PAGENO="0001" 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 PAGENO="0002" 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 PAGENO="0003" 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) PAGENO="0004" 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 PAGENO="0005" 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 PAGENO="0006" PAGENO="0007" 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) PAGENO="0008" 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. PAGENO="0009" 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. PAGENO="0010" 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. PAGENO="0011" 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. PAGENO="0012" 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. PAGENO="0013" 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. PAGENO="0014" 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. PAGENO="0069" 63 -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" 64 -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" 65 -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" 66 -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" 68 -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" 70 -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" 96 (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" 97 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? PAGENO="0104" 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? PAGENO="0105" 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 PAGENO="0106" 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? PAGENO="0107" 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 PAGENO="0108" 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 PAGENO="0113" 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. PAGENO="0117" 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 PAGENO="0147" 141 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. " PAGENO="0148" 142 "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 PAGENO="0149" 143 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? PAGENO="0150" 144 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. PAGENO="0151" 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. PAGENO="0152" 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 PAGENO="0153" 147 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. PAGENO="0154" 148 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 PAGENO="0155" 149 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. PAGENO="0156" 150 (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" 151 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. PAGENO="0158" 152 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 PAGENO="0159" 153 , .~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. PAGENO="0160" 154 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? PAGENO="0161" 155 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" 156 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? PAGENO="0163" 157 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" 158 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" 159 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" 162 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" 163 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" 164 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. PAGENO="0224" 218 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" 221 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 PAGENO="0236" 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] PAGENO="0247" 241 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" 242 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. PAGENO="0249" 243 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. PAGENO="0250" 244 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" 246 [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- PAGENO="0253" 247 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 PAGENO="0254" 248 [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" 249 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 PAGENO="0256" 250 [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" 251 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 PAGENO="0258" 252 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" 253 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. 468 PAGENO="0260" 254 [voL. 10: 467, 1973] Tjrtited States Oceans Politics SAN DIEGO LAW REVIEW 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" 255 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_). 470 PAGENO="0262" 256 [voL. 10: 4&7, 1~73] TJnitecl States Oceans Politics SAN DIEGO LAW REVIEW 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" 257 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). 472 PAGENO="0264" 258 [voL. 10: 467, 1973] United States Oceans Politics SAN DIEGO LAW REVIEW 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" 259 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). 474 PAGENO="0266" 260 [VOL. 10: 467, 19733 United States Oceans Politics SAN DIEGO LAW REVIEW 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). 476 PAGENO="0268" 262 [VOL. 10: 467, 1973] United States Oceans Politics SAN DIEGO LAW REVIEW 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- 478 PAGENO="0270" 264 [VOL. 10: 467, 1973] Tjnited States Oceans Politics SAN DIEGO LAW REVIEW 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" 265 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- 480 PAGENO="0272" 266 [VOL. 10: 467, 1~73] United States Oceans Politics 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 23-317 0 - 73 - 18 PAGENO="0274" - 268 [voL. 10: 467, 1973] United States Oceans Politics SAN DIEGO LAW REVIEW 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 484 PAGENO="0276" 270 [VOL. 10: 467, 1973] TJnited States Oceans Politics SAN DIEGO LAW REVIEW 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" 271 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 486 PAGENO="0278" 272 [VOL. 10: 467, 1973] United States Oceans Politics SAN DIEGO LAW REVIEW 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). 488 PAGENO="0280" 274 [VOL. 10: 467, 1973] United States Oceans Politics SAN DIEGO LAW REVIEW 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. 490 PAGENO="0282" 276 [VOL. 10: 467, 1973] United States Oceans POlitics SAN DIEGO LAW REVIEW 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" 277 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. 492 PAGENO="0284" 278 [voL. 10: 467, 19731 United States Oceans Politics SAN DIEGO LAW REVIEW 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]. 436 PAGENO="0297" 291 [voL. 10: 433, 1973] Deepsea Mining SAN DIEGO LAW REVIEW 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; 437 PAGENO="0298" 292 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. 438 PAGENO="0299" 293 [vot. 10: 433, 1973] Deepsea Mining SAN DIEGO LAW REVIEW 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 PAGENO="0300" 294 -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. 440 PAGENO="0301" 295 [voL. 10: 433, 1973] Deepsea Miming SAN DIEGO LAW REVIEW 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 PAGENO="0302" 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. 442 PAGENO="0303" 297 [voL. 10: 433, 1973] Deepsea Mining SAN DIEGO LAW REVIEW 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. 444 PAGENO="0305" 299 [voL. 10: 433, 1973] Deepsea Mining SAN DIEGO LAW REVIEW 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 PAGENO="0306" 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. 3 446 PAGENO="0307" 301 [voL. 10: 446, 1973] Hard Mineral Resources Act SAN DIEGO LAW REVIEW 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" 302 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). 448 PAGENO="0309" 303 [VOL. 10: 446, 1973] Hard Mineral Resources Act SAN DIEGO LAW REVIEW 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 PAGENO="0310" 304 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. 450 PAGENO="0311" 305 [voL. 10: 446, 1973] Hard Mineral Resottrces Act SAN DIEGO LAW REVIEW (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). 451 PAGENO="0312" 306 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]. 452 PAGENO="0313" 307 [voL. 10: 446, 1973] Hard Mineral Resources Act SAN DIEGO LAW REVIEW 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 PAGENO="0314" 308 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. 454 PAGENO="0315" 309 [VOL. 10: 446, 1973] Hard Mineral Resources Act SAN DIEGO LAW REVIEW 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~ PAGENO="0316" 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). 456 PAGENO="0317" .311 [voL. 10: 446, 1973] Hard Mineral Resources Act SAN DIEGO LAW REVIEW 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 PAGENO="0318" 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. 458 PAGENO="0319" 313 [VOL. 10: 446, 1973] Hard Mineral Resources Act SAN DIEGO LAW REVIEW 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 PAGENO="0320" 314 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 PAGENO="0321" 315 [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 PAGENO="0322" 316 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. PAGENO="0323" 317 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." PAGENO="0324" 318 [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. PAGENO="0325" 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 PAGENO="0326" 320 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. PAGENO="0327" 321 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. PAGENO="0328" 322 "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 PAGENO="0329" 323 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" 324 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" 325 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" 326 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. PAGENO="0333" 327 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. PAGENO="0334" 328 [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. PAGENO="0335" 329 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" 331 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" 336 598 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. PAGENO="0344" 338 600 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" ~339 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" 340 602 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" 341 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. PAGENO="0348" 342 604 Harvard Journal on Legislation [Vol. 10:596 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. PAGENO="0349" ~343 1973J Deep Seabed Hard Minerals 605 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 PAGENO="0350" 344 606 Harvard Journal on Legislation [Vol. 10:596 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). PAGENO="0351" 345 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, PAGENO="0352" 346 608 Harvard Journal on Legislation [Vol. 10:596 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.). PAGENO="0353" 347 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 PAGENO="0354" 348 610 Harvard Journal on Legislation [Vol. 10:596 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. PAGENO="0355" 349 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). PAGENO="0356" 350 612 Harvard Journal on Legislation [Vol. 10:596 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 PAGENO="0357" 351 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 PAGENO="0358" 352 614 Harvard Journal on Legislation [Vol. 10:596 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 ~. PAGENO="0359" 353 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). PAGENO="0360" 354 616 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" 355 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. PAGENO="0362" 356 618 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" 357 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. PAGENO="0364" 358 620 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. PAGENO="0365" 359 [Whereupon, at 4:35 p.m., the hearing was adjourned, subject to the call of the Chair.] PAGENO="0366" PAGENO="0367" 361 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. PAGENO="0368" 362 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 PAGENO="0371" 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. PAGENO="0372" 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. PAGENO="0373" 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 PAGENO="0374" 368 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. PAGENO="0375" 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. PAGENO="0376" 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 PAGENO="0377" 371 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 PAGENO="0378" 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" 3~93 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. PAGENO="0401" 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 PAGENO="0402" 396 -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" 397 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" 398 -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. PAGENO="0405" 399 -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" 402 -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" 403 -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" 404 -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" 405 -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" 406 -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" 408 -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" 409 -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" 410 -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" 411 -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" 413 -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" 418 -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 PAGENO="0437" 431 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 PAGENO="0438" 432 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. PAGENO="0439" 433 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. PAGENO="0440" 434 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. PAGENO="0441" 435 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. PAGENO="0442" 436 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 PAGENO="0443" 437 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. PAGENO="0444" 438 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 - PAGENO="0445" 439 (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 PAGENO="0446" 440 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. PAGENO="0447" 441 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. PAGENO="0448" 442 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? PAGENO="0449" 443 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 PAGENO="0450" 444 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 PAGENO="0451" 445 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 PAGENO="0452" 446 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. PAGENO="0453" 447' 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 PAGENO="0454" 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. PAGENO="0522" 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" 573 336 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" 575 338 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... PAGENO="0597" 591 A/AC.138/88 English 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. PAGENO="0598" 592 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" 593 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. I... PAGENO="0600" 594 A/AC .138/88 English Page 5 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. I... PAGENO="0601" 595 A/AC.l38/88 English Page 6 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 . I... PAGENO="0602" 596 A/AC.l38/88 English 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" A/AC.l38/88 English Page 8 597 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 I... PAGENO="0604" 598 A/AC.138/88 English Page 9 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~ PAGENO="0605" 599 A/AC.138/8~ English Page 10 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... PAGENO="0606" 600 A/AC.l38/88 ~iglish Page 11 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 I... PAGENO="0607" 601 A/AC. 138/88 Th~glish Page 12 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. PAGENO="0608" 602 A/AC.138/88 English Page 13 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. 1... PAGENO="0609" 603 A/AC.138/88 English Page l1~ 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. I... 23-317 0 - 73 - 39 PAGENO="0610" 604 A/AC.138/88 English Page 15 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. PAGENO="0611" 605 A/AC.l38/88 . . English Page 16 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. ` ` PAGENO="0612" 606 A/AC.138/88 English Page 17 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. PAGENO="0613" 607 A/AC.138/88 English Page 18 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. PAGENO="0614" 608 A/AC .138/38. English Page 19 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. PAGENO="0615" 609 A/AC.l38/88, English Page 20 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. PAGENO="0616" 610 A/M~.l38f08 English Page 21 141~~ 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. PAGENO="0617" 611 A/AC.l38/88 English Page 22 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".) PAGENO="0618" A/AC.l38/88 English Page 23 (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... PAGENO="0619" 613 A/AC.l38/88 English Page 214 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 PAGENO="0620" 614 A/AC.138/88 English Page 25 (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. PAGENO="0621" 615 A/AC.138/88 English Page 26 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. PAGENO="0622" 616 A/AC.l38/88 English Page 27 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. PAGENO="0623" 617 A/AC . 138/88 English Page 28 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. PAGENO="0624" 618 A/AC.l38/88, English Page 29 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. PAGENO="0625" 619 A/AC.l38/88 English Page 30 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 PAGENO="0626" 620 A/AC.13&/88 English Page 31 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. .~.:- PAGENO="0627" 621 A/AC.l38/88 English --~: Page 32 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. - * - * - - * -*-- - - - - PAGENO="0628" 622 A/AC .138/88 English Page 33 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. PAGENO="0629" 623 A/AC.138/88 English Page 3l~ 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. PAGENO="0630" 624 A/AC.l38/88 English Page 35 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" 625 A/AC.138/88 English 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. . . PAGENO="0632" 626 A/AC.138/88 English 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. / PAGENO="0633" 627 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. PAGENO="0634" 628 A/AC.138/88 English 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. / PAGENO="0635" 629 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" 630 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" 632 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. -111- PAGENO="0639" 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" 634 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. -vii- PAGENO="0643" 637 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 - - -2- 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" 640 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. -4- PAGENO="0647" 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. -5- PAGENO="0648" 642 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 -6- PAGENO="0649" 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 -7- 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, -8- 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 -9- 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- -10- 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. -11- 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- -12- 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 -13- 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. -14- 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- -15- 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. -16- 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. -17- 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 -19- 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 -20- 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 -21- 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. -22- 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 -23- 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 -24- 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 -25- 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. -27- 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. -28- PAGENO="0672" 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 -29- PAGENO="0673" 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 -30- 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 -31- 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 -33- 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 -34- 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. -35- 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 -36- 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 -37- PAGENO="0681" 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 -38- PAGENO="0682" 676 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. -11- 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 -111- PAGENO="0685" 679 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" 681 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" 682 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" 683 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. -2- 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" 686 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" 687 ~(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" 688 `(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" 689 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" 690 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" 691 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" 692 (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" 693 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). PAGENO="0700" 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" 695 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. PAGENO="0702" 696 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. PAGENO="0703" 697 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. PAGENO="0704" 698 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 PAGENO="0706" 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.) PAGENO="0708" 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 PAGENO="0710" 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. PAGENO="0711" 705 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 PAGENO="0712" 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 PAGENO="0713" 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" 708 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. PAGENO="0715" 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. PAGENO="0717" 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 PAGENO="0718" 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 PAGENO="0719" 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" 714 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. PAGENO="0721" 715 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" 716 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 PAGENO="0756" 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 PAGENO="0811" 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" 809 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. PAGENO="0816" 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. PAGENO="0817" 811 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 PAGENO="0818" 812 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 PAGENO="0819" S13 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, PAGENO="0820" 814 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. PAGENO="0821" S15 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- PAGENO="0822" 816 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 PAGENO="0823" 817 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 PAGENO="0824" 818 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). PAGENO="0825" 819 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. PAGENO="0826"