol 385 p 137
5/ Accetsidr~ was -permitted-under the~ terms ofarticle 614. .~.:-
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satisfied that the Government concerned has not deposited its instrument owing
to difficulties in completing it constitutional procedures the Council may
extend that Governipgnt's provisional Member status under some later specified
date
(3) A provisional Member of the Agreement shall pending ratification
acceptance or approval of or accession to the Agreement be iegarded as being
a Contracting Party thereto."
75. Article 63 distinguished between the entry into force of the Agreement
"definitively" and "provisionally", as follows:
"(1) The Agreement shall enter definitively into force on 1 January 1969,
or on any date within the following six months, if by that date Governments
holding 60. per cent of the votes of the exporting countries and 50 per cent of
the votes of the importing countries in accordance with the distribution
established in Annex B have deposited their instruments of ratification
acceptance or approval with the Secretary-General of the United Nations. It
shall also enter definitively into force at any time thereafter that it
is provisionally in force and these percentage requirements are satisfied by
the deposit of instruments of ratification acceptance approval or acceSsion
* "(2) The Agreement shall enter provisionally into force on 1 January 1969,
or on any date within the following six months, if by that date Governments
holding the number of votes required under paragraph (1) of this article
* have deposited their instruments ofratification, acceptance or approval or
have indicated that they will apply the Agreement provisionally. During the
period the Agreement is provisionally in force Governments that have deposited
an instrument of ratification, acceptance, approval or accession as wefl as
those Governments that have indicated that they will apply the Agreement
* provisionally shall be provisional Memb~rs of the Agreement.
"(3) On 1 January 1969, or on any date within the following 12 months-and
at the end of each subsequent six-month period during which the Agreement-is
provisionally in force, the Governments of any of those countries which have
deposited instruments of ratification, acceptance, approval or accession may
decide to p't the Agreement definitvely into force among themselves in whole
or in part. These Governments may also decide-that the Agreement shafl enter
provisionally into force, or continue provisionally in force, or lapse."
76 A number of Governments made the notifications provided for in article 61
paragraph (1) and indicated that they would apply the Agreement provisionally
pursuant to article 62 paragraph (2) 60/ The Agreement entered into fOrce
60/ For the list of the States concerned and the relevant dates, see --
Multilateral Treaties in respect of which the Secretary-General performs
Depositary Functions List of Signatures Ratifications Accessions etc, as
31 December 1971, ST/LEG/SER.D/5,-United Nations Publication, Sales No. E.72.V.7,
p. 363. - * - * - - * -*-- - - - -
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provisionally on 1 January 1969, in accordance with article 63, paragraph (2),
and definitively on 17 June 1969, in accordance with article 63, paragraph (1).
It may be noted that article 70, paragraph (1), provided that the Agreement was to
remain in force for five years from the beginning of the quota year in which it
first entered into force, rhether provisionally or definitively, unlessterrtiflated~
earlier by the Council by special vote.
Functions
77 During the period j-hat it ras in fo-~ce orovisionafly the Agreement was
applied as a whole as between the States which had ngreed to apply the Agreement.
provisionally or had submitted a formal in trument P ovisionel MemberS were
r~gerded as Contracting Parties in accordance with the terms of article 62~
Paragraph ~(3).. The International Sugar Council was enpoweted to perform the full
r~nge of functions entru ted ~o it conceining ~`or examale the operation of the
quota system mac the naintenanc of tocks The Council which held several
Sessions during the provisional period, also established the conditions of accession
of a number of governments and agreed, under article 61, paragraph (2)., to extend
the time-limitfor the deposit of formal instruments. 611
Organizatiun
78. The International Sugar Council consisted of all Members of the Organization.
It elected a Chairman and Vice-Chairman each quota year. It was provided that, as a
general rule, the Counci~: should hold one re~u1ar session each half of' `the quota
year (article 8). As already noted, the Council held several sessions during the
period that the Agreer-ent in force provisionalli
79. Executive Comaittee: the Agreement provided for the election of an Executive
Comnittet,; consisting of~'eight exporting and eight importing Members (article lic).
M~ny.of the functions cftheCouncil might be delegntCdbo the Executive Committee
tarticle 16)
80. Executive Director: the Council, after having consulted the Executive
Carmittee, might appoint the Executive Director, who in turn might appoint the
t~f~' (article 19)
~] ~ was p ovided tha~- -~be ~xne~ses ne~e~sary ~or the adminia~ration of the
Agrc'ereent ware to he met by enrual contributions from Members, who were to be
~ in proportion the number of the votes, accorded so them under the
Agreement (chapter V, articles 2l_21c). . . . . .
61/ At its accord session held 28 30 ~ay 1969 th~ Council decided that
cons_deririg th' number o- still ou~s~-en ing instruments from Members which were
~gratory Government. ~nd ~-he oiffiOul-tu,es foreseen bj roan~ o~' them in securing a
der~csit of their instruments by 1 July 1969, the date referred to in article 61, the
tm~-limit should be ex~enned ~o 31 December 1969 A similar extension was given in
respect of the deposit of instruments of accessions. under terms which had been
agreed upon. Text of the decision, ibid., p. 363, foot-note 3. Further extensions
were subsequently given in respect of accessions.
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THE EUROPEAN FISHERIES CONVENTION OF 9 MARCH 19614
Establishment
82. Following a conference held in London, the Governments of Austria, Belgium,
Denmark, France, the Federal Republic of Germany, Ireland, Italy, Luxembourg,
the Netherlands, Portugal, Spain, Sweden and the United Kingdom adopted a
Fisheries Convention defining in the words of the preamble a regime of
fisheries of a permanent character" applicable off the coasts of the States
concerned 62/ Article 114 of the Convention provided that the Convention should
be open fo~r signature from the date of its adoption, 9 March 19614, to 10 April 19614,
and be subject to ratification or approval by the signatory Governments. The
Convention required the deposit of instiuments of ratification or approval by
eighi signetory Governments to. bring it into force. 63/ It was further
provided that
"If, however, on 1 January 1966, this condition is not fulfilled, those
Governments which have deposited their instruments of ratification or approval
may agree by special protocol on the date on which the Convention shall enter
into force. In either case the Convention shall enter into force with
respect to any Government that ratifies or approves thereafter on the date of
deposit of its instrument of ratification or approval." 614/
The Convention was specified .to be of unlimited duration (article 15).
83. A Protocol of Provisional Application of the Fisheries Convention was
concluded on the same day, 9 March 19614. 65/ Article 1 of the Protocol stated
"The Contracting Parties will raise no objection if a Government wbich.has
ratified or approved the Fisheries Convention opened for signature at London
on 9 March 19614, applies provisionally the provisions of the Convention,
having first notified its decision to the Government of the United Kingdom
of Great Britain and Northern Ireland."
814. Under article 3 the Protocol was opened for signature from 9 March 19614 to
10 April 19614. It entered into force "when it has been signed by two Governments
as between those Governments, and in respect of any Government which signs it
thereafter on the date of signature by that Government" (article 3). In accordance
with this provision the I~rotocol came into force upon signature, in respect of the
following 12 States on the dates indicated.
62/ United Nations Treaty Series, vol. 581, p. 57.
63/ The United Kingdom was the depository Government.
614/ Article 114 also specified that any State might accede to the Conventiod
after it had come into force upon such conditions as might be agreed by it with
the Contracting ~Perties
65/ Un~t~d.Nations Treaty Series., vol. 581, p. 76.
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Date of Date of ent~
State signature into force
United Kingdom 9 March 19614 18 March 19614
Ireland 18 March 19614 18 March 19614
Denmark. 31 March 19614 31 March 19614
Belgium 1 April 19614 1 April l95~
Netherlands 7 April 19614 7 April 19614
Portugal 7 April 19614 7 April 19614
Spain 8 April l961# 8 April 19614
Sweden 8 April 19614 8 Apr11 .~; ~14
Federal Repithlic of Germany 9 April 19614 9 April 1951+
France 10 April 19614 10 April 19614
Italy 10 April 19614 10 April 19514
Luxembourg 10 April 19614 10 April 19614
85. Article 2 specified that the provisional application of the Fisheries
Convention by a Contracting Party would entail the establishment of a list of
arbiters provided for in annex II to the Convention. It also provided that:
"A Contracting Party which has provisionally applied the provisions of the
Convention shall be bound by its provisions, j~ particular article 13, and
shall not object if they are invoked by a Government which has signed the
present Protocol and the Convention, even if the latter Government has not yct
ratified or approved the Convention, with a view to settling a dispute rai~~6.
by this provisional application." 66/
86. Upon the entry into force of the Convention, the Protocol "shall
automatically cease to have effect as between Governments which have become
parties to the Convention" (article 14). The Protocol also ceased to have effec~
regards any Government which notified the United Kingdom Go ermnent of its docicic~
not to ratify or approve the Convention (article 14).
87. Two States, the United Kingdom and Ireland, indicated their decision to
apply the Convention provisionally, in accordancevith. article 1 of the Protocol
the effective datesof such provisional application being 11 September 19614 ard
1 October 19614 respectively. 67/ The Convention itself came into force on
15 March 1966, when the eighth instrument of ratification or approval by a
signatory State was received. 68/
66/ As regards the arrangements for the settlement of disputes, see
paragraph 91 below.
67/ Ibid., vol. 581, p~ ~8.
68/ United Kingdom Treaty Series, No. 35 of 1966.
PAGENO="0631"
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A/AC.138/88
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Page 36
Functions
88. Under the terms of the Convention each Contracting Party agreed to recognize
the right of any other Party to establish a fishery r6gime, as defined in
articles 2 to 6 of the Convention.' Each coastal State had an exclusive right to
fish, and exclusive jurisdiction in' matters of fisheries, within the belt of
six miles aeasured from the baseline of its territorial sea (article 2). Within
the belt between six and 12 miles, the right to fish might be exercised only by
the coastal State and by such Contracting Parties whose fishing vessels had
habitually fished there between 1 January 1953 and 31 December 1962 (article 3).
Fishing vessels of such other Contracting Parties were not to direct.their fishing
effort towards fish stocks or fishing grounds substantially diffegent from those
they had habitually exploited (article )4). Withfn the six to 12 mile belt the
coastal State was empowered to regulate the fisheries `and to enforce such
regulations (including regulations to give effect to loterpatioaully agreed
measures of conservation) on a non-discriminatory basis. The coastal State was to
inform the other Parties concerned of such regulations and' to consult with them
(article 5). . .`
89. Further provisions stated that, once a Contracting Party applied the r4gime,
any right to fish which it might thereafter grant to a non-Contracting Party would
extend automatically to other Contracting Parties (article 8). Arrangements were
also made for the granting of transitional rights, in the case of fishermen of other
Contracting Parties who had habitually fished in the initial six mile belt
(article 9), 69/ and for the maintenance or establishment of special fisheries
r6gimes as between specified States or in particular areas (article 10). . Annex I
of the Convention listed the waters adjacent to the coasts of the Contracting
Parties to which the Convention was appl~icable.
Organization
90. No organization as such was established under the Convention, or under the
Protocol. Each coastal State was permitted to establ{eh and apply a fishery r~giae
in the areas off its coasts in `conformity with' the conditions laid down under the
Convention
91. As regards tue settlement of disputes however, unless the parties agreed to
another method of peaceful settlement, any dispute which arose between Contracting
Parties was)'by agreement, to be submitted to arbitration in accordance with the
provisions of annex II to the Convention (article 13) ~nn~w II specified that
within three months of signature of the Convention or accessiol tnereto each
69/ The granting of such transitional rights by twb States was dealt with in
two separate instruments, the Agreement as to Transittonal Nights between the United
Kingdom and Belgium, the Federal Republic of Germany, France, Ireland and the
Netherlands, and the Agreement as tO Transitional Rights between Ireland and Belgium,
the Federal Republic of Germany, France, the Netherlands, Spain and the United
Kingdom. Both Agreements entered into force upon signature on.9 March l96~. United
Nations Treaty Series, vol. 581, pp. 83 and 89. . .
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Page 37
signatory or acceding Government should nomin~te five persons to undert~.ke the
duties of arbiters A list of such arbiters yes to be maintained by the
depository Government In the event that the parties agreed to proceed to
arbitration the Tribunal was to consist of five members each party was to
nominate one member, the other three being chosen by agreement from among the
nationals of third States whose names appeared in the list. Ifthe nomination was
not made within one month, the President of the Inter~national Court of Justice
might be asked to make the nomination, after consulting the parties. The
President might consult the Director-General of the Food and Agriculture
Organization and the President of the International Council for the Exploration of
theSea.
/
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A/LC.l38/83
English
Page 38
THE EUROPEAN CENTRAL INLAND TRANSPORT ORGANIZATION
Establishment
02 A part of plans for the post-war rehabilitation of Europe a conference was
called in London in October 191414 to consider the čstablishreent of a. European
central inland trenspor~ organization. The confeTence continued ~n session and
on 8 May 19145 the Governments of Belgium, Fiance, Luxembourg, the Netherlands,
Norwal the United Kingdom and the United St~tes signed 70/ and brought into force
the Agreemen+ concernirL a Provisionai Organiz~tion for European Inland
Transport (herLafter refer-ed to as the Provisional Agreementi 71/ Annexed to
the Provisional Agreement was a Draft Agreement concerning the EstablishEent of a
Euroneen Central Inland Transport Organization (hereafter referred to as the
ECITO Agreement). The signatorie~ Goiertheente agra~d, undt~r article 1 of the
Provisional Agreement, "to Lring the Draft Agreement provisionally into force
between them in respect of the territories in Continental Europe under their
authority". The European Central Inland Transport Organization thus came into
provisional existence on 8 May 19145. The~purpose of the Provisional Agreement was
to make provision for mutual co-operation in the territories in question "during
such period as may elapse" before ECITO's formal establishment (preamble). This
in fact occurred four months later, on 27 :September 19145, when the ECITO Agreement
was signed 72/ by Belgium, Czechoslovakia, France, Greece, Luxembourg, the
Netherlands, Norway, the USSR, the UnitedXingdom, the United States and
Yugoslavia. Denmark and Poland signed the ECITO Agreement later.
93. During the intervening period ECITO thus functioned on a provisional basis,
the only organizational difference being that a five-member "Provisional Executive
for European Inland Transport" 73/ was established instead of the seven-member
Executive Board provided for in the ECITO Agréement The short period involved
meant that relatively little practice emerged. The example is, however, of interest
as being one in which, instead of a provisional body being established with
limited powers, the full range of responsibilities were assum~d and the
70/ Signature was the only requirement for bringing the Provisional Agreement
into force.
71/ Great Britain Treaty Series, No. 2 (19145), 4~mnd. 66140, and United States
Executive Agreements, Series 1'~8. -~
72/ The -ECITO Agreement came ~n bo force for each member State on the data of
signature (article XIII).
73/ Provisional Agreement, article II.
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A/AC.138/88
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Page 39
organization itself brought into operation, on a provisional-basis The
following account therefore summarizes the functions and organization of ECITO,
in order to indicate the nature of the body invQ:Lved. :..
Functions
914. ECITO was established as a "co-ordiriating and consultative organ" (ECITO
Agreement, article 1). Its principal tasks were "to co-ordinate efforts to utilize
all means of transport for the successful completion of the war and for the
improvement of transport communications sons-to provide for the.restoration of
normal conditions of economic life" (article 1).. It was concerned with all forms
of transport by road, rail or waterway within the territory of Europe in which
the organization operated (article x).
95. ECITO was given authority to perform any legal act appropriate to its -
objectives and purposes and had the power to acquir~, hold and convey property,
to enter into contracts and undertake obligations, to designate or create -
subordinate organs and to review their activities (article IV). It was specified,.
however, that it had no power to own transport equipment and material except
with the unanimous consent of the Council. .
96. The executive functions of ECITO were stated as being to carry out studies
of technical conditions affecting international transport and to give to the.
Gover~jjj~ents concerned technical advice and recommendations directed to restoring
and increasing the carrying capacity of the European transport systems . and,
co-ordinatixig the movement of traffic of common concern on those systems
(article VII, paragraph I). `Specific-tasks assigned to ECITO included thg
following: the collection of information concerning transport requirements and
assistance in realizing such requirements; determination of the allocation and
distribution of transport equipment and material; arranging with member Governments..
to make mobile transport equipment end material available; the restoration of
transport equipment and material to the Government to whom or to whose nationals
it belonged, subject to the temporary use of suc~ equipment in the place where it
was found when it was needed there for essential transport operations; the'
arrangement of a census of rolling stock and other transport equipment and
material recomm ndations with respect t' projected traffic movements and transport
714/ It may be noted that it was not a~pare~tl~ intended to e~tŕbIitb ECITO
itself as a permahent body, but merely as one to deal with the immediatC poCt-war
situation. Article )~II of the ECITO A~±'e~ment prdvided that ECITO yes to remain in
existence for two years after the general suspension of hostilities. It thereafter
remained in force, subject to the right of any member Government, 18 months after
the general suspension of hostilities, to give six months' notice of withdrawal.
On 27 September 19147, in pursuance of a decision of the ECITO Council and also
taking into account a resolution adopted by the Economic Commission for Europe
expressing the opinion that ECITO should be terminated, a liquidator was appointed by
the Executive Board to take all necessary steps for the liquidation of the assets
and liabilities of ECITO. The ECITO Council. held its final meeting on
29 September 19147, after which the residual functions of ECITO were assumed by the
Inland Transport Committee of the Economic Commission for Europe.
/
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A/AC.138/88
English H
Page l~O *
charges; the study of measures to be taken to rehabilitate transport systems;
at the request of the member Government concerned, the rendering of practical
assistance in the operation of transport; and the co-ordination of European
transport, in particular as regards a unified clearing system for traffic
operations between different countries and the facilitation of frontier crossings.
Organization
97. The Council: each member Government was represented on the Council which
determined the broad policies of the organization. It met not less than twice a
year when convened by the Executive Board (article III, paragraphs 2~.l4).
98. The Executive Board: the Executive Board consisted of seven members appointed
by the Council, including one member nominated by France, the USSR, the United
Kingdom and the United States (article III, paragraphs 5-8). As mentioned
earlier, under the Provisional Agreement the Executive Board was replaced by a
five-member Provisional Executive, which carried out the same functions. The
Executive Board performed the exec~rtive functions assigned to ECITO. Most member
Governments designated-representatives for purposes of consultation and
communication with the Board. Liaison was maintained with governmental authorities
through regional offices in Europe and Washington. ECITO also entered into
relations with the Econoaic and Social Council, particularly its Transport and
Communications Commission.
99. Director-General: The Executive Board appointed a Director-General to
direct the technical and administrative work of the organization (article III,
paragraph 7). He was responsible for the:appointment of staff.
Financial arrangements
100. The administrative expenses of ECITO were divided proportionately among
the member Governments, each Government' undertaking to contribute its share in
the currency, or, currencies, agreed upon by that, Government with the Executive
Board (article V, paragraph 1). Each Government was required to provide
facilities for the transfer into other currencies of contributions held by' the
organization in i~s currency. No expenses other than administrative expenses
could be incurred except under the authority of the Council. If proposals
for non-administrative expenses were approved by the Council, the expenses were
met by contributions which member Governments agreed to make, or in such other
manner as member Governments agreed upon (article V, paragraph 2).
PAGENO="0636"
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AMERICAN BAR ASSOCIATION
NATURAL RESOURCES OF THE SEA
RESOLUTION PROPOSED BY
SECTION OF NATURAL RESOURCES LAW
The House of Delegates adopts the following Resolution, recommended
by the Section of Natural Resources Law. The President or his designee is
authorized to present these views to appropriate committees of the Congress.
WHEREAS, a third United Nations Conference on the Law of the Sea is
formally scheduled to convene in an organizational session in November!
December 1973 and to commence substantive work on all aspects of the law of
the sea in the spring of 1974; and
WHEREAS, in the course of the preparatory work for the Conference
now under way in the United Nations Seabed Committee, the U. S. Representative
to that Committee has expressed positions which generally merit the support of
this A ssociation but in some instances would appear to warrant amplification or
modification; and
WHEREAS, the House of Delegates, by its resolution No. 73 of August 7,
1968, recommended with respect to one of these issues "That within the area of
exclusive sovereign rights adjacent to the United States, the interests of the
PAGENO="0637"
631
United States in the natural resources of the submarine areas be protected to
the full extent permitted by the 1958 Convention on the Continental Shelft; and
WHEREAS, subsequent to the date of that resolution the International
Court of Justice enunciated the `natural prolongation of its land territory into
and under the sea" as the juridical basis of exclusive sovereign rights of a
coastal State to the seabed resources off its coast; and
WHEREAS, the American mining industry is approaching the point of
commercial operations for the mining of manganese nodules from the deep sea-
bed beyond the limits of national jurisdiction and has requested legislative as-
sistance to that end; and
WHEREAS, the increasing dependence of American consumers on for-
eign petroleum and other mineral resources makes it imperative that transpor-
tation thereof to the United States be unimpeded; and
WHEREAS, both the rapidly worsening shortage of domestic supplies of
oil, natural gas, and other minerals to meet domestic requirements and the ad-
verse outlook for the U. S. balance of payments make the protection of all domes-
tic energy and mineral sources even more important today than they appeared to
be at the time of adoption of the 1968 resolution;
NOW, THEREFORE, BE IT RESOLVED, That the American Bar Asso-
ciation:
As to Seabed Resources of the Continental Margin
(1) REITERATES its position "that within the area of exclusive sovereign
rights adjacent to the United States, the interests of the United States in the
- 11 -
PAGENO="0638"
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natural resources of the submarine areas be protected to the full extent per-
mitted by the 1958 Convention on the Continental Shelf," and asserts that these
areas encompass or with advancing technology will encompass the full extent
of the continental margin adjacent to the United States. The environment must
be adequately protected, and other uses of the ocean must be accommodated.
Similar rights and obligations are to be recognized in all other coastal States.
If an `economic resource zone" is to be agreed upon, in which the coastal State
shall have exclusive rights to seabed resources, the proposed width of ZOO
nautical miles is acceptable, provided that the exclusive seabed jurisdiction
of the United States should be protected to that distance or to the full width of
the continental margin, whichever is greater at any given point on the coast.
Any treaty commitment for contributions of governmental revenues from the
American continental margin for international community purposes should be
limited, in amount, any larger contributions being reserved for appropriation
by Congress in the light of the overall national interest from year to year.
(2) SUPPORTS the view that the portions of the U. S. Outer Continental
Shelf in waters deeper than 200 meters, being now clearly within the exclusive
resources jurisdiction of the United States, acting through the Congress, should
remain so, and their subjection to any future international treaty should be
limited to standards for the prevention of unreasonable interference with other
uses of the ocean, for the protection of the ocean from pollution, for the pro-
tection of the integrity of investments, and for the compulsory settlement of
disputes.
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633
As to Seabed Resources Seaward of the Limits of National Jurisdiction
(3) RECOMMENDS that the United States insist that any international
regime established with respect to the areas seaward of the limits of national
jurisdiction incorporate the following principles:
(a) That the United States and other developed countries have represen-
tation in the governing council which gives adequate weight to the economic
importance of the resource to their people;
(b) That any international authority created be administrative and regu-
latory only, with power to allocate areas, and that it have no control over volume
or rates of production, distribution or pricing of seabed resources.
(4) RECOMMENDS that the United States implement its announced policy
of encouraging exploration and exploitation of seabed resources beyond the
limits of national jurisdiction during the~ negotiation of a treaty and supports
the companion policy of seeking the provisional entry into force of the seabed
mining aspects of any treaty that is agreed upon.
As to Fishery Interests
(5) SUPPORTS the position on fisheries expressed by the United States
delegation to the United Nations Seabed Committee, which seeks to assure the
rational use and conservation of all fish stocks by adopting broad coastal State
management of coastal species, host State management of anadromous species,
and international management of highly migratory species, such as tuna.
As to Protection of the Environment
(6) RECOMMENDS that provision be made for establishment of inter-
-iv-
PAGENO="0640"
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nationally agreed standards for the prevention of marine pollution, to the ends
(a) That the marine environment be adequately protected;
(b) That, with respect to vessels engaged in international navigation,
there be a single set of uniform standards, internationally determined;
(c) That~ with respect to exploration and exploitation activities on the
seabed, the community interest in the oceans be recognized by acceptance and
enforcement of international standards everywhere beyond the territorial sea,
but with the possibility of supplemental, more exacting, coastal State standards
within the areas of special economic interest to such States;
(d) That liability for pollution by vessels and by seabed activities be
strict but finite and insurable, with supplementation, if need be, by an inter-
national fund or funds.
As to Unimpeded Navigation and Transportation
(7) SUPPORTS the principles that straits which have historically been
open for international maritime traffic are international waters whose status
should be protected against change as a result of any agreement on the breadth
of the territorial sea, and that, as international waters, they should be subject
to internationally agreed rules for the safety of navigation and prevention of
pollution, with the proviso that any powers granted to coastal States in enforce-
ment of international safety or anti-pollution regulations applicable to such
waters be accompanied by adequate provisions for the prompt release under
bond of any vessel of foreign registry detained under such regulations. Further
-v-
PAGENO="0641"
635
SUPPORTS the acquiescence by the United States in the recognition of a 12-mile
territorial sea, subject to adequate safeguards against such actions impairing
the world community's existing rights of free movement through, and over-
flight of, straits which have historically been open for international maritime
traffic. Further SUPPORTS the authority of the United States and other coastal
States to provide for and regulate the peaceful use of the seabed of the adjoining
continental margin in aid of navigation and transportation.
(8) RECOMMENDS comparable provisions to assure the right of unimpeded
transit through archipelagic waters.
(9) SUPPORTS the view that coastal States have the right to establish
deep water ports on the continental margins adjacent to their territorial sea
and to operate them under their exclusive control, provided that they do so in
such a manner as to avoid unreasonable interference with international navi-
gation or other high seas freedom, and that any new international treaty dealing
with the subject should so provide.
As to Integrity of Investments
(10) RECOMMENDS that the integrity of investments in seabed resources
be fully assured.
As to Determination of Disputes
(11) RECOMMENDS that provision be made for compulsory determination
by an international tribunal of disputes relating to marine resources between
States, or between any international organization and a State, or between either
of them and a foreign private party.
-vi-
23-317 0 - 73 - 41
PAGENO="0642"
636
As to Scientific Research
(12) SUPPORTS the general principle of freedom of scientific research,
but recognizes the right of coastal States, within internationally agreed guide-
lines designed to provide the maximum practicable application of this principle,
to impose reasonable restrictions on activities on their continental margins
which will entail threats to their national security or hazards to the environment,
as by drilling into the seabed.
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PAGENO="0643"
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NATURAL RESOURCES OF THE SEA
REPORT OF SECTION OF NATURAL RESOURCES LAW
A. Intrdduction
1. Scope of report
What started out some years ago as an examination by the United Nations
into the desirability of establishing an international regime for the exploration
and exploitation of seabed resources beyond the limits of national jurisdiction
has been broadened into preparations for an international conference at which
virtually every aspect of the law of the sea will be open for consideration. The
natural resources of the seabed and water column remain central to the delibera-
tions but they cannot be considered in a realistic way except in conjunction with
the other issues that have been brought forward. All of these issues constitute
component parts of a single negotiating package and must be considered as a
group even though some of them, if taken alone, would not fall within the areas
of primary interest of the Section of Natural Resources Law.
2. Status of preparations for the third UN Conference on the Law of the Sea
After more than five years of deliberation by the UN Seabed Committee
and its predecessor ad hoc committee, the UN General Assembly has now firmly
scheduled a new, the third UN, Conference on the Law of the Sea. 1 A short
organizational session will be held in New York in November-December 1973
during the course of the 28th Session of the UN General Assembly and substan-
tive work will commence at an eight-week session to be held in Santiago, Chile,
in April-May 1974. Subsequent sessions will be held as needed and agreed upon
by the UN General Assembly, with Vienna already offered by the Austrian Govern-
ment as the site for a 1975 session. Iii the meantime, the UN Seabed Committee
has been charged with the continuation of its role as preparatory committee for
the conference, having met in New York for five weeks in March-April 1973 and
being scheduled to meet in Geneva for ändther eight weeks in July-August 1973.
There is one highly important difference between the approach to the
forthcoming conference and that to the first UN Conference on the Law of the~
Sea held in Geneva in 1958. When the question of a treaty or treaties on the
law of the sea first arose in the United Nations, the problem was viewed as
being primarily one of codifying existing customary law and in 1949 the UN
General Assembly assigned the preparatory role to a relatively compact, pro-
fessional juridical body, the International Law Commission. On the present
occasion, however, the problem is viewed as being primarily political and the
PAGENO="0644"
638
International Law Commission has been by-passed. There is a limited amount
of existing customary law relating to the exploitation of the resources of the
deep seabed areas beyond the limits of national jurisdiction, but there is not
a complete absence of law, as is sometimes suggested. The general consen-
sus is that anyone is free to seek and to keep what he finds but has no protec-
tion against those not physically interfering with work he has in progress.
There is no current provision for security of tenure, however, and it is there-
fore true that the development of an effective international regime for the deep
seabed area is basically a matter of creating new law. Also, the developing
countries feel very strongly, whether rightly or wrongly, that the existing law
of the sea was developed primarily by the former colonial powers to serve
their own immediate interests and that the entire law of the sea must be open
for reexamination with the particular needs of the developing countries in mind
on this occasion. As a consequence, the preparation for the forthcoming con-
ference was assigned to what is essentially a political committee, with an
unwieldy membership that has grown from 42 to 91 members. 2
It took the International Law Commission from 1949 until 1956 to com-
plete its preparatory work for the 1958 conference3 and it is not surprising
that the UN Seabed Committee has thus far made only limited progress in its
own preparation for the forthcoming conference. It is true that agreement was
reached in 1972 on a list of subjects and issues to be considered, but the barest
examination of this list is sufficient to emphasize the magnitude of the prepara-
tory work remaining to be done.4 It includes 25 topics, 63 sub-topics and 19
sub-sub-topics and is accompanied by a caveat that it is not necessarily com-
plete, that it is without prejudice to the position of any State and merely pro-
vides a framework for discussion and drafting purposes. A compilation was
also prepared in Working Group I of the UN Seabed Committee in 1972 and modi-
fied and enlarged in the spring of 1973 illustrating areas of agreement and dis-
agreement with respect to the status, scope and basic provisions of an inter-
national regime based on a Declar~tion of Principles ~dopted by the UN General
Assembly on December 17, 1970. This compilation is in such preliminary
form, however, that it has not moved beyond the working group level. It is
nothing more than a compilation of all the diverse views put forward, with al-
ternative texts being shown in brackets. Brackets predominate throughout the
document and no consensus appears to have been reached on any matters of
substance beyond the following two on which agreement had already been reached
in the 1970 Declaration of Principles, which had been adopted by a vote of 108
to 0, with only 14 abstentions:7
a. That there is an area of the seabed and ocean floor and the subsoil
thereof which is beyond the limits of national jurisdiction of coastal States, thus
putting at rest the construction previously advanced by a few legal scholars - -
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PAGENO="0645"
639
though categorically rejected by most -- that the exploitability clause of the 1958
Geneva Convention on the Continental Shelf in effect turned the Atlantic and
Pacific Oceans into national lakes by permitting the extension of national juris-
diction over seabed resources to mid-ocean whenever technical capabilities per-
mitted exploitation to that distance.
b. That the seabed area beyond the limits of national jurisdiction is the
"common heritage of mankind" -- a concept that is yet to be defined in meaning-
ful detail except for the insistence of the United States Delegation that common
heritage does not mean common property and the specific stipulation in the Dec-
laration of Principles that the international seabed area may not be appropriated
or subjected to claims of sovereignty or sovereign rights by any person or State.
It remains to be seen how rapidly a consensus can be arrived at on the
many controversial issues to be resolved. With the opening session of the forth-
coming conference scheduled for next fall, it is high time, nonetheless, for
the American Bar Association to express its views as to the direction that in-
ternational law should take on the major issues.
3. Prior action by the American Bar Association
The Association has taken no action since the adoption by the House of
Delegates on August 7, 1968, of ABA Resolution 73. This resolution supported
the efforts then being made and now enshrined in the UN Declaration of Prin-
ciples to protect the area beyond the limits of national jurisdiction from claims
of sovereign rights or rights of discriminatory control by any nation or group
of nations and it supported the call by the U. S. Government for internationally
agreed arrangements to be established as soon as practicable governing the
exploitation of the natural resources of the international seabed area, to which
the plans for the forthcoming conference would seem to be an effective response.
It also recommended:
a. That the United States cons~ilt with other parties to the 1958 Conven-
tion on the Continental Shelf with a view to establishing an agreed interpreta-
tion of the definition of the boundary between the area of exclusive coastal State
sovereign rights over seabed resources and the deep ocean beyond.
b. That within the area of exclusive sovereign rights adjacent to the
United States, the interests of the United States in the natural resources of the
submarine areas be protected to tin full extent permitted by the 1958 Conven-
tion on the Continental Shelf.
c. That, on the basis of information then available, the most desirable
long-range goal for a deep seabed regime was not the creation of a supersov-
ereignty with power to grant or deny mining concessions but rather agreement
on norms of conduct designed to minimize conflicts between sovereigns whichunder-
-3-
PAGENO="0646"
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take exploration and development in deep seabed areas.
d. That the resources of the deep seabed area be the subject of study
and consultation with a view to formulating rules and practices to be observed
by common restraint or by other arrangements which will assure, inter alia,
freedom of exploration by all nations on a nondiscriminatory basis, security
of tenure to those engaged in producing the resources in compliance with such
rules, encouragement to discover and develop these resources, and optimum
use to the benefit of all peoples. The resolution closed with the usual authoriza-
tion for ABA spokesmen to express these views to the officials of the Executive
Branch and to Congress.
There have been no indications of any effort on the part of the Executive
Branch to take the action advocated in the first recommendation, but in the
meantime a clear preponderance of authority has developed in favor of the
view that coastal State seabed resource jurisdiction extends to the entire con-
tinental margin. * This, and the increasing importance of the second recom-
mendation that the interest of the United States in the natural resources of the
submarine areas adjacent to its coast be protected to the full extent permitted
by the 1958 Convention on the Continental Shelf, will be discussed at length at
a later point in this report. The third recommendation for norms of conduct
rather than an international regime seems to have been overtaken by events.
The same comment applies in part to the fourth recommendation, though it is
as essential as ever to U. S. national interests that whatever regime is estab-
lished should provide for nondiscriminatory access, security of tenure under
economically viable terms and conditions and optimum use of the resources of
the area to the benefit of all people.
B. Recommendations for further ABA action
It would be impracticable to discuss in this report each of the many points
that have been listed for consideration at the forthcoming conference. Instead,
consideration will be limited to the most critical issues.
1. The breadth of the territorial sea
The 1958 Geneva Conference failed of agreement on the breadth of the
territorial sea for one major reason. The maritime nations were unwilling to
*"Continental margin" is used in this report to refer to the entirety of the natural
prolongation of the continental land mass into and under the sea, including the
continental shelf, the continental slope and at least the landward portion of the
continental rise overlying the continenta~l crust.
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641
agree to a broad territorial sea because of the resultant infringement on high
seas freedoms, while the nations with a vital interest in their coastal fisheries
were unwilling to agree on a narrow territorial sea without agreement on a pre-
ferential fishing zone of suitable breadth beyond the territorial sea. The pos-
sibility of a preferential fishing zone beyond the territorial sea had been pre-
cluded by the agreement of a controlling majority of the 1958 conferees on the
inclusion in the Convention on the High Seas of freedom of fishing as one of the
high seas freedoms to be enjoyed equally by people of all nations in all waters
seaward of the territorial sea. Failure of agreement on the breadth of the ter-
ritorial sea was the inevitable consequence.
The United States and Canada attempted to break the impasse at the fol-
low-up 1960 conference devoted to this single is sue, by a proposal for a terri-
torial sea to a maximum of 6 nautical miles and an additional exclusive fishing
zone beyond the territorial sea extending to a maximum limit of 12 nautical
miles from the baseline used for measuring the territorial sea. A ten-year
period was proposed for the phasing out of such foreign fishing rights as could
be shown to have been exercised within this zone during the five-year period
immediately preceding January 1, 1958, with the proviso that any existing bi-
lateral or multilateral treaties on the subject would remain in force between or
among the parties thereto according to their terms. 8 The proposal failed by a
single vote, however, to obtain the necessary two-thirds majority required by
the conference rules for incorporation into a treaty. ~ The breadth of the ter-
ritorial sea has been in issue ever since, with the United States refusing to
recognize any breadth greater than 3 miles in the absence of international agree-
ment.
It is to be noted, in this regard, that the 1960 proposal of the United
States and Canada constituted an acknowledgment that a consensus on a rela-
tively narrow territorial sea could be obtained only through modification of
the 1958 Convention on the High Seas to give some measure of recognition to
coastal State preferential fisheries rights in adjacent high seas waters and,
following the failure of the 1960 conference to reach agreement, the United States
in 1966 moved unilaterally to assert a l2-mile preferential fisheries zone with-
out modifying its stand on a three-mile territorial sea. 10
In the current negotiations in the UN Seabed Committee, the approach is
once again one of separating the extent of coastal State preferential fisheries
rights from the breadth of the territorial sea and the two topics will therefore
be discussed separately in this report. At the same time, it must be recog- -
nized that they continue to be inextricably interrelated and that there is no
reasonable possibility of attaining a broad consensus on either topic without
simultaneous agreement on both.
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PAGENO="0648"
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With respect to the territorial sea, the position of the United States as
enunciated in the UN Seabed Committee in August 1972 is that the United States
is now prepared to accept 12 nautical miles as the maximum breadth of the
territorial sea, but only on the condition that it be incorporated in a treaty that
will achieve widespread international acceptance and that it be coupled with an
agreement on free transit through and over straits used for international navi-
gation that could be overlapped by territorial waters under the new agreement.
It is understood, in this connection, that there are 116 straits between 6 and 24
nautical miles in width. The United States Representative agreed to reasonable
traffic safety and pollution-prevention regulations consistent with the basic
transit right, but expressed the firm belief that they should be established by
international agreement and should not be unilaterally imposed by the coastal
State, though the latter should have appropriate rights of enforcement.
Almost 70 nations claim territorial seas of 12 miles or more in breadth'2
and the U. S. Representative is undoubtedly correct in his conclusion that there
is no possibility of broad agreement on any maximum breadth of the territorial
sea of less than 12 nautical miles. At the same time, the trend away from the
historic 3-mile limit has been so closely associated with the pressure for greater
fishing rights that there is logical ground for the argument that a satisfactory
resolution of the fisheries question should permit a rolling back of the territorial-
sea claims to something less than 12 miles. The narrower the breadth agreed
upon, the fewer the number of straits that would be overlapped by territorial
waters, with a corresponding decrease in the potential sources of interference
with international navigation. It is therefore urged that any and every possibility
in this direction be carefully explored before a final U. S. commitment is made to
the 12-mile limit.
While most public discussion has focused on the military need for uninter-
rupted transit of straits used for international navigation, the need is no less
vital from the standpoint of commercial navigation. Petroleum, which is the
principal source of the energy on which the economic development and well-being
of every nation in the world is dependent, alone accounted for some 29 million
barrels per day of international ocean traffic in 1972, utilizing about 45% of the
total shipping tonnage in international commerce on the world's oceans, and,
according to a National Petroleum Council (NPC) estimate, will account for over
twice as large a volume by 1985. 13
The United States itself is facing a rapidly increasing dependence on im-
ported energy, and the NPC has predicted that by 1985 the United States will be
importing over 50% of its oil requirements, of which 10 to ~ million barrels
per day will be waterborne imports of crude and products. Petroleum will
represent by far the largest single item of imports into the United States, as
it does in many other countries, and it is highly important from the standpoint
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643
both of our balance of payments and our national energy costs that this petroleum
be allowed to move to the United States at the lowest possible cost, free from
unilateral interference by individual coastal States either with the choice of
routes or with the size, construction or operation of the tankers employed in its
movement. For example, the NPC has estimated that a reduction in transport
costs from the Persian Gulf to U. S. ports of approximately $0. 35 per barrel,
or several million dollars per day, could be achieved if all oil from this major
supply source for 1985 import requirements were to be transported in 250, 000
DWT tankers rather than tankers of 50, 000 to 70, 000 DWT capacity.
Petroleum has been mentioned because of its importance, but the same
considerations apply, in varying degree, to every commodity moving in water-
borne international commerce.
The Administration's position regarding unimpeded transit of straits
used for international navigation appears well designed to protect international
navigation and overflight from arbitrary, unilateral action of individual coastal
States. Any balancing of the interests of the entire community of nations against
those of the States located on the shores of straits used for international transit
would seem clearly to call for internationally agreed, rather than unilaterally
imposed, rules governing safety of navigation and prevention of pollution, pro-
vided only that the internationally agreed rules are reasonably designed to protect
the legitimate needs of the coastal States.
There are two points with respect to which it is felt that the position
expressed by the U. S. Representative needs to be augmented. The first relates
to his acknowledgment that internationally agreed rules relating to safety of
navigation in straits used for international navigation have to be enforced and that
the coastal State should have enforcement rights in this regard with respect to
straits lying within its territorial waters, including the right of arrest of a ~iip
in serious cases, or, if it be a warship, the right to require its departure.
While no exception is taken herein to coastal State rights in this regard so long
as they are clearly in implementation of the internationally agreed standards,
the very existence of a right of arrest necessitates the inclusion in the treaty of
adequate provision for the prompt release under bond of vessels so arrested.
Otherwise, the entire purpose of the international standards could be effectively
vitiated by arbitrary detentions.
The second point relates to archipelagic waters. Claims that all waters
within the perimeter of the archipelago are internal waters of the State, and
hence within its full sovereignty for all purposes, have been asserted by a
number of archipelago States, the largest geographical areas being embraced
by those of Indonesia and the Philippines. If these claims are recognized in
whatever treaty evolves from the negotiations now in progress, vast areas of
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PAGENO="0650"
644
the sea will be affected, particularly in the central western portion of the
Pacific and the adjacent seas.
Under traditional concepts of customary international law, international
sea routes through these archipelagoes clearly enjoy the status of high seas
waters, and navigators have been free to vary those routes in keeping with the
changing patterns of world trade. The right of unimpeded international transit
through archipelagoes is of as high importance to the community of nations as
a whole as it is with respect to straits used for international navigation.
Treaty recognition of archipelagic waters as internal waters of the
States concerned would impose disastrous limitations on international commerce.
It is therefore of the utmost importance that any agreement modifying in any way
the high seas status of archipelagic waters be conditioned on provisions com-
parable to those proposed for straits used for international navigation, couched
in terms broad enough to cover not only existing routes but such possible new
routes as may better serve the needs of changing patterns of international com-
merc e.
2. The outer limit of the legal continental shelf
The definition of the continental shelf in conventional international law
is found in Article 1 of the 1958 Convention on the Continental Shelf'7 to which
51 States are now parties, an increase of 14 since the question of the limits of
national jurisdiction over seabed resources was firs~8brought before the United
Nations by the Malta Resolution of August 18, 1967. This article defines the
term continental shelf' as usedin the Convention as referring
(a) to the sea bed and subsoil of the submarine areas adjacent to
the coast but outside the area of the territorial sea, to a depth of
200 metres or, beyond that limit, to where the depth of the super-
jacent waters admits of the exploitation of the natural resources of
the said areas; (b) to the sea bed and subsoil of similar submarine
areas adjacent to the coasts of islands.
In turn, Article 2 of the Convention confirms the exclusive sovereign rights of
the coastal State over the continental shelf as thus defined for the purpose of
exploring it and exploiting its natural resources.
The interpretation of this language has been extensively dealt with in
two prior reports and need not be reviewed at length here. The 1968 Joint
Report of the Sections of Natural Resources Law and International and Compara-
tive Law and the Standing Committee on Peace and Law Through United Nations,
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PAGENO="0651"
645
which served as the basis for Resolution 73 adopted by the House of Delegates
in August of that year, concluded that
* . . the exclusive sovereign rights of the coastal nations with
respect to the seabed minerals now embrace the submerged land
mass of the adjacent continent down to its junction with the deep
ocean floor, irrespective of depth. 19
When a number of members of the sections and the standing committee
that had submitted this report said that the quoted language did not accurately
reflect their views, the matter was intensively reexamined and a second joint
report was submitted by the same two sections and standing committee in
August of 1969, concluding as follows:
We reaffirm our opinion that the concept of adjacency contained
in the present Shelf Convention should properly be interpreted to
include the submerged continental land mass. In the view widely
held among our members, all of the submerged continental land
mass is subject to national jurisdiction over its natural resources.
In the view of a significant number of our members any part of this
land mass will come within rational jurisdiction as soon as it becomes
accessible to exploitation. 0
It is to be noted that the Committee on Deep Sea Mineral Resources of
the American Branch of the International Law Association, in its Second Interim
Report of July 1970, supported the second of these views, saying:
rights under the 1958 Geneva Convention on the Continental
Shelf extend to the limit of exploitability existing at any given time,
within an ultimate limit of ad~acency which would encompass the
entire continental margin.
There is growing support for the first-mentioned view, however. The Inter-
national Court of Justice, in the North Sea Continental Shelf Cases,had con-
firmed coastal State continental-shelf rights as a matter of customary inter-
national law in the following incisive language:
what the Court entertains no doubt is the most fundamental
of all the rules of law relating to the continental shelf, enshrined
in Article 2 of the 1958 Geneva Convention, though quite independent
of it, - - namely the rights of the coastal State in respect of the area
of continental shelf that constitutes a natural prolongation of its land
territory into and under the sea exist ipso facto and ab initio, by
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PAGENO="0652"
646
by virtue of its sovereignty over the land, and as an extension
of it in an exercise of sovereign rights for the purpose of
exploring the seabed and exploiting its natural resources. In short,
there is here an inherent right. In order to exercise it, no special
legal process has to be gone through, nor have any special legal
acts to be performed. Its existence can be declared (and many States
have done this) but does not need to be constituted. Furthermore,
the right does not depend on its being exercised. To echo the language
of the Geneva Convention, it is "exclusive' in the sense that'if the
coastal State does not choose to explore or exploit the areas of shelf
appertaining to it, that is its own affair, but no one else may do so
without its express consent. 22
As of a year ago, some ill Free World political entities, including a
few colonies and protectorates, had awarded offshore concessions or leases and
55 of them had done so in waters extending at least in part beyond the 200-meter
isobath and, in a few instances, ~uch as Canada and South-West Africa, into
depths of 3, 000 meters or more. It is the view of Professor R. Y. Jennings
of the University of Cambridge, a recognized authority on the law of the conti-
nental shelf, that, as consequence of this widespread State practice, his a
priori conclusion that the coastal States have exclusive jurisdiction over the
continental slope and the subsoil of that part of the natural prolongation of their
land mass is in the process of confirmation as a matter of customary inter-
national law. 24-25 In other words, there is reason to conclude that the "exploi-
tability" concept has been overtaken by a new peremptory norm of customary
law and that it is no longer a condition to present jurisdiction of the coastal
States over the seabed resources of the continental margin.
It is unnecessary to come to a categorical conclusion on the point, as it
is sufficient to say that the ultimate if not the present seabed resources juris-
diction of the United States embraces the entire continental margin and that it is
to the entire continental margin that the second recommendation of Resolution 73
refers when it calls for the protection of the full interests of the United States
under the 1958 Convention on the Continental Shelf. This naturally follows from
Ambassador Arthur H. Dean's description of the "exploitability" clause of
Article 1 of the Convention as "LT/he clause which protects the right to utilize
advances in technology at greater depths Lthan 200 meters! beneath the oceans,"
in his appearance on behalf of the Department of State before the Senate Committee
on Foreign Re~ations in the ratification hearings on the Convention on the Conti-
nental Shelf. 2
The initial position of the United States in the on-going UN deliberations
was in direct contradiction to the course of action recommended in ABA Resolu-
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PAGENO="0653"
647
tion 73. Instead of protecting the interests of the United States to the full extent
permitted by the 1958 Convention on the Continental Shelf, a draft seabeds
treaty tabled by the U. S. Delegation on August 3, 1970, defined the International
Seabed Area, described as `the common heritage of all mankind", as comprising
all areas of the seabed and subsoil of the high seas seaward of the 200 meter
isobath adjacent to the coast of continents and islands.
It further prescribed that
ARTICLE 2
1. No State may claim or exercise sovereignty or sovereign
rights over any part of the International Seabed Area or its
resources. Each Contracting Party agrees not to recognize
any such claim or exercise of sovereignty or sovereign rights.
2. No State has, nor may it acquire, any right, title, or interest
in the International Seabed Area or its resources except as pro-
vided in this Convention.
These two provisions, taken together, would, if agreed upon, constitute a re-
nunciation of all sovereign rights under the 1958 Convention on the Continental
Shelf with respect to that portion of the continental margin lying beyond the terri-
torial sea in waters deeper than 200 meters. In exchange, the United States
would, under the terms of the draft treaty, receive certain rights as trustee
for a proposed International Trusteeship Area comprising that part of the U. S.
continental margin lying under high seas waters seaward of the 200-meter iso-
bath, including the right to determine whether to issue licenses for exploration
and exploitation at all and, if so, to whom. These rights would only be by
delegation, however, and would be subject to a wide variety of overriding inter-
national controls spelled out in the draft treaty, including their temporary sus-
pension, in whole or in part, in the event of treaty violations, and might not
survive a possible future withdrawal of the United States from the treaty for
any reason.
Fortunately, it is unnecessary to consider this draft treaty in detail,
as it no longer represents the position of the United States on the basic question
of the limits of national jurisdiction over seabed resources. Very little support
for the draft was forthcoming in the deliberations of the UN Seabed Committee
and the trusteeship concept was widely criticized. The developing coastal
States for the most part came out in favor of a broad zone of coastal State juris-
diction, variously expressed in terms of a "patrimonial sea" or an "economic
zone," of up to 200 miles from the coast.
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PAGENO="0654"
648
In recognition of these developments, the U. S. Representative announced
to the UN Seabed Committee in a speech of August 10, 1972, that
~U~bIdA ~.esources Generally
Mr. Chairman, in order to achieve agreement, we are pre-
pared to agree to broad coastal State economic jurisdiction in adjacent
waters and seabed areas beyond the territorial sea as part of an over-
all law of the sea settlement. However, the jurisdiction of the coastal
State to manage the resources in these areas must be tempered by
international standards which will offer reasonable prospects that the
interests of other States and the international community will be protected.
It is essential that coastal State jurisdiction over fisheries and over the
mineral resources of the continental margins be subject to international
standards and compulsory settlement of disputes.
Seabed Resources - - Coastal Areas
We can accept virtually complete coastal State resource
management jurisdiction over resources in adjacent seabed areas if
this jurisdiction is subject to international treaty limitations in five
respects:
1. International treaty standards to prevent unreasonable inter
ference with other uses of the ocean. A settlement based on combining
coastal State resource management jurisdiction with protection of non-
resource uses can only be effective if the different uses are accommo-
dated. This requires internationally agreed standards pursuant to which
the coastal State will ensure, subject to compulsory dispute settlement,
that there is no unreasonable interference with navigation, overflight
and other uses.
2. International treaty standards to protect the ocean from
pollution. As a coastal State, we do not wish to suffer pollution of the
oceans from seabed activities anywhere. We consider it basic that
minimum internationally agreed pollution standards apply even to areas
in which the coastal State enjoys resource jurisdiction.
3. International treaty standards to protect the integrity of
investment. When a coastal State permits foreign nationals to make
investments in areas under its resource management jurisdiction, the
integrity of such investments should be protected by the treaty. Security
of tenure and a stable investment climate should attract foreign invest-
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PAGENO="0655"
649
ment and technology to areas managed by developing coastal States.
Without such protection in the treaty, investment may well go else-
where.
4. Sharing of revenues for international community purposes.
We continue to believe that the equitable distribution of benefits from
the seabeds can best be assured if treaty standards provide for sharing
some of the revenues from continental margin minerals with the inter-
national community, particularly for the benefit of developing countries.
Coastal States in a particular region should not bear the entire burden
of assuring equitable treatment for the landlocked and shelf-locked
States in that region, nor should they bear the entire burden for States
with narrow shelves and little petroleum potential off their coast. The
problem is international and the best solution would be international.
We repeat this offer as part of an overall settlement despite our conclu-
sion from previous exploitation patterns that a significant portion of the
total international revenues will come from the continental margin off
the United States in early years. We are concerned about the opposition
to this idea implicit in the position of those advocating an exclusive
economic zone.
5. Compulsory settlement of disputes. International standards
such as those I described are necessary to protect certain non-coastal
and international interests, and thus render agreement possible.
Accordingly, effective assurances that the standards will be observed is
a key element in achieving agreement. Adequate assurance can only
be provided by an impartial procedure for the settlement of disputes.
These disputes, in the view of my delegation, must be settled ultimately
by the decision of a third party. For us then the principle of compulsory
dispute settlement is essential.
Whether broad jurisdiction' is synonymous with jurisdiction over the
continental marg~n remains to be seen. Until the Declaration of Santo Domingo
of June 7, 1972, 8 the emphasis in the UN debates was on a breadth of the patri-
monial sea or economic zone of up to 200 nautical miles, with virtually no
reference to the continental margin as such. It has been pointed out on several
occasions in the debates, however, that consideration must be given to existing
rights under the 1958 Convention on the Continental Shelf and, in the Declaration
of Santo Domingo, the Latin American countries supplemented their claim to a
patrimonial sea with an independent assertion of continental shelf rights. In
apparent implementation of this declaration, Colombia, Mexico and Venezuela
have introduced in the UN Seabed Committee draft treaty articles which would
give independent recognition to patrimbnial sea rights extending up to 200
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PAGENO="0656"
650
nautical miles from the applicable baseline for measuring the territorial sea
and to continental shelf rights extending to the outer limits of the continental
rise bordering on the ocean basin or abyssal floor. ,,28a
The terms of the Vienna Convention on the Law of Treaties should be so
fresh in the minds of all participants in the deliberations on the law of the sea
that they should be well aware that rights under the 1958 Convention on the Con-
tinental Shelf or the customary law as enunciated in the North Sea Continental
Shelf Cases cannot be taken away from any State without its consent. `~ Accord-
ingly, there is a reasonable likelihood that increasing attention will be given to
the continental margin, or the continental margin coupled with a minimum dis-
tance from shore, as the measure of coastal State jurisdiction over seabed re-
sources.
A measure of the latter type, viz., the continental margin but not less
than a specified distance from shore, would clearly conform to the intention of
the framers of the 1958 Convention so long as the specified distance was great
enough to provide the "equity" intended for States with rapidly descending con-
tinental margins, 30 such as Chile and Peru, and, interestingly enough, the United
States as well, as regards parts of the U. S. Alaskan coast. At the same time,
it must be recognized that there is still the possibility that a majority of the
conferees will prefer to define the limits of national jurisdiction in terms of an
agreed distance from shore alone. The resources beyond the 200-meter isobath
are vast: the U. S. Geological Survey.has estimated the total potential resources
in place on the outer portion of the U. S. Outer Continental Shelf between the 200-
meter and 3, 000-meter isobaths as 640 to 800 billion barrels of crude oil and
1, 590 to 2,230 trillion cubic feet of natural gas. 31 It must, of course, be ack-
nowledged that potential resources in place are far from the same thing as
proved reserves, recoverable under current economics and technology, and
that, with rare exceptions, such as in the deeper waters of the Santa Barbara
Channel where significant deposits have been found in from 1,000 to 1, 300 feet
of water relatively close to shore, advances in technology and increases in sup-
portable costs will be necessary before these resources can be brought into
production. They are, nevertheless, of incalculable future value to the Nation.
It is pertinent in this regard to note two forecasts of the NPC. The
first is the 1969 estimate that
In view of the extent of present research and engineering, it is reason-
able to expect that a technical capability will be developed to provide a
complete system for exploration and exploitation in water depths of at
least 1, 500 feet (457 meters) within the next 3 to 5 years and in water
depths approximating 4, 000-6, 000 feet (1,219-1, 82~2meters) within
the next decade, if warranted by economic factors.
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PAGENO="0657"
651
Subsequent events have confirmed the reasonableness of this forecast. A sig-
nificant commercial discovery in 1,000 to 1, 300 feet of water in the Santa
Barbara Channel has been withheld from production for more than a year only
because of difficulties in obtaining ecological clearances and a well has recently
been drilled off the coast of Indonesia in some 2, 500 feet of water.
The second is the forecast of the NPC that with no improvement in the
factors affecting U.S. supply and demand of energy, we are facing a 1985
balance-of-payments deficit from energy products alone of $31. 7 billion per annun
and that with the most favorable improvement in these factors that can reasonably
be expected the figure would run somewhere between $15. 3 and $22. 9 billion per
annum. ~ These estimates were prepared before the second devaluation of the
dollar and are already on the low side for that reason.
In view of these facts, it is of transcendent importance that effective
steps be taken to safeguard existing national rights to the resources of the en-
tire U.S. continental margin and to accelerate the availability of those re-
sources to meet the energy needs of the Nation. The proposal in the President's
Energy Message of April 18, 1973, that leases on the Outer Continental Shelf
(OCS), including those in waters deeper than 200 meters, be expedited is a move
in the right direction; but the express condition that leases in waters deeper than
200 meters be subject without limitation to an international regime to be agreed
upon is not; nor is the similar condition in the implementing Call for Nominations
of Areas for Oil and Gas Leasing issued on the same day by the Department of
the Interior.
The rights of the United States to seabed resources for at least an exten-
sive distance beyond the 200-meter isobath are beyond dispute; the Department
of the Interior in prior years has issued leases off the coast of California in
water depths'ranging to 4, 000 feet and has pthlished lease maps for areas off
the same coast with water depths as great as 6, 000 feet without the slightest
suggestion from any foreign ~overnn~ nt that we were not entirely within our
national rights in so doing. 34a No one of the other 54 political entities pre-
viously mentioned as having issued leases or concessions in water depths
greater than 200 meters has imposed comparable conditions of any kind; nor
is there the slightest indication that they will do so in the future. The invita-
tion in the President's Statement on U. S. Oceans Policy of May 23, 1970, for
a joint interim policy of this type has gone wholly unanswered.
The United States derives its revenues from OCS leases from a combina-
tion of bonus payments, rentals, royalties and income taxes. There is no pos-
sibility that any international seahed regime that is to be agreed upon will adopt
precisely identical revenue provisions to those of the United States, nor is there
any indication in either the President's Energy Message or the call for nomina-
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23-317 0 - 73 - 42
PAGENO="0658"
652
tions as to how and to what extent payments under an OCS lease issued pursuant
to the call will be creditable against financial obligations of the OCS lessee under
the unknown terms of the yet-to-be-negotiated treaty. There is a critical hiatus
here that is in urgent need of clarification.
For the reasons explicitly stated by a Special Committee of the Commit-
tee on Interior and Insular Affairs of the United States Senate in 1970, it is fur-
therurged that the proposed condition applicable to OCS leases in waters deeper
than 200 meters should be eliminated in its entirety:
With respect to the. sugeestion that leases, pursuant to the Outer
Continental Shelf Lands Act of 1953, app1yin~ to areas of our con-
tinontal margin beyond the 200-meter isobath, be issued subject to an
unknown recime to be ssgrced upon, we have these objections:
(I) Including such a prorision in our leases would undoubtedly cast a
dcnsd on our present title te the natural resources of our continental margin;
(2) casting such a clo'id en our title to the natural resources of our con-
tinental margin would be tantamount to accepting as binding the U.N.
Moratorium Resol'stion purporting to call a hal' to further exploration
and exploitation of the seabed. (It is to be recalled that the United
States voted ogainst this Resolution and the U.S. Delegate denounced
it on the floor of the U.N. G,.neral Assembly;)
(3) Including such a prorision would create such etncertainties on the
part of the potential lessee that he would decline to enter into such a leasing
agreement. Witnesses before this committee confirmed these contentions.
One of them stated that imposing such an open-ended condition on a
lease would be asking industry to `buy a pig ire a poke". Such an arrange-
ment clearly wossld disco'srage indsistry from, rather than encourage it
to, make the hssqe investments necessary to recover the resources located
at depths greater than 200 meters;
~4) Inrln'ling such a provision in leases issued for areas beyond a
depth of 200 meters wo'slrl deny to the UnitedStates revenues aecr'sing
from bonus bids and royalties which would other-wise accrue to the U.S.
Treezeitru.
Accordingly, we feel that elssring the interim period prior to the entry
into force of a future seabed treaty, U.S. leases beyond the 200-meter
i.sobath shosild no! be is.s'sed subject to any .fvtnre regime. Rather they
should be governed by existing asrav.qements as provided for in the Outer
Continental Shelf Lands Act of 1953 and the 1958 Geneva Convention
on the continental Shelf, and this can be achieved through providing
within the fut sire seabed treaty that the trect'j shall not in any way ntodify
the terms of leases, applying to areas of the continental margin beyond
the 200-mct~r depth contossr, with respect to the rights and obligations
of the lessee. Without such assurances the investor in off-shore mineral
development could not make a rational investment in such a high-risk
venture. 3'tb -
In addition to the sharing of revenue, the U. S. Representative stated in
his speech to the UN Seabed Committee of August 10, 1972, that coastal State
management jurisdiction over resources in adjacent seabed areas should be
subject to international treaty standards (a) to prevent unreasonable interfer-
ence with other uses of the ocean, (b) to protect the ocean from pollution, (c)
NB. 34b is footnote reference.
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PAGENO="0659"
653
to protect the integrity of investment, and (d) to provide for the compulsory set-
tlement of disputes. Silence of interim OCS leases on the applicability of a future
international seabed treaty would have no adverse impact on the achievement of
these last four objectives, as it is clearly within the reserve powers of the U. S.
Government to make agreed international standards on all four of these points
equally applicable to existing and new leases on the OCS. It would remain only
for the U.S. Government to discharge any revenue-sharing obligations applic-
able to existing leases, saving the OCS lessees harmless against any financial
obligations in excess of those assumed under the terms of their leases.
Should the Administration deem it essential to make some reference to
the application of any new international seabed treaty to OCS leases of areas in
water depths greater than 200 meters, an acceptable solution would be a lease
clause subjecting such leases to international treaty standards covering points
(a), (b), (c) and (d) above but indemnifying the lessee against modification of
his lease rights and obligations in any other respect.
All four of these standards will be discussed in connection with the regime
for the international seabed area and the reasons advanced there in favor of the
prevention of unreasonable interference with other uses of the ocean and the pro-
tection of the ocean from pollution apply equally to the contir~ ntal shelf or any
newly-recognized zone of coastal State economic jurisdiction.
With respect to the protectionof the integrity of investments and the com-
pulsory settlement of disputes, Mr. Leigh S. Ratiner and Miss Rebecca L.
Wright of the Department of the Interior have made the following highly sig-
nificant remarks in their recent article in the NATURAL RESOURCES LAWYER
on United States Ocean Mineral Resource Interests and the United Nations
Conference on the Law of the Sea:
The fact is that considerable oil prospects can be anticipated in politi-
cally secure areas of the ~vorld-areas which under the Continental Shelf
Convention would eventually become subject to national jurisdiction.
Taking into account the United States continental margin, the North Sea,
the large Soviet potential and the Canadian continental margin, it should
be obvious that for a substantially increased investment large sources of
petroleum are available which do not require investing in politically un-
stable areas of the world. In the long run, the United States and other
industrially advanced countries do have alternatives to heavy dependence
for petroleum on certain regions of the world.
Thus, treaty provisions which would protect the integrity of investment
should be of interest to the developing countries as much as they are to
the developed. Developing countries, to the extent they are suspect by
major investors because of an expropriation, frequently require a period
of years in order to regain investor confidence. Willingness to accept a
treaty obligation to protect the integrity of investment might substantially
shorten that waiting period and enhance many developing countries'
prospects for attracting oil company investment.
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PAGENO="0660"
654
There is another potential advantage if the developing countriea accept
the concept of the "integrity of investment." We have seen in the Seabeds
Committee a reluctance on the part of developed countries to accept the
principle of revenue sharing which has been so vigorously promoted by the
developing countries. It is possible that developed countries would be
less reluctant to accept revenue sharing if they could foresee tangible
benefits with respect to their foreign investment accruing as a direct result
of their willingness to share revenues off their own coasts. If our earlier
analysis is correct, i.e., that in the absence of "integrity of investment"
developed country capital wilt flow into coastal areas adjacent to devel-
oped countries, it should be obvious that there will be little incentive on
the part of developed countries to share revenues from areas off their own
coasts.35
It seems clear that the United States and other developed countries in-
terested in a secure foreign investment climate should condition any sharing of
revenues from their continental margins on the acceptance by the developing
countries of treaty provisions protecting the integrity of investments and re-
quiring compulsory dispute settlement with respect to seabed activities on the
continental shelf and other zones of economic jurisdiction as well as those in the
international seabed area.
There is, however, a caveat with respect to revenue sharing itself. Upon
the ratification of a law-of-the-sea treaty recognizing the seabed area beyond the
limits of national jurisdiction as the common heritage of all mankind, it is only
logical that the international regime would then be entitled to a substantial share
of the governmental revenues derived from mineral resource activities in this
portion of the sea. The same cannot be said of the continental margin, however.
Here, sovereign rights for the purpose of exploration and exploitation of seabed
resources clearly appertain to the coastal States and, while quieting of their
title to the seabed resources of the outer reaches of the continental margin
would be of value to them, their rights under existing international law seem
entirely too clear to support any major surrender of revenues.
The United States should mi ke no commitment on the sharing of revenues
from the II. S. continental margin in excess of formulae receiving the approval
of the great body of coastal States facing on the open sea and applicable equally
to them. Moreover, the level of revenue sharing from the U. S. continental
margin should be determined in the light of the long-range outlook for the U. S.
balance of payments, bearing in mind the bleak outlook for energy products sum-
marized above. An international community share of governmental revenues
of the magnitude proposed in the U. S. draft treaty -- 50% to 66 2/3% -- would
appear to be far beyond any conceivable limit of acceptability. Inasmuch as
revenues from the exploitation of the continental and insular margins beyond
the 200-meter-depth line, particularly in the case of the United States, may
run lnto billions of dollars, an international community share of the order of
the 2% reported to have been proposed by the Department of State in the inter-
-18-
PAGENO="0661"
655
departmental deliberations preceding the issuance of the President's Statement
on U.S. Oceans Policy of May 23, 1970, would appear to be much nearer to the
mark. 35a With respect to the interim OCS leases, any share that is agreed upon
should, as previously noted, be for the exclusive account of the U. S. Government
and not an additional burden on the lessee.
As one final comment on this topic, mention should be made of the oft-
repeated contention that it is short-sighted to think only of the United Statest
own offshore resources of oil and natural gas, that one should think globally.
The argument continues that, in the light of recent actions of the Organization
of Petroleum Exporting Countries (OPEC) in enforcing uniform bargaining con-
ditions and ever-escalating prices and producing-country shares in oil revenues,
the national interest would be better served by narrow limits of coastal State
jurisdiction which would give U. S. companies access to correspondingly greater
areas off the shores of other countries, where they could explore for and exploit
the seabed resources of oil and natural gas under the governance of a secure and
stable international regime.
This argument cannot survive critical analysis. In the first place, a de-
termined effort is being rrade by a number of countries to vest the international
seabed regime with even greater monolithic power than that of OPEC. This re-
port urges determined resistance to that effort; but, with the voting strength of
the developing countries in the forthcdming conference, the degree of security
and stability to be provided by the final text of the treaty remains an unknown
quantity. Of still greater significance is the fact that not anther coastal State
with prospects of substantial seabed résourcess off its shores beyond the 200-
meter water depth has shown the slightest inclination to relinquish jurisdiction
over those resources to the international community and it cannot be expected
that any meaningful number of them will do so.
3. Coastal State preferential fishing rights beyond the territorial sea
Both fishing practices and the importance of fisheries to the local economy
vary widely from country to country. The fishermen of many countries including
Peru, the country with the largest fisheries catch in the world, fish off their own
coasts; the Russian fishermen, possessors of the most sophisticated fishing fleet
in the world, range far and wide, as do the Japanese. Even the fishermen of
little Kuwait fish throughout the Persian Gulf and on both the east and west coasts
of Africa. Some coastal areas, such as that of Kenya, are biologically unproduc-
tive with little or no fishing by anyone. Others are rich in fisheries but arc fished
primarily or even solely by local fishermen. Still others, such as the Georges
Bank, the Grand Banks and the Icelandic shelf, have attracted both local and
foreign fishermen for decades or even centuries. In some countries, such as
Iceland, revenues from fisheries are a mainstay of the local economy; in others,
such as the United States, they are a minor fraction of the GNP but are no less
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PAGENO="0662"
656
important for that reason to the individuals who are directly dependent on
fisheries for their livelihood.
This diversity has led to differing national policies and at times to serious
clashes, such as those involving British trawlers off Iceland and U. S. tuna ves-
sels off the Pacific Coast of South America. As a consequence, proposals on
fisheries jurisdiction thus far advanced to the UN Seabed Committee have covered
a wide range. At one end of the spectrum are a few countries which favor no
change in the present status of fishing as a high seas freedom. At the other end
are a great number of countries which favor full coastal State sovereign rights
over all the fish within a broad `economic zone"~6 or "patrimonial sea"37 ex-
tending up to ZOO nautical miles from the coast. A few States, including the
United States, have advanced proposals somewhere in between these two ex-
tremes.
Before reviewing the key elements of the U. S. proposal, it is pertinent
to note that there are two principal aspects of the fisheries problem. The first
is the aspect of conservation; the second, the aspect of exploitation.
The problem of assuring the maximum sustainable yield of fisheries is
not as easy to resolve as it is to state, but the objective here is manifestly in
the common interest of the entire community of nations and a widely acceptable
agreement should therefore be possible. Accordingly, this discussion will con-
centrate on the thornier question of exploitation.
Some 80% of the annual harvest of U. S. fishermen is caught off our own
coasts, with distant-water tuna and shrimp fishermen accounting for most of the
balance. It was impossible to design a policy that would give full protection to
the interests of both local and distant-water shrimpmen but, aside from this,
the U. S. revised draft fisheries article tabled with the UN Seabed Committee on
August 4, 1972, would appear to give the maximum practicable protection to U.S.
fisheries interests. 38
This draft adopts a species rather than a zone approach. For coastal
and anadromous species, the coastal State would have, throughout their nhigra~ç~y
~ both regulatory authority* and preferential fisheries rights to the extent
of that portion of the allowable annual catch that the flag vessels of the coastal
State could harvest. Access to that portion of the allowable catch not fully
utilized by the coastal State would be provided to non-coastal States on a priority
basis in the following order:
a. - States that have traditionally fished for the species;
b. Other States in the region, particularly landlocked States and
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PAGENO="0663"
657
other States with limited access to the resources, with whom joint or recipro-
cal arrangements have been made; and finally,
c. All other States, without discrimination among them.
States given access to a species under these provisions could be required, with-
out discrimination, to pay reasonable fees to the coastal State to defray their
share of the cost of regulation. The primary guide in the calculation of the al-
lowable catch would be the maintenance or restoration of the maximum sustain-
able yield.
With respect to highly migratory species, regulatory authority would be
vested in appropriate international fishery organizations in which any coastal
State or other State whose flag vessels harvest or intend to harvest a regulated
species would have the right to participate and with which all States whose flag
vessels harvest a regulated species would be obligated to cooperate.
Provision is made in the draft for technical assistance to developing
States, for appropriate enforcement action by coastal States and international
fisheries organizations, and for compulsory dispute settlement by a special
commission unless the parties agree to seek a solution by another method of
peaceful settlement, as provided for in Article 33 of the Charter of the UN.
Pending final award, measures in dispute relating to conservation shall be ap-
plied and the commission may decide whether and to what extent other meas-
ures should be applied pending its final award.
Aside from the Latin American countries, U. S. fishermen have their
greatest amount of contact with fishermen of Canada, Russia and Japan and it
would therefore be useful to make brief comments on the proposals advanced
by these countries.
The Canadian proposal is somewhat similar to that of the United States
but visualizes the possible need for some limitation on the geographical sweep
of coastal State control over certain species of coastal fisheries and also the
possible need of accommodating the interest s of the coastal States in wide-
ranging species during the period in which they inhabit coastal waters, "taking
into account the degree of dependence of individual species on coastal waters."39
The Russian proposal is a mixed zone and species approach. It would
give preferential rights to the coastal States only in the areas of the high seas
"directly adjacent" to the 12-mile limit. The preferential right would be to
such portion of the allowable catch as can be taken by vessels navigating under
the coastal State's flag. With respect to anadromous species spawned in na-
tional waters, the preferential right would be enjoyed by all coastal States; with
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PAGENO="0664"
658
respect to all other species, it would be enjoyed only by developing coastal
States. In all cases, existing international fisheries agreements would take
precedence and would continue in effect where applicable according to their
terms. The determination by a coastal State of the allowable catch of a species
would have to be made on a scientific basis in agreement with other States
fishing the area. The excess of the allowable catch over and above any coastal
State preference would be available to all on a first-come, first-served basis
without any arrangement for allocation of quotas; and arbitration of disputes
would be on a "may" rather than a "must" basis. 40
Japan, on its part, with U. S. and Canadian salmon undoubtedly in mind,
would treat anadromous species the same as other highly migratory stocks, with
no preferential rights for coastal States and with both conservation and regula-
tion of the species involved to be determined by regional or international con-
sultation or agreement. For other species, developing coastal States would be
accorded preferential rights in the areas of the high seas "adjacent" to the 12-
mile limit to the extent of the allowable catch that it could harvest, with a sug-
gested upper limit of 50%; but for developed coastal States, the preferential
rights would be limited to
that portion of the allowable catch of a stock of fish which is necessary
to maintain its locally conducted small-scale coastal fisheries, 41
duly taking into account the interests of traditionally established fisheries of
other States. The Japanese proposal, like that of the United States, includes
provisions for binding arbitration in the absence of mutual agreement on another
means of peaceful settlement, and also for interim protection of interests during
the settlement of disputes.
It is abundantly clear from this review that the participants in the delib-
erations of the UN Seabed Committee are still far apart in their views on the
fisheries question and that mutual compromises will be essential if agreement
is to be reached. Today, our coastal fishermen have no preferential rights
beyond the 12-mile limit and they therefore cannot lose from any compromise
that is remotely foreseeable, as all suggestions for a change in existing inter-
national law have been in the direction of an increase rather than a decrease
in preferential coastal State rights. This leaves the U.S. distant-water fisher-
men as the only potential losers.
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PAGENO="0665"
659
The question of coastal State fisheries rights has been inextricably inter-
related with the question of the breadth of the territorial sea for too long a time
to permit its being carved out and resolved on its own footing alone today. This
means that rrnjor strategic and economic interests in the resolution of the
breadth of the territorial sea must be taken into account alongside national
fisheries interests.
Any compromise accepted by the United States should be such as to
assure the continued economic viability of the U. S. distant-water fishing
industry. The importance of this latter point can be demonstrated by pointing
out that a tuna vessel from San Diego that fishes part of the year in the Pacific
may have to fish off the coasts of 6 to 12 other countries during a single voyage
and for the balance of the year. When it is forced to fish in the Atlantic be-
cause of conservation rules in the Pacific, the vessel may be required to
search for tuna off the coasts of 18 more countries during another single
voyage. It is imperative that the geographical and economic realities of
a fishery be taken into account by the government and that full advantage
be taken of industry consultants to this end.
4. Freedom. of scientific research
There is broad agreement on the prime importance of scientific re-
search, as evidenced by the language of paragraph 10 of the UN Declaration
of Principles:
- 22a -
PAGENO="0666"
660
States shall promote international co-operation in scientific research
exclusively for peaceful purposes:
(a) By participation in international programmes and by en-
couraging co-operation in scientific research by personnel of
different countries;
(b) Through effective publication of research programmes
and dissemination of the results of research through international
channels;
(c) By co-operation in measures to strengthen research
capabilities of developing countries, including the participation
of their nationals in research programmes.
No such activity shall form the legal basis for an~r2claims with
respect to any part of the area or its resources.
There is not broad agreement, however, on the proposition advanced by many
American scientists that oceanic scientific research should be free of all
governmental restraints, despite the substantial acceptance of this point of
view in the U.S. draft treaty of August 3, 1970. Under Article 27(1) of this
draft, the coastal States would have no control whatever over scientific
research of the seabed or ocean floor beyond the point where the high seas
waters off their coasts attain a depth of 200 meters. Today, scientific re-
search on the continental margin is governed by the following two provisions
of A rticle 5 of the Convention on the Continental Shelf:
(1). The exploration of the continental shelf and the exploita-
tion of its natural resources must not result in any . . . interference
with fundamental oceanographic or other scientific research carried
out with the intention of open publication.
* ****
(8). The consent of the coastal State shall be obtained in
respect of any research concerning the continental shelf and under-
taken there. Nevertheless, the coastal State shall not normally
withhold its consent if the request is submitted by a qualified insti-
tution with a view to purely scientific research into the physical or
biological characteristics of the continental shelf, subject to the
proviso that the coastal State shall have the right, if it so desires,
to participate or to be represented in the research, and that in any
event the results shall be published. ~
In view of the fact that research vessels such as the Glomar Challenger today
have the capability of penetrating the ocean floor to oil-bearing or gas-bearing
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PAGENO="0667"
661
strata but have no blow-out prevention capability to avoid disasters of the type
encountered several years ago in the Santa Barbara Channel, it is highly im-
probable that any significant number of States would consider the total relin-
quishment of their present rights to protect themselves under the Convention
on the Continental Shelf or the comparable customary law asserted by States
not parties to that convention. Accordingly, a better approach would appear
to be to work for a meaningful relaxation of coastal State controls under the
Convention on the Continental Shelf rather than a complete elimination of those
controls.
The problem is aggravated by the suspicion of the developing countries
that freedom of scientific research is advanced by the super-powers as a ploy
for their own economic and military advantage. A strong objection along these
lines was voiced by the Mainland Chinese Representative in Subcommittee III
of the UN Seabed Committee on April 2, 1973. The subject must, therefore,
be approached with caution. Educational efforts are needed to dispel this sus-
picion, ofwhichDr. JohnAlbers' speechof March22, 1973, to Subcommittee
III of the UN Seabed Committee was an excellent example,44 along with assis-
tance to the developing countries in improving their scientific capabilities, and
positive action to bring about their participation in cooperative scientific studies.
5. The regime for the international seabed area
The UN Seabed Committee has only begun the discussion of specific
treaty language and this report will therefore focus on major policy issues to
be resolved. The U.S. Representative told the UN Seabed Committee on Aug-
ust 10, 1972:
we fully share the desire to establish an equitable, interna-
tionally agreed, regime for the area and its resources as the
common heritage of mankind. .
The basic interests we seek to protect in an international sea-
bed regime are reflected in the five points to which I referred
earlier, coupled with our proposal for international machinery to
authorize and regulate exploration and use of the resources of the
area. An effective and equitable regime must protect not only the
interests of the developing countries but also those of the developed
countries by establishing reasonable and secure investment condi-
tions for their nationals who will invest their capital and technology
in the deep seabeds. In order to provide the necessary protections
for all nations with important interests in the area, it is also neces-
sary to establish a system of decision making which takes into ac-
count and provides for compulsory settlement of disputes. We do
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PAGENO="0668"
662
not regard these objectives as inconsistent with the desire of other
countries for equitable participation in deep seabed exploitation and
its benefits.
Finally, Mr. Chairman, it is our view that the benefits to
be derived from the operation of this new treaty should only be made
available to those nations who are prepared to ratify or accede to
it. Those benefits, as all of us in this room know, are manifold.
New technology for mining in the seabeds is rapidly opening up
new prospects for important mineral supplies. As development
proceeds, vast new ideas `will emerge as man begins the serious
exploration of the ocean and its resources. Mining in the oceans
will generate revenues as well. All these benefits, Mr. Chairman,
should be shared. .
This is an excellent statement of the case and suggests the following
topics for discussion:
a. The major components of an equitable regime.
b. The considerations that should govern the determination of
reasonable and secure investment conditions.
c. The five points drawn from the President's Statement of
U. S. Oceans Policy of May 23, 1970.
d. The question of whether the end result should be one or
several treaties on the law of the sea.
They will be discussed in the order listed.
a. The major components of an equitable regime
(1). Selection of the governing body - The developing countries,
seeking the maximum leverage from their preponderance in numbers in the
United Nations, have taken the position that the governing body of the inter-
national ragime must be selected on the basis of one-country, one-vote. This
would, of course, give them a controlling voice in the international regime and
all its subordinate organs. It would be folly for the United States and the other
developed countries to agree to this, and there is no indication that the U.S.
Representative is prepared to do so.
The United States draft treaty would have resolved this problem by
vesting primary responsibility for the regime in a Council made up of the 6
most industrially advanced nations and 18 other nations including at least 12
developing countries snd 2 landlocked or shelf-locked countries. Decisions
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PAGENO="0669"
663
by the Council would require approval by a majority of the 6 and a majority of
the 18 and amendments to the treaty would require ratification by two-thirds
of the participants including each of the 6 most industrially advanced.
Despite the vigorous opposition to this proposal from many of the de-
veloping countries, its basic concept is essential to the protection of the in-
terests of the United States and other developed countries and should be a
sine qua non of the U. S. negotiating position.
(2). The role of the international regime as administrator only
or as administrator and operator - Developing countries are tending more and
more toward government enterprise in the extractive industries and numbers
of them are pushing vigorously for an international regime that would serve as
the exclusive operating agency, with an absolute monopoly of exploration, ex-
ploitation and marketing of deep-sea mineral resources and no role left for
private enterprise except under possible service contracts. Other proposals
would envisage an international regime that could either be the operator itself
or license others as operators, but this, too, would augur ill for private enter-
prise. It is only natural that a regime acting both as an allocating and regulatory
agency and as an operator would tend to favor itself in many ways - - certainly
the pressures from many of the developing countries would be in that direction - -
and the cumulative effect of such actions could easily lead to a monopoly or
near-monopoly position. The only certain way of preventing this possibility is
by insisting at the outset that the international regime have no operating func-
tions. Let the governments favoring governmental enterprise in the interna-
tional seabed area set up their own national or regional organizations to apply
for licenses and compete with private enterprise on an equal basis, if they
wish; but don't go any further than that.
It is gratifying, in this connection, to note the statement of the U. S.
Representative to the UN Seabed Committee of August 10, 1972, that
we believe it is important to dispel any possible misconceptions
that my government would agre~ to a monopoly by an international
operating agency over deep seabed exploitation . . .
This statement and its retention as a fundamental part of the U. S. negotiating
position merit the full endorsement of the ABA.
(3). The international régime as servant of the world community
or of the producers of land-based minerals - The principal minerals to be de-
rived from the manganese nodules of the deep seabed, for which there is a
near-term production capability, are nickel, copper, cobalt and manganese.
Down the road, there will also undoubtedly be production of oil and natural gas
PAGENO="0670"
664
from some portions of the international seabed area. Spokesmen of the coun-
tries with land-based production of these minerals have argued strongly that
the international regime should have authority to impose price and production
controls on minerals from the international seabed area for the protection of
their economies against disruptive competition.
It seems clear that the international regime should not be designed for
their particular benefit but instead for that of the entire community of nations,
including consumers and producers alike, and that production from the inter-
national seabed area should not be subordinated to land-based production.
b. The considerations that should govern the determination of reasonable
and secure investment conditions
The basic objective is to encourage rather than deter production, re-
covery and use of deep-sea minerals. As important as is the companion objec-
tive of securing substantial revenues for international community purposes, and
particularly economic assistance to developing countries, it is imperative that
the financial exactions and other terms and conditions imposed on operators be
held to a level that will not kill their incentive.
The deep seabed is a new frontier for mineral development with no back-
ground of experience on which to draw. It is obvious that capital demands will
be great, with estimates varying from $130 to $400 million for a single mining
and associated mineral recovery operation. 46 It is equally obvious that the
commercial risks ~l1 be great, partinilarly in the early years of the industry.
This means that the terms of a license - size of tract; length of life of the li-
cense; the amount of rents, royalties, bonus payments, production payments
and the like; work obligations; ecological obligations; etc. - must as a package
offer sufficient prospects of profit in the event of success in bringing the tract
into commercial production to make the game worth the candle. A companion
requirement is that there be security of tenure for the life of the license and
that the rules of the game not be changed during that period.
The balancing of interests in an untried field is going to be tricky at
best, made more difficult by the possibility that some countries might be happy
to see an excessively demanding seabed regime as a safeguard to their land-
based production. It is highly improbable that the first balance struck will be
precisely on the mark or that any success it may have will be immutable in the
face of changing conditions. This points to theneed for an appropriate mech-
anisni for modifying the terms on which licenses are offered in the light of
experience, but with the proviso that no change shall be imposed on the holder
of an outstanding license during the life of that license without his agreement.
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PAGENO="0671"
665
"Secure" investment conditions also connote a stable investment climate
in which there is adequate protection for the integrity of investment and a de-
pendable, equitable procedure for the settlement of investment disputes, but
these aspects will be discussed under a later heading.
c. The five points drawn from the President's Statement on U. S.
Oceans Policy of May 23, 1970
(1). International treaty standards to prevent unreasonable inter
ference with other uses of the ocean - The only aspect of this proposal that is
likely to evoke objection is the requirement that disputes regarding questions of
interference be subject to compulsory~settlement under point 5 below. The pro-
posal as put forward is clearly sound and should remain a firm part of the U. S.
negotiating position.
(2). International treaty standards to protect the ocean from pol
- lution - - Marine pollution comes from three principal sources: deliberate and
accidental discharge from vessels, pollution from exploration and exploitation
of the seabed, and pollution from land-based sources. By far the greatest pro-
portion of all pollution of the sea comes from land-based sources. Some of the
comparisons that can be made in this regard are amazing. For example, the
annual volume of discarded automobile crankcase oil reaching the sea after
having been carelessly disposed of by automobile owners, garages and service
stations throughout the world has been estimated at a higher figure than the
marine pollution caused by all the tankers in the world.
It is high time that a start be made on international treaty provisions
to bring the problem of land-based pollution of the sea under control. Even
so, the Conference on the Law of the Sea will have a big enough problem on its
hands without attempting to deal with this particular area. There will, there-
fore, doubtless be general agreement with the proposal of the U. S. Repre-
sentative to Subcommittee III of the UN Seabed Committee on August 2, 1972,
that
neither the Seabed Committee nor the Law of the Sea Conference
should try to deal with the massive and complex problems of land-
based pollution. The technical competence required is, with all
respect, beyond us, and, in any event, these problems must be handled
primarily by national and local governments and through regional
cooperation.
This leaves for consideration the pollution of the sea by vessels and
pollution from exploration and exploitation of the seabed.
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666
(a). Pollution byvessels -- In his speech of August 2, 1972,
just referred to, the U. S. Representative reviewed the many actions that had
been taken in recent years to control and minimize pollution from vessels and
then made recommendations for certain points to be specifically covered in
the Law of the Sea Treaty and for others to be handled outside the treaty. With
respect to the treaty, he expressed the belief that
the Seabed Committee and the Law of the Sea Conference should
develop draft treaty articles stating the general principles governing
the common effort to ensure that man's use of the oceans and their
resources is carried out in harmony with the environment and with a
minimum risk of pollution. We would reiterate that this effort should
not try to deal with the complex problems of land-based pollution. The
recent Declaration on the Human Environment and the twenty-three
Principles for A ssessment and Control of Marine Pollution approved
by the Stockholm Conference clearly form the basis for this work.
As specific treaty actions with respect to vessels, he recommended that
the treaty should require that all new commercial tankers carry an International
Tanker Construction (Pollution Prevention) Certificate and that port States
verify possession of such a certificate and refuse entry in the event of non-
compliance except in cases of force majeure; that the treaty authorize port
States to go behind a certificate if there are reasonable grounds for believing
that a ship is not actually in compliance with construction standards and, if this
proves to be the case, to require repairs or departure of the ship; and that the
treaty require compliance with applicable traffic separation schemes and pre-
scribe strict liability for accidents caused by deviations from them. A s a final
treaty point, he expressed the view, in opposition to the views advanced by the
Canadian Representative, that a careful balancing of interests, rights, and ob-
ligations among maritime, shipping, and coastal States required that control
of pollution by vessels must be by international agreement in order to ensure
an acceptable balance, and not by individual coastal States within a pollution-
prevention zone.
He recognized, nonetheless, that greater consideration should be given
to coastal State concerns and proposals and suggested that the Seabed Committee
should urge IMCO (Intergovernmental Maritime Consultative Organization) to do
this and to study specific regional or local vessel pollution problem areas.
He further noted that the Seabed Committee and the Law of the Sea Con-
ference could usefully urge all those countries which have not adhered to or
ratified the various IMCO Conventions to give serious consideration to adher-
ence or ratification, particularly the 1969 Intervention Convention, the 1969 Civil
Liability Convention, and the 1971 Compensation Fund Convention. He added
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667
that the Committee might also usefully recommend to IMCO the continuation and
expansion of its training programs for the nationals of developing countries.
All these recornrriendatjons would appear to be deserving of support with
one qualification. As regards liability for non-compliance with applicable traf-
fic separation schemes, it is felt that there should be some reasonable, insur-
able limitation on liability for vessel operations and that provision of an inter-
national fund for any excess would be preferable to the imposition of unlimited
liability. On April 2, 1973, the U. S. Delegation presented to the UN Seabed
Committee a working paper entitled "Competence to Establish Standards for
the Control of Vessel Source Pollution," in which a comprehensive argument
is set forth in support of the U. S. position that vessel ~ollution-prevention
regulations must be international rather than national. `±7a This paper points
out that the interests of exporting, importing and maritime nationsmust be
accommodated as well as those of coastal States and that this can be accom-
plished only through exclusively international standards in the formulation of
which all interested States have a voice. Among the supporting arguments are
the points that a vessel traveling from the Persian Gulf to Europe might be
subject to as many as 15 different sets of standards if the contrary were the
case; that ocean currents make the problem international, as witnessed by the
fact that the Gulf Stream washes the shores of 23 coastal States of Africa,
South America, North America and Europe; that individual coastal State stan-
dards may simply transfer the effects of pollution from one State to another;
that with one international set of standards it would be much easier to keep
pace with technological advances than with 100 different sets of standards;
and that a single set of international standards would eliminate concerns re-
garding the possible economic advantages and disadvantages among States of
differing national standards. In summary:
Standards for the control of vessel source pollution must ef-
fectively protect the fundamental environmental and navigational in-
terests of all nations. If authority to establish such standards were
given to coastal States, whether such authority were exclusive or
only supplemental, there could be no assurance that adequate ac-
count would be taken of the need to accommodate such interests.
Tlierecould also be no assurance that such standards would effect-
ively serve either interest. This does not mean that special stan-
dards could not be established to deal with the problems of special
areas, but such standards should be established internationally. The
global nature of the marine pollution problem requires that solutions
to this pr~blem, as with other international problems, must be inter-
national. 7b
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23-317 0 - 73 - 43
PAGENO="0674"
668
(b). Pollution from exploration and exploitation activities - -
With respect to this type of pollution, the U. S. draft treaty simply authorizes
the international regime to prescribe rules and recommended practices to
ensure:
The protection of the marine environment against pollution arising
from exploration and exploitation activities such as drilling, dredging,
excavation, disposal of waste, construction and operation or main-
tenance of installations and pipelines and other devices. 48
Given reasonable safeguards against arbitrary action by the international
regime, rule-making power of this type would appear to be free from exception.
A comment of the U.S. Representative in his speech of August 2, 1 972, that
there should be strict liability for clean-up costs and pollution damage is, how-
ever, subject to the same reservation previously expressed in connection with
another matter. For activities of the type here involved it would appear much
sounder to impose severe but finite and insurable liabilities, supplemented by
an international fund, in lieu of unlimited liability.
(3). Protection of the integrity of investments in the international
seabed area -- The United Nations General Assembly has expressed its support
of the fundamental principle of international law that, even within the territorial
limits of a State,
Nationalization, expropriation or requisitioning Lof foreign
capital imported with the authorization of the State! shall be based
on grounds or reasons of public utility, security or the national in-
terest. . . . In such cases the owner shall be paid appropriate
compensation, in accordancewiththe rules in force in the state
taking such measures in the exercise of its sovereignty and in
accordance with international law. . . . Foreign investment
agreements freely entered into by, or between, sovereign states
shall be observed in good faith. . . .
As one moves seaward, first into areas of limited coastal State economic
jurisdiction and then into the deep seabed area where the coastal State has no
sovereign rights whatever and will have only the status of sponsor or sub-
licensor of the mineral enterprise making the investment, the justification*
for international legal standards protecting the integrity of investments becorr~ s
progressively stronger.
It is equally true that, as one moves into deeper waters, the magnitude
of the capital required and the degree of commercial risk involved provides
progressively less latitude for investors of risk capital to accept significant
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PAGENO="0675"
669
additional risks of a political nature. It has already been mentioned that a
single manganese nodule operation will involve an investment of from $130
to $400 million and experience in the North Sea has demonstrated that tens of
millions of dollars can be spent in the exploration phase of an offshore petro-
leum venture and hundreds of millions more in bringing a significant commer-
cial discovery into production. The NPC has recently pointed out that capital
investments in the petroleum industry in the 16-year period 1970-1985 will be
in the range of $600 to $800 billion and that political stability would appear to
be a sine qua non for the attraction of risk capital in the face of competing de-
mands of this magnitude. 50
If there is any part of the world where world peace through world law
should have meaningful significance,~ it is in the deep seabed area which has
been declared to be the common heritage of all mankind. Accordingly, the
ABA should strongly support the call of the U. S. Government for provisions
in the treaty for the international seabed area protecting the integrity of in-
vestments.
(4). Sharing of revenues for international community purposes - -
There can be no doubt as to the propriety of collecting revenues for international
community purposes from the exploitation of the mineral resources of the inter-
national seabed area beyond the limits of national jurisdiction. At the same
time, it is, as previously noted, essential to keep these revenues within reason-
able bounds so as to encourage, and not destroy, the incentive to develop these
resources for the general benefit of the world community.
It would also seem entirely appropriate for the U. S. negotiators to
handle the question of revenue sharing in such a way as to obtain the maximum
leverage on other points, such as protection of the integrity of investments and
compulsory dispute settlement. It is to be noted in this connection that the de-
veloping countries have no a priori right to preferential status in the distribu-
tion of revenues from the international seabed area and that the agreement of
the United States and other developed countries to give priority in the distribu-
tion of such funds to the economic development of the developing countries
could reasonably be conditioned on their accommodation of developed country
interests on other points.
(5). Compulsory settlement of disputes - - When one bears in
mind that the international seabed regime will be an organization for which
there is no precedent and that other provisions of the treaty cover highly com-
plex matters with respect to which national interests of individual States are
widely divergent, the occurrence of differences requiring resolution is in-
evitable regardless of the best of intentions on the part of all States parties
the treaty and their respective nationals. The following are the broad areas
-32-
PAGENO="0676"
670
of dispute that are likely to arise under the treaty and require international ad-
judication: (1) the proper interpretation and application of the treaty itself;
(2) questiQns of boundaries; (3) problems relating to the operation of vessels;
(4) those relating to fisheries conservation and coastal State fisheries prefer-
ences; (5) those relating to the prevention of, or the recovery of damages for,
pollution; (6) those relating to seabed mining operations; (7) those relating to
the protection of investments in ocean areas; and (8) those arising out of claimed
interferences with other international rights and freedoms.
It is obvious from this enumeration that the proposed machinery for
compulsory dispute settlement should not be limited to the single area of sea-
bed mineral resource management but should be broad enough to encompass
all aspects of the treaty. This is not to suggest, however, that there should
be a single tribunal for the resolution of all conceivable issues. The Adminis-
tration has shown that it does not have this in mind by its recommendation that
a special commission lx constituted for the compulsory resolution of any
fisheries dispute that may arise as to which the parties in issue do not agree
on another method of settlement pursuant to Article 33 of the UN Charter. There
are also other matters of technical import for which committees of experts would
be useful.
Disputes might be between two or more governments, between a govern-
ment and the international authority or between a private vessel operator, a
private offshore operator, a private investor or other private user of the marine
area and a government or the international authority. It would be retrogressive
to require that in every instance a private person could have redress only through
his government and the objectives of the treaty should not be frustrated by such a
requirement. The facilities of the Permanent Court of Arbitration at The Hague
would appear to be of particular utility in meeting the needs of private parties.
It would be essential, however, that provision also be made to give private
parties immediate access to special adjudicating procedures where emergency
measures are required.
Past experience suggests that there will be difficulties in negotiating
compulsory dispute settlement procedures. Even so, the broad interest of
the entire community of nations in the unimpeded movement of vessels through
the oceans, pollution control and harmonization of uses in offshore areas
would appear clearly to justify agreement on compulsory dispute settlement
as a condition to agreement on any new international seabed treaty. This is
the clear rationale of the U.S. Representative's speech of August 10, 1972.
d. The question of one or several treaties on the law of the sea
The obvious reason for the all-or-nothing attitude expressed by the U.S.
Representative in his speech of August 10, 1972, in preference to a series of
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PAGENO="0677"
671
treaties on individual topics is to prevent a State from ratifying treaties it
finds attractive and rejecting those it finds unattractive, even though the ad-
vantages of the entire bundle of treaties clearly outweighed the disadvantages.
For example, the United States clearly desires any concessions that it makes
in other directions to provide an incentive for other countries to agree to
freedom of transit and overflight of straits overlapped by a 12-mile territorial
sea, subject only to internationally agreed rules for safety of navigation and
prevention of pollution.
Another practical reason for a single treaty is found in the provisions of
the Vienna Convention on the Law of Treaties codifying the rules of customary
international law1to the effect that no State may be bound by a treaty to which
it is not a party5 and that as between a State which is party to an earlier and
a later treaty on the same subject and a second State which is party only to the
earlier treaty, the terms of the earlier treaty remain in effect. 52 It is clearly
desirable if at all possible to avoid the tangled pattern of rights and obligations
that could result from a series of new treaties among which
different States would pick and choose those to ratify in varying patterns.
Finally, the entire success of the international seabed regime, for which
there is no customary law counterpart, could be imperiled if any significant
number of States abstained and asserted their customary-law freedom of action
in the deep seabed. As stated in the~l970 Declaration of Principles, the objective
is an international treaty of a universal character generally agreed upon.
6. Deep Water Ports
The obvious need for economy in the transport of the ever-mounting
requirements for petroleum products throughout the world has led to develop-
ment of a whole new class of giant tankers of 250, 000 DWT and larger. As
noted earlier in this report, use of 250, 000 DWT tankers in the transport
of the indicated 1985 U. S. import requirements, rather than the 50, 000 DWT
to 70, 000 DWT tankers currently in use, would result in a saving in transportation
costs of about $0. 35 per barrel or several million dollars per day.
There are no existing ports on the United States Gulf or Atlantic coast
capable of handling these giant tankers, with the result that the United States,
in common with other countries with a comparable problem, is looking to the
need for deep water ports which, in some instances at least, will have to be in-
stalled beyond the territorial sea. This has led to the inclusion of artificial
islands and installations as Item 18 of the list of subjects and ~s sues to be dis-
cussed at the forthcoming Conference on the Law of the Sea. ~ a
It seems perfectly clear that any balancing of the interests of the individual
coastal States against those of the community of nations as a whole would lead
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PAGENO="0678"
672
to the conclusion that a coastal State should have the right to establish deep water
ports on the continental margin adjacent to its territorial sea and to operate
them under its exclusive control, so long as it does so in such a manner as to
avoid unreasonable interference with international navigation or other high seas
freedoms. In other words, the erection of the deep water port should not result
in any new territorial sea rights or any control over navigation or other uses of
the high seas unrelated to the use of the port itself.
7. Arrangements for the interim period pending the entry into force of any new
treaty governing the international seabed area
In his Statement on U. S. Oceans Policy of May 23, 1970, the President
acknowledged that the negotiation of a complex treaty for the international seabed
area would necessarily take some time and expressed the belief that it was neither
necessary nor desirable to try to halt exploration and exploitation of the seabeds
beyond a depth of 200 meters during the negotiating process. He therefore called
on other nations to join the United States in an interim policy, suggesting that
all permits for exploration and exploitation of the seabeds beyond the 200-meter
water depth be issued subject to the international regime to be agreed upon. He
added that the regime should accordingly include due protection for the integrity
of investments made in the interim period and that a substantial portion of the
revenues derived by a State from exploitation beyond that depth during the inierim
period should be turned over to an appropriate international development agency
for assistance to developing countries. Implementing legislation to this end
would be requested as soon as a sufficient number of other States indicated their
willingness to join this interim policy. ~
This statement was the U. S. response to a moratorium resolution that
had been put through the UN General Assembly on December 15, 1969, over
the opposition of practically all of the developed countries, including the United
States and Russia, declaring that all States and persons are bound to refrain
from all activities of exploitation of seabed resources beyond the limits of
national jurisdiction ~g1d that no claim to any part of that area or its resources
shall be recognized. Subsequently, a number of the developing countries
asserted that the 1970 Declaration of Principles, which as previously noted
was adopted without dissenting vote, itself served as an effective bar to interim
exploitation of the international seabed area, on the ground that under this
declaration the international seabed area is the common heritage of mankind and,
as such, it cannot be exploited without common consent. The United States,
which has steadfastly asserted that the moratorium resolution is without binding
legal effect on member States, also adheres to the view that "common heritage"
means only what the eventual treaty says it means, that it does not mean "com-
mon property" and that the President's statement as reported above continues to
reflect U. S. policy on the subject.
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PAGENO="0679"
673
Three years have elapsed without any apparent response to the President's
invitation to other nations to join the United States in his proposed interim policy.
As previously noted, a great number of States have freely issued leases or con-
cessions in waters deeper than 200 meters without any regard to possible appli-
cation of an international seabed treaty to the areas involved. More importantly,
the lack of interest on the part of other nations in the U. S. proposal that all
nations join in a renunciation of all national claims over the natural resources
of the seabed beyond the point where the high seas reach a depth of 200 meters
has forced a reevaluation of the U. S. position and an acceptance, as noted in
the August 10, 1972, speech of the U. S. Representative to the UN Seabed Com-
mittee, of broad coastal State resource jurisdiction over adjacent seabed areas.
Accordingly, there should no longer be any restraints on the issuance of leases
on the Outer Continental Shelf in waters deeper than 200 meters and, as previously
pointed out, leases in such waters should not be subjected to the unknown terms
of a future treaty, with the possible exception of adherence to international
standards on the four specific points previously discussed.
This is the only immediate need of the Nation from a petroleum industry
standpoint. Less than 1% of the U. S. continental margin has thus far been
leased under the Outer Continental Shelf Lands Act and the domestic petroleum
industry will be occupied there and on the margins of other countries for some
time to come before it will have a pressing need for provisions governing explora-
tion and exploitation of the deep seabed areas beyond the continental margins.
There is an essential difference in this regard between petroleum and
hard minerals. Manganese nodule deposits of acceptable quality are found only
on the deep seabed far beyond the continental margins, and thus beyond the
limits of national jurisdiction, in water depths of around 15, 000 feet. These
nodules are rich in nickel, copper, cobalt and manganese. Three American
companies are reported to have already spent around $90 million in the develop-
ment of mining and mineral recovery techniques for their commercial exploi-
tation. These companies are understood to have thg capability of commencing
commercial production within three to five years. The American Mining
Congress, as industry spokesman, has expressed the need of legislative
assurances of security of tenure before this can be prudently undertaken.
To this end, legislation was introduced in the 92nd Congress (H. R. 13904
and S. 2801) and was reintroduced in the current 93rd Congress (H. R. 9 and
S. 1134). These bills would provide for the issuance of U. S. Government licenses
which would be exclusive against other U. S. citizens and the citizens of countries
enacting reciprocal legislation. The licenses would be subject to any inter-
national regime agreed to by the United States, provided that such regime fully
recognizes and protects the exclusive rights of the licensee to develop the license
block for the term of the license and provided the United States Government
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PAGENO="0680"
674
fully reimburses the licensee for any loss of investment or increased costs of
the licenses incurred within 40 years after issuance of the license, due to require-
ments or limitation imposed by the regime more burdensome than those of the
United States. The bills also provide for the purchase of insurance against
interference by third-country nationals and for the setting aside of a share of
the fees and income taxes attributable to deep-sea mineral production for as sist-
ance to developing countries.
On March 1, 1973, the Acting Legal Adviser of the Department of State,
Mr. Charles N. Brower, advised the Subcommittee on Oceanography of the
Committee on Merchant Marine and Fisheries, House of Representatives, in
opposing any action on H. R. 9, that some other nations would regard such
legislation as a symbol of defiance of the multilateral process. He stated that
the U. S. Government would best meet U. S. and industry objectives by concen-
trating its efforts toward provisional entry into force of the seabed mining as-
pects of the pending treaty immediately upon its execution, which he expressed
the belief would be not later than the summer of 1975. This would avoid invest-
ment uncertainties that would otherwise exist duringthe lengthy period between
signature and the deposit of a sufficient number of instruments of ratification to
trigger the entry into force of the treaty. He did acknowledge that the Admini-
stration would reconsider its present opposition to the concept of interim protec-
tion of dcmestic mining operations if subsequent developments during the 1973
meetings of the UN Seabed Committee or the 1974 session of the Law of the
Sea Conference were such as to warrant it. Finally, he reiterated that it is
still the President's policy to encourage exploration and exploitation beyond the
200-meter isobath despite the Administration's objections to the enactment of
the pending legislation.
On March 19, 1973, the U.S. Representative to the UN Seabed Com-
mittee advanced in that committee the U. S. proposal for provisional entry
into force of those portions of the treaty dealing with deep seabed mineral develop-
ment. The committee requested the Secretary General to prepare a study of
ways in which prg~isiona1 application had been dealt with in connection with
earlier treaties.
Annual imports into the United States of the four major minerals from
manganese nodules are valued at almost $600 million and three projects har-
vesting a total of 7 million dry tons of nodules per year could displace more
than half this value, thus making a significant contribution to the balance of
payments. 58
One possible compromise would be legislation authorizing the granting
of exploration permits which would ripen into exploitation rights (good as between
U. S. miners) subsequent to December 31, 1975, if a treaty acceptable to the
United States is not opened for signature by that date. It could be provided that
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675
no aspect of these permits would override any inconsistent provision of a treaty
signed by the United States, as from the date of such signature, but that the
United States would immediately advance the claims of exploration permit holders
to the provisional regime, and subsequently to the permanent regime, with a view
to obtaining for permit holders all such rights, and only such rights, as were
entirely consistent with the provisions of the treaty. With provisions of this
type, there would be no grounds for a repetition of the charges made against the
pending legislation that the United States was preempting the purposes of the Law
of the Sea Conference.
On the premise that the total exposure to risk during the two years or so
between the pas saga of the legislation and the end of 1975 could be held to a
reasonable maximum figure specified in the permits, the legislation might include
arrangements for political risk insurance against unreasonable interference on
the claimed ore-body and an assumption by the United States Government of
responsibility for increased costs or investment losses resulting from later appli-
cation of the treaty.
RECOMMENDATION
On the basis of the foregoing report, the Section of Natural Resources Law
recommends that the annexed resolution be adopted by the Hduse of Delegates.
Respectfully submitted,
/~ci~~W ~T
Northcutt Ely
June 1973 Chairman, Section of
Natural Resources Law
Rapporteur: Luke W. Finlay
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F OOTN OTES
1. UNGA Resolution 3029-A(XXVII) (1972).
2. The initial membership of 42 was established by UNGA Resolution
2467-A(XXIII) (1968); an increase to 86, by UNGA Resolution 2750-C(XXV)
(1970); and the final increase to 91, including Mainland China, by UNGA Reso-
lution 288l(XXVI) (1971).
3. See vol. II, Yearbook of the International Law Commission -- 1956,
A/CN.4/SER.A/l956/Add.l, p.253 at 254.
4. See Report of the Committee on the Peaceful Uses of the Sea-bed and
the Ocean Floor Beyond the Limits of National Jurisdiction to the UN General
Assembly; Official Records: Twenty-Seventh Session, Supplement No. 2l(A/872l)
(1972) at 5-8. Reports in this series are hereinafter referred to as Reports of
the UN Seabed Committee, preceded by the year in which issued.
5. UNGA Resolution 2749 (XXV) (1970).
6. For the 1972 compilation, see ~, n.4 at 81-108. The 1973 revisipn
is U.N. Doc. A/AC. 138/SC.I/L.22 (4 April 1973).
7. ~ n.5.
8. U.N. Doc. A/CONF. 19/L.ll (1960).
9. See Official Records of the Second United Nations Conference on the
Law of the Sea, Summary Records of Plenary Meetings and of Meetings of the
Committee of the Whole, U.N. Doc. A/CONF. 19/8 (1960) at 29-30.
10. 80 Stat. 908.
11. The original proposal is included in the 1971 Report of the UN Seabed
Committee, UNGA Official Records: Twenty-Sixth Session, Supplement No. 21
(A/8421) (1971) at 241. The acceptance of reasonable internationally agreed
rules for safety of navigation through straits used for international navigation was
included in a speech of the U.S. Representative of July 28, 1972, to Subcommittee
II of the UN Seabed Committee.
12. This figure is compiled from Limits in the Seas -- National Claims to
Maritime Jurisdiction, International Boundary Study, Series A, No. 36, January 3,
1972, issued by The Geographer, Department of State.
13. These figures are from the recent (May 1973) Report of the National
Petroleum Council on Law of the Sea -- Particular Aspects Affecting the Petroleum
PAGENO="0683"
677
Industry, at 4 and 10. This report, in turn, draws heavily on the earlier
NPC Report on U.. S. Energy Outlook, issued in December 1972.
14. Id. at 11.
15. Id. at 11.
16. ~ n.ll, Speech of July 28, 1972.
17. Convention on the Continental Shelf, April 29, 1958, 15 U. S. T. 471,
T.I.A.S. No.5578, 499 U.N.T.S. 31:1.
18. U.N. Doc. A/6695(l967).
19. At 8-9.
20. At 36. This report was entitled "NON-LIVING RESOURCES OF THE
SEA - - A Summary and Critique of Chapter 4, Part III of the Report of the Marine
Science Commission."
21. At 1.
22. Opinion of the Court, par. 19, North Sea Continental Shelf Cases
(1969) I. C. J. Rep. 3 at 22; 8 Int'l Legal Materials 340 at 357(1969).
23. These figures are from an unpublished survey conducted in the summer
of 1972. OCEAN SCIENCE NEWS for April 2, 1971 reported (at 4) that as of that
date 88 countries had awarded concessions of which at least 35 had done so in
depths beyond the 200-meter isobath. The award by South-West Africa of five
tracts in water depths to 10, 000 feet is reported in THE OIL AND GAS JOURNAL
for July 3, 1972 at 19.
24-25. R. Jennings, The Limits of Continental Shelf Jurisdiction: Some
Possible Implications of the North Sea Case Judgment, 18 I. C. L. Q. 819 at 830
(1969).
26. Hearings before the Committee on Foreign Relations of the U. S.
Senate on Conventions on the Law of the Sea, 86th Cong., 2nd seas., January 20,
1960, pp. 108-109.
27. 1970 Report of the UN Seabed Committee, UNGA Official Records:
Twenty-Fifth Session, Supplement No.: 21 (A/802l) (1970) 130 at 132.
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PAGENO="0684"
678
28. ~ n. 4 at 70.
28a. U.N. Doc. A/AC. 138/SC.II/L. 21 (2 April 1973).
29. 8 Int'l Legal Materials, Articles 30 and 34 at 691 and 693 (1969).
30. See F. V. Garcia-Amador, The Exploitation and Conservation of
the Resources of the Sea (2nd and enlarged edition, 1959) at 130.
31. See Tables 5 and 6 of Potential Mineral Resources of tho United
States Outer Continental Shelf~ a study prepared by Dr. V. E. McKelvey and
others of the U. S. Geological Survey, Department of the Interior, dated March
11, 1968.
32. NPC Report on Petroleum Resources Under the Ocean Floor (1969) at 8.
33. NPC Summary Report on U.S. Energy Outlook (1972), table at 64,
Cases II, III and IV.
34. Federal Register, April 20, 1973, at 9839.
34a. F. Barry, The Administration of the Outer Continental Shelf Lands
Act, 1 NATURAL RESOURCES LAWYER 3 8-48 (1968)
34b. Report ~y the Special Subcommittee on Outer Continental Shelf to
the Committee on Interior and Insular Affairs, United States Senate, December 21,
1970, Committee Print, 91st Cong., 2nd sess., entitled Outer Continental Shelf,
at 31. S
35. 6 NATURAL RESOURCES LAWYER 1 at 10 (1973).
35a. For the 2% figure, see Ann L. Hollick, Seabeds Make Strange Politics,
9 FOREIGN POLICY 148 at 155 (Winter, 1972-73).
36. See, for example, the Conclusions in the General Report of the
African States Regional Seminar on the Law of the Sea, held in Yaounde 20-3 0
June 1972, ~ n.4at73et~~.
37. See, for example, the Declaration of Santo Domingo, ~ n. 4 at
70.
38. ~ n. 4 at 175; 12 Int'l Legal Materials 42 (1972).
39. Supra, n.4 at 164, 166.
40. ~ n.4atl58-16l.
41. ~ n.4 at 188-196
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42. ~ n. 5.
42a. Supra, n. 27 at 138.
43. Supra, n.17.
44. In this speech, Dr. Albers summarized the theory of global plate
fectonics and sea floor spreading and stressed the importance to all mankind
of continuing research in which all should share and from which all would
benefit.
45. Supra, n. 27 at 142, 143 and 158.
46. The lower range figure of $130 million is from A. 3. Rothstein and
R. Kaufman, The approaching Maturity of~j~ Ocean Mining - - the Pace
Quickens, 1973 Offshore Technology Conference, 4/30-5/2, Houston, Texas,
PREPRINTS, vol. I at 323. The upper range figure of $400 million is cited in
an attachment to a statement of the U.S. Representative of March 19, 1973 to
Subcommittee I of the UN Seabed Committee, Press Release USUN-20 (73),
March 19, 1973, Appendix, p.22.
47. 3. D. Porricelli, V. F. Keith and B. L. Storch, in a paper presented
at the Annual Meeting of the Society of Naval Architects and Marine Engineers,
New York, N. Y., November 11-12, 1971, estimated automobile crankcase oil
disposal as the source of 29.4% of all oil pollution of the ocean (excluding
from the total oil contributed by recreational boats, hydrocarbon fallout and
natural seepage) and tankers as the source of 28. 4%. It may be added that
hydrocarbon fallout, primarily from automobile exhaust fumes, though
generally excluded from marine oil pollution figures, itself dwarfs the marine
pollution from all other petroleum sources~
47a. U.N. Doc. A/AC.138/SC.III/L.36 (2 April 1973).
47b. Id. at 7.
48. ~, n. 27 at 137.
49. UNGA Resolution 1803 (XVII), adopted in December 1962 by a vote
of 87 to 2, with 12 abstentions.
50. p~, n.13, chapter two.
51. ~ n.29, Article 34 at 693.
52. Id., Article 30, (4) at 691.
53. ~ n.5, par. 9.
53(a). ~ n.4 at 8.
- iv-
PAGENO="0686"
680
54. Release from the Office of the White House Press Secretary of
May 23, 1970, included as Appendix B in the 1971 Supplemental Report of
the NPC on Petroleum Resources Under the Ocean Floor.
55. UNGA Resolution 2574-D(XXIV) (1969).
56. ~ n.46.
57. The U. S. proposal, as amended in Subcommittee I, is U. N. Doc.
A/AC. 138/SC. IlL. 20 (27 March 1973). For the approval of this recommendation
by the UN Seabed Committee on April 6, 1973, see UN Press Release SB/176
(6 April 1973) at 4.
58. Supra, n. 46.
PAGENO="0687"
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Index
P.age
PROPOSED RESOLUTION
REPORT
A. Introduction 1
1. Scope of Report 1
2. Status of preparations for the third UN Conference on the
Law of the Sea 1
3. Prior Action by the American Bar Association 3
L 2eccmracndations for furrher~APA action 4
1. The breadth of the territorial sea 4
2. The outer limit of the legal continental shelf 8
3. Coastal State preferential fishing rights beyond the terri-
torial sea 19
4. Freedom of scientific research 22
5. The regime for the international seabed area 24
a, The major components of an equitable regime 25
(1), Selection of the governing body 25
(2). The role of the international regime as admini-
strator only or as administrator and operator 26
(3), The international regime as servant of the
world comnunity or of the producers of land-
based minerals 26
b, The consideratione that should govern the deLerm~nstion
of reasonable and secure investment conditions 27
c. The five points drs~rn from the PresidentSs Statement
on U.S. Oceans Policy of Nay 23, 1970 28
(l~ International treaty standards to prevent
unreasonable interference with other uses
of the ocean 28
(2), International treaty standards to protect the
ocean from pollution 28
(a) Pollution by vessels 29
(b) Pollution from exploration and ex~oita-
tion activities 31
(3). Protection of the integrity of investments in the
international seabed area 31
(4), Sharing of revenues for internatiOnal community
purposes 32
(5), Compulsory settlement of disputes 32
d. The question of one or several treaties on the low of
the sea 33
6. Deep Water Ports 34
7.- Arrangements for the interim period pending the entry into
force of any new treaty governing the international seabed
area 35
RECOI21ENDATION 37
FOOTNOTES
PAGENO="0688"
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I. INTRODUCTION
Throughout almost the entire post-World War
II era, a fundamental objective of U.S. foreign policy
has been to assist the emerging developing countries
with their economic development, and thus to improve
standards of living of their peoples. Strong partici-
pation by U.S. private enterprise in this program of
economic development has long been urged by the Govern-
ment of the United States. That the U.S. private sector
has been responsive to investment opportunities abroad
is well illustrated by the total estimated value of U.S.
private investment in developing countries -- more than
$20 billion. Of this total, more than $14 billion is
invested in Latin America.
These investments have made enormous contri-
butions to development by providing local employment,
export earnings, import substitution, education and
training and investment funds that do not result in debt
to the host country.
Regrettably, today there is an increasingly
skeptical reexamination underway in some quarters,
private and governmental, regarding the desirability
of continuing large transfers of U.S. resources abroad
for investment. This reexamination has been occasioned
by a number of events. One of the most important has
been the treatment by some developing countries of
foreign private investment. Some of these countries
have shown a disregard for applicable international law
standards and indeed a disdain for prospects for further
private investment.
Expropriation of U.S. private investment and
violation or abrogation of contracts between U.S. inves-
tors and foreign governments in violation of international
law have had a chilling effect upon further investment --
especially in view of the investment opportunities in the
U.S. and in other developed countries.
The timeliness and urgency of a strong effort
by the American Bar Association and the U.S. Government
to encourage understanding and acceptance of the rule of
PAGENO="0689"
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Separate or Dissenting Views
Mr. John Laylin, while commending the report in general, desired to
be recorded as being of the opinion that if a satisfactory international regime
for the area beyond national jurisdiction were agreed upon, a narrow con-
tinentŕl shelf jurisdiction would be acceptable. He is therefore recorded as
dissenting in part.
Mr. William Griffin stated that it is an excellent report, but that he
had a different view on the width of the legal continental shelf lex lata, and
desired that his dissent be recorded on that matter.
Professor Gary Knight submitted a detailed and quite constructive
commentary dated May 23 on a draft of report dated May 16, 1973. While,
in the opinion of the Chairman of the Section, a number of Professor Knight~
points have been met in the report and resolution submitted to the House of
Delegates. Professor Knight's comments of May 23, 1973, are reproduced
in full below.
fIn general, the report is a vast~improvement over past efforts of the
Committee, and I think Luke Finlay is to be congratulated on a fine
effort. The report covers the entire range of major law of the sea
issues, whereas the last report ~ias devoted exclusively to petroleum
industry interests in the continental shelf. Luke Finlay has done a
commendable job in analyzing the various issues discussed, and I agree
with your assessment of his work. I an sure there will be differences
of opinion on substantive matters among the Committee members, but I
doubt that anyone could criticize the fine effort which Luke has made.
"I have one procedural suggestion to make about the report and the
Committee's consideration of it, after which I shalil identify some
points of substantive disagreement. As in prior cases, I think it
regrettable that the members of the Committee have not been given a
longer period of time in which to review this quite lengthy and complex
document. I would hope that there would be time for circulation of all
comments submitted by Committee members (including this letter) to all
other members so that a full exchange of views can be had on the issues
raised in the paper. I think it also imperative that a meeting of the
Committee be called in a month op so to consider the draft report. Onl:~
through an actual meeting can the redrafting necessary to accommodate
all viewpoints be achieved. I trust you will take the necessary steps
to gather and circulate comments and to call such a meeting. Please
advise me as soon as possible if you do not intend to do so.
My substantive comments are as follows:
`(1) The first two lines on page 14 indicate that the purpose
of the report is for the American Bar Association ("A.B.A.") to express
23-317 0 - 73 - 44
PAGENO="0690"
684
its views "as to the position that the United States should take on
major issues.' This may well be entirely proper, but it seems to me
that the A.B.A. ought to be stating its views concerning the desirable
final outcomes of the current law of the sea negotiations as well, not
simply the United States inputs thereto. As I read the draft report
it appears that this is what Luke has done anyway, but I wonder if it
might not be desirable to clarify the objectives.
"(2) At page 9, second full paragraph, the report indicates
that the Administration's current position on straits transit "appears
to be well designed." I agree fully with that portion of the report
which indicates the importance of maintaining unimpeded navigation for
commercial purposes. This is a point which cannot be overemphasized in
my view. However, the United States has coupled its position regarding
unimpeded transit of straits for commercial vessels with a request for
submerged transit for submarines and overflight by aircraft, two rights
which do not now exist as a matter of either conventional or customary
international law. As the report motes, the majority of public dis-
cussion on this issue has focused on the military issue. This focus is
most unfortunate, for in my view the two military objectives noted above
are not attainable in the current negotiations and will not be achieved
at the Third United Nations Conference on the Law of the Sea ("Third
Conference"). The unfortunate aspect of this is that the military
issues are likely to take the commercial transit rights down with them.
`Accordingly it would be my recommendation that our report indicate
the desirability of the United States and the international community
at large segregating the issues of military transit through straits
from commercial transit through straits. Of course, the argument can
be made that commercial transport will ride through on the coattails
of the military, but I think in view of the debate which has been held
to date, the reverse is going to be true, i.e., commercial free transit
through straits will go down to defeat as a result of being coupled with
submerged passage and overflight.
"I would therefore recommend adding a third point of augmentation of the
position expressed by the United States to follow the two points set
forth at pages 9 and 10, as follows:
"Because the issues of submerged transit and over-
flight have resulted in such a negative reaction from
other members of the international community that it
appears prcblematical whether. these objectives can be
achieved at the Third Conference, and because of the
crucial importance of unimpeded transit of straits
for commercial purposes as noted above, we believe
that the United States should segregate these two
issues in its Article II submitted to the United Nations
Seabed Committee at its July-August meeting in 1971.
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PAGENO="0691"
685
Our objective in making this recommendation is to
ensure the adoption of an acceptable form of un-
impeded transit for vessels in commercial operation.
n(3) I will once again have to dissent from the conclusion
concerning the outer limit of the legal continental shelf under exist-
ing conventional and customary international law reached and discussed
at pages 12-13 of the draft report. I shall not provide alternate lan-
guage nor go into any detail at this time since my views were widely
distributed during the debate of the last report of this Committee.
I do wish to make it clear, howeyer, that I do not feel that there is
any conventional or customary law justification for asserting present
sovereign rights to the resources of the seabed and subsoil of the
continental shelf beyond the 200 meter isohath, again for reasons which
I have explained in great detail elsewhere.
"(LI) With respect to the discussion at pp. 20a-20c of the issue
of conditioning leases issued under the Outer Continental Shelf Lands
Act beyond the 200 meter isobath on the international regime to be
agreed upon, I think the position taken in the report has some merit,
but that it is too inflexible. Rather than suggesting that the leases
issued beyond the 200 meter isobath contain no reference whatever to
the current international law ofthe sea negotiations, I would sug~ost
we adopt a more moderate course, perhaps to the effect that these leases
would be issued pursuant to international agreements to be reached on
the "five points't set forth by the United States with respect to broad
resource zones. Just as "silence of interim OCS leases on the appli-
cability of a future international seabed treaty would have no adverse
impact on the achievement of these . . . objectives," as noted in the
draft report, so inclusion of reference to them should have no adverse
Impact on the operatIons to be conducted by the oil companies in the
Interim period before adoption of international agreements. This, it
seems to me, would more adequately reflect United States and interna-
tional community expectations for the seabed area beyond the 200 meter
Isobath. I fear that the kind of negativism contained in this sectIon
of the report will result in minimum policy impact and that the position
will be `overtaken by events" as Mr. Finlay indicated wIth the case
with portions of Resolution 73.
"One final point on this subject -- I cannot conceive that petroleum
and natural gas companies would not bid for leases beyond the 200 meter
Isobath even if the condition as presently phrased in the Federal
Register notice were retained. As I pointed out in the debate over our
last Committee report, the offshore oil industry operates under un-
certainties at the present time both with respect to pollution problems
and with respect to the fact that the Secretary of the Army has the
authorization to revoke permits for construction of offshore artificial
installations at his will. These hazards have not reduced the enthusiasm
of the companies for these much needed petroleum and natural gas reserves
-3-
PAGENO="0692"
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and I do not believe that the conditioning of the leases on the
international regime to be agreed upon would reduce that enthusiasm
either, unless, of course, pursuant to illegal collusion.
"(5) It seems to me that the draft report becomes insuffi-
ciently specific in makingrecommendations concerning the fisheries
issue. For example, if the United States "species' approach does
not sell -- and it is not selling well at the present time -- the
likely result will be a 200 mile economic resource zone in which
coastal states will have exclusive or preferential rights to the
living resources of the zone. If this becomes the case, how pj~cifi-
cally can United States interests in distant water fishing be ade-
quately protected? The report does not in my view develop adequate
policy recommendations in this regard. However, there have been some
indications that developing countries would be willing to carve out
highly migratory species from such economic resource zones and it is
along these lines that I think the draft report should be expanded to
reflect an alternate policy position for the United States (and for
adoption by the international community) should the "species"
approach fail. If the Committee members feel this view has merit, I
would be happy to prepare a couple of paragraphs on the subject for
consideration at the next Committee meeting.
"(6) I think the section on scientific research is aloo too
brief and unspecific. For example, one alternative solution which
we might advocate is the development of some international organiza-
tion (perhaps the I.0.C.) to act as a "clearinghouse" for scientIfic
research proposals. The essence of this concept which has received
Cone approbation by both developed and developing country represen-
tatives, is that criteria would be established for approval of scien-
tific expeditions by the clearinghouse agency following approval of
which coastal states would be deemed to consent to the expedition.
"Perhaps the Committee would not like to recommend this precise pro-
cedure, but I think something more specific than the first full para-
graph on page 29 is warranted for so important a subject.
"(7) In connection with the discussion in part B.5.a.(2) at
pages 31 and 32, it seems to me that our report ought to contain the
quotation from Mr. Stevensen's August 10, 1972, speech, as follows:
"[W]e believe it is important to dispel any
possible misconceptions that my Government would
agree to a monopoly by an international operating
agency over deep seabed exploitation . .
"Our report could then endorse this position and urge its retention in
the future law of the sea negotiation.
-4-
PAGENO="0693"
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~(8) I cannot agree with the proposed compromise position for
interim seabed mining set forth on page ~6 of the draft report. For
one thing, the exploitation rights into which such exploration permits
would ripen would have themselves to be subject to the international
regime to be agreed upon. It does not seem to me that this would be
any more satisfactory to the deep seabed mineral mining industry than
the present law of res nullius a~-id an impending agreement. Even if it
were acceptable to industry, however, I think the taking of unilateral
legislative action with respect to the seabed would be untimely and
disadvantageous to United States interests in the law of the sea
negotiations. I have developed this position at some length in testi-
mony before the Subcommittee on Oceanography of the House Cornmitt ee on
Merchant Marine and Fisher~~s and will only refer to that testimony
in support of my position.-
"(9) With respect to the draft resolution I have the following
comments:
"(a) The first perambulatory paragraph should reflect
the fact that the Third Conference will be formally convened with a
procedural session in November, 1973.
`(b) I cannot concur in the conclusion of the fourth
perambulatory paragraph because it suggests without sufficient ampli-
fication that the International Court of Justice held that coastal
state jurisdiction over natural resources extends to the edge of the
continental margin. As you know, the I.C.J. was not concerned with
this issue in the case, its pronouncements on that topic are pure
dicta, and the interpretation ofthat dicta has been subject to rather
varied opinion.
"(c) I cannot agree with the language in the fourth an
fifth lines of the first substant~ive paragraph concerning present exten-
sion of sovereign rights to the full extent of the continental margin
and suggest that they be deleted, for the reasons stated earlier in
this letter.
"(d) I cannot agree with the recommendation contained in
the second substantive paragraph of the proposed resolution for reasons
previously stated.
"(e) I would like to see a modification of the seventh
substantive paragraph to reflect my earlier comments about the segre-
gation of military from commercial transit through straits.
"1. See "Statement on the Deep Seabed Hard Mineral Resources
Act, H.R. l39Ot~," in Hearings on Deep Seabed Hard Mineral Resources
before the Subcommittee on Oceanography of the House Cornmit.teeon
Merchant Marine and Fisneries (92d Cong., 2d Sess., May 12, l972Tat
57.
PAGENO="0694"
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`(f) I want to express some concern and reservation
about the authorization paragraph of the draft resolution. For
example, I would like to see a provision that would require any
Section representative or other person who expressed the views of
the report as the views of the A.B.A. to deliver a copy of the entire
report at the time of such statement or testimony. Further, I th:tnk
that we ought to give sone very serious consideration to a discussion
of the whole question of representation of the views of the A.B.A.
by Section nembers.
"As I stated at the outset, I believe that the report is an adnirable
one, and a great improvement on earlier drafts of this type which
tended to be far too single industry oriented. I trust that my
comments will be circulated to members of the Committee and to members
of the Section Council so that they may be considered in any delibera-
tions on this draft report."
The Section is indebted to several commentators for constructive
observations on preliminary drafts, notably Professor R. R. Baxter,
Harvard Law School; Professor Myres McDougal, Yale Law School
(members of the Section's General Advisory Committee); and Messrs.
Wilfred Grandison, John Elliott Reardon, Robert T. Clelland, Jr.,
Carl Estes, II, David W. Martowski, John A. Vosburgh and Professor
Gary Widman.
-6-
PAGENO="0695"
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LEIGH S. RATINER~
REBECCA L. WRIGHTt
United States Ocean Mineral
Resource Interests and the
United Nations Conference
On the Law of the Sea
INTRODUCTION
If the negotiators representing most of the independent nations of the
world at the third United Nations Conference on the Law of the Sea' can
agree on a new treaty that will harmonize the numerous conflicting inter-
ests of nations in their use of the oceans, the United Nations and the world
community will have taken an important step forward. If these men and
women fail to agree on a new treaty, mankind will miss an opportunity
not to be regained. If they are to achieve virtually universal acceptance of
a new legal system for ocean uses, these negotiators will have to find a way
of accommodating such diverse and complex interests as, for example, the
desire of developing countries for control over newly-found mineral
resources with the desire of the developed countries to be less dependent
on mineral resources controlled by developing countries. They will have to
harmonize the interests of major maritime powers in the freedom of move-
ment of their commerical and war ships with the demands of many other
countries to subject those ships to restrictions. To take still another
* Leigh S. Ratiner is Director for Ocean Resources, Office of the Assistant Secre
tary, Mineral Resources, Department of the Interior; member of the United States
Delegation to the U.N. Seabeds Committee. J.D., University of Pennsylvania, 1962;
M.C.L. Southern Methodist University, 1963.
t Rebecca L. Wright is Foreign Affairs Assistant, Office of Ocean Resources, De-
partment of the Interior. M.A. Johns Hopkins University School of Advanced Interna-
tional Studies, 1972. Ms. Wright wishes to thank the National Science Foundation
which provided a portion of the funding in support of her research on this article.
The views expressed in this article are those of the authors alone, and do not
necessarily reflect those of the Department of the Interior or the United States
Government.
1 The Third Conference on the Law of the Sea was originally scheduled by the
25th U.N. General Assembly in December 1970, U.N.G.A. Res. 2750 C (XXV).
This resolution however gave to the 27th U.N. General Assembly an opportunity to
review the progress of preparatory work and fix a new date. This has recently been
done. See note 8 in fra.
Reprinted from The Natural Resources Lawyer, Vol. VI, No. 1, Winter 1973
A publication of the Section of Natural Resources Law, American Bar Association
PAGENO="0696"
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exampi~, these negotiators must find formulae which on the one hand will
assure a continuing supply of protein from the sea and on the other satisfy
the established economic interests of fishermen the world over as well as
the aspirations of developing countries who seek to create new economic
interests in the living resources of the sea.
These are only a few of the fundamental conflicts in the law of the sea.
These, as well as many others, must be resolved to the satisfaction of most
countries who have significant political, military and economic stakes in
the results-for without their agreement, an effective new legal order will
not be possible. Because the resources of the ocean are of inestimable
economic value, it is fair to say that mankind has probably never before
attempted such a difficult task.
Previous Conferences on the Law of the Sea
In 1958 and again in 1960, the United Nations met to decide what the law
of the sea was and should be. The 1960 Conference ended in failure. The
1958 Conference, however, did successfully codify a considerable amount
of what theretofore had been customary international law.2
The 1958 Conference did not, however, successfully resolve or even
face many of the issues with which mankind is wrestling today in the
United Nations. The principal failures of the 1958 Conference were the
following:
(a) There was no agreement on the breadth of the territorial sea. The
result-many nations haphazardly claimed territorial limits which
were widely disparate.3
(b) There was no agreement on what preferential economic rights, if
any, coastal states would have to the living resources of the sea
beyond the territorial sea. After the 1958 Convention was nego-
tiated, a 9-mile fishing zone was soon established by customary
international law and several countries claimed substantially
greater geographic control over fisheries than 9 miles.
(c) The world did not agree on a precise boundary for the coastal
states' rights to the oil rich continental shelves adjacent to their
2 Convention on the High Seas, 13 U.S.T. 2312, T.I.A.S. No. 5200. Convention
on the Continental Shelf, 15 U.S.T. 471, T.I.A.S. No. 5578. Convention on the
Territorial Sea and Contiguous Zone, 15 U.S.T. 1606, T.I.A.S. No. 5639. Convention
on Fishing and Conservation of the Living Resources of the High Seas, 17 U.S.T.
138, T.I.A.S. No. 5969.
31t should, however, be noted that the Territorial Sea Convention provides in
Art. 24 (1) and (2) that coastal states may exercise certain specialized controls in a
contiguous zone which may not extend beyond 12 miles from the baseline from which
the territorial sea is measured. Accordingly, there can be no doubt that while the
Convention did not fix the breadth of the territorial sea, it did by implication provide
for an uncertain but narrow, i.e., within 12 miles, outer limit.
PAGENO="0697"
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coasts The 1958 Continental Shelf Convention did, however, go
farther toward satisfying coastal state demands than did the
Fisheries Convention or the Temtonal Sea Convention It gave
the coastal state "sovereign rights for the purpose of exploring
[the continental shelf] arid exploiting its natural resources."4
The Convention defined thô continental shelf as:
the seabed and subsoil of the submarine areas adjacent to the
coast but outside the area of the territorial sea, to a depth of
200 metres or, beyond that limit, to where the depth of the
superjacent waters admits of the exploitation of the natural
resources of the said areas. . . .~
Under this definition, vested interests could be established by
coastal states in areas distant from the coast as soon as the neces-
sary technology was developed.
At the present time, while many nations6 have issued oil leases
for concessions beyond the 200 meter limit mentioned in Article 2
of the Continental Shelf convention, exploitation beyond that
limit is not yet occurring. Commercial production beyond the
200 meter limit is probably imminent in some parts of the world.
With the increasing demand for energy, it seems not improbable
that the development of technology for deep water exploitation
will accelerate during the next decade. Accordingly, some decision
on the geographical extent of a coastal state's rights would appear
to be both sensible and prudent at this time. In the process of
defining that boundary, it will also be necessary to reach an
accommodation of the coastal states' interest in resource manage-
ment with the interests of other nations in freedom of navigation,
pollution prevention, peaceful dispute settlement, revenue sharing
and protection for the integrity of investment.
(d) No attempt was made in 1958 to establish a legal system for the
exploitation of deep sea mineral resources. Rather, these resources
were left to be developed under a high seas regime. While the
High Seas Convention did nOt specifically set forth a "freedom"
to mine mineral resources beneath the high seas, in the absence
of other international law on, the subject, it is clear that its provi-
sions would apply to the seabeds beneath the high seas and hence
to this new area of potential economic activity.
4The Geneva Convention on the Continental Shelf, supra note 2, art. 2.
51d., art. 1.
6Unofficial and informal sources have indicated that this number includes more
than 50 countries.
PAGENO="0698"
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(e) The Territorial Sea Convention did not adequately deal with the
very important question of transit through international straits.
The United States and other countries left both the 1958 and
1960 Conferences with the stated conviction and legal position
that no state need recognize coastal state territorial jurisdiction
beyond the 3-mile limit. That being the case, the question of inter-
national straits, while serious, was not as serious as it is today
when more than half the nations of the world insist that they are
lawfully entitled to establish territorial sea limits at 12 miles and
wish to reach agreement on that basis at the next Law of the Sea
Conference. The issue of straits, then, takes on much greater im-
portance since several of the world's most important international
straits would be overlapped by territorial seas under a 12-mile
rule, when under a 3-mile rule they contain high seas and transit
on, under and over them is subject to the High Seas Convention.
(1) Freedom of scientific research, another of the unspecified free-
doms of the seas, was partially restricted by the 1958 Continental
Shelf Convention. It provides:
The consent of the coastal state shall be obtained in respect of
any research concerning the continental shelf and undertaken
there. Nevertheless the coastal state shall not normally withhold
its consent if the request is submitted by a qualified institution
with a view to purely scientific research into the physical or
biological characteristics of the continental shelf, subject to the
proviso that the coastal state shall have the right, if it so desires,
to participate or to be represented in the research, and that in
any event the results shall be published.7
Many nations apparently believe that the law in respect of free-
dom of scientific research is not sufficiently comprehensive and it,
too, must therefore be considered an unresolved issue from the
1958 Conference.
(g) Treaty articles which would prevent ocean pollution were not a
major achievement of the 1958 and 1960 Conferences. While the
resulting treaties do have a sprinkling of provisions on the subject,
they are not adequate when judged against the background of
modern pollution concerns. The Intergovernmental Maritime Con-
sultative Organization has attempted to ff1 the gap left by these
conferences but, again, not all nations are satisfied that its work
has been as comprehensive as it could and should be.
~ The Geneva Convention on the Continental Shelf, supra note 2, art. 5 (8).
PAGENO="0699"
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The Third Conference on the Law of the Sea8
While the preceding issues seem to be the most important of the questions
left unresolved by the 1958 and 1960 Conferences, many of the developing
countries wish to add a new dimension to the third Law of the Sea Con-
ference. They argue that in 1958 and 1960 many of them did not exist as
sovereign states and that the Law of the Sea Conferences were dominated
by major maritime powers. It is true that many countries have achieved
independence since 1960 and that to the extent their interests were previ-
ously represented by the major maritime powers, the 1958 and 1960
Conventions probably do not accurately reflect their view as to what should
have been codified as the law of the sea. These considerations were in
mind when the United Nations approached the question of whether to
convene a third Conference on the Law of the Sea. The developing
countries were overwhelmingly of the view that a new conference should
be comprehensive. That view was manifested in the General Assembly
Resolution which called the Conference, required the preparation of a
"comprehensive list of subjects and issues relating to the law of the sea"
and required the new U.N. Seabeds Committee to "draft articles on such
subjects and issues."9
Preparation of the list of subjects and issues in conformity with the
General Assembly's mandate has occupied much of the attention of the
United Nations Seabeds Committee since 1970 and was finally agreed at
the Seabeds Committee's July-August Session in 1972.'° It is unlikely that
the Seabeds Committee will attempt to negotiate treaty articles corre-
sponding to all of the matters on the list. Such a detailed treaty would take
many years to complete-by which time most nations of the world would
have established substantial vested interests in all aspects of ocean devel-
opment and could no longer subject their interests to constructive and
fruitful negotiations. The reader may, however, wish to draw his own
8 In its Res. 3029 (XXVII) of December 18, 1972, the 27th U.N. General As-
sembly unanimcusly called for an "accelerated" preparatory work program by the
Seabeds Committee, leading up to a two-week organizational meeting of the third
United Nations Law of the Sea Conference in November 1973 at New York, followed
by an eight-week substantive meeting at Santiago, Chile, in April-May 1974. The
preambular part of the resolution expresses the expectation that the Conference will
be concluded in 1974, but provides that the Conference, with the approval of the
General Assembly, may schedule a subsequent session (or sessions) with the expecta-
tion that the work of the Conference will be concluded no later than 1975.
9Supra, note 1.
10 Report of the Committee on the Peaceful Uses of the Seabed and the Ocean
Floor Beyond the Limits of National Jurisdiction, 27 U.N. GAOR, Supp. 21, U.N.
Doc. A/8721 at 5-8 (1972).
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694
conclusions as to the utility of the list in future negotiations by simply
perusing it."
:~ * *
The bulk of this article will be devoted to the mineral resource interests
of the United States in the oceans-oil and hard minerals. The reader
should, however, bear in mind that the United States has significant
interests to preserve and defend in the third Law of the Sea Conference in
the areas of fisheries, national security, freedom of scientific investigation
and pollution prevention.'2
11 text reproduced as Appendix I at p. 33.
12 varied treatment of these issues, see: L. Henkin, Law for the Sea's Mineral
Resources (1967), Clearinghouse for Federal, Scientific and Technical Information
Publication PB 177 725; Report of the Commission on Marine Science, Engineering
and Resources, Our N~'tion and the Sea (1969); Finlay, The Outer Limit of the
Continental Shelf. A Rejoinder to Professor Louis Henkin, 64 AJ.I.L. 42 (1970);
Henkin, A Reply to Mr. Finlay, Id. at 62; Christy, Fisheries and the New Conven-
tions on the Law of the Sea, 7 San Diego Law Review 455 (1970); Burke, Some
Thoughts on Fisheries and a New Conference on the Law of the Sea (1971), Law of
the Sea Institute, Occasional paper No. 9; Dole and Stang, Ocean Politics at the
United Nations, 50 Oregon Law Review 378 (1971); Henkin, Arctic Anti-Pollution:
Does Canada Make-or Break-International Law, 65 A.J.I.L. 84 (1971); Hollick,
United States Oceans Policy: 1948-1971, Johns Hopkins University, PhD. disserta-
tion (1971,); Ratiner, United States Oceans Policy, 2 Journal of Maritime Law and
Commerce 225 (1971); Rawlinson, International Problems Concerning Pollution and
the Environment, IV Natural Resources Lawyer 804 (1971); Schacter and Serwer,
Marine Pollution Problems and Remedies, 65 A.J.I.L. 84 (1971); Stang, Political'
Cobwebs Beneath the Sea, 7 International Lawyer 1 (1973); Friedheim and Kadane,
Ocean Science in the United Nations Political Arena, 3 Journal of Maritime Law and
Commerce 473 (1972); Senate Committee on Interior and Insular Affairs, Law of
the Sea Crisis. A Staff Report on the United Nations Seabed Committee, the Outer
Continental Shelf and Marine Mineral Development, 92nd Cong., 1st Sess., December
1971; Testimony by L. Ratiner before the Subcommittee on Seapower of H.R. Com-
mittee on Armed Services, Hearings on Territorial Sea Boundaries Before the Sub-
committee on Seapower of the House Committee on Armed Services, 91st Cong., 2nd
Sess., No. 91-61, June 25, 1970; Subcommittee on International Organizations and
Movements of House Committee on Foreign Affairs, the United Nations and the
Issue of Deep Ocean Resources, H.R. Rep. No. 999, 90th Cong., 1st Sess. (1967);
Subcommittee on International Organizations and Movements of the House Com-
mittee on Foreign Affairs, The Ocean: A Challenging New Frontier, H.R. Rep. 1957,
90th Cong., 2nd Sess. (1968); Hearings on S. Res. 33 Before the Subcommittee on
Ocean Space of the Senate Committee on Foreign Relations, on S. Resolution 33,
91st Cong., 1st Sess. (1969); Hearings on Issues Related to Establishment of Seaward
Boundary of the United States Outer Continental Shelf before the Special Subcom-
mittee on Outer Continental Shelf of the Senate Comm. on Interior and Insular
Affairs, 91st Cong., 1st and 2nd Sess., (1969 and 1970); Subcommittee on Inter-
American Affairs of H.R. Committee on Foreign Affairs, Hearings on Fishing Rights
and United States-Latin American Relations Before the Subcommittee on Inter-Ameri-
can Affairs of the House Committee on Foreign Affairs. 92nd Cong., 2nd Sess., Feb-
ruary 3, 1972.
PAGENO="0701"
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MINERAL RESOURCES
The United States position on mineral resources is found in President
Nixon's Oceans Policy Statement of May 23, 1970.13 The United States
in August 1970, in pursuance of that policy, presented a draft treaty
dealing with the mineral resources of the seabed.14
That treaty, however, is a lengthy and complex document and may well
have been presented at such an early stage in the negotiations that it is
not certain that all delegations gave it the kind of careful study the
document deserves. In the ensuing two years, careful reflection, discussion
with foreign representatives and close liaison with affected members of
the American public have made it possible to refine in narrative form
which of the elements of the draft seabeds treaty are considered critical to
the basic interests of the United States in a new law of the sea treaty.
These critical interests were presented to the Plenary body of the U.N.
Seabeds CommIttee on August 10,~ 1972.15 In prior statements the United
States had emphasized its military and national security interests in ocean
space. Most observers would agree that, when a nation in an important
negotiation places substantial emphasis on one of the issues in the negoti-
ation, it runs the risk of leading others to believe that other negotiating
demands are of less importance and may be sacrificed in order to achieve
the former. Sometimes this is the case. There can be no question, however,
that if some nations or indeed some private commercial interests had held
the view that basic United States mineral resource interests in the oceans
were regarded by the United States Government as mere trading coin to
achieve other interests, that impression was corrected by the August 10
speech.
The views of my delegation on resource issues have also been stated on a
number of occasions. Unfortunately, some delegations appear to have the
impression that maritime countries in general, and the United States in
particular, can be expected to sacrifice in these negotiations basic elements
of their national policy on resources. This is not true. The reality is that
every nation represented here has basic interests in both resource and
nonresource uses that require accommodation. [emphasis added]
Petroleum-U.S. Interest in the Resource
Before examining the United States position on offshore oil and gas /
`3White House Press Release, dated May 23, 1970.
14 Report of the Committee on the Peaceful Uses of the Seabed and the Ocean
Floor Beyond the Limits of National Jurisdiction, 25 U.N. GAOR, Supp. 21, U.N.
Doc. A/8021 at 130-176 (1970).
15 Statement of the Honorable J. R. Stevenson, United States Representative on
the United Nations Committee on the Peaceful Uses of the Seabed and the Ocean
Floor Beyond the Limits of National Jurisdiction, Press Release, United States Mis-
sion, Geneva, Switzerland, August 10, 1972. Hereinafter referred to as the "August
10 speech;" full text is reproduced as Appendix II at p. 37.
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resources in the Law of the Sea Conference, it may be helpful to the
reader to have a description of the magnitude of the United States interest
in these resources.
With only 6 percent of the world's population, the United States cur-
rently consumes almost one-third of its commercial energy. Oil and gas
have increasingly supplied the largest share of our energy needs; in 1971
petroleum supplied 44 percent of those needs.
In 1970 the United States imported 24 percent of the oil it consumed.
If by 1985 Alaska's North Slope oil is part of our daily production, we
will be importing 57 percent of the oil we consume. Without Alaska's
North Slope oil, we would be importing 65 percent. Based on presently
known sources of supplies, it would appear that in 1985 we will import
8 to 10 million barrels per day-about 34 percent of our supply would
come from Eastern Hemisphere countries. New domestic land sources of
supply will no doubt be found. However, we will have to begin promptly
to accelerate oil production on the continental shelf in order to get maxi-
mum benefit from our domestic resources. Assuming a favorable leasing
schedule for new areas on the continental shelf, off-shore production is
projected to attain a peak of 1.5 billion barrels a year by 1990 and to
decline slowly thereafter. That figure would represent approximately 14
percent of United States consumption of oil in 1990.
It is clear then that the United States cannot look solely to the conti-
nental shelf off its own coasts to satisfy its increasing demand for energy.
Nor would it be prudent for the United States, considering the politics of
overseas oil production at this time, to rely ever more heavily on Eastern
Hemisphere sources. It is estimated that offshore production worldwide
wifi probably furnish 30 to 40 percent of the world's consumption of these
fuels by 1980 and probably 50 percent by the year 2000. If the United
States and other developed nations begin to diversify their energy sources,
the tight control over production and prices now being experienced with
the countries who are members of the Organization of Petroleum Exporting
Countries (OPEC) will be alleviated.
Petroleum-U.S. Position
Clearly then, it is in our own national interest to achieve in a Law of the
Sea Conference an agreement which will provide a more politically secure
climate for investment by American petroleum companies, at least with
respect to those offshore areas which lie beyond the present limits of
national jurisdiction as defined by the "exploitability test" of the Conti-
nental Shelf Convention. However, as important as this objective is to
the United States, in the long run it should be at least as important to
developing countries who seek investment of foreign capital and tech-
nology.
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As the United States and other petroleum companies become increas-
ingly aware of the political risks inherent in doing business in unstable
areas, they will begin, and indeed already have begun at great expense, to
divert their investments to areas which are noted for political stability.
What then are the basic elements of the U.S. policy with respect to
seabed resources in coastal areas? The United States representative identi-
fied these basic elements in the August 10 speech when he said:
We can accept virtually complete coastal state resource management juris-
diction over [seabed]'6 resources in adjacent seabed areas if this jurisdiction
is subject to international treaty limitations in five respects.
The five international treaty limitations to which United States negotiator
Stevenson referred are the following:
1. International treaty standards to prevent unreasonable interference
with other uses of the oceans.
2. International treaty standards to protect the oceans from pollution.
3. International treaty standards to protect the integrity of investment.
4. Sharing of revenues for international community purposes.
5. Compulsory settlement of disputes.
The United States insistence on these five points may appear anomalous
to some who have analyzed the U.S. offshore resource picture. There are
those, for example, who would assume that since the continental margin off
the coast of the United States is potentially one of the richest areas of the
world in petroleum, the United States should want exclusive economic
control over the area and refuse tO share with other countries any of its
revenues (which under the U.S. system of competitive bonus bidding for
oil leases can be very substantial). Moreover, foreign companies may
invest in the continental margin off the U.S. coast. Why would the United
States, in the absence of countervailing considerations, wish to guarantee
in a treaty protection for the integrity of that foreign investment?
The reasoning process should be obvious. U.S. oil companies are major
investors in areas subject to foreign jurisdiction. Protection for the integrity
of investment, therefore, would appear to be in the best interest of our oil
companies, and more importantly in the long term, best interest of the
United States, for it would provide a more secure, diverse source of a
badly needed resource.
One should not, however, draw the easy conclusion that because of the
far-flung interests of U.S. nationals in overseas investment and the impor-
tance of protecting that investment in any new treaty dealing with re-
16 While the original statement does not use the word "seabed" the sentence
quoted is taken from a section of the statement entitled Seabed Resources-Coastal
Areas. Later in the statement there is a separate section on fisheries.
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sources, the United States would feel compelled to accept a legal regime
and overall law of the sea settlement which from its own perspective was
not regarded as adequate.
The fact is that considerable oil prospects can be anticipated in politi-
cally secure areas of the world-areas which under the Continental Shelf
Convention would eventually become subject to national jurisdiction.
Taking into account the United States continental margin, the North Sea,
the large Soviet potential and the Canadian continental margin, it should
be obvious that for a substantially increased investment large sources of
petroleum are available which do not require investing in politically un-
stable areas of the world. In the long run, the United States and other
industrially advanced countries do have alternatives to heavy dependence
for petroleum on certain regions of the world.
Thus, treaty provisions which would protect the integrity of investment
should be of interest to the developing countries as much as they are to
the developed. Developing countries, to the extent they are suspect by
major investors because of an expropriation, frequently require a period
of years in order to regain investor confidence. Willingness to accept a
treaty obligation to protect the integrity of investment might substantially
shorten that waiting period and enhance many developing countries'
prospects for attracting oil company investment.
There is another potential advantage if the developing countries accept
the concept of the "integrity of investment." We have seen in the Seabeds
Committee a reluctance on the part of developed countries to accept the
principle of revenue sharing which has been so vigorously promoted by the
developing countries. It is possible that developed countries would be
less reluctant to accept revenue sharing if they could foresee tangible
benefits with respect to their foreign investment accruing as a direct result
of their willingness to share revenues off their own coasts. If our earlier
analysis is correct, i.e., that in the absence of "integrity of investment"
developed country capital will flow into coastal areas adjacent to devel-
oped countries, it should be obvious that there will be little incentive on
the part of developed countries to share revenues from areas off their own
coasts.
Petroleum-Other Countries' Interests
in the Resource
If the Geneva Convention on the Continental Shelf never existed and the
Law of the Sea Conference wanted to decide in the abstract how rights and
obligations with respect to that area should be distributed, three principal
choices would be available.
First, the geographic limits of a coastal state's rights on the continental
shelf could be placed quite close to the coast, thus leaving the vast bulk
PAGENO="0705"
699
of the world's continental margins to reaulation by an international organi-
zation in accordance with a treaty.
Second, the coastal state could be given sovereign rights to the mineral
resources of the entire continental margin and a formula would have to
be found for defining the seaward edge of the margin.
Third, the geographic limit of the margin could be downplayed as an
issue and attention focused instead on providing a reasonable balance of
coastal state and international rights for the area.
These were the choices facing the international community when the
U.N. Seabeds Committee first convened in 1968. However, the existence
of the Continental Shelf Convention and its "exploitability test" had to be
viewed as a political factor seriously affecting the range of choices. No
matter what the interests of states, land-locked or coastal, developed or
developing, it was obvious that coastal states would not give up their
present or prospective rights under customary international law or under
the Continental Shelf Conventiŕn to any large degree.
The first alternative-the narrow shelf-should have had substantial
appeal to those countries which were either land-locked, had no continental
shelf, or found what shelf they had legally inaccessible. This approach
should have been particularly appealing to developing countries since, at
that time in the negotiations, the concept of revenue sharing as applied to
seabed resources beyond the limits of national jurisdiction appeared to be
acceptable to many nations. To some extent land-locked and shelf-locked
countries perceived this interest and put it forward in the negotiations.
They did not, however, do so forcefully or aggressively.
A group of developing nations, mostly Latin American nations, per-
ceived the issue differently, although the reasoning behind these con-
clusions varies. Those with a broad continental shelf on the East Coast
of South America wished to gain as much jurisdiction over potential areas
of oil exploitation as possible and favored the broadest possible rights
within that area. On the West Coast of South America the reasoning was
different. Those countries whose continental shelves drop steeply to the
abyssal ocean floor within a few miles of their coasts contemplate little
oil potential and thus wished to assure that the seaward limits of national
jurisdiction were extensive in order to bolster their case for equally broad
limits with respect to control of the living resources of the sea. Thus, while
they fit the category of land- and shelf-locked countries most aptly, their
ambitions with respect to the water column required them to take a con-
sistent position with respect to the seabed even though it holds little
promise of oil.
There are many African countries who have not yet had the opportu-
nity to learn much about the offshore resource potential on their continent.
In general, their individual coastlines are shorter than those in Latin
23-317 0 - 73 - 45
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700
America and the continental margin in Africa is not nearly as broad.
They, more than any group of states, should want to weigh carefully the
possible attraction of the third option mentioned above, e.g., coastal-
international mix. However, they have been subjected to intense per-
suasive efforts by the Latin American countries who had already decided
what was in their own best interests. As developing countries, it appears
the African countries were more disposed to lean toward the solutions
proposed by other developing countries rather than toward the solution
proposed by the United States and supported by the United Kingdom
which called for a coastal-international mix. The result has been that those
African countries who anticipate that exclusive jurisdiction on their own
continental margins will be far more advantageous than a share of the
benefits which would be derived from the continental margins off all
countries in the world have gradually moved the African group in the
direction of the broad shelf favored by the Latin Americans.
In addition to these groups, there are the developed countries with
broad continental margin areas off their coasts who would receive little
benefit from internationalizing the area. These countries, like Australia,
New Zealand, Canada and others, clearly perceive their interests to be
best protected by the widest possible area brought under the maximum
possible jurisdiction. This would be particularly true with respect to those
countries in this group who do not have the capability or the potential
capability to develop oil resources in offshore areas adjacent to other
countries.
It seems clear that the land-locked and shelf-locked countries would
have had an uphill fight in the United Nations and would have had to act
quickly and aggressively to protect that interest. Even if they had, it is by
no means clear that they could have sold the narrow shelf concept to
others.
Petroleum-Progress of the Negotiations
The most sensitive issue in the law of the sea negotiations to date has been
the question of "the limits of national jurisdiction." It has been a subject
which those countries favoring broad limits of national jurisdiction have
scrupulously avoided debating. Because of their adamant stand, most coun-
tries have taken it for granted that if there was to be a new law of the sea
treaty that issue would have to be faced at the very end. This unspoken
and unwritten understanding has had a profound effect on the negotiating
process. Subcommittee I, for example, which deals with the seabeds, has
confined its work in large part to the area of the seabed clearly seaward
of the continental margin.
If Subcommittee I had begun to negotiate a treaty which pertained to
oil resources, it would have immediately been charged by some countries
PAGENO="0707"
701
with exceeding its mandate since it is to deal with the seabed "beyond
the limits of national jurisdiction" and these countries regard the continen-
tal margin as within the limits of national jurisdiction. The United States
has not accepted this view and continues to raise in Subcommittee I dis-
cussions matters of concern not only in the deep seabeds but in continental
margin areas as well. Nevertheless, the thrust of the negotiations is clearly
in the direction of developing a legal regime and machinery for the deep
seabeds. The Latin American countries were adamant that Subcommittee
II must be responsible for making the final recommendation on the limits
of national jurisdiction although~ its decision will be based on recommen-
dations from other subcommittees. However, since Subcommittee II has
until now formally dealt only with the list of subjects and issues, it has not
really had an opportunity to debate the nature of coastal state rights within
the limits of national jurisdiction as some countries define that term.17
While little negotiation appears to have taken place anywhere in the
Seabeds Committee on the content and quality of coastal states' rights to
seabed resources adjacent to coasts, in fact a genuine negotiation has been
in progress, embracing not only the United Nations Seabeds Committee but
17 One must appreciate the importance of the seemingly procedural decision
that Subcommittee II will be responsible for recommending the limits of national
jurisdiction. The term "national jurisdiction" was first used in the Committee as a
convenient reference to that area which would not be the subject of international
treaty negotiations. That is, the seabeds treaty would concern the area beyond the
limits of national jurisdiction. The use of the term was an important psychological
lever for those countries which favored exclusive coastal state jurisdiction far out to
sea. If most delegations could be influenced to believe that the seabeds treaty would
not apply to the continental margin as a result of this device, it would eventually be
taken for granted that the limits of national jurisdiction should coincide with the
edge of the continental margin and by that time, if the issue were decided at the very
end of the conference, the terms of the seabeds treaty would already have been
drafted so as to apply to the deep seabeds.
The difficulty with this term, however, is that it was used to describe varying
concepts of jurisdiction. For example, a nation which had extended only its fisheries
jurisdiction but not its territorial sea to 200 miles used the term "national jurisdiction"
to define the area over which it had only limited jurisdiction. The United States, for
its part, believed that most countries were using the term to refer to comprehensive
or exclusive jurisdiction. Therefore, it treated as the area beyond the limits of national
jurisdiction that area of the seabed lying beyond the present limit of exploitability-
the 200 meter isobath. Thus, while many countries seem to accept the view that Sub-
committee I of the Seabeds Committee~ which is charged with negotiating the seabeds
regime should confine its work to that area of the seabed beyond any national claim,
the United States, on the other hand, expected to negotiate provisions dealing with
rights and obligations on the continental margin in Subcommittee I.
The result has been that no subcommittee has been negotiating the kinds of
detailed rights and obligations which would flow from an intermediate zone concept
such as that proposed by the United States. It is now apparent that this negotiation
will have to take place in the Plenary as is evidenced by the fact that the August 10
speech, as well as other important policy statements delivered by Kenya and Ven-
ezuela on behalf of regional groups, was presented in the Plenary. (These statements
are on file in the office of the Legal Adviser, Department of State.)
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702
major international conferences at the regional level which have produced
declarations dealing with coastal state rights which must be taken into
account in the negotiating processes. For example, the starting positions
of some of the principal countries in this negotiation have begun to evolve
in the course of general debate in the Plenary rather than in any of the
Subcommittees. When the Law of the Sea Conference first appeared on
the horizon, the range of viable alternatives included the Latin American
200-mile territorial sea position as well as the more traditional, customary
international law positions. Today, based on the Declaration of Santo
Domingo, the results of the Yaounde Seminar and the U.S. August 10
speech, as well as numerous other important policy statements in the
Plenary, it is obvious that the gulf between widely disparate positions has
begun to close. Since most people think that major negotiations occur
behind the scenes and in back rooms, it has not been obvious to many that
a genuine negotiation is in fact in progress in the Plenary and, indeed,
is at a fairly well advanced stage. In a sense, then, the negotiation on this
issue is as well advanced as virtually any issue in the law of the sea.
Hard Minerals-U.S. Interest in the Resource
The existence of metal-rich nodules on the surface of the ocean floor has
been known for almost a hundred years.
In the past 15 years, several commercial enterprises, German, Japanese
and American, and a host of scientific institutions have carried out fairly
comprehensive research and exploration efforts to learn more about the
nodules, their economic value and methods of recovering and processing
them. It is now clear that deposits of manganese nodules rich in copper,
nickel, cobalt and manganese can be economically recovered.
Despite optimistic forecasts of riches from the ocean, nodule mining
will be a small and highly speculative industry for many years. The capital
costs are extremely large, the technology highly sophisticated and the diffi-
culties of competitive marketing must not be underestimated. It is doubtful
that more than a half-dozen marine mining operations can command the
combination of risk capital, highly skilled research and operations per-
sonnel and marketing capability necessary for success. The output of these
ventures can be important to their respective national economies, but of
much less importance to the international economy. Although the revenues
from this number of mining ventures may well support an international
marine resource agency, the share passed on to U.N. member nations will
be small. Despite the abundance of nodules and their appealing metal
content, production will be limited by the availability of good, terrestrial
ores for many years.
Manganese nodules cOntain over twenty metallic elements. The metals
of most immediate commercial interest are cobalt, copper, manganese,
PAGENO="0709"
703
molybdenum, and nickel. Each of these metals has important industrial
uses, and several are critical to sophisticated metals industries.
Cobalt is used in high-temperature, high-strength superalloys; high-
speed tool steel; permanent magnet alloys; and some chemical applications.
Although some cobalt is produced in conjunction with copper and nickel,
the sole U.S. mine producing cobalt shut down in late 1971. Seventy-five
percent of 1971 U.S. cobalt consumption was imported, at a cost of over
$23 million.
The uses of copper, in electrical applications, bronze and brass alloys,
jewelry, and chemical manufacture, are well known. The U.S. imports little
copper. Although only 6 percent of domestic consumption was accounted
for by net imports in 1971, the cost was over $160 million.
Manganese is used both as a desulphurizing agent and in producing
many steel alloys. Manganese improves the strength, toughness, wear-
resistance, hardness and hardenability of steel. Dry cell battery production
and some chemical processes also use manganese. In 1971, the U.S. im-
ported 96 percent of the manganese consumed, at a cost of nearly $60
million.
Molybdenum is used principally in steel alloys. Stainless steel, tool steel,
and alloys with wear resistance all use molybdenum, along with semicon-
ductor devices, lubricants, pigments and some catalysts. The U.S. is self-
sufficient in this mineral.
Nickel has two principal uses-as an alloy metal and in electroplating.
Almost 85 percent of U.S. nickel consumption is in the form of alloys:
stainless steel, heat resistant castings, grey iron castings, corrosion resistant
alloys, cast bronzes and brasses, permanent magnets and others. Most of
the remainder is used in electroplating. In 1971, the U.S. imported 66
percent of domestic nickel consumption, at a cost of $363 million.
The total cost of importing cobalt, copper, manganese and nickel was
over $600 million in 1971. This cost will increase each year, as domestic
demand rises and domestic production falls further short of meeting that
demand. Nickel and copper account for 86 percent of the 1971 outflow.
A relatively small reduction in imports of these metals will effect signifi-
cant savings. Unfortunately, it is~ extremely unlikely that either domestic
copper or nickel production will rise rapidly enough in the future to reduce
the relative importance of imported metals in the U.S. market.
U.S. nickel reserves are estimated to be 250,000 short tons with an
average grade of approximately 1.5 percent. Domestic 1971 consumption
is estimated at 204,350 short tons. With annual growth rates for nickel
demand estimated to be from 3.4 percent to 6 percent, it is clear that the
U.S. will become increasingly dependent on foreign sources of nickel.
U.S. copper reserves are currently estimated at 81,000,000 short tons
of metal, or nearly 40 times the 1971 consumption of 2,076,000 tons. As
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704
technology improves, these reserves may grow. Improved mining and
metallurgical techniques will permit extraction of metal from very low
grade ore. Presently, some .34 percent ore is being profitably mined.
(This means that 2,000 pounds of ore, not including overburden, must be
mined and processed to recover less than 7 lbs. of copper.) However,
when the limiting ore grade is reached (it has been estimated at 0.1 per-
cent) reserves will stabilize, and the slow growth of imports will increase.
The United States has virtually no manganese deposits which can be
called ore. Imported ores contain from 35 percent to 50 percent manga-
nese, while U.S. deposits contain 15 percent.
Deepsea nodule deposits can become important reserves of all these
metals. Analysis of nodules indicates that metal contents of 1 percent cop-
per, 1.25 percent nickel, 0.22 percent cobalt, 25 percent manganese and
.05 percent molybdenum are not uncommon. The copper and nickel con-
tents compare favorably with domestic ores. However, the importance of
these deposits becomes clear when the proposed scale of operation is
examined.
Current proposals for nodule mining and metal recovery envision scales
of operations ranging from 1 million to 3 million dry weight tons per year.
Although metal winning efficiency will be less than 100 percent, using the
contents noted above, the impact on imports may be gauged. One 3 million
ton per year plant could produce 30,000 tons of copper annually, or 1.4
percent of 1971 domestic demand. That represents 23.2 percent of 1971
imports. Nickel production would be 37,500 tons, or 18.4 percent of 1971
domestic demand. Nickel imports would be reduced by almost 28 percent.
It is unlikely that manganese would be produced on such a very large
scale at competitive prices. However, a 1 million ton per day plant could
produce 250,000 tons per year of high purity manganese metal. This would
equal 18.8 percent of 1971 domestic demand, or 19.6 percent of 1971
imports. Marine cobalt production could provide national self-sufficiency.
An estimated 6,984 tons of cobalt were used in the United States in 1971.
One 3 million ton per year plant could produce 6,600 tons of cobalt per
year.
Although these rates of production, and their predicted impacts are
impressive, it must be noted that neither mining systems nor metallurgical
processes have yet been tested on any but an experimental basis. The leap
from laboratory experimentation, and reduced scale tests, to full scale
production is long and extremely expensive. Conservative engineering cost
studies indicate that $200-$300 million per company is the likely entry
fee to a very risky business. In addition, the lead time necessary for design
and construction could allow terrestrial producers to take strong competi-
tive positions, thereby reducing expected return on marine mining.
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In addition to technological risks, marketing risks abound. Copper is
the only safe market the marine miner will enter. With U.S. demand in-
creasing 4-5 percent per year, from a 1971 base of 2,076,000 tons, nodule
production could make no inroad into established markets. Manganese
will clearly face stiff competition from high grade imported ore. The win-
ning processes under consideration may produce a metallic manganese of
high purity, but this metal will compete for only a small share of the total
market. It is extremely unlikely that marine manganese can compete with
terrestrial ores for large scale use in steel production. At low enough prices,
cobalt and nickel become interchangeable for some uses, and a nickel-
cobalt electroplating alloy of excellent quality may be produced. It is
possible, therefore, that the market opportunities for nickel and cobalt
will be interrelated.
Hard Minerals-United States Position
The United States, in the very earliest days of the U.N. Seabeds Commit-
tee's deliberations, was in a position to choose between two courses of
action with respect to its position on the hard mineral resources of the
deep seabed.
First, the United States could have opposed the establishment of an
international legal regime and international institutions to govern the ex-
ploration for and exploitation of these resources. The thinking underlying
an approach like that would be (a) these resources represented a needed,
new, large and dependable supply of nickel, copper and cobalt; (b) United
States industry was clearly capable of rapidly developing the mining and
metallurgical processes necessary to maximize U.S. advantage from the
resource. Thus, the best approach would be strict, unregulated free enter-
prise as would be the case under the High Seas Convention. On the other
hand, a second option was open to the United States, which required the
negotiation of an international treaty. Long-term rational exploitation of
the resources with the added advantage of international recognition of
mining claims would only be possible through a widely accepted inter-
national agreement.
This reasoning, however, would not be adequate to justify subjecting
the resource to international control because the real risk of claim-jumping
is probably insignificant. This is true, first, because manganese nodules are
abundant; second, because the market place will only bear a limited
amount of production before manganese nodule mining becomes unprofit-
able with a decline in prices; and third, because investment of $200 to
$300 million per company is so high that cutthroat competition at mining
sites as between companies of the same nationality or companies under
differing nationalities would be counterproductive and quickly make the
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706
initial investment appear to corporate executives to be of dubious value.
Accordingly, the prospect of claim-jumping alone would not have justified
a governmental decision to abandon the high seas regime for manganese
nodule mining and instead subject the resources to international control.
The only real justification for a technologically advanced country like
the United States to submit its ability to harvest this potential new resource
to international rules and procedures is the desire to help achieve a funda-
mentally new and equitable legal order in ocean space. The creation of
viable international institutions with world-wide participation gives to all
mankind the opportunity to work cooperatively with resources of great
value and furthers the possibility, of particular interest to countries like
the United States, of ensuring a more stable and secure world order. The
United States surely recognized that if an international regime and new
international institutions could be created which provided a sound invest-
ment climate for American industry and at the same time achieved still
loftier goals as well, the practical result would be better than simply per-
mitting American nationals to develop these resources just for the profit
and the economic security of the United States.
In addition, it should be recalled that the next Law of the Sea Confer-
ence will deal with a `variety of subjects of concern to the United States.
These have been mentioned earlier. To the extent that, consistent with
U.S. mineral resource interests, it would be possible to accommodate the
needs and wishes of many other countries with respect to a legal regime
for deep seabed minerals, this might ease the negotiating effort for the
United States on other issues.
The difficult question in all of this, of course, is at what point will the
desire for a stable and equitable resource exploitation regime be blunted
by the possible unwillingness of other countries to assure that such a regime
is also consistent with United States needs and desires for secure depend-
able sources of metals.
The U.S. position on this subject has been succinctly stated by Mr.
Stevenson in his August 10 speech:
The basic interests we seek to protect in an international seabed regime
are reflected in the five points to which I referred earlier,18 coupled with
our proposal for international machinery to authorize and regulate explora-
tion and use of the resources of the area. An effective and equitable regime
must protect not only the interests of the developing countries but also
those of the developed countries by establishing reasonable and secure in-
vestment conditions for their nationals who will invest their capital and
technology in the deep seabeds. In order to provide the necessary protec-
tions for all nations with important interests in the area, it is also necessary
to establish a system of decision making which takes into account and
provides for compulsory settlement of disputes. We do not regard these
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707
objectives as inconsistent with the desire of other countries for equitable
participation in deep seabed exploitation and its benefits.
Mr. Stevenson went on to stress those areas in which the United States
believes the developing countries will obtain maximum benefit from an
international deep seabed regime. He said:
Finally, Mr. Chairman, it is our view that the benefits to be derived from
the operation of this new treaty should only be made available to those
nations who are prepared to ratify or accede to it. Those benefits, as all of
us in this room know, are manifold. New technology for mining in the
seabeds is rapidly opening up new prospects for important mineral sup-
plies. As development proceeds, vast new ideas will emerge as man begins
the serious exploration of the ocean and its resources. Mining in the oceans
will generate revenues as well. All these benefits, Mr. Chairman, should
be shared. We are capable in this Committee of making the decisions
which will enable these benefits to be realized, but we must get about the
business of making these decisions promptly or we will be precluded from
doing so.
Hard Minerals-Other Countries' interests in the Resource
The newly emerging technological capability to mine deep sea mineral
resources has in essence presented a variety of new opportunities for the
international community.
First, the international community has asked itself whether ocean mining
should be allowed to develop in the haphazard way that high seas fisheries
have developed or, it asks, should we take this opportunity in advance
of actual development to assure that when ocean mining develops, it does
so under the auspices of a single international organization with the re-
sponsibility for assuring sensible development and management of the
resource and equitable distribution of its benefits to all mankind.
Second, as mentioned earlier, seabed mining presents an opportunity
for a large segment of the international community to create new, viable
international institutions which are self-funded and give to mankind the
opportunity to learn to use resources of great value cooperatively.
Third is the opportunity, nOt as widely recognized nor supported as
those we have just mentioned, which some developing countries see to
acquire new political power in the international community. Developing
countries are learning quickly that developed countries have insatiable
appetites for mineral resources and have developed their societies in such
a way as to become addicted to those resources. While their objectives
have not been clearly defined, the developing countries who perceive this
third opportunity most clearly wish to adopt a system for coping with the
18 The five points to which Mr. Stevenson refers are listed supra at p. 9.
PAGENO="0714"
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development of these resources which preserves their option to use the re-
sources as another lever in the accelerating struggle for political power.
Fourth, many developing countries have neither the potential to develop
seabed mineral resources themselves nor an abundance of the metals found
in manganese nodules (as land-based ores). Therefore, they have an inter-
est in assuring that as they prepare to convert from agrarian to more
industrialized economies, metals will be available at attractive prices. If
deep sea mineral production is controlled or curtailed for the benefit of the
few countries rich in land-based ores, all consumers of these metals will
one day suffer. As pointed out earlier, the real function of manganese
nodule metals in the market place will be to supply an increasing portion
of new demand. Thus, while, in general, prices for these metals will not
be depressed and in all probability will continue to rise, they will do so
more slowly and the resource will thus help to limit predictable rises in
prices as an increasing number of countries escalate their demand for
these metals.
The pressure in the United Nations for broad jurisdiction over conti-
nental margin resources has added a new burden to the discussion of deep
seabed resources. An increasing number of countries have become aware
that revenue sharing and any substantial participatory role for the inter-
national community in continental margin areas has diminished as a prac-
tical negotiating objective. These countries increasingly turn to the deep
seabed as the one area left in the negotiations to achieve new international
institutions and a legal regime for resource management which will repre-
sent, hopefully from their point of view, an improved method of regulating
and allocating resources and their benefits.
Proposals in the U.N. for a
Deep Sea Mining Regime and Machinery
An understanding of the debate and negotiation in the U.N. Seabeds Com-
mittee on a legal regime and international machinery for deep sea explora-
tion and exploitation requires a brief discussion of the past negotiating
situation in the Committee and its present parameters.
Only three years ago the developing countries were actively pressing
for a treaty which would establish some international machinery to govern
deep sea mining.19 When President Nixon made his farsighted oceans
policy proposal and the United States introduced the draft seabeds treaty
which provided for rather comprehensive international machinery, regula-
tion of resource exploration and exploitation and a licensing system for
19 The United States and the Soviet Union at that time had not yet accepted
the proposition that a legal regime should include much more than an international
claims registry.
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709
deep sea mineral exploitation, a number of developing countries reacted
to this proposal as though it were a first bargaining position of the United
States rather than a proposed compromise which went a long way toward
meeting their earlier demands.
Some developing countries then proposed an "international operating
enterprise" which would monopolize the research and exploration for, as
well as the exploitation and marketing of, deep sea mineral resources.
One can only guess at the motivation which would have brought forth
such an extreme proposal. Some of the proponents of this concept are
major copper producing countries and presumably would like to see an
organization established which would discourage seabed mineral produc-
tion and thereby enhance the value of their own land-based resources.
Second, a very strong and unrealistic proposal on international control of
deep sea resources might have been planned for bargaining purposes. They
might have assumed that the United States, a principal opponent of exclu-
sive coastal state jurisdiction, might have been willing to moderate its
position on coastal resources in order to encourage others to moderate
their demands for what they knew to be an unacceptable deep seabeds
proposal to the United States.
The international operating enterprise has not been widely endorsed
by other developing countries. They may see it as potentially more destruc-
tive to the negotiations than constructive. Most countries are aware that
U.S. mining companies and U.S. mineral resource interests might make it
impossible for the United States to ratify a treaty with such an extreme
approach to deep sea mineral Eesources. Keen international negotiators
from these countries also know that if political forces in the United States
become so convinced that the negotiations are traveling a path which will
produce an unacceptable treaty, the proper alignment of political interests
could make it appear undesirable for the United States to continue its
constructive participation in the conference preparations. Should that occur,
the opportunity to revise and modernize the law of the sea would be dimin-
ished and most developing countries would not benefit from the resulting
free-for-all. Thus, for the moment, most negotiators in the United Nations
appear to understand well the pitfalls of endorsing an international oper-
ating enterprise.
Several other less extreme proposals have also been put forward and
are under consideration by the Subcommittee I Working Group. A draft
treaty submitted by Tanzania appears in some respects to be similar in
purpose, although less monolithic, than the Latin American proposal with
regard to the question of exclusive authority by the international machin-
ery over the exploration and exploitation of deep sea mineral resources.
Contained within the Tanzanian proposal are provisions empowering both
the international authority and, under its regulation, individual contracting
PAGENO="0716"
710
states (or their nationals) to conduct mining operations in the deep sea
area.
Another approach under consideration by Subcommittee I is a United
Kingdom working paper that proposes a quota system for licensing exploi-
tation of marine mineral resources. The British quota system is designed
to contain built-in assurances that licenses will not be restricted to a few,
technologically developed states.
Another of the more moderate approaches to the question of the func-
tions and powers of the international authority has been submitted by
Poland. In the Polish draft, these powers progressively grow with the de-
velopment of deep sea mining.
In its negotiating efforts, Subcommittee I is presently considering all of
the above-mentioned proposals as well as several others.2°
Progress in the U.N. Seabeds Committee
Subcommittee I of the U.N. Seabeds Committee is charged with the prepa-
ration of treaty articles on an international regime and machinery for
seabed resource exploitation. In past sessions of the Committee, it has
been the focal point for debate on the general principles which should form
the underpinnings of a new treaty. In the July-August 1972 discussions,
it heard debate on the question of international machinery, i.e., the nature,
scope, functions and powers of a new organization which would manage
the resources of the seabed. It also established a first working group to
begin translating various proposals on the general principles into treaty
language.
The working group which Subcommittee I had established at its March
meeting commenced work immediately in July and was fortunate to have
before it draft treaty articles21 prepared by its distinguished chairman, the
representative of Sri Lanka, Mr. Christopher Pinto. Using these draft treaty
articles as a basis for discussion, the working group attempted first to
20 The following countries have put forward draft treaties or detailed working
papers: United States of America, United Kingdom, France, Tanzania, Union of
Soviet Socialist Republics, Poland, Malta, Canada, Japan. In addition, two other
proposed treaties have been put forward by groups of countries. The 13-power draft
treaty is co-sponsored by Chile, Colombia, Ecuador, El Salvador, Guatemala, Guyana,
Jamaica, Mexico, Panama, Peru, Trinidad and Tobago, Uruguay and Venezuela. The
7-power working paper is co-sponsored by Afghanistan, Austria, Belgium, Hungary,
Nepal, the Netherlands and Singapore. The texts of all these proposals have been
reproduced in several U.N. documents. For reference purposes, the reader may find
it convenient to use the Comparative Table of Draft Treaties, Working Papers and
Draft Articles, prepared by the Secretariat, A/AC. 138/L. 10 (1972).
21 Supra. note 10, at 8 1-108. These articles (referred to in Subcommittee I as
`texts") were those dealing with the status, scope and basic provisions of the regime
based on the Declaration of Principles. It is this Declaration of Principles (U.N.G.A.
Res. 2749 [XXV], 1971) which had occupied the attention and negotiating efforts
of the Seabeds Committee since its inception in 1968.
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711
determine whether all points of view were reflected in the draft treaty arti-
cles. This necessitated several weeks of discussion in which delegates in
large part made additions to the text to accommodate their particular
positions. The resulting text, although incomprehensible to those who did
not participate in its preparation, appears to reflect accurately and more
importantly, in a single place, all of the positions which must be accommo-
dated in the actual negotiating process.
The working group, having completed this process with respect to the
general principles which will form the basis of the first ten or twenty treaty
articles, then returned to those draft articles with a view toward eliminat-
ing duplicatory or unnecessary provisions. Some nations proposed com-
promise texts which would have combined several articles and reduced the
number of bracketed portions. The Committee was able on this second
reading of the draft articles to complete the first eight articles and begin
to discuss the ninth.
The cynic would note that in this second reading few important issues
were in fact the subject of compromise, and fundamental disputes similar
to those which emerged during the negotiation of the original General
Assembly Principles resurfaced. Nevertheless, the fact remains that we
did witness the commencement of serious negotiations with respect to the
preparation o~ a treaty which, if brought to successful conclusion, may
well represent one of mankind's~ finest achievements in international law
and cooperation. Because of the importance of the subject matter and the
fact that its geographical application covers two-thirds of the earth's sur-
face, it does not seem unreasonable that most nations have approached
this negotiation slowly. In the view of the authors, the July 1972 meeting
marks an extremely significant turning point in the negotiating process
which augurs well for the Committee's future progress.
The working group of Subeonimittee I will reach the subject of inter-
national machinery, presumably during the March meeting of the Seabeds
Committee in New York in 1973. This will be a particularly significant
step since many of the issues which remained unresolved during the dis-
cussion of the principles are those which affect the establishment of the
machinery and its functions and powers.
INTERIM DEEP SEA MINING LEGISLATION-
THE INDUSTRY VIEWPOINT
Background
The existence of manganese nodules has been known for almost a century
since they were first discovered by the original British Challenger expedi-
tion in 1876. Not until approximately 15 years ago, however, were they
of substantial commercial interest. Presumably the combination of new
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712
technology derived in part from the successful advances made by oil com-
panies in deep drilling techniques and the declining grade and availability
of land-based ores awakened commercial interest. During these past 15
years American companies have spent in the neighborhood of $90 million
to investigate the location, quality and accessibility of these ore deposits.
At first the programs of companies were modest and were limited to
perusal of the public literature and the taking of small samples. As nodules
of interest were found, these research programs developed into prospect-
ing ventures.
Today, while there are differences in different companies' knowledge
of the seabed, it is clear that major exploration has occurred and that
within the next year or two mine sites can be identified and mining ma-
chinery already designed, or in the process of being designed, could be
employed to begin to recover nodules in commercial quantities. Before
commercial recovery can take place, however, pilot plants, and possibly
medium-sized demonstration plants, will have to be built, followed by
large-scale processing or production plants which will win the metals and
prepare them for market.
It is fair to conclude that market analyses have been conducted and that
the size of mining systems and production plants have been designed to
produce nodules at a rate that will ensure marketability. It is also fairly
clear that for nodule production to be. profitable, the metals will have to
be sold at prices which roughly correspond to the present market prices
of these metals.
The development of new mining industries, particularly ones that are
this risky, depends not only on thorough exploration, availability of capital
and the vision of those who will commit the funds, but also on the momen-
tum of development itself. In any large corporation new programs compete
with each other for the corporation's dollars. When a new venture is devel-
oped it will go through a variety of stages before finally winning the ap-
proval of the board of directors as a project into which major sums of
money will then be invested. For several American companies, deep sea
mining is now at this point. In order to maintain the momentum of this
new program, plans must be laid for pilot plants, demonstration plants
and production plants. Substantial new capital outlays must soon be made
if this momentum is not to be halted and American industry's leadership
position lost by default. It is estimated that the capital required to fully
prepare the necessary facilities for commercial production would range
from $200 to $300 million per company.
To a private company with the capital, established markets and willing-
ness to take some risks in order to obtain substantial gains, the manganese
nodule resources of the deep seabed are of considerable economic interest.
To the country that imports large quantities of these metals and whose
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713
nationals are themselves capable of mining, processing and marketing the
metals in these nodules, they are also of interest. To those countries who
export the metals in these nodules they are of more than passing interest,
too. To those countries who believe that mineral resources underlying that
portion of the high seas which has not yet been appropriated by coastal
states should be mined and marketed for their benefit and not for the
benefit of the few countries who are already rich, the nodules are of inter-
est. Finally, these nodules are of substantial interest to those countries
who seek negotiating objectives in a Law of the Sea Conference apart
from the deep seabed, and who see substantial interest in the nodules on
the part of the technologically advanced countries-to these countries the
nodules can be a negotiating tool. This array of interests, all seeking ac-
commodation in a new treaty, gives mining companies pause when they
think of the prospects for trying to obtain widespread international agree-
ment on a rational resource management scheme. Nevertheless, these
private companies know that in the long run a new international organiza-
tion and treaty that regulates and manages the resources, as well as pro-
vides long term stability and security, will be the best protection for their
sizeable investments. Why then has the American Mining Congress devel-
oped legislation that would immediately establish a legal regime for mining
these nodules well in advance of a satisfactory long-terra treaty?22
industry Arguments for interim Legisiation~
First, the industry argues that the United States is dependent on imports
for the metals found in manganese nodules. To the extent these nodules
22 S.2801, 92nd Cong., 2nd Sess., November 2, 1971. The American Mining
Congress has drafted legislative provisions for deep sea mining which were introduced
in the U.S. Senate as S.2801, a Bill to Provide the Secretary of the Interior with
Authority to Promote the Conservation and Orderly Developme:it of the Hard
Mineral Resources of the Deep Seabed, Pending Adoption of an International Regime
Therefor (a similar version has been introduced in the House of Representatives).
Essentially, the bill would authorize U.S. nationals to conduct mining operations
in the deep seabed under a national licensing system until such time as an interna-
tional regime governing the mineral resources of the deep seabed is established. In-
cluded within the proposed legislation are provisions for assuring security of tenure
and protection of investment, i.e., the U.S. Government would be required to fully
reimburse the licensee for any loss of investment or increased costs of the licensee
incurred within forty years after issuance of the license due to requirements or
limitations imposed by the regime more burdensome than the act. The bill provides
for reciprocal recognition of licenses to the extent that other countries enact similar
legislation. Also contained in S.2801 are provisions for establishing an escrow fund
from the income tax revenues derived from deep sea mining operations for develop-
ment assistance to developing reciprocating states.
23 The arguments presented in the following pages are a re-creation of industry
arguments derived from various sources, e.g., periodicals, trade association position
papers, congressional testimony and numerous informal personal contacts. Thus, the
arguments in this precise form exist only as the authors perceive them and should
not be considered as an accurate portrayal of the views of any one person, company
PAGENO="0720"
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represent a major world source of nickel and copper which can be kept
available without subjecting it to the vicissitudes of political realities in
any one country, or group of countries, they believe it would be irresponsi-.
ble for the government to favor any approach to this resource which would
place it under the control of nations who may not have the best interest
of the United States at heart. These companies feel that it is already serious
enough that a few countries control most of the nickel and copper produc-
tion in the world without compounding the problem by ceding to them
control over most new supplies of these minerals.
Second, the industry argues that deep sea mining requires new technol-
ogy. Never before has mankind attempted to recover a resource covered
by 15,000 feet of water. As the technology for developing this resource
improves, we can anticipate gaining great but still unpredictable knowledge
about the oceans, the seabeds and indeed the very core of the earth itself.
Ocean mining will lead to new technology which will, in turn, lead to new
industry, new sources of minerals and new knowledge about our planet.
The momentum of technological development is a function of the rela-
tionship between scientific discovery and the application to the problem
at hand of the knowledge gained through discovery. The process of inno-
vation depends on incremental efforts within the framework of a cohesive
program. The effects of a disruption in this process, caused by slowing
down the momentum, are far greater than would first appear likely. Thus,
the United States industry argues that the uncertainty surrounding the
future of deep sea mineral exploitation not only inhibits the free flow of
technological progress, but also may have most severe implications for
their competitive position vis-ŕ-vis those companies of other nations who,
receiving encouragement, if not actual subsidies from their governments,
will undoubtedly proceed with their investigations of nodule mining pros-
pects. United States industry does not wish to see the sizeable lead which
it has achieved in exploration of mine sites, development of extractive
equipment and metallurgical processing lost to potential competitors from
other developed countries.
Third, the industry puts forward a balance of payments argument. It is
obvious that, to the extent the United States mining companies invest in
deep sea areas rather than in land-based minerals in foreign nations and
to the extent that they process deep sea minerals in the United States, the
market value of these minerals will help improve the balance of payments
position. Alternately, the United States' failure to provide a suitable cli-
mate for this investment, coupled with the willingness of countries like
or group of companies. Moreover, it should be noted that these are the arguments of
those in industry who support S.2801-not all interested members of industry have
expressed public views.
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Japan or West Germany to do so, could represent a substantial drain on
the balance of payments as U.S. investment capital is attracted to foreign
flag deep sea operations and imports of marine metals processed in t1~ese
countries rise.
Fourth, the industry argues that if the United States wants to see these
minerals developed, it must not take action through its political process
which would discourage corporate incentive. The argument continues that
the United States has taken such action by submitting itself to a treaty
negotiating process which will inevitably change the law which applies to
the deep seabed from a known legal system, i.e., the high seas regime, to
an unknown system. In that set of circumstances corporate planners argue
that the United States government has assertively taken action which will
substantially discourage the creation of this new industry. Moreover, in
view of the fact that at least some companies are now in that stage of de-
velopment which requires either major new investment or a corporate
stall in the development of the mining program, the United States should
take action to neutralize the discouraging action it has already taken-
and it should do so promptly.
In short, what the industry is saying is simply that they were ready to
make major investments and begin an important new metals industry until
the United States, for reasons of high national policy, decided to negotiate
a treaty that has cast in doubt the legal basis for their investment. Ac-
cordingly, they ask that the United States accept the financial burdens
which the government's decision entails if industry is to pursue its objec-
tives. Moreover, they have difficulty understanding why the United States
government would be reluctant to provide this assurance when it is clear
that the government wants these minerals developed and made available
in the American market place.
Industry argues that the Law of the Sea negotiations have already been
in progress for over .four years and have produced virtually no agreement
on any substantive aspect of a deep seabeds regime or machinery. With
that record they cannot have confidence in the treaty negotiating process.
Thus, to the extent issues of substance are being debated and in some
respect negotiated, the mining industry is dismayed to find that what the
United States regards with some pride as a futuristic, enlightened proposal
for seabed development is apparently regarded by some countries in the
United Nations as an almost reactionary, selfish scheme to make American
companies rich at the expense of developing countriesY'1 To the extent
24 To make matters worse, the American Mining Congress objects to the existing
United States position (January 27, 1971 letter to Hollis M. Dole, Assistant Secretary
Mineral Resources, U.S. Department of the Interior, from T. S. Ary, Chairman,
American Mining Congress with attached position, "Statement of American Mining
23-317 0 - 73 - 46
PAGENO="0722"
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these nations turn to the international operating enterprise concept pro-
posed by some of the Latin American nations, the industry fears the
negotiations will surely lose touch with reality.
American industry has seen what they regard as the almost insatiable
negotiating appetites of the developing countries and predict that it will
be difficult if not impossible to reconcile this extreme position with the
position taken by the United States. Hence, they seem to believe that even
if the timing of a conference and treaty could be adjusted so as to compare
favorably with their corporate planning, the substance of the next law of
the sea treaty will be unacceptable to them.
Fifth, these companies have one other concern in these negotiations
which also discomforts them. They note that the United States has accepted
the notion that a law of the sea treaty should resolve a host of different
issues at once. Negotiation of a seabed mineral resource treaty without
tying it to other more-or-less unrelated issues is not possible. What they
see, then, is that seabed mineral resources are but one factor in a complex
negotiation that will require significant tradeoffs. They do not wish to see
this budding, new industry sacrificed for fish, oil or other important United
States objectives.
Sixth, industry argues that passage of interim mining legislation by the
United States will accelerate the negotiation of a treaty that the United
States can ratify. Industry clearly believes that if the developing countries
see that the United States intends to develop these resources promptly,
they will realize that time is running against them and begin to negotiate
seriously, abandoning obviously unacceptable bargaining positions. Indus-
try also believes the developing countries are not capable of preventing
development of these resources. They know that in coastal areas even the
smallest, relatively unarmed nation can exert disproportionate political
power-witness the situation of the United Kingdom, Japan and the Soviet
Union when fishing off the coasts of small countries with broad jurisdic-
tional claims. In deep sea areas, however, the politics are different. There,
the capable, technologically advanced countries can go unchallenged and
what small nation can establish a claim which would justify forcible seizure
of a mining vessel? In addition, the industry reasons that the developing
countries are aware that without a deep sea regime, there will be little
incentive for revenue sharing, technology transfer and the creation of new
institutions of learning about the oceans-concepts designed to assist them
in their own development process.
So that the reader can weigh the industry arguments, it may be useful
Congress with Respect to Working Paper of the Draft United Nations Convention on
the International Seabed Area").
PAGENO="0723"
717
to restate them briefly and include at least some of the arguments which
others might make in reply.
1. The United States is dependent on imported metals and
should develop a politically secure source of these metals
This industry argument goes not to the question of whether to develop in-
terim legislation pending negotiation of a treaty but rather to the question
of whether it is possible to negotiate a treaty which will assure continued,
politically secure access to these metals.
Thus, this argument, as an argument for interim legislation, is only
relevant if one first concludes that the United States is not capable of
negotiating a treaty which protects U.S. interests-a conclusion upon which
reasonable men may differ. Second, one must conclude that such a treaty
will take so long to negotiate that the United States' lead in technology
and site identification will be lost to other aggressive countries. On this
latter point there is evidence that the industry is right-if we use as a
yardstick the speed with which the United Nations has moved toward
a Law of the Sea Conference despite repeated pleas for progress and warn-
ings that technology cannot be held back.
2. The technology race
It is difficult not to be sympathetic to those in society who take risks and
achieve new technological breakthroughs which advance the interests of
all mankind. Nevertheless some, even among the sympathetic, could argue
that the rewards of corporate initiative could well, in this case, be sacri-
ficed for the greater good. In order to make this argument, however, one
must be convinced that there is a reasonable prospect that final agreement
at a Law of the Sea Conference will, in fact, contribute to the greater good
rather than just to the economic well-being of a few countries who wish
to protect vested interests. And one must be further convinced that the
negotiations stand a reasonable prospect of satisfying other basic U.S.
objectives, e.g., national security atid economic stability. If those assump-
tions seem credible and if interim protective action is very likely to jeopar-
dize those other interests, then the otherwise sound argument for main-
taming a technological lead over competitors may not be very weighty.
3. The balance of payments benefits of deep sea mining by
United States companies
This is one of industry's incontrovertible arguments for a legal regime.
Like their argument on imports, however, it is subject to the same criti-
cism. A sound international agreement will largely produce the same trade
PAGENO="0724"
718
benefits as would an interim regime. One caveat should be noted, however.
If the technological lead is lost during the negotiations or if industry loses
faith and begins mining under a flag of convenience, the balance of pay-
ments benefits will not be realized by the United States.
4. The treaty negotiations are too slow and in any event are not
likely to produce a reasonable result, so why wait?
While it is true that the U.N. Seabeds Committee has negotiated for more
than four years and achieved very little agreement on matters of substance
as we observed earlier, the Committee appears to be taking its job much
more seriously now. A turning point has been reached in the negotiations
and a greater seriousness of purpose is evident. Furthermore, as was also
pointed out earlier, the drafting of treaties can follow quickly on govern-
ments' policy decisions if they are prepared to make them. The 27th
General Assembly, it is true, has not convened the Law of the Sea Confer-
ence on a schedule which bears a reasonable relationship to the timing
considerations of concern to the industry. Nevertheless, if negotiations are
serious and the schedule is met, there is little doubt that the provisions of
a new treaty can be embodied in domestic legislation upon signing and
before the treaty comes into force, some years later.
The fear that the substantive negotiations have already gone so far
afield as to ensure an unacceptable treaty, is not well founded. Those coun-
tries supporting a monolithic international operating enterprise for deep sea
mineral resource development are in the minority in the United Nations
and their numbers do not appear to be growing. Regardless of the merits
of the international operating enterprise concept, most countries are aware
that it does not provide a practical, politically acceptable way out for the
Law of the Sea Conference, and these countries are also aware that no
treaty dealing with seabed mineral resource exploitation will be of any
great value to them if the United States and other developed countries
fail to become parties to it. In addition, it almost goes without saying that
many developing countries are aware that at least some of the proponents
of the international operating enterprise have elaborated the concept not
for its inherent merits but rather for negotiating reasons; that is, they want
to have something to concede in order to obtain law of the sea objectives
more closely aligned with their interests as coastal states.
5. Deep sea mining is being treated by the United States government
as trading coin to achieve other objectives in the Conference
As pointed out earlier, the United States Government has no intention of
sacrificing basic elements of its national policy on resources. After so
stating in his August 10 speech, U.S. Representative Stevenson rejected
the possibility of the United States agreeing to a monopoly by an inter-
PAGENO="0725"
719
national operating agency over deep seabed exploration and went on to
identify the "basic elements" later in his statement:
* . . I would like to amplify this point with a few remarks on some of these
basic elements.
The basic interests we seek to protect in an international seabed regime
are reflected in the five points to which I referred earlier, coupled with
our proposal for international machinery to authorize and regulate explora-
tion and use of the resources of the area. An effective and equitable regime
must protect not only the interests of the developing countries but also
those of the developed countries by establishing reasonable and secure
investment conditions for their nationals who will invest their capital and
technology in the deep seabeds. [emphasis added]
The answer to industry's argument then is simply to repeat these carefully
considered words and ask that they have faith in the word and ability of
the United States' negotiating team. It would, at this time in the negotia-
tions, be unwarranted to conclude that the U.S. negotiators have failed to
"keep the faith."
6. Passage of interim deep sea mining legislation will help
achieve an international regime and organization
There can be no doubt that the mining industry stands a fair chance of
being right when it puts forward this argument. The difficulty with it, how-
ever, is the potential consequence of its being erroneous. In any evaluation
and analysis of a risky proposition, the extent to which decision makers
take risks varies in proportion to the stakes. In the case of the law of the
sea, however, it is even difficult to evaluate the stakes. For example, let us
assume that the United States government evaluated the risk of interim
legislation being harmful or helpful to the negotiations as 50-50. A con-
servative gambler would then lean toward non-action if he evaluated the
stakes as being quite significant. In the law of the sea, however, it is by no
means certain that the United States has yet secured any of its principal
policy objectives in the negotiations. Hence, the conservative gambler who
is also a pessimist, will probably decide the stakes are not that great and
agree to action rather than inaction in response to industry pressures. The
conservative-optimist, however, would calculate that the United States has
a substantial chance of gaining its basic objectives if the Conference con-
tinues without the burden of new deep sea mining legislation and would
opt for inaction.
Of course, the foregoing is a grossly oversimplified analysis of what in
fact would be a most complex and serious decision-making process. Gov-
ernments are not analogous to gamblers. Nevertheless, the analogy may be
useful to the reader as a framework for considering the arguments.
PAGENO="0726"
720
What then are the stakes if the United States government takes unilateral
action to establish a legal regime for deep sea mining applicable to its own
nationals? (a) The developing countries who argue that the new law of
the sea should be particularly designed to favor their interests would be
deprived of the opportunity if legislation substantially similar to S.2801,
pending in the U.S. Senate, were enacted; (b) the countries who, out of
strong conviction, believe that deep seabed resources offer mankind an
opportunity to create new international institutions of an administrative,
legislative and judicial nature dealing with matters of economic importance
would lose that opportunity; (c) the reaction of many countries to such
an act would manifest itself in unilateral action with respect, for example,
to areas adjacent to their own coasts and also in the U.N. negotiations
where positions which are now becoming more flexible would harden.
Should that occur, it might become difficult, if not impossible, for the
United States to achieve its other basic interests. This could force the
United States or other countries similarly situated to remain aloof from a
new treaty and to attempt to achieve their basic interests in the traditional
manner required by international law.~
If these are the stakes, how should they be evaluated? The industry is
apparently convinced that the stakes are illusory and that if, indeed, they
are to become realizable, only dramatic action on a bill~ like S.2801 will
make it so.
The chief negotiator for the United States has told the House Merchant
Marine and Fisheries Committee that in January 1973 the government's
view on S.2801 will be presented to Congress.26 Presumably, we will have
25 International law is far from a complete, enforceable system of law governing
the behavior of all nations. But in one particular respect it not only fails to serve
the interests of mankind but may be seen as an incentive to conflict. In the absence
of widely accepted compulsory dispute settlement machinery, the processes of develop-
ing international law through custom require states who do not wish ultimately to
be bound by a newly developing custom to at least protest, if not contest, the uni-
lateral claims asserted by individual nations or groups of nations who seek to create
the new law. For example, failure to resolve the breadth of the territorial sea by
positive international law has placed an onus on those nations who do not wish to
see territorial limits expanded to prevent unilateral actions to that effect from gaining
juridical respectability. When, in spite of protests, these unilateral actions continue
and are, in general, respected by most nations, the alternatives available to a re-
calcitrant state are limited and unpleasant. Nevertheless, it is widely known, if not
publicly stated, that the best and sometimes the only way to prevent unilateral claims
from ripening into "good law" is to violate them. The option then for the inter-
national community, if it fails to agree on law to govern potentially conflicting be-
havior in ocean space, is to risk conflict.
26 Hearing before the U.S. House of Representatives Committee on Merchant
Marine and Fisheries, Subcommittee on Oceanography, briefing by John R. Steven-
son, September 26, 1972. Transcript of the hearing has not yet been p~iblished.
PAGENO="0727"
721
a better idea then of the U.S. government's evaluation of the chances of
achieving a successful law of the sea treaty on a timely basis.27
I * *
if there is to be a successful treaty it is clear that it must be a genuine
accommodation of virtually all nations' interests in the oceans. If any
significantly affected nation or group of nations cannot see its or their way
clear to approve the treaty, it will be of little value and the opportunity
we have before us will slip through our fingers like sand. No country will
benefit from such a result.
APPENDIX I
List Of Subjects And Issues
Relating To The Law Of The Sea
1. International regime for the sea-bed and the ocean floor beyond
national jurisdiction
1.1 Nature and characteristics
1.2 International machinery: structure, functions, powers
1.3 Economic implications
1.4 Equitable sharing of benefits bearing in mind the special in-
terests and needs of the developing countries, whether
coastal or landlocked
1.5 Definition and limits of the area*
1.6 Use exclusively for peaceful purposes
2. Territorial sea
2.1 Nature and characteristics, including the question of the unity
or plurality of regimes in the territorial sea
2.2 Historic waters
2.3 Limits
2.3.1 Question of the delimitation of the territorial sea; various
aspects involved
2.3.2 Breadth of the territorial sea, global or regional criteria. Open
seas and oceans, semi-closed seas and enclosed seas
2.4 Innocent passage in the territorial sea
27 Since the writing of this article, the House of Representatives version of S.
2801 has been reintroduced into the 93rd Congress as H.R. 9, January 3, 1973.
*To be considered in the light of the procedural agreement as set out in paragraph
22 of the report of the Committee (Official records of the General Assembly, Twenty-
Sixth Session, Supplement No. 21 (A/8421)).
PAGENO="0728"
722
2.5 Freedom of navigation and overflight resulting from the ques-
tion of plurality of regimes in the territorial sea
3. Contiguous zone
3.1 Nature and characteristics
3.2 Limits
3.3 Rights of coastal States with regard to national security, cus-
toms and fiscal control, sanitation and immigration regu-
lations
4. Straits used for international navigation
4.1 Innocent passage
4.2 Other related matters including the question of the right of
transit
5. Continental shelf
5.1 Nature and scope of the sovereign rights of coastal States
over the continental shelf. Duties of States
5.2 Outer limit of the continental shelf: applicable criteria
5.3 Question of the delimitation between States; various aspects
involved
5.4 Natural resources of the continental shelf
5.5 Regime for waters superjacent to the continental shelf
5.6 Scientific research
6. Exclusive economic zone beyond the territorial sea
6.1 Nature and characteristics, including rights and jurisdiction
of coastal States in relation to resources, pollution control
and scientific research in the zone. Duties of States
6.2 Resources of the zone
6.3 Freedom of navigation and overifight
6.4 Regional arrangements
6.5 Limits: applicable criteria
6.6 Fisheries
6.6.1 Exclusive fishery zone
6.6.2 Preferential rights of coastal States
6.6.3 Management and conservation
6.6.4 Protection of coastal States' fisheries in enclosed and semi-
enclosed seas
6.6.5 Regime of islands under foreign domination and control in
relation to zones of exclusive fishing jurisdiction
6.7 Sea-bed within national jurisdiction
6.7.1 Nature and characteristics
6.7.2 Delineation between adjacent and opposite States
6.7.3 Sovereign rights over natural resources
PAGENO="0729"
723
6.7.4 Limits: applicable criteria
6.8 Prevention and control of pollution and other hazards to the
marine environment
6.8.1 Rights and responsibilities of coastal States
6.9 Scientific research
7. Coastal State preferential rights or other non-exclusive jurisdiction
over resources beyond the territorial sea
7.1 Nature, scope and characteristics
7.2 Sea-bed resources
7.3 Fisheries
7.4 Prevention and control of pollution and other hazards to the
marine environment
7.5 International co-operation in the study and rational exploita-
tion of marine resources
7.6 Settlement of disputes
7.7 Other rights and obligation.
8. High seas
8.1 Nature and characteristics
8.2 Rights and duties of States
8.3 Question of the freedoms of the high seas and their regulation
8.4 Management and conservation of living resources
8.5 Slavery, piracy, drugs
8.6 Hot pursuit
9. Land-locked countries
9.1 General Principles of the Law of the Sea concerning the
land-locked countries
9.2 Rights and interests of land-locked countries
9.2.1 Free access to and from the sea: freedom of transit, means
and facilities for transport and communications
9.2.2 Equality of treatment in the ports of transit States
9.2.3 Free access to the international sea-bed area beyond national
jurisdiction
9.2.4 Participation in the international regime, including the ma-
chinery and the equitable sharing in the benefits of the area
9.3 Particular interests and needs of developing land-locked coun-
tries in the international regime
9.4 Rights and resources of land-locked countries in regard to
living resources of the sea
10. Rights and interests of shelf-locked States and States with narrow
shelves or short coastlines
10.1 International regime
PAGENO="0730"
724
10.2 Fisheries
10.3 Special interests and needs of developing shelf-locked States
and States with narrow shelves or short coastlines
10.4 Free access to and from the high seas
11. Rights and interests of States with broad shelves
12. Preservation of the marine environment
12.1 Sources of pollution and other hazards and measures to com-
bat them
12.2 Measures to preserve the ecological balance of the marine
environment
12.3 Responsibility and liability for damage to the marine environ-
ment and to the coastal State
12.4 Rights and duties of coastal States
12.5 International co-operation
13. Scientific research
13.1 Nature, characteristics and objectives of scientific research of
the oceans
13.2 Access to scientific information
13.3 International co-operation
14. Development and transfer of technology
14.1 Development of technological capabilities of developing coun-
tries
14.1.1 Sharing of knowledge and technology between developed and
developing countries
14.1.2 Training of personnel from developing countries
14.1.3 Transfer of technology to developing countries
15. Regional arrangements
16. Archipelagos
17. Enclosed and semi-enclosed seas
18. Artificial islands and installations
19. Regime of islands:
a. Islands under colonial dependence or foreign domination or
control;
b. Other related matters
20. Responsibility and liability for damage resulting from the use of the
marine environment
21. Settlement of disputes
PAGENO="0731"
725
22. Peaceful uses of the ocean space; zones of peace and security
23. Archaeological and historical treasures on the sea-bed and ocean
floor beyond the limits of national jurisdiction
24. Transmission from the high sôas
25. Enhancing the universal participation of States in multilateral con-
ventions relating to the law of the sea.
APPENDIX II
STATEMENT BY THE HONORABLE JOHN R. STEVENSON
UNITED STATES REPRESENTATIVE TO THE
COMMITTEE ON THE PEACEFUL USES OF THE SEABED AND THE
OCEAN FLOOR BEYOND THE LIMITS OF
NATIONAL JURISDICTION
PLENARY, August 10, 1972
Mr. Chairman:
In recent weeks, both you and your colleagues on the Bureau have
emphasized that this is a critical session for the United Nations Seabed
Committee. We agree. Therefore, we believe it is appropriate to consider
the future of these negotiations and, in that context, the future of the Law
of the Sea. It is over two years since President Nixon said:
The stark fact is that the law of the sea is inadequate to meet the needs of
modem technology and the concerns of the international community. If it
is not modernized multilaterally, unilateral action and international con-
ifict are inevitable.
Mr. Chairman, if we are to find negotiated, international solutions to
the law of the sea, we must do two things promptly.
First, we must all be prepared to accommodate each other's interests
and needs. We are preparing a comprehensive law-making treaty to govern
not only the conduct of sovereign States and private persons in the ocean,
but also the natural resources of an area comprising two-thirds of the
earth's surface. Its effectiveness will depend in large measure on the extent
to which it represents a consensus of all, rather than a group of States.
To achieve this, we must identify thOse national interests that are of funda-
mental importance to each of us, and avoid time-consuming and poten-
tially divisive debate on less important matters.
Second, we must achieve agreement before events overtake our ability
to do so. I cannot stress too strongly that none of us can or should stop
technology and its use. If we act wisely and in a timely manner, we can
PAGENO="0732"
726
ensure by agreement that the technology will be used in a manner that
provides maximum benefit for all mankind.
Our efforts here, Mr. Chairman, are known to many people in my own
country and in* many others represented here today. The people who use
the seas, and the people whose livelihoods either now or in the future
depend on the sea, are watching us. In the United States there is a growing
uneasiness about our work. Most Americans concerned with the sea are
dedicated to multilateral solutions to problems which have international
ramifications, but they are becoming increasingly sceptical about the
chances for success. Other delegations here may perceive similar develop-
ments taking place in their own countries. We must not allow confidence
to be shaken in our ability to negotiate timely solutions to the problems
we face.
Against this background, I would like to comment on some aspects of
the substance of these negotiations.
Ocean uses can be divided into two broad categories: resource uses and
non-resource uses. The first group principally concerns fishing and seabed
resources. The non-resource uses include such important interests as navi-
gation and overflight, scientific research and the preservation of the ocean
environment.
The view of my delegation on non-resource uses has been clearly stated
on a number of occasions. It is our candid assessment that there is no
possibility for agreement on a breadth of the territorial sea other than 12
nautical miles. The United States and others have also made it clear that
their vital interests require that agreement on a 12-mile territorial sea be
coupled with agreement on free transit of straits used for international
navigation and these remain basic elements of our national policy which
we will not sacrifice. We have, however, made clear that we are prepared
to accommodate coastal State concerns regarding pollution and naviga-
tional safety in straits and have made proposals to that effect in Subcom-
mittee II.
The views of my delegation on resource issues have also been stated on
a number of occasions. Unfortunately, some delegations appear to have
the impression that maritime countries in general, and the United States
in particular, can be expected to sacrifice in these negotiations basic ele-
ments of their national policy on resources. This is not true. The reality
is that every nation represented here has basic interests in both resource
and non-resource uses that require accommodation.
Accordingly, we believe it is important to dispel any possible miscon-
ceptions that my government would agree to a monopoly by an interna-
tional operating agency over deep seabed exploitation or tO any type of
economic zone that does not accommodate basic United States interests
PAGENO="0733"
727
with respect to resources as well as navigation. I would like to amplify
this point with a few remarks on some of these basic elements.
Coastal Resources Generally
Mr. Chairman, in order to achieve agreement, we are prepared to agree
to broad coastal State economic jurisdiction in adjacent waters and seabed
areas beyond the territorial sea as part of an overall law of the sea settle-
ment. However, the jurisdiction of the coastal State to manage the re-
sources in these areas must be tempered by international standards which
will offer reasonable prospects that the interests of other States and the
international community will be protected. It is essential that coastal State
jurisdiction over fisheries and over the mineral resources of the continental
margins be subject to international standards and compulsory settlement
of disputes.
Seabed Resources-Coastal Areas
We can accept virtually complete coastal State resource management juris-
diction over resources in adjacent seabed areas if this jurisdiction is subject
to international treaty limitations in five respects:
1. International treaty standards to prevent unreasonable interference
with other uses of the ocean. A settlement based on combining coastal
State resource management jurisdiction with protection of non-resource
uses can only be effective if the different uses are accommodated. This
requires internationally agreed standards pursuant to which the coastal
State will ensure, subject to compulsory dispute settlement, that there is
no unreasonable interference with navigation overflight and other uses.
2. International treaty standards to protect the ocean from pollution.
As a coastal State, we do not wish to suffer pollution of the oceans from
seabed activities anywhere. We consider it basic that minimum interna-
tionally agreed pollution standards apply even to areas in which the coastal
State enjoys resource jurisdiction.
3. International treaty standards to protect the integrity of investment.
When a coastal State permits foreign nationals to make investments in
areas under its resource management jurisdiction, the integrity of such
investments should be protected by the treaty. Security of tenure and a
stable investment climate should attract foreign investment and technology
to areas managed by developing coastal States. Without such protection
in the treaty, investment may well go elsewhere.
4. Sharing of revenues for international community purposes. We
continue to believe that the equitable distribution of benefits from the
PAGENO="0734"
728
seabeds can best be assured if treaty standards provide for sharing some
of the revenues from continental margin minerals with the international
community, particularly for the benefit of developing countries. Coastal
states in a particular region should not bear the entire burden of assuring
equitable treatment for the landlocked and shelf-locked States in that
region, nor should they bear the entire burden for States with narrow
shelves and little petroleum potential off their coast. The problem is
international and the best solution would be international. We repeat this
offer as part of an overall settlement despite our conclusion from previous
exploitation patterns that a significant portion of the total international
revenues will come from the continental margin off the United States in
early years. We are concerned about the opposition to this idea implicit
in the position of those advocating an exclusive economic zone.
5. Compulsory settlement of disputes. International standards such as
those I described are necessary to protect certain non-coastal and interna-
tional interests, and thus render agreement possible. Accordingly, effective
assurances that the standards will be observed is a key element in achieving
agreement. Adequate assurance can only be provided by an impartial
procedure for the settlement of disputes. These disputes, in the view of
my delegation, must be settled ultimately by the decision of a third party.
For us then the principle of compulsory dispute settlement is essential.
Seabed Resources-Deep Seabeds
In many respects, the deep seabeds present the newest and most exciting
aspects of our work. Although we cannot agree that international law
prohibits the exploitation of deep seabed resources in accordance with high
seas principles, we fully share the desire to establish an equitable, inter-
nationally agreed, regime for the area and its resources as the common
heritage of mankind. The sooner we do so, the earlier we will terminate
essentially divisive and counter-productive disputes over the present legal
status of deep seabed exploitation as well as over the position taken by
some delegations, with which we have consistently disagreed, that common
heritage means the common property of mankind.
Our interest in the prompt establishment and effectiveness of an equi-
table international regime for the seabed is demonstrated both by the
comprehensive draft treaty we presented two years ago and by President
Nixon's statement that any prior exploitation of the deep seabed area
must be "subject to the international regime to be established."
The basic interests we seek to protect in an international seabed regime
are reflected in the five points to which I referred earlier, coupled with our
proposal for international machinery to authorize and regulate exploration
and use of the resources of the area. An effective and equitable regime
PAGENO="0735"
729
must protect not only the interests of the developing countries but also
those of the developed countries by establishing reasonable and secure
investment conditions for their nationals who will invest their capital and
technology in the deep seabeds. In order to provide the necessary protec-
tions for all nations with important interests in the area, it is also necessary
to establish a system of decision making which takes this into account and
provides for compulsory settlement of disputes. We do not regard these
objectives as inconsistent with the desire of other countries for equitable
participation in deep seabed exploitation and its benefits.
Finally, Mr. Chairman, it is our view that the benefits to be derived
from the operation of this new treaty should only be made available to
those nations who are prepared to ratify or accede to it. Those benefits, as
all of us in this room know, are manifold. New technology for mining in
the seabeds is rapidly opening up new prospects for important mineral
supplies. As development proceeds, vast new ideas will emerge as man
begins the serious exploration of the ocean and its resources. Mining in
the oceans will generate revenues as well. All these benefits, Mr. Chairman,
should be shared. We are capable in this Committee of making the deci-
sions which will enable these benefits to be realized, but we must get about
the business of making these decisions promptly or we will be precluded
from doing so.
Fisheries
With respect to fisheries, our basic interest is to assure rational use and
conservation of all fish stocks. To achieve this, we believe coastal States
should have substantial jurisdiction over all fisheries, including anadro-
mous species, except where the migratory habits of certain fish stocks
dictate another system-for example, the highly migratory tuna should be
managed pursuant to multilateral arrangements. In coastal areas jurisdic-
tion should be limited by such international standards as would assure
conservation and full utilization of the living resources.
It is widely understood that the United States shares the interests of
many other coastal States. However, the fact that over 80 percent of our
fisheries are off our own coast does not mean that we are prepared to
abandon the remaining 20 percent-the distant-water segment of our in-
dustry. There are reasonable ways to accomodate the interests of both
coastal and distant-water fishing States and to assure the kind of special
cooperation between States in a region that many delegations have urged.
We believe that a solution of the fisheries problem should take into account
the migratory habits of fish and the manner in which they are fished. Thus,
we can support broad coastal State jurisdiction over coastal and anadro-
mous fisheries beyond the territorial sea subject to international standards
designed to ensure conservation, maximum utilization and equitable alloca-
PAGENO="0736"
730
tion of fisheries, with compulsory dispute settlement, but with interna-
national regulation of highly migratory species such as tuna.
Our detailed proposals on this matter have been elaborated further in
Subcommittee II. The proposals reflect our continuing belief that both
sound conservation and rational utilization must take into account the
biology and distribution of living marine resources. But they also respond
to the expressed desire of coastal States for direct regulatory authority and
preferential rights over coastal and anadromous fisheries. However, it is
fundamental that fish stocks must be conserved, and that there must be
maximum utilization of stocks not fully utilized by local fishermen. More-
over, account should be taken of traditional fishing activities of other
nations, as well as the desire of States to enter into special arrangements
with their neighbors. We remain convinced that highly migratory oceanic
species can only be properly regulated through international organizations.
It is our hope that our new proposals will move the Committee closer to a
solution to the complex fisheries problems involved.
Conclusion
Mr. Chairman, I would like to conclude my statement with some general
comments. While my delegation must confess its disappointment in our
progress to date, we must also point out those areas where we believe
important progress has been made.
Looked at from a broad perspective, we see various signs that make us
cautiously optimistic. It is clear that the negotiating positions of various
States are now substantially closer together than their juridical positions.
This is particularly the case with respect to the width of the territorial sea
and coastal State jurisdiction over resources beyond the territorial sea.
Mr. Chairman, I welcomed the interesting reports of the distinguished
representatives of Venezuela and Kenya on the results of the Santo
Domingo Conference of Caribbean States and the Yaounde Seminar of
African countries. While applauding their contribution to the continuing
development of a generally acceptable agreement, I should point out they
do not fully take into account a number of the factors I have discussed
earlier in this statement. I note in particular the absence of any reference
to international standards and dispute settlement procedures applicable to
coastal State resource jurisdiction and of any distinction in the treatment
of living resources based on their migratory characteristics. However, these
documents certainly provide a starting point for serious negotiations and,
if harmonized with my own delegation's statement today, there might be a
potential for merging together in a new treaty what are otherwise widely
disparate positions. Perhaps then the very beginnings of an outline might
emerge which could become the basis for a successful 1973 Conference.
I hope so, Mr. Chairman.
PAGENO="0737"
731
Another source of hope is the work of Subcommittee I. We have given
priority to the negotiation of the regime and we are beginning to see iot
only concrete results but an open and constructive negotiating atmosphere.
The distinguisi~ed representative of the Cameroon, Chairman of the First
Subcommittee, and your distinguished colleague from Sri Lanka, Chairman
of the Working Group, have through their tireless efforts helped break
new ground in this Committee which makes us believe that where there is
political will, our negotiations will bear fruit.
This new political will, however, must infuse our work in the other sub-
committees as well and it must occur now. The "list" must be disposed of
and work begun on the drafting of articles. We are confident, Mr. Chair-
man, that once such work begins it will move rapidly and a successful con-
ference will be within our grasp. But if we wait longer, Mr. Chairman,
we wonder if a successful conference will ever be possible. Let us all begin
to work now to avoid such a tragedy.
Finally in closing, Mr. Chairman, I want to express to you the sincere
appreciation of my delegation for your wisdom, guidance and firm leader-
ship through what We hope will be one of the most important and success-
ful negotiations to have taken place in our times. We wish you continued
success at this endeavor and will give you all our support.
Thank you, Mr. Chairman.
23-317 0 - 73 - 47
PAGENO="0738"
732
INDIA
QUARTERLY
JOURNAL OF INTERNATIONAL AFFAIRS
Vol. XXIX No. 2 April-June 1973
New Delhi
INDIAN COUNCIL OF WORLD AFFAIRS
PAGENO="0739"
733
CONTRIBUTORS
Prof. R.P. Anand is Head of Dept. of International Law, School of International
Studies, Jawaharlal Nehru University, New Delhi.
Prof. J. J. G. Syatauw is Reader in International Relations, Institute of Social Studies,
The Hague.
Dr. Friedhelm Kruger-Sprengel is in Ministry of Defence, Federal Republic of
Germany, Bonn.
Mr. Alvaro de Soto is Alternative Representative of Peru to the Uuited Nations
Committee on the Peaceful Uses of the Sea Bed and the Ocean Floor.
Mr. David P. Stang is Deputy Director in National Fuels ane Energy Study, U.S.
Senate Committee on Interior and Insular Affairs, Washington, D.C.
Dr. Robert I. McLaren is Asst. Professor of Administration, University of Saskatch-
wan, Canada.
Dr. Nirmal Chandra Sinha is Professor in the Department of History, University of
Calcutta.
ACKNOWLEDGEMENT
The Managing Mitor acknowledges with thanks the effort~
made by Prof. *R,P. Anand for planning, procuring and specially
editing the articles on Law of the Sea-Bet.
PAGENO="0740"
734
COVERING nearly five-sevenths of the
earth's surface, lying as close as the
nearest beach, and used for centuries for
transportation and commerce, food, fuel
and minerals, the sea is still shrouded in
mystery. Man has known very little about
its depths and it is still largely unknown,
unexplored, and unconquered frontier.
Beneath the surface of the sea, a myriad
of wonders is concealed. This vast area
has been found to contain untold riches
and abundant resources of food and miii-
erals. Even a preliminary survey and ex-
ploration of the sea-bed and sub-soil have
left no doubt that the wealth that can be
obtained from this area is beyond com-
prehension.
There is little wonder that the last
"open" frontier on earth has become the
~s~t exciting, promising and challenging
topic of our time. Unknown till yesterday,
there is an overwhelming need and desire
to conquer this last frontier. This no doubt
offers a great opportunity and a serious
challenge to the present-day world. The
opportunity lies in the economic resources
the sea offers for the benefit of all man-
kind. The supply of marine life, not to
mention mineral deposits, deep in the
ocean and even near the surface is virtually
endless. Learning to use it to feed the
hungary, clothe the naked and even warm
the cold can simplify, if not solve, many
of the problems that confront us today.
On the other hand, unbridled international
competition may provoke serious inter-
national conflicts. An unchecked exploita-
tion of sea-bed resources might benefit
only a very few already rich countries, who
have at present the capability and re-
sources to exploit them, and ruin several
of the poor countries, dashing all their
hopes in their future and increasing more
tension between the rich and the poor.
It was in order to avoid such a situation
that President Lyndon B. Johnson of the
United States suggested on 13 July 1966:
must we ever allow the prospects of
rich harvest and mineral wealth to
create a new form of colonial compe-
tition among maritime nations. We
must be careful to avoid a race to
grab and to hold the lands under the
high seas. We must ensure that the
deep seas and the ocean bottoms are,
and remain, the legacy of all human
beings.1
It was in pursuit of the same ideal
that in 1967 the General Assembly of the
United Nations established, on the ini-
tiative of Ambassador Arvid Pardo of
Malta, a Committee to study the peaceful
uses of the Sea-bed and the Ocean floor
Beyond the Limits of National Jurisdic-
tion-2 Italso declared and repeated time
and again in numerous resolutions that
"the sea-bed and ocean floor. . . beyond the
limits of national jurisdiction, as well as
resources of the area, are the common
heritage of mankind."3 Whatever may be
the meaning and import of the phrase
common heritage of mankind, or the legal
force of this principle, it certainly applies
to area beyond the limits of national
jurisdiction. The first and the most im-
portant question that arises in connection
with exploration and exploitation of the
resources of the sea-bed relates, therefore,
to the limits of national jurisdiction or the
extent of coastal states' exclusive authority
to exploit the resources of the sea-bed and
sub-soil thereof to the exclusion of all
others.
Attracted by the prospects of getting
vast resources right at their door-step, it
is only natural that most of the coastal
states are interested in protecting it. Even
if they are unable to exploit these resources
immediately, they do not want to lose an
opportunity of exploiting them in the
future when they might have the financial
resources and technological capability to
extract them. It is chiefly for this reason,
that most of the coastal states are extending
their national jurisdictions in the sea-bed
LIMITS OF NATIONAL JURISDICTION IN THE SEA-BED
R.P. Anand
Under no circumstances, we believe,
PAGENO="0741"
735
to wide areas-wide enough to include all
the important mineral and fishery resources.
The following pages show the aver-
whelming desire and need of the inter-
national society to couquer the new fron-
tier and how it has expressed itself in
claims over the sea-bed and its resources.
Critically examining the vague and un-
certain definition of the legal continental
shelf adopted in the 1958 Convention on
the Continental Shelf, we shall see what
area it includes within the national juris-
diction of the coastal states. Although no
law can last for ever and it must be changed
and adapted to the ever-changing circum-
stances, we shall find out how inadequate
the law adopted in 1958 has proved to be.
Looking at the interplay of conflicting
interests of the diverse groups of states,
we shall try to assess as to what should be,
and what are expected to be, the limits
of national jurisdiction.
CLAIMS TO THE SHELF
Although claims to resources of the
sea-bed, such as pearl and sedentary
fisheries of what we now call the Conti-
nental shelf, have been made for centuries,4
and some coal-mines were dug under the
sub-soil in some countries during the
nineteenth century,5 the real importance
and usefulness of the sea-bed came to be
realized only after the Second World War.
In a proclamation made on 28 September
1945, President Harry S. Truman of the
United States referred to (1) the awareness
of a long-range, world-wide need for new
sources of petroleum and other minerals;
(2) the existence of these much-needed
resources under the continental shelf and
the technological feasibility of their ex-
ploitation either immediately or in the
near future; and (3) the need for some
recognized jurisdiction over these re-
sources in the interest of their conservation
and prudent utilization as and when
development was undertaken. It then went
on to say that in the view of the US
Government,
the exercise of jurisdiction over the
natural resources of the sub-soil and
sea-bed of the Continental Shelf by the
contiguous nation is reasonable and
just (1) since the effectiveness of
measures to utilize or conserve these
resources would be contingent upon co-
operation and protection from the shore;
(2) since the Continental Shelf may be
regarded as an extention of the land
mass of the coastal nation aiicl thus
naturally appurtenant to it; (3) since
these resources frequently for/il a sea-
ward extension of a pool or deposit
lying lvithin the territory and ~4) since
self-protection compels the coastal na-
tion to keep close watch over activities
off its shore which are of the nature
necessary for the utilization of these
resources (Emphasis and numbers
added.)
For these reasons, the proclamation
declared that the United States regarded
the natural resources of the subsoil and
sea-bed of the Continental Shelf beneath
the high seas hut contiguous to the coasts
of the United States as appertaining to the
United States subject to its jurisdiction and
control.
In cases where the Continental Shelf
extended to the shores of another state,
or was shared with an adjacent state, the
proclamation announced, the boundary
would be determined in accordance with
equitable principles. It specifically pointed
out, however, that this assertion of juris-
diction and control over the Continental
Shelf in no way affected "the character as
high seas of the waters above the Con-
tinental Shelf and the right to their free
and unimpeded navigation."6 Although the
proclamation did not define the term
"Continental Shelf," a White House Press
release of the same day (28 September
1945) declared: "Generally, submerged
land which is contiguous to the continent
and which is covered by no more than
100 fathoms (600 feet) of water is con-
sidered as the Continental Shelf".7
ACCEPTANCE OF THE SHELF DOCTRINE
Not only was the US assertion of
"jurisdiction and control" over its Con-
tinental Shelf accepted by the international
community without any objection, but
several other states also followed suit and
issued proclamations asserting claims over
PAGENO="0742"
736
their respective Continental Shelves and
reserving for themselves exclusive rights to
exploitation of the subsoil outside their
coasts. By 1958, some twenty states, and
the United Kingdom with respect to a
dozen dependent territories, had claimed
sovereign rights over their respective con-
tinental shelves.8 While a new law of
Continental Shelf was in the making, the
International Law Commission included
the regime of the high sea in the provisional
list of topics selected for codification and
decided that it should be given priority.
After long and extensive deliberations for
several years, the Commission recommend-
ed in 1956 a comprehensive draft which,
with some important modifications, was
incorporated into four conventions, in-
cluding a Convention of the Continental
Shelf, in the first U.N. Conference on the
Law of the Sea in 1958. The 1958 Con-
vention, ratified and accepted by forty-
four states by now, codified the newly-
emerging law on the subject.
DEFINITION OF CONTINENTAL SHELF
Before we discuss the definition of legal
Continental Shelf or limits of national
jurisdiction in the Sea-bed adopted in the
1958 Convention, it may be pointed out
that all states do not refer to the term
Continental Shelf in the same sense. A
brief survey of the various state proclama-
tion and instruments relating to Continental
Shelf shows that in some of them the term
does not appear at all. Others refer to
depths of a hundred fathoms or 200
metres, whereas still others claim wider
areas of the sea. As Lauterpacht rightly
pointed out, "the expression `Continental
Shelf' has become no more than a con-
venient formula covering a diversity of
titles or claims to the sea-bed and its sub-
soil adjacent to the territorial waters of
the state."9
Geologists, geographers, and other
scientists generally use the term `Conti-
nental Shelf' to mean the submarine ex-
tension of the "continent" outward into
the sea or "a kind of pedestal on which the
continents seem to rest in the ocean."1°
This base or pedestal on which the conti-
nent rests gradually slopes towards the
sea until it reaches a depth of about 200
metres or a hundred fathoms (equivalent
to 182 metres and 90 centimetres). There-
after, it dips sharply to the ocean floor.
It is generally recognized, however, that
this depth of two hundred metres is a
mere approximation and its adoption is
primarily due to the use of ocean charts
which all bear the 100-metre, 200-metre
and 300-metre contour lines. "The only
accurate method of defining Continental
Shelf~" it is pointed out in one of the most
authorities works, is "to consider it as
lying between the shore and the first
substantial fall-off-on the seaward side-
whatever its depth."~
It may be noted that the depth of the
shelf edge varied from fifty metres to 550
metres and the width of the shelf may
range from less than one to 800 miles.
The edge of shelf does not appear to be a
simple phenomenon. It may lie in some
regions at more or less than a hundred
fathoms; in others, it may be almost
imperceptible; in still others, there may
not be one but several shelves and edges;
or the submarine terrain may be so con-
fused as to render the task of locating any
continuous line very difficult.12
The "substantial fall-off" begins in
some cases (e.g., the western coast of
North and South America and practically
the entire coast of Africa) at a small
distance from the coast, In other cases
(e.g. Newfoundland, the British Isles, and
the Central and Western Indonesian
Islands) there are very broad shallow
areas. In the Persian Gulf, there is no-
where a "substantial fall-off" depth ex-
ceeding 125 metres. In the geological
sense, there is no Continental Shelf in the
Persian Gulf. Similarly, there is no Conti-
nental Shelf, in the technical meaning of
the term, between Great Britain and
Denmark, or between Great Britain and
France. These geographical variations ex-
plain why there is no reference to the
Continental Shelf in the proclamation
issued by Rulers of states in the the
Persian Gulf, and also why Chile and Peru
use the term Continental Shelf without
any reference to its geographical or geo-
logical meaning.13 The absence of the
geological shelf has prompted some of the
Latin American states to make extensive
PAGENO="0743"
737
claims to the resources of the high seas
adjacent to their coasts to "compensate"
for the lack of shelves.
Furthermore, within the Continental
Shelves themselves, there are basins with
depths in excess of 200 metres. A good
example of this type is the longitudinal
trough along the coast of Norway with
depressions that connect with the deep
sea and splits the Norwegian shelf into an
inner and an outer part.
These geographical variations in the
submarine areas show that all shelves do
not follow the broad general pattern, and
the task of fixing an "edge", even in the
scientific world, involves to some extent
an arbitrary determination.'4 The general
description of the Continental Shelf as the
platform or base on which the continent
rests is also no more than a figure of
speech. Many times the structures of the
submarine areas follow the pattern of
broken valleys and ridges. All these factors
have been of great concern to international
lawyers and particularly to the Inter-
national Law Commission in defining
the "Continental Shelf" in legal terms.
CONTINENTAL SHELF CONVENTION:
ARTICLE I
After Very detailed and exhaustive
discussion over a number of years in the
International Law Commission and an
intensive debate in 1958 Conference on
the Law of the Sea, Continental Shelf was
defined in Article I of the Continental
Shelf Convention as follows:
For the purposes of these articles,
the term `Continental Shelf' is used as
referring (a) to the sea-bed and subsoil
of the submarine areas adjacent to the
coast but outside the area of the terri-
torial sea, to a depth of 200 metres or,
beyond that limit, to where the depth
of the superjacent waters admits of the
exploitation of the natural resources of
the said areas; (b) to the sea-bed and
subsoil of similar submarine areas
adjacent to the coasts of islands.
OUTER LIMITS OF SHELF
As defined in the 1958 Convention,
which has been ratified by as many as 44
states and accepted by many others,'5
irrespective of the geological meaning of
the term Continental Shelf, as a matter
of law the Continental Shelf extends at
least to a depth of 200 metres. Indeed, it
extends beyond that limit "to where the
depth of the superjacent waters admits of
the exploitation of natural resources".
Although some members of the Inter-
national Law Commission (in l956)~6, and
some delegates to the Geneva Conference
of l958'~, did warn of the danger of
limitless expansion of the shelf regime
under this vague and flexible definition,
it was generally believed that it would
not be possible to exploit the natural
resources beyond 200 metres "for a long
time to come".'8 It is well-known, how-
ever, that much more technological pro-
gress has been made since that time than
was expected. Depth of water is now no
obstacle to exploitation anywhere. Even if
it is not possible as yet to exploit the
natural resources in the deep sea commer-
cially, there is hardly any doubt that the
depths to which one might exploit the
resources of the Sea are increasing every
day. Where, then, is the outer limit of the
Continental Shelf?
EXPLOITABILITY
According to one view, the definition
adopted in this article is essentially elastic,
capable of indefinite expansion in the wake
of technological progress. Literal inter-
pretation of the convention makes it
possible to maintain, it is suggested, that
the whole sea-bed may be partitioned
between the coastal states concerned. As
Professor Oda asserts:
It can be inferred that, under this
Convention, all the submarine areas
of the world have been theoretically
divided among the coastal states at the
deepest trenches. This is the logical
conclusion to be drawn from the
provision approved at the Geneva
Conference.'9
It means that all seas would become
"national lakes" divided by median lines
in the mid-ocean and governed by rules
relating to the Continental Shelf, more
PAGENO="0744"
738
than 139 million square miles of sea-bed
thus appertaining to one coastal state or
another.2°
There is hardly any doubt that this
interpretation of Article 1 has no basis
whatsoever. Even a literal reading of the
article makes it clear that the Shelf is
limited "to the sea-bed and subsoil of the
areas adjacent to the coast". This inter-
pretation, as the International Panel
Report of the US Commission on Marine
Science and Resources, said
reads the definition of the Continen-
tal Shelf as if the adjacency criterion
were not there. It ignores the fact that
the convention, after all, sought to
define the Continental Size/f and re-
sorted to the exploitability test to
effect some limited extension of
sovereign rights.2'
The International Law Commission,
which drafted the convention, undoubtedly
wanted only a limited extension of the
state authority over the sea-bed. This
intention became abundantly clear during
the 1956 discussion in the Commission22
and in its report to the General Assembly.23
A general understanding of the limited
extent of the Continental Shelf became also
clear in the Geneva Conference of 1958.24
Even more important, in the debates and
resolutions of the United Nations General
Assembly and other UN bodies during
the last few years, this interpretation of
Article 1 has been unanimously rejected.
In a number of resolutions, adopted either
unanimously or by overwhelming majori-
ties, the General Assembly has declared
that "there is an area of the sea-bed and
ocean floor, and the subsoil thereof, beyond
the limits of national jurisdiction", the
precise limits of which are, of course, yet
to be determined.25
Professor Henkin correctly asserted:
"No government. . . would dare propose
this as the interpretation of the Conven-
tion; if one did, the other nations would
reject jt."26
OBJECTIVE TEST OF EXPLOITABILITY
But even if it is accepted that the legal
"Continental Shelf" cannot extend to the
mid ocean, there is no answer yet to the
question about its present limits. It is
generally admitted that the words "where
the depth admits of exploitation" should
be interpreted in an objective way. That
is, the interpretation should not depend
on the technical or economic capability
of any particular coastal state27, but on the
question whether exploitation is technically
possible by the world's best devices. Test
of actual exploitability in each case will
naturally favour the technologically ad-
vanced countries to the detriment of other
coastal states.2' Under Article 2, a coastal
state's rights over its shelf exist irrespective
of any actual activity or occupation. Every
state, therefore, "would seem entitled to
assert rights off its shores out to the
maximum depth for exploitation reached
anywhere in the world' `~2D In other words,
`exploitability' is a `term of art' and
imports the notion of activity, not neces-
sarily of coastal states, but "by some state
somewhere". It is the action of the techno-
logical man that determines the thres-
hold of exploitability from time to time.30
Of course, if a coastal state wants to
extend its jurisdiction in an otherwise
common domain, it is up to that state to
prove the exploitability of the area which
it wants to place within its national
jurisdiction. But even if it cannot adduce
proof it can effectively exclude others from
exploiting even areas beyond 200 metres
depth. A foreign state desiring to explore
a particular area might claim theoretically
that the area was not Continental Shelf
because it was more than 200 metres deep
and was not exploitable. But it could not
exploit anything it might discover in that
area, since any effort on its part to exploit
the resources of the area would kill its
own claim that exploitation was not
possible and prove the right of the coastal
state concerned to exclude ~
It would also seem that in order to
claim jurisdiction over an area, all that is
necessary to prove is that it is technically
exploitable, and resources can be extracted,
even if it cannot yet be done economically.
There is nothing in the language of Article
1 to suggest that exploitation must be
commercially feasible or that it should be
done at a profit. If, however, exploitation
PAGENO="0745"
739
is not possible in an area beyond 200
metres, for whatever reason-depth or
otherwise-it cannot be considered to be
a part of the Continental Shelf.32 It may
become extremely difficult to prove the
depth of exploitability in each case since
the maximum depth reached off one state
may or may not be reached off another.
This may lead to terrible confusion and
controversy in the course of ascertaining,
verifying and publishing the latest data
about the extent of national jurisdiction.33
Apart from all this confusion and the
continuing uncertainty about the precise
extent of offshore claims depending upon
the stage of technology, an important
question that eludes answer is the ultimate
outer limit of the Continental Shelf,
assuming, of course, that there is an ulti-
mate or maximum seaward limit to na-
tional jurisdiction. Since it may not be
long before all the sea-bed becomes ex-
ploitable, where can or should this limit
be drawn? This is particularly so because
the term exploitability is not confined to
drilling for oil and of permits and leases
for oil, but applies to all the resources,
including nodules, which are already
beginning to be gathered from the deep
ocean floor.34
ADJACENCY
It is generally admitted that legal
Continental Shelf is limited to, in the words
of the Convention of 1958, "submarine
areas adjacent to the coast". Most state
proclamations and international conven-
tions and other instruments define the
Continental Shelf areas in such terms as
"near", "close to its shores", "off its coast",
"opposite", "in front of the coast", "in
the vicinity of", "neighbouring the coast",
"adjacent to", "contiguous to", etc. Des-
pite the imprecise character of all these
terms, they convey a reasonably clear
general idea of the area concerned,35 and
decisively reject the notion that the oceans
of the world might be divided into
"national lakes" divided by median lines.36
As the International Law Commission
said in its 1956 report:
term-propinquity, contiguity, geo-
graphical continuity, appurtenance or
identity-used to define the relationship
between the submarine areas in ques-
tion and the adjacent non-submerged
land. All these considerations of general
utility provide a sufficient basis for the
principle of the sovereign rights of the
coastal state as formulated by the
Commission.37
Garcia Amador, at whose suggestion the
Commission added the test of exploit-
ability to define the Continental Shelf,
asserted that,
the words `adjacent to the coastal
state' in his proposal placed a very
clear limitation on the submarine areas
covered by the article. The adjacent
areas ended at the point where the
slope down to the ocean bed began,
which was not more than 25 miles from
the coast.38
Professor Louis Henkin also believes
that "adjacent" in the context of Article 1
means "proximity" and that "the coastal
state has no special rights in sea-bed
[whatever its geographical appellation] that
is not `near' the coast"39. He asserts
that,
th~ `areas adjacent to the coast' in
which the coastal states have exclusive
mineral rights are areas that do not
take `too big' a `bite' out of the deep-
sea-bed; that do not reach `too far'
from shore; where the coastal state
has a legitimate interest in excluding
others; w~.ere~c6hdmiqally and techno-
logically-exploitation depends heavily
on the coastal state. There is some
support, too, for an argument that the
geological shelf has not become wholly
irrelevant, that a state can claim all of
its geological shelf, but, that, overall
and in general, `adjacent' areas do not
extend `too far' beyond the geological
shelves of the world.4°
But what is "too far" and "too big a
bite", Professor Henkin does not make
clear. Indeed, he admits that under these
Neither is it possible to disregard the
geographical phenomenon whatever the
PAGENO="0746"
740
indefinite and vague "guidelines", "it
would be difficult to argue the illegality of
leases in waters of any depth if they are
still `adjacent' to the coast, and for this
purpose, adjacent waters may include
those 25, 50, 100 or even more miles from
shore' `~41 In fact, Henkin concludes,
"adjacency" does not provide "a firm rein
on the claims of coastal states" and that
the legal "Continental Shelf is without
an effective outer limit".42
LEGAL CONTINENTAL SHELF EXTENDING
TO CONTINENTAL MARGIN
Strictly speaking, the condition of
"adjacency" contained in Article 1 of the
Geneva Convention would seem to apply
to all the areas claimed to be within the
definition of the legal Continental Shelf,
whether they are within or beyond the
200-metre depth line. It is generally inter-
preted to mean, however, that a coastal
state can claim sea-bed up to the 200
metre isobath, regardless of "adjacency"
and that this limitation applies only to
waters deeper than 200 metres. In other
words, the submerged areas up to the 200
metre contour are "per se `adjacent' to the
coast" and so included in the legal Conti-
nental Shelf. The legal Continental Shelf
also includes areas beyond that depth if
they are"exploitable" and also"adjacent."43
In the North Sea Continental Shelf cases,
although the issue was not raised, the
parties as well as the Court accepted the
view that the sea-bed of the entire North
Sea (which is less than 200 metres deep)
was Continental Shelf although it extended
to hundreds of miles, and some of it
could not be considered "adjacent" to the
coastal states at all in the normal sense
of the term.
Some other commentators believe,
however, that the definition of the legal
Continental Shelf, contained in Article 1
of the 1958 Convention and adopted by
numerous states, can be interpreted, reason-
ably clearly, to include the whole sub-
merged portion of the continent down to
the deep ocean floor. Thus, the 1968 joint
report of Sections of Natural Resources
Law, International and Comparative Law,
and the Standing Committee on Peace and
Law through United Nations of the
American Bar Association declared that the
The exclusive seovereign rights of
the coastal nations with respect to the
sea-bed minerals now embrace the sub-
merged land mass of the adjacent con-
tinent down to its junction with the
deep ocean floor, irrespective of depth.44
The Interim Report of the Committee
on Deep Sea Mineral Resources of the
American Branch of the International
Law Association (1968) stated:
As a general rule, the limit of ad-
jacency may reasonably be regarded as
coinciding with the foot of the sub-
merged portion of the continental land
mass. There is strong support for this
view in the drafting history of the
convention, although other interpreta-
tions have been advanced.45
This interpretation was adopted by a
US Senate Sub-Committee on Outer
Continental Shelf in 1970.46
The National Petroleum Council of the
United States stated the same conclusion
in more detail in its 1969 report (Petroleum
Resources under the Ocean Floor). It said
that under Article 1 of the Convention,
it can reasonably be concluded that the
coastal nations' exclusive jurisdiction
over the natural resources of the sea-
bed and subsoil was intended to, and
does, encompass in general the conti-
nental mass seaward to where the
submerged portion of that mass meets
the abyssal ocean floor (including the
Continental Shelf, continental border-
land, continental slope, and at least the
landward portion of the continental
rise over-lapping the slope).47
REASONS FOR INCLUDING CONTINENTAL
MARGIN IN THE SFIELF
These conclusions are said to be based
not only on the language of the Conven-
tion, but also on its legislative history, the
practice of states, geographical or geo-
logical factors, and the judgment of the
International Court of Justice in the
North Sea Continental Shelf cases. It
PAGENO="0747"
741
is pointed out, as we have noted earlier
that the 1956 draft of Article 1 presented
by the International Law Commission was
essentially based on the resolution adopted
by the American states at Ciudad Trujillo
in 1956, as it was mentioned by the Commi-
ssion even in its 1956 report.48 The
Geneva Conference of 1958 rejected several
proposals for the amendment of the
definition of the legal Continental Shelf and
adopted the draft definition of the Com-
mission with a minor modification.49 The
history of the 1958 Convention leaves no
doubt, according to these commentators,
that, in accordance with the inter-American
conclusion at the Ciudad Trujillo Con-
ference in 1956, the Convention recognizes
"exclusive jurisdiction of the coastal state
with respect to the resources of the sea-
bed of the Continental Shelf and `slope
from the edge of the shelf to the greatest
depths'" and that this is a part of the
mineral estate "now vested" in the coastal
state.3°
PRACTICE OF STATES
This interpretation is sought to be
reinforced by the practice of states. Thus,
it is pointed out that of the more than a
hundred coastal states which have asserted
their general jurisdiction over offshOre
minerals, at least thirty-nine have done it
with respect to areas more than 200-
metres deep. They have done it in most
cases by issuing leases in waters more than
200 metres5' deep and in others, by
decree, or by agreement with neighbouring
countries or by announcement of national
policy.52
It is significant to note, one is remind-
ed, that although there is no secret about
these assumptions of jurisdiction and
control, there have been no protests frOm
other states.53
A line coinciding approximately with
the outer limit of the submerged continent
as the limit of the legal Continental Shelf
is further supported by the fact that "this
is the most distinct, the most profound,
and the only natural boundary which can
be utilized for this purpose".54 The surface
of the earth, regardless of water cover,
GEOLOGICAL BASIS
it is said, can be broadly divided into two
fundamentally distinct geomorphic units-
the ocean basins and the continental
platforms-which have fundamental lateral
differences in their geological/geophysical-
characters. The continental slope, the
frontal edge of the Continental Shelf, is
"the sharpest and most persistent natural
feature of the earth's surface and its base
corresponds closely in position with the
most fundamental lateral variation in the
character of the rocks cf the earth's crust-
the change from oceanic to continental
character". The base of the continental
slope, it is pointed out, is recognized by
experts as the reflection of a far more
fundamental feature than is the edge of
the geological Continental Shelf and
should be used as a guide to the outer
edge of the continental block.55
NORTH SEA CONTINENTAL SHELF CASES
It is pertinent to recall in this con-
nection that, following the Truman Pro-
clamation,56 the International Court of
Justice, in the North Sea Continental Shelf
Cases, referred to the Continental Shelf
as the "natural prolongation" of the land
territory of a coastal state. The dispute
had arisen between the Federal Republic
of Germany on the one side, and the
Netherlands and Denmark on the other,
concerning the boundaries of their res-
pective Continental Shelves in the North
Sea. The waters of the North Sea being
shallow and the whole sea-bed consisting
of the Continental Shelf at a depth of less
than 200 metres (except for the Nor-
wegian Trough), it had been divided by a
series of agreements between the United
Kingdom, Norway, Denmark and the
Netherlands on the basis of median lines,
as provided in the 1958 Continental Shelf
Convention. However, Germany, which
had signed but not ratified the Conven-
tion, refused to accept the "equidistance
principle", which Denmark and the Nether-
lands wanted to apply for the division of
their Continental Shelves with Germany.
Since the coastline of Germany is strongly
curved inward, it contended that this
principle, if applied, would unduly curtail
what it believed should be its proper share
of the Continental Shelf area and that the
PAGENO="0748"
742
outcome would be inequitable. How the
Court resolved the issue is not important
here. But in reaching its decision, the
Court reflected upon the nature of the
rights of the coastal states over the Con-
tinental Shelves. It said that
the rights of the coastal state in
respect of the area of the Continental
Shelf that constitutes a natural pro-
longation of its land territory into and
under the sea exist ipso facto and ab
initio, by virtue of its sovereignty over
the land, and as an extension of it in
an exercise of sovereign rights for the
purpose of exploring the seabed and
exploiting its natural resources. In
short, there is here an inherent right.57
The Court described this as "the most
fundamental of all rules of law relating to
the Continental Shelf", which had been
"enshrined in Article 2 of the 1958 Geneva
Convention, though quite independent of
it". Article 2 of the Convention declares
that "the rights of the coastal state over
the Continental Shelf do not depend on
occupation, effective or notional, or on
any express proclamation". In order,
therefore, to exercise these rights, said the
Court,
no special legal process has to be
gone through, nor have any special
legal acts to be performed. Its existence
can be declared (and many states have
done this) but does not need to be
constituted.58
In other words, the Continental Shelf is
an "inalienable appurtenance" of coastal
state.59 The physical fact and relationship
of the Continental Shelf with coastal
states or "the notion of appurtenance",
or "natural prolongation", or "conti-
nuation of the land territory or domain",
were emphasized by the Court several
times in the judgement.6° This idea of "an
extension of something already possessed"
was, in the Court's opinion, "determi-
nant".6' It said:
physical fact; and the link between
this fact and the law, without which
that institution would never have
existed, remains an important element
for the application of its legal regime.
The Continental Shelf is, by definition,
an area physically extending the terri-
tory of most coastal states into a
species of platform which has attracted
the attention first of geographers and
hydrographers and then of jurists."62
Stressing the same point, it further stated:
The appurtenance of the shelf to the
countries in front of who~e coastlines
it lies, is therefore a fact, and it can be
useful to consider the geology of that
shelf in order to find out whether the
direction taken by certain configura-
tional features should influence delimi-
tation because, in certain localities,
they point up the whole notion of the
appurtenance of the Continental Shelf
to the state whose territory it does in
fact prolong.63
It is important to note that the Court
rejected any notion of "proximity" or
"absolute proximity" as a condition for a
particular area being included in the
Continental Shelf of a coastal state.64
There was no complete identity, according
to the Court, between the notions of
"adjacency" and "proximity". The notion
of "adjacency", it said, "only implies
proximity in a general sense, and does not
imply any fundamental or inherent rule".
"More fundamental than the notion of
proximity", the Court insisted, was the
principle "of the natural prolongation of
the land territory or domain, or land
sovereignty of the coastal state, into and
under the high seas, via the bed of its
territorial sea which is under the full
sovereignty of that state". Nearness, or
proximity, does not per se confer title:
Submarine areas do not really ap-
pertain to the coastal state because-
or not only because-they are near it.
They are near it of course; but this
would not suffice to confer title, any
more than, according to a well-
The institution of Continental Shelf
has arisen out of the recognition of a
PAGENO="0749"
743
established principle of law. . . merely
proximity confers per se title to land
territory. What confers the ipso fore
title which international law attributes
to the coastal state in respect of its
Continental Shelf, is the fact that the
submarine areas may be deemed tO be
actually part of the territory Over
which the coastal state already has-
dominion,-in the sense that, although
covered with water, they are a pro-
longation or continuation of that
territory, an extension of it under the
sea.65
The Court said that although the
vague and general expressions used~ in
different proclamations and conventions
to suggest proximity of the area, terms
such as "near", "close to its shores", "in
the vicinity of" or "adjacent to",
convey a general idea, "they are
capable of a considerable fluidity of
meaning". Referring to the most com-
monly used term, "adjacent to", for
instance, the Court said that "by no
stretch of imagination can a point on the
Continental Shelf situated say a hundred
miles, or even much less, from a given
coast, be regarded as `adjacent' to it, or
to any coast at all, in the normal sense~ of
adjacency, even if the point concerned is
nearer to some one coast than to any
other.' `66
And yet, this may *be so regarded
depending on the "geographical configu-
ration" and "closer physical connection
with the coast". In other words, adjacency
"only implies proximity in a general
sense, and does not imply any fundamental
or inherent rule, the ultimate effect of
which would be to g~rohibit any state
(otherwise than by agreement) from exer-
cising Continental Shelf rights in respect
of areas closer to the coast of another
state". To which of the opposite states a
particular submarine area was "adjacent",
depended on the fundamental criterion of
"natural-or the most natural-extension
of the land territory of a coastal state",
irrespective of the actual distance of this
area from the coasts of the two states.67
It is significant that on the basis of this
criterion, the Court upheld areas as far as
190 miles from the coasts bordering the
North Sea as belonging to those states on
the ground that they were a "natural
prolongation" of their land territories, and
laid down guidelines under which the
three states before the Court could divide
The entire expanse of the shelf between
themselves.68
The strong reliance of the International
Court on the physical character of the
prolongation of the landmass, i.e. on
considerations of geography and geology,
makes it reasonable to conclude that "the
continental slope is just as much a part of
the prolongation of the continental land
mass as the Continental Shelf is". This is
so obviously because "the underlying rock
structure of the shelf and the slope is
identical" and "the only difference be-
tween shelf and slope is one of relative
gradient,. . . the difference is geomorpho-
logical, not geological."69 It is, therefore,
suggested that,
the resources of any area which is
`appurtenant', in the sense of being
geomorphologically or geologically a
part in physical fact of the land mass,
must in general international law be
deemed already vested in the coastal
state.7°
By the same token, the Continental
Shelf, being a natural prolongation of the
mainland, "is limited to seaward and
cannot extend beyond the reasonable
meaning of physical prolongation." Article
1 of the convention must also mean this
because it was intended to codify, existing
law and practice.7'
This jurisdiction, on this view, is
already vested in the coastal state accord-
ing to general law. The exploitability test,
in Article 1, it is suggested, may not be a
principle of law but rather a device for
the purpose of regulating the application
of the 1958 convention among the parties.72
Supporting Professor Jennings's inter-
pretation, the British Branch of the
International Law Association stated:
There is a strong case for concluding
that all submarine areas of a conti-
nental character are included in the
PAGENO="0750"
744
territory `appurtenant' to coastal states.
In other words, the geographical Con-
tinental Shelf and the continental
slope beyond it are comprised within
the notional legal shelf. The bed of the
deep oceans which is underlain by
rocks belonging to the oceanic crust,
is outside the legal shelf, irrespective of
any technological advances which have
rendered or may render any resources
of this sea bed and subsoil exploitable.73
It is argued that once the edge of the
physical or geological shelf is passed-
and it has already been passed in several
cases-it is difficult to find another logical
limit until the foot of the continental
slope is reached.74 The National Petroleum
Council, indeed, suggested that since the
plunge of the slope is often overlapped
extensively by the sediments of the conti-
nental rise, the most natural and appro-
priate boundary would be a little ocean-
ward of the slope to include the shelf, the
slope, and the landward portion of the
continental rise.75
ARGUMENTS FOR A NARROW CONTINENTAL
SHELF
This interpretation of the extent of the
legal Continental Shelf and the view that
it extends to the foot of the continental
slope has been strongly contested and
criticized by some scholars. This position
is said to be "parochial and shortsighted;
its legal position. . .indefensible; and the
legislative history on which it is based
`selective' "76 The National Petroleum
Council of the United States and several
others, no doubt admit that petroleum
technology does not as yet extend beyond
200 metres, but they believe that the
jurisdiction of coastal states already ex-
tends up to the deep ocean basin. There is
no support for such "potential exploit-
ability" rights, according to Professor
Henkin, in the legislative history, and
"there are a hundred statements to
contradict it".~
It must be pointed out, however, that
the test of "exploitability" in the Conven-
tion of 1958 cannot be said to be confined
to drilling for oil only. Exploitability is not
qualified to any particular resources in
the convention. The literal language of the
convention clearly "gives the coastal state
`sovereign rights' to explore and exploit
all the natural resources of a particular
area of the seabed and subsoil beyond 200
metres, as lcng as any natural resource in
the areas admits of exploitation' `~78 ~
would be unreasonable and terribly con-
fusing to interpret it to mean different
extents of jurisdictions for different re-
sources, if the depths reachable by techno-
logies for exploiting different resources
vary.79 Since nodules can be collected from
any depth now, one may argue that this
has extended jurisdiction of the coastal
states almost indefinitely, and there is
need for its limitation.80
In any case, there is a lot of reason in
the argument that the "exploitability"
criterion, contained in the Convention of
1958, is not applicable to the majority of
states. Considering the uncertain and varied
state practice in regard to the outer
limit of the legal Continental Shelf it may
be said that the definition contained in
Article 1 of the Convention has not gained
acceptance universally. Indeed, as it has
been suggested, "the formula embodied in
Article 1 was arbitrarily chosen and as
such, was not and did not become part
of the customary law."81 It may also be
asserted that, according to the practice of
states the Continental Shelf, in the legal
sense, already extends far beyond what is
strictly geological shelf and perhaps covers
the whole area which is geographically a
part of the continental land mass.82
Professor Henkin further states that the
term "adjacent" in the Convention cannot
be understood to mean all the submerged
land mass regardless of its proximity to the
coast. If that were the intention, it would
have been so easy to put it expressly in
the Convention. There is nothing in the
legislative history of the Convention to
support such a view. There is no basis,
Henkin asserts, "except desire, which is not
wholly sufficient for interpreting a docu-
ment, for suggesting that the 1958 Conven-
tion would permit us to claim down to the
bottom of the submerged land ~mass83.
One needs "more than legal scholarship"
to arrive at such a conclusion.84
Oxman argues:
PAGENO="0751"
745
It is difficult to conclude that a
convention which confers rights to the
`Continental Shelf', which includes the
traditional geological 200 metre limit of
the shelf, which is called the Conven-
tion on the Continental Shelf, and
whose definition of the term `departs
to some extent' from the geological
definition, was intended to deal with
an area twice as large.
There is no support in the travaux
preparatoires "for linking the terrace con-
cept with the word `adjacent' "85
Professor Friedman feels that the sub-
stitution of the concept of "continental
margin" for "Continental Shelf" in Article
1 represents a "blatantly distorted inter-
pretation of the Geneva Convention".86
ShELF INCLUDES CONTiNENTAL SLOPE
It may be submitted, however, that
while Professor Henkin and others argue
for a narrow Continental Shelf and reject
the continental slope as the outer limit,
they fail to mention any other reasonable
limit fixed by law. Henkin admits that, the
criterion of exploitability could lead to
wide extensions87 and justify national juris-
diction over "a shelf out to the 600, 1,000,
2,000 or even 3,000 metre isobath"8 which
may extend to more than a hundred
miles.89 In this sense, the acceptance of
national jurisdiction up to the foot ofthe
continental slope is "to limit, not extend,
the exclusive coastal jurisdiction".90
Further, if the criterion of "adjacency"
in the sense of nearness or proximity was
paramount, as Professor Henkin and
proponents of a narrow Continental Shelf
contend, there is no reason why it should
not apply even to areas up to 200 metres
as much as to other areas.9' They believe,
however, that "adjacency" and "Conti-
nental Shelf" "become limiting factors
only where the waters become deeper than
200 metres".92 There is no logical cOm-
pulsion for acceptance of such a view.
Indeed, as the International Court said,
there is no complete identity between the
notion of "adjacency" and proximity".93
The legal Continental Shelf depends on
geological factors, though it is not confined
to geological shelf.
As regards the legislative history of the
Convention, one thing is certain that it
was not intended to be confined to a
depth of 200 metres. As Ely said, "it has
neither geologic nor tcchnologic nor
legal significance, being accompanied in
the Convention by exploitability criterion
which explicitly gives coastal states ex-
clusive rights beyond that depth".94 There
is also little doubt that the Ciudad Trujillo
resolution, which provided impetus for the
addition of the exploitability criterion in
Article I, did intend to include the. whole
continental terrace.
Regarding the geological or geogra-
phical features of the Continental Shelf,
a fair reading of the records clearly shows
that the Commission, as well as the 1958
Conference, was well aware of the vagaries
of the Continental Shelf. At some places
it was extremely narrow, while at others it
did not exist at all in the technical sense.
While it wanted to include within defini-
tion of the Continental Shelf areas like the
Persian Gulf, where the submarine areas
never reached 200 metres, it did not want
to exclude areas beyond 200 metres
"merely because the area is not a Conti-
nental Shelf in the geological sense".95
Therefore, while it kept the term Conti-
nental Shelf because it was in "current
use", they recognized the right to exceed
200 metres limit if it was technically
possible to do so, and considered that
"some departure from the~ geological
meaning of the term "was justified.96 In
other words, the expression Continental
Shelf was not more than a general indica-
tion of title to areas of indeterminate
extent and was not more than a "historic
relic".97 Far from accepting the geological
or geographical definition, they specifically
rejected it. There is hardly any reason why
it should be revived and accepted today.
"After all, the attempts at exploitation
of the sea-bed and the subsoil are in them-
selves an assertion of the supremacy of
man over a purely natural phenomenon".98
The term Continental Shelf need not be
regarded as necessarily bound up with its
normal geographical connotation. As Sir
Hersch Lauterpacht said as early as 1950:
That expression has served a useful
PAGENO="0752"
746
function in the formative period of the
adoption of the idea of the exclusive
control and jurisdiction of the state
over the adjacent sea-bed and sub-
soil. In so far as it supplies a graphic
description of the essential unity of
the bed and subsoil of the adjacent sea
and of the territory on which it rests,
its usefulness is not yet spent. But its
continued utility will depend to a large
extent on the degree of its emancipa-
tion from the technicalities and the
designation of its geographical proto-
type.99
NATURAL PROLONGATION
The areas included within the legal
Continental Shelf, even if freed from their
geographical moorings, must still be "ad-
jacent to the coast" and must not include
the deep ocean floor. There is no reason,
however, why the whole continental ter-
race which is merely an extension of the
continental land mass should not be
considered within the national jurisdiction
of coastal states. This principle of the
extension of "natural prolongation" of the
continental landmass was, it is important
to note, emphasized in various State
proclamations and declarations in the form
of contiguity and geographical unity.
Furthermore, as Judge Lauterpacht point-
ed out as early as 1950, the doctrine of
contiguity or natural prolongation is not a
doctrine wholly unrecognized in inter-
national law, and it has in fact "figured
prominently in the practice of states".100
The principle of "natural prolongation"
receives further strength from the fact
that "the relation is one not only of
contiguity or proximity, but also of
physical identity 101 No wonder the
International Court described it as "deter-
minant" and "fundamental".'°2 The Court
did mention, of course, that a point on the
Continental Shelf situated a hundred
miles, or even much less, could not be
regarded as "adjacent' `to the coast. But the
purpose of this statement was merely to
reject the idea of close identity between
"adjacency" and "proximity". The Court
was stressing the superiority of the
principle of "natural prolongation" to
"proximity". Moreover, the Court was not
referring to the Continental Shelf as a
physical entity in this passage, but as a
"point" on the Continental Shelf and was
stating that whether it was within the
jurisdiction of this state or that depended
not on "adjacency" but on the question
whether it could be considered as a
"natural prolongation of the land terri-
tory of this state or that. A point not
"adjacent" in the normal sense of the
term might still be a part of the Continental
Shelf if it was a natural prolongation of the
state and thus appurtenant to ~t.'°~ The
term adjacent may, therefore, be reason-
ably interpreted to mean the whole conti-
nental margid which includes both the
Continental Shelf and slope because "they
are merely the top and front of the margins
of continental blocks".'04 This may in
some cases extend to several hundred miles
into the sea, as even the geological shelf
itself sometime extends to several hundred
miles.
WIDE SFIELF OPPOSED
This interpretation of legal continental
shelf, as defined in Article 1 of the Conti-
nental Shelf Convention of 1958, 50 as to
permit enclosure of wide areas of the sea
within the limits of national jurisdiction,
is inimical to the interests of the indus-
trialised and militarily powerful states and
is naturally objected to by them. If the
deep sea-bed beyond the limits of narrow
continental shelves is left open for ex-
ploitation on a competitive basis it would
give a definite advantage to their capital
and technology. Since the industrialized
Powers-and only they-have at present
sufficiently advanced technology and re-
sources to exploit the riches of the
sea-bed, they need the widest possible
world to act and move in. Wide shelves
will give controlling rights to coastal states
around the world and the private com-
panies from the advanced countries would
have to deal with national governments,
"courting the proven and virtually in-
evitable dangers of expropriation, crippling
taxation, repeated renegotiations, extor-
tion, and confiscation by unstable govern-
ments subject to political upheaval and
susceptible to anti-American, anti-capitalist
sentiments".105 On the other hajid, limited
PAGENO="0753"
747
coastal jurisdiction would permit these
companies to explore and exploit the
resources of the sea in coastal areas all
over the world and subject only* to rules
which their own governments would help
develop and an authority which big Powers
would control.'°6
Wide coastal state jurisdiction is also
said to be against the vital military and
defence interests of the big naval Powers.
Thus, if the United States were to accept
a wide Continental Shelf, it was warned,
It will begin to find wide areas of
sea-bed (and later the corresponding
waters and air space) of 100 other
coastal states closed to it for military
navigation, for defensive military ac-
tivities, for scientific research, for fish-
ing and for other uses; at best they
will be open only by grace of often
unfriendly or unstable governments.'07
It is pointed out that, in spite of all the
precautions taken by the drafters of the
Continental Shelf Convention to maintain
the status of the shperjacent waters as
high seas and preserve the historic free-
doms that go along with it, the acceptance
of coastal states exclusive jurisdiction over
the continental shelf is bound to affect the
traditional freedoms. It is suggested that
When a state enjoys exclusive rights
for some purposes they tend to become
exclusive rights for other, perhaps all
purposes. Continental Shelf, then, will
tend to become territorial sea, and a
wider continental shelf will become a
wider territorial sea with adverse conse-
quences to other national and inter-
national interests in the freedom of the
seas.108
This creeping jurisdiction is believed to
be an "undeniable `law' of international
life' `~109
The great naval Powers might thus
find wide areas of the sea closed to the
free movement of their ships and missile-
carrying submarines. It is felt to be
extremely important for their navies to
maintain maximum manoeuvrability and
this implies complete freedom of move-
ment on the high seas, a narrow territorial
sea, and narrow continental shelf juris-
diction. Aside from the freedom of move-
ment, over and under the high sea waters,
the sea floor is strategically important for
the installation of detection devices on the
sea-bed; military mining and mine-counter
measure; navigation aid, bottom-moored
sensors, salvage submersibles and divers;
and ranges for research, development, and
testing of habitats, diving equipment, and
0 Concerned about spillover
or creeping jurisdiction in the Continental
Shelf area, the big naval Powers want to
keep it as narrow as possible. They view
with disfavour unilateral extensions of
national jurisdictions by coastal states in
order to monopolize for themselves living
and non-living resources in those areas.
On 3 August 1970, the United States
in a working paper submitted to the U.N.
Sea-bed Committee, suggested a compara-
tively narrow continental shelf up to 200
metres isobath within the limits of national
jurisdiction. Beyond that limit, up to the
seaward edge of continental margin, it was
suggested, would be a trusteeship area in
which the coastal state would have certain
preferential rights but subject to inter-
national controls. Beyond the trusteeship
area would be international sea-bed area
subject to a proposed International Sea-bed
Resource Authority. Although no other
formal proposals were submitted by other
naval Powers, some of them were favour-
ably inclined towards the United States
proposal.
DEMANDS OF EQUITY
It is also suggested that the tenets of
equity and justice require the coastal
jurisdiction over the Continental Shelf to be
kept as narrow as possible. This becomes
apparent by an exmaination of the geo-
graphic locations of different states. Thus,
there are thirty-one landlocked and twenty-
two shelf-locked states. These would be
losers in this game of expansion since they
cannot expand."1 Of the ninety-one states
touching the open sea, some like Australia,
Indonesia, the Soviet Union, the United
States and the United Kingdom, have long
coastlines extending from 10,000 to 23,000
nautical miles. Others have very short
23-317 0 - 73 - 48
PAGENO="0754"
748
coastlines. If one state has a 100-mile-long
coast and another a 1,000-mile long coast,
for every single mile extension of soveregn-
ty seaward, the first state gains only a
hundred square miles, whereas the second
gains as many as a thousand square miles,
thus aggravating the geographical in-
equalities already obtaining."2 Further-
more, most of the states which have
unusually long coastlines facing the broad
expanses of the open sea, are developed
states and it would be unreasonable to
allow them to make further gains.
Thus, as Ambassador Pardo of Malta
pointed out, if the whole ocean space were
divided on the median line principle,
thirteen states would potentially get ap-
proximately two-thirds of the world ocean
space. They are: Australia, Brazil, Canada,
Chile, Ecuador, France, New Zealand,
Norway, Portugal, the Soviet Union,
Union of South Africa, the United King-
dom and the United States. If another half
a dozen countries are added (for instance,
Argentina, Denmark, India, Japan, Mexico
and the Philippines) they could take away
three quarters of the entire ocean space of
the world. Some uninhabited Arctic and
sub-Antarctic islands (such as Severuaya
Zemliya, Zemliya Franstsa Josifer, Jan
Mayen, Ellesmere, Macquerrie, Heard) and
some tropical islands without permanent
inhabitants (for instance, St. Paul's Rocks,
Fernando Norouha, Trinidad, and Martin
Vaz) could give their possessors the right
to claim jurisdiction over millions of
square miles of ocean space. Most of the
Asian and African states would be losers
in this respect because many offshore
islands are not in the possession of coastal
states."3
It must also be noted that of the
coastal states, nearly sixty-two states have
narrow continental margins, and only
twenty-eight states have wide margins. A
state with a narrow continental margin,
the only area which is rich in minerals and
fisheries, gains little even if its jurisdiction
is extended."4
A narrow Continental Shelf will, there-
fore, be in the interest not only of land-
locked states, but also of a majority of
coastal states, especially the developing
countries, who would like to see as much
of the sea-bed and its resources as possible
dedicated to international purposes and the
overwhelming goal of reducing world
poverty and the chasm between the rich
and the poor.115 It is now almost univer-
sally accepted, that the area of the sea-bed
beyond national jurisdiction is the "com-
mon heritage of mankind", an area which
should be used as a source of wealth for
solving the problems of world poverty. It
would naturally be in the interest of the
developing countries to keep this area as
wide as possible subject to an effective
international regime in which they may
have some degree of control. This would
also provide an opportunity for new forms
of international co-operation and a de-~
parture from the selfish competition and
conflict that has long troubled the world
society.~I6
PLEAS FOR WIDER SHELF
The proponents of a wide Continental
Shelf more or less reject all the above
arguments for a narrow Continental Shelf.
It is natural that the ambiguous and un-
certain language of Article 1 of the 1958
Continental Shelf Convention should be
interpreted to suit one's own purposes.
The advocates of. a narrow Continental
Shelf interpret it restrictively not neces-
sarily "on legal grounds", but "more on
a policy preference".'17 On the other hand,
those who favour a wide Continental Shelf
make a reasonably strong case for it under
the Convention and see no reason why
such jurisdiction already conferred by the
Convention and accepted in customary
law, should be "renounced" without any
justifiable reason. The reasons behind the
acceptance of the doctrine of the Con-
tinental Shelf-the technological and eco-
nomic need for the co-operation of coastal
states for exploitation and security-apply
equally far beyond any geological shelf.
Furthermore, as the International Court of
Justice has ccnfirmed, not only the geo-
logical shelf, but the entire submerged
continental mass is a "natural prolonga-
tion" of the continent and should belong
to coastal states. Indeed, it is said that
The best geomorphic feature on
which to base any offshore boundary
PAGENO="0755"
749
is the base of the continental slope
which approximately coincides with the
separating line between continents and
ocean basins and is the most out-
standing feature of the ocean bottom.
Such a boundary, it is stressed, is
much more natural and reasonable than
"an almost impossibly impractical boun-
dary that is based on 200 metres of water
depth", which is what is generally recom-
mended by the advocates of a narrow
Shelf."8
It is pointed out that it is unreasonable
to expect coastal states to give up such
rights as they already possess to exploit
the resources, particularly oil and gas, on
the slope and rise of the submerged land-
mass, for a small share from a future
probable "common pot" which might be
produced by the exploitation of the sea
bed beyond national jurisdiction under
some international agency. A bird in hand
is definitely better than two in the bush
even if there is a real possibility of finding
some birds in the bush.
The whole problem of the so-called
"creeping jurisdiction", it is asserted, has
been exaggerated far out of proportion.
Although it has occurred in the form of an
extension of the territorial sea (partly
because there is at present no accepted
limit of territorial waters, and an extension
can be made without its legality seriously
questioned) there are hardly any important
instances of creeping jurisdiction from the
Continental Shelf doctrine."9 There is
little support for the allegation that coastal
states have overstepped their rights under
Geneva Convention by claiming areas Of
exclusive national jurisdiction far in excess
of those contemplated by that treaty, and
that such claims qualitatively are in
abrogation of the doctrine of the freedom
of the seas.'2° Nothing of the kind, it is
said, has happened during the last twenty-
five years of experience.'2' Claims of 200
miles of territorial waters also are confined
to a few Latin American states only.'22 A
United States Senate Subcommittee on
Outer Continental Shelf declared in its
report:
such allegations. The overwhelming
majority of coastal nations which
have become parties to the Shelf Con-
vention have limited their jurisdictional
claims both qualitatively and quanti-
tatively to the terms of that treaty. They,
have indeed honoured their solemn
commitments.'23
POOR COUNTRIES
The underdeveloped states-and most
of the underdeveloped states are also coas-
tal states-generally demand a wide Con-
tinental Shelf which they can exploit or
get exploited for their own development.
Determined not to be left behind, as they
have been for centuries when the sea was
exploited only by a very few powerful
states for their own selfish interests, the
developing countries want to be "partners
in development" and share the benefits
to be derived from the exploitation of the
sea-bed. Indeed, to the poor under-
developed countries the sea~bed offers
a new unique opportunity to augment their
meagre economic resources. Thus, beyond
the limits of extended territorial waters,
most of the developing countries claim
a much wider area, up to 200 miles, ef
economic zone to exclude the developed
countries from coming near their shores.
At least seven Latin American States,
Argentina, Brazil, Ecuador, El Salvador,
Panama, Peru and Uruguay, claim a terri-
torial sea of 200 miles. Several others
claim an exclusive maritime zone of 200
miles which they call "patrimonial sea".
A group of 13 Latin American States
bordering on the Caribbean Sea (plus
Guyana and El Salvador) adopted a de-
claration in July 1972 at Santo Domingo
providing that all States have the right to
establish the breadth of their "territorial
sea" to a distance of 12 miles, and may
exercise "soveriegn rights" over the rene-
wable and non-renewable natural resources
in th~ waters, sea-bed and subsoil of an
area, called patrimonial sea, upto a distance
of 200 nautical miles.'24 Most of the other
developing coastal countries also support
a wide exclusive "economic zone" of 200
miles.125 If they do not have the technolo-
gical capacity to exploit its resources, they
may employ contractors, enter into joint
We have found little evidence to support
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750
ventures with foreign states or entities, or
make other bilateral arrangements for ex-
ploitation of this zone. But they should
have the exclusive right to regulate resource
exploitation activities in the area. As the
representatives of Kenya explained:
The exclusive economic zone concept
is an attempt at creating a framework
to resolve the conflict of interests bet-
ween the developed and the developing
countries in the utilization of the sea.
It is an attempt to formulate a new
jurisdictional basis which will ensure
a fair balance between the coastal states
and other users of the neighbouring
waters.'26
OTHER PROPOSALS
The criteria of "exploitability" and
"adjacency", provided in Article 1 of the
1958 Convention, having been found
ambiguous, uncertain, controversial and,
therefore, unacteptable, some other pro-
posals about the extent and methods of
delimiting the outer edge of the shelf have
been suggested:
Criterion of Geology: Finding their
support in "natural prolongation" theory,
it is suggested that "the best natural geo-
morphic feature on which to base any
offshore boundary is the base of conti-
nental slope which approximately coincides
with the separating line between conti-
nents and ocean basins and is the most
outstanding feature of the ocean bot-
tom".'27 It is admitted however, that
considerable difficulty arises in finding the
lower boundary of the slope and the boun-
dary between continental slope and conti-
nental rise may vary from 1000 to 4,000
metres, and in some areas, as along the
West Coast of South America, it may des-
cent to depths of 8,000 metres. Its width
may be as great as five or six hundred miles,
but in some regions it is extremely narrow
and completely absent. Apart from the
imprecision of the boundary based on the.
geclogical criterion, difficulties in its de-
marcation, and the possibility of its further
extension to include the whole continental
rise, it has been pointed that such a cri-
terion would benefit only a relatively
few countries which have wide continental
margins.'28
Criterion of Dept/i: Since most maps
and charts which form the basis for much
of the use of oceans devide the sea accord-
ing to depths, depth has been suggested
as a basis for delimiting the outer edge of
the legally-defined shelf. Apart from 200
metres, mentioned in the 1958 Convention,
various depths, 550, 1,000, 2,000, and 2,500
metres are suggested in this connection.
Apart from the fact that the depth critericn
is too complex for the daily requirements
of operators who need an easily ascertain-
able limit, it is pointed out that specific
isobaths at considerable depths can be
located in an accuracy of only one per cent.
Further, depth of say 200 metres, plus or
minus two metres, may exist for tens of
miles. It would, therefore, be extremely
difficult to define the area of national
jurisdiction.'29
Criterion of Distance: In the absence
of any other satisfactory criterion, distance
in terms of miles from shore is suggested
as a possible criterion for delimiting the
legal continental shelf. Apart from its
simplicity, it is also said to be appropriate
for security, economic, technological and
practical reasons. As Henkin pointed out:
Depth-of-water has less and less to do
with the reasons for the law of the shelf.
Economic and technological depen-
dence on the coastal state now relates
more to distance from its shore than to
depth of waters. The reluctance of
a state to have foreign installations
near its coasts is also a function of
distance from shore, not of depth of.
water. A distance from shore would
seem a principal purpose of the ex-
ploitability clause-to treat coastal
nations equally regardless of geological
idiosyncrasy. It would also eliminate
the problem of trenches and ridges.
Distance from shore is also generally
easier to measure than depth of sea in
an ocean which is still very inade-
quately mapped'3°
Several suggestions in terms of distance
PAGENO="0757"
751
or depth-cum-distance have been made in
this connection, for instance 550 metres
or 50 miles, 200 metres or 50 miles, 40
miles, 100 miles, 2,500 metres/200 miles
or only 200 miles. It is admitted that even
the criterion of distance is as arbitrary as
others since distance has no rational rela-
tionship to the distribution of resources
in the sea-bed. Moreover, even 200 miles,
the widest continental shelf proposed,
would not cover all the areas within 200-
metre isobath, already vested in the coastal
states under the Geneva Convention.
Further, in the case of small island coün-
tries like Nauru (8 sq. miles), the Maldive
islands (115 sq. miles), Malta 122 sq. miles),
Barbados (166 sq. miles) or Tonga Islands
(270 sq. miles), distance criterion would
close off vast portions of the sea within
national limits.
CONFLICTING INTERESTS
From the above rather sketchy dis-
cussion of different criteria for delimitation
of area of national jurisdiction it is clear
that no method of delimitation is entirely
satisfactory and free from some serious
defects. Under these circumstances any
decision in this regard is bound to be
arbitrary to some extent and will be made
after difficult political bargaining.
In view of conflicting interests and di-
verse views, some expressed and some
unexpressed, what limits of national juris-
diction may be adopted in the Conference
proposed to be held in 1974, is anybody's
guess. It is practically impossible to divide
the various states accurately in different
groups with respect to their national inte-
rests in the sea-bed. It is a very complex
problem. Even if it is~presumed that the
countries can be neatly divided into two
groups-developed and developing coun-
tries-neither the developed, nor all the
developing countries have similar interests.
Geographic divisions cut across those of
economic development. Again, not all the
ninety-one countries facing the open sea
have same interests. Out of the sixty-two
countries with narrow Continental Shelves,
some are concerned about their national
security or environmental protection; for
others the living resources of the high seas
seem to be more important than the real
or imagined riches of sea-bed and subsoil.
Some would prefer a narrow Shelf with
a strong international regime; others would
like to be "compensated" in the form of
legally-defined Shelves of fixed distances
offshore. Not all the twenty-nine broad-
Shelf countries want the acceptance of a
wide legal Shelf. As we have seen, the
United States and some other Powers
would rather like to have a narrow Shelf
and wide freedom of movement and ex-
ploitation of the resources of the high seas.
On the other hand, some technologically
under-developed countries would prefer
to keep their continental margin within
their national jurisdiction, in the hope of
exploiting their natural resources with
hired technology.
Practically all the thirty-one landlocked
and twenty-three Shelf-locked states would
seem to prefer as narrow a Shelf as possible
and a large international area and inter-
national fund. They might also be joined
by some six "open sea" states which have
very small coastlines of say a hundred
miles or less. But although they are nume-
rically strong, they are politically weak
and subject to political pressures from all
sides.
There are some blocs which may, how-
ever, have no bloc-voting. Thus, the Soviet
bloc consists of developed, developing,
landlocked, shelf-locked, and "open sea"
states. There are also divisions of inte-
rests and opinions in the Arab bloc, and
even in the Latin American bloc of coun-
tries.
TREND TOWARD EXTENSIONS OF NATIONAL
JURISDICTION
But although the present limits of na-
tional jurisdiction are uncertain and it is
almost impossible to predict what limits,
if any, may be adopted at the proposed
1974 Conference, one thing that is certain
is the present trend toward extensions of
national jurisdictions. Indeed, most of the
underdeveloped states have also taken this
opportunity to extend their territorial
waters, fisheries zone or other protective
zones to protect their special interests.
The immediate reasons for these extensions
may vary: it may be the need to exercise
control over natural resources adjacent to
PAGENO="0758"
752
the coast in the interests of their conser-
vation and prudent utilization; or to
reserve to the maximum possible extent
the harvesting of living resources to na-
tionals faced with strong foreign competi-
tion; or the desire to avoid marine pollu-
tion that might be caused by foreign navi-
gation; orthe need to regulate navigation
in some crowded areas dotted with drilling
platforms; or because of security consi-
derations; or in order to ensure compliance
with the police and health regulations of
the coastal states. The pressures are com-
plex and interacting.
Further, coastal states take action in
this regard rather haphazardly according
to the needs of the moment. Thus, some
states set limits for one part of ocean space,
(e.g., territorial waters) but not for other
parts (for example, the legal Continental
Shelf). Some delimit fishery zones, others
do not. The limits ofjurisdictions adopted
for various specific purposes vary so widely
that there is no common denominator.
But in the midst of all these uncertainties,
the trend towards ever wider claims of coas-
tal states is clearly discernible)3'
Thus, as we have seen above, most of
the Latin American countries have ex-
tended their sovereignty and jurisdiction
over a maritime zone of 200 miles. In
1970, Canada extended its jurisdiction to
a hundred miles in the Arctic Archipelago
in order to control the dangers of pollu-
tion. It also established "fishery closing
lines" at the entrance to the various zones
to reserve resources for Canadian na-
tionals.'33
Compared to thirteen states which
claimed twelve-miles territorial waters in
1960, there are fifty-two states which make
that claim today. Several of these coun-
tries have extended their jurisdiction even
beyond twelve miles for certain purposes.
Thus in Asia, six countries have taken
such a step. The Republic of Korea,
in 1952, established an exclusive fishing
zone between 20 and 200 miles; India, in
1956, established a fisheries conservation
zone of a hundred miles in addition to its
territorial waters; Ceylon and Pakistan
adopted similar measures in 1957 and 1966
respectively. Fiji, Indonesia and Phili-
ppines have adopted the archipelago con-
- cept and seek to extend their waters so as
to make their countries single units.
In Africa, seven nations have extended
national jurisdictions beyond 12 miles;
Ghana, in 1963, fixed a hundred miles as
a fishery conservation zone; Guinea, in
1964, extended its territorial waters to 130
miles; in 1967 Cameroon's Federal National
Assembly authorized the extension of its
territorial sea to 18 nautical miles; Senegal,
in 1968, established an exclusive fishing
zone of 18 miles and Dahomey extended
jurisdiction over the sub-soil of its Conti-
nental Shelf to a hundred miles; Gabon,
in 1970, fixed the width of its territorial
sea to twenty-five miles, and in 1971,
Nigeria stretched its territorial waters
from twelve to thirty nautical miles.
Considering this trend, it is doubtful
if the traditional limits of national juris-
diction can long be maintained whether in
respect of territorial waters, fisheries zone
or the Continental Shelf. International
law on the question of limits of the juris-
diction of the coastal state is, therefore,
described as being in a state of either
transition or disintegration. The only
certainty is that it is uncertain.
CONCLUSION
In an age of unprecedented change it
is not surprising that the law relating to
sea and sea-bed, although codified as late
as 1958, has been found inadequate, has
become outmoded in some respects and
must be reconsidered and, if necessary,
revised. Thus, although legal Continental
Shelf under the flexible definition adopted
in the 1958 Convention, can now be
stretched to mid-ocean, it has come to be
generally recognized that this was never
the intention of the drafters of the Con-
vention. In any case, such an unreaso-
nable interpretation has come to be deci-
sively rejected today.
\Vhere exactly is the limit of legal Conti-
nental Shelf, as defined in Article 1 of the
1958 Convention, cannot be answered for
sure and has been variously answered by
different scholars depending on their
ulterior motives. It is significant to note,
however, that in the North Sea Continental
Shelf cases, the International Court of
Justice, following several declarations,
PAGENO="0759"
753
referred to the Continental Shelf as the
natural prolongation" of the land territory
of the coastal state. This may be reason-
ably interpreted to include the whole of the
continental margin because it is there
that the "natural prolongation" of the
continent ends and the real ocean starts.
Be that as it may, no one can deny the
need for clear and precise limits of national
jurisdiction. Where should these limits
be drawn has, of course, been answered
differently by different individuals and
states depending on the interests which-
they are seeking to protect. Although
countries in their international relatidns
do not always act logically and are prdne
to diverse pressures, generally speaking the
landlocked and shelf-locked states and
technologically and militarily big Powers
want to keep these limits as narrow as
possible. On the other hand, the smaller,
poor and under-developed coastal states,
comprising a large majority, want to pro-
tect as large an area as possible near their
shores from continued exploitation by big
Powers. No wonder, a clear trend towards
extension of national jurisdiction is dis-
cernible during the last few years. In
this age of rising expectations, it would be
unreasonable to expect most states to give
up rights to much wider areas of what has
been described as "economic zones" for
the exploitation of fisheries and mineral
resources and for the prevention and
control of marine pollution. What limits
of legal Continental Shelf are ultimately
adopted will depend upon various factors,
not the least important of which are going
to be the width of territorial waters and the
nature and powers of international legal
regime and machinery for the exploration
and exploitation of deep sea-bed beyond
the limits of national jurisdiction. Indeed,
the issues relating to the extent of terri-
torial waters or legal continental shelf,
fisheries zones or pollution control zone,
international navigation or status of inter-
national straits are so interdependent
that if a solution is found to these problems,
it is bound to be some sort of a package
deal. This will require a lot of political
wisdom and hard bargaining to arrive at
any compromise. But in view of the uń-
certainties with which the whole subjeôt
is ridden at present, an opportunity to make
new universally acceptable law should
not be lost and must be expedited.
Footnotes
I. See Editorial, Saturday Review, August 13,
1966, quoted in U.S. House of Represen-
tatives, Committee on Foreign Affairs' Sub-
Committee on International Organizations
and Movements, Interim Reports on the
United Nations and the Issue of Deep Ocean
Resources together with Hearings. pursuant
to H. Res. 179 (Washington, 1967), p. 7.
2. Res. 2340 (XXII) of December 18, 1967.
3. See Res. 2749 (XXV) unanimously adopted
on December 18, 1970, entitled "Decl,aration
of Principles Governing the Sea-bed and
the Ocean Floor, and the Subsoil thereof,
beyond the Limits of National Jurisdiction".
4. See P.C. Jessup, The Law of Territorial
Waters and Maritime Jurisdiction (London
1927), p.15; Cecil Hurst, "Whose is the Bed
of the Sea", British Year Book of Internation
a! Law (1923-24), p. 24; Carl M. Franklin,
The Law of the Sea: Some Recent Develop-
inents (Washington, 1961), pp. 30-31.
5. Hurst, ibid., pp. 40-41.
6. See quoted in Marjorie M. Whiteman, Digest
of International Law, vol. 4 (Washington
D.C., 1965), pp. 756-57.
7. Whiteman, ibid., p. 758.
8. See Max Sorensen, "Law of the Sea", Inter-
national Conciliation, No. 520, (New York,
1958), pp. 226-27; M.W. Mouton, The Conti-
nental Shelf (The Hague, 1952).
9. Sir Hersch Lauterpacht, "Sovereignty Over
Submarine Areas", British Year Book of
International Law, Vol. 27 (1950), p. 376.
10. See UN Memorandum on the Regime of the
High Seas, in Whiteman, n. 6, p. 814.
11. Bourcart, Geographic do fond des Mers:
Etude do Relife des Oceans, quoted in UN
Memorandum, ibid. p. 815.
12. UN Memorandum, ibid. See also Richard
Young, "The Legal Status of Submarine
PAGENO="0760"
754
Area beneath the High Seas", American
Journal of International Law. vol. 45 (1951),
pp. 233-5.
13. See Lauterpacht, n. 9, pp. 383-7. See also
Percy Geographer, Department of State,
"Geographical Aspects of the Law of the
Sea", quoted in Whiteman, n. 6, pp. 817-8.
14. Young, n. 12, p. 235.
15. See Appendix D to Statement by Northcutt
Ely, U.S. Senate Committee on Interior and
Insular Affairs' special subcommittee on
Outer Continental Shelf, Hearings on Issues
Relatedto Establishment of Seaward Boundary
of US Outer Continental Shelf. 91st Congress,
Second session. (1970), pp. 61-64.
16. See R.B. Pal, Yearbook of the International
Law Commission, 1956, vol. 1, pp. 133-34;
Scelle, ibid., p. 135; Francois, ibid., p. 138.
17. See Samad (Pakistan), 1958 UN Conference
Official Records, vol. 6, p. 19; Obiols-Gomes
(Guatemala), ibid., p. 31; Fattal (Lebanon),
ibid.. p. 38; Yugoslavia, Official Records,
vol. 2, p. 93.
18. International Law Commission's Report,
1956, Yearbook of the International Law
Commission; 1956, Vol. II, p. 296; see also
discussion in the ILC, n. 16, pp. 138 if. In a
paper prepared for the 1958 Conference,
M.W. Mouton noted that depths of 200 feet
(61 metres) were the maximum at which the
then existing oil drilling platforms could be
used. Even other minerals (e.g. tin off
Thailand) could not be exploited beyond
215 to 220 feet (65.5 to 67.1 metres). He
believed that exploitation at 200 metres would
not become possible in twenty years. See
Mouton, "Recent Developments in the Tech-
nology of Exploiting the Mineral Resources
of the Continental Shelf", A/CONF. 13/25.
19. Shigaru Oda, "Proposals for Revising the
Convention on the Continental Shelf", Co-
lumbia Journal of International Law, Vol. 7
(Spring, 1968), p. 9; see also Oda, "Future
Regime of the Deep Ocean Floor", in J.
Sztucki, Symposium on the International
Regime of the Sea-Bed, (Rome, 1970),
pp. 345-46.
20. See a map showing these divisions by Francis
T. Christy, in Interim Report, n. 1, opposite
p. 89.
21. Report of the International Panel of the
Commission on Marine Science Engineering
and Resources, Marine Resources and Legal-
Political Arrangements for their Development,
vol. 3, (Washington, D.C., 1969), p. VIII-17;
see also Ian Brownlie, "Recommendations
on the Limits of the Continental Shelf and
Related Matters: A Commentary", in Lewis
M. Alexander, (Editor), National Policy
Recommendations, Proceedings of the Fourth
Annual Conference of the Law of the Sea
Institute June 23-26, 1969, (Kingston, RI.
1970), pp. 137-38.
22. See op. cit., n. 16, pp. 134 if.
23. See 1956 Report of the JLC, n. 17, p. 297.
24. See Official Records, vol. 6, pp. 21 if.
25. See General Assembly Resolutions No. 2340
(XXII) of 18 December 1967; 2467 (XXIII)
of 21 December 1968; 2574 (XXIV) of 15
December 1969; and 2749 (XXV) of 17
December 1970. See also Louis Henkin,
"The Extent of the Continental Shelf",
Pacem in Maribus: Preparatory Conference
00 the Legal Framework amid Continental
Shelf, (1970) p. 8; Francois Bellanger,
"Legal Problems of Exploring and Exploit-
ing the Resources of the Seabed and Its
Subsoil", Report presented at the Symposium
on the Exploration and Exploitation of the
Sea-bed and Subsoil, Strasbourg, 3-5 Dec.
1971; "Discussion on Present Legal Regime
of the Seabed", J. Sztucki, n. 19 pp. 447
if., 455.
26. Louis Henkin, Law for the Sea's Mineral
Resources (New York, 1968), p. 19.
27. E.D. Brown, "Report on the Legal Regime
of Deep-Sea Mining", Report of the Commi-
ttee on Deep-Sea Mining of the British Branch
of the International Law Association (1968);
Brown "The Present Regime of the Explora-
tion and Exploitation of Sea-bed Resources
in International Law and in National Legis-
lation: An Evaluation", in, Sztucki, n. 19,
p. 244.
28. The U.S. Senate Commerce Committee said
that the Convention "Conveys both specific
and immediate rights and prospective or
potential rights, the latter to be acqufred only
PAGENO="0761"
755
as a result of national effort and achieve-
ments," S. Rep. No. 528, 89th Congress,
1st Session (1965), p. 11.
29. Richard Young, "The Geneva Convention
on the Continental Shelf: A First Impre-
ssion", American Journal of International
Law. Vol. 52(1958), p. 735; see also Mouton,
n. 8, p. 42; Henkin, n. 26, pp. 16-17; Arthur
H. Dean, "The Law of the Sea Conference
1958-60", in L. Alexander (Editor), The
Law of the Sea: Offshore Boundaries and
Zones (Ohio State U. Press, 1967), p. 24'l.
Mr. Young suggested that each party should
periodically file with UN a statement indi-
cating the maximum depth at which it was
exploiting the resources of its shelf, and the
greatest such figure. would determine the
outer limits for all parties until the next
succeeding report. Ibid., pp. 735-76.
30. Robbie Jennings, in Hearings, n. 15, p. 284.
Emphasis supplied. See also Myers S.
McDougal and W.T. Burke, The Public
Order of the Oceans: A Contemporary
International Law of the Sea, (New Haven,
1962), p. 690.
31. See Henkin, n. 26, p. 17.
32. See Henkin, n. 25, pp. 5-6; see "Report of the
International Panel of the U.S. Commission
on Marine Science Engineering and Re-
sources", Marine Resources and Legal-Poli-
tical Arrangements for their Development,
vol. 3 (Washington, D.C., 1969) p. VIII-16;
J. Andrassy, International Law and the
Resources of the Sea (New York, 1970) p. 81.
33. See Young, n. 29, p. 735.
34. Jennings, Hearings, n. 15, p. 284.
35. I.C.J. Reports. 1969, p. 30.
36. R.Y. Jennings, "The Limits of Continental
Shelf Jurisdiction: Some Possible Implications
of the North Sea Case Judgment", Inter-
national and Comparative Law Quarterly,,
vol. 18 (1969), quoted in full in Hearings.
n. 15., p. 274; Henkin, n. 25, p.9.
37. Yearbook of the ILC., 1956, vol. II, p. 298.
38. Garcia Amador, n. 16, p. 135. Emphasis
supplied.
40. Henkin, n. 26, pp. 23-24; See also Henkin,
"International Law and the `interests';
The Law of the Sea-bed", American Journal
of International Law, vol. 63 (1969), pp. 507 ff.
41. Henkin,ibid., p. 24.
42. Henkin, ibid., p. 69. See also MS. Mc-
Dougal and W.T. Burke, n. 30, p. 686;
Burke, "Law, Science and the Ocean", Law
of the Sea Institute Occasional Paper No. 3,
(Kingston, RI., 1969), p. 13.
43. See Jennings, n. 36, pp. 278-79; Richard
Young, in Hearings, n. 15., p. 178; Henkin,
n. 25, pp. 12-13.
44. See full report in Hearings, n. 15, p. 28.
Emphasis added.
45. Appendix E to the Report of the Special
Subcommittee, on Outer Continental Shelf
of the U.S. Senate Committee on Interior
and Insular Affairs, 91st Congress, Second
Session (1970), p. 80.
46. See Report of the Subcommittee, ibid., p. 3.
47. National Petroleum Council, Petroleum
Resources under the Ocean Floor, (Washing-
ton, D.C., 1969), p. 57.
48. Yearbook of the ILC. 1956, vol. II, pp. 296-97.
49. See Marjorie M. Whiteman, "Conference.
on the Law of the Sea: Convention on the
Continental Shelf," American Journal of
International Law, Vol. 52 (1958), p. 634.
and corresponding text.
50. N.P.C. Report, n. 47 see also Appendix C
to Statement of Northcutt Ely in Hearings,
n. 15, pp. 57-61.
51. At least 31 states are reported to have granted
off-shore concessions in areas which include
waters deeper than 200 metres. These in-
clude Australia, British Honduras, Canada,
Cuba, Denmark, Equatorial Guinea, Ethio-
pia, Gabon, Ghana, Guyana, Honduras,
Indonesia, Italy, Jamaica, Japan, Malaysia,
Mauritania, Norway, Oman, Panama, Peru,
Phillippines, Senegal, Spanish Sahara, Sudan,
Surinam, Trinidad, Turkey, U.K., U.S.A.,
U.S.S.R., Appendix D to Ely's Statement in
Hearings, n. 15, p. 64.
52. Ely, ibid., p. 61; N.P.C. Report, n. 47, p. 63.
39. Henkin, n. 25, p. 10.
53. See Jennings, n. 36, p. 279.
PAGENO="0762"
Ibid.
Denmark and the Netherlands argued that
"the test of appurtenance must be `proxi-
mity,' or more accurately, `closer proximity':
all those parts of the shelf being considered
as appurtenant to a particular coastal state
which are (but only if they are) closer to it
than they are to any point on the coast of
another state". Hence, they suggested,
the Continental Shelf must be divided on the
basis of equidistance principle. See ibid., p. 29.
65. Ibid., p. 31.
66. Ibid.; p. 30.
67. Ibid., p. 31.
68. See Luke T. Finlay, "The Outer Limit of the
Continental Shelf: A Rejoinder to Professor
Louis Henkin", American Journal of Inter-
national Law. vol. 64 (1970), pp. 58-59.
69. Jennings, n. 36, p. 279.
70. Jennings, Ibid., p. 280.
71. Jennings, ibid., p. 283; Cecil J. Olmstead,
Statement in Hearings before the Sub-
committee on Ocean Space of the Committee
on Foreign Relations, U.S. Senate, 91st
Congress, First Session, on S. Res. 33,
held on July 24, 25, 28 and 30, 1969, p. 135.
72. Jennings, ibid., p. 280.
73. See "Report on a Regime for the Explo-
ration and Exploitation of the Mineral Re-
sources of the Ocean Bed" (1970), British
Branch Committee on Deep Sea Mining of
the International Law Association, Report
on Outer Continental Shelf, n. 45, p. 160;
see also pp. 162-63.
74. See Young, in Hearings n. 15, p. 178.
75. N.P.C. Report, n. 47, p. 67; see also Cecil
S. Olmstead, Hearings, n. 71, pp. 132 if.
76. Louis Henkin, "A Reply to Mr Finlay",
American Journal of International Law,
vol. 64 (1970), p. 62.
77. Henkin, ibid.; see also John G. Laylin, in
Hearings, n. 15, pp. 131-32, 137.
78. International Panel's Report, n. 32, p.
VIll-16; see also Hedberg, in Alexander,
n. 21, p. 184.
79. See also Atwood Wolf, in Alexander, n. 21,
p. 284. But cf. International Panel's
Report, ibid.; and L.F.E. Goldie, "Inter-
national and Domestic Managerial Regimes
for Coastal, Continental Shelf and Deep-
Ocean Mining", in Alexander, n. 21, p. 234.
80. See Jennings, in Hearings, n. 15, p. 284.
81. See Andrassy, n. 32, pp. 68-69.
82. See Jennings, Hearings, n. 15, p. 280.
83. Henkin, in Hearings, n. 15, p. 183.
84. Malcolm Richard Wilkey, in Hearings
before the Subcommittee on Ocean Space
of the Committee on Foreign Relations,
U.S. Senate, 91st Congress, First Session on
S. Res. 33, July 1969, P. 88.
85. Bernard H. Oxman, The Preparation of
Article 1 of the Convention on the ~onti-
nenta' Shelf, prepared for the Commission
on Marine Services Engineering and Re-
sources, (Springfield, Va. nd.) pp. 143, 146.
86. Wolfgang Friedmann, The Future of the
Oceans (New York, 1971), pp. 39-40.
87. See text relating to n. 42 above.
88. Henkin, n. 26, p. 46.
89. Ibid., p. 24; but cf. Henkin, n. 76, p. 72.
90. Comments by the Rapporteur and Chairman
of the Committee on Deep Sea Mineral
Resources of the American Branch of the
ILA on Professor Henkin's Dissent, in
Report of the Subcommittee, n. 45, p. 92.
91. See also International Panel Report, n. 21,
p. Vffl-19.
756
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
N.P.C. Report, n. 47, p. 65.
Ibid., pp. 66-67.
See Whiteman, n. 6., p. 758.
I.C.J. Reports, 1969, p. 22.
Ibid.
Jennings, n. 36, p. 275.
See I.C.J. Reports, 1969, pp. 29, 31.
Ibid., p.31.
Ibid., p. 51.
PAGENO="0763"
92. Henkin, n. 25, p. 13.
93. See I.C.J. Reports, 1969, p. 30; se~ also ns.
64 and 65 and text thereto.
94. Northcutt Ely, statement in Hearings n. 15,
p.9.
95. ILC Yearbook, 1956, n. 18, p. 296. Emphasis
supplied.
96. Ibid.
97. See Report of discussion on legal boundaries
on the sea-bed at the Rome Symposium in
Sztucki, n. 19, p. 37.
98. Lauterpacht, n. 9, p. 396.
99. Lauterpacht, Ibid.
100. Lauterpacht, n. 9, p. 428; see reference to
the state practice, Ibid., pp. 425-29.
101. Ibid., p. 430.
102. I.C.J. Reports, 1969, p. 31. See text relating
to ns. 58-63 above; see also Hollis D. Hed-
berg, "Limits of National Jurisdiction over
Natural Resources of the Ocean Bottom",
in Alexander (Editor), n. 21, pp. 163, 167;
Burke, n. 42, p. 17; but cf. Auerbach, in
Alexander, ibid., p. 277.
103. See text relating to ns. 67-68; see also Finlay,
n. 68, p. 58; Jennings, Hearings, n. 15, p. 277;
but cf. Henkin, a. 76 p. 70, where he states
that although the. Court was interpreting
the concept "adjacent" for the purposes of
Article 6 of the Convention, it was equally
applicable in Article 1.
104. Menard and Smith, quoted by Finlay, n. 68,
p.58.
105. Louis Henkin, n. 25 p. 21-22; Henkin in
Louis M. Alexander, The Law of the Sea:
National Policy Recommendations. Proceed-
ings of the Fourth Annual Conference of the
Law of the Sea Institute 1969 (Kingston,
RI., 1970), p. 174.
106. See Louis Henkin in U.S. Senate Committee
on Interior and Insular Affairs, Special
Subcommittee on Outer Continental Shelf,
Hearings on Issues Related to the Establish-
ment of Seaward Boundary of US Outer
continental Shelf, n. 15, p. 185.
107. Louis Ilenkin, Ibid, pp. 184-85, 205.
108. Louis Henkin, n. 25, p. 19.
109. Henkin, ibid., see also W. Friedmann, The
Future of the Oceans (New York, 1971),
p. 38. Craven, quoted in Friedmann, ibid.,
p. 49.
110. Norman W. Breckner, "Some Dimensions of
Defense Interest in the Legal Delimitations
of the Continental Shelf", in Alexander,
n. 105, pp. 188-89; Adm. Waters, U.S.
Senate Committee on Commerce, Hearings:
Special Study on United Nations Subo-
ceanic Lands Policy, 91st Congress, 1st
Session, (1969), p. 33.
111. See these statistics in Lewis M. Alexander,
"Alternative Methods for Delimiting the
Outer Boundary", Paper prepared for the
U.S. Department of State (February 1970),
(unpublished Author's typed copy), Table 2
after p. 24.
112, John R. Stevenson "The Search for Equity
on the Seabeds", Address before the Indian
Society of International Law on February 9,
1971, (Author's typed copy), p. 5.
113. Arvid Pardo, statement before the Sea-
bed Committee, March 23, 1971, pp. 22-23.
114. Stevenson, n. 112, p. 6.
115. Henkin, in Hearings, n. 15, p. 204.
116. ITenkin, n. 25, p. 18.
117. U.S. Senate Committee on Interior and
Insular Affairs, Report by Special Sub-
Committee on Outer Continental Shelf (Chair-
man: Senator Lee Metcalf: hereinafter re-
ferred to as Metcalf Committee), December
21, 1970 (Washington D.C. 1971), p. 15.
118. Hollis Hedberg in L.M. Alexander, The
United Nations and Ocean Management,
Proceedings of the Fifth Annual Conference
of the Law of the Sea Institute, June 1970
(Kingston, RI., 1971), p. 164.
119. Richard Young, Hearings, n. 15, p. 195.
120. Metcalf Committee Report, n. 117, p. 17.
121. William Burke, Hearings, n. 15, p. 191.
757
122. Burke, ibid., pp. 193-94.
PAGENO="0764"
123. Metcalf Committee Report, n. 117, p. 17.
758
124. See Jorge Castaneda, "The Concept of
Patrimonial Sea in International Law",
Indian Journal of Inlernational Lat', vol. 12
(October 1972), pp. 538-39.
125. See "Report of the Sub-Committee on the
Law of the Sea" of the Asian-African Legal
Consultative Committee, 12th Session, 18-27
January 1971; Kenya suggested an "economic
zone" of 200 miles for the exclusive exploi-
tation of both living and mineral resources
by the coastal state. Kanjaru (Kenya), Sub-
committee II of Sea-bed Committee, 3 August
1971, p. 10.
126. Njenga (Kenya), Asian-African Legal Consul-
tative Committee, Report of the 13th Session
held at Lagos, 18-25 January 1972, p. 24.
127. Hollis D. Hedberg, in L.M. Alexander, The
Law of the Sea: The United Nations and
Ocean Management, Proceedings of the Fifth
Annual Conference of the Law of the Sea
Institute, 1970, p. 164.
128. Lewis M. Alexander, n. 111, Table 2 after
p. 24; National Petroleum Council, Petroleum
Resources Under the Ocean Floor (Washing-
ton D.C. 1969), p. 73.
129. Alexander, ibid., p. 37; Hyman Orlin, in
Alexander, n. 127, p. 163.
130. Louis Henkin, n. 26, pp. 43, 129.
131. Arvid Pardo, Sea-bed Committee, March 23,
1971, pp. 49-50.
132. See FAO, "Survey of the Present Limits
and Status of the Territorial Sea. Exclusive
Fishing Zones. Fishery Conservation Zones
and the Continental Shelf, with particular
reference to fisheries", UN Doc No. A/AC
138/50, 6 August 1971., p. 17.
PAGENO="0765"
759
REVISITING `THE ARCHIPELAGO'-AN OLD CONCEPT GAINS NEW
I~ESPECTABILITY
J.J.G. Syatauw
TIME causes change in the habitus of the
~ land mass. Islands of an archipelago,
for instance, undergo change as a result
of the conflicting forces of nature. Geo-
morphological processes continuously take
place. Wind, water and weather combine to
shape as well as to erode the habitus of
islands.
To realise what changes have occured
in the islands of an archipelago under the
onslaught of natural forces during the
course of time, periodic visits to the area
concerned are necessary. This can enable
one to map the new configuration of the
islands and determine the gains and losses
they might have undergone in the inter-
vening period.
There is a striking similarity here with
the legal concept of archipelago. This, too,
has undergone change under the impact
of the process of creation and development
of international law. Conceived in the 19th
century,' the concept has since been
subjected to the eroding and establishing
forces of national and international legis-
lative processes. It has been attacked and
defended in turn, and the controversy has
been revived again at the present time
under new and special circumstances. A
renewed visit to the archipelago concept
seems therefore opportune, and might
even reward the bold traveller with new
insights into the nature of a more developed
concept.
The archipelago concept has been
defined in many different ways, ranging
from the general description of "a group
of islands" to that of "a formation of two
or more islands (islets or rocks) which
geographically may be considered as a
whole".2
It is well to keep in mind that the archi-
pelago concept, as used some decades ago in
international law, was borrowed from the
science of geography which had greater,
experience with, and a clearer notion of,
the archipelago. This geographical concept,
then became available to those who, in,
their own field of scholarship, had to deal
with the archipelago but lacked the an-
alytical tools with which to define its nature.
The importance of geography in the
formation of the legal concept of archi-
pelago is therefore clear.3 In fact, several
concepts in the law of the sea (e.g. strait,
bay and shelf) take their geographical
counterpart as the starting point to for-
mulate principles and norms which to-
gether constitute the body of rules now
called the international law of the sea. The
receptive attitude of international legal
scholars-at least before World War II-
without critically examining all aspects of
the question of adoption of a concept
from a different discipline, has partly
contributed to the clashes that now
occasionally take place.
Frankly, there is no reason to condemn
the attitude of international legal scholars.
In the international society of that time,
whose values were derived mainly from the
liberal-democratic tradition4 in which free
trade and intercourse had become a sacred
principle, if not a right, the function of
international legal norms was not to inter-
fere with the free movement of forces, but
merely to prevent the outbreak of inter-
national conflict by setting up a limited
number of prescriptions. There was, there-
fore, no justification for any expectation
that international law would create a
special regime for archipelagos. Moreover,
the majority of states were at that time
solidly land-based, if not continent-based,
and the few island-states and empires
(e.g. Japan and the U.K.) were, for various
reasons, not interested in adopting a
rather special and extreme archipelago
attitude. -
The existence of archipelago, whether
coastal or mid-ocean, did not undermine
the traditional rules of international law
since these archipelagos were not inde-
pendent states and were consequently not
involved in the international law-making
process. They were thus in no position to
PAGENO="0766"
760
state their preference for an archipelago
concept other than that already in existence
and supported by the metropolitan coun-
tries. The latter considered that an archi-
pelago should conform to the regime which
they had adopted for islands in general,
possibly with some small modification to
accommodate the special nature of a
group of islands. In other words, it was
not the number of islands that decided the
nature of an archipelago; other conditions,
such as the historical and political context
of the time, determined the validity of the
archipelago concept.
Even a cursory review of the evolution
of the concept through convention and
custom, state practice and doctrine, seems
to confirm the view that several `other'
non-legal factors were involvcd in the
shaping of the concept.
Such a review leaves the impression
that the archipelago concept has evolved
through at least three stages. In the initial
period the new concept went through all
the difficulties usually encountered by a
newcomer which faces strong resistance by
established forces. Nevertheless, the exami-
nation of early historical precedents pro-
duces some interesting conclusions, though
only of a limited scope.
In the post-World War ii period, major
and rapid changes in international life
affected certain sections of international
law, particularly the law of the sea.
Increasing attention was then given to the
archipelago concept. In fact, the post-war
events accelerated the trend ~of change
that was to be crystallized at the two UN
Conferences on the Law of the Sea in
Geneva in 1958 and 1960.
Finally, the period after the Geneva
Conferences represents the third stage in
the development of the archipelago con-
cept. In this period the trend of change was
continued and even accelerated.
I. THE RELEVANCE OF HISTORICAL PRECEDENTS
To obtain a deeper insight into the
nature of a particular contemporary con-
cept, it is usually necessary and useful to
take note of its historical precedents, their
manner of development, and their contri-
bution to the formulation of a new set of
rules.
Probably the best and concise account
of the development of the archipelago
concept-in particular with regard to the
delimitation of its territorial waters-is
Jens Evensen's paper on "Certain Legal
Aspects concerning the Delimitation of the
Territorial Waters of Archipelagos", writ-
ten as a preparatory document for the UN
Conference on the Law of the Sea in l958.~
This paper gives a chronological and fairly
detailed account of the research done on
the subject and conclusions arrived at by
international bodies and leading writers
on international law. There is ample
evidence that the archipelago concept itself
had already attracted the attention of
international bodies and writers at the end
of the 19th century. However, it is charac-
teristic of this period that answers to
legal problems raised by the archipelago
were sought in a rather exhaustive and
technical debate, on the merits of a 3, 6 or
12-mile zone of territorial waters, a maxi-
mum length for straight baselines of 5, 10
or 15 mile, and the maximum permissible
distance between islands of the archi-
pelago. At times it was a rather unreal and
sterile debate which was put to an end
only by the decision of the International
Court of Justice in the Fisheries Case in
1951. The proposals of the international
bodies on major issues seldom received the
unanimous support of the international
community. The final outcome shows a
great variety of viewpoints ranging from a
denial of existence of an archipelago con-
cept in international law (in particular
with regard to territorial waters), to strong
support for a special status of the archi-
pelago because of its supposedly unique
character.6
It appears that most of the reports,
proposals and projects of the international
bodies and writers were mainly concerned
with establishing or advocating a specific
rule with re~gard to the territorial waters
of archipelagos, coastal as well as mid-
ocean.
However, since the breadth of terri-
torial waters must be measured frcm a
specific baseline, a norm regarding terri-
torial waters presupposes the existence of
another norm determining the baseline
from which these waters should be measur-
PAGENO="0767"
761
ed. The delimination of the baseline in the
case of archipelagos depends, in the first
place, on whether the archipelago is
regarded as one unit, or whether each is-
land of the group is seen as a separate
entity. In the former case, straight base-
hues are usually drawn between points
along the outer fringes of the archipelago.
In the latter case, baselines are fixed around
each island separately. While it is correct
to state that no generally accepted opinion
existed before 1958 with regard to the
extent and delimitation of territorial
waters7, several writers in international
law were of the view that the archipelago
(or group of islands) should be considered
to form `one unit', `a unit in law' or `a
whole'.8
A detailed account of all the issues
involved in the legal status of an archi-
pelago (or group of islands), including
historical, geographical and other aspects,
is found in the written and oral arguments
of the parties (U.K. and Norway) before
the International Court of Justice in the
Fisheries Case (1951). Although these
presentations understandably adopt a con-
tentious style, and particularly with respect
to the method of defining baselines they
differ considerably from one another,9
neither seems to deny the validity and
reasonableness of the one-unit notion of
an archipelago which seemed to be accept-
able to both.
II. TIlE INAUGURATION OF A NEW ERA
A new era in the law of the sea was
ushered in by President Truman's pro-
clamation in 1945 by which the US claimed
jurisdiction over the natural resources of
the continental shelf and reserved coastal
fisheries to US fishermen.'°
Although the proclamation made every
effort to show the limited and reasonable
nature of the claims, it cannot be denied
that the unilateral claim of certain new and
exclusive rights was quickly imitated by
other states. The legitimation of a unilateral
act carries with it the danger of being widely
followed, although often more arbitrarily.
Unintentionally, the Truman proclama-
tion set off a chain reaction in which other
states often came up with even more ex-
tensive national claims. With the benefit of
hindsight it is sometimes questioned
whether it was in fact wise on the part of
the United States to have issued the pro-
clamation and whether it did ultimately
serve the national interests of the United
States.t'
The first change in the traditional
attitude towards the archipelago concept
was effected by the International Court of
Justice. In its 1951 decision in the Anglo-
Norwegian Fisheries Case, the Court laid
down a number of guiding principles
regarding certain matters in the law of the
sea which are equally relevant to archi-
pelagos, particularly those of the coastal
type.'2 The importance of this change
should not be assessed so much by the
deviation from or rejection of what were
until then regarded as general rules of the
law of the sea. It is even more pertinent
to note the reasoning through which the
Court demonstrated how presumably well-
established rules and principles, as con-
tended by the U.K., did not or had yet
not acquired the weight of authoritative
prescriptions. ~3
In fact, there would probably have been
far greater support for the British position,
which claimed the backing of general
international law'4 for its views on different
issues like coastline rule (i.e. the baseline
follows the coastline in all its sinuosities),
territorial waters, the use and the length
of the straight baselines, and the status of
the waters lying inside the baselines, had
these issues been fought in a less unique
case than `that of Norway. As it was, the
Court's refusal to confirm the validity in
international law of some of the British
contentions, and its rejection of "many a
rule which to lawyers trained in the Anglo-
American law system previously seemed
axiomatic",'5 had a far greater negative
impact than was probably realized or
admitted at the time.
The underestimation was in part due to
the curious but also understandable fact
that not only the loser (the U.K.) in the
case, but also the winner (Norway), tried
to play down the significance of the judge-
ment.'6 Norway, being a leading seafaring
and fishing nation, realized that if she
liberally interpreted the Court's decision
regarding the freedom of the coastal state
PAGENO="0768"
762
to determine its own coastal regime, this
might easily backfire. If other coastal states
were to follow her example and extend
their jurisdiction over their sea areas, this
would hurt Norway's interests in freedom
of navigation and fishing near foreign
coasts.
Indeed, both parties seem to have
underestimated the effect of the broad
principles enunciated by the Court's deci-
sion on third parties, particularly in view of
the structural changes in international
society which came about in the years
following the 1951 decision. The Court's
decision has become a catalyst for acce-
lerated change in the attitudes of states
with respect to certain parts of the law of
the sea. Many states saw the decision as a
green light for introducing major changes
in the law of the sea. This is clear from
the comments of some governments to the
draft articles drawn up by the International
Law Commission (ILC).'7
Although the authority of the Inter-
national Court of Justice is not always
explicitly quoted in support, its effect
became even more clear from the subse-
quent exclusive claims advanced by several
states, including-though not only-by
certain newly established states, e.g. by
Philippines, Indonesia, and Yugoslavia with
regard to territorial waters, baselines and
fishing rights.
The Court's strong emphasis on such
considerations as the principle that the
belt of territcrial waters must follow the
general direction of the coast, the close
dependence of the territorial sea on land
domain, the importance of practical needs
and local requirements, geographical reali-
ties and economic interests, all invited
states to raise similar-though not neces-
sarily well-argued--claims in the succeed-
ing years. In particular, the last two
considerations suggest a far greater em-
phasis on non-legal factors in the deter-
mination of territorial waters than has
ever been given in the preceding years.
A further development with regard to
the archipelago concept occurred in the
work of the International Law Commis-
sion which was charged by the UN General
Assembly to prepare a draft convention on
the law of the sea for the Geneva Confer-
ence of 1958. This came at a time when the
Truman Proclamation and the decision in
the Anglo-Norwegian Fisheries case had
already given new impulse to the latent
desire of several states to review or change
some of the rules and principles in the
law of the sea. Wider possibilities opened
by these events did not pass unnoticed..
The matter was raised by the Commission
in its preparatory reports. The Rappor-
teur's statements contained several pro-
posals with respect to archipelagos, but
the final draft of the International Law
Commission omitted any reference thereto.
The 1958 and 1960 Conferences on the
Law of the Sea, for all their excellent work,
did not recognize a special regime for
archipelagos either.'8 In fact, the con-
ferences did not discuss the archipelago-
concept. The pertinent proposals made in
regard to archipelagos were withdrawn by
their sponsors due to lack of support.'9
III. THE TREND CONTINUES
The latest stage in the development of
the concept of archipelago shows an
acceleration of the trend that has been
growing since the 1958-60 Conferences to
deviate from and undermine failry well-
established rules of the law of the sea,
including some major decisions reached at
the Geneva Conference.
During the last two decades an increas-
ing number of states have shown disregard
for what were formerly regarded as estab-
lished norms. Controversial rules have
been given conflicting interpretations.
All this has not only led to the establish-
ment of wide zones of territorial waters
and the setting up of wide fisheries zones,2°
but serious disagreements have arisen about
the width of the continental shelf and the
sovereign rights of its exploitation, the
liability for pollution including the dump-
ing of waste in the oceans, the legal status
of straits (international or other), and a
host of other questions.2' Last, but not
least, the archipelago concept has raised
its head again in recent years after having
been shelved in 1958. It is interesting to
examine to what extent the latest develop-
ments have affected the respectability of
the archipelago concept.
The reasons for the increasing contro-
PAGENO="0769"
versy over certain parts of the law of the
sea in general,22 and of the archipelago
concept in particular,23 are none other than
those which have been responsible for
changing contemporary international re-
lations. sometimes referred to as the
"other" factors.
These include: a) the changing struc-
ture of international society, in particular
the influx of many newly-indipendent
countries from the Third World; b) the
immense growth of technology; c) the
increased concern for national, regional and
global security; d) the necessity to protect
the natural environment; e) the great
struggle for development including the need
of and the search for natural resources.
a) The changing structure of
international society
The general composition of the society
of states in the 1950s is shown by the list
of participants in the 1958 UN Con-
ference on the Law of the Sea of 1958.24
Eighty-six states attended that conference,
representing all parts of the then inter-
national society. When the next conference
on the law of the sea is held in 1974
participating states may be over 140
showing the vast growth in the number of
states during the relatively short span of
fifteen years. The great influx of African
states in particular is worth noting as
appears from the following list:
State Representation at conferences on the
law of the sea25
African States
Asian States
Latin American States
(md. Caribbean)
Socialist States
Western States
As Professor Roling has pointed out26, the
claims to statehood of a new political
entity has been judged and evaluated by the
international society with the help of
certain guiding criteria which have evolved
over the last few centuries. Every significant
influx of new states into the existing inter-
national society puts the latter under pres-
sure and stretches its system of norms (i.e.
international law) in order to accommodate
two requirements: i) the need to attenuate
prevailing principles on state admission
so as to accommodate and justify the type
of new members admitted; and ii) the
inevitable desire of the new members (at
present from Africa and Asia) to be selec-
tive with regard to certain existing princi-
ples and rules which they might regard as
incompatible with their existence or na-
tional interest.
Apart from their number, it is impor-
tant to understand the approach of the
new members of the international society
to international law not only because they
have not previously participated in the
shaping of this law, including the law of the
sea, but also because of the ever-changing
needs and interests of the international
society. Thus, the newly established states
have a different outlook on the function of
the natural environment, including the
surrounding seas and oceans.
(b) The growth of technology
Man's success in the conquest of the
sea and exploitation of its resources has
resulted from his increased capacity to
master the marine areas of the globe with
the help of a vastly improved technology.27
The effect of technology on the law of the
sea can be seen in various developments.
Most notably, states which have been able
to improve their technological capacity in
recent years favour a broader interpreta-
tion of the rules concerning the continental
shelf. This has further added to the relative
uncertainty caused by the ambivalent
definition of the continental shelf formu-
lated by the 1958 conference. Like the
Truman Proclamation,28 such undermining
loosens some of the other kingpins in the
fabric of the law of the sea, and may
further accelerate the trend which has
already set in as a result of the changing
international society.
(c) The concern mvith security
In the case of the law of the sea, the
argument relating to security is one of the
most serious and popular, but also one of
763
1958 1974
6 41
24 41
20 24
10 12
26 29
86 147
23-317 0 - 73 - 49
PAGENO="0770"
764
the most fickle and difficult to evaluate.
The scattered island configuration of
archipelagos entails that defence of the
state and protection of internal security
is even more special and difficult. Threats
to the security of the state and nation can
come from internal as well as external
forces because they are all interrelated.
This applies to archipelago states in
general, but is of even greater significance
to the developing archipelago countries.
As for the internal security, it is impor-
tant to remember that many of the develop-
ing countries are culturally plural societies,
the different ethnic and social groups of
which may have been kept in balance and
at peace during the colonial era, but which
have not in fact become integrated into
the national community.
The achievement of independence did
not always mean the end, but often the
continuation or even escalation-at least
in the initial stages-of the social conflict
between the various groups. Riots,
insurgency, revolution and secessionist
tendencies have been frequent in these
countries, seriously hampering the neces-
sary process of nation-building, and en-
dangering their chances of survival. This
applies to developing countries in general.
But the geographical composition of an
archipelago with many hundreds, or even
thousands, of large and small islands
scattered over an extensive sea area, tends
to perpetuate plurality in the composition
of the population with the inevitable result
that local or regional groups become
tempted to pursue national aspirations.
For this reason, the archipelago is favoured
as a single unit in that it corresponds to the
concept of unitary state to which most
developing countries have expressed their
allegiance. In terms of internal security,
the single-unit archipelago idea leads to
the most comprehensive authoritative
claims over all intervening waters. From the
point of view of security this does not seem
unreasonable especially if the intervening
waters are not excessively wide.
The problems of an archipelago state
become insurmountable if the islands of
the archipelago are far apart and the
intervening waters are wide. Under such
circumstances, the demands of security
necessitate some special jurisdictional po-
wers of the archipelago state in order that
it may fulfil its national defence functions.
Further, there is a close relationship
between internal and external threats to
security. Insurrectionary movements might
solicit and obtain support from neighbour-
ing or distant hostile states or from any
big Power which might feel that its national
interest would be promoted by the demise
of the ruling group. Examples of agents,
weapons and other materials being landed
stealthily or even openly-but often un-
challenged-on urguarded coastlines for
the benefit of local insurgents are
numerous.29
The military uses of the sea may also
represent an external direct threat to the
security of a nation, especially an archi-
pelago state. For various reasons, the
ocean has now become a frontier for new
activities and an arena for confrontation
of the world's navies. The Atlantic Ocean
has been a place of naval confrontation
for a long time, but recently the Caribbean,
the Mediterranean and the Indian Oceans
have become hot spots of the globe. In
particular, the increased importance of the
submarine as a major strike force, often
capable of travelling for long periods in
submerged state and carrying missiles with
nuclear warheads, has led to the growing
concern among ocean-surrounded archi-
pelagos. Such submarines are capable of
entering, whether legally or illegally, and
hovering in the waters of an archipelago.
The recent mysterious affair of a strange
submarine which entered and later escaped
from the waters of a Norwegian fjord3°
holds a warning to archipelago states or
states with deeply indented coastlines or
coastal archipelagos and demonstrates the
stark reality of the dangers of submarine
activity. The practice of testing nuclear and
other sophisticated weapon systems on the
high seas is an additional hazard. Although
this testing has somewhat abated, it still
continues.
Finally, the ocean has increasingly
become a popular dumping ground for
radioactive and other harmful wastes.
While these activities have been carried
out on or near the suface of the sea,
great concern has recently been caused
PAGENO="0771"
765
by facts which have become known about
the military uses of the deeper regions of
the ocean space as a result of man's
increasing technological capability to pene-
trate the greater depths. While some of
these activities may be concerned with
pure scientific research and not directly
connected with or relevant to military
purposes (if that is at all feasible today),
other activities are clearly of military
significance and intended to build up or
improve the defence or strike capabilities
of the super-Powers. Increased under-sea
activities, including the establishment of
storage bases and launching installations
for nuclear missiles and the use of deep-
diving submersibles, further stress the
military-strategic significance of the deeper
ocean space.3'
Mid-ocean archipelagos, situated in the
midst of the wide oceans, are therefore
caught up in the naval activities of con-
tending forces in the ocean space around
them. Wjth the exception of unauthorized
activities in territorial or inland waters of
coastal states, the justification of the naval
states has been that the freedom of the sea
should be interpreted in such a way as to
allow them reasonable use of these ocean
expanses and the designation of warning
areas,32 or for temporary use for military
purposes.33 Whatever the legal value of
these arguments, one thing is clear, namely,
that the conditioning factors have altered
considerably today. New developments
may change the trend of decision and
should certainly do so.
(d) The protection of the natural en vironment
A further argument, seen as relevant
at least by the archipelago states, is the all-
encompassing environmental issue.34 To-
day it is being realized more and more
that mankind cannot make unlimited use
of the human environment with impunity,
nor allow it to be polluted without having
to pay a heavy-though belated-fine,
namely, the eventual destruction of all
human life.
The maintenance of ecological equili-
brium is thus a problem of global magni-
tude. *At the international level it will
require the comprehensive and co-ordinated
efforts of all states. Nationally, it will need
tl~e full authority and combined resources
of each state, first to call a halt to the
environmental pollution and then to main-
tain the tenuous ecological balance.
The seas and oceans, crucial elements
of the natural environment, have been
traditionally regarded as unlimited stores
of organic and inorganic resources. At the
same time, they are used as seemingly
bottomless dustbins for all the refuse and
waste that man wants to dispose of, e.g.
city garbage, industrial including nuclear
waste, and all tanker spillage. The deterio-
ration of the marine environment has been
sufficiently registered by recent research
reports.35
In addition, mishaps with great risks
to environmental pollution have occurred,
(e.g. collisions between oil tankers, acci-
dents with planes or submarines carrying
nuclear weapons) and their frequency will
probably increase in the near future.
In terms of environmental control, these
considerations appear to confirm and
strengthen the necessity to look at the
archipelago as one unit, not only in
geographical but also in environmental
and, therefore, legal, administrative, and
economic terms. For an archipelago, the
protection of intervening waters is more
essential than for other states. Any disaster
caused by pollution in or near the partially
enclosed seas of an archipelago would have
a far more disastrous effect on nearby
shores than if it occurred in the open
spaces of the high seas with distant shore-
lines. The responsibility of the archipelago
state in this respect supports the one-unit
concept with wider jurisdictional powers
in the intervening waters as well as in the
waters adjacent to the outer limits of the
territorial sea.
It is important to emphasize the
technological aspect of the problem here.
Developing countries, which do not pos-
sess advanced technological knowhow and
experts with sophisticated monitoring de-
vices, nor have the funds to procure these
instruments, are inclined to defend them-
selves by moving the boundaries of their
jurisdiction further away from their shores
in a desperate attempt to prevent pollution
approaching thier territories. Here, as in
other matters, technical assistance can help
PAGENO="0772"
766
to close the technological gap by providing
the developing countires with devices that
will increase their monitoring capability
and thus temper their urge to extend their
outer jurisdictional limits. This will not be
achieved by exhorting the developing
countries to maintain the traditional rule
of 12-mile contiguous zone for custom
sanitary, or police regulation purposes
for the control of marine pollution. This
seems today neither realistic nor relevant
to meet the challenge of pollution. How-
ever, the creation of a well-organized
international pollution control system in
which developing countries would have a
fair say should ease their concern con-
siderably.
(e) The struggle for development
The relevance of the preceding factors
finds further confirmation in the great
problem of national and international
development which poses probably the
greatest challenge of the post-World War
II period. That this has been recognized by
the international community is also expres-
sed in the UN decisions to proclaim two
consecutive Development Decades.36
If development is taken to mean not
only economic development or growth and
the promotion of material ~vell-being, but
to be equally concerned with the qualitative
improvement of human life-often expres-
sed as `human dignity' or `quality of life'-
then obviously the factors described above
must converge in the development issue.
Notwithstanding the difficulty in defin-
ing the concept of development,37 the
general outline given above shows that
development is a problem of world magni-
tude affecting both developed and the
developing countries. For the developed
states the matter may not be that urgent,
but for the developing countries it is the
major objective and is given the highest
priority. All too often in fact, it is a ques-
tion of survival or in more favourable
circumstances of less poverty and misery.
In their struggle for development the
people of developing countries generally
put their trust in the State which has
comprehensive power and authority as the
central agent for national development.
Development policies for all sectors of
national life-political, economic and so-
cial-are determined and implemented by
the central government which mobilizes all
human and other resources for the purpose.
In this respect, the sea and its resources
can play a relevant and significant role in
the development efforts of the developing
countries, particularly the archipelago
countries, which are blessed with marine
riches in their own backyard.
However, the availability of marine
resources puts a heavy responsibility on
the government concerned. To harness
these resources for its national community,
the government must first prevent their
non-peaceful use by outside forces and
protect them from unlawful appropriation.
Anyone even vaguely familiar with the
economic and military-strategic aspects of
the resources of the sea cannot fail to
recognize the importance of this argument.
In view of the vital role that the sea can
play in providing food for the under-
nourished peoples of developing countries,
of equal importance is the necessity to
prevent the living marine resources from
being polluted, whether by foreign or
domestic users.
The development effort also requires
the setting up of infra-structure such as
transportation and communication, which
is extremely difficult in a state composed of
scattered islands.38 These facts sufficiently
illustrate the predicaments that an archi-
pelago state faces in protecting and
administering an often extensive area
without material and positive means with
which to set up and pursue its development
policies. The one-unit concept of the archi-
pelago would facilitate these tasks con-
siderably.
There is little doubt that the attitude of
developing archipelago countries toward
the law of the sea regarding archipelagos
must be affected by all these factors which
also colour their arguments in their pleas
for the formulation of new norms with
regard to the sea, the seabed and the
oceanfloor. The law of the sea and the
problem of development are inter-
connected. The problem of development
has become a normative issue today and
requires the international community to
commit itself to eradicating poverty in the
PAGENO="0773"
poorer sections of the globe.39
767
IV. EVALUATION AND CONCLUSION
The impact of `other' factors
The concept of the archipelago is not a
novel one. In fact, the problem of the legal
status of a group of islands, whether near
the mainland (coastal archipelago), or
further into the oceans (mid-ocean or
outlying archipelago), has occupied and
intrigued the minds of international lawyers
for many years. However, early opinions
on the status of archipelagos were voiced
mainly by international lawyers of the
Western countries which dominated and
controlled the pre-war world, including the
uses of the wide expanses of the seas. The
law of the sea, including the rules and
principles regarding archipelagos, clearly
reflected the international political struc-
ture of the time.
The present international situation has
led to more general interest in the archi-
pelago concept and to stronger support
for its logical consequences. The most
striking condition of this situation is the
changed international context itself. Pre-
sent discussion on the concept is charac-
terized by participation of the archipelagos
themselves. Many of these countries are
now independent and, therefore, partici-
pants in international decisiomnaking. In
fact, they and not the former metropolitan
countries are the states most directly
concerned in the issue. A quick survey of
present-day states shows that there are
some twenty states which can be called
archipelagos,4° taking the general definition
of a group of islands as a starting point,
while several potential archipelago states
are on the threshold of independence.4'
Moreover, mainland states with deeply
indented coastlines, or with several islands
or island groups before their coast, have
similar though not identical interests in
the issue.
As a result of the influx of many
independent archipelago states, a new and
in our view more relevant distinction
between archipelagos is called for. The
traditional division between coastal and
mid-ocean archipelagos leads, among other
things, to an unnecessarily complex and
anomalous situation in which a mid-ocean
archipelago state itself includes several
coastal archipelagos, e.g. Iceland and
Cuba.42 Moreover, in this view, the single
criterion of their mid-ocean situation ap-
parently justifies the false grouping of such
very diverse types of island groups as inde-
pendent Fiji, Iceland, Indonesia and the
Philippines, together with equally mid-
ocean but dependent archipelagos as the
Faeroes, Cook and Galapagos Islands.43
To what extent the single geographical
criterion of distance, used in the coastal-
mid-ocean division, would also be able to
account for the obvious differences in
interests between dependent and indepen-
dent territories is not clear.44
The coastal-mid-ocean distinction,
which is mainly geographic and of no
political importance, has very limited
value today. At a time when the formula-
tion of international legal rules and
principles, including those regarding archi-
pelagos, is strongly affected by the politico-
legal opinions of newly created states, the
voices of the latter weigh heavily. The
major criterion today should, therefore,
be the political achievement of statehood.
In other words, the most suitable division
would be that of independent archipelago
states and non-independent archipelagos,
or state archipelagos and non-state archi-
pelagos.
This distinction derives its significance
from the existence of numerous archipela-
gos as separate and independent units.
The major criterion is no longer the dis-
tance from the mainland. It is the difference
of interests between archipelagos that are
sovereign, independent states and other
archipelagos-coastal as well as mid-ocean
-whose interests are determined and
protected by the centre of power and
authority on the mainland, making the
archipelago, as it were, a seaward extention
of the mainland.
Independent mid-ocean archipelagos,
such as Fiji, Indonesia and the Philippines,
have different interests, (e.g. with respect to
security or environmental control)* from
those mid-ocean archipelagos which re-
main a dependent part of a sovereign
state, e.g. the Hawaii, Solomon, Gilbert
and Ellice Islands.45 The former, there-
fore, make different demands on the law
PAGENO="0774"
768
of the sea. So too, interests and views of
independent coastal archipelagos, e.g. Bah-
rain, Trinidad and Tobago, differ from
dependent coastal archipelagos, such as
Bermuda. That the independence-
dependence issue is more relevant and
should, therefore, prevail over the coastal-
mid-ocean distinction is further reinforced
by the fact that the interests of archipelagos,
both coastal and mid-ocean, once inde-
pendent, may be very similar, for instance,
with regard to security, environmental
control and development. They will pro-
bably serve these interests best by ap-
proaching the problems from a one-unit
concept.
It will by now be obvious that the law
of the sea with regard to archipelagos
should be, or is already, influenced by
`other' factors, political, economic, tech-
nological and military-strategic. As a
branch of international law, the law of the
sea has always been extremely sensitive to
changing conditions and therefore itself
most susceptible to change. Several con-
cepts in the law have evolved in a way
which clearly shows the force of non-legal
arguments in determining the rule that was
ultimately advocated or adopted. Examples
of such non-legal arguments are to be
found in the debate about the merits of
mare liberian and mare clausum, the
justification of `national' seas, the rationale
of the so-called cannon-shot rule for
territorial waters, and the impact of
technological and economic development
on the concept of the continental shelf.
One could in fact maintain that the
flexibility of the law of the sea, its adapt-
ability to change, and its capacity to grow
with the needs `of a changing international
environment, have been its major strength
and have assured it the general and conti-
nuous support of the international society.46
Future of the Archipelago Concept
Although the legal concept of the
archipelago has been propagated and
supported for quite some time it has not
influenced the course of law to any large
degree. Before the Second World War no
real need was felt and hence no great
pressure was exerted to introduce essential
changes in law to accomodate the interests
of the archipelago countries. Only Recently
has such a need for change become
evident. Discontented with the inadequacy
of prevailing rules, a growing number of
coastal and archipelago states have started
making jurisdictional claims over extensive
sea areas.
It is correct to recall in this respect
that delimitation of sea areas always has
an international aspect and, therefore, its
validity with regard to other states depends
on international law.47 However, this also
begs the question since it is the inadequate
and uncertain state of international law on
archipelagos that has prompted states to
take unilateral steps. The uncertainty of
relevant rules became quite evident in the
Fisheries case in which the `Elnited Kind-
dom relied heavily on the argument that,
her position against coastal archipelagos
in regard to the measurement of their
territorial waters from straight base-lines,
was supported by general international
practice which, in her opinion, was ob-
viously clear, unambiguous and binding.
But the Court rejected in no uncertain
terms the British contentions.48 While
quite resolute in its confirmation of certain
established rules, the Court also stressed
the underdeveloped nature of the law of
the sea on this point, as well as the com-
plexity of the entire archipelago issue.
As we have mentioned earlier, the
situation has since been further complicated
by changes of a political nature. Not only
have many archipelagos now become
independent, but the frontiers of these
new states do not always coincide with the
geographical boundaries of their archipela-
gos. In fact, some archipelagos have been
broken-up into two or more independent
states. The Caribbean situation, in parti-
cular, has become very complex.
The absence of clear norms relating to
archipelagos has forced international law
to look for guiding principles from related
concepts, such as bays, islands, territorial
waters, internal waters and, most of all,
the fundamental but much-abused prin-
ciple of the freedom of the seas which
includes freedoms of navigation, com-
merce, communication, fishing and scien-
tific research. But the problem is that some
of these principles are themselves contro-
PAGENO="0775"
769
versial and conflicting. This becomes evi-
dent when we exmaine the `cardinal
principle of the law of the sea', namely,
the freedom of the high seas,49 which, it is
said, serves the mutual interests of all
states. This may have been true in the
past but the present international situation
hardly warrants such a belief. Indeed,
man's freedom to exercise certain activities
on the high seas, or even on land, has
clearly had a strongly adverse effect on the
marine environment50.
A major argument in favour of the
freedom of the sea is the need for freedom
of navigation for ships of all nations.
This is an outflow of the liberal idea that
freedom of communication serves the inter-
national community as a whole and is,
therefore, advantageous to all nations,
maritime or non-maritime. As Colombos
once put it: "The principle of the freedom
of the seas.. . goes to make for progress
and peace in the world."5' However, the
structure of international trade and inter-
national transport, of which transport by
ship is still the most important element,
is under strong attack today. This structure,
it may be pointed out, perpetuates the
monopoly position of the most powerful
trading and shipping nations which, there-
fore, have a vested interest in the freedom
of the seas. The same is true of fishing
with distant-water fishing fleets. The
otherwise admirable principles of the free-
dom of the sea, and freedom of competi-
tion, are at present anything but beneficial
to the economically weak developing
nations which, in the competition, inevi-
tably hold the losing cards.52
Although present international law
still does not provide clear and well-estab-
lished rules regarding archipelagos, appre-
ciable development relating to the concept
has undoubtedly taken place during the last
twenty years. In the first place, there has
been more state practice in regard to the
archipelago concept simply because there
are now more archipelago states. There
can be no doubt that their practice will
have considerable bearing on the further
development of the law on subject.
Although only a few archipelago states
have actively formulated and defended the
archipelagic claims until now (mainly
Fiji, Indonesia and the Philippines), the
other archipelago states are fully aware of
the problems and should have no diffi-
culties in deciding where their interests lie
when they will have to commit them-
selves at the next conference on the law of
the sea.
One principle that has clearly emerged
from state practice as well as from judicial
decisions and doctrine is the unity of the
archipelago (the one-unit notion) and the
close relationship existing between the
land and the sea area. The notion of unity
has been further strengthened by the
recognition in the Fisheries Case of the
relevance of `other' factors in determining
the legality of archipelagic claims. In
particular, the importance of environmental
protection and recognition of the develop-
ment needs of newly emerging countries,
would seem to suggest that these objectives
could best be served by acceptance of the
archipelago as one unit, legally, politally
and administratively. One-unit notion im-
plies equal significance of land and sea
territory. Although state authority is today
still regarded as land-based,53 man's
increasing ability to use and abuse ocean
space, and the possibility of making ocean
a human habitat, makes a good case for
the acceptance today or in the future of
land and sea as territories of equal signi-
ficance. The opinion that see area is inferior
to land territory may have to be re-
considered.53
For all these reasons, it is submitted,
all applicable rules and principles should
be interpreted in such a manner as to sup-
port the general principle of the unity of
an independent archipelago. In view of
the forthcoming Conference on the Law of
the Sea the time seems ripe-and that after
about half a century of fruitless efforts-
to anchor this basic principle in a con-
vention, whether or not accompanied by
additional rules and principles. The adop-
tion of the basic principle will have certain
legal consequences. The application of
the law of archipelagos should not dissever
the archipelago (and therefore the authority
of the archipelago state) into two or more
separate entities.55
The same principle of non-disseverance
has in a sense already been confirmed by
PAGENO="0776"
770
the Court's ruling in the Fisheries Case
on the close relationship between sea areas
and the land formations which divide or
surround them. This question may also,
be of major significance to continental
states with dependent islands or island
groups close to their coasts, and for whom
the question of the permissible length of
baselines is vital.
In terms of territorial waters, the unity
principle would imply that the length of
the baselines from which they are to be
measured are secondary to the one-unit
principle. The base-lines need not, there-
fore, have a fixed maximum though they
should as a rule follow the general direction
of the coast. Distant and isolated islands
can be considered as isolated units, parti-
cularly if geographically they are not
natural appendages of the archipelago in
question. If this principle is accepted,
there is no reason for an archipelago state
to claim a wider zone of territorial sea
than is considered legitimate today, i.e.
not exceeding twelve miles.
But, acceptance of a closed system of
baselines around the archipelago neces-
sarily implies that all waters within the
islands would be internal waters, and on
the same level as the land territory so far
as the authority and jurisdiction of the state
is concerned. Archipelago states are free,
however, not to make such extensive
claims but consider these inland waters only
as territorial waters. In such a case, the
major exception to the fullness of sovereign-
ty of the archipelago state in its internal
waters would be the right of innocent
passage granted to other states and
not only to the major sea-faring nations.
There seems to be no reason why such a
right cannot be recognised in waters which,
for all other purposes, are regarded as
internal waters. However, if such a right of
innocent passage is recognized through
internal waters, a clear definition of the
word `innocent' will be necessary in view
of the special claims to this right made by
warships and ships carrying hazardous
materials.56
Acceptance of the right of innocent
passage would suggest that the principle
of the unity of the archipelago cannot be
interpreted so as to give the archipelago
state complete licence to extend the
limits of its national jurisdiction over sea
areas.57 As mentioned earlier, the question
of national jurisdiction over sea areas
always has an international aspect in the
sense that the exclusive interests of the
coastal state should be weighed against the
inclusive interests of other states concerned
and the international community as a
whole.
If the great number and variety of
`other' factors are taken into account,
together with the absence of clear and
applicable rules or principles, the archi-
pelago state must be considered to have
the right, and indeed the duty, to determine
in the legitimate administration of its
maritime affairs the extent of its national
jurisdiction. The major restrictions imposed
on it by international law are-in the still
highly relevant words of Judge Alvarez-
that
it does so in a reasonable manner,
that it is capable of exercising super-
vision over the zone in question and of
carrying out the duties imposed byinter-
national law, that it does not infringe
rights acquired by other States, that it
does no harm to general interests and
does not constitute an abus de droit.58
Admittedly, leaving such a vital ques-
tion as the determination of the extent of
national jurisdiction the discretion of the
individual states, in the interests of flexi-
bility and local considerations, is a risky
matter and, as has been pointed out
quite appropriately by International Court
in the Fisheries Case, "made at a con-
siderable price, the price of certainty and
stability."59 It is submitted, however, that
events since the Fisheries Case have shown
that the realities of international life often
have a more stabilizing effect than is
generally realized. For instance, developing
archipelago states, which give the highest
priority to the problems of national
development, must often restrain their
desire for wide national jurisdiction due to
the necessity to accomodate the interests
of the highly developed industrialized
nations whose cooperation is essential for
the creation of a so-called favourable
PAGENO="0777"
771
investment climate. It therefore seems
appropriate to state that:
(I)t is, of course, quite easy to main-
tain that the standard of reasonableness
is a highly subjective criterion which
cannot lead to a satisfactory solution.
To hold this, however, would not only
deliberately ignore the influence of
practical considerations like reciprocity
by which the balancing process is
affected, but also the fact that history
has shown that states indeed possess an
accommodating ability when attempting
to arrive at a decision.6°
In the meantime, the trend towards
greater acceptability and respectability of
the archipelago concept continues. It is-
significant that the special nature of the
archipelago concept has now been recog
nized and confirmed in various internation-
al decisions.
Thus, the `List of Subjects and Issues'
for the next Conference on the Law of the
Sea mentions `Archipelagos' explicitly.61
The topic will therefore be discussed `as a
separate item: a significant improvement if
compared with the negative response re-
ceived by the concept at the 1958
Conference.
Another development of at least equal
importance is that by Resolution 2750-A
(XXV) of 17 December 1970, the General
Assembly requested the Secretary-General
to co-operate with UNCTAD, specialised
agencies and other UN organisations, in
identifying and studying certain problems
of the law of the sea and their impact on
the economic well-being of developing
countries.
The co-operation between the UN
Secretariat and UNCTAD Secretariat was
further strengthened at the Third
UNCTAD Conference in 1972 which dis-
cussed various aspects of the law of the
sea, in particular those dealing with the
special problems of developing countries
and island countries.62 In other words, the:
existence of archipelago states, particularly
among developing countries, was recogniz-
ed al1d the need stressed for the study of,
the particular problems of these countries.
The involvement of UNCTAD in this
matter is of greater importance than may
appear at first sight, for UNCTAD and
specialised agencies are involved on the
basis of their special expertise and ex-
perience.
It does not seem unfair to state that
many international lawyers have long paid
mere lip service to the importance of the
inter-relationship between legal, and `other'
factors of the law of the sea. The Inter-
national Court of Justice set a good
example in explicitly stressing this inter
relationship although it was not able to
deal exhaustively with the issue within the
limits of its judgment in the Fisheries
Case. The UN has taken the interrelation-
ship seriously and has referred the econo-
mic aspects of the question to those
experts who are professionally most able to
deal with them and advise the international
lawyers in this regard.
This laudable co-operation between
international lawyers and the non-lawyers
of UNCTAD and specialized agencies
may not necessarily facilitate the develop-
ment of international law. The over-
lapping of competence of these various
organs may also lead to a conflict of
competences. The main point, however, is
that the deeision to involve UNCTAD
can hardly be questioned or criticized since
the task of evaluating the impact of
economic, geographical and other factors
on marine activities extends beyond the
intellectual horizon of the traditional
international lawyer, however great his
expertise and scholarship.
Here is an opportunity for scientists and
other experts to realise the often suggested,
but generally neglected, idea of multi-
disciplinary or interdisciplinary co-opera-
tion. While the problems of setting up
interdisciplinary co-operation are momen-
tous and must not be underestimated, the
need for an interdisciplinary and compre-
hensive approach is very urgent and fully
justifies the call made on the scientists and*
experts, particularly those engaged in the
activities of UN, UNCTAD, and other
specialized agencies. It will certainly pro-
mote the further development of the
archipelago concept.
PAGENO="0778"
Footnotes
1. At the Hamburg meeting of the Institut de
droit International in 1889, Mr. Aubert of
Norway presented a report on the special
conditions of the Norwegian coast for the
delimitation of territorial waters. Annuaire
de l'Institut de droit international, Vol. 11,
(1889), pp. 136-147.
2. Evensen, Certain Legal Aspects concerning the
Delimitation of the Territorial Waters of
Archipelagos, UN Doc. No. A/Conf. 13/18,
(1957), p. 290
4. On the "laissez-faire" attitude in international
law, see W. Friedmann, "The Reality of
International Law-A Reappraisal", in Colum-
bia Journal of Transnational Law; Vol. 10,
(1971), p. 59, B.V.A. Roling, International
Law in an Expanded World (1960), pp. xi, xv.
5. See note 2.
6. For an extensive account of the pros and
cons of the archipelago concept, see the
contentious arguments of the UK and Norway
in the Fisheries Case, ICJ Pleadings, (1951)
vol. I-TV.
7. Evensen, note 2, p. 294.
8. Ibid.
9. Note 6.
on the Regime of the High Seas, vol. I, ST/
LEG/SER. B/i, (1951), pp. 38-39.
11. For such a critical reaction, see Chapman in
Alexander (ed.), The Law of the Sea, (1967),
p. 125.
12. Supra note 2, p. 300.
13. See Evensen, note 2, pp. 300-301.
14. Until the Fisheries Case of 1951 the British
position seems to have been traditional and
generally applicable but not flexible enough to
deal with such special cases as that of Norway.
See Evensen, "The Anglo-Norwegian Fisheries
Case and its Legal Consequences", American
Journal of International Law, Vol. 46 (1952),
pp. 609-630 at 629-630; but cf. Johnson, "The
Anglo-Norwegian Fisheries Case,"International
and Comparative Law Quarterly, Vol. 1 (1952),
pp. 148-150. See also Verzijl, "Territorial
Controversies before the International Court
of Justice," Neth. mt. L. Rev. Vol. 1,
(1953-1954) pp. 252-268.
18. Syatauw, Some Newly Established Asian States
and the Development of International Law,
(1961), pp. 198-99.
19. Ibid., p. 186 (note 234).
20. See Brown, "Iceland's Fishery Limits: the
Legal Aspect", 29 The World Today Vol. 29,
(1973), pp. 68-80. Recently Morocco extended
her fishery limits from 12 to 70 miles, Inter-
national Herald Tribune, 4 April 1973, p. 1,
col. 1.
21. Cf. British Inst. of mt. and Comp. Law, mt.
Law Series No. 3, Developments in the Law of
the Sea, 1958-1964 (1965).
22. The well-known speech of Ambassador Pardo
of Malta in the UN General Assembly in 1967
gives an excellent review of the changing con-
ditions which affect the law of the sea in the
present time, Dept. of Information of Malta,
Malta's Plan for the Sea-bed and Ocean Floor
(1968).
772
3. For the great importance attached by inter-
national law to the geographical aspects of the
archipelago concept, see e.g. the Norwegian
and British views in the Fisheries Case, IC]
Pleadings, Vol II, (1951), p. 517; and the Court's
opinion that "geographical realities" dictated
a solution in which the coastal archipelago is
considered a whole with the mainland. IC]
Reports (1951), p. 128. Also, Colombos' state-
ment that "Whether a group of islands forms
or not an archipelago is determined by geo-
graphic conditions, but it also depends, in some 15 Ibid 630
cases, on historic and prescriptive grounds",
Colombos, International Law of the Sea, (1954), 16. mid
p. 91. For a detailed discussion of the geo-
graphical and legal aspects of delimitation
problems in archipelagos, see Hodgson and
Alexander, Towards an Objective Analysis of
Special Circumstances, Law of the Sea Insti-
tute, Univ. of Rhode Island, U.S.A. (1973).
17. Note 2, p. 294.
10. UN Legislative Series, Laws and Regulations
PAGENO="0779"
773
24. See for complete list "Final Act of the UN
Conference on the Law of the Sea," UN
25. The number of participants in the 1974 Con-
ference is based on the present (1973) list of
UN Membership plus non-Members of the
UN who participated in the 1958 Conference,
as well as those non-Members likely to be
invited to the 1974 Conference, including the
dual states of Germany, Korea and Vietnam.
(The division of participants is made on a
broad traditional basis.)
26. Roling, n. 4, pp. xv, Ch. ifi, IV, V.
27. E.g. Burke, Towards a Better Use of the Oceans
(1970), Gullion (ed), Uses of the Seas (1968).
28. According to McDougal and Burke, the "chief
impetus for many demands now being made
came from the proclamation by President
Truman on Sept. 28, 1945", McDougal and
Burke, note 23, p. 4 n. 636.
29. E.g. the occurrence of such events in Congo,
Cuba, Indonesia and the ?hilippines during
the last two decades.
30. See International Herald Tribune, 30 November
1972, p. 1, col. 2.
31. For an extensive discussion of the military
interests in the development of national ocean
strategies, see Knauss, The Military Role tn the
Ocean and its Relation to the Law of the Sea,
Law of the Sea Institute, Univ. of Rhode
Island, USA (1971).
32. McDougal and Burke, n. 23, p. 592 n.
33. Ibid at 592.
34. Commoner, The Closing Circle, p. 197;,
Meadows a.o., The Limits to Growth (1972);
"A Blueprint for Survival", The Ecologist,
Vol. 2 (1972).
35. Ruivo (ed.), Marine Pollution and Sea Life
(1972).
36. However, for some critical comments on the
Development Decades, see Seers, "The Mean-
ing of Development", International Develop-
ment Review, (1969), p. 6.
38. This problem has been recognised by UNCTAD
in its Resolution 65 (III) on "Developing island
countries".
39. See Friedmann, n. 4, p. 56; and Lasswell,
"The Relevance of International Law to the
Development Process," Proceedings of the
American Society of International Law, 1966,
pp. 1-8.
40. The following countries could be considered
archipelago states although they may not
necessarily make such a claim themselves:
Bahrain, Barbados, Cuba, Cyprus, Fiji, Ice-
land, Indonesia, Jamaica, Japan, Madagascar,
Malta, Mauritius, Nauru, New Zealand,
Philippines, Singapore, Sri Lanka, Tonga,
Trinidad and Tobago, and West Samoa.
41. Potential archipelago states-now still depen-
dent areas-are some island groups in the
Caribbean (e.g. Bahamas) and in the Pacific
(e.g. New Hebrides, Solomon Islands, Gilbert
and Ellice Islands); see Sulzberger, "Falling
Back on Confusion", Int. Herald Tribune,
9 March 1973, p. 9,andBrookfield, Colonialism,
Development and Independence, (1972), pp. 1-3.
42. See Evensen, ii. 2, pp. 295-298.
43. Cf. Ibid, pp. 295-299.
44. Evensen, n. 2, does not give any attention to
this problem of different interests either.
45. Fiji is a striking example to this effect. In the
pleadings before the ICJ in the Fisheries Case,
the UK referred to the situation in Fiji which
was at the tithe still a British dependency.
Today Fiji-an independent archipelago state-
has adopted a position that differs considerably
from the previous one. See statement of Fiji,
as observer, in the Seabed Committee on
26 July 1971.
46. Cf. Hudson, "The Thirtieth Year of the World
Court", American Journal of International
Law, Vol. 46(1952), p. 30; and Evensen,
n. 14, p. 630.
47. IC) Reports 1951, p. 132.
23. For a discussion of the archipelago concept
("rugged and complex coastal configurations")
in the light also of non-legal factors, see MS. 37 Ibid at 2-3
McDougal and W.T. Burke, The Public Order
of the Oceans, (1962), pp. 398-419.
48. Ibid. pp. 130-131.
PAGENO="0780"
774
49. Sorensen, "Law of the Sea," International
Conciliation, No. 520, (1958), PP. 198-220.
50. See Ruivo, note 35.
51. Colombos in 34th Report of the International
Law Association (1926), p. 52.
52. See note 38.
53. ICJin Fisheries Case, ICJ Report 1951, p. 133.
"It is the land which confers upon the coastal
State a right to the waters off its coast."
54. People in coastal regions often look at the
sea as being equally important as the land.
From the fishermen of Borneo (Indonesia)
comes the expression: "The sea is my land!"
Moreover, in the Indonesian language the
word for fatherland is `tanah-air' (literally:
land-water) showing a unity which consists of
two equal parts. In this respect it is also
interesting to compare the right of passage
over land territory with the right of innocent
passage over sea territory.
55. In the opinion of the Philippines: "In case of
archipelagos or territories composed of many
islands like the Philippines, the State would
find the continuity of jurisdiction within its
own territory disrupted, if certain bodies of
water located between the islands composing
its territory were declared or considered as
high seas." Yearbook of the International
Law Commission, (1956), Vol. II, P. 13.
56. Syatauw, n. 18, Pp. 180-182. However, Fiji
regards these waters as territorial not internal
waters. Supra note 45. The question of straits
in allegedly internal waters will not be dis-
cussed here.
57. Cf Alvarez in ICJ Reports (1951) pp. 146-150;
Evensen, n. 2. P. 301; Evensen, n. 14, P. 630;
Johnson, n. 14, PP. 179-180.
58. Alvarez, n. 57, p. 150.
59. Johnson, n. 14, P. 162.
60. Syatauw, n. 18, p. 201.
61. Report of the Committee on the Peaceful
Uses of the Sea-bed and the Ocean Floor
beyond the Limits of National Jurisdiction,
G.A.O.R. 27th Session, Suppl. no. 21 (A/372l)
(1972); pp. 142-146.
62. See UNCTAD Resolutions 51 (UI) and
52 (III) on "The exploitation, for commercial
purposes of the resources of the sea-bed and the
ocean floor, and the subsoil thereof, beyond
the limits of national jurisdiction; and Reso-
lution 65 (III) on "Developing island countries."
Doc. no. A/Conf. 13/L58.
PAGENO="0781"
775
* INTERNATIONAL SECURITY AND NAVIGATION
Friedizeim Krziger-Sprengel
A NY plan relating to international
L ~security in the present day world bound
to be affected and governed by the over-
whelming technological and military su-
periority which has been achieved, and is
being increased, by the United States and
the Soviet Union as space Powers and
global sea Powers. The continued im-
portance of their conventional land forces
is due primarily to China's increasing
military strength and the Soviet interest in
maintaining the status quo in Europe and
their hegemony in Eastern Europe. For the
military interests of the NATO-States in
Western Europe, it is the latter aspect
which is of vital importance. However, the
repercussions of worldwide developments
in the law of the sea must be carefully
thken into consideration in Europe as well
as in other parts of the world. The fact that
European states are situated adjacent to thO
Baltic Sea, the North Sea and the Atlantic
Ocean, and that they are dependent on
worldwide sea lines of communication
whose maintenance depends on the free-
dom of navigation, make European states
inescapably interested in the problems of a
new Law of the Sea Conference and new
possible rules for the use of the sea. Some
of the consequences resulting from this
* state of affairs concerning security aspects
and navigation will be discussed in the
following pages.
INTERDEPENDENCE OF SECURITY ON
LAND AND AT SEA
Since the Cuban crisis of 1962, the
Soviet Union realized the importance of
the worldwide deployment of naval forces
and acted by expanding her Fleet steadily.1
It has become increasingly clear that there
is a general interrelation between questions
of international security and the presence
of naval forces and their freedom of move-
ment. The growing weight of naval forces,
the "blue water strategy", is not limited to
the two super-Powers, although to a much
less degree, is also true . Great Britain
and France especially in regard to their
seaborne nuclear weapon systems. It is
significant to note that in the field of dis-
armament and arms control there is a
tendency that measures of detente to be
agreed upon should be restricted to the
land forces. SALT, MBFR and the
military aspects of the CSCE, for instance,
are concentrated on the subject of military
security of land forces and land-based
weapon systems. The objective of dis-
armaments agreements which have already
been concluded concerning military acti-
vities at sea is not to effectively limit such
activities. Such agreements are rather the
effect and result of the increasing presence
of naval forces on the world's oceans.
Their objective is to lay down rules for,
not to prevent, their presence. This is true
of the Sea-Bed Treaty of 1969 which
prohibits the emplacement of weapons of
mass destruction on the sea-bed and the
ocean floor beyond territorial waters, an
activity which none of the parties to the
Treaty intends to pursue anyway. Equally,
the agreement on the prevention of inci-
dents at sea and in the airspace above the
sea, concluded in Moscow in May 1972,
in connection with SALT I, reflects merely
the increasing * "frequency of encounters"
of the naval forces of the two countries.
This agreement provides the rules of be-
haviour required to facilitate the increasing
presence side by side of the opposing
forces without restraining in any way their
increasing presence. One fails, therefore,
to understand why the other sea Powers
do not follow suit. It is true that the US-
Soviet agreement on offensive weapons,
which was also signed in May 1972, limits
the number of submarines carrying nuclear
weapons. This agreement does not, how-
ever, preclude the qualitative improvements
of seaborne nuclear weapon systems plan-
ned by the two signatory powers.
The publication of the military ques-
tions discussed in the preliminary talks held
in Helsinki in preparation of a CSCE-
announcement of exercises and movements
of troops and mutual exchange of exercise
PAGENO="0782"
776
observers-and the subject and proceed-
ings of the MBFR exploratory talks in
Vienna, indicate that naval forces are
excluded from both projects. On the other
hand, it cannot be ignored that naval
forces are a vital factor in the maintenance
of the global balance between NATO and
the Warsaw Pact.
It is true that the critical relationship
between naval forces and European secur-
ity cannot be seen in striking events such
as the penetration of what was assumed to
be a Soviet submarine into the Norwegian
Sogne Fjord, whose capture might have
affected the preliminary talks which had
just started in Helsinki in preparation of a
CSCE. What is symptomatic is rather the
effort initially to exempt the areas of the
Mediterranean and the North Sea and
Baltic from arms control and disarmament
measures, an effort which was also favour-
able to the Soviet interests in the field of
maritime strategy. The desire of the West
to have the Mediterranean area exempted,
was countered by the Soviet argument that
the balance of forces in Central Europe
must be judged in the light of the naval
forces deployed on the flanks. This makes
it clear that the interdependence of mari-
time strategy and international sccurity
Cannot be ignored even in the attempts to
bring about force reductions which are to
be limited to Central Europe, as all Western
and Eastern participants are agreed. This
is all the more true of the impact of world-
wide rules to be agreed for the utilization
of the sea and the sea-bed and ocean floor.
In this respect a randcm coincidence may
be of symbolic significance. Professor
Khlestov, the Soviet expert in international
law, who advocated strongly the freedom
of navigation for warships in straits in the
United Nations Sea-Bed Committee in
1971, was appointed chairman of the So-
viet delegation to the preliminary talks on
MBFR in Vienna.2
SOME GENERAL SECURITY IMPLICATIONS
The contents of Articles 4, 5, and 6 of
the North Atlantic Treaty regard the area
of the North Atlantic Ocean and the Medi-
terranean Sea as a specific protective area
in which armed attacks against one or
more of the parties of the NATO Treaty
in Europe or North America or against
their armed Forces, must be repelled by
common military efforts. As nearly all
parts of the North Atlantic Ocean and the
North Sea are bordered by the coasts of
NATO States, enlargement of coastal
jurisdiction in the Atlantic Ocean could
prove advantageous to the Alliance. But
even for a regional alliance like NATO it
would not be satisfactory to disregard the
worldwide aspects of security and navi-
gation. The Soviet naval power consisting
of four fleets: the Northern, Baltic, Black
Sea and Pacific fleets, has steadily risen
during the last decade. In 1967 the Soviet
Mediterranean squadron became perma-
nent and in 1968 a Soviet naval squadron
appeared in the Indian Ocean. An increase
in power took place in 1971. The average
number of Soviet naval vessels in the Indian
Ocean was reported to range between
seven and eight from 1968 to 1970. These
vessels came from the European fleets via
the South African Cape route or from the
Pacific fleet through the Strait of Malacca
route. In response to these developments
the North Atlantic Assembly-a non-
governmental organisation representing
members of the parliaments of the NATO-
States-recently drew attention to the sea
areas "Outside the NATO Area". It was
stated in a "Report on the Soviet Mari-
time Threat"3 that the southern boun-
dary of NATO in the Atlantic, the Tropic
of Cancer, was fixed as a limit to the area
of guaranteed defence by the North
Atlantic Treaty at a time-i 949-when this
was the operational limit of Soviet sub-
marines. The whole situation bad now been
transformed by Soviet naval developments
and deployments. It was recommended
that defence planning and surveillance
should be carried out beyond the named
boundary for meeting the possible threat
to conveys coming from the Indian Ocean
up through the South Atlantic. The report
also suggested that thought should be given
to maintaining a permanent co-operative
Western naval presence in the Indian
Ocean to counterbalance Soviet influence
in this area. At present the British mari-
time presence in the Indian Ocean helps
to balance to Soviet forces.4 It would be
perhaps be too farfetched to conc1~ide that
PAGENO="0783"
777
the maritime interests of NATO are in
process of broadening. But with respect to
security and navigation, the result of
NATO's reaction to the worldwide deploy-
ment of Soviet forces might be a general
increase in its interest in maintaining the
freedom of the high seas and in making
efforts to limit the extension of territorial
waters by coastal states.
The similarity of Soviet and United
States' attitudes on security and nagivation
can be derived from the fact that both
rely on sea based defense postures. The
Soviet perceptions of Western naval aims
have been recently described by B. Tep-
linsky from the Moscow Institute of the
United States.5 Teplinsky criticized the
possible "broadening of the framework of
the North Atlantic Treaty" and a mari-
time strategy which emphasized the global
utilization of the world ocean. Teplinsky
also referred to the "questions involved in
the creation of a global system for the
observation, detection and identification
of underwater objects"6 and to an overall
comprehensive surveillance system based
on the passive and active hydro-acoustic.7
In spite of conflicting interests in
regard to details, one can say that basically
the two super-powers agree that, as far as
navigational interests are concerned a
solution should be found along the lines of
existing freedom of navigation.8 This does
not exclude further arms control agree-
ments like the Moscow Interim Agreement
which seeks to limit ballistic missile laun-
chers on submarines (SLBMS).
CONFLICTING TRENDS
Two conflicting trends are evident.
The maritime powers and the majority of
industi~ial nations want to maintain the
principle of freedom of the seas, a prin-
ciple that has been recognized since the
time of Hugo Grotius. In addititon to the
disputed freedom of fisheries, this principle
includes, in particular, the freedom of
navigation for merchant ships, publiC
vessels and warships. The freedom of
navigation for warships is a matter oç
high interest to both the United States
and the Soviet Union because it enables
them to maintain and expand their defense
postures which are based on the world-
wide presence of their naval forces.9 The
United States can maintain communica-
tions with its overseas naval bases and
honour to approximately 45 overseas
commitments, only through secure sea
lines of communication which are inde-
pendent of the influence of third Powers.
Moreover, both super-Powers need free
navigation for their submarines carrying
nuclear weapons, which are the hard core
of the balance of deterrence. An improve-
ment in the range of seaborne missiles
may mean that navigation would be no
longer that vital in certain straits and near
coastlines, but it would always remain
essential to use the off-shore sea-bed for
active and passive antisubmarine warfare.'°
The security interests of the super-
Powers are counter-balanced by the in-
terests of a number of coastal countries
which have extended their jurisdiction over
the sea, including the sea-bed, beyond the
traditionally accepted zone of 3 nautical
miles. The arguments forwarded in justi-
fication of such claims, which have by now
been extended to maritime zones of up to
200 nautical miles, are economic interests,
protection of the marine environment and
also national security interests. They are
particularly interested in controlling the
movements of foreign submarines carrying
nuclear weapons in coastal waters. The
fishery dispute between Iceland on the
one hand and the Federal Republic of
Germany and the United Kingdom on the
other, initiated by Iceland's claim for
national rights in a seaward, zone of up to
50 nautical miles, shows how strongly the
FRG is directly affected by international
developments. There is no doubt that a
new conference on the law of the sea,
which the United Nations have announced
for 1974, will grant the coastal countries
the right to claim a territorial sea at
least up to 12 nautical miles a claim which
is made by most of the countries even
now." The existing rights of the coastal
countries in the continental shelf will also
be extended. This trend implies a host of
problems resulting from an intensive utili-
zation of extensive off-shore waters for
civil and military purposes.
The most important problem from the
point of view of security relates to the
PAGENO="0784"
778
future rules of navigation for warships. To
illustrate the interests involved, it may be
pointed out that the cost of one single
submarine of the future Trident type
submarines of the United States will be
equal to the total annual earnings of the
American fishing trade. The decision to
adopt such a seaborne weapon system is
bound to lead to support for the conti-
nuation of unrestricted freedom of navi-
gation. The fact that the United States and
the Soviet Union cling to the principle of
free navigation in straits becomes parti-
cularly understandable when we remember
that a general extension of the territorial
sea to 12 nautical miles would suffice to
change the status of more than 120 straits
all over the world in favour of the respec-
tive littoral countries.12 Although accord-
ing to the current law of the sea warships
have the right of innocent passage through
straits, the decision on whether or not a
passage is innocent is left to the discretion
of the coastal country concerned. So the
coastal countries might be tempted in
times of crisis to impose restrictions on the
navigation through straits for the passage
of submarines carrying nuclear weapons or
of foreign warships. For this reason the
United States tabled a draft convention in
the United Nations Sea-Bed Committee in
August 1971.
This draft provides that a high sea
corridor should be established where
straits would be closed by territorial waters
in the event of the territorial sea being
extended to 12 nautical miles. Within that
high sea corridor the right of free naviga-
tion and overflight should continue to
apply without any restrictions. The draft
is based on the consideration that in the
light of the existing power constellations,
any attempt to restrict the present rights of
passage of the two super-Powers would
result in a dangerous situation which
would be "like creating ten, fifteen, twenty
Berlin co~idors."13
FREE PASSAGE THROUGH EUROPEAN STRAITS
In the North Atlantic Ocean and in the
Mediterranean about twenty straits would
be subject to such an arrangement. But
since most of the coastal countries in these
areas are members of NATO the envisaged
innovation would not make much differen-
ce for the NATO navies. On the other
hand, high sea corridors would mean
guaranteed passage for the warships of the
Warsaw Pact countries, for instance in the
Strait of Dover or in the Fehmarn Belt.
But looking at conditions in the various
European straits a bit closely, we find that
it is hardly possible to conceive of an-
other approach.
A subject of keen interest for NATO
is the Strait of Gibraltar. However, since
Spain claimed a territorial sea of a breadth
of 6 nautical miles, it has already been
closed by Spanish territorial sea. This
takes care of the Spanish possession of
Ceuta on the African coast of the straits.
In accordance with her commitments to
the United Kingdom and others, under-
taken as early as 1910, Spain generously
permits passage through the strait. How-
ever, the United States, claiming that the
three mile territorial sea zone is valid law
pending a new arrangement, denies in
principle that Spain is entitled to restrict
or bar passage through the Strait. The US
refuses to concede either to Spain or to any
other country the right to be the toll-
keeper of any strait.14 In the case in
question, the military interests are evident.
In the opinion of the United States,
control over the logistic support of the
Sixth Fleet and the deployment in the
Mediterranean of submarines carrying
nuclear weapons, must not be dependent
on the decisions made by the government
of a foreign coastal cour~try. It is argued
that this is also in the national interest of
such a coastal country which might be
exposed to considerable foreign or domestic
pressures for or against the granting of a
passage in times of crisis.'5
These general considerations apply to
the English Channel as well, which, in
case the territorial sea is extended to 12
nautical miles would come under joint
British and French regime. The Soviet
Union and the United States have already
come to an agreement on this problem.
The Soviet interest in free passage under
the agreement will have to be respected
in the future as at present. On the US side,
the interest in a worldwide arrangement
with the Soviet Union on a bilateral basis
PAGENO="0785"
779
concerning their navigation interests has
proved stronger than its (US) ties to its
NATO allies whose naval forces cannot be
compared in their strategic importance
with the U.S. forces.
WESTERN BALTIC
So far as conditions of navigation in
the Baltic are concerned, here too the
continuation of the status quo would be
regarded as desirable by all concerned. If
the German Democratic Republic (GDR)
were to make use of its right to extend its
territorial waters the waters of the Western
Baltic off the Mecklenburg coast would be
blocked by the territorial waters of Den-
mark and the GDR. In accordance with
Soviet practice the relevant domestic
provisions of the GDR would require a
permit to be obtained prior to each transit
of a warship.
It will not be surprising if in future
talks the GDR introduces the subject. of
the status of the Baltic as a whole with a
view to restricting primarily the freedom
of movement of warships of the NATO
countries. In the GDR handbook on the
law of the sea-published in 1972 in the
"Militarverlag"-it is pointed out, in
consonance with the mare clausum dOc-
trine adhered to by Soviet international
law, that the Baltic must be kept free from
the repercussions of the NATO strategy.
In view of such a basic attitude one
wonders whether transit permission would
be granted to a NATO naval vessel which
wants to take part in a military exercise
in the Central Baltic.
For the present the best solution seems
to be to continue the status quo so far as
free navigation for warships is concerned
irrespective of the possibility of extending
the territorial sea.
NATIONAL AND WORLDWIDE SECURITY
The entire complex of problems con-
cerning the freedom of naivgation for
warships shows how closely the regional
and global security are interlinked. The
GDR cannot accept any solution for the
Baltic which would not make full allow-
ance for the Soviet maritime interests in
this area where 50 percent of the Soviet
shipyard capacity are concentrated. BOth
the FRG and NATO collectively will,
of course, have to consider the interests
of the US maritime strategy. That brings
us back to the relations between the two
super-Powers. Nevertheless, experience
shows that major international projects
such as the proposed conference on the
law of the sea or the CSCE always en-
courage specific arrangements with an
object to improve international relations
on a regional basis making allowance for
the specific conditions prevailing in the
regions concerned.
Footnotes
1. For details see:
David Fairhall, Russian Sea Power, (Boston
1971;
Ernest McNeill Eller, The Soviet Sea Chal-
lenge, (New York 1971), PP. 57-288;
Patrick Wall, "Report on the Soviet Mari-
time Threat," North Atlantic Assembly,
Document p. 119, MC (72) 5 November
1972. This report contains a detailed des-
cription of the Soviet fleets in the different
sea areas.
2. Khlestov strongly defended the Soviet views
during the UN-Seabed-Committee meeting,
held at Geneva, July-August 1971. He stated:
"It was therefore difficult to agree with the
arguments of delegations which were opposed
to freedom of navigation through international
straits on the grounds that it would enable
warships and other vessels to pass unhindered
through the straits and thus pose a threat to
the coastal state." See Summary Records of the
fourth to twenty-third meetings of Sub-
Committee II, UN Doc. A/AC, 138/SC. 11/
SR. 4-23, Dec. 2, 1971.
3. Patrick Wall, Report on Soviet Maritime
Threat, n. 1, pp. 13, 43.
4. British White Paper: Statement on the Defence
Estimates, London, Her Majesty's Stationary
Office, pp. 5, 9.'
5. B. Teplinsky, America's Naval Programs,
Survival, March-April 1973, The Intern.
Institute for Strategic Studies, pp. 75-80, and:
USA-Economics, Politics, Ideology, No. 10,
Sept. 1972.
23-3j7 Q - 73 - 50
PAGENO="0786"
6. Ibid., p. 79.
7. Ibid, p. 80.
780
8. 0. Khlestov, "International Problems of World
Oceans," International Life (1973). The article
which gives an excellent summary on recent
developments and prospects of the law of the
sea and the seabed shows in different parts the
general Soviet interest in freedom of navigation,
especially in straits.
9. Friedhelm Kruger-Sprengel, "The Role of
NATO in the Use of the Sea and the Seabed,"
Woodrow Wilson International Center for
Scholarships, Washington, D.C. Ocean Series
Publications No. 3, pp. 34-41.
10. For economic, environmental and military
interest in the Malacca Strait see: Ellingworth,
"Japanese Economic Policies and Security,"
AdelphiPapersNr. 90, London 1972, pp.18-20.
11. Among 138 States, only 30 accept the 3 am
rule. See: "Limits in the Seas, National Claims
to Maritime Jurisdictions," International Boun-
dary Study, Series A, No. 36, January 3, 1972.
12. A map "World Straits Affected by a 12 Mile
Territorial Sea" issued by the Office of the
Geographer in the US Department of State,
named 121 straits.
13. Jared Carter. "The Outlook for the Territorial
Sea and Navigation through Straits and on the*
High Seas" Law of the Sea Reporters, Wash-
ington, D.C. 1972, p. 136.
14. Ibid, p 135
15. Ibicl, pp. 135-137.
PAGENO="0787"
781
THE LATIN AMERICAN VIEW OF THE LAW OF THE SEA
Alvaro de Soto
JT IS surely no more accurate to speak
of a monolithic Latin American view
on the Law of the Sea than to speak of an
African, Asian or European one. How-
ever, the shades of difference in the views
held by Latin American Governments are
far paler than those occuring in other
regions taken as a whole, and any purport-
ed "total identity of views" between states
is worthy of the serious analyst's suspicion.
Agreement on policy between sovereign,
truly independent states is as a rule the
product of compromise. If this is borne in
mind, it is as correct as it ever was to speak
of a regional position, a "Latin American
view" of the law of the Sea, well in the
making, and widely recognised to be so.
* The process of homogenisation of
Latin American views is relatively recent.
It is, in any case, a post-war phenomenon.
When Chile, Ecuador and Peru established
the outer limit of their jurisdiction over
the sea at 200 nautical miles in the late
nineteen-forties and early fifties, there were
only the foreseeable protests by a handful
of maritime powers of Western Europe
and North America.
At the Geneva Conferences of 1958 and
1960, Latin American Delegation voted
straight across the spectrum, and Chile,
Ecuador and Peru were in apparent iso-
lation. The great European scholars of the
first half of the century, if and when they
did not simply ignore the theses put for-
ward by these three countries, depicted
their attitude as that of a lunatic fringe
and, to some extent correctly, did not
identify them with any sort of common
Latin American view.
it is true that in 1958 and 1960 the
Latin Americans were not following the
same voting patterns, and that their state-
ments did not reflect a close proximity of
views. But during the preparatory work
which led to those Conferences, as reviewed
by the General Assembly, and as far back
as 1953, there were symptoms of identity
of philosophical outlook to the law of the
sea and its consideration at the multi-
lateral, i.e., United Nations level. By
resolution 798, of the eighth session, the
General Assembly, based on the premise
that". . . questions related to thehigh seas,
the territorial sea, the contiguous zone,
the continental shelf, and the superjacent
waters are intimately related, both juridi-
cally and physically", set aside a proposal
to give separate, advance consideration to
the question of the continental shelf, prior
to others matters on which the Inter-
national Law Commission was doing
preparatory work and drafting treaty
articles. What is most worthy of note for
our purposes is that resolution 798 (VIII)
was the work of the representatives of
Mexico and Peru in the Sixth (Legal) Com-
mittee of the General Assembly, and that
there was little superficial similarity bet-
ween the views and actions of those coun-
tries in 1958 and 1960.
In retrospect, a comprehensive and
unitary approach to the Law of the
Sea might not seem so revolutionary in the
context of the 1958 aiid 1960 Conferences,
since their purpose was, admittedly, that of
codifying existing international law, which
is to say, giving organic form to existing
law. Setting aside for the present a dis-
cussion as to the validity of all or part of
the 1958 Conventions as international law,
it has been forcefully argued by spokesmen
from countries not parties to the Con-
ventions that these Conventions consti-
tute, for them, international law only in-
sofar as they compile existing customary
law. The significance of resolution 798
(VIII) lies in that it established a practice,
later to be invoked and implemented in the
preparations for the Conference tentatively
scheduled for 1974, as to the manner in
which matter relating to the sea are to be
dealt with in multilateral negotiations:
that is to say, all together, the progress in
one aspect subject to that in all others.
During that same period, that is prior
to the 1958 Conferences and immediately
thereafter, it is reasonable to suppose that
considerable rethinking was taking place
PAGENO="0788"
782
in Latin American Chancelleries and at
other policy-making levels. Obviously, the
decision in favour of wide limits of juris-
diction adopted by Argentina, Brazil,
Nicaragua, Panama and Uruguay were
not taken abruptly, nor can they be
considered as the fruit of a whim. Some
explanation can be found in the rationale
put forward by the parties to the Declara-
tion of Santiago of 1952, as well as by El
Salvador, which incorporated the 200 mile
territorial sea limit in its Constitution.
Surely, the results of the 1958~and 1960
Geneva Conferences must have given Latin
Americans some pall. The lack of agree-
ment on a maximum breadth for the
territorial sea at those Conferences signalled
a considerable step forward for the tri-
partite alliance of the Southeastern Pacific.
Just as the Hague Conference of 1930 was
the final rite for the three-mile rule (as-
suming that it ever existed), a telling blow,
quite possibly fatal, was given to the twelve-
mile rule of yesteryear at Geneva, earnest
resuscitation attempts of late notwith-
standing.
Though it is difficult to dispute the
pioneering role of Chile, Ecuador and Peru,
as well as El Salvador, it would be pre-
tentious to be self-congratulatory. The
early action by these countries was due
principally to their early intimation of the
consequences of not taking that action.
It was realized at an early stage by these
countries that important resources existed
off their coasts which, if neglected, could be
turned as ephemeral as had been the case
in some other areas of the world. A case
in point was the stock of whale off Chile,
which to some extent sparked that country's
resolve, and which was extinguished and
no longer exists today. These Pacific
countries, therefore, acted early because
they became aware of the problems in-
volved and in a very tangible form.
Other Latin American countries, faced,
on the one hand, with a lack of agreement
at the multilateral level, and on the other,
with a significant potential source of
nutrition and revenue off their coasts, and
threatened with the ever-growing prospect
of depredation and to some extent pillaging
by highly advanced fleets from ancient
seafaring nations in Western Europe and
Asia-which bad already largely consumed
the resources close to their own shores-,
took the decision of also going out and
extending their limits on territorial waters
to 200 miles: Nicaragua in 1965, Argentina
in 1966, Panama in 1967, Uruguay in 1969
and Brazil in 1970.
However, some States had not given
up the twelve miles of territorial sea for
dead. Though it has been argued here that
the Geneva Conventions of 1958 were out-
dated even before they came into force,
these revivers,, particularly the United
States and the Soviet Union, did not want
to update them, but rather set back the
clock. Some time during 1967, the Soviet
Union and the United States began consul-
tations in earnest on the matter of the
breadth of the territorial sea and passage
through straits, as well as the question of
fisheries. As a result of those consulta-
tions, those two Powers, each on its own,
circulated a draft treaty of three articles,
first to their closest allies, then to most of
the members of the United Natiofis. The
texts of the first two of these articles are
well known, having been submitted by the
United States to the United Nations Sea-
Bed Committee at its August 1971 Session.
They provide (i) that the maximum breadth
of the territorial sea should be twelve miles,
and (ii) that a regime of free transit should
exist in all straits which would be closed
by the proposed universal establishment of
the twelve-mile territorial sea. The third
draft article, in its original form, recognised
certain preferential rights to the coastal
state over fisheries beyond such a terri-
torial sea, following a species quota
approach.
What is the most important to note is
that an attempt was being made to deal
with some of the key issues of the Law of
the Sea piecemeal and, apparently, outside
the United Nations.
At approximately the same time, in
the autumn of 1967, at the twenty-second
Session of the General Assembly, Dr
Arvind Pardo of Malta introduced for
consideration the question of the reserva-
tion exclusively for peaceful purposes of
the sea-bed and the ocean floor, and the
subsoil thereof, beyond the limits of
national jurisdiction. In deciding to create
PAGENO="0789"
783
an Ad-hoc Committee to study the ques-
tion, and, at its next session, creating a
more permanent Committee and request-
ing it to prepare a draft regime for the
sea-bed beyond national jurisdiction, the
General Assembly, obliquely, re-opened the
question of jurisdiction of the coastal State
on the continental shelf, or sea-bed within
national jurisdiction.
In the 1958 Convention on the Con-
tinental Shelf drafted at Geneva, the
question of the outer limits of
sovereign rights of a coastal state was left
somewhat open-ended. Since these sov-
ereign rights extend, according to Article
I, as far as the 200 meter isobath and,
beyond, to where the shelf is exploitable,
they can be interpreted to stretch, in spatial
terms, as exploitation technology develops
to greater depths. Though this is disputed
by some, on the ground that the Conven-
tion also contains the notion of "ad-
jacency", there are no great obstacles to
admitting a plausible division of the ocean
floor at the imaginary median line which
separates states at the center of oceans and
seas. Indeed, the North and Baltic seas
have been carved up between the coastal
states, and Canada has granted exploration
licences at 2,000 metre depths, about 400
miles from the Atlantic coast.
It is widely held that the articles
referring specifically to the sovereign
rights of states in the Continental Shelf
Convention constitute customary inter-
national law, and are thus applicable as
well to states not parties to the Convention
or, at the very least, support their claims
insofar as they coincide with its provisions.
For the coastal states of Latin America
which have 200 miles of national jurisdic-
tion, the Convention, of course, falls into
the category of res inter alia. For example,
though in the 1947 Decree establishing the
200 miles of sovereignty and jurisdiction
Peru uses the term "continental shelf", it
is also stated that national sovereignty and
jurisdiction extend to the adjacent waters
as well as the ocean floor which underlies
those waters. Thus, it might conceivably
be argued that what is contained in the
legislative provisions of Latin American
200-mile maritime zone isnot the notion of
continental shelf, but rather that of sea-bed
and/or ocean floor within national juris-
diction, which is more comprehensive in
legal terms, since it is not limited to the
purposes of exploration and exploitation
of resources. An exception in regard to the
geographical extent, however, is that of
Argentina, where the geomorphological
continental shelf stretches far beyond 200
miles.
At any rate, we had two parallel devel-
opments, taking place in impervious com-
partments, as it were, but simultaneously:
bilateral consultations between the United
States and the Soviet Union on the terri-
torial sea and passage through straits and
fisheries; and multilateral consideration of
these and other question in a Committee
of the United Nations General Assembly,
on the peaceful uses of the sea-bed and
ocean floor beyond the limits of national
jurisdiction.
Things came to a head about 1969,
when Malta, at the twenty-fourth session
of the General Assembly, introduced a
draft resolution asking the Secretary-
General to ascertain the views of states
on the advisability of convening a con-
ference for evolving a definition of the
limits of the sea-bed lying beyond national
jurisdiction. If this draft resolution seeking
to restrict the scope of the Secretary-
General's inquiry had been passed, it
would have resulted in isolating considera-
tion of crucial question related to limits of
national jurisdiction from other important
problems relating to the law of the sea.
Western European Powers, as well as
the United States, supported the initiative.
A rationale justifying the consideration of
matters of the sea in "manageable pack-
ages" was propounded by the latter.
Separate treatment for separate issues, it
was argued, would be more businesslike
and more efficient and likely to produce
better results.
A group of Latin American Delega-
tions, particularly Brazil, Jamaica and
Trinidad and Tobago, put forward an
amendment to Malta s draft resolution.
The amendment, based on the premise of
juridical and physical indivisibility of all
matters of the sea contained in General
Assembly Resolution 798 (VIII), was aimed
at widening the scope of the Secretary
PAGENO="0790"
784
General's referendum so as to determine
the views of States on the advisability of
convening a Conference not only to deal
with the definition of the limits of the
sea-bed, but also to review the regimes of
the high seas, the continental shelf, the
territorial sea and the contiguous zone,
fisheries and conservation of living re-
sources of the high seas, and in particular
to arrive at the definition of the limits of
the sea-bed beyond national jurisdiction in
the light of the regime to be established
for that area. The amendment, whose
principal spokesman was a new State,
Trinidad and Tobago, was supported at the
outset by a small group of African and
Asian Delegations: Kenya, Tanzania, Sri
Lanka (then Ceylon) and, of course, India.
Gradually, support was obtained, prin-
cipally from developing countries, and this
resulted in the adoption of the amendment
and thence of resolution 2574 A (XXIV).
That resolution set aside totally the
manageable packages approach, which
came to be known as the "straitjacket"
approach. The result of the Secretary
General's consultation, contained in a
report to the 1970 Session of the General
Assembly, confirmed the view held by
Latin American States since the early
fifties, as we have recalled before that all
matters of the sea should be dealt with in
close interrelation. At the twenty-fifth
Session, the mandate of the Sea-Bed
Committee was expanded so as to include
the preparation not only of the regime to
be established for the sea-bed beyond
national jurisdiction, but also to prepare a
list of subjects and issues related to the
law of the sea and draft articles thereon
to be considered at a Conference proposed
to be held in 1974.'
The immediate effect of the adoption
by the General Assembly of an organic
approach to the Law of the Sea nego-
tiations was to force the multilateralisation
of matters which the big maritime Powers
preferred to keep out of the United
Nations. We have taken the liberty of
seemingly straying from the central subject
of this article because we feel that this
approach, favoured strongly today by the
developing countries, bad its origin in
Latin American initiatives and a common
Latin thinking on the subject and it has
some far-ranging effects to which we shall
address later on.
Before dealing with the long-term
effects of the comprehensive approach on
law of the sea negotiations, it would be
pertinent to consider another issue arising
from sea-bed matters and in which Latin
American countries have bad a significant
role. This is the issue of the present legal
status of the sea-bed beyond the limits of
national jurisdiction and, specffically, the
admissibility of exploitation activities in
the area prior to the establishment of an
internationally agreed regime.
Much of the Ad-hoc Committee's time
in 1968 was devoted to dealing with the
question of the legal status of the sea-bed
beyond the limits of national jurisdiction.
The Delegations of some technologically
advanced states took great pains to
prove that the so-called freedom of the
high seas applies, by extension, to the
sea-bed underlying those seas, and that, in
any case, in the absence of specific rules of
international law relating to exploitation
of the area, such activities could not be
deemed as being ultra vires.
Understandably, this reasoning was
totally unacceptable to states which did not
have the technology or capital to indulge
in the exploitation or even exploration of
the sea-bed. A sentiment grew among
Delegations from developing countries
that what was at stake was an area, as yet
un-tapped, which was outside the scope of
present international law. They felt, how-
ever, that it required a genuine effort on
the part of the international community
to evolve a new law for its exploration and
exploitation on the bases of new
approaches.
Hints that it might be advisable to
envisage some kind of an "interim" regime
only stiumulated the concern of developing
countries. They felt quite legitimately that
the very fact that the General Assembly
had by almost a unanimous decision set
into motion the machinery for the estab-
lisliment of an international regime for
the sea-bed beyond national jurisdiction
was evidence of the absence of any rules~
and that, as a matter of fair play and good
faith on the part of all States, the area
PAGENO="0791"
785
should be set aside from exploitation
activities until such time as the regime was
established.
At the twenty-fourth Session of the
General Assembly, a group of Latin
American Delegations, together with Af-
rican and Asian Delegations, put forward a
resolution which was adopted by a two-
thirds majority. It declared that, until such
time as the international regime for the
sea-bed beyond national jurisdiction was
established, "States and persons, physical
or juridical, are bound to refrain from
activities of exploitation of the resources
of the sea-bed and the ocean floor and the
subsoil thereof beyond the limits of
national jurisdiction", and that no claims
thereto shall be recognised.
To be sure, opposition to the resolution
on the part of industrialised states, from
East and West, was extremely strong. The
polemics were acute, and the issue lin-
gered. It decisively infected the negotiations
within the Sea-bed Committee concerning
a Declaration of Principles governing the
sea-bed beyond the limits of national
jurisdiction, which was finally concluded
at the twenty-fifth Session of the General
Assembly in 1970.
It is submitted that the Declaration of
Principles2 quite clearly reaffirms the so-
called "moratorium" on sea-bed exploitá-
tion activities. Paragraph 4 of the Declara-
tion provides that:
All activities regarding the exploration
and exploitation of the resources of the
area and other related activities shall
be governed by the international regime
to be established,
Paragraph 14 lays down:
Every State shall have the responsi-
bility to ensure that activities in the
area, including those relating to its
resources, whether undertaken by go-
vernmental agencies, or non-govern-
mental entities or persons under its
jurisdiction, or acting on its behalf,
shall be carried out in conformity with
the international regime to be
established.
In subjecting activities relating to the,
exploration and exploitation of the re-
sources of the sea-bed to the regime to be
established, it is putting those activities
quite clearly in the future, since, a regime
is yet to be created on the basis of the
Declaration itself.
The Declaration is, without a doubt, a
document of singular importance, and
potentially a historical break-through. Its
main theme is the notion that the sea-bed
and the ocean floor and the resources
thereof, lying beyond the limits of national
jurisdiction, are "the common heritage of
mankind".
Many interpretations have been given
to this concept. A certain flexibility is
contained in the Declaration itself. Other-
wise, it is doubtful if it would have obtained
unanimity3. Indeed, though the Declara-
tion expressly provides for the establish-
ment of an international authority, some
states have made proposals for more
licensing systems which would basically do
no more than facilitate and give some
order to access by technologically advanced
firms and states severely curtailing parti-
cipation of developing countries.
Regarding the contents of the regime,
and the fundamental significance of the
concept of "common heritage", Latin
American countries hold most definitive
views which they put forward at the
earliest stages of the deliberations of the
Sea-Bed Committee. They feel that the
concept of "Common heritage" implies
the notion of a trust, need for an inter-
national authority to manage that trust,
and adequate participation of all states
not only in the benefits, which would
accrue from exploitation of the resources
of the area, but also in the exploration and
exploitation activities. The thirteen Latin
American countries have cosponsored a
draft treaty ofl the subject in the Sea-Bed
Committee,4 proposing that an inter-
national authority be set up as the sole
entity, public or private, empowered to
carry out exploitation activities in the area
of the sea bed beyond the limits of national
juruisdiction.
The international authority suggested
in several other proposals would have three
standard organs, viz, an "assembly" or
plenapr body composed of all the members,
PAGENO="0792"
786
responsible for long-range policy ques-
tions, a smaller "council" composed of
only 35 members, which would meet more
frequently than the assembly and hold
executive powers, and a secretariat. In
addition to these three organs, an "enter-
prise" composed of a reduced number of
highly qualified individuals would act as
the day-to-day contracting and executive
arm of the council. Its work would be
subject to the Council's periodic ratifica-
tion. The council in these schemes would
be constituted in accordance with establish-
ed criteria for equitable geographical dis-
tribution. Latin American countries feel
that introduction of any weighted-vote
standards, or repetitions of models such as
that of the Security Council, plagued by
the power of the "veto" in the hands of a
few, would distort the fundamental aims
of the principle of common heritage en-
shrined in the Declaration of Principles,
and tend to congeal the present imbalance
between developed and developing coun-
tries, instead of redressing it.
The Latin American proposal has been
described as little more than a dream by
its detractors. The principal though un-
spoken difficulty that technologically ad-
vanced states have with it is that it would,
in effect, tend to break their monopoly
over sources of capital as well as of
resources. It is shrouded in their main
argument put forward against an appa-
rently autonomous authority. They point
out that it would require vast quantities of
capital and technology and give rise to a
monstrous bureaucracy.
However, the draft recognises these
potential problems, and has tried to meet
them by proposing that the authority be
empowered, through the enterprise and
subject to the council, to enter into
assoiation or start joint ventures with
private or state-owned firms wishing to
engage in exploitations activities. Thus,
inspired by the philosophy of the Declara-
tion of Principles, directed toward a~ new
social and economic justice at the inter-
national level, a pooi would be created, as
it were, to which state or private firms
would contribute capital and technology.
Acting through the international authority,
the international community would contri-
bute for the benefit of all mankind the
resources of the area of which it is, in
effect, the owner.
The authors of the draft regime pro-
posed by the thirteen Powers have thus
suggested on the international level a
model which is at present working in some
of their own countries-Colombia, Ecuador
and Peru-at the national level. These
models do not differ greatly from arrange-
ments for "participation" in exploitation
of oil between foreign petroleum com-
panies or consortia and certain states in the
Middle East. The latter provide explora-
tion licences to foreign firms within their
territories, but they do not in themselves
grant any a priori exploitation rights.
The exploration activities are followed by
negotiations and joint venture contracts
between the national state and the foreign
petroleum companies. The companies
pour in capital and technology and enter
into profit-sharing agreements with the
national government. The state, in every
case, remains the sole owner of the mineral
or oil. A way has thus been found to
accommodate interests of firms pursuing the
extraction of resources, the national go-
vernments in need of revenue for develop-
ment, and the preservation of the principle
of permanent sovereignty of states over
their natural resources.
It is extremely important, it is felt, that
the power to carry out the exploration and
exploitation activities should be exclusively
in the hands of the international authority.
It is quite clear thctt if the authority co-
exists with private companies and the
latter are able to engage in the same
activities on their own, the former would
have little chance in competition. The
interest shown by important concerns in
the West and state organs in the East in
the sea-bed seem to indicate that if such a
regime is established, they would be the
real gainers, just as private companies have
been at the national level in Latin America
and the Middle East.
In May 1970, a meeting of the Re-
presentatives of nine Latin American
states, which exercise jurisdiction over a
200 mile breadth of seas off their coasts,
was held in Montevideo. It was attended
by Representatives of Argentina, Brazil,
PAGENO="0793"
787
Chile, Ecuador, El Salvador, Nicaragua,
Panama, Peru and the host country,
Uruguay. This was the first meeting of its
kind. Until then only the three nations on
the Pacific coast of South America had
worked together within a system, bound
by treaty arrangements under the umbrella
of the Declaration of Santiago of 1952,
and a regularly functioning consultative
body called the South Pacific Commission.
A similar train of thought underlay the
claims put forward by the nine states, and
a united stand was achieved by them in a
Declaration5 adopted at the Montevideo
Meeting, the principal paragraphs of which
assert:
1. The right of coastal States to dis-
pose of the natural resources of the sea
adjacent to their coasts and the soil
and subsoil thereof, in order to promote
the maximum development of their
economies and to raise the level of
living of their people;
2. The right to establish the limits of
their maritime sovereignty and juris-
diction, in accordance with their geo-
graphical and geological characteristics
and the factors which determine the
existence of the marine resources and
the need for their rational use.
A few months later, in August 1970, a
meeting took place in Lima not limited to
states having 200 mile limits of maritime
jurisdiction. At this meeting a Declaration6
of similar purport was adopted, and this
time it was supported, in addition to the
nine signatories of the Montevideo De-
claration, by Colombia, the Dominican
Republic, Guatemala, Honduras and Mexi-
co. It confirmed:
1. The inherent right of the coastal
State to explore, conserve and exploit
the natural resources of the sea adjacent
to its coasts and the soil and subsoil
thereof, likewise of the Continental
Shelf and its subsoil, in order to pro-
mote the maximum development of its
economy and to raise the level of living
of its people; and
2. The right of the coastal State to
establish the limits of its maritime so-
vereignty or jurisdiction in accordance
with reasonable criteria, having regard
to its geographical, geological and bio-
logical characteristics, and the need to
make rational use of its resources.
While asserting the right of coastal states
to set the limits of national jurisdiction,
the Lima Declaration qualified it with the
words "following reasonable criteria".
This had been implied in the Declaration
of 1955 signed in the capital of the Domi-
nican Republic, and in the "Principles of
Mexico on the Legal Regime of the Sea",
adopted by the Inter-American Council of
Jurists at its third Session in 1956.
These two meetings were the first steps
in a continuing series of consultations by
Latin American countries which, as has
been said earlier, did not have a unified
approach on substantial matters at the
1958 and 1960 Conferences.
An important manifestation of the new
cooperation was the draft regime on the
sea-bed beyond the limits of national
jurisdiction, introduced at the July/August
1971 session of the Sea-Bed Committee at
Geneva, Switzerland. Another indication
of a growing philosophical homogeneity
was the draft list of subjects and issues on
the law of the sea to be dealt with at the
next Conference which was introduced by
fifteen Latin American Delegations at the
same session.7
The preparation of such a list was a
specific mandate of the General Assembly
contained in resolution 2750 C (XXV) of
17 December 1970. Following the criteria
contained in resolutions 798 (VIII) of 1953,
1105 (XI) of 1956 (which convened the
1958 Conference) and 2574 A (XXIV) of
1969, which set in motion the Secretary-
General's consultations, the purpose of
this list was to ensure that the Conference
would be as comprehensive as was neces-
sary to permit an over-all review of pro-
blems of the sea. This was imperative
because the 1958 Conventions bad in
substantial respects, become out of step
with the times, and there was a growing
awareness on the part of new members of
the international community that, being.
still subservient, they bad not participated
in the Geneva Conference. At the same
PAGENO="0794"
788
time, the list was aimed at guaranteeing
an organic approach to the problems
involved.
In this sense, the draft list submitted
to the Committee by a group of Latin
American Delegations expressed what can
be described as a general conception of
the sea, and contained an approach, or
methodology, which underlies their sub-
stantive position on the specific issues.
The draft followed a clear-cut zonal
approach. It divided the problems of the
sea, in terms of spatial jurisdiction, in two
broad areas: zones within national juris-
diction and zones beyond national juris-
diction. Within the first division were
contained the territorial sea, the conti-
guous zone, zones of special jurisdiction,
and straits. Within the second were placed
those areas and problems which were
subject to a primarily community approach,
such as the sea-bed beyond national juris-
diction, the high seas, and problems of
land-locked countries. A third division
included problems of a not purely zonal
nature, susceptible of consideration on the
basis of global approach, such as the pre-
servation of the marine environment and
the question of scientific research, (The
latter two were also provided for in the
zones within national jurisdiction).
Under each title in different divisions,
a set of options was laid out to cover an
all-encompassing variety of points of view
regarding the specific issues. For instance,
whereas the standard and prevalent regime
of navigation within the territorial sea as
innocent passage was considered, under the
same title allowance was made for the
possibility that in wider than "traditional"
territorial seas there might be a plurality
of regimes for certain uses, such as navi-
gation. Similarly, the possibility of both
preferential and exclusive jurisdiction by
the coastal state over resources within
zones of special jurisdiction was provided
for. Thus, the list, while reflecting the
Latin American fundamentally zonal or
national approach to the law of the sea,
was addressed to the entire membership of
the Sea-Bed Committee and, indeed, the
United Nations, and all participants at the
Conference, and attempted to provide for
all points of view.
Some compromise was, of course,
necessary in order to achieve a list accept-
able to the whole membership of the
Committee. Final agreement was not
reached, in fact, until the summer Session
of 1972. It might seem to have been blown
somewhat out of proportion, since it does
not strictu sensu, constitute mure than a
tentative agenda for the Conference. In the
process of compromise, the purely spatial
approach of the Latin American draft
was a casualty, but all the fundamental
items of that paper are contained in the
agreed version. The role of Latin America
in that exercise remains a landmark and it
helped them in the development of their
own thinking on the law of the sea as a
whole.
The Latin American Draft was merged
with a paper prepared by the African and
Asian Delegations. Co-sponsored by 56
Delegations in the Sea-bed Committee,
almost entirely from developing countries,
the Afro-Asian-Latin draft represented, in
a certain sense, a list of grievances by states
dissatisfied with existing law, insofar as the
1958 Convention constitute existing law.
Delegations from countries which are
quite satisfied with the state of positive or
conventional law, or are reluctant to em-
bark upon reforms as envisaged by some
of the "56", this unified developing-
country draft was grudgingly accepted as
the basis for the final agreement. On the
groundwork of the agreed list must be
constructed the draft treaty articles re-
quested by the General Assembly, and this
is the task which the Sea-bed Committee
faces starting in 1973.
At the outset, it has been made clear
that though there is surely more unity of
views in Latin America in regard to the
law of the sea than occurs in any other
region, and more often than not in inter-
national forums Latin Americans speak
and act in unison, this cannot be inter-
preted as meaning that they think and feel
entirely in the same way. Both the De-
clarations of Montevideo and Lima recog-
nise that there are no such things as
identical twins where states are concerned.
Therefore, though states have the right to
set the limits of their national jurisdiction
and sovereignty over ocean space, they
PAGENO="0795"
789
should do so in accordance with their own
geographical, economical, geological and
ecological realities and circumstances. Di-
versity is inherent in the Latin American
thinking and is based on the premise that
it is not the same to be a coastal state on
the Baltic, for instance, as it is to be
a coastal state, and particularly one at a
lower stage of development, on the
Pacific.
The land-locked countries of South
America, Bolivia and Paraguay, are, of
course, the most glaring reason for which a
monolithic regional position on the law of
the sea is not an easy task. The Montevideo
and Lima Declarations did not address
themselves comprehensively to all aspects
of the law of the sea, and there was no
specific mention of the situation of land-j
locked countries. This caused some dis-
comfiture, which to a degree is under-
standable. It is less a question of dis-
satisfaction with the present regime for,
access to the sea and transit through
coastal states than a fear that, with growing
claims to the sea by coastal States, and~
bright new opportunities in the sea-bed
beyond national jurisdiction, the land-
locked States might somehow be left out.
In this respect, the fear of the land-locked
states differs little from that of developing1
coastal states who, for lack of capital and
technology, have little more possibility to
profit directly from the wealth of the ocean
floor.
This sensitivity on the part of land-
locked countries is not confined to Latin
America. It exists in Africa and Asia as
well. In fact it has been utilised to a certain
extent by big maritime Powers to support
their own struggle to prevent the growing
trend toward self-assertion by developing
states. A coalition which has bridged:
continents has been formed, at least
momentarily and apparently restricted to
the multilateral conferences, between land-
locked countries from the farthest corners
of the earth.
It is expected, however, that developing
land-locked countries, as they become
aware of their interest in co-operating with
developing coastal states vis-a-vis mari-
time Powers and industrialised nations in
an unequal struggle, will re-establish
channels of direct negotiation at the bi-
lateral and regional level where, ultimately,
problems of transit and access must be
resolved. Though negotiating positions
sometimes tend to blur the issues, these
problems are not solely within the domain
of the law of the sea. However, we must
safely assume an understanding on the
part of all concerned that the fact of a
country being land-locked must be taken
into account as a factor when the ques-
tion of distribution of benefits to be
derived from the exploitation of the sea
beyond national jurisdiction arises.
Bearing these considerations in mind,
we may be excused if, for the moment, we
may seem to sweep Bolivia and Paraguay
aside from our disquisitions on Latin
American views on the law of the sea.
A rapid perusal of the legislations of
individual countries in Latin America
asserting 200 miles of jurisdiction and/or
sovereignty over the sea adjacent to their
coasts brings out a degree of diversity in
their practice against the backdrop of a
common philosophical approach. Though
the validity of claims over the sea are said
to be a matter of international law, no-one
disputes the right of the coastal state to
make a claim by a unilateral act, contained
in an internal legislation or perhaps in the
Constitution itself, such as in the case of
El Salvador, or by a simple decree with the
force of Law, such as in Peru. These
internal acts are understandably not carbon
copies one of the other.
Some scholars have dealt with specific
differences between maritime legislations
of Latin American States, using official
documentary sources.8 In the present arti-
cle, we shall eschew the detailed legal
dissection for a more general search for
the prevailing themes which give Latin
America its unity.
Suffice it to say a few words on the
subject of what the Latin American states,
with 200-mile jurisdiction, have in common
and what differentiates them. Since they all
fit under the umbrella of the Montevideo
Declaration, the diversity is relatively
narrow. The Declaration does not speak of
"territorial sea" as defining the nature of
the claims, but it does speak of "sovereign-
ty and jurisdiction" which could con-
PAGENO="0796"
790
cievably be argued as being tantamount to
the former.
Thus, Brazil, Ecuador and Panama
refer to their 200 miles unequivocaHy as
con~tituting territorial sea; Uruguay and
El Salvador do the same. But whereas the
former require that navigation within its
waters be subject to the regime of innocent
passage, El Salvador does not prescribe so
and Uruguay requires innocent passage rule
to apply only within 12 miles. Argentina,
Chile ancF Peru, in their legislations, do
not specifically mention the expression
"territorial sea", but rather "sovereignty"
or "sovereignty and jursidiction", and their
internal legislations recognise freedom of
navigation according to International Law.
Nicaragua has established a national
fisheries zone, but this is subject to future
regulation. In the case of Brazil, Chile,
Ecuador, El Salvador, Panama and Peru,
the ocean floor underlying the 200 mile
zone is subject to the coastal State's
sovereignty. Nicaragua also has established
sovereignty over the continental shelf as
well as the superjacent waters. Argentina
has laid claim to the continental shelf in
terms of the Geneva Convention of 1958,
except that it uses the expression
"sovereignty" instead of "sovereign rights
for the purposes of exploration and
exploitation".
On 9 June 1972, the Representatives of
fifteen littoral states of the Caribbean Sea,
at a meeting held in the capital of the
Dominican Republic, adopted a document
known as the "Declaration of Santo
Domingo"9. It declared that the territorial
sea, as conceived in classical terms, subject
to negotiation, might be limited to a
breadth of twelve miles. Beyond that limit
coastal states bad a right to establish a
"patrimonial sea" which, together with the
territorial sea, should not exceed 200
miles with sovereignty over the resources
of the ocean floor and the superjacent
waters.
The Santo Domingo Declaration does
not constitute per se a legally binding
document. With the exception of Costa
Rica, none of the signatories have so far
introduced national legislation in terms of
the Declaration. Although its text has
been circulated as an official document of
the United Nations Sea-bed Committee, it
has not been put forward as a proposal in
so many words. The drafting of the De-
claration is not in the form of a treaty,
and it might even be said that its language
is somewhat loose and open-ended. These
factors and the form of presentation, as
well as the flexibility in references to it
made by some of the principal spokesmen
for the Caribbean (Castaneda of Mexico,
Vasquez Carrizosa and Espinosa of Colom-
bia, and Aguilar of Venezuela), lead one to
believe that the Declaration is in the
nature of a working paper, and does not
signify a definitive stand on the part of
those who favoured it.
Indeed, the negotiability of the actual
breadth or spatial ambit of both zones-
territorial and patrimonial sea-is further
proof of the provisional character of the
Santo Domingo Declaration. Furthermore,
in regard to the nature of the jurisdiction
over the patrimonial sea, the expression
"sovereignty over the resources" is an
innovation. Inadequately defined as the
phrase has been until now, it might not
survive. The fact that the spokesmen
mentioned above used other expressions
more or less interchangeably-"jurisdic-
tion", "economic jurisdiction", "economic
zone" and, in some bilateral communiques
between Foreign Ministers and Presidents,
simply "sovereignty" or "sovereignty and
jurisdiction",-suggests that the text was
a provisional compromise, and hence
open to revision.
In fact, the notion of sovereignty over
the resources of a zone seems to be
quite close to, and perhaps even a
variation of, the terminology of the Con-
tinental Shelf Convention, viz. "sovereign
rights.. . for the purpose of exploration and
exploitation of the natural resources". It
may be safely assumed that this somewhat
equivocal drafting was aimed at under-
scoring the principally economic orienta-
tion of the Caribbean states. In support
of this hypothesis, it may be pointed out
that other aspects of jurisdiction, such as
preservation cf the environment and con-
trol of scientific research, and even the
regime of navigation, are subject to, and
geared toward, the protection of resources
within 200 miles for exclusive or preferen-
PAGENO="0797"
791
tial use by the coastal State. It may not be
unrealistic to envisage eventually the Use of
terminology analogous to that of the
Shelf Convention. This could take the form
of "sovereignty over the `patrimonial sea'
(they do not seem wedded to this name
either) for the purposes of exploration and
exploitation of its resources", thus simply
encompassing the superjacent waters and
their resources in the same realm as that of
the ocean floor, with separate provisions
for navigation.
Plausibility is added to this reasoning
if we consider that the ocean space beyond
the patrimonial sea is referred to in the
Santo Domingo Declaration as the "high
seas". In the context of the Geneva Con-
ventions of 1958, the high seas begin where
the territorial sea ends. The use of the
term "high seas" as referring to the sea
beyond 203 miles would, therefore, seem to
underscore the sovereign, or territorial
character of those 200 miles. Similarly,
navigation in the patrimonial sea would be
subject only to restrictions deriving from
the eXercise of the coastal state's rights in
this area. A fortiori, sovereignty of the
coastal state would have a wider scope
than is reflected in the letter of the Santo
Domingo Declaration.
There is still terrain to be covered in
the process of formal homogenisation of
views. But the evolution of thought on
these problems in the Caribbean area is a
further enlightenment as to the trends. The
setting in motion of the preparatory work
for the forthcoming Conference on the
Law of the Sea has catalyséd an approach-
ing convergence. Latin American states are
one in demanding and participating in a
thorough revamping of what in the Old
World is assumed to be international law
of the sea. The very confusion in some of
the positions and claims of coastal states
testifies to this. But, as has been pointed
out earlier, the underlying themes, the
leitmotiv, are ever more clear.
The most important theme is security.:
It does not mean a purely military pre-
occupation. The age of cannon's range of,
three miles as jusitfication for the breadth:
of the territorial sea is long gone. Develop-
ing countries, in particular, are concerned::
for their very livelihood with an unjustly
balanced world and they need to avail
themselves of what is within their reach.
They are justified in doing so for the
"geographical, economical, geological and
ecological" reasons set forth in the Mon-
tevideo and Lima Declarations. In a wider
context, the indissoluble link between the
strengthening of international security,
disarmament and development, as set
forth in the Declaration on the Strengthen-
ing of International Security adopted by
the General Assembly at the twenty-fifth
anniversary Session, calls for simultaneous
progress in all three fields. This pre-
supposes effective enforcement of the
principle of sovereign equality of states.
Thus security acquires a concrete meaning.
Coas~al states, parttcularly developing
coastal states, require the seas adjacent to
their coasts. It is a question of economic
necessity. The resources of the sea must be
protected and utilised predominantly by
the coastal state. The coastal state must
have the power to take measures for the
preservation of this environment off its
coasts, which is inseparable from its land
mass, in order to defend its resources.
Scientific research must be geared pri-
marily to these interests.
The problem of navigation must be
seen in this light. Traditionalists tend to
invoke the necessity of ensuring "freedom*
of navigation in terms which seem to
conceive it as an end in itself. Navigation
is an instrument of international com-
munications and the latter is undoubtedly
a community interest. Developing coun-
tries, dependent as they are on trade, are
possibly the most interested in preserving
navigation. But neither states which pres-
cribe a regime of innocent passage for
ships going through their waters, nor
states which accept freedom of transit or
navigations, conceive of them as unfettered
freedoms. Freedom for the purpose of
unlimited mobility for military vessels can
hardly be considered a community in-
terest. Hazardous navigation, such as
that of ever-growing oil tankers, must be
reassessed. Perhaps what is in the making
is a redefinition of the concept of innocent
passage; at any rate, navigation must be
re-evaluated.
It is our belief that these themes, in the
23-317 0 - 73 - 51
PAGENO="0798"
792
framework of a new approach to the law
of the sea, will conStitute the main thrust
of Latin American positions at the forth-
coming Conference.
Footnotes
1. General Assembly Resolution 2750 C, adopted
at the twenty-fifth Session, December 1970.
2. Resolution 2749 of the General Assembly at
its XX.Vth Session.
3. No negative votes were cast on the Declaration.
The socialist states of Eastern Europe, with the
exception of Yugoslavia, abstained.
4. These States are: Chile, Colombia, Ecuador, El
Salvador, Guatemala, Guyana, Jamaica,
Panama, Peru, Trinidad and Tobago, Uruguay
and Venezuela. The text of the draft is con-
tamed in document A/AC. 138/49, and an-
nexed to the 1971 report of the Committee,
document A/8421.
5. and 6. The complete texts of both Declarations
have been published as U.N. Sea Bed Com-
mittee documents, A/AC.138/34 and A/AC.
138/28 respectively.
7. Document A/AC.138/56, annexed to the 1971
Report of the Committee, document A/8421.
8. See Garcia Amador, "Latin America and the
Law of the Sea," paper presented at the Sixth
Annual Conference of the Law of the Sea
Institute, University of Rhode Island, June
1971.
9. U.N. Sea Bed Committee document A/AC.
138/80, annexed to Committee Report of 1972,
A/8721.
PAGENO="0799"
David P. Stang
Two and one half years ago, the United
Nations General Assembly by a reso-
lution' charged the United Nations Seabed
Committee with the responsibility for
serving as the preparatory body for a 1973
Law of the Sea Conference. The resolution
delegated to the U.N. Seabed Committee
responsibility for preparing a list of sub-
jects and issues which, under the terms of
Resolution 2750C, "should be dealt with
by the Conference."
The Seabed Committee was also charg-
ed by that resolution with the task of
preparing draft articles for a future treaty.
With this background in mind, one should
examine the results of the five sessions that
the Seabed Committee has undertaken in
the pdst two and a half years. Other than
individual treaty proposals offered by
various member states, a plethora of
speeches, the usual committee reports, and
associated documentation, the only major
tangible results of the past two and a half
years' work of the U.N. Seabed Committee
are two documents.
The first is d list of subjects and issues
prepared by Subcommittee If, which the
committee agreed upon at its summer 1972
session. The list contains 107 issues and
sub-issues which the conferees could dis-
cuss. The second document, yet uncom-
pleted, contains draft texts on seabed
"principles" prepared by a working group
of Sub-committee I, which presumably
would be used as a basis for initial nego-
tiation of a seabed treaty at the Law of the
Sea Conference. However, Sub-committee
I working group members agreed that if
any draft text contained language that was
not necessarily acceptable would either be
included in brackets or alternative texts.
Consequently, most of the language of the
draft principles is bracketed or contains
alternative texts.
*The opinion contained in the article are those of
the author alone.
The most positive statement that can be
made about the past two sessions of the
U.N. Sea-bed Committee is that in con-
trast to previous three sessions, most dele-
gates acted in a more businesslike manner.
Those who have attended previous sessions
of the U.N. Sea-bed Committee could not
help but be aware of the polemic tone and
dilatory tactics frequently employed by
many of the delegates. Name-calling,
procedural wrangling and other obstruc-
tionisms were more the rule than the
exception.
In fact, so little was accomplished in
the Seabed Committee's two sessions in
1971 and its first session in 1972 that the
U.N. General Assembly in December of
1972 voted to postpone the 1973 Law of the
Sea Conference until April, 1974. The
substantive part of the Conference is to be
held in Santiago, Chile, preceded by an
organizational session in November and
December of 1973.
The last minute spurt of cooperative
energy exhibited by U.N. Sea-bed Com-
mittee delegates in the second session in
1972 proved to be too little and too late.
To their credit, the professionalism exhibit-
ed during this period reflected an increas-
ingly sophisticated knowledge of the
subject matter they were discussing. This
knowledge resulted in part from the
educational process of several years of
Sea-bed Committee debates and discus-
sions. Yet it must be said that in their
more recent professional approach to law
of the sea problems they did not reach
agreement on the major issues. Such
agreement, therefore, remains a responsi-
bility yet to be met.
THE "PRINCIPLES" DRAFT
The truth of this contention may be
borne out b~ returning to the Sub-Commit-
tee I working group's draft "principles."
It was originally thought by some that such
a task would be diplomatically easy and
rather perfunctory inasmuch as the 1970
U.N. General Assembly had already
793
OCEAN POLEMICS*
INTRODUCTION
PAGENO="0800"
794
adopted a resolution [2749(XXV)] on a
nearly unanimous vote which contained
legal principles related to the sea-bed.
l3ut such was not to be the case. Notwith-
standing the legal principles resolution, the
working group was unable to agree on the
meaning of the individual provisions of
Resolution 2749 (XXV). Therefore, its
members had great difficulty reaching
agreement on how such provisions should
be reformulated for the purpose of in-
clusion in a sea-bed treaty.
The latest evidence of progress to which
the members of the Sub-committee I
working group can point is a document
entitled "Texts Illustrating Areas of Agree-
ment and Disagreement on Item I of the
Subcommittee's Programme of Work:
Status, Scope and Basic Provisions of the
Regime, Based on the Declaration of
Principles [Resolution 2749 (XXV)]"2. It
should be noted that these texts pertain
only to preambulatory principles. Pre-
paration of the substantive provisions
pertaining to machinery, which constitute
item of the Subcommittee's work program,
has barely begun. An analysis of the texts
of the "principles" section further reveals
that many issues remain to be resolved.
The entire contents of text I concern-
ing the limits of national jurisdiction were
not only bracketed but contained no sub-
stance other than indicating the broad areas
on which agreement was needed. Thus,
subparagraph 1 merely stated: "Dilimita-
tion of national jurisdiction" while sub-
paragraph 2 simply listed: "Procedures for
notification, record and publication of
actual limits of national jurisdiction." In
fairness to Sub-committee I, it had been
earlier agreed that after Sub-committees I
and II considered the issue of the limits
of national jursidiction the issue would be
negotiated by the full committee. None of
these three bodies has yet reached agree-
ment.
Text 2, captioned "Common heritage
of mankind", contains evidence in sub-
paragraph 1 of formulation (A) of the
long-standing dispute regarding the ques-
tion of whether the convention will apply
to the "international Sea-bed" (impliedly
its mineral contents only), or to the entire
"area" of the seabed beyond national
jurisdiction. Subparagraph 2 reflects dis-
agreement on whether the resources of the
entire water column, or just those of the
underlying seabed, will be included within
the s/cope, of the convention. There was
further disagreement as to whether the
living resources of the seabed (sedentary
species) should be included and if so, how
they would be defined.
Formulation (B) reads: "The articles
contained herein determine the meaning
of the common heritage concept." This
language points to a rejection by many
delegates of any inherent meaning of
common heritage. Common heritage
means, they say, no more than what the
articles to he agreed upon specify that it
will mean.
Subparagraph 1 of Text 3 contains the
fcllowing language:
All activities in the Area, including
scientific research and the exploration
and exploitation of the resources of the
Area, and other related activities shall
be governed by the provisions of these
Articles and shall, unless otherwise
provided in these Articles, be subject to
regulation by the Authority estab-
lished.
Subparagraph 2, completely bracketed,
defines "activities". Its bracketed language
reveals the yet unresolved issues of what
activities will be governed by the regime
and what will be the scope of the authority
of the international agency established by
the regime. "Activities" included in the
bracketed text include:
scientific research, preservation of
the marine environment, the prevention
of pollution, processing and marketing
of commodities recovered from the
Area, accommodation of uses of the
Area, conservation of living resources
and the protection of archaeological
and historical treasures.
While such details will have to be resolved
in the substantive provisions of the regime
following the "principles" section, the
early bracketing of the activities to be
regulated by the regime portends further
PAGENO="0801"
795
disputes down the future negotiating trail.
Text 4 is captioned "Non-appropriation
and no claim or exercise of sovereignty or
sovereign rights.. . ."It provides two alter-
native formulations on this issue, which
when read in comparison with one another,
raise the very important questions of rights
of sea-bed resources of states not party to
the regime, and the rights regarding sea-bed
resources of states party to the regime as
against states not party to the regime.
One version would prohibit both appro-
priation of sea-bed resources and appro-
priation of the Area and claim or exercise
of sovereignty or sovereign rights to the
Area except as specified in the treaty.
The other, while prohibiting such appro-
priation of the Area and such claim ŕr
exercise of sovereignty or sovereign rights
to the Area, would by implication permit
appropriation of seabed resources other
than under terms of the treaty.
Text 5 reflects agreement that ". . . the
Area shall be open to use exclusively for
peaceful purposes by all States, whether
coastal or landlocked, without discrimi-
nation
Text 6, which deals with "General
Conduct in the Area and in Relation to the
Area", contains a kernel of agreement
that activities in the Area shall be in
accordance with the provisions of the
treaty's articles and the Charter of the
United Nations.
Text 7, captioned "Benefit of Man-
kind as a Whole", contains bracketed
language reflecting disagreement over
which geographical part of "mankind",
and which of "mankind's" activities will
benefit the most. Regarding geographical
parts, the bracketed language reflects dis-
agreement between coastal states on the one
hand and land-locked and shelf-locked
states on the other as to the extent of
benefits. As to "mankind's" activities, the
bracketed language reflects disagreement
particularly as to how scientific research
will benefit.
Text 7A contains a bracketed formula-
tion combining texts 5 and 7.
Text 8, nearly completely bracketed,
would prohibit emplacement of nuclear
weapons, conduct of nuclear and thermo-
nuclear weapon tests, and operation of
nuclear submarines in the Area.
Text 9, containing four alternative
formulations, deals with "Who May Ex-
ploit the Area". Formulation A limits
exploration and exploitation to contracting
parties or groups Qf contracting parties or
persons under their authority or sponsor-
ship. Formulation B provides that scientific
research, exploration and exploitation of
the Area shall be conducted by the Autho-
rity directly or through services contracts
with persons, natural or juridical. Formu-
lation C provides that exploration and
exploitation shall be conducted by the
Authority either directly, or in such other
manner as it may determine, including the
granting of licenses to contracting parties
or groups of contracting parties, or through
them to persons natural or juridical under
their authority or sponsorship. Formula-
tion D, which is similar to formulation A,
additionally provides that "the Authority
may decide, within the limits of its financial
and technological resources, to conduct
such activities." Achieving a mutually
satisfactory resolution of the "who may
exploit" issue would seem to be one of the
sine qua iions for a successful Law of the
Sea Conference.
Text 10, which pertains to the orderly
and safe development and rational manage-
ment of the Area's resources, specifies that
exploration and exploitation shall be
conducted in a manner so as to ensure
resource "conservation and optimum uti-
lization and to regulate production in the
Area so as to minimize the fluctuation in
the prices of minerals and raw materials
from land and offshore sources that may
result from such exploitation and adversely
affect the exports of developing coun-
tries. . ." The fact that this language is
not bracketed reflects a growing belief of
developed and developing countries alike
that commencement of deep sea-bed
mineral mining will have little affect on
the prices of land based mineral pro-
duction.
Disagreement does exist, however,
over paragraph 2 of Text 10, which specifies
that proceeds from any tax levied on deep
sea-bed mineral production will be dis-
tributed equitably to all developing coun-
tries.
PAGENO="0802"
796
Text 11 contains three alternative texts
which highlight the disagreement between
those favouring the retention of the free-
dom of scientific research and those who
would initiate restraints upon scinetific
research to include its regulation by the
international authority and to require
developed countries which conduct ocean
research, to share its benefits with develop-
ing countries.
Text 12, pertaining to transfer of
technology, contains four alternative texts
which vary as to the degree to which and
the means by which developed countries
would be encouraged to transfer their ocean
mining technology to developing countries.
Text 13 provides that rules will be
formulated to prevent pollution and to
protec~ and conserve the living and non-
living resources of the Area. Bracketed
language illustrates disagreement as to
which activities will be subject to such rules.
Text 14, regarding the protection of
human life in the Area, is similar to Text
13. Although it provides for the formu-
lation of rules toward the end of protecting
human life, its bracketed language reflects
disagreement on which activities will be
subject to such rules.
Text 15 contains alternative texts per-
taining to the rights of coastal states
adjacent to the Area. Issues raised in these
texts include the extent of a coastal state's
rights to take action to protect itself against
damage caused by activities being conduct-
ed in parts of the Area adjacent to its coast;
the extent of coastal states' rights to
approve or disapprove of exploration and
exploitation of resources in the Area
adjacent to the area of the coastal state's
jurisdiction; and the extent of coastal
states' duties to share financial benefits
obtained from exploitation in areas under
coastal state jurisdiction adjacent to the
Area.
Text 16, which is heavily bracketed,
pertains to the status of waters superjacent
to the Area and reveals disagreement over
the extent to which superjacent waters will
retain their high seas status.
Text 17, also heavily bracketed, per-
tains to multiple uses of the marine environ-
ment and raises the issue of whether
exploration and exploitation will be given
preference over other uses.
Text 18, too, is heavily bracketed. It
pertains to, and reflects disagreement over,
the issue of liability for damages arising
out of activities conducted in the Area.
Text 19, also bracketed in large part,
deals with and illustrates disagreement
over, access by land-locked states to and
from the Area.
Text 20 pertains to rights to archaeolo-
gical and historical objects found in the
Area. Its brackets reveal disagreement on
this issue.
Text 21, pertaining to dispute settle-
ment, like almost all other texts is bracketed
-in fact, completely bracketed. Whether
disputes will be compulsorily settled and
how remains an issue to be resolved.
Apologies are due the reader for the
repetitious emphasis, on a text by text
basis, of the lack of agreement on nearly
every part of the "principles" section of the
draft treaty articles. But such is sadly the
case.
Some delegates feel that reaching agree-
ment on the identification of issues on
which to disagree represents a substantial
achievement. Others state that there is
much more agreement than seems evident
by the assorted collection of bracketed and
alternative texts. They say that they are
insisting on bracketed language and alter-
native texts on issues on which they already
fully agree just to preserve "bargaining
chips" for the 1973 Law of the Sea Con-
ference. Others state that they insist on
bracketed language and alternative texts to
preserve and maximize their options in
dealing with texts pertaining to machinery
and texts to be prepared by the other two
subcommittees as draft treaty articles on
other law of the sea issues. Still others
more soberly conclude that it will be im-
possible to conduct a successful Law of
the Sea Conference in 1974 because of a
gross lack of agreement on fundamental
issues and a woeful lack of adequate
preparatory work.
THE "LIST"
Further and ~parallel evidence of a lack
of progress on reaching agreement on
substantive issues can be found in an
examination of the efforts of Subcommittee
PAGENO="0803"
797
11, related to the development of a list, of
subjects and issues which could be dealt
with by a future conference on the law
of the sea.
At the end of the March 1972 session
of the Sea-bed Committee a coalition of
fifty-six cosponsors, including most devel-
oping coastal countries of Africa, Asia and
Latin America, and China, Iceland, Ru-
mania, Spain and Yugoslavia, introduced
a draft list of subjects and issues. Its
sponsors presented arguments that the list
was objectively compiled and fairly re-
presented the interests of all member
countries.
However, the delegate of Kenya-one
of the sponsors-while referring to the list,
mentioned that:
The existing law of the sea had been
designed specifically to favour the
strong countries over weak countries,
the industrialized over the poor and the
developed over the developing. The
developing countries were therefore
united in their determination to achieve
a more balanced and equitable regime,
and that determination was reflected in
the list under consideration. The spon-
sors were convinced that the list offered
a framework in which all delegations
could raise any subject of importance
to them at the Conference. If the Sub-
Committee accepted the list on that
basis, it could proceed to a substantive
discussion on the subjects and issues
at the summer session. . . . The sponsors
believed that their work fulfilled the
mandate entrusted to the Seabed Com-
mittee in resolution 2750C (XXV) to
prepare a comprehensive list of subjects
and issues relating to the law of the
sea. The Committee should proceed
expeditiously on the other part of its
task, which was to prepare draft articles
on subjects and issues.3
The nonsponsors of the list did not
want to proceed to drafting articles without
first seeking to amend the list. They be-
lieved, as the statement of the Kenya
delegate implied, that the list catalogued
the subjects and issues in a manner preju-
dicial to the interests of the developed
countries and the land-locked and shelf-
locked countries. Thus, the United States,4
Italy,5 the Soviet Union,6 and Japan7
submitted separate amendments to the
list while the land-locked and shelf-locked
countries, Austria, Belgium, Bolivia, and
Zambia,8 jointly submitted amendments.
The amendments tell the story of what
was felt to be wrong with the list sponsored
by the fifty-six sponsors. The sponsors of
the amendments merely sought to insure
that the conference agenda would contain
a neutral formulation of the issues in
order to prevent an implied forfeiture of
their positions before the substantive dis-
cussions began.
Thus,in the summer 1972 session of the
U.N. Seabed Committee negotiation of the
proposed amendments took place. The
negotiations were conducted by a working
group followed by adoption of its agreed
revisions by Subcommittee II and then
finally by the Full Committee.
The controversial items were as follows:
Item 4 of the list proposed by the
fifty-six sponsors read:
4. Straits
4.1 Straits used for international
navigation.
4.2 Innocent passage.
The United States and the Soviet
Union had made proposals for a right of
free transit through and over international
straits. Nowhere in the list proposed by the
fifty-six sponsors did free transit appear.
Thus, the U.S. amendment called for the
addition of subitem "4.3 Free transit."
The Soviets sought the same end by
amending item 4 to delete subitem 4.2.
The Full Committee in its summer 1972
session finally agreed on the following
formulation:
4. Straits used fcr international navi-
gation.
4.1 Innocent passage.
4.2 Other related matters, including
the question of the right of
transit.
The above two subparagraplis are clearly
PAGENO="0804"
798
contradictory and reveal that the straits
issue in fleneral and the free transit issue in
particular remain unresolved.
Item 6 of the list of the original fifty-six
sponsors was captioned, "Exclusive econo-
mic Zone beyond the territorial sea."
The U.S. amendment submitted in
March 1972 called for a new caption:
"Exclusive economic zone or other coastal
state economic jurisdiction or rights beyond
t1ie territorial sea." The Japanese amend-
ment would rephrase item 6 to read:
"Exclusive economic zone or preferential
rights of coastal states beyond the terri-
torial sea." The U.S.S.R. amendment
called for a reformulation of item 6 to
read: "Preferential rights of coastal states
beyond the territorial sea."
The land-locked countries' amendments
called for a major overhaul of item 6 to
include, among other things, provision for
participation of land-locked and shelf-
locked countries in development of resour-
ces in marine areas adjacent to coastal
states. Additional amendments were sug-
gested specifically to protect their fisheries
interests and their participation in the
regime for the deep sea-bed beyond the
limits of national jurisdiction.
The final version of item 6 agreed to by
the Full Committee in August 1972 con-
sisted of two alternative formulations, pro-
viding respectively for an exclusive and
non-exclusive resource zone, listed as
items 6 and 7,9 The formulation of item 6
confirms that no agreement bad been
reached on the extent of coastal state
rights and duties regarding mineral and
fishery resources adjacent to coasts, nor on
the breadth of the zone in which such
rights and duties would apply, nor on the
correlative rights and duties of other states
in the marine areas adjacent to coastal
states. The juxtaposition of the terms
"exclusive" and "preferential", and
"rights" and "duties" reflects the con-
tinuing lack of agreement on these issues.
The alternative formulation of the
resource jurisdiction issue as item 7 further
reflects such differences. Its caption "Coas-
tal State Preferential Rights and or Other
Non-Exclusive Jurisdiction. . . "points up
the striking differences between those
advocating exclusive coastal state jurisdic-
tion over marine resources and those
seeking an equitable international arrange-
ment in which the world community as a
whole would benefit and in which there
would be a balance between coastal state
rights and those of other states having
resource development interests in areas
adjacent to coastal states.
Item 7 of the list tabled in March by
the original fifty-six sponsors read:
7. High Seas
7.1 Nature and Characteristics
7.2 Freedom of Navigation and
Overflight
7.3 Rights and Duties of States
7.4 Management and Conservation
of Living Resources
The U.S. amendment called for a
rephrasing of item 7.2 as follows: "Free-
dom of Navigation and Overflight and
Other Uses." The Soviet amendment called
for the following reformulation of item
7.2: "Freedom of Navigation and Other
Freedoms."
Subcommittee II at its summer 1972
session agreed to the following formulation
renumbered as item 8:
8. High Seas
8.1 Nature and Characteristics
8.2 Rights and Duties of States
8.3 Question of the Freedoms of the
High Seas and Their Regulation
8.4 Management and Conservation
of Living Resources
8.5 Slavery, Piracy, Drugs
8.6 Hot Pursuit
Sub-item 8.3 reveals the continuing
differences between those favouring un-
restricted retention of protected high seas
freedoms and those favouring their limit-
ation through regulation.
item 12 of the list tabled in March by
the fifty-six sponsors read:
12. Scientific Research
12.1 Nature, Characteristics, and
Objectives of Scientific Re-
search of the Oceans
12.2 Regulation of Scientific
Research
12.3 International Cooperation
PAGENO="0805"
799
The U.S. amendment called for a new
sub-item 2 to read: "12.2 Freedom of
research and access to scientific informa-
tion." The Soviet amendment called for a
reformulation of item 12.2 to read: "Co-
ordination of scientific research." Both
amendments were withdrawn after long
discussion failed to produce a satisfactory
formulation.
The Working Group, unable to agree
on a single neutral formulations decided as
it had in items 6 and 7 to present alter-
native formulations as items 13 and 14:
13. Scientific Research
13.1 Nature, Characteristics and
Objectives of Scientific Re-
search. of the Oceans
13.2 Access to Scientific Infor-
mation
13.3 International Cooperation
14. Development and Transfer of
Technology
14.1 Development of Technological
Capabilities of Developing
Countries
14.1.1 Sharing of Knowledge and
Technology Between Devel-
oped and Developing
Countries
14.1.2 Training of Personnel from
Developing Countries
14.1.3 Transfer of Technology to
Developing Countries
Item 13 represented the developed-
country view, while item 14 represented the
developing country "transfer of techno-
logy' view. `This is one other area of
continuing dispute.
Item 21 of the list tabled in March by
the original fifty-six sponsors reads:
21. Peaceful Uses of the Ocean Space:,
Zones of Peace and Security
The U.S. amendment sought to re-
phrase the item: "Peaceful Uses of Ocean'
Space" while the Soviet amendment would
have rephrased the item "Peaceful Uses.",
The item finally appeared `as originally
drafted in the list proposed by the original
fifty-six sponsors. Its inclusion in the final,
agreed list, however, was by no means a
concession on the part of the U.S. and
U~S.S.R., which did not by eventually
accepting the item intend to defer to the
wishes of some delegations that the Sea-
bed Committee expand its jurisdiction and
undertake to resolve disarmament ques-
tions.'
These were the major issues on which
debate was centered in the Subcommittee
II working group. The delegates were
pleased to have finally reached agreement
on the list. That their approach to nego-
tiations in the summer 1972 session was
more businesslike than in their previous
three sessions cannot be denied. However,
it did take two years to reach agreement
on the list which is merely to serve as a
proposed agenda for the conference. The
list is long and cumbersome, duplicative
and contradictory in parts. Although it
reveals many of the major areas of dis-
agreement and thereby provides a focal
point for future negotiations, its drafters
were careful not to permit its formulation
in any way to compromise their respective
national or regional positions,. or pre-
judice their right to take whatever position
they wish on any issue in subsequent
discussions.
SUMMARY OF THE ISSUES AND POSITIONS
In retrospect, when one considers what
was contemplated in the 1970 General
Assembly resolution calling for a 1973 Law
of the Sea Conference, one must conclude
that the timetable for adequate preparatory
work within the Seabed Committee was
highly optimistic. Two and a half years
later, comparatively little was actually
achieved other than an identification of
issues for future discussions. The nego-
tiations, however, generally revealed a
more sophisticated grasp of the issues.
Although the summer 1972 and spring
`1973 sessions represented a quantum jump
in the attitudinal approach of delegates
to negotiations, it also revealed that no
consensus was near on most of the major
issues. The preceding analyses of the
"principles" draft prepared by the working
group of Subcommittee I, and the "list"
adopted by the full Committee bear this
out. To recapitulate, the major unresolved
issued reflected in these two documents
are:
PAGENO="0806"
800
1. The limits of the territorial sea10 and
navigational rights of vessels and air-
craft, in and over international straits
which are contained within the terri-
torial sea of coastal states.
2. The limits of coastal state jurisdic-
tion" over resources of the seabed ad-
jacent to and beyond the territorial sea
and the nature and limitations of
coastal state jurisdictional authority
in such areas.
3. The nature of fishing rights which
coastal countries may obtain in high
seas areas adjacent to their coasts to
regulate the activities of foreign fishing
fleets, the distance from the coastline
in which such coastal nation rights
would apply, and the substantive
limitations on such coastal country
rights.
4. The measures which coastal coun-
tries may take in high seas areas ad-
jacent to their coasts to protect them-
selves against marine pollution caused
by foreign nations or their nationals,
the distance from the coastline in
which such coastal nation rights would
apply, and the substantive limitations
on such coastal nation rights.
5. The measures which coastal coun-
tries may take in high seas areas ad-
jacent to their coasts to regulate the
conduct by foreign nationals of scientific
research on the high seas and under-
lying sea-bed, the distance from the
coastline in which such coastal country
rights would apply, and the substantive
limitations on such coastal country
rights.
6. The rights of individual countries
and their nationals to explore and ex-
ploit the natural resources of the sea-
bed beyond the limits of national
jurisdiction, the rules and conditions
under which such exploration and
exploitation would take place, and the
institutional and legal means of ad-
ministering such exploration and ex-
ploitation, and of distributing benefits
resulting from such activities, and of
resolving disputes arising from such
activities.
most developing coastal nations of the
world are to:
Extend seawardly the limits of their
exclusive jurisdiction and control over
(1) fisheries, (2) exploration and ex-
ploitation of sea-bed minerals, and
(3) scientific research conducted by
foreign vessels in areas adjacent to their
coasts and in other parts of the high
seas;
Minimize any restrictions on their
exercise of such jurisdiction;
Establish an international organiza-
tion, which they would control. It
would have exclusive authority to
explore and exploit the resources of the
sea-bed beyond the limits of exclusive
coastal nation jurisdiction. It would
control mineral production in this area,
and thereby maximize the benefits
therefrom to developing countries.
Through control of such an inter-
national organization, those nations
would deny effective commercial access
by the technologically advanced states
to the natural resources of the sea-bed
lying beyond the limits of exclusive
coastal nation jurisdiction.
On the other hand, the objectives of most
of the developed countries with respect to
the oceans are to:
Preserve as best they can the largest
possible area of the high seas, and
within that area retain, with minimal
restrictions, their rights to exercise the
high seas freedoms (especially the free-
dom to navigate, fish, and conduct
scientific research on the high seas and
to retain their high seas freedom,
subject only to reasonable international
regulation, to mine the minerals of the
ocean floor beyond the limits of coastal
country jurisdiction.)
The developed countries do not oppose
creation of an international organization
to administer the exploration and exploita-
tion of sea-bed resources beyond the limits
of coastal state jurisdiction. But they would
prefer that the organization neither conduct
exploration and exploitation of the re-
To generalize, the major objectives of
PAGENO="0807"
801
sources of the ocean floor nor control
production thereon. The developed nations
would neither restrict opportunities for
exploration and exploitation of the ocean
floor by developing countries, nor object
to paying a portion of the value of the
minerals produced on the ocean floor to
an international organization for the use
and benefit of developing countries.
The major exception to these generali-
ties on the objectives of developing and
developed nations is that land-locked and
shelf-locked nations are generally opposed
to the extension of eXclusive coastal nation
jurisdiction over fisheries and minerals
because they wish to preserve as large an
area as possible beyond the limits of
exclusive national jurisdiction for their
own maximum benefit.
STRENGTHS AND WEAKNESSES OF
MAJOR POSITIONS
Little progress has been made toward
resolution of these issues through a re-
conciliation of conflicting views. One
means of assessing the relative strengths of
the proponents of the various conflicting
positions is to speculate on what would
happen should there either not be a Law
of the Sea Conference or should it fail.
Regarding the issue of navigation,
merchant vessels of all countries would
undoubtedly continue to sail from port to,
port through international straits as neces-
sary. Without such a result international
trade would be slowed to a standstill with
severe disruption of the economies of all
countries-an untenable position for any
country to be able to accept.
Insofar as navigational rights for
military ships and aircraft are concerned,
NATO and Warsaw Pact countries have
too much of a national defense stake in
the free mobility of their fleets and aircraft
to tolerate any unilateral prevention of
transit through international straits or
impediments to navigation on the high
seas. On the other hand, in the. interest of
navigational safety it would seem likely
that naval policy-makers would be willing
to comply with reasonable ship traffic
safety schemes and aircraft safety regula-
tions related to straits so long as such
schemes did not prejudice naval mobility.
Regarding coastal state jurisdiction over
mineral resources, it can be fairly said that
under the Continental Shelf Doctrine such
rights already appertain to the exploration
and exploitation of the resources of the
continental margin. The threat of conti-
nuing unilateral assertions of further
control by developing coastal states over
fishery resources absent international ag-
reement is a possibility not to be over-
looked, notwithstanding a similar possi-
bility of a retaliatory reaction to such
measures by distant water fishing states.
Whether most coastal states, developed
or developing, have either the desire or the
capability unilaterally to impose and en-
force new regulatory constraints related to
pollution prevention and control and to
the conduct of oceanographic research on
the high seas is subject to some doubt
when consideration is given to other law
of the sea objectives expressly acknow-
ledged to be more important.
With respect to the exploitation of the
mineral resources of the deep sea-bed, it
is in the area of the high seas and the deep
ocean floor that the developed nations
have the greatest strength: a freedom of the
seas tradition, ships, technology, capital
and the option to refuse to ratify-without
effective developing nation countersanc-
tions-a regime for the deep sea-bed.
Bearing these considerations in mind,
it would seem to be in the interests of
most states to make progress toward
international agreement on the law of the
sea issues. Absent agreement, on balance
it would appear that developing states
have more to lose.
However, no hard evidence is yet dis-
cernible which points toward a present
willingness on the part of Sea-bed Com-
mittee members to make the compromises
necessary to reach agreement on the host
of yet unresolved issues.
THE SEA-BED COMMITTEE AS COMPARED TO
THE INTERNATIONAL LAW COMMISSSION
In fairness to the Sea-bed Committee,
it must be stated that its approach to
problem-solving is substantially different
from the International Law Commission
(I.L.C.) of the 1950's which served as the
preparatory body for the 1958 and 1960
PAGENO="0808"
802
Law of the Sea Conferences. The I.L.C.
staff, composed mainly of international
lawyers and technical experts, prepared a
series of draft articles specifically designed
to codify existing law and to establish
new law on a rational, problem-solving
basis. Such articles were drafted and
redrafted many times before the politically
appointed plenipotentiaries first met to
begin negotiations on them.
By contrast, the Sea-bed Committee is
an inherently political body, whose re-
presentatives' skills and inclinations as
tacticians and protagonists often tend to
exceed their skills as legal craftsmen and
expert technologists. Notwithstanding these
differences, it would seem apparent that if
international agreement within the Sea-
bed Committee on law of the sea issues is
to become a reality, a lessening of the
emphasis on the former and an increase
of the latter would be mandatory. Until a
common recognition of these needs is
achieved and implemented, progress on
reaching international agreement may well
continue to maintain its present snail's
pace.
Awareness of the absence of substantial
progress was recognized in the summer
1972 session by the members of the Sea-
bed Committee. It became evident to all
that the 1973 Law of tl~e Sea Conference
called for by the 1970 General Assembly
resolution would not be possible. The
U.N. General Assembly, at its fall 1972
session, accordingly called for a 1974 Lkw
of the Sea Conference and charged the
Sea-bed Committee to continue with its
preparatory work in 1973.
Unless members of the Sea-bed Com-
mittee commit themselves to serious dedi-
cation to resolution of conflicting interests
during its one remaining session in 1973,
it may be well beyond 1974 before a Law
of the Sea Conference can successfully
result in reaching international agreement.
THE MORATORIUM ISSUE
An event of note occurred in the March
1972 session of the Sea-bed Committee
when Kuwait, with the support of thirteen
developing nations and China, attempted
to secure approval of a "draft decision" of
the Sea-bed Committee to "call upon all
states engaged in activities in the sea-bed
area beyond national jurisdiction to cease
and desist from all commercial activities
therein and to refrain from engaging
directly or through their nationals in any
operations aimed at the commercial ex-
ploitation of the area before the establish-
ment of the regime."
At the summer 1972 session of the Sea-
bed Committee the moratorium resolution
was again raised and discussed. in the
Committee's report with the general under-
standing that it would be introduced by its
sponsors at the fall 1972 session of the
U.N. General Assembly. Such never came
to pass.
As a matter of history, the 1969
General Assembly adopted a moratorium
resolution which urged that pending the
establishment of an international regime,
states and persons, physical or juridical,
are bound to refrain from all activities of
exploitation of the resources of the area of
the sea-bed and ocean floor and the sub-
soil thereof, beyond the limits of national
jurisdiction. The United States voted
against it and contended that the resolution
was designed to retard the development of
the technological capacity for deep sea-
bed exploitation; that it would encourage
nations to move unilaterally toward un-
justifiably expansive claims of national
jurisdiction just in order to remove areas
of exploitation from the scope of the
prohibition contained in the resolution;
and that adoption of the resolution would
represent a breakdown, on a matter of
basic importance, of those processes of
cooperation and consensus which are
necessary if any genuine accomplishment
is to result from the labours on the sea-bed
issues in the United Nations.
The United States representative sug-
gested that passage of the resolution would
indicate that the "United Nations were
now. . .willing to make fundamental deci-
sions on sea-bed issues through a `politics
of confrontation' and paper majorities."
As suggested by the United States
representative, the adoption of the so-
called Moratorium Resolution reflected the
efforts of a growing number of nations to
engage in the "politics of confrontation."
The vote ensuring its adoption represented
PAGENO="0809"
803
a concerted bloc action by underdeveloped
nations against the developed nations
whose interest, in part, is in achieving a
deep sea-bed regime which will be attrac-
tive to investors. The vote further reflected
the desire of some developing nations to
prevent the technologically advanced na-
tions from exploiting deep sea-bed resourc-
es until they could be assured of fully
"sharing the benefits" thereof.
A year later the General Assembly
adopted another resolution, earlier men-
tioned, known as the "Legal Principles"
Resolution. It does not tacitly refer to any
prohibition on exploitation, nor does it
specifically affirm the high seas freedom
to exploit the deep sea-bed. The position
of the United States and most other
developed countries remains that under
international law there is a present right to
exploit the deep sea-bed and indeed prior
to establishment of a deep sea-bed regime.
5. 1134, a U.S. Senate bill drafted by
the American Mining Congress, would
establish an interim licensing system de-
signed to provide security of tenure to
United States nationals with respect to one
another for deep sea-bed mining activities.
Hearings were held in 1972 and 1973 in
both houses of Congress on this proposed
legislation.
Legislation providing for an interim
system for the regulation of deep sea-bed
mining by United States nationals could
become a blessing in disguise. Although an
initial negative reaction to it by developing
countries is to be expected, such legislation!
could be more helpful than harmful to
developing countries.
First, it could stimulate good faith:
discussions within the U.N. Sea-bed Com-
mittee to formulate a sea-bed regime which
would be acceptable to a broad spectrum
of its membership-developing and devel-
oped alike.
Second, it could stimulate experimental
development of sea-bed mining techniques
with the attendant benefit of an early
accumulation of a body of working ex-
perience and resulting data. Such informa-
tion could not help but benefit members of
the U.N. Sea-bed Committee as they seek
to establish a specific framework to govern
future mining efforts on the deep sea-bed.
If early efforts conducted pursuant to
such legislation were successful, revenues
to be used for the benefit of developing
countries could be generated prior to the
entry into force of a subsequent regime.
Further, under such legislation mining
activities conducted by U.S. nationals
would be made specifically subject to the
regime to be established. Additionally, the
legislation could provide a mechanism to
regulate industry sea-bed mining efforts
prior to the establishment of a regime, and
to limit the area of the sea-bed in which
mining activities would be taking place-
results which certainly cannot be realized
should larger scale sea-bed mining efforts
commence without the enactment of
legislation.
A possible benefit to world consumers
could also result from such legislation
inasmuch as the interim licensing system
established could promote competition
between U.S. sea-bed mining companies.
With several companies involved in ocean
mining, each would most likely be moti-
vated to develop sea-bed minerals at
competitive costs.
Other interim benefits could also accrue
from such legislation, including the pro-
tection of the integrity of investments and,
in turn, the growth of technology without
in any way interfering with the existing
rights of other states to proceed with the
development of their own ocean mining
capability.
Thus, far from being a unilateral act,
detrimental and unconducive to reaching
international agreement on a sea-bed
regime, such legislation could serve as a
helpful catalyst for arriving at a timely and
widely acceptable international arrange-
ment for deep ocean mining.
CONCLUSION
Possible legislation aside, the question
remains as to whether a collective inter-
national will to reach a satisfactory reso-
lution of the many disputed law of the
sea issues may be expected to develop
within the U.N. Sea-bed Committee in
time to enable that Committee to proceed
with a sufficiently comprehensive prepara-
tory effort to ensure the success of the
scheduled 1974 Conference on the Law of
PAGENO="0810"
804
the Sea. Some observer.s of, and partici-
pants in, U.N. Sea-bed Committee activi-
ties have expressed optimism for such a
development. They say that breakthroughs
taking the form of widespread international
conciliations are imminent and can be
expected to materialize this year.
Others feel that agreement is a long way
off. They state that if it took the U.N.
Sea-bed Committee two years to reach
agreement on only the listing of issues to
be discussed at a future Law of the Sea
Conference, and two and a half years for
the translation of the principles contained
in Resolution 2749 (XXV) into alternative
texts for inclusion in a draft sea-bed treaty,
then resolution of the plethora of the
remaining hotly disputed issues will take
nearly a decade.
The setbacks for all nations, indivi-
dually and as representatives of the
international community as a whole, failing
timely international agreement on out-
standing law of the sea issues, would be
substantial. That U.N. Sea-bed Committee
members accordingly should proceed ear-
nestly with a good faith effort to accommo-
date each other's needs, is beyond dispute.
It is therefore entirely possible that the
success or failure of the U.N. Sea-bed
Committee in resolving the matters before
it, may signal whether or not the United
Nations as an institution may be able to
continue to play a vital part in the recon-
ciliation of international problems.
1. 2750C (XXV), December 1970.
2. A/AC.138/SC.I/L.22, April 4, 1973.
3. A/AC.138/SC.ll/SR. 29 of March 31, 1972 at 6.
4. A/AC.138/68, March 29, 1972.
5. AIAC.138/69, March 29, 1972.
6. A/AC.138/70, March 29, 1972.
7. A/AC. 138/71, March 29, 1972.
8. A/AC.138/72, March 29, 1972.
9. They consisted of the following:
6. Exclusive Economic Zone Beyond the
Territorial Sea
6.1 Nature and Characteristics, Including
Rights and Jurisdiction of Coastal
States in Relation to Resources,
Pollution Control and Scientific Re-
search in the Zone. Duties of States
6.2 Resources of the Zone
6.3 Freedom of Navigation and Overflight
6.4 Regional Arrangements
6.5 Limits: Applicable Criteria
6.6 Fisheries
6.6.1 Exclusive Fishery Zone
6.6.2 Preferential Rights of Coastal States
6.6.3 Management and Conservation
6.6.4 Protection of Coastal States' Fish-
eries in Enclosed and Semi-Enclosed
Areas
6.6.5 Regime of Islands Under Foreign
Domination and Control in Relation
to Zones of Exclusive Fishing
Jurisdiction
6.7 Seabed Within National Jurisdiction
6.7.1 Nature and Characteristics
6.7.2 Delineation Between Adjacent and
Opposite States
6.7.3 Sovereign Rights Over Natural
Resources
6.7.4 Limits: Applicable Criteria
6.8 Prevention and Control Pollution and
Other Hazards to the Marine En-
vironment
6.8.1 Rights and Responsibilities of Coas-
tal States
6.9 Scientific Research
7. Coastal State Preferential Rights or Other
Non-Exclusive Jurisdiction Over Resources
Beyond the Territorial Sea
7.1 Nature, Scope and Characteristics
7.2 Seabed Resources
7.3 Fisheries
7.4 Prevention and Control of Pollution
and Other Hazards to the Marine
Environment
7.5 International Cooperation in the
Study and Rational Exploitation of
Marine Resources
7.6 Settlement of Disputes
7.7 Other Rights and Obligations
10. Although not expressly stated in Sea-bed
Committee reports, general agreement did
seem to be emerging that the territorial sea
should be limited to twelve miles. But agree-
ment on this issue by developing coastal states
was clearly predicated on the understanding
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805
that their resource interests in areas adjacent
to their coasts would be adequately protected.
11. A consensus has begun to develop on a 200-
mile limit regarding coastal state resources
jurisdiction. Coastal states with continental
margins extending beyond 200 miles, however,
seem to prefer that their entire continez .tál
margins be included within the limits of coastal
state jurisdiction. The limits question, however,
remains largely unresolved because of conti-
nuing differences over the "mix" of coastal
state rights and duties with respect to other
states' rights and duties regarding resource
matters in such areas.
PAGENO="0812"
Nootes & Memoranda
806
"EQUITABLE GEOGRAPHICAL DISTRIBUTION IN THE UN"
-IMCO, A CASE-STUDY
Robert I. McLaren
The principle of "equitable geographical
distribution" (EGD) in the UN "family"
of organizations appears to derive formally
from the Charter of the United Nations
itself (which, in turn, follows League of
Nations precedent). Article 23 of the
Charter specifies that, in electing the ten
"other Members" of the Security Council,
the General Assembly shall give ". . . due
regard. . .to equitable geographical distri-
bution." EGD is then a concept for a
UN plenary body to keep in mind when it
is selecting the members of a subordinate
body. Which members should be on the
subordinate body and accordingly making
a direct input, and which members should
not have that direct opportunity becomes
a procedural matter of utmost importance.
Failure to observe the EGD requirement
can be interpreted as an anti-democratic
move, a move to protect an "establish-
ment" at the expense of other states.
Only EGD provides an impartial basis for
membership, one that does not suggest
there are "superiors" and "inferiors" or
"second-class citizens" in the organiza-
tion. As Nicholas stated, "A practice so
tenaciously retained ever since 1919 ob-
viously reflects something real, even if it is
only, in a great many cases, the reality of
group feelings, racial pride or prejudice,
regional or cultural tradition."2
Whatever meaning EGD had when
the UN was first formed in the 1940's
appears to be largely irrelevant now. The
proliferation of new states in the 1950's
and 1960's has meant that EGD is now
used to indicate a requirement for re-
presentation by the Third World states.
The fact that Non-Third World states are
also geographically dispersed has been of
no consequence to the new pro-EGD
voices; a cry for EGD today is a cry for
more representation by the Third World.
This cry, in turn, usually brings forth
denunciations from Non-Third World
sources that EGD will result in "mini-
states" controlling the world forums
through majority votes or that the major
powers, who make the bulk of the financial
contributions, will be largely unable to
obtain their wishes. For example, a New
York Times' article on the UN Assembly's
24th Session stated that:
The more the little countries insist on
imposing their views on the Assembly,
the more the big powers will be tempted
to make the really important decision
alone, on the outside.3
and
The delegates of the old and bigger
nations are as helpless in the face of
this rebellion as the established social
forces all over the Western world are in
the face of the revolt of the young, the
minorities and the generally discontent-
ed and under-privileged.4
An earlier article that same year on a
speech given on a Big-power vs. Mini-
state conflict noted that: "Basically (it) is
a warning to the small countries that they
cannot vote for unlimited spending just on
the basis of a numerical majority in the
General Assembly."5 Thus, EGD and
Third World representation, whether in a
plenary body or a subordinate body, now
have the same connotation, and one that
is presumably to be feared by the United
States and the other major Western
countries.
This article examines the results of
achieving EGD in one organization of the
UN family, the Inter-Governmental Mari-
time Consultative Organization (IMCO).
By examining the composition of IMCO's
Council and its Maritime Safety Committee
PAGENO="0813"
807
(MSC), both before and after EGD was
instituted, it will be shown that there was
no significant difference in the member-
ship of these bodies. Due to the geographi-
cal dispersion of developed countries as
well as the under-developed Third World
ones, EGD can be achieved without resort-
ing to increasing the respresentation of the
Third World. The Third World was an
insignificant voice on these IMCO bodies
before EGD was achieved and is largely so
after EGD; yet these two bodies, the
MSC in charge of IMCO'6 technical
affairs and the Council responsible for
everything else, are the controlling bodies
within this Specialized Agency.
Originally, in 1959, the IMCO Council
was to have sixteen members, each mem-
ber to be a representative of one of the
IMCO member-governments. Eight mem-
bers to represent nations that provided
international shipping services, and the
other eight members to represent nations
which had an "interest in international
seaborne trade."7 These two blocs were
the traditional rivals in international
shipping-the "ship-owning" and "ship-
using" nations respectively. The principle
of EGD was ignored in this original
formulation; indeed, the principle was felt
to be "unsatisfactory" when the IMCO
Convention was drawn up at the United
Nations Maritime Conference in Geneva
in 1948.8
However, the composition of the Coun-
cil was amended in 1964 upon proposals
of Brazil and Malagasy, two Third World
countries, and a major power, that is
France.9 Recognition of the need for EGD
was given as one cause for these amend-
ments.10 In the new format, there were
to be eighteen members, elected in the
following manner:
(a) Six shall be Government of States
with the largest interest in providing
international shipping services;
(b) Six shall be Governments of other
States with the largest interest in
international seaborne trade;
(c) Six shall be Governments of States
not elected under (a) or (b) above,
which have special interests in mari-
time transport or navigation, and
whose election to the Council will
ensure the representation of all
major geographic areas of the
world.~' (emphasis added)
Thus, although EGD was not a require-
ment for the first four IMCO Councils,
it has been for the last three. The question
to he considered now is whether this
explicit reference to EGD has made any
significant difference to the composition of
each two-year Council.
On the four pre-EGD Councils, there
was a great dominance by the Non-Third
World states and great continuity of these
states as only seventeen different nations
held the sixteen seats. Australia, Belgium,
Canada, France, Greece, India, Italy,
Japan, Netherlands, Norway, Sweden, UK,
USA, USSR, and West Germany were
members of all four Councils (IV-Vll),
while Argentina was a member of the first
two, to be replaced by Malagasy for the
second two.12 The application of the EGD
provision for the last three Councils has
not significantly altered this domination
nor this continuity. Under the EGD pro-
vision (i.e. Requirement (c), Australia and
India have continued to be elected to all
Councils; Poland has been added to the
group, but it hardly qualifies as a Third
World state; and Malagasy continued its
representation for two of these post-EGD
Councils. In effect, the EGD provision has
added just half of its potential Third World
countries, even where it has been explicitly
demanded by this EGD requirement: that
is, six seats (Brazil-3, Ghana-2, UAR-l)
out of a possible twelve (since India and
Malagasy-and Malagasy's replacement on
Council VII, Algeria-already held six
seats on the three Councils). Furthermore,
overall in the last three Councils, EGD
has caused an insignificant increase in
Third World Voices. From the 6/48 that
would have existed without EGD due to
the presence of India and Malagasy (and
Algeria) on the 16-member Council, there
has been an increase to a total of 12/44,
including India and Malagasy, on the
enlarged 18-member Council; the per-
centage increase is 22.2%-12.5%==9.7%.
In a world clamouring for equality of re-
presentation and a greater voice for the less
powerful, I do not think a 10% increase to
23-317 0 - 73 - 52
PAGENO="0814"
808
a 22 % total is significant. In effect the,
additional two seats on the Council have
been given to Third World States, but not
at the cost of dislodging any of the tradi-
tional powers or of disrupting their con-
tinuity. From 2/16 members, the Third
World representation has increased to
4/18. However, there has been no change
* in membership for the fourteen Non-
Third World thembers, and thus very
little has been done to reduce their
dominance.
The results for the composition of the
MSC do not show much difference.
Originally, the MSC was to have fourteen
members, eight of which were to represent
the "ship-owning" nations and the other
six to represent "nations with an important
interest in maritime safety."13 Again,
there was no mention of EGD until the
original convention was amended. Each
MSC was to be composed during its four-
year term without explicit reference to any
concept of EGD.
The amended provisions for the com-
position of the MSC, however, provided
for sixteen members in the following man-
ner:
(a) Eight members shall be elected from
among the ten largest ship-owning
States;
(b) Four members shall be elected in
such manner as to ensure that,
under this sub-paragraph, a State
in each of the following areas is
represented:
I. Africa
II. The Americas
III. Asia and Oceania
IV. Europe
(c) The remaining four Members shall
be elected from among States not
otherwise represented on the Com-
mittee.14 (emphasis added)
In the case of the MSC (including the
original MSC which was judged by the
ICJ to be invalidly constituted but whose
actions were accepted by the IMCO
Assembly'5), there were three MSC's
chosen before the EGD provision was
introduced, and one afterward.
Although there has been only one
MSC chosen with an explicit reference to
EGD, in 1969, the result is even poorer
than the weak performance of this EGD
requirement for the Council, and does not
bode well for the Third World. To satisfy
the above-mentioned Requirement (b) in
1969, UAR, Argentina, Pakistan, and West
Germany were chosen to be on the MSC;
however, it must be noted that all four of
these nations had already been members
of every one of the MSC's before this EGD
provision was introduced, and West
Germany cannot be considered a Third
World state. In effect, the new enlarged
MSC was obtained through replacing
Liberia by UAR and adding Sweden and
Spain-hardly a victory for the Third
World! Argentina, Canada, France,
Greece, Italy, Japan, Netherlands, Norway,
Pakistan, UK, USA, USSR, and West
Germany continued the membership that
they had begun in 1959.
The obvious conclusion from these
two examples, the IMC,O Council and the
IMCO MSC, is that EGD can be achieved
without resorting to Third World nations.
Non-Third World states, such as Australia
and Japan, qualify as Asian or Oceanic
nations, and a legal interpretation of the
term, EGD, means that further represen-
tation from Europe must be sought as well.
If the Third World countries want a
stronger voice, then they will have to use
either a more definite term than EGD or
else require a reconstituting of the subordi-
nate bodies so as to displace the entrenched
powers. At present, and certainly in the
case of IMCO, EGD can be satisfied
without giving the Third World much more
of a say than it had before.
Another conclusion, dealing with inter-
national relations in general, is that a
distinction needs to be made between
those international organizations where
mini-states have a potential majority, such
as the General Assembly, and those where
they do not, such as some of the Specialized
Agencies. In a technical agency, such as
IMCO, where each member-government
must contribute a certain amount of
technical expertise to the solution of a
problem, it is probably not yet possible
for Third World countries to make a
major contribution, and so they cannot
PAGENO="0815"
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expect' to achieve immediately anything
approaching equality of representation.
EGD can and will be instituted as a face-
saving measure, but it will not be some-
thing to disrupt the traditional powers.
Thus, international organizations with a
political raison d'etre such as the General
Assembly, can and should be differentiated
from some of the technical Specialized
Agencies when discussions are undertaken
concerning the demise of the UN due to
mini-state irresponsibility.
A final conclusions is that the tradi-
tional powers, or the Non-Third World
nations, should be aware of the anti-
democratic situation that they nre promot-
ing. TMCO, for example, is controlled by
its Council and MSC; yet, the eleven
governments that have been represented at
every meeting of both bodies-Canada,
France, Greece, Italy, Japan, Netherlands,
Norway, UK, USA, USSR, and West
Germany-are certainly not Third World
nations. The Third World nations are
clamouring for the right to be heard and
to be considered sovereign and in charge of
their own affairs, especially when it comes
to solving the problems of a world society.
If EGD is granted, only to be seen later as
another example of tokenism, there would
appear to be as little future for the inter-
national technical organizations as the
critics say there is for the political ones.
When a man suffers a public slight, it
little matters to him that it is because the
other fellow is claimed to have superior
technical expertise!
Footnotes
1. As well, Article 23 states that heed should be
paid to other required conditions, conditions
which would correlate power and responsibility
and thus ensure that middle-powers would be
represented as well as mini-powers. However,
it has also been noted that this requirement to
pay heed to these other conditions has largely
been ignored by the General Assembly-
the General Assembly, like the old League
Assembly, has persisted in electing members
who represented blocs or regions, without
worrying too much about whether these were
states of straw or not." H.G. Nicholas, The
United Nations as a Political Institution (4th.
ed; New York: Oxford University Press,
1971), p. 76.
2. Ibid.
3. "24th U.N. Assembly: `Small-Power Session',"
Tue New York Times, 20 December 1969,
p. 10.
4. Ibid.
5. "Big Powers Warn UN on Spending," The
New York Times, 19 April 1969, p. 7.
6. L.W. Goddu, Jr., "IMCO, An Assistance to
the American Merchant Marine," United
States Naval Institute Proceedings, XCII
(December, 1966), 72.
7. Article 17 of the IMCO Convention, as re-
printed in David I. Padwa, "The Curriculum
of IMCO," International Organization, XIV
(Autumn, 1960), 531.
8. Padwa, "The Curriculum," 531.
9. I.M.C.O. Assembly, Second Extraordinary
Session, 1964, and Fourth Session, 1965, Reso-
lutions and Other Decisions, (London: I.M.C,O.,
1966), p. 1.
10. Ibid.
11. I.M.C.O. Secretariat, Basic Documents I
(London: I.M.C,O., 1968), p. 12.
12, All membership data in this article was com-
piled from "Specialized Agencies," Inter-
national Organization, XIII (Summer, 1959),
465; from five editions of I.M.C.O. Assembly,
Resolutions and Other Decisions-i.e. Second
Session, 1961 (published in 1961), p. 20; Third
Session, 1963 (1964), p. 26; Fourth Session,
1965 (1966), pp. 56-57; Fifth Session, 1967
(1968), p. 139; and Sixth Session, 1969 (1970),
pp. 203, 205-206; and from a personal letter
from Mrs. A. Meidrum, Public Information
Officer, IMCO, 29 June 1972.
13. I.M.C.O., Basic Doduments I, p. 14n.
14. Ibid., p. 14.
15. Resolution A. 21 (II) as printed in I.M.C.O.
Assembly, Second Session, 1961, Resolutions
and Other Decisions, p. 1.
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810
[From the Saturday Review/World, Nov. 6, 1973]
CHAOS AT SEA
ARDENT INTERNATIONALISTS ARE SAYING THAT WITHOUT NEW RULES GOVERNING USE
OF THE SEAS, ARMED CONFLICT IS INEVITABLE
Man traditionally has regarded the sea as vast, mysterious, and wet. No one
questions its wetness, but the size and mystery of it all seem to be evaporating.
Aquanauts have discovered that they can live like fishes on the sea floor for
months at a time, and deep-diving submersibles routinely explore the abyssal
plains. As man overcrowds and overexploits dry land, nations already are be-
ginning to bruise elbows in their rush to corner marine food supplies, natural
resources, and sheer space. Governments are quarreling over fishing grounds,
rights of passage, mineral resources, pollution control, and scientific exploration.
The world finds itself threatened by this tangle of problems with sobering
suddenness. As recently as 1958 the Geneva Convention on the Territorial Sea
failed to recognize how rapidily man would expand his domain offshore. The
alert was not really sounded until 1967, when a genial but determined diplomat
from Malta named Arvid Pardo proclaimed that "the known resources of the
seabed are far greater than the resources known to exist on land." In a 3'/2-hour
speech to the General Assembly, Pardo, who was Malta's ambassador to the
United Nations from 1964 until 1971, argued persuasively that ocean technology
was outstripping ocean politics at a dangerous rate. His words were greeted at
first by skepticism bordering on suspicion (why was he bringing this up now?),
but he was dead serious. Within a few months Pardo was being called "father of
the seabed" and had succeeded in introducing the idea that a new age was dawn-
ing. More specifically, he w-arned that man w-ould quickly have to formulate new
rules for uses of the ocean if he was to avoid widespread warfare.
`The direct result of Pardo's speech was the creation of an ad hoc U.N. commit-
tee, which in 1969 became a permanent committee to study peaceful uses of the
sea. Most important. the United Nations was persuaded to hold a Law of the Sea
Conference in 1973 aimed at writing an international treaty. Last summer ninety-
two nations spent two months in Geneva, thrashing through a maelstrom of pro-
posals, counterproposals, and just plain objections; the committee, expected to
swell to 150 members, hopes to hold its substantive session in Santiago next year.
Aside from the fact that this is the biggest committee in U.N. history, the
points of view represented seem almost impossibly diverse. Among the 130 coun-
tries generally considered to make up the world community, 29 are completely
landlocked, 51 have small coastlines, 25 have small-to-moderate coasts, and most
of the 25 that have extensive coastlines are already affluent. Those with long sea
frontage naturally would like to extend dominion seaward, while landlocked
countries would prefer a strong international agency to assure even distribution
of sea wealth.
Legally, the sea is a quagmire. Do the oceans and their wealth `belong to every-
one (res eonimun.is) or to no one (res ??nliius)? Most people say neither, but the
proportions remain to be worked out. Modern nations can no longer be as high-
handed as were Spain and Portugal in 1494 when they divided the world's oceans
equally along a north-south line through the Cape Verde Islands. The concept of
res conimunis first appeared in 1608, when Dutch jurist Hugo Grotius argued that
the sea, like the air, is not subject to appropriation. However, by 1700, men were
making a distinction between "high seas" and "territorial seas," and in the
nineteenth century the latter limit was defined by the three-mile range of a
cannon, the extent of land-based control by weapons.
Modern legal confusion dates from the 1945 Truman Proclamation. This vague
doctrine asserted territorial rights to the limit of the continental shelf. Unfortu-
nately, the shelf was not only ill-defined but also geologically capricious: For ex-
ample, while Peru has practically no shelf, Siberia presides over 800 miles of
shallow-and potentially mineral rich-undersea terrain. Thus by 19~2 Peru,
Chile, and Ecuador, all practically shelfless, had announced total sovereignty
over a belt within 200 miles of shore. Such claims are obviously impractical in
the cases of island groups and seas such as the Mediterranean and Caribbean.
Hence some sort of compromise must be reached, perhaps involving a 12-mile
"territorial sea" `and a 200-mile "patrimonial sea. "The former would be a zone
of near-complete control; for example, foreign submarines would be granted free
passage only while they are surfaced. The latter zone would involve primarily
fishing and mineral rights.
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Within this issue is' the ticklish question of rights of passage through the
world's 116 major navigable straits. Naval powers like the United States,
Russia, and Japan will sacrifice almost anything to obtain guaranteed passage
for tankers, freighters, and warships. If controlling nations closed only three key
straits in Southeast Asia, for example (Makassar, Malacca, and Torres), raw
materials for Japan would have to pass all the way around Tasmania-a dis-
placement that would force dramatic changes in the value of the yen and ulti-
mately in the entire world monetary balance.
The other question that must be resolved is the nature of the controlling
regime. Most of the developing and landlocked nations want a strong interna-
tional agency that will prevent industrial states from taking control. Developed
nations want a freer hand, with individual states holding licenses to mineral and
hydrocarbon right. The answer could be a "cosmo-corporation" along the lines of
Intelsat, the international consortium of eighty-two nations that regulates corn-
inercial satellite use.
Many observers are pessimistic about the ability of the Law of the Sea Con-
ference to reach agreement on such basic issues, especially since some less-devel-
oped but mineral-rich countries would rather negotiate bilaterally. "If I were an
LDC and didn't have access yet to my own mineral resources, what would I do
at a conference like that?" asks one economist. "I'd stonewall it." Nonetheless,
U.N. officers hope that once the two big questions of territorial sovereignty and
the international regime can be worked out, the smaller details will quickly fall
into place. Dr. Pardo, who worked in the United Nations since its formation in
1945 and is now at the Woodrow Wilson International Center for Scholars in
Washington, agreed to summarize his feelings about the conference-and the
issues-for SATURDAY REVIEW/WORLD~:
"I think most people are finally realizing that we are involved in a revolution
in our uses of ocean space. In the face of this revolution, traditional law of the sea
has almost totally collapsed. That is why in 1967 I began to push the idea that the
seabed be considered the common heritage of mankind and that an interna-
tional organization be set up to administer the uses of the sea. The resources
should be developed to benefit all men, and the financial benefits used primarily
for the developing countries.
"Let me say that I was thought a tOtal madman when I made the speech. They
said I was indulging in science fiction, that estimates of mineral wealth on the
sea floor were immense exaggerations, and that nothing would happen for dec-
ades that would require the attentiOn of the United Nations. Well, the ocean
policy that the United States presented in 1970 turned out to a fairly close
elaboration of what I had said in 1967.
"Even this concept is no longer viable. One can't consider the seabed separately
from the rest of ocean space. We are running out of room on land. I see a trend of
transferring human activity into the oceans-both to avoid congestion along
the coasts and to relieve pollution. Cities are being planned off Hawaii and
in the North Sea. The Dutch, the Belgians, the Japanese are already moving
toward offshore facilities. The Dutch want an artificial island to recycle wastes.
They also say, instead of re-doing the port of Rotterdam for supertankers, why
not have a deep-water port offshore? Once you have a port or a refinery, why not
small industry? Why not nuclear power plants? Why not housing for the people
who work at these facilities The whole thing grows like Topsy once it starts.
The military will want submarine bases in undersea mountainsides. We will be
tempted to change the weather, divert ocean currents. Russia and Canada both
intend to divert huge rivers that now flow northward: What will this do to the
climate? These schemes are frighteningly dangerous but perfectly legal now.
"The present law is based upon two concepts: sovereignty and freedom. There
is national sovereignty in territorial waters, freedom beyond. We also have
various zones for fisheries, security, mining. There is no consensus on limits;
so every state has been doing what it wishes. There must be an agreement that
we can't have total sovereignty, for that would mean total chaos. Nor can we
have total freedom, for the same reason.
"What I would like is a new international agency to sort out these questions.
It should not be part of the United Nations, for it would then sink into the swamp
of what the United Nations has become. Nor should it be a rival to the United
Nations. It must be a parallel agency, founded on different foundations. We are
no longer in 1945. We are getting on to 1975, and the world has changed. We
cannot have an international system based upon the system of one nation, one
vote. The way things stand, you can get a voting majority at the U.N. from
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states that represent ten percent of the world's population; you can get a two-
thirds majority with states representing less than fourteen percent of the
population. This is ridiculous.
"The agency would have three categories of member states, all of which
must have a population over one hundred thousand. First, states that have
more than one hundred million population or meet six or nine criteria, such as
length of coastline, catch of fish, and volume of merchant shipping. Second, all
other coastal states. Third, landlocked countries. A decision by the agency would
require a majority in two of the three categories. Everybody would have one vote,
but they would have to express it in the category in which they belong.
"The regime should be concerned with all problems associated with the sea.
It should establish international standards for the use of the sea, whether
within or outside national jurisdiction. The outside area should be administered
for the benefit of the international community as a whole, taking into particular
account the needs of poor countries. The system should take on such tasks as
pollution monitoring, fisheries management, and the settlement of disputes.
Someday we will need another agency like it to deal with outer space.
"Whatever kind of regime the United Nations adopts, the details will have to be
worked out in Santiago. By the standards of the United Nations, we made
fantastic progress over the summer in Geneva compared with last year. There's
been a fantastic amount of movement, of putting out draft treaties. What has
not started yet is serious negotiating, which is understandable. You don't get
governments to focus on this question on a high political level until they have to.
"Once the conference starts, we shall really have to move. Next year we shall
complete, at best, consideration of the alternative draft treaties. The crunch will
come in the second half of `75 or the beginning of `76. If there is no agreement
by `76, the conference will fail. Why? Because technology will not wait. By then,
manganese nodules, for example, will have become big business.
"If the conference fails, there will be not only the obvious short-term chaos,
such as nodule filching and the Iceland fishing dispute, but also rather serious
long-term implications for the world community. They will become apparent
after ten or fifteen years, not more. Once states have a technology, especially
a powerful technology, they will go ahead and use it and the devil take the hind-
most. That is the way the world has always operated. If there is no regime for
controlling that technology, the rich will get richer. The developing countries,
the ones without the technology, will, as usual, be the ones to suffer."
THE RAPE OF THE SEABED
ADVANCED NATIONS WOULD LIKE TO PLAY "WINNER TAKE ALL," BUT POORER COUNTRIES
ARE ALSO DEMANDING A SHARE OF THE VAST UNDERWATER OIL AND MINERAL CACHE
(By Alan Anderson)
The benign neglect of the sea floor is coining to an end. Man has discovered
riches in the continental shelves and abyssal plains, and he aims to get at them.
Until recently the 150 million square miles that lie beneath the seas had not yet
received much attention from man, aside from a rather persistent habit of
"deep-sixing" a fabulous variety of human and industrial garbage, tangled
cables, wasted ships, and roughly a million tons of unexploded ordnance. Now
at least part of the picture is changing rapidly.
Since World War II the boom in oceanography and a virtual revolution in
geological thinking have resulted in a picture of the world's oceans unimagined
even by professionals in the field. They are beginning to see not only that hard
minerals and petroleum abound under the sea but also how they got there.
Knowing this, it is for the first time possible to search for undersea riches in
something more than a random fashion.
There is, of course, a problem: Given the ability to find these mineral riches,
and even to retrieve them, who is the rightful owner? The technologically
advanced nations would like to play winner take all and, indeed, are uniquely
capable of exploiting seabed caches. On the other hand, poorer nations are also
demanding a slice of the underwater pie, promoting the notion that such wealth
is part of "the common heritage of mankind." They warn against attempts by
the sea powers at any sort of undersea rip-off, speaking ominously of counter-
moves such as the restriction of fishing and navigation rights. The United States
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in particular has stirred up considerable resentment because of the aggressive
attitude-and action-taken by American mining companies. In fact, a ship
built to secret specifications by Howard Hughes set sail in August to begin
experimental mining, presumably in the Pacific Ocean, far in advance of any
sort of international agreement.
While other companies wait for legislation that would protect them against
intervention by other companies or other countries, they are no less eager to
begin the harvest. It is not hard to understand their impatience: High-grade
mineral resources are becoming scarce in this country, as are petroleum reserves.
"The United States," insists Ian MacGregor, chairman of American Metal Cli-
max, Inc., "is turning into a minerals-poor nation.~' Demand for hard minerals
doubled over the last twenty years, and predictions say it will double again in
twenty-five years. Yet in 1970 this country had to pay $8.6 billion to foreign
countries for minerals and petroleum it could not produce domestically. Hence
the mining industry is arguing strenuously that free access to seabed resources
would not only assure a supply of strategically important metals now controlled
by foreign governments but would also correct a painful balance of payments
disadvantage.
In an effort to mitigate this new kind of ugly Americana, the official policy of
the country, as presented to the preliminary Law of the Sea Conference in Ge-
neva in August, is to create an international regime to control mining through
the United Nations. Such a regime, according to the plan, would tax mining op-
erations according to complex formulas. Revenues could bring the United Na-
tions some $6 billion a year that could be applied to keeping the peace, protecting
the environment, and aiding poor countries. Best of all, the United Nations
would no longer have to depend on voluntary contributions subject to the whim-
sey of changing governments. The prematurely aging institution would gain
sorely needed power and stature.
Geologically, the stakes of this game may conveniently be divided into two
categories: petroleum and hard minerals. Petroleum is more familiar as a re-
source problem, one that is being fanned by a few Arab leaders who see our short-
ages as the key to forcing change in American-Mideast policy. According to a
U.N. report, some 2,272 billion barrels of offshore oil may offer the most im-
mediate escape from this coercion.
More recently discovered is the wealth now locked in an assortment of "hard"
minerals, particularly in potato-shaped manganese nodules lying loose on the
bottom of most of the world's oceans. Estimates of quantity vary wildly, from
90 to 1,600 billion tons in the north Pacific alone. So do ultimate recovery costs
and market values, although the best guess seems to be that the nodules will
sell for something like $115 a ton. As Larry Fabian of the Brookings Institution
says, "There is really no hard economics in this business yet."
Even soft economics seems to be enough for the mining companies. Manganese
nodules were discovered during the historic oceanographic expedition of H. M. S.
Challenger, 1872-76, but their abundance was not appreciated until a decade
ago. In 1965 a book appeared called Mineral Resources of the Sea by John Mero,
which carried astounding resource estimates that inspired a number of com-
panies to gear up for what seemed to be the coming sea-floor bonanza. Mero
has since become quite wealthy as a consultant, and his early estimates have
been toned down a bit; but nodule is still a magic word for marine technologists.
These golf-ball-sized blackish lumps may be found from Scottish lochs to Lake
Michigan, but the mother lode seems to be a 12-million-square-kilometer triangle
southeast of Hawaii, where they occur in densities of two pounds per square foot.
Manganese nodules are thought to form as precipitates around a "seed," such
as a grain of rock, a bit of red clay, or even a shark's tooth or whale's ear
bone. Although a single nodule may contain more than thirty different metals,
miners are chiefly after `the cobalt, nickel, copper, and manganese, in that order.
In the case of the United States, this is easy to understand: We import 92 per-
cent of our cobalt, 84 percent of our niókel, 98 percent of our manganese, and, even
though we are the world's largest copper producer, 19 percent of our copper. The
first three are in great demand by steelmakers-cobalt and nickel for forming
superalloys when blended with iron and manganese for processing.
Despite the difficulty of raking the sea floor from three miles above, the job
may still be easier than land mining, with its "railroads to nowhere" and other
transport problems. The prospects have already whetted mining appetites not
only in the United States but :aboo in France, Germany, Japan, Canada, Australia,
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and the Soviet Union; two dozen other countries have shown interest. At this
point there seem to be enough nodules for all. The prime resource area in the
Pacific is thought to be rich enough to support 100 simultaneous mining operations
for 200 years-even though a single mine, to be economical, would have to com-
prise some 4000 square miles, versus 100 on land.
The American effort to mine the sea floor is being led by `a handful of private
companies, particularly the Kennecott Copper Corporation, Tenneco's Deepsea
Ventures, Inc., and Howard Hughes' Summa Corporation. Together they have
invested about $100 million. iDeepsea has processed more than 100 tons of nodules
in a pilot plant in Virginia and says that it could handle a million tons a year
by 1975 or 1976. The 618-foot vessel launched by Hughes in August is said to
be capable, in tandem with a 324-foot submersible barge, of retrieving some five
tons of nodules a day from the plains of the deep sea. The companies are eager,
like technological white knights, to save the country from its mineral woes. "We
are ready," says N. W. Freeman of Deepsea Ventures, "to go commercial."
There is one snag, however: The U.S. government is unable, and unwilling, to
assure the mthing companies that their multimillion-dollar investments will be
safe. The American Mining Congress is fighting hard for a bill introauced in both
houses of Congress that would give them this assurance-and more. Under the
bill any "qualified" company could secure a claim to blocks of ocean floor 40,000
kilometers square-an area larger than Vermont and New Hampshire combined-
plus a commitment by Uncle Sam to underwrite any losses during the next forty
years, all for only $5000. The bill, introduced in the Senate by Sen. Lee Metcalf
of Montana and in the House ty Rep. Thomas Downing of Virginia, so blatantly
favors the mining lobby that even Metcalf admits it is really intended not so
much for passage as to spur the government into some kind of action.
If such a giant land grab did get under way, there would be global confusion,
almost certainly accompanied by violence. Metcalf concedes publicly that those
nations without marine technology would be left high and dry. A natural reaction
on their part would be to start a land grab of their own-most likely a claim
of a territorial jurisdiction of 200 miles for fishing and navigation as well as
mineral rights. It is easy to visualize an escalation of competing claims, infringe-
ment disputes, and the use of armed gunboats. Furthermore, a number of devel-
oping nations whose economies depend on metal exports would suffer if world
markets were suddenly swelled by huge new sources. A mere handful of nodule
mining operations, for example, could equal the current world production of
cobalt. A mineral-rich country such as Zaire would certainly suffer.
Legally, the bill is on soft ground or no ground at all. Unfortunately, the 1958
Geneva Convention on the Territorial Sea did not really deal with the sea beyond
depths of 200 meters; there was then no idea that this region would ever be useful
or disputed. The first relevant precedent was the 1970 U.N. resolution, passed
108 to 0 in the General Assembly, with fourteen Soviet-bloc abstentions, that the
deep seabed could not be appropriated by any nation. Last March ex-Secretary
of State Dean Rusk said that the mining proposal was "sheer insanity," and
Lyndon Johnson, w-hen he was President, wrote: "Under no circumstances, we
believe, `must we ever allow the prospects of a rich `harvest in mineral wealth
from the seabed to create a new form of colonial competition among the maritime
n'ations." At present, the administration is silent on the bill-a tactic viewed
less as tacit approval than as cagey willingness to use it as a bargaining weapon
in Santiago.
The miners are fit to be tied at the delay. The American Mining Congress, a
lobbying group, complains that the President promised three years ago some
form of interim legislation that would allow U.S. companies to maint'ain their
technological lead over other countries. C. H. Burgess, vice president for explora-
tion at Kennecott, warned a Sena'te committee last year that firms needed "certain
assurances of a legal regime" before risking "large sums-$150-300 million-for
a commercial plant." An exchange at the same hearing between Senator Metcalf
and T. S. Ary of the Mining Congress revealed the sense of camaraderie and
unreality that `pervaded the discussion:
AnY. If the United Nations Seabed Committee continues at its present slow
rate, it is unlikely that a treaty `will be ratified in this decade, if ever, and certa'inly
long after the immedi'ate necessity for a legal regime has passed.
METCALF. If you will pardon me, I would say you should change that word
decade to centuries.
Any. Our committee discussed that, and we thought we `should put decade
in there rather than until eternity.
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METCALF. Well, you are more optimiStic than I am.
Alaskan Sen. Ted Stevens, a cosponsor of the bill, further cited the OPEC and
Chilean expropriations in recent years to illustrate what he called changing times.
"We are living in a different world today, one in which the less developed nations
are taking concerted action to strengthen their economic position `and weaken
ours."
While the nodules are the splashiest ocean-mineral issue, law of the sea debaters
are quarreling over scores of others. Among hard minerals the biggest money-
maker by far is ordinary gravel; over 100 million dollars' worth is scooped up
each year for construction projects. Whole industries depend on the dredging of
tin ($41 million a year,), limestone ($36 million), sulphur ($26 million), diamonds
($4 million), iron sands ($4 million), and barium ore ($1 million). The United
States alone collects 20 million tons of oyster shells each year to make cement
and fertilizer. Rutile `and ilmenite yield costly titanium, widely used in aerospace
manufacturing.
In addition to dredging, more than 300 operations off sixty countries are earning
over $400 million a year extracting minerals directly from sea water, especially
salt, bromine compounds, and magnesium, and, to a smaller extent, potassium,
calcium, and deuterium-a heavy form of hydrogen that someday will provide
a virtually inexhaustible source of energy as the fuel for hydrogen-fusion
reactors. More than 200 plants extract a mineral that is becoming increasingly
scarce: fresh water. Finally, enterprising Russians are pursuing the age-old
dream of gleaning gold from salt water. Scientists at the Irkutsk Institute of
Rare Metals report successful culturing of a fungus that extracts 98 percent of
the gold from some sea-water samples. Other scientists are skeptical of this
biological sleight of hand. Nor has anyone found the key `to better extraction
through chemistry. One calculation indicates that by chemical means it would
cost $50,000 to isolate the 200,000 dollars' worth of gold found in a cubic mile of
sea water.
The most exciting news for mineral seekers these days, however, has come
straight out of basic geological researëh during the last decade. Geologists have
demonstrated the astounding fact that the earth's crust is not as rigid as sus-
pected but highly mobile, composed of a series of sliding "plates," which are cre-
ated along oceanic ridges and consumed in oceanic trenches. Most important, the
time lag between this discovery and its practical application has been breath-
takingly short. Even as oceanographers were dredging up the muddy evidence
for the theory of sea-floor spreading, they were hauling aboard the key to new
mineral riches. Deep-sea drillers abroad the Glomar C1i~aflenger and other
research ships have discovered that minerals tend to concentrate along the lines
where earth crust is created (divergent boundaries) and consumed (convergent
boundaries). The most important find so far are some hot brines at the bottom
of the Red Sea, rich in iron, manganese, zinc, silver, copper, and gold. The Red
Sea is a "baby ocean," slowly widening as molten rock from the earth's mantle
rises to create new sea floor along the central seam. Three large pools along this
seam are thought to contain more than 50 million tons of metal, worth some $2.5
billion. Economic metal lodes may also be found along older divergent plate
boundaries, such as the Mid-Atlantic ridge.
The implications of sea-floor spreading and continental drift have not been
lost on oilmen. It has become apparent that petroleum, like hard minerals, can
be expected to occur along both divergent and convergent boundaries. In a baby
ocean, for example, organic material from land is washed into the water. As
water evaporates, layers of salt precipitate. The ocean broadens (the Atlantic
was a baby ocean 100 to 200 million years ago), and sediment slowly covers the
organic matter, which, by processes still not well understood, turns into petro-
leum. Drilling tests have already revealed encouraging layers of salt and organic
mud in the Red Sea, for example, and on both sides of the Atlantic; petroleum
has been found along the West African coast, and oil reserves off the eastern
United States are now thought to far exceed those under Alaska's North Slope.
Convergent boundaries, where plates grind together, are thought to be equally
rich, including such regions as the South China Sea, the Sea of Okhotsk, the
Bering Sea, the Philippines, and Japan.
Knowing all this, oil companies now, estimate that offshore petroleum reserves
are far greater than reserves on land. In 1956 only 1 percent of all our oil came
from offshore wells; now it's up to 18 percent and is expected to reach 30 per-
cent by 1995. The demand for offshore drilling rigs is now so great that many
countries are unable to buy them. About 135 countries have prospects of discover-
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ing offshore petroleum; half of these are exploring, and half of these are already
drilling.
The main problem offshore is that production costs increase more rapidly than
depth. Expenses jump four times, for example, as depth drops from 83 to 330
meters; at greater depths it may be possible to tap only giant oil fields. Fortu-
nately, of the 2272 billion barrels of petroleum estimated by the United Na-
tions to exist offshore, some 1344 b.b.-over half-are buried in the continental
shelves. These shelves are basically shallow-water extensions of the conti-
nents themselves, averaging forty-five miles in width and dipping to about 200
meters in depth. Therefore, much of this huge area is within commercial range
already; one well is now pumping from a depth of 114 meters.
Such an ongoing black-gold rush makes it especially urgent that nations
define seabed ownership rights. By the mid-Seventies oil drilling will pass fishing
as the number-one oceanic revenue earner. Governments as well as private
companies want the spoils. A single lease in the Santa Barbara Channel brought
the Department of the Interior $000 million in revenue several years ago. Tre-
mendous pressure to exploit oceanic oil is building up as Middle Eastern leaders
claim more control of their oil fields and Alaskan wells remain capped. Because
so many of the potential petroleum pools lie in areas of dispute, extraction
without an international treaty would result in arguments over pollution as
well as wealth. Unless some great agreement is reached, the world is certain to see
armed clashes as the energy crisis worsens. Venezuela and Columbia, for exam-
ple, have more than once come close to blows over off-shore oil near their com-
mon border.
Idealists see the hard-and-soft mineral quarrel as the ultimate opportunity
for the application of international law. Others foresee a new age of neo-
colonial lawlessness of the type that led to the cynical division of Africa in
the nineteenth century. The only workable course at present seems to be
some sort of worldwide controlling regime. The United States Oceans Policy,
announced by President Nixon in 1970, advocates creation of an International
Seabed Area-covering everything deeper than 200 meters-controlled by an
International Seabed Resources Authority with real power to license mining
operations, arbitrate grievances, and levy fines of up to $1000 a day for pol-
lution or other violations.
Perhaps the most radical feature of this plan is a complex formula to dis-
tribute profits among all nations, based on population and per capita income.
For example, of a hypothetical revenue of $500 million that might be gathered
by the end of this decade, Somalia ($61 per capita income) would get $384,-
500; Ceylon ($159 income) would get $1,717,000; and Brazil ($381 income)
would get $12,567,500.
Between us and an agreeable ocean regime lies legal chaos. As John Dom-
broski writes in the Cornell Law Review, "The law of the seabed largely con-
stitutes an area of no law." Precedents are vague or non-existent; each coun-
try has its own warring factions seeking different goals. Given the un-
certain state of things, the chummy cynicism of Mr. Ary and Senator Met-
calf may not be unrealistic after all. It may indeed be many years before
nations can agree whether to compete for the riches of the sea in traditional,
war-like fashion or to divide them peacefully.
LAw OF THE SEA MEETING: A WET BLANKuI F~R OcEAN RESEAECH
(By Deborah Shapley)
The final preparatory session for next year's 130-odd-nation Law of the Sea
Conference ended quietly on 24 August in Geneva, but its deliberations regarding
ocean research have stirred up a fuss among those concerned with the meeting's
scientific aspects. At issue is whether the United States will succeed in getting
some current restraints on ocean research removed, and whether the U.S. position
favoring maximum freedom of research really goes far enough. On both counts,
some oceanographers here are unhappy.
At the meeting, which was the last of its kind before all nations gather in San-
tiago, Chile,~ next year to draw up a new international code for the oceans, - tire
United States and the Soviet Union were virtually alone in advocating freedom
for scientific research. Less developed countries, and even some advanced nations
such as Australia and Canada, want states that border on the oceans t-o have the
power to prevent foreign research vessels from plying their waters out to 200
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miles. While it is conceivable that a policy maximizing freedom of research might
be adopted at the conference next year, at the moment this looks very unlikely.
If, as seems very possible, the coastal state control position is adopted, "It would
cause great hardship and slow down the progress of science and make it much
more difficult to do research in these fields," says John Knauss, Provost for
Marine Affairs of the University of Rhode Island and a scientific adviser to the
U.S. delegation.
Attempting to understand the diplomatic jargon of proposed articles for a
future Law of the Sea treaty is like scrutinizing tea leaves; but, the research
issue, although complex, is understandable. Three major controversies have
arisen, according to Knauss, other scientists, and State Department spokesmen
who were there.
The first has to do with the incre~sing likelihood that some sort of interna-
tional governing body will be established to regulate exploitation of the seabeds
of the deep ocean, which are believed to contain vast mineral wealth. Knauss
says that it was "suggested" during the seabeds meetings that this body have a
role in ocean scientific research beyond any limits of national jurisdiction. But
he added that he was "not worried" that if the organization had such a role, it
would be at all powerful.
Second is the issue of who should control scientific research in the so-called
"economic zones" of the oceans, which would extend outward from the coast for
200 miles and which are likely to become recognized as a new type of national
jurisdiction. The U.S. position, attempting to maximize the researchers' freedoms,
places the responsibility for certifying that a vessel is doing only open research-
and not military intelligence, or proprietary industrial work-on the country
under whose flag she sails. Under the U.S. proposal, that nation would notify the
1coastal state of all plans and give it plenty of time to have its own scientists on
board the research vessel, examining data, and learning the implications of any
offshore discoveries for the coastal nation. Although fine for scientists, this pro-
posal apparently made little headway at Geneva this summer. Instead, less devel-
oped countries preferred proposals which stated the opposite: that the coastal
state shall have control over who is permitted to do scientific research off its
shores in the 200-mile economic zone. One State Department spokesman newly
returned from Geneva explained the differences between the two positions: "If
we were to write to Chile announcing our intent to do research within 200 miles
of her shores they might never answer, and we would not be able to proceed.
Under our proposal, they don't have to answer." He added that under the less
developed nations' proposal, a country could turn down U.S. requests to do
research offshore for no reason whatever, "just arbitrarily."
Knauss stated that the controversy is a serious threat to oceanography because
the 200-mile limit which the diplomats are discussing encompass most of the con-
tinental shelves and 37 percent of the world's ocean area. Moreover, the conti-
nental shelves are pretty pieces of real estate as far as science goes: researchers
in physical and biological oceanography, geology, and plate tectonics all vitally
need data from these regions. "There's more science per square acre there than
anywhere else in the oceans," Knauss said. The United States has apparently
not won converts to its pro-research position.
A third controversy that arose in Geneva concerns the fate of drilling the
deep sea floor. Under existing international law, the coastal state must give its
consent for any scientific drilling into the ocean floor on the continental shelf, and
the U.S. position is that this should continue. Deep-sea drilling is thus the one
exception to the U.S. philosophy of maximum freedom for scientific research.
Some scientists have suggested that the reason for this is that the Department of
the Interior wants to keep all sea floor drilling-which would include drilling
for oil and natural gas reserves-as regulated as possible. Another explanation
is that the Department of Defense wants the power to prohibit foreigners from
drilling in the sea floors off U.S. coasts.
Whatever the reason, the scientists don't like it, Knauss says, "My preference
would have been that one could put~ the ohligation on the part of the nation
sponsoring the drilling." William Nie~enberg, Director of Scripps Institution of
Oceanography, was more outspoken. In the last weeks of the conference, Nieren-
berg urgently cabled John Stevenson, the head of the U.S. delegation in Geneva,
urging him to rewrite the scientific drilling proposals so they would resemhle the
other, maximum freedom of research provisions in the U.S. position. And, in an
apparent reference to not only the drilling controversy, but the likelihood of
some international governance of high seas research and research in the 200-mile
economic zone, he added: "We see uncertainties and draft positions that would
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make oceanic scientific research an impassible administrative swamp if approved
and implemented."
Obviously, not until the delegates meet in Santiago next year for the formal
conference will the issue of immersing ocean science in "an impassible admin-
istrative swamp" be resolved. But at the end of the summer session, anyway, the
future prospects for maximum freedom of oceanic research look grim.
CONGRESS OF THE UNITED STATES,
HOUSE OF REPRESENTATIVES,
TVashington, D.C., October 19, 1973.
Dr~n COLLEAGUE: During the August recess we attended the meeting of the
United Nations Seabeds Committee in Geneva as Congressional advisors on the
U.S. delegation. We are taking this opportunity to report to you the current
status of the work of the Committee in preparation for the Law of the Sea
Conference which is scheduled to hold its opening session in New York later
this year.
The main task of the Seabeds Committee is to arrange alternative treaty texts
in workable form for the Law of the Sea Conference, reducing the large number
of draft articles so that the Conference can address itself to resolution of the
major differences among a few relatively well-defined positions. This, we have
learned, is not easy to accomplish in a forum of 91 nations representing a wide
range of interests. But a broad multilateral conference is the only means by
w-hich agreement can be reached on universal law- for use of the ocean and its
resources.
There is widespread support among the members of the Seabeds Committee
for a comprehensive agreement including a twelve-mile territorial sea, broad
coastal state jurisdiction beyond the territorial sea over living and mineral
resources, and an international regime for deep seabed exploitation beyond
coastal state jurisdiction. The Geneva meeting succeeded in completing alterna-
tive treaty texts on principles, machinery and structure of the international
seabed regime and important aspects of marine environment standards. Reso-
lution of major substantive issues involved in breadth of the territorial sea,
transit through international straits, fisheries, economic resource jurisdiction and
scientific research would be facilitated if means w-ere found to reduce and
clarify the main alternatives before substantive negotiations begin. The Ameri-
can delegation has been effective in having the essential points in U.S. policy
included among the alternative texts adopted by the Committee and we are
hopeful that the Law of the Sea Conference will be successful from the stand-
point of our national interests.
We believe the policy of the United States in the law of the sea negotiations
is a constructive one which realistically balances national and international
interests. Both the House and Senate passed resolutions this year supporting the
general objectives being pursued. Notable points of contention in the Seabeds
Committee, as they presently relate to U.S. policy, are as follows:
1. The international seabed regime-for managing exploitation of deep seabed
minerals as "the common heritage of mankind," the U.S. proposal for a regime
governed by a strong Council consisting of a limited number of nations which
would license private industry to exploit minerals has met opposition from those
favoring a regime with its own operating capacity governed by an Assembly of
many nations.
2. Economic resource jurisdiction-the U.S. advocates international criteria,
and compulsory settlement of disputes, as a check on unlimited coastal state
control over resources in the area beyond the territorial sea while others propose
virtually unlimited coastal state jurisdiction for 200-miles or more.
3. Marine environment-as in the case of economic resource jurisdiction, the
U.S. position for international standards is opposed by countries favoring strong
coastal state jurisdiction and discretion.
4. International straits-the position of the U.S. for unhindered "free transit"
(including overflight and submerged passage) is opposed by these states bor-
dering straits who prefer the more limited "innocent passage" concept in straits
overlapped by territorial waters.
5. Fisheries-the U.S. proposals for coastal state management of coastal and
anadromous species (such as salmon) has considerable support, but there is
formidable opposition to international management of highly migratory species
(such as tuna).
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In the event of a substantial delay in the Law of the Sea negotiations as a
result of either further postponement of the Conference or polarization of posi-
tions, the four of us are not in complete agreement as to appropriate Congres-
sional action. However, some of us woud be prepared to give serious consideration
to interim national legislation to prevent erosion of national interests and nat-
ural resources. All of us look with favor on the U.S. proposal for provisional ap-
plication of certain treaty articles as sOon as possible after the treaty is signed
provided Congress has given its approval.
We believe issues on law of the sea are important to all Americans and hope
that this information will be useful to you. We would welcome the opportunity
to discuss the issues in more detail with you personally.
Sincerely,
LEONOR K. SULLIVAN.
Tno~fAs N. DowNING.
DONALD M. FRASER.
JOEL PRITCHARD.
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