LOS CONFERENCE INSTRUCTIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80B01495R000800140001-8
• Release Decision: RIFPUB
• Original Classification: S
• Document Page Count: 244
• Document Creation Date: December 20, 2016
• Document Release Date: February 17, 2006
• Sequence Number: 1
• Publication Date: March 18, 1974
• Content Type: MEMO

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DEPARTMENT OF STATE ti
SECRET
Washingthr, D.C. 20520
March 18, 1974
NSC-D/LOS #84
NSC INTERAGENCY TASK FORCE ON THE LAW OF THE SEA
MEMORANDUM
TO: Members of the LOS Executive Group
SUBJECT: LOS Conference Instructions
Attached is the final draft of the proposed Instructions.
Any additional Task Force suggestions on the draft are re-
quested by COB Wednesday, March 20. Formal agency comments
will be requested when the proposed Instructions are circulated
to the Under Secretaries Committee.
I will shortly be circulating for your suggestions a
draft covering memorandum to the Chairman of the Under Secre-
taries Committee summarizing the proposed Instructions.
I) //
/ .(-2/
;0,11,41 / an LA
John Norton Moore
Chairman
Attachment
State Dept. review completed
NSC review(s) completed.
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MORI/CDF
pages 4-194
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MEMORANDUM
TO: The Deputy Secretary and Chairman, the
NSC Under Secretaries Committe
FROM: John Norton Moore, Chairman, the NSC Interagency
Task Force on the Law of the Sea
SUBJECT: Law of the Sea Conference Instructions
Pursuant to NSDM 240 of December 3, 1973, the Chairman,
NSC Under Secreatries Committee is requested to forward,
for consideration by the President, recommended instructions
for the US Delegation to the Law of the Sea Conference.
The first substantive session is scheduled for Caracas from
June 20 to August 29, 1974, New instructions can be most
effectively implemented if they are approved well in
advance of the Conference, in order to permit pre7Conference
consultations and negotiations with other government.
Accordingly, it would be most helpful to the Delegation to
have approved instructions by March 30, 1974.
Pursuant to NSDM 225 of July 16, 19737 a comprehensive
review of US economic policy interests relating to the law of
the sea negotiations has been undertaken by the NSC Interagency
Task Force on the Law of the Sea, and the findings of that
review are taken into consideration in these recommended
instructions together with other important aspects of the
US Law of the Sea position, including political, strategic,
environmental, and scientific interests.
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A summary of existing substantive positions and
negotiating authority is attached at Tab A. This report
contains recommendations for changes or additions thereto.
Accordingly instructions issued pursuant to this report,
together with those portions of earlier instruction not
superceded, would constitute our instructions for the
Conference.
It is recognized that a large number of detailed
substantive matters will need to be addressed by the
Conference. This paper deals with major issues, particularly
where there are differences of opinion. On other matters
it is contemplated that the delegation would, as in the past,
be able to make substantive and textual refinements in the
US position consistent with our instructions.
A copy of the report on the organizational session
of the Law of the Sea Conference, held in New York from
December 3-15, 1973, is attached at Tab B.
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A. General Objectives
(1) Background of the Third United Nations Conference
on the Law of the Sea
The present legal regime for the oceans is largely
embodied in the four 1958 Geneva Conventions concluded at
the First United Nations Conference on the Law of the Sea
as supplemented by customary international law and a network
of bilateral and limited multilateral fisheries and pollution
control agreements. This legal regime is inadequate and
is likely to become increasingly so in the absence of anew
comprehensive oceans law regime. There are at least three
major reasons for the inadequate nature of the present
legal regime. First, the 1958 Conference failed to agree
on the breadth of the territorial sea, a failure repeated
'at the Second United Nations Conference on the Law of the
Sea held at Geneva in 1960. Second, the present legal
regime is increasingly being challenged by the large number
of new states which have become independent since World War II.
,At the time of the formation of the U.N. system there were
only about 50 independent states. Today this number has
tripled to approximately 150, most of which became members
? of the U.N. after the First and Second U.N. Conferences
on the Law of the Sea. These states have made increasingly
insistent claims to participate in the formation of a
new oceans law. Many are not signatories of the Geneva Conventions
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and have felt free to make broad unilateral claims which
in many cases have been damaging to U.S. interests and in
violation of international law. This tendency of the newer
states to make sweeping unilateral claims has been reinforced
by their strong concern for the problems of developing
countries and their frequently one-sided dependence on
a particular ocean use such as fisheries. Third, there
has been an intensification of old ocean uses and development
of new uses and problems largely associated with an increasing
demand for ocean resources, global modernization, and a
burgeoning ocean technology. The dramatically increased
pressure on fisheries during the last decade is an example
of this intensification with respect to a traditional ocean
use. Similarly, it is now evident that there must be
adequate protection for the ocean environment and that the
capacity of the ocean to absorb pollution is not unlimited.
And with respect to development of new ocean uses, the
rapidly developing deep seabed mining industry provides
a paradigm example. In all three cases the U.S. is directly
and adversely affected by the lack of a satisfactory agreed
international legal regime.
In areas in which there have been major differences
in ocean law, for example problems associated with fishery
differences between the United States and Chile, Ecuador,
and Peru, or navigational disputes between the U.S. and
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Canada and Indonesia, it has generally been evaluated as
politically inexpedient for the U.S. to protect its interests
by the use of force. In the highly interdependent world in
which we now live this is likely to continue to be the case
except for the most serious of threats affecting vital
national interests. It is also likely that all of the factors
making for a breakdown of the present legal regime for the
oceans will continue or intensify in years ahead in the
absence of widespread agreement on a new comprehensive legal
regime. In fact, should there be a breakdown in current
efforts to reach agreement, the expectations raised through-
out the world and the political attention focused on the issue
are likely to accelerate the trend to unilateralism in the
oceans. The combination of increased unilateralism and
persistent U.S. unwillingness to protect its interests
against such unilateralism off foreign nations would be
highly unsatisfactory for protecting U.S. ocean interests
and for promoting a sensible overall ocean regime in the
common interest of all nations. Moreover, it is likely that
the U.S. itself would extend its jurisdiction unilaterally
as evidenced by the 200 mile Fishery bills currently pending in
both Houses of the Congress. Such a unilateral extension
by the U.S. could bring the U.S. into increasing conflict
with foreign nations such as the U.S.S.R and Japan off our
own shores and make it more difficult to protect our
interests off foreign shores.
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The Third United Nations Conference on the Law of
4
the Sea takes place against a background of over five years
of preparatory work within the United Nations system, pre-
paratory work stimulated by the real problems surrounding
the legal regime for the oceans. The last three years of
this work took place within the formal setting of the U.N.
Seabed Committee under a mandate charging it with preparing
for a comprehensive Conference on the Law of the Sea. The
United States participated in a leadership capacity in this
preparatory work and the U.S. position at the Conference
will be carefully appraised by other nations in light of
the President's ocean policy statement of 1970, United
States actions and statements during the preparatory phase,
and Congressional resolutions and statements. As in all
areas of U.S. foreign policy, the stability of the U.S.
course and the credibility of U.S. words and actions are
of the utmost importance.
(2) U.S. interests to be served by a comprehensive
ocean law treaty
The United States has a variety of important interests
which would be served by a comprehensive ocean law treaty
and which should be sought at the Conference. Among them
are the following:
(a) protection of navigation in the territorial sea and
areas beyond, particularly the protection of freedom of
navigation and overflight on the high seas and in areas
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adjacent to the territorial sea which may be subject to
coastal state resource jurisdiction;
(b) protection of unimpeded passage through and over
straits used for international navigation;
(c) coastal state resource jurisdiction to explore
and exploit the mineral resources of the adjacent continental
margin areas;
(d) a fisheries regime which will place coastal and
anadromous fisheries under coastal state management with at
least preferential rights in the coastal state, which will
place highly migratory species under regional or international
management and which, to the extent consistent with these
goals, will protect traditional fisheries;
(e) a stable legal regime for deep seabed mining which
will ensure access by U.S. firms to deep seabed mineral
resources under reasonable conditions for exploitation;
(f) a jurisdictional basis for sound environmental
protection of the world's oceans and appropriate legal
obligations and procedures to protect the marine environ-
ment and the living resources of the oceans;
(g) a regime for marine scientific research which
will encourage rather than discourage the conduct of
research and the dissemination of results;
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(h) a regime which will protect high seas uses
including SOSUS which is a vital element in our arms control
equation with the U.S.S.R.
(i) appropriate international standards applicable to
coastal state resource jurisdiction which will promote
efficient utilization and conservation of the resources and
accommodation with other uses. These include:
1. for mineral resources of the
coastal seabed economic area
(a) standards to protect other uses of the area,
particularly to ensure no unreasonable inter-
ference with navigational or other high seas
freedoms;
(b) minimum standards for protection of the marine
environment; and
(c) protection of the integrity of agreements and
investments made in the area;
2. for living resources
(a) standards to ensure adequate conservation
of stocks and dependent species;
(b) standards to ensure full utilization of stocks
up to the allowable catch; and
(c) standards to ensure some protection for traditional
fisheries to the extent consistent with overall
fishing goals.
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(j) a widely accepted and reasonably definite legal
regime coupled with adequate machinery for the compulsory
settlement of disputes in order to minimize conflict and
promote stability of expectations and adherence to treaty
requirements.
(k) a regime which will protect the integrity of
agreements and investment relating to the development of
ocean resources;
(1) an agreement which will implement the concept of
a common heritage by establishing an international legal
regime in the common interest of all nations and by
providing revenues for international community purposes,
particularly assistance to developing nations;
(m) a regime which will establish exclusive coastal
state rights and coastal state duties with respect to the
construction, operation and use of deep water ports and
other structures that affect coastal state economic interests
beyond the territorial sea;
(n) an agreement which will prevent and remove,
where consistent with overall U.S. objectives, present or
future bilateral ocean use problems damaging to U.S.
relations with particular countries, for example, fisheries
disputes and archipelago problems; and
(o) a timely agreement which will promote these objectives
at the earliest possible time.
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With the possible exception of broadly extending U.S.
resource jurisdiction over continental margin mineral
resources and fish stocks, all of these objectives are
endangered by a continuation of the present trend toward
unilateral action and a breakdown in the existing legal
regime for the oceans. And at least with respect to coastal
fishery stocks, since the principal distant water fishing
nations off the U.S. coast are Japan and the USSR and its
allies, any effort by the U.S. to achieve a unilateral solution
without their agreement could be quite costly even if this
were the general trend worldwide. It would be possible to
mine the resources of the deep seabed without an inter-
national agreement. But in this area as well a good inter-
national legal regime would provide greater certainty and
predictability for investment than would a hodgepodge of
national legislation and competing international claims.
A good international legal regime would also provide greater
protection for other ocean uses such as SOSUS.
(3) Some fundamental objectives
It is of course true that a treaty which institutionalizes
a bad ocean regime may be worse than the present drift to
unilateralism. Accordingly, it is imperative that the U.S.
provide strong leadership toward a good ocean regime. It
also follows that the U.S. should not merely accept any
treaty no matter what the substantive content. In this
connection the U.S. Delegation has repeatedly made it clear
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that the U.S. will not accept a treaty which does not
protect unimpeded passage through and over international
straits or which does not adequately protect navigational
and other high seas freedoms in areas beyond the territorial
sea. Similarly, it has been made clear that the U.S.
Will not accept a Treaty that does not protect U.S. basic
resource interests and any deep seabed regime must provide
for access by U.S. firms under reasonable conditions for
exploitation of deep seabed mineral resources. The U.S.
has also made clear the importance which it attaches to
compulsory dispute settlement procedures and to an enduring
Treaty which will be widely adhered to and respected.
The absence of a discussion above or statement by the
Delegation that a particular interest is of great importance
does not necessarily indicate that the interest is of lesser
importance. For example, because of a strong trend in the
negotiations toward substantially broadened coastal state
resource jurisdiction as well as the probability that a
balanced posture on resource issues will better promote
all U.S. objectives, including U.S. resource objectives,
the Delegation has not found it necessary to make similar
statements with respect to ensuring coastal state control
of continental margin mineral and coastal fishery resources.
Another example is that for security and tactical reasons,
we have avoided statements concerning our interest in the
protection of SOSUS. Any final decision on the acceptability
of an overall treaty must, of course, take into account
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not only interests publicly stated to be vital to U.S.
acceptance but also the overall accommoda+-icm of all U.S.
objectives. Similarly, any such decisions should
realistically compare the proposed resolution of a particular
issue with the probable resolution of the issue in the
absence of a comprehensive agreement. For example, it
should be recognized in any such appraisal that the U.S.
has little leverage to protect its distant water fisheries
and that the trend absent agreement is for the erosion of
such distant water fishing rights.
(4) Alternative and fallback strategies
The full range of U.S. oceans objectives can be best
served by a timely and satisfactory comprehensive oceans
law treaty. Bilateral and limited multilateral approaches,
which have been the norm in recent years, have not
adequately protected U.S. oceans interests. Many issues
such as the breadth of the territorial sea require clear
resolution if we are to achieve appropriate stability of
expectations. A bilateral or multilateral approach, however,
would require an agreement with a large number of states
and the resulting politically and economically costly
hodgepodge of relationships would be unsatisfactory. Other
issues, such as the protection of coastal fisheries may
require agreement with states which have little incentive
to agree except in an overall comprehensive oceans law
settlement.
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Similarly, a network of individual multilateral
agreements on separate issues, perhaps following the 1958
model, would not adequately protect US. ocean interests.
Important U.S. interests extend over a broad range of issues
and a separate treaty approach risks excluding some of those
issues. Such a separate approach would also provide less
leverage to the U.S. on a number of important objectives,
particularly U.S. navigational and coastal fishery objectives,
than would a comprehensive single convention. Finally,
separate treaties are likely to create a confusing pattern
of legal relations between parties to the new conventions
and the 1958 Geneva Conventions and could not as satisfactorily
contribute to the needed stability of expectations and
avoidance of conflict in oceans uses.
If, of course, it does not prove possible to conclude
a timely and successful comprehensive oceans law treaty,
the U.S. may wish to pursue alternative strategies for
particular issues, at least until such Lime as a successful
comprehensive treaty proves feasible. In this connection
the U.S. has publicly stated that if agreement is not
reached by the end of 1975 it will consider alternative
national legislation as a means of providing a satisfactory
investment climate and environmental regulation for U.S.
firms interested in deep seabed mining. Similarly, we
may need to examine alternative strategies for protection
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of U.S. coastal fishery stocks if a timely agreement is not
concluded. Protection of these or other U.S. interests,
if in fact possible, would require agreement among
interested and like-minded states if there were to be a
complete failure of the Conference.
(5) The role of the Caracas session of the Conference
The United States should attempt to move the Caracas
session as close as possible to explicit or implicit agreement
compatible with our substantive interests. A timely Conference
is important both because of U.S. Z:shery and deep seabed
interests in timely agreement and because of the need to reach
agreement before pressures for unilateral action overtake
multilateral opportunities. As such, it is important that
we approach Caracas prepared to reach final agreement. Informal
talk of a 1976 session may be a self-fulfillin? prophecy
unless the U.S. takes vigorous action to promote negotiations
in Caracas. In this respect our overall posture on all
issues will be important in signaling to other nations
whether Caracas will be a meaningful session. At the same
time, it remains as important as ever to clearly communicate
vital U.S. interests which must be accommodated if the
Conference is to be successful. Few things would be
more damaging than a failure of other nations to accurately
perceive vital U.S. interests and the U.S. determination
to protect those interests.
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B. The Territorial Sea
It is widely accepted that a Law of the Sea treaty
would include agreement on a twelve mile maximum limit for
the territorial sea, assuming agreement on other issues such
as straits and coastal state resource
?.." objective is assuring agreement on the
NW"
breadth of the territorial
agreement on a figure less
sea. It is
than twelve
The U.S. is opposed to reopening
jurisdiction. The US
minimum possible
our assessment that
miles is not possible
the regime of the
B-1
territorial sea, including innocent passage, outside straits
as defined in the 1958 Convention. There are a variety of
ways of dealing with this issue, including general language,
incorporation by reference to the 1958 Convention and inter-
national law to the extent not incon dstent with the new treaty,
or express inclusion of the 1958 Convention language.
If a negotiation does occur on the question, we should work
for a more favorable innocent passage regime.
In essence this consists of retaining as much as possible
of the operational flexibility we enjoy under the present
formulation, while at the same time restricting the opportunities
for unfounded allegations of 'non-innocence' by coastal states.
Negotiations leading toward an 'objectivized' innocent passage
regime carry serious risks that the U.S. may be outvoted on
politically motivated restrictions. Any list of prohibited
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activities suggested for a new innocent passage regime would
be subject to review and approval in Washington.
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C4 Straits
The straits negotiation is an unusually sensitive
one that requires careful control both within the U.S. Delegation
and in our negotiations with other delegations. In addition
to the general guidance on conduct of negotiations
the contents of this section of the paper will not, directly
or indirectly, be discussed outside the Executive Branch,
irrespective of security clearance, except as specifically
directed by the Chairman of the Delegation or the Chairman
of the Task Force in consultation with the senior representa-
tives of the agencies concerned.
Our major opponents on straits are Spain,
Egypt, and other Arab States, Malaysia, Indonesia, the
Nome Philippines, and Tanzania. They are all supporting some type
of regime described as innocent passage, but in many respects
even more restrictive than the 1958 Convention on the T.S.
and C.Z. While arguing the need for navigation safety and
pollution control, and its fear of nuclear weapons, Spain
appears to be seeking unrelated concessions such as NATO or
EEC membership or British concessions on Gibraltar. Egypt
and the Arab States seem principally concerned with the Strait
of Tiran, although there is some evidence of Egyptian concern
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over US military use of Bab-al-Mandab or Gibraltar, and
some indication that this opposition may have been politically
related to the US support for Israel. Malaysia is concerned
about pollution in the Malacca Strait, but also desires
notice for warship transit. Indonesia and the Philippines
are principally concerned with the archipelago issue. Tanzania
Nm'says its opposition is a matter of principle although it may
also be concerned to some extent with its two straits in
the Pemba and Zanzibar passages. There is active cooperation
among many of the States on the straits issue.
We continue to believe that, as already authorized,
we should work with States having straits interests similar
to our own with a view to forming a broader common front.
Ime
Accordingly the following general recommendation is made.
Recommendation
The US Delegation should be authorized, on specific
approval of the Chairman of the Delegation in consultation
the Chairman of the Task Force and
with /the senior representatives of the agencies concerned, to
indicate privately to the delegations of other countries
Nimohavina interests and obiectivps gimi3Ar -1-(1 thr1QP.
of the United States a willingness to negotiate with them
draft treaty articles which would be mutually acceptable
on straits transit. Any specific draft treaty language
formulated in this manner would be subject to expediticus
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review and approval in Washington prior to public or private
support.
With respect to specific substantive issues, two
separate types of problems are involved. First, the question
of which straits must ultimately remain covered by a regime
more liberal than innocent passage. Second, the nature of
tha regime. These will be examined in that order.
(1) Which straits are covered? The current US proposal
applies a free transit regime to all straits used for inter-
national navigation between one part of the high seas and
another part of the high seas or the territorial sea of a
foreign state. It is exactly the same "definition" as
appears in the 1958 Territorial Sea Convention article that
prohibits the suspension of innocent passage.
As a matter of substance, the current or anticipated US
interest in every strait is not the same; indeed it is
impossible to predict the relative importance of a given
strait in the future. For example, Gibraltar is of obviously
vital importance while Messina (between Sicily and the
Italian mainland) is of lesser importance. Some of the factors
that affect the present and known future relative importance
are: nature and extent of anticipated US use (insofar as
this can be predicted); availability of a secure alternative
route; cost of using an alternative route or ensuring
_favorable coastal state behavior; and tactical and strategic
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considerations from possible loss of use. While the US
might improve its ability to achieve its straits objectives
if the applicability of the article were narrowed, the risk
is that of encouraging everyone to seek special treatment.
Several countries have submitted straits transit proposals
which exclude certain straits based upon specified criteria
or combinations thereof. These proposals have obviously been
advanced in efforts to obtain an exclusion for straits of
particular concern to the countries advancing them or to enlist
general support for the concept of unimpeded transit through
and over international straits.
While it is unclear what sort of exclusion formula is
negotiable, the greatest advantages of using such an
approach, and the greatest risks, are tactical. At present,
there is an increasing tendency by some developing countries
to seek a compromise in terms of the substance tJf a
straits regime. The US strategy is to isolate our principal
opponents, particularly Spain, and to neutralize our LDC
opponents such as Indonesia by attempting to resolve issues
more important to them. The attempt to isolate Spain is
based on our underlying assumption that we could not write a
straits article at this time acceptable to both Spain and the
United States. An exclusion approach offers the possibility
of furthering that strategy with some countries while unifying
support among countries having maritime interests similar to
ours. On the other hand, discussion of exclusions can get
out of hand, and must be dealt with very carefully. Accord-
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ingly, we believe such discussion should take place only when it
is determined, by the Chairman of the Delegation in consultation
with the Chairman of the Task Force and the senior representatives
of the agencies concerned, that it would be advantageous to the
achievement of our overall straits objectives.
The US would, of course, want free transit in the territorial
waters of straits wider than twenty-four miles to the extent that
the high seas route in the strait is not equally suitable.
West Germany has a unique problem regarding the entrance
to the Baltic from West German ports near the GDR border.
We will work with West Germany to ensure the route in question
through GDR waters is interpreted to be a strait, but will
Avoid highlighting the issue during the negotiations.
The types of exclusions discussed below to some extent
cover the same straits, (eg. the strait of Tiran is covered by
two of the formulas). The discussion below accordingly refers
to the precise situations in which authority regarding
exclusions is authorized; the choice of formulas will be
made within the scope of that authority on the basis of the
tacital situation. The regime of non-suspendable innocent passage
would apply in excluded straits, and coastal State construction
standards for vessel-source pollution would not be permitted.
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a) Exception for straits that are narrower than
6 miles or that do not connect two parts of
the high seas.
An exception for straits six miles wide or narrower in-
volves no change from the current US juridical position, and
is acceptable if the current rule of nonsuspendable innocent
passage continues to apply. Moreover, such an exception could
gain complete support from those straits states (e.g., Italy)
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which have indicated concern for their particular straits.
Additionally, it might resolve the Greek concerns stemming
from the treatment of all their waters as being subject to
unimpeded transit.
The USSR straits proposal applies only to straits connect-
ing two parts of the high seas, thus excluding the Strait of
Tiran, the mouth of the Gulf of Fonseca (often considered
"historic"), and the entrance to the Gulf of Honduras. The most
politically significant of these, oT course, is Tiran,
which would also be excluded under a six-mile exception.
There is a basis in customary law for making the distinction because
there are currently no high seas in Tiran in anyone's view. More
importantly, it offers the hope of reducing Arab opposition to
free transit, since many Arab States themselves h_ve an interest
in free transit of other straits. Accordingly, we will
continue to pursue means of excluding Tiran from free transit
without prejudicing the application of the current rule of
nonsuspendable innocent passage and in full coordination with
our Middle East policy.
Recommendation
The US Delegation should be authorized, on specific
approval of the Chairman of the'Delegation in consultation
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with the Chairman of the Task Force and senior representa-
tives of the agencies concerned to indicate a willingness to accept
certain specified modifications of sub stance which do not affect the
critical elements of the US straits proposals. Such indication should
initially be made privately to selected countries whose
attitudes might be expected to be affected by such modifications.
Should the reactions of these countries indicate that US
negotiating efforts with respect to its straits objectives
would be enhanced thereby, the delegation should be authorized
to support one or both of the following modifications:
A continuation of the present international law
regime of nonsuspendablc innocent passage, as codified
in the 1958 Convention on the Territorial Sea and Con-
tiguous Zone, for passage through the territorial sea in
those international straits which are:
--6 miles wide or narrower, or
--although wider than 6 miles, do not connect two
parts of the high seas.
b) Islands off the coast
The Italian proposal refers to exclusion for straits
where a suitable alternative route is nearby, although in
the context of a six-mile exclusion. The USSR, in its oral
interventions, has implied a similar exception regardless
of the width of a strait by consistently addressing itself
to "major straits." They specifically referred to the straits
off Tanzania, caused by the existence of islands; in such
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cases there are high seas routes on the other side of the
islands and accordingly the straits are not considered "major"
by the USSR. It is our assessment that the islands situation
may be responsible, at least in part, for opposition to free
transit from Tanzania as well as other states such as
Yugoslavia and the PRC, and for difficulties with US allies
such as South Korea.
Recommendation
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That the delegation be authorized, if the Chairman of
the Chairman of the Task Force and
the Delegation in consultation with/the senior representatives
of the agencies concerned determines after appropriate
exploration that it would be advantageous to our straits
negotiating objectives, to indicate support for the exclusion
of straits formed by islands within 24 nautical miles of the coast
of the same state where, and only to the extent that, a nearby and
equally suitable high seas route is available on the'seaWard side
of the islands. As with other exclusions, nonsuspendable innocent
passage would continue to apply in the excluded straits. Because
of ice and dangerous navigation conditions, the high seas routes
to the north of certain Soviet offshore Arctic islands within 24
miles of the coast are not equally suitable. This exclusion
would be drafted to ensure that such Soviet Arctic straits are
not excluded and that our freedoms of the high seas and right
of free transit in the Arctic north of the USSR are not affected.
However, we will handle the Soviet issue quietly, as the USSR does
not admit that the straits in question are used for international
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navigation", or that there are high seas in the Arctic; accordingly,
the USSR itself is unlikely to discuss the exclusion in the con-
text of the Arctic because any such discussion would prejudice
its Arctic ector position. Moreover, in connection with any such
exclusion, at the appropriate time we would create a record regard-
ing the straits covered by the exclusion.
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(2) Substance of the regime in straits. The US has
proposed that vessels and aircraft, in transit through and
over international straits, enjoy the same freedom of naviga-
tion and overflight, for the purpose of transit, as they enjoy
on the high seas. In all other respects, the status of
the iaters would be territorial and under the sovereightS7:
of the coastal state. Our support for including all vessels and
aircraft, military and commercial, in a straits transit regime
continues unchanged.
The US Delegation should continue to insist on retention
of the critical elements of the transit right required in
straits (except to the extent the authority to exclude certain
straits is exercised). These critical elements include unimpeded
transit through and over international straits blr surface vessels
(including warships and tankers), submerged and surfaced
submarines, and military aircraft without a requirement for
notification to, or authorization from, the coa'stal state.
As a matter of substance, most states have at least
commercial interests in free transit of straits similar to
our own. On the other hand, developing countries are fearful
of dissipating their negotiating strength by dividing among
themselves, and thus may be unduly influenced by our opponents
such as Indonesia and Malaysia. For our part, we must continue
to make it clear that we cannot be expected to become a party
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to a treaty that does not accommodate our straits objectives;
we must persuade the majority that the substance of our position
is reasonable, and that we have negotiated in good faith; we
must try to accommodate the needs of as many straits states as
possible; and we must build as wide support as possible for the
essential elements of our proposals.
Recommendations
The US Delegation should continue to emphasize the
critical elements of the US straits transit proposals while,
at the same time, playing down and discouraging use of the term
"free transit" .These elements of the US proposals must
continue to be presented as essential objectives of the United
States but not necessarily in the specific formulation of the
US draft straits article.
Consistent with the above recommendation aid those relat-
ing to which straits are covered, the US Delegation should be
prepared, on specific approval of the Chairman of the
Delegation in consultation with the Chairman of the Task Force
and senior representatives of agencies concerned, to negotiate
privately with other countries draft treaty articles on straits
transit which would be mutually acceptable. Any specific draft
treaty language formulated in this manner would be subject to
review and approval in Washington prior to public or private
support.
These recommendations shall be carried out in accordance
with the following instructions on specific items.
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(a) Submarines
Our assessment is that most of the opposition to sub-
merged transit is psychological and political. However, some
straits are very shallow, and would be hazardous for submerged
navigation, raising the danger of collision between a submerged
submarine and a surface vessel. We have, of course, pointed out
that it is hardly in the interests of a commander of a submerged
submarine to risk collision.
Since the question of shallowness has only been raised
regarding the Danish Straits and the Malacca Straits, we believe
the best way to handle the issue if it continues to be a problem
is to give private assurances to states bordering those straits
that we do not and will not navigate submerged there because it
is clear that this cannot be done safely, and if necessary and
appropriate, we will suggest to the Soviets and r-ertain US allies
that they give similar private assurances.
A further objection to submerged transit relates to
the coastal State's desire to know of submerged transit by
a submarine and its identity. This question has been
pressed by Indonesia in connection with archipelagic waters,
and will be addressed in that context.
(b) The problem of coastal state security
The US-proposed articles have no provisions dealing with
coastal state security. The straits states deal with this
problem by the use of "innocent passage." The problem with
the requirement that passage be innocent is not that of
substantive compliance by the flag State but rather that the
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coastal state may claim the right to arbitrarily stop passage
on the grounds that it is not innocent, or can adopt regula-
tions designed to ensure innocence. The original International Law
Commission draft for the 1958 LOS Conference provided a more
objective test, namely that passage is innocent so long as the
ship does not use the territorial sea to commit acts preju-
dicial to the peace, good order, or security of the coastal
state. The US--concerned about Soviet activities off its
coast--supported the change in 1958 to the more subjective
criterion that passage is innocent so long as it is not
prejudicial to the peace, good order, or security of the
coastal state.
The Japanese have privately suggested reviving the
International Law Commission approach. We could accept a
general flag state obligation based on that approach.
The Soviet approach, publicly introduced, _nd supported
by the UK in a privately circulated proposal, is to place
obligations on the flag state to avoid specific actions--such
as conducting maneuvers, launching aircraft, etc. Thus,
while the coastal state has recourse against the flag state,
the vessel's right of transit itself is not subject to interference.
of
We believe the concept / general flag state obligations is
helpful, but that the Soviet approach of a detailed list of
prohibited activities raises serious negotiating dangers, (eg.
regarding attempts to add nuclear weapons or other unacceptable
limitations to the prohibitions). We are working with the
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USSR and the UK to develop a mutually acceptable straits
article, for which we intend to seek NATO, EEC, and other
support, in which the concept of general flag state obligations
is the key element.
Conceptually, most if not all of the concerns regarding
"innocence" relate to actions that are not in fact "transit."
The US-proposed right applies to vessels and aircraft "in
transit.. .for the purposes of transit." We have made it
clear that we are only seeking a transit right, not a right
to conduct any other activities. A rasonable interpre-
tation of our article and our own statements in fact pro-
hibits most if not all of the activities on the Soviet
list. Since we in fact have explained our article as if the
transit right exists "only" for the purposes of transit, we
should be able to accept flag state obligations at least
generally.
Another step would be to meet psychological concerns
regarding security by a reference to the UN Charter. Since
UN Charter obligations apply irrespective of what a Law
Of the Sea treaty may say, this approach involves no new legal
obligations on our part. Several formulas are possible.
(None of these formulas would
affect the right of individual and collective self-defense
under the Charter.)
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c)
Regulation
i) Safety of navigation
There is enormous, and constantly increas-
ing traffic through the major straits of the world. As a
major maritime nation, the US has as much of an interest
in ensuring traffic safety as do the states bordering straits.
Because of the dramatically increasing volume of
shipping, and the size of ships, there have been increased
international efforts to regulate traffic in heavily used
sealanes, including straits. IMCO nas established traffic
separation schemes, which we have already proposed be made
more sophisticated
mandatory by the LOS treaty. As traffic increases,/vessel
traffic control systems in straits analagous to air traffic
control systems may become necessary, and are already being
discussed. The fact that a ship captain does not desire
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a collision does not
obviate the need for rules and traffic
control in a strait any more than it does on a highway or
in the air.
The key questions are: What additional regulations
beyond those already existing are necessary and desirable, and
who should make them?
From the US perspective, we are far better off
if regulations are made internationally. This permits
us to participate in making them, and reduces the chances
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for coastal state arbitrariness (even assuming a pro-
hibition on discrimination in form or in fact by the coastal
state). It also permits us to obtain necessary warship
exemptions in the regulations themselves, rather than
seeking a blanket exemption which would be difficult to
justify.
Straits states, particularly Malaysia and Indonesia,
are strongly pressing for coastal state regulation. The
reasons are partly political (regulatory powers are inherent
in "sovereignty" in the territoriai sea) and partly sub-
stantive: the international process can be slow and difficult,
and may not in their view adequately protect coastal state
interests.
The U.K. -- itself both 0. maritime and straits
state -- suggested an interesting solution in the safety
and pollution context largely designed to meet the political
problem. Stated generally, the idea is that coastal states
would implement the international regulations.
This idea might be elaborated in terms of
a coastal state right and duty. The proposal would be that a
vessel traffic control system for an international strait
could be designed by the coastal states, in consultation
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with the major user states, and then submitted to the Inter-
Governmental Maritime Consultative Organization (IMCO) for
approval. The coastal states would then have the right and
obligation to implement the system if approved by IMCO.
The major user states would be obligated, if requested by
the coastal states, to agree with the coastal states on an
equitable method of joint financing for the IMCO approved
systempreferably in line with general cost-sharing guide-
lines provided by IMCO. The costs would include buoys, lights,
other navigational aids, dredging, etc. This approach would
have the distinct advantage of placing the financing obliga-
tion on the flag state rather than on individual vessels,
thus undercutting a still nascent and undesirable trend
toward the idea of individual vessel tolls "for services"
in straits, an idea that unfortunately is not completely
without precedent in canals, ports and the territorial sea.
It also gives us- and other users a strong basis for involve-
ment in the design, development, and implementation of any
coastal state system. There is precedent for such arrange-
ments in the case of the Red Sea lights north of Bab al Mandab
which are administered by the UK through a fund constituted
by several user states; we and Japan favor an international
cost-sharing system for Malacca. Of course, as a practical
matter, the coastal state would have a major role in
implementing any vessel traffic control system in any event.
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Some developing straits states, and perhaps more
importantly developing countries generally, should regard
the proposal as quite forthcoming. Indunesia, one of the
most sophisticated straits states, could be expected to
discern our real objective of participation in control, and
accordingly object. It is possible that the development
implications for Lombok and Sunda straits might soften the
Indonesian position somewhat. Finally, and by no means
least importantly, because this approach parallels the
Japanese strategy in the Malacca Straits, and appears forth-
coming to the developing countries, it would be helpful
in bringing Japan into a more active role of support of our
straits position than has thus far been the case.
Recommendation:
In sum, we recommend that the Chairman of the delegation,
consultation with the Chairman of the Task Force and senibr
in
representatives of the agencies concerned, be authorized to
support a system whereby the coastal state could design a surfaoe
traffic control system for international straits which should
be implemented only after approval by IMCO, and that, further,
major user States would be obligated to agree with straits
states on an equitable method of joint financing for such systems.
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ii) Pollution
The U.S. is in a difficult negotiating situation
on pollution regulation in straits.
for our straits proposal is that the
and 12 miles from the coast would be
the U.S. currently asserts pollution
The underlying basis
high seas between 3
eliminated. However,
control jurisdiction
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over ships to the 12-mile limit of our contiguous zone. Thus,
at this moment, our own legislation could be cited as the
precedent for coastal state pollution regulation in precisely
those straits where we are seeking) ree transit.
Nevertheless, consistent with the purposes of free
transit, we believe we are justified in seeking the same
regime for vessel-source pollution in the territorial sea
in straits as on the high seas adjacent to the territorial
sea in those straits. As a practical matter, it is useless
to seek lesser coastal state rights in straits than the
coastal state enjoys in the high seas ar3as beyond. Accord-
ingly, our position on coastal state rights with respect
to pollution control standards in straits will be the same
as that approved for high seas areas adjacent to a 12-mile
territorial sea. Both the standards and enforcement aspects
of this matter are addressed in a subsequent section of this
paper.
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d) Overflight
Historcially, vessels have had an international legal
right to pass through the territorial sea without coastal
state consent, and this right cannot be suspended in straits.
Overflight of the territorial sea, however, requires consent.
Thus, while states claiming more than a 3-mile territorial
sea can regard the negotiation on vessels as one of defining
the parameters of a right unquestioned in principle, they
are less likely to regard the overflight negotiation in the
same way. The U.S. has based its overflight rights on
high seas rights in areas beyond three miles. However,
the USSR, and posgibly France, assert historic rights to
transit certain straits . (It is unclear whether France applies
this to aircraft.)The U.S. has not opposed this. assertion and
it may be advantageous for us to begin to espouse this concept as
Our straits overflight problem relates mainly to
military overflight. Much of the concern regarding aircraft
may be psychological, perhaps because they are capable of
penetrating the air space over land at high speeds. Some
of our opponents have pointed out that the U.S. itself has
established an Air Defense Identification Zone extending far
out to sea in which all civil aircraft flying toward the U.S.
must identify themselves, although the establishment of entry
conditions is lawful under the Convention on International
Civil Aviation.
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It is argued that the chances of an accident affecting the
coastal state increase as the aircraft gets closer to land.
Our straits proposal applies to civil aircraft as well as
military aircraft, and requires that civil aircraft respect
ICAO standards. However, under the US proposal, state, (inzluding
military) aircraft, to which ICAO standards are not always
applicable, will normally respect those standards while in
transit and will, at all times, operate with due regard for
the safety of navigation of civil aircraft. (The "due regard"
obligation is included in the ICAO Convention, to which the
U.S. is a party) A state would be strictly liable for damages
caused by failure of its state (including military) aircraft
to abide by the regulations.
A major concern and overflight problem is access to
the mediterranean through the Strait of Gibraltar. Under
certain circumstances, such as
nuclear
overflights, and other
secrecy, routes ove/ land are
recent Middle East War, Spain
the resunolv of Israel,
flights which require
not available. During the
denied us overflight of its
territory and also sent us a note (yuestioning our overflight
?f the strait of Gibraltar.
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The US has a fundamental security interest in maintaining
its ability to overfly a number of other straits, and the
maintenance of secrecy of overflight may in some instances be
an essential ingredient of the US operational objectives.
In such instances, the filing of routine flight plans,
initiation of communications with air traffic control,
position reporting, and restrictions on altitude, speed, cargo,
and similar matters would be tantamount to a degree of control
which could delay or interfere with the military objective
and defeat the requirement for secrecy.
On the other hand, a basic aspect of air traffic control
is communications with ground controllers. The Soviet (and
private UK) straits articles provide for on-the-spot radio
communications with the ground. They do not call for advance
notification, such as the usual filing of a flight plan.
We are very reluctant to agree to a communications
requirement for state aircraft because of the problem of
secret overflights. Secrecy is not a basic part of the
normal operations of most military flights which--in the
vicinity of a strait--could be picked up on radar. A majority
of operational overflight needs do not require secrecy,
although sensitive operations do, and indeed military aircraft
usually comply fully with 'air traffic control regulations.
Since we believe overflight rights are probably not attainable
without additional accommodation on air traffic safety
issues, we should at the appropirate time be prepared to accept
a requirement of monitoring certain published frequencies
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for the purpose of receiving ground communications on safety
matters.
RecOmmendation:
If the Chairman of the Delegation, in consultation with
the Chairman of the Task Force and senior representatives
of the agencies concerned, determines that further substantive
flexibility is needed, the Delegation is authorized to accept
a duty for state aircraft to respond while in the strait to voun,9
communications from the appropriate international air traffic con-
troller on applicable international frequencies for the
purpose of verifying course, speed and altitude
Information regarding origin or destination outside
the strait is not necessary for safety purposes and would nct
be required under this approach. Moreover, the right of
transit would not depend on communication, which would be
completely independent obligation. There is no obligation t. c)be,
air traffic control instruct s.
nor is there any change in our instructions regarding zajr treffc
safety, including the duty to operace with due regard for the
safety of navigation civil aircraft. In the unusual co!W
where secrecy or radio silence are necessary, we may in sone
instances be able to justify this on grounds of reasonable self-
defense precaution.
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e) Liability
The underlying U.S. approach to traffic safety and
pollution in strait-s is that it is preferable to be liable
to the coastal state for damage caused by an accident during
transit than to give the coastal state broad regulatory
authority, or to accept too many international restrictions
regarding traffic safety, pollution, and similar matters.
We have already proposed strict liability with respect to damages
resultina from failure to adhere to IMCO traffic separation schemes
and ICAO air traffic regulations. If liability is only in-
curred when a regulation is violated, we are to some extent
encouraging more regulation than may be necessary. More-
over, there is no reason why the coastal state should bear
any burden regarding damage it suffers from activities which --
in a fundamental sense -- it cannot and should not control.
If two or more vessels or aircraft are involved, damages
could be apportioned between them. We should, however, be
careful that forthcoming liability provisions are tactically
sound in attracting more coastal state support without losing
maritime state support.
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i. State aircraft and _government non-commercial
. .? .
ships (including warships)
The flag State is of course already liable for
damages caused by government non-commercial vessels and state
aircraft. Moreover, for political and security reasons, we
have consistently taken a liberal approach on this matter when
an accident occurs. Furthermore, these vessels and a.l reraft
enjoy immunity from coastal State arrest, and we do not want
them to be subject to certain regulations (e.g., pollution),
Accordingly, the assumption of strict liability is LJiliely
in practice to make a significant difference, and could
significantly enhance our negotiation posture. It will alo
provide us with a strong argument that the remedy against
our warships for violating the regulations is flag stat.
liability in the event of damage, not coastal state
interference with transit.
Recommendation: That we be authorized to support
liability up to and including a rule that the flag state be
subject to strict liability for personal injury or property
damage to the coastal State or its inhabitants caused by an
act of or accident involving a vessel or aircraft entitled
to sovereign immunity under international law while exercising
the right of transit in the strait.
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ii. Commercial vessels and aircraft
C
Although the fear of supertankers is substantial,
the problem is not as great because commercial vessels and
aircraft, and their owners and operators, are subject to suit
in national courts. Moreover, liability for pollution damage
from commercial vessels?the greatest concern--is already
the subject of international agreements. Nevertheless, it
could be very helpful to deal with this problem in a strait
article. Since several developing countries have large or
growing fleets, we do not believe the negotiation of this
issue is likely to have very substantial risk; accordingly the
U.S. can afford to appear forthcoming. In any case, many
petroleum companies have established one-tanker corporations
intented to limit the possible amount of liability. In fact,
in both the commercial navigation and civil aviation fields,
the U.S. has been far in advance of others on this question.
Recommendations:
1) That we be authorized to support, if necessary, liabii.itv
of the owner or operator up to and including a rule that the ownr
or operator of a commercial vessel or aircraft is subject to
strict liability (strict liability would be defined as in the 1969
Convention on Civil Liability for Oil Pollution Damage ) for
personal injury or property damage to the coastal State or its
inhabitants caused by an act of or accident involving the vessel
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or aircraft while exercising the right of transit in the strait.
2) That we will be authorized to support flag state
responsibility to require that its flag vessels have insurance
or other financial security to ensure their financial responsi-
bility in accordance with generally accepted international standards
(e.g., the insurance requirements of the 1969 Convention on Civil
Liabiltiy for Oil Pollution Damage).
We will consult in advance with US industry and the
maritime countries before taking a public stand on these questions.
As in pollution questions, we should also provide for quick
release of non-military vessels under a bonding procedure.
iii. Coastal State Liability
In addition to quick release and bonding requirements,
other protection should be provided against possible arbi-
trary coastal state action. Consquently, we should propose,
in conjunction with coastal state rights in straits, that the
coastal state be liable for violations of the treaty, in-
cluding unreasonable actions taken in implementation
of its treaty rights.
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D. ARCHIPELAGOS
Archipelago claimants have become a complicating factor
in the negotiations disproportionate to their number or
world power base. They have formed a coalition with hard-
line straits states (although the issues are disparate)
and have obtained support on an ideological basis from
blocks such as the OAU, even though most of the supporters
have no real parallel interests. The archipelago issue is
interferring with progress in other areas of the negotia-
tions to the extent that the other members of the Group of 5
are strongly urging us to take steps to resolve the issue.
Efforts of members of that group have been less than helpful
The UK has tabled archipelago articles, and the USSR has
made statements sympathetic to the claimants. We believe
that our ability to prevent this issue from further dis-
rupting our ability to achieve our overall objectives will
be in large measure determined by the perception of
archipelago supporters of the reasonableness of our efforts
to reach an accommodation.
(1) The problem of an accOmodation.
a. The claimants. Archipelago claims have been
presented in. the Seabeds Committee by Indonesia,
Philippines, Fiji, and Maritius. The Bahamas and
our own Trust Territory are also seeking archipelago
status. The resource interests of these claimants
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could be effectively satisfied by whatever economic -
zone is finally developed by the Conference, and at
least some of the claimants might be content with
merely a resource regime. The Philippines and Indonesia,
however, have a political interest in achieving recog-
nition of a "concept," and Indonesia, in particular,
has perceived security interests in achieving control
of navigation. They seek this control purportedly
because of the threat of infiltration and subversion.
Thus, any proposed solution must address these political
and security considerations.
b. Risks.
A major difficulty from the
US perspective is that any conceivable accommodation
which would satisfy the major claimants would require
us to relinquish the right to many high-seas naviga-
tional and other uses. As a practical matter, this
means that we would lose the right to conduct
operations in the areas which would become archipelagic
waters. This is not merely a los9 of space to conduct
training exerciE:es. At best, it creates vast areas
which would be "off limits" to us which would be
available as havens for submarines of the USSR or any
other power which might clandestinely violate the
treaty. A worse result is the potential for agreement
between an archipelago state and a power unfriendly
2
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atAro;i ii6,4
to us for the use of such waters for tactical or
D-3
strategic purposes. In addition, we would almost
certainly lose the right to conduct scientific
research in archipelagic waters. Finally, efforts
to negotiate on the issue carry some risk of rendering
us vulnerable to weakening our juridical position
on high seas and straits issues in general.
2. Possibilities for Accommodation.
If we can remove or minimize the exacerbation of the
archipelago controversy from the negotiations, and at the
same time advance our efforts towards achieving our straits
and other navigational objectives, both for military and com-
mercial vessels and aircraft, we can accept a certain amount of
the risks involved. On balance, we believe it is in our
interests to intensify our exploratory efforts to deter-
mine whether or not it is possible to reach a solution which
will be acceptable to the claimants, while preserving a suf-
ficient quantam of usage rights for military and commercial
vessels(including tankers) and aircraft to meet our minimal
requirements. We view Indonesia as the key to any possible
solution, and would initially concentrate our efforts there.
At the same time we recognize that no accommodation may be
possible with the Philippines, regardless of the outcome
of our efforts with Indonesia.
xLcUmMENDATION
That the delegation intensify exploratory efforts to
determine whether a solution embodying the following points
is possible:
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(1) An archipelago concept could be applied only
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by island states; not by States with both island
and continental territory.
(2) Lines designed to delimit the area of "archipelagic
waters" could be drawn from land point to land point.
These lines may be called "archipelagic construction
lines," or some term other than "baselines." Length
of archipelagic construction lines may not exceed
90 (FB to 120) nautical miles.
(3) All waters enclosed by archipelagic construction
lines would be "archipelagic waters." These waters
are not, nor are they analogous to, internal waters,
territorial sea, or economic zone. They are sui generis -
unique.
(4) The maximum permissible ratio of water to land
is 5 : 1. Waters in bays, reefs, rivers, atolls would
be counted as land for determining the ratio.
(5) The archipelagic state would have exclusive
jurisdiction over activities withn the archipelagic
waters other th6,n overflight and navigation ((navigation
includes vessel-source pollution).
(6) The territorial sea - outside archipelagic
construction lines would be measured from land
and any applicable baselines along it.
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(7) We would prefer that any coastal zone beyond
the territorial sea (e.g., an economic zone) agreed to
in the treaty - outside archipelagic construction lines
be measured from the same land or baselines along it from
which the territorial sea is measured. This may, however,
cause a shelf boundary-delimitation problem for Indonesia.
Accordingly, we could accept measurement of the economic
zone outward from the construction lines.
(8) The navigational and overflight right to be con-
firmed in this part of the LOS Treaty is the right to
transit the Archipelago. (A term different from that used
in connection with straits would be used to avoid confusion
between the two concepts--e.g. archipelagic passage).
(9) Transiting vessels and aircraft shall utilize a
route through or over archipelagic waters which reasonably
conforms to their destination, outside the archipelago.
(10) Transit shall be accomplished without unreasonable
delay. All vessels and aircraft in transit, however, may
take such measures as are normal for their safety and
self-defense.
(11) Vessels and aircraft entitled to sovereign immunity
would be exempt from pollution standards and enforcement
whether international or coastal. The archipelago state
could not establish or enforce vessel construction stand-
ards. The archipelago state could establish and enforce
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discharge and dumping standards in archipelagic waters,
provided discrimination between ships of different
nationalities (including ships of the archipelago state))
and standards that have the practical effect of denying
passage, are prohibited.
(12) The obligations of the transiting vessels
and aircraft, and the archipelagic state, are mutual
and reciprocal. Whereas the vessels and aircraft
will transit without unreasonable delay, so too the
archipelagic state shall not hamper the passage.
(13) There will be no notification of transit.
(14) Any willingness on our part to reach and
support this accommodation is contingent on receiving
active support for our straits and other navigational
objectives from Indonesia both before and during the
LOS Conference. Our ultimate acceptance of the concept
will, of course, be upon the coming into force of a LOS
treaty acceptable to us.
(15) Our preferred position is that the passage
or transit area should not be limited further than as
specified in the foregoing points, and we will attempt
to obtain that result. If, however, it is necessary
to accept some type of additional restriction on the
passage area to achieve an overall resolution of the
archipelago issue, we could accept a passage area
(which might ultimately be called a corridor if tactically
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advantageous) conforming to the sinuosity of the land
areas, provided that the passage
area is not restricted.
to less than 75% of the area betwerm the nearest
points of land, or 100 miles, whichever is lesser, of the
waters between main islands; i.e., not drying rocks or
shoals. Such transit areas must be constructed so as
to include the maximum amount of navigable waters avail-
able, including all normal shipping channels. Transit-
ing vessels and aircraft may depart from the passage
area for the purpose of safety of life, self-defense,
or as a result of force ma)eure, or in innocent passage
as in the regime of the territorial sea.
3. Position in event of Failure of Accommodation.
A fair possibility exists that it may not be pos-
sible to reach an accommodation which will protect our
minimal interests. If we should reach a point in our
explorations where such an outcome becomes apparent,
it will be necessary to adopt a different approach to
protect our interests. We believe, nevertheless, that
our exploratory eiforts will have served a beneficial
purpose in having demonstrated our reasonableness in
seeking a solution, which we can cite as necessary
in the negotiations.
RECOMMENDATION
Early in any exploratory discussions we will
inform the archipelago claimant or claimants that a
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failure to reach a mutually satisfactory accommodation
will require us to negotiate in the Conference in a
manner designed to protect our owl, .nterests; i.e., to
seek to have no archipelago concept at all in the
treaty, and in any event to refuse to accept any archi-
pelago concept that is inimical to our navigation and
security interests. We will make it clear that our
offer is not necessarily a continuing one. In the
case of Indonesia, we may advise that the preservation
of our juridical position may involve a reconsideration
of the informal notification procedures which we have
been following. Our position in the ensuing Conference
will be to isolate the claimants and achieve a treaty
that is silent on the archipelago issue.
4. Additional Considerations.
To the extent that acceptance of our offer of
accommodation would create security or other practical
problems for Indonesia, we intend to explore potential
practical means for helping Indonesia to deal with those
problems.
5. :E,122-125-52121-2E-9L.all.,P-L.C.F?S..c.J-142.2.J..:212.2-t-'
Our initial explorations will be limited to
seeking accommodation with those states who qualify
as a single-unit archipelago under the criteria set
forth in this section. Should our efforts prove fruitful,
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and should it further appear that our overall interests
(including the maintenance of a limited definition
of archipelagic waters) would be fnrthered by agreeing
to accept extension of the concept to archipelago
claimants who would be divided into clusters by its
application, we will study the possible effects on our
interests and give a recommendation.
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E. Coastal Resources and an Economic Zone
The large majority of coastal nati6ns, including a
number of developed coastal naticns, favor broad coastal
state economic jurisdiction over living and mineral
resources beyond a 12-mile territorial sea, extending at
least 200 miles from shore. The major issues are coastal
E-1
state jurisdiction beyond 200 miles over continental
margin seabed resources and coastal and anadromous fisheries, an
exception for tuna, limitations and standards governing
the exercise of coastal state jurisdiction, including
protection of non-resource uses, and compulsory dispute
settlement procedures. We can support coastal state
jurisdiction over resources in a 200-mile economic zone
in the context of satisfactory resolution of these major
issues and an overall satisfactory settlement.
A further issue of considerable importance concerns
the rules applicable to delimitation of areas' of coastal
_state jurisdiction between neighboring coastal states;
this is a complex and contentious bilateral issue for many
coastal states.
Moreover, although the issue arises largely in the
context of delimitation between neighboring coastal states,
questions have been raised as to whether small islands,
particulai?ly if uninhabited, should be entitled to the
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same broad economic jurisdiction (or even the same terri-
torial sea) as other areas. In this regard, some African
states have proposed excluding areas under foreign
domination or control from economic zone provisions.
1. Seabed Resources of the Continental Margin
There is virtually no opposition to the idea that
coastal state jurisdiction over seabed resources of the
continental margin should be exclusive. While the U.S.S.R.
has proposed a limit of 100 miles from shore or 500 meters
depth, whichever is further seaward, most countries,
including landlocked and shelf locked if their interests
are accommodated, are prepared to support the idea that
this jurisdiction should extend no less than 200 miles
from shore.
Many Latin American countries, particularly those on
the east coast, as well as Canada, the U.K., and New Zealand,
believe coastal state jurisdiction should extend beyond
200 miles to the edge of the continental margin. Australia
and the PRC also support this position, although at least
with respect to the PRC, the problem probably is perceived
essentially as one of bilateral delimitation with neigh-
boring coastal states.
The African states do not support coastal state jur-
- isdiction beyond 200 miles, although Nigeria and possibly
others do not appear to have substantive objections to
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the idea. Japan takes the same position as the African
states, largely because of bilateral delimitation
problems with the PRC. The landlocked and shelf locked
countries -- many of which are African -- tend to favor
the African position.
The-d-riginal U.S. proposal for a coastal state
trusteeship zone specified a limit embracing the entire
continental margin. Since then, we have stated we could
also accept an alternative distahc- limit. Our new Coastal
Seabed Economic Area proposal does not specify a limit,
but in introducing the articles we noted that the majority
favored at least 200 miles, and that a substantial number
of states favored including the continental margin beyond
200 miles. We went on to urge an accommodatIcn of the
interests of those favoring broader jurisdiction for the sea-
beds by providing for the interests of others through such
devices as revenue sharing. In essence, the U.S. posture
was one of seeking to facilitate widespread agreement by
accommodating the interests of loot:, sides in the context
of coastal state jurisdiction over the continental margin
beyond 200 miles. We did not indicate a direct U.S. interest
in -t-he substance of the issue.
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The following information on geographical areas has
been compiled to assist in evaluating the positions that the
US should take on the outer boundaries of the Coastal Seabed
Economic Area. Such alternatives assume at least a 200-
mile limit alone or in combination with an additional fixed
depth, whichever is further seaward.
Outer Limit
1. 200 mi.
2. 200 mi. +200 meters
3. 0 mi.---+-2500 meters
4. ho0 mi. +4000 meters
% U.S. gains
going beyond
U.S. Sq. Miles 200 miles
2,222,001
2,224,300
2,279,500
2,608,500
0.1%
2.6%
7.4%
11.S. absolute gain
in square
nautical miles
2,500
57,600
386,500*
*Two long 4000 meter ridges extend across oceans that would raise serious prob-
lems of deep seabed allocations. One from the Azores to Guyana and another
from Mexico to the Antarctic via French Polynesia.
Outer Limit
1. 200 mi.
2. 200 mi. +200 meters
3. 10 mi. +2500 meters
4. _00 mi. +4000 meters
U.S. % of area if limit Countries Involved
adopted world-wide
9.0%
8.8% Argentina, Canada,
Australia, US, USSR
**
***
6.5%
5.0%
**Argentina, Australia, Canada, USA, USSR, Chile, Ecuador, Iceland, India,
Ireland, Madagascar, Mauritius, Norway, New Zealand, Pakistan (?)
South Africa, South West Africa and United Kingdom
***Argentina, Allstralia, Canada, USA, USSR, Chile, Ecuador, Iceland, India,
Irelarid, Madagascar, Mauritius, Norway, New Zealand, Pakistan, South
Africa, South West Africa, United Kingdom, Brazil, Costa Rica, El
Salvador, France (Pacific), Guatemala, Indonesia, Mexico, Portugal, Peru,
Sri Lanka, and Tanzania
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Duter Limit
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E -5
200 miles
Distribution of U.S. areas beyond
1.
200 mi.
2.
200
mi.
+200 meters
Arctic Ocean
97%
Bering Sea
3%
3.
200
mi.
+2500 meters
Arctic Ocean
94.53%
Bering Sea
4.25%
Other
1.22%
4.
200
mi.
+4000 meters
Arctic Ocean
53.69%
Bering Sea
****
Gulf of Alaska
17.41%
8.90%
Pacific Northwest****
19.02%
Atlantic
.74%
Gulf of Mexico
.02%
****Not highly prospective areas for hydrocarbons as mostly volcanic.
To the extent the U.S. interest in the continental
margin beyond 200 miles relates to Arctic areas off
Alaska, it is unclear what the actual effect on any
general limit (200 miles or any other) will be in the
Arctic. The reason for this is that virtually all Arctic
States (other than the U.S.) including the USSR and Canada,
either have claimed or would like to claim all of the
Arctic north of their coast to the Aorth Pole under a
"sector principle." This Arctic issue has not been raised
in the LOS negotiations, and we strongly suspect that most
Arctic States will not regard any general maritime limits
in an LOS treaty -- territorial sea or resource jurisdiction
-- as precluding a sector claim in the Arctic. Accordingly,
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most Arctic
--before or
part of the
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States are likely to oppose any express attempt
after a treaty is negotiated--to regard any
Arctic seabed as international seabed area.
The US is opposed to the sector theory for navigational
reasons, but could join other Arctic States in an interpre-
tation that extends resource jurisdiction in the Arctic to
the North Pole should the
need arise; this would eliminate the need to seek universal
jurisdiction beyond 200 miles to co.v2r the Arctic where
almost all possible US areas
hydrocarbons may lie.
Most of the deep waLer portions of the
with potential
deep water
world's conti-
nental margins have not been investigated in any detail.
Consequently there are widely varying estimate., of the
recoverable hydrocarbon potential and of the present value
of deep water hydrocarbons. Political, technological and
economic factors relevant to a policy analysis of what is in
the overall interest of the US for an outer boundary for
seabed resources are changing rapidli. We do know there is
increasing commercial risk and dramatic increase in cost of
extraction as water depth increases.
In spite of the speculative nature of the data, we have
made some ballpark estimates of the hydrocarbon potential
and value for various limits for the US beyond 200-miles
based on the information available at this time. As the
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US continental margin is, on balance, roughly representative
of the world-wide configuration, it may be assumed that the
figures developed for the US margin would approximate the
situation world-wide.
U.S. Continental Mar5in
Billion
Estimate of Barrels of
Added Hydrocarbon of Oil
1.
200
mi.
2.
200
mi.
+ 2500
meters
0.2%
3.
200
mi.
+ 2500
meters
3.0%
4.
200
mi.
+ 4000
meters
LD. 2%
E -7
Present
Value
Several comments are necessary on the 200 mile plus 4000
meter outer boundary. The first point is that all figures
for this area are particularly untrustworthy because the data
base is extremely unreliable. Secondly, volcanic areas aside,
the possible US areas between 2500 and 4000 met_rs that may
have some hydrocarbon potential are largely located under
thick ice in the Arctic. An Arctic Sector Theory would
encompass this region Zoi Lile U.S. and avoid the problem of the immense
4000 meter ridges that run across the South Atlantic and South
Pacific basins. Development of Arcti- hydrocarbons also
raises unique environmental and operating problems that
suggest that it would require a huge discovery to overcome
inherent political and economic constraints to justify exploi-
tation.
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Under existing law coastal states have exclusive rights
to seabed resources out to the 200-meter water depth and
beyond that to adjacent areas that admit of exploitation.
Most coastal states now want to establish a precise outer
limit of 200-miles although a few influential broad shelf
scates want jurisdiction beyond 200-miles to the edge of
the continental margin. Most landlocked and shelf locked
states will probably recognize a 200-mile limit in the Treaty
and probably coastal state control beyond if some revenue
sharing provisions are included in the Treaty. The precise
modalities of the accommodation would have to be worked out
in the negotiation.
There are costs and benefits to the US
from international recognition in the Treaty of coastal state
seabed resource jurisdiction out to 200-miles or beyond. The
basic cost to the US will be the possible loss of access, or a
sharp increase in the cost of access (since we have no control
of coastal state fees, but could participate in fixing inter-
national fees) to the 85% percent of the potential continental
margin hydrocarbon resources off other nations. We also have
concerted
no control over/attempts to cut production or use resources for
political purposes. It is likely that US companies with their
lead in deepwater hydrocarbon extraction technology would benefit
the most from nondiscriminatory access to deep water areas
which cannot be assured if the areas are under coastal state
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control. Even assuming a less than optimum international re-
gime, because of its technology, the US would have access to a
disproportionately high percentage of an international area for
exploitation. We also run a greater risk of coastal state
interference with our nonresource uses such as navigation, marine
pollution and scientific research, since other states would con-
trol 92% (5f the world's continental margins.
The basic benefit to the US from coastal state seabed re-
source jurisdiction to at least 200-miles is that the U.S.
would acquire undisputed control over 15% of the estimated
world's continental margin hydrocarbon potential covering 8% of
the world's continental margins. We do not run the risk of
dealing with an international arrangement although we recognize
that our projected energy needs are such that we will have to
with a vaiiety of individual or blocs of coastal states for
offshore hydrocarbons . The above factors and various costs
and benefits lead to several conclusions regarding the policies
the U.S. should adopt on the outer limit of the Coastal Seabed
Economic Area.
deal
First the U.S. should not opposc coastal state jurisdiction
beyond 200 miles. The practicalities of the negotiation are
that an overall settlement will probably require an accommodation
with the strongly held position of other broad-shelf states.
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Second, even within 200 miles, the US is not proposing
coastal state jurisdiction without accommodation of the
interests of landlocked, shelflocked, and other geographically
disadvantaged states through revenue sharing,
or without other international obligations of the-coastal
state. Consistent with this position, we believe the U.S.
Lhould not support coastal state jurisdiction over the
continental margin beyond 200 miles unless it is subject
to at least the same treaty limitations that apply within
200 miles.
The question therefore is the degree of coastal state
control over continental margin resources beyond 200 miles.
The balance of our economic interests on this matter is not
completely clear. We would like the resources to be avail-
able to U.S. consumers. However, the effect c' exclusive
coastal state jurisdiction off our own coast is to prevent
access for our companies off foreign coasts without foreign
state consent. A uniform 200 mile limit would cover over
one-third of the world's ocean floor and while the U.S.
gets more aiea with 200 miles than P-ly other state,
beyond 200 miles a number of states have considerably broader
and shallower continental margins off their coasts than we
do.
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Australian and Canadian representatives urged us in
December to avoid taking a position on this issue, while
relying on our global interests in widespread agreement
as-the basis for encouraging a "favorable" compromise.
Tactically, the issue is a delicate one. Under certain
circumstances discussion of U.S. substantive interests in
jurisdiction over the margin beyond 200 miles could
stimulate support for limiting jurisdiction to 200-miles.
Accordingly, while negotiating privately on the issue, we
believe we should generally indicate our interest in seeing
relevant interests accommodated .playing an honest broker
role) and should not (except as directed by Head of the Dele-
gation in consultation with the Chairman of the Task Force
and senior representatives of the agencies concerned) discuss
the US interest in its continental margin beyond 200 miles with
the public or foreign representatives. We will simultaneously
explain privately to interested members of Congress why evidence
of domestic insistence on the issue could be counter-productive.
Pending resolution of the issuc. we will not take any
position inconsistent with the adoption of an Arctic Sector
resource solution to protect our potential interest in acquiring
control over Arctic continental margin regions beyond 200 miles
with hydrocarbon possibilities.
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As indicated in earlier instructions, a precise limit of
coastal state jurisdiction over the continental margin beyond
200 miles will have to be established to define any slich juris-
diction. The U.S. proposal to use a gradient figure was widely
regarded as too complex. While not entirely accurate in a geo-
logical sense, a depth-of-water figure is likely to be the
simpliest to negotiate and to find. Figures beyond 200-miles
will be studied by the NSC Interagency Task Force with a view
to arriving before Caracas at a precise limit that maximizes
the hydrocarbon and mineral resource potential off our coast
without extending unreasonably far elsewhere.
RECOMMENDATION:
1) The US delegation should not oppose proponents of a 200
mile limit, proponents of a margin limit beyond 200 miles or
proponents of an intermediate zone beyond 200 miles, but should
seek to establish a role of honest broker on the issue.
2) The US delegation should take no position inconsistent with
coastal state jurisdiction over Arctic seabed resources extending
into the North Pole under a sector approach limited to resource
jurisdiction.
3) Precise figures for defining any continental margin
limits beyond 200 miles will be developed.
With respect to the substance of coastal state seabed
jurisdiction beyond the teritorial sea, our view is that the
coastal state rights under the treaty should be limited to
.1
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exclusive jurisdiction over exploration and exploitation of
seabed resources, deep drilling for any purpose, and off-shore
installations affecting its economic interests (e.g, super-
ports). Other activities would be governed by high seas
principles4. Scientific research is specifically dealt with
later in the paper.
The international limitations on coastal state behavior
that we have proposed in our Coastal Seabed Economic Area Articles
would continue to be supported, as would compulsory dispute
settlement:
-1) In order to assure an adequate accommodation of
--uses, and to prevent resource jurisdiction being used as a
basis for unjustifiably interfeking with navigation and
other uses, the coastal states would be obliged to prevent
unjustifiable interference with other uses, and to ensure
compliance with specific international standards in this
regard (e.g., regarding maritime safety standards and the
breadth of safety zones). Conversely, other uses would
have to be conducted in accordance with a general obligation
Of reasonable regard for coastal state rights under the
Treaty. For example, other users would have to respect
the safety zones around installations established under the
Treaty.
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2) The coastal state would ensure compliance with
international standards, and could apply higher standards to
prevent pollution from resource activities, drilling and
fixed installations over which it has exclusive rights
under the Treaty .
3) The coastal state would be obliged to protect the
integrity of foreign resource investment.
While the relative difficulty of achieving agreement
on each of these points varies, we believe the chances of
achieving agreement on the first substantive point are good.
The practical value of any of these measures depends
largely on agreement on compulsory dispute settlement.
Revenue sharing aside, which is discussed below, we
believe the U.S. interests are best served, and the
negotiations simplified, if the standards apply seaward
from the territorial sea and we will seek that result.
Nevertheless, we believe that with respect to the second
and third limitations above, if necessary to achieve
agreement on the standards, the Delegation should continue
to have flexibility on the issue of whether these limita-
tions are applicable seaward from the 12-mile limit of
the territorial sea, or only seaward of the 200-meter depth
curve where it is beyond 12 miles.
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-We have reached the conclusion that the rate of
revenue sharing by coastal states in the area of coastal
state resource jurisdiction should be uniform for all
states and probably should be computed in the Treaty as a fixed
percentage of the value of production at the wellhead
in order to simplify its application under different
economic systems. In this regard, there are five interre-
lated variables which determine the absolute amount of
revenue and the relative shares among coastal states. The
variables are: (1) the output potential of the revenue
sharing area;(2) the revenue sharing rate;(3) the rate of
hydrocarbon production;(4) the timing of production; and
(5)-the relative distribution of resources with respect to
distance/depth and distribution of-resources among coastal
states. We believe the coastal state should be-responsible
for collecting and transfering any revenues. (For a dis-
cussion of the allocation of revenues, see pp. under
section .) Specific ranges are being developed now
on the basis of the criteria specified in NSDM 62:
...a level that will make a substantial contribution
to development, render participation in the Treaty
attractive to the necessary signatories, and at the same
time encourage exploration and exploitation of the seabeds."
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It should be noted that the attitudes of the
coastal state majority,
as well as that of the landlocked and
shelflocked minority, are relevant to the second criterion.
? There is disagreement about revenue sharing.
Accordingly, three options are presented. In general
terms they are: (1) no revenue sharing; (2) revenue
sharing up to 1% starting at 12-miles; (3) revenue sharing
UP to 5% startina at greater of 12 miles or 200-meters
(or functional equivalent). These options are followed by an
adeitional option, consistent with options 2 and 3 above, for
revenue sharing beyc-ild 200 miles at a higher rate than landwa.rd
of 200-miles.
Option 1. The U.S. should withdraw its present support
for revenue sharing with respect to any area of coastal state
seabed jurisdiction.
Pros:
1) Revenue sharing, even at modest rates, involves
large sums that would increase through time. There would
be an undesirable drain on tax revenues and an adverse
effect on the U.S. balance of payments position.
2) Any form of revenue sharing will face the problem
of verifying that a coastal state has actually complied
with its royalty payment obligations. There will be
temptations to cheat on a common definition of the term
"value of production," and the U.S. could well be left
paying more than its fair share of the coastal states'
obligations.
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-3) The financial burden of revenue sharing will be
an additional disincentive for exploitation of critically
needed hydrocarbons and other minerals.
4) There have been few specific reactions to the
revenue sharing proposals that the U.S. has advanced.
Hence, it is a propitious time to abandon this policy,
5) Revenue sharing has not proved to be an effective
"bargaining chip" in the negotiations. In fact revenue
sharing may be opposed by a_significant number of developing
coastal states and thus our revenue sharing proposals may
not?only fail to gain us support but may make it more
difficult to obtain other substantive objectives.
6) Some members of Congress have expressed reservations
about revenue sharing.
7) Revenue sharing, if based on royalties, would
raise the prices of petroleum products and reduce output.
As the chief consumer of fuels, the United States would be
the principal country hurt by this but all nations would
be affected.
8) Revenue sharing's greatest financial burden in
the short term would fall on the U.S. given our plans to
rapidly develop our OCS hydrocarbon reserves (part of
Project Independence) and the growing technological
capability of U.S. firms to develop distant continental
margin areas.
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Cons:
1) Revenue sharing has been part of the U.S. ocean's
policy since the President's announcement in May,1970.
Resolutions that have overwhelmingly passed in both the
Senate and House endorsing the President's ocean policy
have specifically endorsed revenue sharing. Private
groups and prominent newspapers have made similar
endorsements. To withdraw support for revenue sharing
now would impair our domestic credibility and under-
mine the Lroad support we have been given.
2) Since 1970 ? the U.S. has vigorously advocated in
the international negotiations the need for an early Con-
ference. Most developing countries have come to believe
that the U.S. seriously and sincerely desires to accomodate
both their interests and our own in a new stable agree-
ment on the oceans. Abandonment of revenue sharing
could subject the U.S. to the charge that we misled de-
veloping countries into supporting the need for a Con-
ference helpful only to our navigational interests where
we did not, in fact, intend to negotiate a settlement that
would take their interests equitably into account. It would
also cast doubt on the seriousness of all other U.S. pro-
posals made in the LOS negotiations, particularly various
pffers of cooperation and assistance and make the achieve-
ment of our basic objectives much more difficult.
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3) There is little risk that revenue sharing sums will
be excessive. The amount of revenue that would be
available is dependent upon many factors such as the
method of computation, area involved, and the rate of
sharing. There is every indication in the negotiations
that the large majority of states are not eager to
commit substantial funds.
4) The withclrawel of our revenue sharing proposal might be
misunderstood at home and abroad as a gesture to the
petroleum companies. Inview of our difficulties on the
problem of oil prices and profits,this is a particularly
bad time to run such a risk.
5) There is no evidence that revenue sharing would de-
ter development, particularly in the light of sharply
increased prices. Costs might be passed along to the
consumer or to the general taxpayer in the case of
tax credits.
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6) Revenue sharing is virtually the only benefit that
can be offered to the many states that have little or nothing
to gain by expansion of coastal state jurisdiction over seabed
minerals. These states constitute a blocking third at the
Conference and their interests must be accommodated if we are
to achieve an overall settlement that protects U.S. non-resource
as well as U.S. resource interests.
7) Revenue sharing cbLigationswould apply to all coastal
states at the same rate. Accordingly, the U.S. share must be
considered in light of that of other states, and the resulting
dimunition of the need for direct foreign economic assistance
about
to developing countries. Foreign States are likely to have/85% of
the total world petroleum from which revenues would have to
be shared.
8) The U.S. is seeking recognition and confirmation
in international law for broad coastal state jurisdiction
over seabed minerals. Achievement of this objective while
protecting our navigational and other non-resource interests
would be welcomed by the Congress. A variety of acceptable
means are available to deal with the transfer of revenue
sharing funds issue.
9) To withdraw our support for revenue sharing would
jeopardize our efforts to gain support for the President's
Five Cbnditions on the continental margin. By eliminating one,
we would encourage the elimination of all and this would run
the real risk that economic jurisdiction would evolve into a
zone undistinguishable from a 200-mile territorial sea with
serious consequences for our navigational inte,r r,sts.
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10) Our credibility in international negotiations
generally would be hurt.
11) We would eliminate one of the principal inducements
for other countries to sign the LOS Convention.
12) It is economically inconsistent to make the
unqualified claim that revenue sharing will be both a
disincentive for exploitation and that revenue sharing will
cause higher prices.
13) Revenue sharing based on the value of hydrocarbon
production will not necessarily raise prices and it will
not cause a reduction in existing output levels. In theory,
a royalty could slow the rate of output growth; however, in
practice, firms may not be deterred by revenue sharing which
raises their total cost by an extremely small proportion.
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Option 2. The U.S. Delegation should be authorized to
!upport revenue sharing from seabed minerals production
seaward of a 12-mile territorial sea if the Persian Gulf and
North Sea are included. The precise rate that is acceptable
would be determined on the basis of the criteria specified
in NSDM-62 in full consultation with the Agencies concerned.
In no event would the revenue rate exceed 1% of the value
of the hydrocarbons extracted from the area.
Pros:
1) While it is likely that revenue sharing is more
easily nogotiated it shallow areas close to the coast are
excldded, there is no reason for the U.S. to take the
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blame for insisting on that result.
2) Major offshore oil exploitation off the coast of
other countries is in areas like the Persian Gulf and the
North Sea that are at less than 200-meters depth. Inclusion
of revenues from the areas is likely to significantly increase
the total, and is likely to increase the pressure for lower
rates of revenue sharing.
3) The total financial cost depends on the rate of
revenue sharing: a lower rate for a larger area could be
less costly than a higher rate for a smaller area.
4) Since deep water technology is likely to be used
off the U.S. first, at the initial stages the U.S. might pay
a relatively higher proportion of the total if revenue
sharing does not include significant shallow areas.
5) Since the U.S. has only about 8% of the world's
continental margins, over the long run the U.S. percentage
of funds available for international development efforts
arising from revenue sharing is likely to be significantly
lower (than our current rates of voluntary contribution)
and accordingly we have an interest in maximizing the
revenu-e base.
6) The ability to present this Option has major
negotiating advantages in reaching a satisfactory overall
settlement on both non-resource and resource issues. The
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good will votes of the geographically disadvantaged States
are essential for achievement of our non-resource objectives
and our straits position in particular.
7) Application of revenue sharing seaward of a 12-mile
limit increases the likelihood that the US will be able to
achieve agreement on application of other international
standards to protect our nonresource interests.
8) The Delegation should have the flexibility to present
a reasonably forthcoming approach on this issue in order to
ensure that we have the latitude to achieve our overall
objectives at the Conference.
9) A larger revenue sharing area, without a national tax
credit arrangement, allows for a lower revenue sharing rate,
which in turn is less distortionary in terms of investment and
production decisions.
Cons:
. 1) Revenue sharing is designed in part as a device
for accommodating legal differences on the extent of coastal
state jurisdiction beyond 200 meLers. A 12-mile inner
boundary does not contribute to resolution of that issue.
2) Because coastal states clearly have undisputed
existing vested rights within 200 meters, domestic and
international opposition to revenue sharing starting at
12-miles is likely to be considerably greater.
sReppm
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3) While it is true that the U.S. has only about 8%
of the world's continental margin, there is likely to be
more production sooner off the U.S. and thus the actual U.S.
contribution (given a set rate) for some time is likely to be
higher than our total resource share.
4) the U.K., which is our closest supporter on these
issues, is strongly opposed to revenue sharing landward
of 200 meters. We might also run some risk of Arab opposition.
5) It is estimated that 90% of the recoverable hydrocarbon
potential on the U.S. continential margin is located seaward
of 12-miles. Extension of revenue sharing to this area
even at a lower rate could substantially increase the U.S.
obligation.
Option 3. The U.S. Delegation should continue to be
authorized to support revenue sharing from seabeds mineral prodacti
seaward of the territorial sea or the 200-meter depth curve
(or a functional equivalent), whichever is further seaward.
The precise rate that is acceptable would be determined on the
basis of the criteria specified in NSDM-62 in full consultation
with the Agencies concernA, and would in no event exceed
5% of the value of the hydrocarbons extracted from the area,
(As a tactical matter, the U. S. would not indicate that the reason
for excluding large areas close to shore relates to its
own interests, but rather explain this in terms of
negotiability with the majority of coastal states.)
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Pros:
1) All current U.S. production is from areas land-
ward of the 200-meters depth curve, and most substantial
production in the near-term would be from such areas.
Exclusion of these areas accordingly will signficantly
reduce the size of our obligations, and defer the timing
of its payments, irrespective of the applicable rates
within any likely range.
2) Revenue sharing is designed in part as a device
for accommodating legal differences on the extent of
coastal state jurisdiction beyond 200 meters. There is
no doubt as to existing jurisdiction within 200 meters.
3) Because coastal states clearly have undisputed
existing vested rights within 200 meters, domestic and
international opposition to revenue sharing from that
--area, is likely to be considerably greater.
4) The U.K., which is our closest supporter on
?
these issues, is strongly opposed to revenue sharing
landward of 200 meters. We should also not run a
risk of opposition from Persian Gulf and other Arab
States in the negotiation.
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E.7727
5) The economic review revealed that approximately
half of the recoverable hydrocarbon poteAtial on the U.S.
continental margin is located landward of 200-meters.
In the absence of significant differences in revenue
sharing rates, exclusion of revenue sharing in the area
landward of 200-meters would substantially reduce the US
obligation.
6) The ability to present this Option has major
negotiating advantages in reaching a satisfactory overall
settlement on both non-resource and resource issues. The
good will and votes of the -geographically disadvantaged
States are essential for achievement of our straits position
in particular.
--7) The Delegation?should have the flexibility to
present a_salable and reasonably forthcoming approach on
this issue in order to ensure that we have the latitude to
achieve our overall objectives at the Conference.
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Cons:
1) While it is likely that revenue sharing is more
easily negotiated if shallow areas close to the coast are
excluded, there is no reason for the U.S. to take the
blame for insisting on that result.
21 Major offshore oil exploitation Off the coast of
other countries is in areas like the Persian Gulf and the
North-Sea that are at less than 200-meters depth. Inclusion
of revenues from the areas is likely to significantly
increase the total, and is likely to increase the pressure
for lower rates of revenue sharing.
3) The total financial cost depends on the rate of
revenue sharing: a lower rate for a larger area could be
less costly than a higher rate for a smaller area.
4) Since deep water technology is likely to be used
off
pay
the LI:S. first, at the initial
a relatively higher proportion
stages
of the
Sharing only begins at a depth beyond 200
the U.S. might
total if revenue
meters than would
be the case if significant shallow areas are included.
5) Since the U.S. has only about 8% of the world's
continental margins, over the long run the U.S. percentage
of funds available for international development efforts
arising from revenue sharing is likely to be significantly
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lower than our current rates of voluntarl, contribution,
and accordingly we have an interest in maximizing the
revenue base.
Additional Option. The US Delegation should be authorized
to support a greater rate of revenue sharing for seabed
areas under coastal state control beyond 200-miles than
those landward of 200-miles. While the U.S. Delegation
would be authorized to support the above proposal in
principle, there would be no position taken on specific
proposals or rates of revenue sharing for areas beyond 200 tics
until the Chairman of Delegation had consulted with the
Chairman of the Task Force and senior representatives of
-
the agencies concerned.
Pros:
1) There is a substantial likelihood that the
differing views in the negotiations on whether coastal
state control over seabed resources shcluld_ extend beyond
200-miles can only be reconciled by accepting greater
-
revenue sharing with the international community beyond
200-ALtles than'landwaniof 200-miles in exchange for recog-
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nition of coastal state resource jurisdiction be-Yond 200-
miles.
2) There is no evidence that higher revenue sharing
from the area beyond 200-miles would deter development
as such costs might be passed along to the consumer or
to the general taxpayer in the case of tax credits.
3) The great majority of states do not gain sub-
stantially by extending seabed resource jurisdiction beyond
200-miles. For these few that do, however, recognition of
their control over such resources is essential for agree-
ment-to the Treaty. Hence the U.S. Delegation needs the
flexibility to find a reasonable solution that will not
be opposed by the great majority of the states andyet will
protect our broad shelf interests.
4) The U.S. is seeking recognition and confirmation
As?
in international law for broad coastal state jurisdiction
over seabed minerals. Achievement of this objective while
protecting our navigational and other-non-resource
interests would be welcomed by the Congress. A variety of
acceptable means are available to deal with the transfer
of revenue sharing funds issue. The U.S. contribution must
be considered in light of that made by other States and
the -resulting dimunition of the need for direct foreign
economic assistance to developing countries.
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5) It is possible that the ability to accept a
higher rate of revenue sharing beyond 200-miles will
considerably help reduce the pressure for an unacceptably
high rate for the seabed area landward of 200-miles.
6) Since the U.S. percentage of seabed area beyond
200-miles decreases with increases in uniform depths
world-wide, the U.S. loses less relatively by accepting
a higher revenue sharing rate for such areas than it
would if the rate were the same within and beyond 200-
miles.
-7) Since the U.S. has only about 8% of the world's
continental margins, over the long run the U.S. percentage
of funds available for international development efforts
arising from revenue sharing is likely to be significantly
lower (than our current rates of voluntary contribution)
and accordingly we have an interest in maximizing the
revenue base.
Cons:
1) Revenue sharing, even at modest rates, involves
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E -32
large sums that would increase through time. There would
be an undesirable drain on tax revenues and an adverse
effect on the U.S. balance of payments position.
2) Any form of revenue sharing will face the problem
of verifying that a coastal state has actually complied
with its royalty payment obligations. There will be
temptations to cheat on a common definition of the term
"value of production," and the U.S. could well be left
paying more than its fair share of the coastal states?
common heritage obligations.
3) The financial burden of revenue sharing will be
an additional disincentive for exploitation of critically
needed hydrocarbons and other minerals.
4) There have been a few specific reactions to the
revenue sharing proposals that the U.S. has advanced.
Hence, it is a propitious time to abandon this po1icy*1
5) Some Members of Congress have expressed reservations
about revenue sharing.
6) Revenue sharing, if based on royalties, would
raise the prices of petroleum products and reduce output.
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As the chief consumer of fuels, the United States would be
the principal country hurt by this but all nations would
be affected.
7) Revenue sharing's greatest financial burden in
the short term would fall on the U.S. given our plans to
rapidly develop our OCS hydrocarbon reserves (part of
Project Independence) and the growing technological
capability of U.S. firms to develop distant continental
margin areas.
8) While it is true that the U.S. has only about
8% of the world's continental margins, there is likely to
be more production sooner off the U.S. and thus the actual
U.S. contribution (given a set rate) for some time is
likely to be higher than our total resource share.
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2. Delimitation and Island Problems
As indicated, the problems of establishing boundaries
between areas under the jurisdiction of neighboring coastal
states, including the related islands problem, are highly
complex and divisive. They concern not only seabeds
resources but fisheries. On the one hand, it would be
desirable?to achieve agreement on the legal principles
governing delimitation, and even more so on procedures
for peacefully resolving delimitation disputes, since
this is a major area of potential uncertainty and conflict
over rights in the oceans. Such disputes present
political problems for the U.S., particularly when
friendly states are involved. Moreover, exploiation and
exploitation are usually delayed in disputed areas, thus
conflicting with our goal of increasing global production.
On the other hand, the differences on the issues are
essentially bilateral in character, would not in fact be
resolved definitively by an LOS teaty, and are likely to
complicate the negotiaflons seriously.
If the issue is dealt with in detail, we like any other
coastal state would )De compelled to seek a result that
favors our position vis-a-vis our neighbors; this would
result in direct conflict with Canada and potentially with
the USSR, Mexico, Cuba, and the Bahamas.
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In this situation, while trying to ensure tfiat our sub-
stantive interests in the issue are not prejudiced and making
a strong attempt to provide procedures -- perhaps regional
in character -- to deal with future boundary conflicts, our
efforts should be directed toward preventing the issue from
disrupting the Conference. As a matter of substance, a
general reference to resolution of the issue in accordance
with international law may well be the best result.
At the same time, we are preparing specific analyses
of U.S. interests in order to deal with the contingency
of a specific negotiation on the issue. The results of
these more technical studies will be employed in a manner
consistent with our overall policy posture on individual
issues.
The additional question of whether small isolated
islands should be entitled to full economic jurisdiction
at the expense of the high seas and the international
seabed area -- where no neighboring coastal state is
involved -- is likely to be resolved.in favor of such
jurisdiction. States with such islands --France, the
_
UK, Brazil and Chile to name just a few are likely to
press harder than the opposition, which would be protecting
a community rather than individual interest. We should be
aware that the effect will be to increase the importance
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E -36
of many isolated islands and rocks in the Pacific and Indian
Ocean in particular, and that existiftq sovereignty disputes
are likely to get worse and new ones are likely to emerge.
(The recent problems in the South China Sea are an example.)
The U.S. stands to gain from jurisdiction off its own
islands.
Accordingly, we should not oppose the French and
British on the issue, but, unless they ask for our help,
- we should remain essentially silent rather than further
risk identifying the islands issues with big power
ambitions or involve ourselves directly or indirectly in
the PRC's disputes with her neighbors on these issues.
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3. Fisheries
The issue of coastal state fisheries jurisdiction
has been of more interest to more states in the negotiation
than any other. It also commands considerable domestic
political attention.
As stated in earlier instructions, our specific
fisheries objectives are to seek international acceptance
of U.S. fisheries positions that(1) give the coastal state
effective regulatory and economic control over coastal and
anadromous species throughout their migratory range on the
high seas, subject to international standards and review
regarding, inter alia,conservation and utilization of coastal and
anadromous fisheries, and (2) that provide for international
regulation of fishing for highly migratory species. Our
delegation has been authorized to adopt such tactics as
will best-promote achievement of these objectives. Specif-
ically, in view of the broad developing country support
for fisheries jurisdiction as part of a 200 mile eco-
nomic zone, we have bntna authorized to indicate privately
our willingness to support a possible fisheri'as compromise
based on a fixed zonal approach. We have begun the process,
and we propose further to seek achievement of our fisheries
objectives through accommodation within the framework of a
200-mile economic zone.
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The thrust of our
E- 38
efforts should be to promote a wide-spread settlement that
such
meets our objectives. Accordingly, we will seek/an accom-
modation which ensures special treatment for anadromous
and highly migratory species; which places on coastal
states international obligations to
conserve the stocks and to ensure their
optimum utilization; and which includes provisions
regarding traditional fishing, coastal state
enforcement rights and the applicability of dispute settle-
ment. We will also attempt to obtain some control- and
preferential rights over
/coastal species beyond 200 miles, if possible. Any
decision to publicly support a 200- mile zone will
be made by the Chairman of the Delegation in consultation
with the Chairman of the Task Force and the senior repre-
sentatives of the agencies concerned. Consultations with
key states and U.S. industry representatives 4ill be
maintained.
- Coastal and anadromous species:
Over 80 percent of the total U.S. fish landings are
coastal stocks, and we, along with the majority of nations
in the Conference, have a substantial interest in coastal
species. Coastal state control or preferential rights over
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E- 39
coastal and anadromous stocks beyond a 200 mile limit is not
incompatible with a 200-mile zone. To the contrary, African,
Asian, and other supporters of a 200-mile zone have pro-
posed this result for coastal species, and have left room
for special treatment of anadromous species. The basic
US problem beyond 200 miles relates to anadromous species
(salmon) rather than coastal species. In terms of our
interests, a 200-mile zone without control over coastal
species beyond 200 miles would be acceptable, provided we
have control over salmon beyond 200 miles or achieve the
practical equivalent, such as a total ban on fisheries for
anadromous species outside a 200-mile zone. Accordingly, in
the context of a 200-mile zone, the US should support
coastal state control or preferential rights over both
coastal and anadromous species that migrate beyond the zone.
However, in doing so, we should recognize that our major
problem is salmon, and it shoull he the major thrust of our
efforts.*
(1) Conservation and Utilization
Under our approach the managing authority would set an
*It should be noted that earlier instructions have indicated
that sedentary species of fish (e.g., King Crab) would be
subject-fo- coastal state control. They could be treated
either as seabed resources in the coastal seabed economic
area, or as non-migratory fisheries or a separate category
category under the U.S. fisheries proposal (NSDM 157).
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allowable catch applicable to all fishing activities for a
particular species (i.e., for coastal and anadromous species
applicable to both coastal state and foreign fishing activi-
ties). Our standard for defining allowable catch is intended
to achieve three major objectives: (1) obtaining maximum
long-term benefits from the oceans' living resources, (2)
providing US flexibility to manage our coastal fisheries in
light of our own environmental and economic needs, and (3)
ensuring meaningful conservation and environmental protection
worldwide.
In order to achieve these objectives, the allowable
catch should be designed by the management authority to
achieve the maximum sustainable yield over time, consistent
with certain qualifications. First, measures taken to main-
tain or restore the maximum sustainable yield must be based
on the best scientific evidence available. Moreover, the
management authority shall consider environmental and
economic factors in determining allowable catch. Considera-
tion of such factors can provide flexibility in the long run
only to set allowable catch below sustained maximum sustainable
yield, although short-term harvesting above maximum sustainable
yield would be allowable under certain circumstances. Under
this approach, the managing authority has flexibility in its
management activities, and the allowable catch can and should
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be set in light of the interrelationships among species so
as not to reduce populations of associated or dependent
species to an extent inconsistent with the health and stability
of the fishery resource and the entire marine environment.
Within these parameters, our proposal requires a
coastal state to permit foreign fishing to the extent that it
is not currently achieving optimum utilization (i.e., to the
extent it is not taking the allowable catch). The optimum
utilization question is a contentious issue, due to its
direct relation to the problem of access by foreign states. In
addition to our concern for promoting maximum availability
of global fish protein sources, and preserving a basis for
U.S. access to coastal species off foreign coasts, we are
seeking this obligation because we do not believe the
USSR and Japan will accept expanded coastal state juris-
diction without this kind of guaranteed access. In this
context, it should be nc)ted that the basic U. .position in
the LOS negotiations is that a treaty is meaningless with-
out participation of the major maritime powers, and we
would undercut our own effectiveness by arguing that a
fisheries regime can be imposed on the USSR and Japan.
Moreover, in practice we would have difficulty impos-
ing a regime without damaging other interests- If the USSR
and Japan are not satisfied with treaty provisions on ac-
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E-42
cess, it is our assessment that they may well--as Japan did
in the cage of king crab--seek bilateral guarantees at the
highest level from the U.S. and possibly from Canada to
protect their fisheries off New England and Alaska._
The pressure for such guarantees could
be substantial. Our proposal for access based on optimum
utilization, coupled with our proposal for accommodation
of traditional fishing within this scheme, provides a basis
upon which we can point out to the USSR and Japan that their
access will be substantially protected under the treaty.
For all of the reasons cited above, we recommend con-
tinued US support of the optimum utilization obligation as
we have defined it.
(2) Management of Coastal and Anadromous Species
In arguing against the optimum utilization obligation,
supporters of an exclusive economic zone state, among other
considerations, that it i5
not needed because it is in the interest of coastal states
to maximize their economic return by negotiating for or
licensing foreign access off their coasts. In essence
(conservation aside), with respect to foreign access we
believe this reflects a desire to treat fisheries much as
mineral resources are treated: the coastal state would
negotiate a joint venture or other arrangement, or would
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issue licenses. Presumably, the coastal states would wish
to get as much as the market would bear.
Economic flexibility, such as that provided by licensing
or joint ventures, is not incompatible with the obligation
to fully utilize the stocks up to the allowable catch. In
fact, the existence of
an economic incentive will tend to Promote coastal state
interest in ensuring optimum utilization. However, our cur-
rent fisheries articles place certain limitations on coastal
state discretion in these respects. The question, then, is
whether in addition to providing that the coastal state
ensure optimum utilization, the treaty .'hould limit the
discretion of the coastal state in how it peimits foreign
fi-shing. Three elements must be considered: whether the
coastal state should have authority to ask as much as it
likes for license fees; whether the treaty should provide
for joint ventures; and how the accommodation for tradi-
tional fishing should be addressed within this framework.
(i) License Fees.
The U.S. articles allow coastal states to establish
reasonable conditions for foreign access to coastal and
anadromous stocks, but they limit fees to the cost of de-
fraying management expenses. However, as indicated above,
allowing the coastal state more of an economic incentive
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would not be incompatible with our interest in ensuring
Optimum utilization. Furthermore, there are other benefits
from a more flexible licensing scheme, such as the question of
revenues for the U.S. from the large, valuable fish stocks
off our coast, and the tendency to promote economic efficiency
by rewarding those able to pay the highest fees. Distant
water fishermen such as our own shrimp fishermen and the
USSR and Japan, of course, would not like this idea. On the other
hand, some countries such as Japan have experience with such
systeMs, and we will continue to consult with our own shrimp
fishermen in this regard. Our recommendation on joint
ventures (discussed below) would seem to offer the shrimp fishermen
some
protection. Moreover, based on existing proposals it seems
likely that the treaty will endorse special provisionrfor
access by neighboring states, particularly geographically
disadvantaged states.- This could be of some help in
protecting our shrimp interestsoff Mexico. However, a
_
number of proposals limit the obligation to neighboring
developing countries; whether the U.S. should accept
it in that form would largely depend on other provisions
regarding access.
Recommendation:
Assuming an obligation to permit foreign fishing
to the extent stocks are not fully utilized, the U.S.
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Delegation is authorized to accept. a coastal state right-to,
license foreign fishing for stocks under its jurisdiction sub-
ject only to a general limitation that the conditions
of the license be reasonable and non-discriminatory as
among foreign fishermen, and without any other limitation
on the fees (e.g., 5ees could be fixed or subject to compe-
titive bidding by the coastal state).
This recommendation does not necessarily apply to
traditional fishing rights; the matter is discussed below.
(ii)Joint ventures.
It is likely that many developing countries will not
regard license fees as a complete solution to their obje.c-
tions to an optimum utilization obligation. Many would
like to enter into joint ventures that stimulate local parti-
cipation and development. The existing U.S. articles are
silent on this subject. The effect is that joint ventures
operating under a coastal state flag would qualify for a
coastal state guaranteed preferential share, while joint
ventures employing foreign flag vessels probably would net,
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r-411
6
In essence this requires U.S. distant water fishermen
to make a complete conversion to coastal state flag and
control in order to gain the political and economic
benefits of joint ventures, as well as preferential
rights. This seriously complicates the establishment
of joint ventures because of (a) restrictions on fish
landings by foreign vessels in a number of sconsuming
countries, including the U.S.; (b) fears of nationaliza-
tion or unpredictable regulation; (63 the requirement by
many states that their nationals be employed on board their
flag vessels; and (d) restrictions on conversion to
foreign flag in some countries, including the U.S.
On the other hand, the current U.S. proposal does not
preclude a competitive race among distant-water fishermen
to get into preferred positions by establishing subsidiaries
or joint ventures in coastal states. (Japan and the USSR
as well as several other developed and developing states
have already begun this, presumably as a hedge against
expanded fisheries jurisdiction.)
Accordingly, we believe the U.S. should, at the
appropriate time, and if consistent with the overall fisheries
settlement, indicate that it is prepared to regard
joint ventures in coastal state fisheries as entitled to
preferential rights irrespective of the flag of the vessel.
Some definition of a joint venture may be necessary in
this context.
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(iii) Traditional fishing.
One of the most difficult negotiating problems regard-
ing our utilization concept relates to the effect on tradi-
tional distant-water fishing as coastal state harvesting
capacity increases. Where the stock is not being fully utilized
to the level of the allowable catch by all fishermen, our
optimum utilization proposal meets the need for access. How-
ever, in most major fishing grounds, stocks are being
utilized up to the allowable catch, and an expansion of the
guaranteed share of the coastal state based on its harvesting
capacity would require reductions in traditional foreign
fishing. The question is one of determining what, if any,
limitations there are on the expansion of the coastal state.
guaranteed share (including that under joint venture arrange-
ments) at the expense of traditional fishing by others.
The US has an interest in increasing its own guaranteed
share in major fishing grounds ff its coast. At the same
time, it has an interest in protecting US fisheries for
coastal species off foreign coasts. Moreover, attempts to
reduce Soviet and Japanese fishing off our coast solely
on the basis of US capacity (i.e., with no treaty provision
for traditional fishing) would cause strains in our relations.
On the other hand, attempts to accommodate their interests
bilaterally in the absence of multilateral treaty obligations
to do so, might meet with strong domestic political
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E?-48
opposition. Accordingly, the US has favored a compromise
on the issue that permits a gradual phase-out or compensation.
The Delegation has been authorized broad flexibility in
dealing with this issue, which we believe should be continued.
Developing countries tend to regard discussions of
historic or traditional rights as inherently discriminatory
against them, and this may at the least require rephrasing
of the concept in terms of economic and social dislocation.
Under a system of coastal state license fees, we
must determine the best relationship between the licensing
system and the traditional fishing. The licensing and
traditional fishing elements can be combined in a manner
which is consistent in theory with our existing approach,
namely that traditional fishing states are subject to the
same access conditions as anyone else, but have a priority
of access.* Consequently, for subs artive and tactical
reasons, our broad flexADility on the issue s ould be main-
tained and our approach should continue to be primarily one
f encouraging compromise while continuing to press our ohne,.7
of including some provisions for traditional fishing in the treaty,
*For example, one alternative would be to give traditional
fishing states, to the extent of their traditional fishing
rights, the option ofpaying the average fee obtainable for
that fishery from fishermen of other states.
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We may continue to address the issue only in general terms and
avoid advocating a specific solution until we have a better
understanding of what is negotiable.
(b) Highly migratory species
Assuming agreement on adequate coastal state control
of anadromous species--which is generally consistent with
the coastal state trends of the negotiation--our most dif-
ficult fishing negotiating problem relates to highly migra-
tory species. Although practically all of the public and
private debate has focused on tuna, the term highly migratory
species also includes whales, small cetaceans, and other
highly migratory marine
mammals.
Because of their wide migration patterns,
sometimes trans-oceanic, separate regulatory systems in
individual 200-mile zones and in areas beyond 200 miles
could not achieve sufficient control to ensure conserva-
tion or equitable allocation of the stocks of highly
migratory species. A regional or international system
capable of management throughout the migratory range of the
stock is necessary. The U.S. interest in a regional or
international regulatory system for tuna derives from these
inherent problems of regulation, as well as from our in-
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terests in protecting our large distant water tuna fishery.
Since whales and small cetaceans of one species occur in
many oceans and at distances many hundreds of miles from any
coastline, these creatures must be conserved on a worldwide
basis through an international system. Whales and small
cetaceans are unique among highly migratory species, first,
because they are mammals and second because the interest shown
in them by the vast majority of nations has been for their
conservation rather than for their exploitative value.
Only a few nations are now involved in exploiting these
species. Whales and small cetaceans should be excluded from
any arrangements of coastal state preference and if possible
the need for international management should be specified.
To whatever extent possible or appropriate, in working on
the basic idea of international management, the specifics
should be discussed and accommodation for these species made.
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In view of the coastal state trend of the negotiation,
our fundamental choice with respect to highly migratory species
is to negotiate the best solution we can (attempting to gain
support for pressuring Peru and Ecuador into a reasonable
compromise or overriding their objections) or to risk being
outvoted on the issue.
We believe negotiation in the LOS forum is the
preferable course, and permits us to achieve some, perhaps
considerable, protection for our distant water tuna industry.
It is pertinent here that an increasing number of states
appear to recognize that highly migratory stocks require a
unique regime. Negotiations may also be helpful in solving our
problem with the U.S. Trust Territory which has coastal
interests in tuna. We have both an obligation and a long-
range security interest in trying to accommodate the Trust
are
Territory's LOS interests which / based in large part on its
tuna interests.
Furthermore, even though there are many states interested
in this issue, we will not resolve our major tuna problem
off Ecuador and Peru if they do not ultimately accept an
agreed solution; those economic sanctions we have chosen
to use against them have not been effective, and we have
thus far consistently rejected the idea of military protec-
tion for the tuna fleet. In addition, mounting Congressional
pressure for the unilateral 200-mile claim is undercutting
our bargaining position in this area.
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On the other hand, negotiation may subject us to
E- 52
considerable pressure from the tuna industry and its
supporters in Congress, although we will attempt to
defuse this as much as possible through our consultations
with them. This pressure is unlikely to be offset by
countervailing pressure from coastal fishermen unless we
are forced to choose between the two interests. As these
factors show, this is an extremely sensitive area in terms
of tactics, and the negotiations will have to be carefully
carried out. Accordingly, use of the authority sought in
this section will be determined by the Chairman of the
Delegation in consultation with the Chairman of the Task
Force and the senior representatives of the agencies con-
cerned.
The basis of our approach would be to retain the
requirement for international or regional regulation
of tuna. However, within this framework, we would add
elements accommodating coastal state political and eco-
nomic interests. In this connection, the political in-
terests may be at least as important as the economic,
particularly where Peru and Ecuador are concerned. In
other words, the appearance of victory on the jurisdictional
issue may ultimately permit those states to compromise
substantially on the U.S. economic interest in access.
In any event, our ability to build up developing country
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pressure on Peru and Ecuador to compromise will be enhanced
to the extent we make our own views appear reasonable and
compatible with the developing countries' concept of an
economic zone.
(1) Possible accommodations concerning fees,
preferential rights, and licensing.
There are a number of possible accommodations we
might make within the framework of international or re-
gional regulation. Our first preference would be for a
royalty or fee system with agreed fees paid to the coastal
state for all fish caught within 200 miles of their coasts.
The idea of giving coastal states some benefit for fish
caught within the 200-mile zone is appealing psychologically.
It has been discussed with our tuna industry and received
reserved support. Under this approach, either the treaty
would establish the fees or criteria for such fees (subject
to dispute settlement), or the fees would be fixed by regional
commissions or agreement, or both.
Another type of accommodation would be based on a
system of preferential rights. If necessary, this could be
combined with the royalty system described above. The U.S.
has negotiated specific preferences based on economic criteria
for developing tuna fisheries (for Mexico) in the
Inter-American Tropical Tuna Commission (IATTC). This is
known, and we are now committed within the IATTC to discuss
with Mexico and the Central American States new regulatory
systems which take into account developing fishery needs.
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Moreover, the US was in fact prepared tc F.ccept coastal
state preferential rights for Peru and Ecuador in direct
negotiations, the major restraint being our reluctance to
use an LOS bargaining chip or to otherwise prejudice our
juridical position before the LOS Conference. Accordingly,
we should be prepared to accept an acommmodation in the LOS
treaty that establishes a preference in principle for
coastal state fisheries based on specific criteria such as
the developing nature of the fisheries. It is in our economic
interests, and probably more negotiable politically, to
limit that preference to the fisheries zone off the coast of
the country concerned. Alternatively, we could discuss
special allocations, based on specified criteria, for the
entire catch of a tuna stock anywhere, as we do now with
Mexico.
While the above approaches could include joint ventures,
they do not contemplate coastal state licensing of foreign
fishing, which goes to trie heart of our dispute with Ecuador
and Peru. In negotiations with Ecuador and Peru, we have
in fact been authorized to accept a scheme which the coastal
state could interpret as a form of licensing, on the basis
of guarantees regarding access and fees.
A combination preferential rights or allocation-licensing
system would not be regarded favorably by our fishermen. This
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E -55
is a very sensitive issue that requires very careful consid-
eration before any such possibility is even implied. More-
over, the acceptability of such an approach would depend to
critical degreoupon the criteria and protections included.
However, a system with a licensing element may be necessary
in reaching an accommodation within the framework of inter-
national or regional regulation. Thus, although we will try
to work out a system which does not include licensing, if
the other approaches do not work and there are reasonable
indications that the hard-line states favoring licensing are
prepared to make an accommodation with the United States and
other distant water tuna fishing nations, we should maintain
flexibility in this area in accordance with the recommendation
below. The Law of the Sea Conference is not the proper
forum for negotiation of specific allocations, which is a-
function of the internationpl commissions established or to
be established, but a generalized rule with general criteria
could be worked out in the Conference if we decided to do so.
(2) Possible accommodations concerning enforcement.
It is our assessment that the chances for maximizing
U.S. economic benefits from any such negotiation would
be significantly enhanced by offering political (juris-
dictional) concessions in exchange.
We could agree to give coastal states the same
right to enforce international or regional tuna regula-
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tions in a 200-mile zone as we have proposed regarding
enforcement of regulations for coastal species. We have
proposed a system of coastal state arrest and flag state
trial for coastal and anadramous species in the LOS
negotiations, provided the flag state has established a
domestic system for trial in such cases. We have agreed to
this system off the coast of Brazil, and it appears in a
number of our other treaties. In fact, coastal states
would be likely to board tuna vessels under our current
articles in order to check for the presence of coastal species
anyway; indeed, we as a coastal state would hardly be willing
to agree that we could not board any vessel that tells us
it is not fishing for coastal species off our coast.
One of the few issues that was once tentatively agreed with
Ecuador and Peru in direct negotiations was this type of
enforcement system, which even included a reference to
transfer of an arrested vessel to the flag state after coastal
state proceedings. While we are not requesting such authority
in this paper, the US Delegation in the CEP talks
was in fact authorized to agree even to coastal state
prosecution, but industry fears of prison sentences and
absence of significant pressure on the issue from Peru and
Ecuador at the time led us to withhold exercise of that
authority.
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Were we sufficiently satisfied with the result,
we could in fact significantly sweeten the political and
juridical appearance of this approach. For example, if
there are acceptable provisions on allocation and licensing
of tuna, international and regional regulations, and enforce-
ment, it is entirely possible to specify that the coastal
state shall regulate all fishing in the 200-mile zone in
accordance with the provisions of the treaty and inter-
national and regional regulations adopted pursuant thereto.
(In effect this means the regional regulations prevail.)
The restraints on recognizing jurisdiction in a direct
settlement with Peru and Ecuador(i.e., harm to our juri-
dical position or loss of an LOS bargaining chip) clearly
do not apply in the global forum of the LOS Conference.
We do not recommend that such political concessions be
the starting point for discussions on the issue, but we
do believe that willingness to cpnsider a substantial
political quid-pro-quc, 40uld be of substantial benefit
to us.
(3) Regional Commissions
Coastal states (and Micronesia) are likely to b
suspicious of international or regional commissions even if
they are satisfied with the treaty rules the commission
would apply. As we have learned as a coastal state ourselves,
the Commissions tend to be obstructed by distant-water
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E-58 -
suspicious of regional commissions even if they are
satisfied with the treaty rules the commission would
apply. As we have learned as a coastal state ourselves,
the Commissions tend to be dominated by distant-water
fishing states. Our major objective in supporting the
regional commission approach is adequate participation
in the decision-making process. Accordingly, if it will
help get agreement on the basic commission role in regu-
lation and allocation, we should try to solve the coastal
States' problems not only by supporting rapid dispute
settlement procedures, but through guideliness to deal
with an impasse situation, a rule requiring coastal state
agreement to any regulations applicable in its zone (this
is the case anyway if unanimous agreement is required under
commission procedures), or other reassuring provisions.
(4) Recommendation:
The possible accommodations presented above repre-
sent general concepts we wish to explore. However, the
route we choose and the details of any specific plan remain
to be worked out after further consultation and negotiation.
In addition, because it is difficult to predict the direc-
tion of our discussion with other states on these issues,
the Chairman of the Delegation in consultation with the
Chairman of the Task Force and senior representatives of the
agencies concerned will also maintain the flexibility to
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consider concepts or plans other than thoe specifically
discussed herein in support of our objectives on highly
migratory species.
E-59
In sum, as, outlined above, we recommend negotiating
flexibility to protect our distant-water tuna industry
in the framework of international or regional regulation
coupled with specified coastal State preferences and
rights as necessary to prevent an ultimate defeat on the
issue and to promote a timely and successful Conference. In
this connection, we note that an accommodation on tuna must
not only provide adequate protection for our tuna interests,
but should be accompanied by a more accommodating approach
by the coastal states concerned on our other interests, includi/W
straits, general navigation, and deep seabed issues.
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F-1
Pollution
The current United States position includes a general
obligation not to pollute the marine environment, requires
adherence to international standards for marine-based
sources of marine pollution, provides for the establishment
of international standards for such sources of marine
pollution, and permits the coastal state to apply higher
standards to seabed resource activities, drilling, and fixed
installations in the exercise of its rights in the Coastal
Seabed Economic Area. With respect to vessels, a state may
not impose higher standards except on vessels entering its ports
and on its flag vessels, although it may enforce international
standards in its territorial sea; has limited enforcement powers
beyond, )and can prosecute vessels in its ports for
violations of international standards irrespective of where
they occur. Warships are exempt from the U.S. pollution
articles and obtaining an exemption is part of the U.S. Position.
There are general difficulties in the negotiation
resulting from developing country fears concerning the effects
of environmental standards on economic development. We have
not pressed for
binding international standards for land-based sources of
marine pollution, which seems to be their major concern in
this regard. In any case, land-based pollution issues will not
be addressed in any detail at the Conference. The most
difficult aspect of this issue will b
LDC adherence
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to minimum international standards in the Coastal Seabed
Similarly,
Economic Area. /while there is some sentiment favoring
standards no higher than flag state standards for developipg
this position is not widely held and we will continue to
resist a situation in which obligations are in effect placed
only on developed states.
Vessel-source pollution
,negotiating
The most sensitive pollution/problem relates to
countrief
vessel-source pollution. The advocates of a 200-mile exclusive
economic zone or patrimonial sea include general pollution
control jurisc ction as one of the coastal, state rights.
Without further specificity, this would apply to vessels
and would in essence give coastal states a basis for serious
interference with navigation, While there is no widespread
opposition to international standards for vessel-source
pollution, many coastal states __led by Canada and Australia--
favor "residual" coastal state! rights to impose all types of
pollution standards in a zone beyond the territorial sea when
the coastal state judges that international standards do not
exist or are inadequate, and coastal state enforcement of
international and national standards. Australia favors
compulsory dispute settlement to prevent abuse of the proposed
coastal
coastal
tat rights. Japan and France have proposed limited
state enforcement of international dumping and discharge
standards in a zone beyond the territorial sea of perhaps
50 miles.
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The October. Conference on Marine Pollution. Anonsored by
the Intergovernmental Maritime Consultative Organization (IMC0),faced
a number of aspects of the coastal state problem, although
it was not intended to resolve jurisdictional issues. The
new IMCO treaty establishes international construction and
discharge standards and permits a coastal State to enforce
international standards "within its jurisdiction," a term
not defined by the treaty.
A so-called "compromise" proposal on coastal state
standards achieved a 2/3 majority in committee but not in
plenary after vigorous opposition by the United States.
The proposal had three elements:
(1) the coastal state may impose higher standards in
respect of vessel dischal;ges within its jurisdiction where
specific circumstances so warrant;
(2) the coastal State may not impose higher vessel
construction, design, or equipment standards in respect of
pollution control (even in ports); and
(3) the prohibition on higher construction standards
does not apply jn areas the particular characteristics of
which, in accordance with accepted scientific criteria,
render the environment exceptionally vulnerable.
It should he noted, however, that it may not be possible
to directly translate this experience into predictions
regarding the law of the sea negotiations since many delegates
were not familiar
the sea positions
with or were not representing the law of
of their governments. Also, of course,
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others were negotiating with their law of the sea interests
in mind and were trying to gain negotiating advantages for later use.
United States ability to deal with this problem has been,
and remains, limited by conflicting policy interests. Permit-
ting coastal state construction standards outside ports in
vaguely defined areas seriously prejudices our navigational
interests and was our principal objection. We did not like the
"specific circumstances"
coastal state dischaxge
Federal Water Pollution
construction standards,
restriction on our right to impose
standards, which are required by the
Control Act. The prohibition on higher
particularly in ports, is inconsistent
with the thrust of the Ports and Waterways Safety Act, which
provides for United States construction standards.
Construction and discharge standards in the 1973 IMCO Con-
vention are high and will substantially reduce vessel pollu-
tion, although in some respects we would have preferred higher
standards.
Also, we were later successful in creating a new Marine
Environment Protection Committee in IMCO, which is now func-
tioning, to update and improve vessel pollution standards and
to make IMCO a more effective institution in dealing rapidly
with environmental problems. The new committee could also
be effective in providing special pollution control standards
of all types to deal with special regional problems as we
have proposed.
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Without minimizing the difficulties that remain, our
success at IMCO in obtaining an exemption for warships and
other government non-commercial vessels, and our success
in obtaining compulsory dispute settlement, Provide a stronger
basis for obtaining both in the LOS pollution negotiation.
In particular, the warship exemption language was negotiated
directly with the Mexican representative who has chaired
the LOS pollution working group, and who had been somewhat
hostile to the idea; compulsory arbitration was adopted with
the tacit cooperation of the USSR, despite lack of formal
support and a private indication of an intention to reserve
on the article.
Disapproval of all of the following four options would
mean that the United States would continue to support and
work for adoption of its present position although there would be
additional exploratory authority as noted in paragraphs (5)
and (6).
(1) Option on Coastal State Enforcement of International
Discharge Standards: that the delegation be authorized to
support, if necessary to attain widespread maritime state
agreement, coastal state enforcement (including arrest and
prosecution) of international discharge and dumping stand-
ards in a zone extending to a maximum breadth of 50 nautical
miles from the coast. This would include discharges prohibited
or regulated pursuant to the 1973 IMCO Convention in the
areas prescribed therein and dumping prohibited or regulated
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pursuant to the 1972 Dumping Convention. Discrimination
between vessels of different nationalities (including those
of the coastal state) would be prohibited. U.S. agreement
would be conditional on acceptance of an exemption for
warships and on adequate procedural protections for commer-
cial vessels including prompt release under bond, liability
for unreasonable enforcement actions and compulsory dis-
pute settlement.
PROS
1) The United States is in a very small minority in
its views on extreme limitations of coastal state rights
and must be prepared to move on the issue if we are to
influence the views of the majority. The advocates of the
exclusive economic zone and patrimonial sea concept include
general, although undefined, pollution control jurisdiction
in a 200-mile zone. Canada, Australia, and the majority of
coastal states support coastal state enforcement rights as
well as residual rights to set standards. France, japan,
the U.K., and Norway, ail maritime states, have either
publicly or privately been willing to accept coastal state
enforcement rights in a zone.
2) Our major concern in terms of the possibilities
for coastal state abuse and disruption of shipping through
inconsistent national standards would be a right for coastal
states to set construction standards. Our major opponents
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make no distinction between coastal authority to set
discharge and construction standards and the negotiation is
likely to continue to avoid that distinction unless we can
actively exert influence. This option would considerably
enhance our ability to shape the course of the negotiations.
3) The safeguards contained in the option includ-
ing compulsory dispute settlement and liability for unrea-
sonable enforcement actions would greatly minimize any
potential for abuse. Also, no enforcement action could
be taken unless an illegal discharge had been observed
by the coastal state.
4) Discharges may well damage the coastline and
flag state enforcement alone is not sufficient to protect
U.S. environmental interests off its coasts. Port state
enforcement, which we have proposed, would be effective
but we have met strong opposition from maritime states and
have received little support from others. Limited coastal
state enforcement rights provide the only realistic possi-
bility of achieving further protection
in this negotiation.
5) Discharges present the most visible and thus
politically sensitive pollution problem for coastal states
and have been the basis for their complaints.
6) A warship exemption in the pollution section
will be easier to obtain if coastal states are satisfied
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with the basic pollution control regime. This option
could thus assist us in avoiding negotiating problems on the
pollution regime for warships both in coastal areas gen-
erally and in straits.
CONS
1) The U.S. draft pollution articles were tabled in
the summer of 1973, are very complex, and have not received
adequate consideration by other delegations. More time is
needed to test their negotiability.
2) Since the last substantive law of the sea nego-
tiations in August 1973, the 1973 IMCO Marine Pollution
Conference has taken place and has produced high vessel
pollution control standards, thus enhancing the negotiability
of our present position which is based largely on inter-
national standards.
3) This option would not provide substantial addi-
tional environmental protection fcr the oceans and for the
interests of coastal 3tates.
4) Jose Vallarta of Mexico, Chairman of the Seabed
Committee pollution working group, has told some delegation
members privately that his concept of a final LOS settlement
would be navigation rights in straits, no coastal state
pollution control zone and an economic zone satisfactory
to developing countries.
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5) Coastal state enforcement authority provides
some basis for coastal state interference with navigation
off its coast and could thus harm U.S. national security
and commercial navigation interests. The abuse potential
is greater than with resource jurisdiction since pollution
violations can credibly be charged against any vessel
while resource-related violations are logically restricted
to vessels equipped for fishing or seabed mineral activities.
6) Enforcement action against discharge viola-
tions has inherent difficulties which limit its effec-
tiveness. This may, then, add little in terms of environ-
mental protection.
(2) 100-mile zone.
Option: That if Option 1 is approved, the Delegation
be authorized to support a zone of a maximum of 100 nautical
miles from the coast for coastal state pollution enforce-
ment if agreement cannot be reached on a 50-mile limit,
Under Option 1 above and this option, the U.S. would make
it clear, publicly and plivately as appropriate, that it
could not accept coastal state pollution control in a
zone of 200 miles breadth.
PROS
1) Canada, a leader of the coastal states in the
pollution negotiation, has used the 100-mile figure in
its Arctic Pollution Control Zone and probably could not
accept a lesser figure. U.S. acceptance of the 100-mile
figure could induce Canada, in the context of overall
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discussions on the pollution regime, to work for general
acceptance of 100 miles, thus providing major assistance to
us in avoiding a 200-mile limit.
2) While any arbitrary figure cannot necessarily be
justified from an environmental standpoint, there is a
100-mile zone in many areas for international standards
in the 1954 Oil Pollution Convention. Also, the U.S.
attempted to obtain a 100-mile "no-discharge" zone in the
1973 IMCO Convention, thus indicating some environmental
rationale for the 100-mile figure.
3) If agreement is not possible on a 50-mile figure,
we should move to 100-miles since otherwise the ne4otiation
would almost certainly move to a 200-mile zone.
4) The expanded area would not greatly increase the
possibility of abuse by coastal states since the physical
patrol capability of most states is limited, since a dis-
charge must be observed before any action can be taken, and
since there would be procedural safeguards.
CONS
1) This would present a larger area of possible inter-
ference with navigation by coastal states.
2) This would probably not
significantly increase
environmental protection, particularly off the U.S. coast.
3) The 100-mile zone presently existing in the 1954
Oil Pollution Convention does not include any coastal
state rights and is thus not a precedent for use of 100
miles in this situation.
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4) International discharge standards presently applicable
beyond 50 miles differ from those applicable within 50 miles
and violations of them are almost impossible to detect through
observation.
(3) Coastal State Discharge and Dumping Standards
Discussion: Under existing authority in NSDM 177,
a United States objective is to obtain a right for coastal
states to establish and enforce vessel pollution control
standards in the territorial sea. However, for tactical
reasons related to the negotiation of straits transit, we
have publicly proposed that the coastal state have only an
enforcement right and no right to set standards in the
territorial sea.
As is stated earlier, we now feel that it will be
tactically advantageous to argue that the pollution regime
in straits be the same as the general pollution regime
rather than to attempt to negotiate a separate pollution
regime for straits. Consequently we will try to negotiate
a general vessel pollution regime from the coast seaward,
thus simplifying the connection with a straits regime.
If this option and option I are approved granting coastal
State rights to set discharge standards, there will be no
domestic problems and we could accept it as a final solution
since we do not have a major domestic concern with pollution
control construction standards for ships transiting the
territorial sea. However, if this option is not approved,
the existing authority in NDSM 177 on this point would continue
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regarding discharge standards. The issue of authority in
ports is dealt with separately
Option: that the Delegation be authorized to support
a coastal state right, in addition to the right in option 1,
to establish in the zone discharge and dumping standards
higher than the international standards. The coastal state
would be authorized to enforce both the international and
its own higher domestic standards. Discrimination between
vessels of differing nationalities (including those of the
coastal state) and the setting of any discharge or dumping
standards which would have the practical effect of preventing
navigation would be prohibited. The coastal state authority
would, as in option 1 above, be subject to the warship
exemption and the same procedural protections for commercial
vessels. The U.S. would, of course, continue to strongly
oppose any coastal state standard--setting or enforcement
authority for international or domestic construction standards
off the coast.
PROS
1)
Discharges present the most visible and thus
politically sensitive pollution problem for coastal states
and have been the basis for their complaints.
2) Discharges in areas near the coast may well damage
the coastline and thus coastal states, including the U.S.,
have a legitimate interest in controlling them.
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3) Concern with discharges and dumping seem to be
at the heart of the positions of France, Japan, and Norway.
Although none of these have publicly stated a willingness
to accept coastal state standard-setting, we had private
indications to that conclusion. Thus, this would provide a
more unified maritime country approach.
4) This would considerably enhance our ability to avoid
coastal state rights regarding construction standards since
we could help to shape the course of the negotiations. To
date our opponents have avoided the discharge/construction
distinction and the negotiation may well continue to avoid
it unless we can actively exert influence.
This distinction
is more important than the enforcement vs. standard-setting
distinction since enforcement of construction standards is
far more dangerous than the setting of higher discharge
standards.
5) A number of developing countries have difficulty
reconciling their political support for coastal state
rights with their shippi,g interests (India, Liberia, Ghana,
and others). This may offer them a reasonable compromise.
6) If adopted for an area broader than 50 miles (the
present "no-discharge" area in the 1973 IMCO Convention) it
would provide the U.S. and other coastal states with
additional protection for the environment since we could
apply high standards beyond 50 miles as we proposed to do in
the IMCO Convention.
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7) A warship exemption will be easier to obtain if
coastal states are satisfied with the basic pollution regime.
This could thus assist us in avoiding negotiating problems
on warships in straits as well as in coastal areas.
8) At most, coastal states could set zero discharge
limits which would not provide substantial operational
problems at least with regard to oil, whereas, with
construction standards, coastal states could set an almost
unlimited variety of standards. As to dumping, we do not
aumP off the coasts of others and would thus have no difficulty
complying with a "no-dumping" standard.
9) If coastal states do not have discharge standard-setting
rights outside the territorial sea, they may well decide that
an extension of the territorial sea is necessary to protect
their environment.
CONS
1) Enforcement action against discharge has inherent
difficulties which limits its effectivenecs in protecting
the environment.
2) If a zone of more than 50 miles is authorized,
vessels would be required to discharge further out to
sea if coastal states utilized this right. This could
produce some operational problems.
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3) The environmental benefit to the U.S. would
be minimal since high standards already are applicable
to 50 miles which is the area of greatest environmental
sensitivity and greatest potential for pollution.
4) Coastal state rights to set higher standards
could undercut efforts to achieve higher international
standards.
5) The October 1973 IMCO Marie Pollution Conference has
produced high standards for vessel pollution control, thus
enhancing our negotiating position favoring exclusively inter-
national standards.
6)The high standards of the 1973 IMCO Convention should
be given a reasonable chance to be in effect before decisions
are made to increase them.
(4) Port State Construction Standards
We will continue to support our existing position that
there should be exclusively international v2ssel pollution
control construction standards in the territorial sea and
on the high seas and that coastal states should not have any
right to set higher standards. Also, we will continue to
support the right of the flag state to set higher standards
for its vessels (thus covering all traffic between U.S. ports) -
We will also continue to support internationally agreed
procedures in IMCO for establishing special construction
standards in special areas that clearly require it, such as
the Arctic. The present U.S.position also allows port
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states to set higher construction standards for all vessels
entering tneir ports. While it is clear that the U.S. prefers
this result, and that the Delegation shculd continue to be
authorized to accept it, the question is raised as to whether,
for tactical reasons, the Delegation should have the author-
ity to support the elimination of the port state right. Any
decision to use that authority would be made by the Chairman
of the Delegation in consultation with the Chairman of the
Task Force and the senior representatives of the agencies
concerned.
Option: that the Delegation can support exclusively inter-
national vessel construction standards for pollution preven-
tion for forei5n ships entering ports. This would, however,
also allow port states to apply internationally-agreed
standards prior to their entry-into-force or prior to their
internationally-agreed effective dates. Because of Congres-
sional sensitivity on this point, we would consult appro-
priate Congressmen and staff members in advance of utilizing
this authority.
PROS
1) The apparent inconsistency between U.S. opposition
to higher coastal state construction standards and support
of higher port state construction standards is tactically
disadvantageous and undercuts our best argument--that coastal
states will establish inconsistent standards and thus harm
navigation.
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2) Because most traffic off our coast enters U.S.
ports, we are open to the charge of protecting ourselves
while denying protection to states which have large
transit traffic off their coasts.
3) A number of maritime states opposed port state
standards and we may be able to use this to influence
their position on other aspects of the vessel pollution
issue. Our experience in the IMCO Conference indicates
that many maritime states are willing to move rather far
toward coastal state vessel pollution control rights in
order to obtain a quid IT) qu,-, of a limitation on port
state rights.
4) The U.S. utilized the threat of port state
standards to obtain high standards in the 1973 IMCO
Convention, thus largely achieving its major international
purpose in the field of international con-ruction stand-
ards for pollution control.
CONS
1) The result would be inconsistent with the
thrust of U.S. legislation. Environmentalists and their
supporters in Congress, particuTarly those from states
with major oil ports, will find it difficult to accept
permanent relinquishment of this existing right. In
addition, a recent Supreme Court decision leaves open
the possibility that individual states of the United States
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could set higher standards, thus increasing domestic
political pressure against restrictions on that right.
2) Port states are unlikely to disrupt their own
trade by establishing unreasonable or inconsistent stand-
ards. This is a distinction between port and coastal
state standard setting that can be used in response to
charges of inconsistency in the U.S. position.
3) Relinquishment of this right will eliminate
future U.S. action against foreign ships for foreseeable
and possibly unforeseeable problems and eliminates the
possibility of U.S. domestic application of the IMCO
standards to smaller foreign tankers than specified
in the IMCO treaty. Most tankers entering U.S. ports
are too small to be covered by the new IMCO construction
standards.
4) This would diminish our negotiating ability
to raise international standards in the future. This
is particularly important since under the 1973 IMCO Con-
vention a small number of major maritime states with
50 percent of the world's tonnage can block adoption of
amendments.
5) The basic vessel pollution regime may only
be settled in the overall context of the settlement
on an economic zone, thus making it unnecessary to make
substantive concessions to gain tactical advantage.
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6) SinCe almost all vessel traffic off the coast
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of Canada is headed for the U.S. or Canada, we could agree
bilaterally to apply high construction standards to all
vessels entering ports in the context of obtaining an overall
on pollution issues.
ccommodation with Canada / This possibility would be lost
if we utilized the authority in this option.
(5) Ship-Rider Concept
_
Recommendation: that the Delegativa have the authority to
explore privately the concept of a "Ship-Rider" approach
to enforcement of tanker discharge standards. Under this
approach, a ship rider would be placed aboard each tanker
at the outset of a voyage and he would monitor the ship's
operations as they relate to pollution prevention. If he
detected illegal discharges, he would be obliged to report
to the authorities of the next port-of-call or of the flag
state who would be required to take enforcement action
against the vessel.-
opl'Specific Area construction Standards
Recommendation: that the Delegation be authorized to explore
privately the concept of coastal state standard-setting,
subject to IMCO approval, of construction standards for
well-defined areas with special ecological and navigational
problems. This possibility was broached by Canada during
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recent bilateral consultations and further discussion
would be useful in determining, a possible accommodation
with Canada.
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G. Scientific Research
The United States has a major interest in assuring the
maximum possible freedom of scientific research. The U.S.
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has a substantial investment in oceanography that includes
not only the value of specialized ships and equipment, but also
laboratories for analysis and facilities for training and
education. The U.S. interest includes important military
and economic interests, as well as the interests of the
scientific community. One indication of the economic value
is the discovery by U.S. scientists in 1970 of the hydrocarbon
potential in many areas of Southeast Asia and the similar
discoveries off the West Coast of Africa.
Freedom of research will be most difficult to maximize
in areas beyond the territorial sea where the coastal state
exercises resource jurisdiction. Difficulties also exist in
recent
the deep seabed where
exclude research from
subject to regulation
or restrict the areas
conducted.
scientific
subject to
proposals have been made that would
existing high seas freedoms and make it
by the international seabeds authority
in the deep seabed where research can be
We shall continue to oppose restructions on
research in areas beyond national jurisdiction,
reasonable environmental regulations on deep
drilling and a general obligation to conduct research with
strict and adequate safeguards for the protection of the
marine environment.
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Under the existing Continental Shelf Convention,
scientific research concerning the shelf and undertaken
there requires coastal state consent. The existing
requirement that the coastal state "shall not normally withhold
its consent" has proved inadequate to ensure reasonable
scientific access to the continental shelf off many countries
because of the ambiguity of the phrase and the absence of
compulsory dispute settlement.
If a consent regime were applied to the proposed 200-mile
or continental margin limit for coastal seabed resource
jurisdiction, the area of greatest interest to U.S. scientists
and most U.S. scientific research off foreign coasts would be
subject to coastal state control. Moreover, the tendency of
developing countries to treat fisheries and seabed resources
together in an economic zone context suggests the adoption of
the same consent regime in the waters above the seabed. In
fact, the supporters of an exclusive economic zone are
generally supporting a coastal state consent requirement for
all research in the zone.
The U.S. proposal does not include a requirement for coastal
state consent, but rather imposes a series of obligations
upon the researcher and his flag state to respect coastal
state resource interests in connection with research in
waters and seabed areas where the coastal state exercises
jurisdiction over resources. These obligations include
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advance notification, participation, data sharing,
assistance in interpreting data and results and compliance
with applicable international environmental standards. They
are designed to accommodate coastal state interests in both
seabed resources and coastal fisheries, while protecting our
interest in maximum freedom of research.
In addition, a significant portion of U.S. military
-_-esearch in the oceans is conducted from civilian vessels.
This U.S. research interest is protected in our present articles
by a subtle structuring of the language so as to make it arguable
that compliance with obligations to the coastal state is mandatory
only when research is potentially related to resources.
The initial response to our proposal has been disappointing,
with opposition coming from both developing and developed
countries. The USSR, with a research interest parallel to
ours, remains wedded to the existing approach Pnd has proposed
even greater coastal state control over seabed research than
exists at present, while demanding complete freedom of research
in the waters above. This may be related to Soviet opposition
to extensive coastal fisheries jurisdiction. The U.K., Canada,
and France have reacted similarly, in part because they may
consider their interest in coastal state seabed resource
jurisdiction, unrelated to scientific research, protected by
leaving the 1958 Continental Shelf Convention undisturbed.
Canada may be prepared to discuss a coastal state obligation
to grant consent under specified circumstances.
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While there is disagreement as to whether a change in
the U.S. position should be authorized, no agency maintains
that an early change in the United States position is either
necessary or desirable. Scientific research was the last
issue on which work began in the Seabed Committee, and
consideration of the issue is accordingly still dominated by
rhetoric and posturing that has been overcome to a greater
extent on other issues.
and we should spend more
If possible, we will try
Our approach to
time explaining
to depoliticize
the issue is novel,
it and refining it.
the
issue by giving
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it less prominence in public debate. In sum, it is agreed
that the Delegation should make every effort to persuade others
of the merits of the approach we have taken.
However, the opposition or key developed States on
continental margin research and the numerical strength of
the coastal developing States put us at a disa'lvantage on this
type of issue. Moreover, neither side is likely to believe
that the other side will wreck the conference over it.
Our best chance for success with respect to opposition
from developed States is to emphasize the similarities of
our research interests and attempt to separate research
issues from coastal seabed economic jurisdiction issues.
This is one of the reasons we are attempting to encourage
the development of a regime different from that in the
1958 Continental Shelf Convention for resolution of seabed
resource jurisdiction, and to address the outer boundary
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problem in connection with that regime rather than the
Convention.
With respect to developing countries, our best chance
for success is in persuading them that they can obtain more
from a mulilateral settlement than they can from bilateral
bargaining for permission to conduct research. To achieve
this, means must be devised to enhance their research
capabilities in exchange for support for an advantageous
scientific research regime. We are continuing to examine
alternatives which may benefit both the developing countries
and the United States. Some possibilities have been identified
which we may wish to explore with developing countries and
other developed countries-
- seek to foster development of regional training
centers for scientists and technicians from
developing countries, including multilateral
support and some commitment from developing
countries to increase the possibilities of
success;
- provide carefully selected developing countries
with research vessels from U.S. government surplus
property for operation by the country in connection
with local and regional research;
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- offer a significant contribution (e.g.,
$50 million over ten years) for development of
regional training centers and provision of
research vessels as outlined above, as well as
other contributions to the international community,
in conjunction with contributions by other countries,
for oceanographic research by developing country
scientists;
- expand upon the coastal state's right of
participation by commiting the research
state to provide for orastal state
participants to travel to the researching
state or scientists of the latter to travel
to the coastal state to participate in planning
the research (with appropriate protection for
U.S. control), coastal state parti-ipants to
accompany the vessel when research is conducted,
and coastal state participants to return to the
institution where analysis and evaluation of the
scientific data will occur.
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However, a question arises as to the necessity for
additional authority for the Delegation should it appear
that there is no basis for agreement without a consent
requirement. Accordingly, the following option is presented:
OPTION:
Should the Chairman of the Delegation, in consultation
gith the Chairman of the Task Force and senior representatives
of the agencies concerned, determine that there is no basis
for agreement without a consent requirement, and that an
accommodation could be reached which would better serve
United States research interests than being outvoted on the
issue, the Delegation is Euthorized to negotiate a consent
requirement in areas of coastal state resource jurisdiction,
provided that the coastal state is required in all cases
to grant consent if specified criteria are met The criteria
would be those we are already authorized to support as
flag state obligations. Consent must also be presumed
in the absence of a denial of consent within a fixed period
of time. As at present, compulsory dispute settlement would
apply. Our approach and instructions regarding military
research would continue unchanged.
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PROS
(1) This result would be a significant improvement
over the existing requirements of the 1958 Continental
Shelf Convention and the proposals of other countries since
consent would not be discretionary. If certain conditions
are met, consent must be granted, and compulsory dispute
settlement procedures would be available.
(2) This issue is not an all or nothing proposition.
The point of the option is to permit the Delegation to decide
if the risks of holding out exceed the disadvantages of
some accommodation on consent--a _;a0gment whose timing is
critical and that can best be made by those present at the
negotiations.
(3) Our ability to rrotect our interest in military
research depends largely on subtle drafting that is included
in the ultimate treaty without a full explanat_Dn of our
problem. This, in turn, requires active participation in
drafting, which will not be possible if the majority is
drafting a consent regime and we cannot participate. Even
the requirements of our existing proposal--e.g., data sharing
and participation--create serious military research problems
unless an article is artfully drafted.
(4) If the developing countries conclude that there
is no way to work with the U.S. on scientific research
issues, we may not only lose influence over the outcome in
coastal areas, but in the deep seabeds as well. This, in
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turn, could have negative implications for our positions
on the deep seabed, including our security interests in assuring
that the international authority does not regulate all
activities on the deep seabed.
(5) Some states that believe that yielding their right
of consent under the 1958 Convention amounts to a renunciation
of a vested right may be more amenable to this approach, which
in essence does not eliminate the right but imposes
obligations regarding its exercise.
(6) Determination to stick with the present position
to the end is credible only if the opposition believes our
determination is genuine. It is more likely that the opposition
will preceive that we are playing to a domestic audience and
full expect to be defeated.
CONS
(1) This would not necessarily be an improvement over
the 1958 Continental Shelf Convention since the option
applies a form of consent not only to shelf research but
to research in the water column as well.
(2) Despite good faith efforts by the reseaching state,
under this proposal a coastal state could deny consent by
stating that the obligations have not been met. While adequate
compulsory dispute settlement procedures would guard against
repeated refusals of this type, the option amounts to a
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practical right of denial for a specific cruise due to
the operational necessities of oceanographic research, a
right of denial not inherent in our present position.
(3) In light of the subtle structuring of our draft
articles to protect military research, a change of position
during the negotiation could draw attention to our interest
in military research and cause difficulties in preserving it.
(4) There is a juridical similarity between a consent
regime in the territorial sea and a qualified consent regime.
Thus a qualified consent regime such as this implies greater
coastal state jurisdiction rather nan less and is inconsistent
with our objective of limiting coastal state jurisdiction as
much as possible.
(5) From the viewpoint of coastal states, this option
does not meet their desire for consent if it must be granted
when specified criteria are met and, consequen-ly, coastal
states should have little greater preference for this option
than they do for the original U.S. position. Therefore the
ultimate effect of the option could be to facilitate movement
to a more stringent consent regime to which the U.S. could
not agree.
(6) With the possible exception of the Soviet Union,
no other country in the negotiation conducts as much research
and has as great an interest in protecting the right to
conduct research as the U.S. This is a visible reality to
other countries whose positions on the issue may be dictated
by tactics or a desire to enhance their jurisdiction beyond
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G-11
the territorial sea. If we stand firm, movement to accommodate
our science interest is possible after the resource issues
are resolved.
(7) We have not adequately explored the advantages of
multilateral aid offers or increased participation in
oceanographic research in exchange for support for our existing
position.
(8) As a coastal state ourselves, we believe that our
articles protect our coastal interests while allowing a
reasonable degree of freedom of research. Once they understand
them most developing and developed countries should come to
realize their own interest in a similar regime.
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The Dee. Seabeds
In his May 23, 1970 Oceans Policy Statement, the President
supported the establishment of an international regime and
machinery to authorize and regulate deep seabed mining, and
the collection of revenues from mining to be used primarily
to promote the economic advancement of developing countries.
The President also stated that he did not believe it to be
either necessary or desirable to try to halt exploration and
exploitation of the seabeds beyond a depth of 200 meters during
the negotiating process. Most members of Congress and of the
mining industry have supported this policy.
The UN General Assembly Declaration of Principles Govern _y
the Deep Seabed, adopted without dissent, and the relevant
General Assembly Resolution establishing the mandate of the
Law of the Sea Conference, also call for the establishment of
an international regime and machinery for the seabed
beyond national jurisdiction as the common hericage of mankind.
An earlier General Assembly Resolution, which the US and
others opposed called upon all states and persons to refrain
from exploiting the deep seabeds pending the establishment of
the international regime and machinery.
In August 1970 the US introduced draft articles in the
form of a working paper pursuant to NSDM 62 and the President's
statement. The fundamental thrust of those articles is the
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establishment of an international regime and machinery
(usually called "the authority") for non-discretionary
licensing on a first-come first-serve basis, regulation to
ensure sound environmental practices and to prevent claims to
extraordinarily large areas of the seabed, control over regula-
tions by a council in which the U.S. and other industrialized
states have adequate voting protection and whose scope of
discretion is also limited and defined by treaty, payments
in the form of fees and royalties for mining rights, and
compulsory settlement of disputes, including a right of actin
against organs of the international organization for efcceeding
their authority under Lhe treaty. For reasons related to ur
national security interests in using the deep seabeds, the
role of both the organization and of individual States is
carefully circumscribed so that neither has a basis for
arguing that it has jurisdicition over all uses of all or any
portion of the deep seabeds.
The UN Seabed Committee has prepared alternative texts
on a deep seabeds regire for the Law of the Sea Conference.
With minor refinements, the U.S. has negotiated for three
years the inclusion of texts contained in or derived from tIle
basic portions of the 1970 U.S. draft. By and large, the U.S.
alternative is the most oriented toward a market exploitation
system with a minimum of regulation. What discretion of reguT,
latory authority the proposed international organization
would have, however, was intended to be guarded against by
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institutional arrangements giving the U.S. and other states
with similar interests adequate voting participation to
protect our important interests, aE as by carefully drawn
treaty provisions, and compulsory dispute settlement.
In contrast, the fundamental thrust of developing country
positions has been strongly in support of a highly centralized
and powerful authority which would decide at what times and
under what conditions the seabeds would be exploted. The
approach has been a reflection of their attitude toward re-
source production on land. Recognizing that the capital ac3.
technology to exploit is in the hands of a few companies from
developed states, they wish an organization representing the
entire international community to participate in the technology
and benefits
of mankind."
"Enterprise"
from the exploitation of "the common heritage
The most prominent chosen instrument is Ln.
1
(an exploitation arm of the international
H
which would have the exclusive right to exploit the deep se
beds, and could negotiate service contracts or joint ventures
with the companies.
Deep seabed mining has been the subject of severaJ .c?c
by the UN Secretary General and others. While relatively
little is known of the potential mineral wealth of the deep
seabed, the present prospects for manganese nodule recovery
have been widely publicized. Deep seabed. exploitation in the
reasonably foreseeable future is likely to occur only with
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respect to manganese nodules that are on or near the surface
of the seabed. At present, the principal metals of commercial
interest in the nodules are nickel, c-pper, and cobalt, although
some companies have indicated that manganese is also of interest.
The comprehensive economic review concluded that the U.S
would benefit economically in a variety of ways from developmen
of a domestically-based ocean mining industry, although the
degree of benefit was not agreed upon. These would inclu,de
more secure sources of supply for nickel, manganese, and.
cobalt (economically recoverable reserves of all these met:As
are negligible in the U.S.), an improvement in the balance of
payments deficit attributable to these metals, lower priceF
than might otherwise prevail, and increased technological
capability and federal revenues associated with the new inclust
There is general agreement that the U.S. De1egatir. she
-
be authorized, as a matter of tactics, to give the impre3scr
of a shift to a posture less accommodating than our current
posture/to demands for broad international regulatory authori.t.
The main issues relate' t the substance of our 1717: approach.
In the course of the economic review, a difference of c-oini
developed on whether a deep seabed authority is economically
necessary or desirable and, if it is necessary or desirable
for economic or other reasons, whether the underlying approach
of the 1970 working paper already involved too much regulation.
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7 -
It is recognized byall, howevc..r, that the U.S. has a
significant economic interest in a leeal order which permits
timely, efficient development of seabed mineral resources and
which assures security of investments and supply. It is also
recognized that the U.S. has security interests in the deep
seabed and waters above which are currently safeguarded by
the 1958 Convention on the High Seas. These security intere2
must continue to be safeguarded by preventing a new regime
which could permit natural resources claims to the seabed
to expand into broader jurisdictional claims over ail uses of
areas of the seabed and possibly the superjacent waters,
And it is recognized that at this late date any substantial
shift of position by the U.S. toward a more restrictive deep
seabeds position is likely to have a significant inhils tin?,
effect on the entire Conference.
It is noted that all of the options presented assume
that the common heritage orincisple may be implemented by pro-
visions for revenues from deep seabed exploitation to go to
the international community, principally for assistance to
developing countries.
It is also recognized that the
Delegation should be authorized to support assistance for
land-based producing nations which may be adversely affected
by deep seahed exploitation.
I. Options- Relating to the Basic Structure and Authority
of the International Machinery for Deep Seabed Mining
[Select one from Options A-D1
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H-5
In the light of the above, the following options are pre-
sented with respect to whether the U.S. should continue to
support appropriately circumscribed international machinery
for deep seabed exploitation or whether the U.S. should be
authorized only to support a claims registry system relying
largely on national actions (or no institutional arrange-
ments at all). It is the opinion of the Special Repre-
sentative of the President for the Law of the Sea Conference,
the Chairman of the NSC Interagency Law of the Sea Task Fure.
and the broad consensus of opinion, with a few exceptions,
of the Executive Committee of the Task Force and the Public
Advisory Committee on the Law of the Sea, that a decision eo
support institutional arrangements without any rule-making
procedures (Option C), or no institutional arrangements
at all (Option D), would be, inconsistent with obtaining a
timely multilateral agreement on the law ef the sea and ocean
,
uses, and would amount a decision not to sek such agree-
ment.
Option A: An international regime and machinery which
WUld ensure access by interested U.S. firms to deco
seabed mineral resources under reasonable conditions tor
exploitation. Consistent with these goals the Delegatio
should be authorized to accept an international authority
with broad flexibility to regulate deep seabed mining so
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long as the U.S. and other countries which can be expected
to supply the technology and capital for such mining exercise
sufficient voting control to protect their interests.
Pros:
(1) This option :would provide maximum flexibility
in achieving U.S. goals and would be the most negotiable.
(2) Adequate control with respect to the decisi
making organs of the authority would provide almost the same
functional protection as limitations on the institutiolkal
structure or power of the authority.
(3) The parameters of deep seabed mining for mangan?e
nodules and adequate environmental protection from such
mining are only poorly understood and as such it would be
beneficial to U. S. interests to provide for substantial
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flexibility in the authority- At such time in the future as
other mineral resoorces of the .leep seabed become economicaily
exploitable, substantial ftexibi3it7 TAM_ be ile(led to effec-
tively manage the new forms of explotation-
Cons:
(1) There are no significant economic conditions
requiring that a legal order include an international authority
which would manage the development. of deep seabed resources_
The more discretion which such an authority has the greatr
would be the potential for abuse.
(2) An authority with substantial discretion to
'manage deep seabed mining could introduce substanLial eco-
nomic inefficionciesand additional transaction cots.
(3) Adequate voting control would not offer the same
degree of protection for U.S. interests as a careful liit-
tion of the structure and power of the authority_
(4) Adequate voting control may be as difficult. to
negotiate as limitations on structure and power and in any
event such voting control cou10 only ensure negative control
to prevent onfavorabie actions_
(5) The sti-ncture and power of the authority may
largely determine whether the US. objectives of access to
deep seabed mining under reasonable conditions can be. realized_
:Option B:
. . . _ _ _ _ _ _
Would ensure
An inletnatronal regime and machinery which
access by interested U.S. firms to deep seabef'.i
mineral resources under reasonable conditions for exploitation.
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H-9
Such a regime and machinery would provide a stable investment
climate for development of deep seabed mineral resources
and would preclude discretion to discriminate among appli-
cants or against US or other deep seabed mining firms, or to
introducing requirements not economically justified. In this
respect the system would have the following functional attri-
butes and safeguards:
there would be no discretion to choose among.
qualified applicants for mining rights or to deny an app] a-
tion that was properly certified by a sponsoring state fthf:
system would operate on a first-come first-serve. b3sis witi
some automatic device such as competitive bidding used in
the event of simultaneous applications for the same or
overlapping sites);
-- there would be no power to control prices or
production levels;
-- any international m hinery would be kept small
with discretion only as necessary to carry out specitr:
authority entrusted to it;
sponsoring states would certify compliance w-111
qualifieationg for mining rights and would collect. revenues d-
-- the treat: would protect non-resource uses c.f
the seabed;
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-- the treaty would set out tho essential terms
for mining within specified ranges satisfactory to
protect US interests, encourage development, and ensure
stability of investment. These would include:
-- provision for financial obligations
(taxation) set either specifically or within a
narrow ranqo and not so high as to deter orderly
or timely development;
-- other terms and conditions essential for
stable investment decisions;
--the treaty would establish rules for the preven-
tion of claims to extraordinarily large areas of the
seabed;
-- the treaty would rely heavily on the role of
sponsoring states for implementation of the system;
-- the information required of holders of mining
rights would be limited to information essential to
the exercise of the authority's functions;
-- the authority would only have discretion to
propose reasonable regulations, on specified matters
within specific treaty limits, including regulations
to prevent interference with other uses and to protect
the marine environment from deep seabed resource activities
and deep drilling. These regulations would go into effect
only after Council approval and only after one-third
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H-11
of the contracting parties did not objeeet within a
specified time;
-- the authority would be controlled in all significant
respects by a Council in which the U.S. was assured of voting
participation giving the U.S. and states with similar interests
reasonable assurance that we would be able to prevent adverse
decisions on important substantive issues;
-- the treaty would be drafted so as to require
US agreement to be bound by treaty amendments;
-- the system would provide for the protection of
CA
integrity of investments made under the system and for com-
pulsory settlement of disputes arising under the system. This
would include provision for states or concerned private
entities to bring an action against the authority for exceeding
?
its authority or for impairing the integrity of investments.
-- the label for the system is unjmportant.
Pros:
(1) The economic review concluded that such a system
would be consistent with U.S. economic objectives. Moreover,
such a system would not constitute a discretionary resource "manage-
like some domestic regulatory agencies,
ment" system but/rather would be a strictly limited regime
with functional authority only as clearly required by the
nature of deep seabed mining.
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H-12
(2) Such an approach could be a negotiable
outcome. Tactically,we can appear to be backing a considerably
more powerful organization than is in fact the case, thus
reducing the ideological difficulties in the negotiation.
This approach is understood by other key negotiators.
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(3) Since this approach is consistent with the
President's Oceans Policy Statement of May 23, 1970 (which
supported creation of an international regime and machinery
to authorize and regulate deep seabed exploitation in
accordance with the common heritage principle), and is
similar to the existing U.S. position, it would maintain
U.S. credibility.
(4) Exclusive rights for deep seabed exploitation
would be legitimized by an internationally recognized
organization. As such, greater investor protections
would be offered than under an approach relying prin-
cipally on national legislation.
(5) The existence of an international organization
and assured influence over its decisions would protect
our navigational and security interests from expanding
jurisdictional claims.
(6) This system can impose conditions that will
prevent states from claiming extraordinarily large areas
of the seabed without the intention of commercial develop-
ment in the reasonably near future, as for reasons of
national pride or prestige. Such claims could pose the
threat of expanding jurisdiction and could also retard
development of mine sites by firms with the capacity to
engage in such mining.
(7) International environmental standards would be
uniformly applied to firms of all nationalities, thereby
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avoiding a competitive disadvantage to U.S. firms which
in the absence of such international standards, would be
subject to public pressure for high standards under domes-
tic legislation O.L might shift their operations to a "flag
of convenience" with lower standards and with a resulting
loss of economic benefits and environmental protection
to the U.S.
Corporate and banking officials believe that
legally recognized exclusive mining rights in a specific
area for a specific time period are necessary to justify
the large capital financing needed for deep seab. d Joining,
despite the fact that poaching or claim jumping may not
be likely. Because of variations in minerals content
and other variables in nodules, mine sites are not fungible
but rather require a refining process carefully tailored
to each particular site As such, for the substantial
investment decisions required, it is imperative that there
be maximum stability of expectations concerning exclusive
rights to particular sites.
(9) This approach is supported by resolution
of both houses of Congress and by the Public Advisory
Committee on the Law of the Sea, including members
representing the hard minerals industry.
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_
R-1.5
Cons:
(1) The economic review concluded that without
reference to political or other non-economic factors there
are no significant economic conditions requiring that a
legal order include an international authority which would
manage the development of deep seabed resources.
(2) For the foreseeable future, there are likely.
to be few firms relative to the availability of mine sites
since nodule mining is capital intensive and potential mine
sites are plentiful. Therefore, a system of exclusive
mining rights is unnecessary for security of tenure..
(3) Fears of expanding jurisdiction affecting
navigation and security interests may be overemphasized
and in any event can be protected by a general treaty provision.
(4) It is not clear that States or firms would
claim an area without the intention to commence commercial
development in the near future. If they dc, they would
perform the valuable function of a speculator -- to effectively
withhold resources from the market until the price more
accurately reflects the scarcity of the resource and the
demand for it, thereby avoiding the premature depletion
of valuable resources.
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H-16
(5) We do not know whether deep sabed mining
raises a substantial environmental problem. If it does,
we can seek to accommodate environmental interests by
general treaty provisions or in a forum outside of the
Law of the Sea Conference. Furthermore, environmental
standards might be used to indirectly effect price and
production controls,
(6) Creation of an international organi7ation
would create additional transaction costs for deep seabed
mining. Any regulatory discretion,
no matter how carefully circumscribed, miaht be
used to discriminate against U.S. firms or to in rodue
requirements with no economic justification.
(7) There are so many specific conditions to be
met before this system would be acceptable as formulated,
and there is such a likelihood that all conditions wold
not be met, that we may be forced to make some difficult
decisions with respect to accepting a system based upoa
this model.
Option C: An international authority limited to functioning
as a claims registry, information center, and consultative
forum which could make recommendations to contracting parties,
This system would have the following functional character13t1c:
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-- mining claims would be registered on a first-come
first-serve basis with competitive bidding used in the event
of simultaneous applications for the same or overlapping sites;
the treaty would include general obligations on
contracting states to ensure that registrants under their
sponsorship would move to commercial production within a
reasonable period of time, would take reasonable measures
to safeguard the environment, and would have reasonable
regard for other uses of the deep seabed. States would ipe
left free to determine the best way to implement these
obligations;
-- the financial obliga-
tion would be placed on sponsoring states which in turn would
determine the best way to obtain the necessary revenues;
-- the system would provide for compulsory dispute
settlement to ensure that national obligations were fullilled.
Pros:
(1) If adopted, such a system would provide mini-
mum disincentives to development of deep seabed resources
on an efficient basis and would eliminate discretion which
might be used to discriminate against U.S. concerns or to
introduce requirements which would foster economic inefficiency.
(2) The Economic Review concluded that there are no
significant economic conditions requiring that a desirable
legal order include an international authority which would
SECRET
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H-18
manage the development of deep seabed resources (i.e., that
such an authority was not the only way to enable the granting
of e;:clusive exploration and exploitation rights to a mine
site).
(3) Conflict among firms over mine sites is unlikely
in view of the large number of primary mine sites, the small
number of potential operating firms, and the high capital
investment required.
(4) Creation of ,a more powerful international organiza-
tion and system could result in additional trans-
action costs for deep seabed mining.
(5) Our past experience with domestic regulatory
agencies has not been good in terms of their effect on the
structure of the industries regulated and their ability to
make better decisions for the industry) than could the market-
place.
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CONS
(1) Such a system is non-negotiable at any rational price.
(2) In view of the interrelation between the deep seabed
negotiations and the negotiations on all other issues, if the
U.S. adopted this approach it would mean a decision not to
negotiate a law of the sea treaty. As such, all our ocean
law objectives, including our national security objectives,
which can be best served by a timely and successful law of
the sea treaty, would be seriously jeopardized.
(3) The President's Oceans Policy Statement of May 239 1970
supported the creation of an international regime and machinery
to authorize and regulate deep seabed exploitation This
position has been overwhelmingly endorsed by both Houses of
Congress. For the U.S. to go back on this decision at this
time would seriously impair our credibility domestically and.
internationally.
(4) Whatever the merits of the differences between this
option and option B, these are not worth the domestic and
international effects on the President's credibility of going
back on his policy and offers.
(5) Since the Economic Review concluded that a strictly
limited system along the lines of Option B would be consistent
with U.S. economic objectives, there is no need to carry the
substantial negotiating burden of a radical shift to this option.
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(6) This system would not as effectively protect U.S.
interests as Option B since the treaty obligations would,
in effect, be less specific and as a result would merely
transfer discretion to the compulsory dispute settlement
machinery.
(7) Because of its almost complete reliance on national
action, this system would tend to produce expanded national
claims over non-resource uses highly prejudicial to our
vital security interests with respect to the deep seabeds and
the high seas above.
(8) This approach would play into the hands of those
who wish to wreck or delay the Conference. The U.S. would be
charged at home and abroad with violating the UN General
Assembly Declaration of Principles which called for the
establishment of an international regime and machinery to give
effect to its provisions. Given the negotiating realities,
such an approach would be interpreted (even by sophisticated
observers) as a conscious decision by the U.S, to withdraw
from or destroy the negotiations. ThiE could well provoke
retaliation against. the US. on other issues in the negotiations
or through unilateral claims or actions against U.S. mininq
companies.
(9) Though such an approach would effectively end
U.S. influence in the negoitations it might not prevent
conclusion of a new comprehensive law of the sea treaty even
without the U.S. In the absence of U.S. influence the regime
and machinery which emerge are likely to be damaging to vital
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U.S. security and other interests and may well, through time,
become the governing legal regime and machinery binding on all
states including the U.S.
(10) Our experience has been poor with flag state
obligations to ensure adequate pollution cont r standards,
or to impose standards nearly as high as Congress and the
public wish to
impose
on US operations. This is prejudicial
both to our environmental interests, and to our economic intere.ts
in avoiding unequal requirements for US onierations,
(11) A general obligation for sponsoring states to
guard against extraordinarily large claims does little to
satisfy concerns that developing countries or others iil seek
to claim large areas for speculation,
reasons, or to reduce or delay seabed mining, thus restricting
areas available for present mining operations and potentially
interfering with the stability of exclusive claims.
(12) The Law of the Sea Conference is widely regarded as
a test of multilateral diplomacy, and of the continuing viability
of the UN system. This approach could seriously and unnecessarily
damage our political e1otions with developing countries,
such as Mexico, which have a strong commitment to the common
heritage principle and the establishment of an organization.
The effect is likely to bring us closer to a general "north
south" confrontation.
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(13) Corporate and banking officials believe that
legally recognized exclusive mining rights in a specific
area for a specific time period are necessary to justify
the large capital financing needed for deep seabed mining,
despite the fact that poaching or claim jumping may not be
likely.
_
(14) The US mining le(Olglation contemplated by this
option is essentially the same as that contained in the
nearly 100-year-old U.:S.Mining law, After extensive review,
this Administration has submitted a new mining bill that
fundamentally alters the earlier claims system. It will be
difficult to support both without imnitATIg charges of execu
branch mismanagement.
(15) Although not binding, the resolutions of any
consultative organ would be a political reality, and would
probably be far more prejudicial to us than any controlled
rule-making procedure. It would be costly to persistently.
disregard such resolutions.
ive
4
ption No inte nati --1 authority for deer seabed mining.
This would mean:
-- any legal regime needed for establishing exclusive
exploitation rights would be established under national
legislation coordinated to the extent feasible through
reciprocal agreements among those states licensing exploitation_
-- any obligations for environmental protection or
to prevent claims to extraordinarily large areas of the
need to
seabed would/be established in the treaty as general obliga-
tions on states or negotiated separately.
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-- the treaty would either reflect a general obliga-
tion on states to share revenues for international community
purposes or such a provision implementing the principle of
the common heritage would be negotiated separately.
PROS
(1) Deep seabed mining could take place under
national legislation in the absence of an international
agreement.
(2) Creation of even a claims registry system
could result in additional transaction costs for deep
seabed mining.
(3) Conflict among firms over mine sites is un-
likely in view of the large number of primary mine sites, the
small number of operating firms, and the high capital
investment required. Though there may be potential for
political friction over deep seabed mining claims, we
have made no systematic analysis of the potential for such
conflict and the cost of such conflict should it occur.
(4) Even a claims registry system could, through
time and subsequent creaty amendmeLts, becrme a fullblown
international organization.
CONS
(1) Such a system is non-negotiable
at any rational price.
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(2) In view of the interrelation between the deep
seabed negotiation and the negotiations oa all other issues,
if the U.S. adopted this approach it woulrl mean a decision
not to negotiate a law of the sea treaty. As such, all our
ocean law objectives, including our national security
objectives, which can be best served by a timely and successful
law of the sea treaty, would be seriously jeopardized.
(3) The President's Oceans Policy Statement of
May 23, 1970 supported the creation of an international
regime and machinery to authorize and regulate deep seabed
exploitation. This position has been overwhelmingly endorsed
by both Houses of Congress. For the U.S. to go back on
this decision at this time would seriously impair our
credibility domestic and internationally.
(4) Whatever the merits of the differences between this
option and option B, these are not worth the domestic
and international effects on the President's credibility
of going back on his policy and offers,
(5) Since the economic review concluded that a strictly
limited system along the lines of Option B would not harm
U.S. economic interests, there is no need to jeopardize the
important U.S. objectives at stake in the negotiation by
such a radical shift in position.
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(6) Any system which does not provide for internatinal
recognition of exclusive mining rights would not provide the
security of tenure necessary for a stable and efficient legal
regime for deep seabed mining and could lead to retaliation
against the U.S. firms by the majority of nations of the world
which maintain that deep seabed minerals are the common
heritage of mankind.
(7) Because of its almost complete reliance on national
action, this system would tend to produce expanded national
claims over non-resource uses highly prejudicial to our
vital security interests with respect to the deep seabeds and
the high seas above.
(8) Such an approach would undermine the U.S. environ-
mental interest in effective regulation of deep seabed mining
and is likely to lead to higher environmental regulation of
U.S. industry than foreign industry.
(9) Though such an approach would effectively end U.S.
influence in the negotiations it might not prevent conclusion
of a new comprehensive of the sea treaty, even without the
U.S. In the absence of U.S. influence the regime and machinery
which emerge are likely to be damaging to vital U.S. security
and other interests and may well, through time, become the
governing legal regime and machinery binding on all states
including the U.S.
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(10) Any effort to conclude reciprocal arrangements
with the range of interested countries would be extremely
difficult and could prove highly costly even if such an
approach were politically feasible.
(11) The US mining legislation contemplated by this
option is essentially the same as that contained in the nearly
100-year-old US mining law. After extensive review, this
Administration has submitted a new mining bill that
fundamentally alters the earlier claims system. It will be
difficult to support both without inviting charges of Executive
Branch mismanagement.
(12) Without any seabed organization, the U.N.
General Assembly is likely to keep the issue on its agenda.
While its resolutions on the deep seabeds would not be legally
binding, this is close to the worst conceivable forum for
considering deep seabed mining issues. Particularly because
the issue is not perceived as one that turns largely on great
power prerogatives, the politi al costs of persistently dis-
regarding such resolutions could be high, and would affect
our entire posture in the U.N.
II, Option concernin fallback authority to permit
the aut orit to directl exploit the resources
of t ?e?
eep sea ed under care u ly sa eyuar ? e
circuMSt-ances- subject to full maintenance of a
non-discretionary access system.
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If the United States adheres to its long standing
position that there should be an appropriately structured
international regime and machinery for the development of
deep seabed mining under reasonable conditions which will
ensure access by U.S. firms, an additional issue may be
presented as to the U.S. position on whether the authority
will be permitted to directly exploit deep seabed resources.
The U.S. has repeatedly stated that it will not accept an
exclusive operating monopoly for deep seabed mining. Such
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a monoploy would not serve the community interest in an
efficient legal regime for deep seabed mining and would
not ensure access by U.S. firms. The issue, then, is
whether the authority would be permitted to directly
exploit seabed resources within a system which simultan-
eously guarantees access by U.S. firms under reasonable
conditions for exploitation. This could be structured either
within an unitary system required to grant mining rights to all
interested and qualified applicants or by establishing a joint
system or exploitive arm in parallel with but separate from
a non-discretionary access system along the lines of option B
above.
The Economic Review concluded that it is preferable that the
authority not have power to directly exploit seabed resources
but that if it does have such power, the direct exploita-
tion operation should be insulated from administrative functions
so that such operations would not receive a competitive ad-
vantage. A principal concern seems to be that an enterprise
with operating authority might discriminate against exploiting
firms in favor of itself. Another concern is that through time
direct operating authority might lead to a monopoly on deep
seabed mining. These potential concerns in permitting the
authority to directly exploit might be reduced by insulating
the exploitative arm from any regulatory authority, by min-
imizing the role and discretion of the authority (i.e. an
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option similar to option B), and by prohibiting the use of
revenue sharing funds for financing of the direct exploitation
operation. Under these carefully circum.3cribed conditions
direct exploitive authority might not harm
U.S. interests.
Though it would seem preferable not to permit direct
exploitation, a U.S. position which permitted direct ex-
ploitation conditioned on acceptance of a non-discretionary
access system might provide a possible middle ground be-
tween the U.S. position and the advocates of an exclusive
operating enterprise. Such a position should be used only
should it become clear that agreement to giving an inter-
national authority legal power to directly exploit is
necessary to reach agreement on the deep seabed mining issue.
Option: If the Chairman of the De7egation, in consul-
tation with the Chairmen of the Task Force and the
senior representative of the agencies concerned, deter-
mines that it is necessary in order to achieve the principal U.S.
deep seabed negotiating objectives, the Delegation is author-
ized to support, in the context of a deep seabeds regime
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SECRET H-30
that meets the principal U.S. objectives, a power for
the authority to directly exploit s(-:abed resources,
provided that all direct exploitation functions are
insulated from administrative functions so as to
avoid discrimination in favor of the direct exploitation
operation and provided that international revenues
generated from other operations may not be used to
underwrite the direct exploitation operation. Such a
direct exploitation operation should have the following
attributes:
-- the system ensures non-discretionary access
by interested U.S. firms to deep seabed minerals under
reasonable conditions for exploitation;
--the exploitatiOn operation would have authority
to enter the market directly or through service con-
tracts or joint ventures;
-- the direct exploitation operation would be required
to compete for licenses or contracts and in all other res-
pects on equal terms with all other licensees or contracting
parties, whether states, groups of states, or private
companies;
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-- there would be no obligation for states to
participate in or financially contribute to the exploi-
tation operation;
-- to avoid a conflict of interest leading to
discrimination in favor of the direct exploitation
operation there would be a careful separation of operating
functions from administrative or licensing functions.
This would include a separation of personnel and chains
of responsibility;
-- international revenues from seabed resources
could not be used in any way subsidize the direct
exploitation operation;
-- to avoid creation of a monopoly on deep seabed
mining any direct exploitation operation would be
subject to the same rules and regulations as all other
operations including the rules and regulations to prevent
extraordinarily large claims to the deep seabed;
-- the direct eKploitation operation would be
subject to compulsory dispute settlement at least to the
same extent as all other operations and the authority
itself.
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Pros:
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H-32
(1) Support for aright to establish a parallel direct
exploitation Operation would greatly enhance the
negotiability of the U.S. approach for non-discretionary
access.
(2) Support for this position would be close to
our existing position since under the current U.S.
proposal the developing countries could form a joint
venture to compete on an equal basis with other
operators.
(3) This may satisfy the desire of at least
some developing countries to participate in the exploi-
tation of the "common heritage" while minimizing the
role of direct exploitation and preventing interference
with private exploitation.
(4) Our principal objections to direct exploitation
as it is usually described are its potential exclusion of
U.S. firms from the rnr
t, its potential monopoly character,
the possibility that such exploitation would become an
inefficient producer through politicization of its internal
structure, and the potential for discrimination in favor
of the direct exploitation operation. This proposal, however,
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H-33
does not exclude U.S. firms nor establish a monopoly
and it minimizes the risk of conflict of interest
which might lead to discrimination. To the extent
such a direct exploitation operation is inefficient,
it will compete poorly or go out of business.
(5) A developing country interest in a direct
exploitation operation which must operate under the
same rules and regulations may reduce the pressure
for broad or economically undesirable regulation.
(6) Since there will be many more first-generation
mine sites for manganese nodules than could be profitably
exploited for the near future, the existence of what
is in effect one more firm in the market would not
harm U.S. interests.
(7) If the U.S. cannot negotiate and support
this middle outcome, a less acceptable regime may become
part of the treaty without significant U.S. input and
over our objections. We would then be faced with a
decision whether to refuse to accept the treaty for this
reason and lose benefits achieved on other issues. It
is not clear, however, that a carefully structured direct
exploitation operation would significantly harm U.S.
interests.
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SECRET
(8) The non-discretionary access of U.S. firms
to deep seabed resources under reasonable conditions
for exploitation would in no way be impaired.
Cons:
(1) No matter how carefully constructed there
is some risk of discrimination by the authority in
favor of a direct exploitation operation.
(2) U.S. support for an international organization
engaging in direct commercial activities would be a
dangerous precedent which might be more difficult to
control in other settings.
(3) If an enterprise were structured to enable
it to operate through joint ventures or contracts with
private firms it is unnecessary for it also to have
the authority to enter into direct exploitation.
(4) Such diret exploitation operations would
provide additional competition for U.S. firms interested
in deep seabed mining.
(5) The full im?lications of this approach are unclear.
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III. Options concerning methods of funding of an
international authority (Select A or B)
H-35
Again assuming that the U.S. will continue to
support the creation of appropriate international machinery
with respect to deep seabed mining, the question of the
source of funding for the machinery may be an issue. The
U.S. approach thus far has been to allow the authority
to use funds generated by licensed exploitation activity
(e.g. license fees) for the payment of the administra-
tive expenses of the authority and to permit a first
call against international revenues
for the same purposes. Until sufficient
funds are generated in
this way, the authority may borrow and States may
agree to give sympathetic consideration to requests
for loans. A question has been raised whether to
continue along these lines or to shift to support
for a funding system along the iines of present United
Nations funding.
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SECRET H-36
Since the arguments in favor of one option are in
the arguments against the other, only "pro" arguments
will be presented under each.
Option A: The US should continue to oppose financing
the Authority by State contributions, and should continue to
support exclusive financing of administrative expenses from
international revenues from seabed mining, with borrowing
authority in earlly years before sufficient international
revenues are generated. (This would not of course preclude
voluntary state contributions, e.g., a one-time capital
contribution to get the authority started.)
Pros:
essence
(1) If income that would otherwise be used for
development assistance must be diverted to pay for
administrative costs, the developing countries are
less likely to support a large bureaucratic structure.
In fact, a number of LDCs have already made speeches
urging a small efficient organization in order to
protect benefits for all mankind.
(2) The history of UN funding suggests that the
US government will almost automatically pay a large
and perhaps unfair share under a state contibution system,
4nd that such contributions do not buy greater
influence and may even foster resentment.
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(3) From an economic point of view, it makes
more sense for the deep seabed operations to pay
the cost of the necessary machinery for their benefit
than it does for all taxpayers to, in effect, sub-
sidize the industry.
(4) The theory of US "control" through financial
contributions implies US withdrawal or violation of
its assessement obligations if it is dissatisfied. Since
the deep seabeds urganization would be established only
as part of a comprehensive treaty that also protects
our security and non-deep seabed interests, such a course'
would both violate our treaty obligation and be extremely
dangerous for our general oceans interests, including the
deep seabed mining rights of our nationals.
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SECRET H-38
Option B: The US Delegation is authorized to support
the position that funding of an international organization
for deep seabed mining shall be only by state contributions
in accordance with United Nations practice.
Pros:
(1) Since the U.S. would be a major contributor (up to
25% of the funding), we might have greater influence over the
organization.
(2) Since the organization would be dependent on
contributions, it would have a greater interest in avoiding
actions that abuse is authority.
(3) A self-financing organization has unpredictable
implications.
(4) The funding of the organization would be subject
to the US appropriations process.
IV. Computing financial obligations for the generation
of international revenues from deep seabed mining
Under all approaches implementation of the
principle of "the common heritage" requires a sharing
of revenues generated from deep seabed mining for
international community purposes. The financial obligations
required to generate international revenues should not be so
high as to interfere unduly with the orderly development of the
resource. In order not to impair stable conditions
for investment such revenue sharing requirements should
be either specifically set in the treaty or should be
set within a well-defined range in accordance with
specified criteria.
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SECRET
In establishing a baSi for revenue sharing it is
important to utilize an approach which will be simple
and easily administerable, easily understood in the
negotiation, and applicable to socialist as well as
capitalist and mixed systems. Similarly the approach
should seek to avoid introducing distortions in
market decisions and interfering with orderly development
In utilyzing a percentage royalty on production,
it is preferable that the royalty not apply to the
value added as a result of the transportation,
refining, and marketing operations. It is difficult,
however, to assign a value to manganese nodules at
the mine site. Accordingly it may be necessary to
use a technique of valuation roughly aimed at value
at the mine site. One such approach might be to value
the manganese nodules at the mine site by computing
the amount of each metal of commercial interest and
assigning a particular percentage royalty based on a
percent of the current market value of each metal. Another
technique would be to assign a particular low percentage
of the value of the metals as refined. This approach would
be self-adjusting as market forces raised or lowered
metal prices.
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Another possible basis for revenue sharing would
be a percentage sharing in kind of the production of maganese
nodules at the mine site. Production sharing, however, could
introduce additional administrative costs and could, unless
carefully structured, permit price manipulation by with-
holding from the market or dumping on the market large
quantities of stored nodules. It also gives the ISRA the
producers' share of increased revenue when the price of
commodities increases. Since production sharing may be
an arrangement preferred by developing countries, however,
it would seem pre:erable to retain some flexibility to
accept this approach if the Chairman of the Delegation
in consultation with the Chairman of the Task Force and
the senior representatives of the agencies concerned
determine it to be necessary and if any such system is
carefully structured to reduce administrative costs and
the potential for abuse. Production sharing is not a
preferable basis for revenue sharing, however, and should
be viewed only as a fallback position. There may also be
other basis for computing inttrnational revenues, such as rents,
a percentage of profits, a - two-tier system, or some other
system, all of which would only be acceptable if they were
so structured as to satisfy the criteria elaborated in this
section.
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SECRET H-41.
Recommendation: That the Chairman of the US Delegation,
in consultation with the Chairman of the Task Force and senior
representatives of the agencies concerned, is authorized to
support the computation of financial obligations for the
gederation of international revenues from manganese nodule
mining in seabed areas beyond national jurisdiction as a
royalty on production at an economically viable rate not to
exceed 10% of the value of the manganese nodules, or computed
r-
pursuant to some other acceptable method. The criteria in
NDSM 62 for determining the rate of financial obligations
would continue to apply, namely "...a level that will make
a substantial contribution to development, render participation
in the Treaty attractive to the necessary signatories, and
at the same time encourage exploration and exploitation of
the seabeds."
This recommendation would give the Delegation maximum
flexibility to support any basis for computing financial
obligations for maganese nodule mining that satisfies oUr
objectives. If a range of rates were to be set out in the
treaty, rather than a specific rate, then the Delegation
would support an upper limit consistent with this section.
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SECRET H-42
V. Allocation of international revenues
It may be helpful to set out the principal approach
the Delegation should take on the functional uses of
seabed revenues for international community purposes,
whether derived from deep seabed or coastal seabed
exploitation, although in this area the Delegation should
retain maximum flexibility. Aside from the divergence
of views on use of seabed revenues as an offset against
_
administrative expenses of the international authority,
the U.S. approach has been that revenues should go for
general development assistance, assistance for enumerated
types of oceans-related projects, and adjustment assistance.
We are flexible on the question of whether the treaty
should specify a priority among these purposes.
With respect to adjustment assistance, the
Delegation should take the view that such assistance
should be available to countries whose foreign exchange
earnings from particular mineral exports suffer signifi-
cantly as a result of seabed mineral exploitation. Eligi-
bility might be
agency (perhaps
be time-limited
caused by this
there would be
offered.
certified by a competent international
IMF), and the assistance provided would
and confined to overcoming difficulties
new source of supply. With these provisos,
flexibility on the terms of assistance
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Ocean users' assistance might be available to
maritime countries or groups of countries within a
regional or sub-regional framework which have demonstrated
need to improve their marine science capacity. Such
assistance would be limited to relatively small-scale
technical assistance. Similarly, the Delegation might
support limited assistance for community oceans projects
(e.g., straits dreding) or community efforts to ensure
protection of the marine environment. The Delegation
should be free to decide on the basis of tactical consid-
erations whether to propose that a fixed small percentage
(possibly 5 percent) of seabed revenues be set aside for
such ocean users' assistance, after the administrative
costs of the international authority (if included in the
U.S. position) have been met, or whether it would be
preferable for the U.S. to remain silent on this issue.
In discussing the use of seabed revenues for
international development assistance, the Delegation
should support sound principles and practices of develop-
ment assistance in ord3r to assure optimum utilization
of this new source of funds. This suggests that the U.S.
Delegation should favor a system of funds distribution
which makes maximum use of multilateral development
agencies to program such assistance. However, in order
to preserve negotiating flexibility, the Delegation would
also be authorized to agree to direct allotments to recipients.
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With respect to allocation of funds, if the U.S. takes a
position on these issues, it should support an approach
by which eligibility of countries to :eceive general
development assistance funds would be established on
the basis of broadly conceived criteria, but possibly
including some appropriate preferences for the least
developed or landlocked and shelf locked states.
With respect to all of these issues concerning
allocation of revenue sharing funds, the Delegation
should retain flexibility to determine in the light of
U.S. development assistance goals the proposals and
tactics which would best serve U.S. interests in the
Law of the Sea negotiations.
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L. Compulsory Settlement of Disputes
We do not believe any change is necessary in our instructions
regarding compulsory dispute settlement or its importance to
a settlement in general and in relation to the satisfactory
resolution of specific issues. However certain clarifications
and adjustments are needed, as recommended below.
1) Scope of dispute settlement and procedures
We have specifically proposed compulsory dispute settle-
ment for all parts of a Law of the Sea treaty except those
sea
dealing with the territorial / and straits. We introduced
a new proposal last summer on procedures for such dispute
settlement. Most states havc not, however, noticed the
ommission of a reference to dispute settlement in our territorial
sea and straits articles, and we have not made the point
explicit while studying the issue. We have reached the
conclusion that the underlying problem in straits relates to
warships and state aircraft, that this problem is not limited
to the territorial sea and straits, and that if such vessels
and aircraft are excluded, it would be preferable to take the
position that our compulsory dispute settlement proposal applies
to all parts of the treaty. We can accomplish this
with some fairly simple adjustments in the language of our
dispute settlement proposal, and can surface the idea as part
of our efforts to achieve Soviet support for our position.
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Recommendation:
That compulsory dispute settlement should apply to all
parts of the Law of the Sea treaty, including straits and
but
the territorial sea,/dispute settlement would not apply to
any dispute regarding a vessel or aircraft entitled to sov-
ereign immunity under international law without the express
consent of the flag State. In the negotiation we will con-
tinue to protect other military uses of theibcean, but not
necessarily through specific treaty language.
-r ? -
2) Suits by private parties /
Under the-U.S. proposal, only Sates can normally
sue each other. There are two exceptions: (1) an emergency
procedure by a vessel owner to secure release of his vessel
where the treaty requires prompt release (this is not an
adjudication on the merits) and (2) arbitration of invest-
ment disputes on the continental margin, where a foreign
company that has contracted with a coastal State may_bring_
it to arbitration, if the State of nationality of the company
has not brought an action itself and if the company has
not waived its right in the investment agreement with the
coastal State. States do not like to be sued by individuals
outside their own courts, and we believe even these limited
?exceptions will be hard to negotiate. We would not wish to place
more burdens on an already difficult compulsory dispute
settlement negotiation, and accordingly are opposed to getting
out front with supporting any further provision for private suits
against States in an international tribunal.
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However, if other delegations propose-further
provisions in this regard without evoking major opposition,
and if the Chairman of the Delegation in consultation with the
Chairman of the Task Force and senior representatives of the
agencies concerned determine that this would not jeopardize our
ability to achieve compulsory dispute settlement, we could
support an expansion of the instances in which an international
tribunal could hear cases between States and private parties.
On the other hand, there may be less resistance to
private suits against international organizations. U.S.
environmentalists strongly desire an independent right to
ensure compliance with international environmental require-
ments through compulsory dispute settlement, as they fear
the U.S. and other States might have political constraints
on doing so.
We have already proposed that companies engaged in deep
seabed operations be able to sue the Seabed Authority. We believe
we could support the general idea of a suit by private environ-
mentalists (or possibly UNEP or UN recognized non-governmental
international environmental organizations) against the Seabed
Authority to ensure compliance
with 'environmental requirements. We are uncertain of the
negotiability of such an idea, but see no compelling reasons
not to advance it, and would accordingly plan to do so. However,
no formal article would be introduced until we had a reasonable
assessment of the reaction.
As for States, we have already proposed that they
establish domestic procedures for environmental suits,
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and this is about as far as we think it is possible to go.
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and this is about as far as we think it is possible to go.
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LAW OF THE SEA:
THIRD UNITED NATIONS
CONFERENCE
-^
The DEPARTMENT of STATE BULLETIN
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Reprinted from The Department of State Bulletins of
April 15, August 5, and September 23, 1974. The
Bulletin, the official record of U.S. foreign policy, is
published weekly and is available for subscription from
the Superintendent of Documents, U.S. Government
Printing Office, Washington, D.C. 20402, at $29.80 a
year, domestic.
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CONTENTS
Page
U.S. Position on Law of the Sea Reviewed
Statement by Mr. Moore, March 14,1974 3
U.S. Defines Position on 200-Mile Economic Zone
at Conference on the Law of the Sea
Statement by Ambassador Stevenson, July 11 9
U.S. Gives Position on Seabed Regime, Scientific
Research, Straits, and Economic Zone at Law of
the Sea Conference
Statement by Ambassador Stevenson, July 17 14
Statement by Ambassador Stevenson, July 19 18
Statement by Mr. Moore, July 22 21
Statement by Ambassador Stevenson, August 1 24
U.S. Draft Articles on Economic Zone and
Continental Shelf 26
Alternative Texts of Draft Articles on
Settlement of Disputes 30
Ambassador Stevenson Reviews Work of Law of the
Sea Conference, August 28 35
Department Reports to Congress on Law of the Sea
Conference and Discusses Legislation on 200-Mile
Fisheries Jurisdiction, September 5 37
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U.S. Position on Law of the Sea Reviewed
Following is a statement made by John
Norton Moore, Chairman of the National Se-
curity Council Interagency Task Force on the
Law of the Sea and Deputy Special Repre-
sentative of the President for the Law of the
Sea Conference, before the Subcommittee on
Immigration, Citizenship, and International
Law of the House Committee on the Judiciary
on March 14.1
I welcome the opportunity to meet with
this subcommittee to review the U.S. position
in the law of the sea negotiations. These
negotiations are among the most significant
in the Nation's history, and it is essential
that Congress be fully informed. I am accom-
panied this morning by representatives of the
Commerce, Defense, Interior, Justice, and
State Departments.
For the past three years, the U.N. Com-
mittee on the Peaceful Uses of the Seabed
and the Ocean Floor Beyond the Limits of
National Jurisdiction, popularly known as
the Seabed Committee, has been engaged in
preparatory work for a comprehensive Con-
ference on the Law of the Sea. This Third
U.N. Conference on the Law of the Sea began
with a two-week organizational session at
U.N. Headquarters in New York December
3-15 of last year. The conference will resume
this summer with a 10-week substantive ses-
sion to be held in Caracas, Venezuela, from
June 20 to August 29. The U.N. General
Assembly has indicated that any subsequent
session or sessions which may be necessary
should be held no later than 1975.
The conference will be the largest pleni-
' The complete transcript of the hearings will be
published by the committee and will be available
from the Superintendent of Documents, U.S. Govern-
ment Printing Office, Washington, D.C. 20402.
potentiary conference ever held, with 150
nations invited. It will also be one of the most
important. The choice is whether the inter-
national community can agree on a compre-
hensive legal regime for the world's oceans,
ushering in an era of cooperation and
development, or whether the oceans will serve
instead as an increasing source of conflict
among nations.
In 1958 and again in 1960, at the First and
Second U.N. Conferences on the Law of the
Sea, the nations of the world attempted to
resolve the problems associated with compet-
ing uses of the oceans. The four Geneva
conventions on the law of the sea that
emerged from the first conference were par-
tially successful in codifying the international
law of the sea. These conventions were the
Convention on the Territorial Sea and Con-
tiguous Zone, the Convention on the High
Seas, the Convention on the Continental
Shelf, and the Convention on Fishing and
Conservation of the Living Resources of the
High Seas.
Neither in 1958 nor in 1960, however, were
nations able to agree on the breadth of the
territorial sea, the extent of fisheries juris-
diction, or the outer limits of the coastal
states' exclusive rights over continental shelf
resources. These traditional problems were
soon combined with new problems, such as
the growing need for protection of the ma-
rine environment, and with uncertainties
resulting from advances in technology, such
as the mining of manganese nodules from the
deep seabed.
With these unresolved problems as back-
ground, in December 1970 the U.N. General
Assembly scheduled a comprehensive Con-
ference on the Law of the Sea to commence in
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1973. The U.N. Seabed Committee, which has
held six sessions since its formation, was
charged with preparations for a conference
to deal with a multilateral treaty regime for
the breadth of the territorial seas, unimpeded
transit through and over international
straits, living resources, mineral resources of
the continental shelf and margins, mineral
resources of the deep seabed, protection of
the marine environment, marine scientific re-
search, and the settlement of disputes.
Territorial Sea and International Straits
The first of these categories is the breadth
of the territorial sea and protection of transit
through and over international straits. For
nearly 200 years the United States has ad-
hered to a territorial sea of three miles and
has maintained that three miles is the maxi-
mum breadth recognized under international
law.
In an attempt to develop worldwide consen-
sus on the breadth of the territorial sea, the
United States has proposed that, in the con-
text of an overall satisfactory settlement, it
would be willing to accept a 12-mile terri-
torial sea. Such an extension of the territorial
sea from 3 to 12 miles, however, would over-
lap over 100 straits between 6 and 24 miles
in width which, under a 3-mile territorial
sea, now include high seas.
Because of the importance of straits as
avenues for international navigation, the
United States has coupled its willingness to
agree to a 12-mile territorial sea with recog-
nition of a treaty right of unimpeded transit
through and over straits used for interna-
tional navigation. Without clear recognition
of such a right of unimpeded transit, it might
be possible to assert that only the right of
innocent passage would apply even in such
strategically important straits as Gibraltar.
The traditional doctrine of innocent pas-
sage evolved long before the advent of sub-
marines, supertankers, and aircraft and was
premised on a narrow territorial sea. Partly
because of this historical beginning, the
innocent passage regime does not permit sub-
merged transit by submarines or overflight
by aircraft. Moreover, there is an insuffi-
ciently agreed international understanding of
what passage is "innocent." As a result there
is always a danger of subjective interpreta-
tion of "innocence," which is defined as pas-
sage that is not prejudicial to the "peace,
good order or security" of the coastal state.
Some strait states have asserted, for example,
that large petroleum tankers or nuclear-pow-
ered vessels are inherently noninnocent.
It has never made sense to apply to straits
used for international navigation a legal doc-
trine developed to govern passage in the
territcrial sea. Unlike the territorial sea in
general, international straits serve as access
and connecting points for large areas of the
oceans. As such, transit through straits is
essential to meaningful exercise of the high
seas rights of all states in these vast areas.
Functionally, then, straits are quite distinct
from other territorial sea areas. And because
of their special prominence, the potential for
conflict from an uncertain legal regime is
greatly increased in straits.
To avoid these and other difficulties, the
United States has submitted a draft treaty
article that would provide a right of unim-
peded navigation through and over interna-
tional straits. This right is less than that
presently exercised under existing high seas
principles and is limited to a right in inter-
national straits to move through the strait
in the normal mode for the vessel or aircraft.
The United States has also made it clear
that it recognizes the legitimate safety and
pollution concerns of straits states. Accord-
ingly, we have proposed that surface ships
transiting straits observe IMCO [Intergov-
ernmental Maritime Consultative Organiza-
tion] traffic separation schemes and that
state aircraft normally comply with ICAO
[International Civil Aviation Organization]
regulations and procedures. We have also
proposed that strict liability apply for dam-
age caused by deviations from such IMCO
or ICAO regulations. Our objective is to
find a balance between the reasonable con-
cerns of strait states and the need of the
international community for guarantees of
meaningful high seas usage.
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limited to military vessels and aircraft. We
are equally concerned about unimpeded
transit for commercial vessels. The energy
dilemma has brought widespread attention
to the fact that a nation's well-being may be
intimately linked to an adequate and secure
supply of petroleum and other basic im-
ports. All nations must have reliable inter-
national legal rights to bring necessary re-
sources through international straits.
For these reasons, we have repeatedly
stated that agreement on a 12-mile territo-
rial sea must be coupled with agreement on
unimpeded transit of international straits,
which together constitute basic elements of
our national policy.
Management Jurisdiction Over Fish Stocks
The second category of issues in the ne-
gotiations is living resources. Once the vast
fish stocks of the oceans were thought to be
inexhaustible. The advent of more efficient
fishing techniques and a growing demand for
fisheries products, however, have led to seri-
ous depletion of some stocks and have dem-
onstrated that there is a pressing need for a
rational conservation and allocation system
for the living resources of the oceans.
In fact, some estimates indicate that the
world community is approaching the maxi-
mum sustainable yield for many traditional
species of fish within the decade. Against
this background of increasing fishing pres-
sure, it is of particular concern that a re-
gime be established which will solve the
"common pool" problem in fisheries and
grant jurisdiction to manage fish stocks
which is essentially coextensive with the
range of those stocks.
To meet these needs the United States has
proposed broad coastal state control over
coastal and anadromous stocks coextensive
with the range of each species and interna-
tional management of highly migratory spe-
cies. Under this approach, coastal nations
would have broad resource-management ju-
risdiction over coastal stocks throughout
their migratory range. The coastal nations
rights to such coastal stocks within the al-
lowable catch up to their fishing capacity;
other nations would ?be entitled to harvest
the remaining allowable catch.
Under this approach coastal nations would
also have management jurisdiction and pref-
erential rights over anadromous stocks such
as salmon throughout their range on the
high seas. Such fish spawn in the fresh
waters of coastal nations, and those nations
must bear the expenses necessary to provide
an environment in which the stock can flour-
ish. Moreover, the concepts of conservation
and full utilization are best served for these
species by harvesting close to the coast as
the fish return from their high seas journey.
The coastal nation is clearly in the best po-
sition to manage, conserve, and harvest these
anadromous stocks.
On the other hand, highly migratory spe-
cies such as tuna cover vast distances
through the waters off many nations. The
only practicable way to manage and con-
serve such highly migratory resources is
through international or regional arrange-
ments. Accordingly, our approach provides
for international or regional management
for such stocks. No single coastal state
is in a position to conserve these stocks, and
coastal state control would neither provide
conservation protection nor assure coastal
nations of an economically viable fishery for
highly migratory species.
Continental Margin Mineral Resources
Turning to the mineral resources of the
continental margins, the Continental Shelf
Convention allows coastal states exclusive
rights to explore and exploit these natural
resources out to the 200-meter isobath, and
beyond, to where the depth of the superja-
cent waters admits of exploitation. _
Since World War II, there have been a
number of technological improvements which
have allowed offshore production to take
place in increasingly deeper water. It is
now clear that seabed resource jurisdiction
could extend well beyond the 200-meter
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depth, though there is still uncertainty as
to the outer limit of such jurisdiction.
To meet these present realities and to
encourage a more definite legal regime, the
United States has stated that we are pre-
pared to accept coastal state resource juris-
diction in a broad coastal seabed economic
area. It is also our position that in this
area the coastal state would have exclusive
rights over offshore installations affecting
its economic interests. While we have not
indicated a position on the limits of such an
area, the area must be subject to appropri-
ate international standards for:
1. Protection of other uses of the area,
particularly protection of navigation and
other high seas freedoms;
2. Preservation of the marine environ-
ment;
3. Protection of the integrity of agree-
ments and investments made in the area;
4. Provision for compulsory dispute set-
tlement; and
5. Provision for revenue sharing for in-
ternational community purposes.
One potential danger in these negotiations,
both with respect to living and nonliving
resources, is that some coastal states may
attempt to acquire exclusive rights to off-
shore areas instead of claiming just the func-
tional rights necessary for efficient develop-
ment of the resources of these areas. One
key to a successful conference will be to
separate jurisdiction over resources from ju-
risdiction over navigational freedoms and
other nonresource uses and to carefully safe-
guard the nonresource uses.
History has demonstrated that nations
making claims to jurisdiction over high seas
areas for one purpose have a tendency to
expand those claims to jurisdiction for other
purposes. For example, the figure of 12
miles was first used almost entirely in con-
nection with claims for an exclusive fishing
zone. Today, approximately half of the
world's coastal nations claim a 12-mile terri-
torial sea. Even the extreme 200-mile ter-
ritorial sea claims seem to have their genesis
largely in resource concerns. It is important,
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then, that the conference insure that coastal
state rights adjacent to a 12-mile territorial
sea are limited to those needed for resource
development and that the residuum of high
seas freedoms remains in the international
community.
Access to Resources of Deep Seabed
Beyond the world's continental margins,
a new ocean use is developing. New marine
technology will shortly permit the commer-
cial exploitation of manganese nodules from
the deep ocean floor. The orderly develop-
ment of this resource, however, is threatened
by differing perceptions concerning the ap-
plicable legal regime. We believe that timely
international agreement on an effective in-
ternational regime for the development of
these deep seabed resources is the best way
to assure the stable investment climate
needed to encourage development and to in-
sure adequate protection of the marine en-
vironment.
Such an approach could also provide for
the sharing of revenues from deep seabed
mining for international community pur-
poses, particularly assistance to developing
nations. We are mindful that for this ap-
proach to be successful the international com-
munity must conclude a timely agreement
and one which will genuinely promote effi-
cient development. In this connection we
have indicated that we would not view agree-
ment as timely unless it were reached in
accordance with the General Assembly sched-
ule calling for completion of the work of
the conference in 1974 or 1975 at the latest.
Similarly, for an international approach
to be successful, the agreement must genu-
inely promote efficient development. We be-
lieve that such development will best be
served by a legal order which permits access
to the resources of the deep seabed under
reasonable conditions that will facilitate in-
vestment. For that reason, any machinery
established could not have discretion to deny
access to those resources or to alter the con-
ditions upon which security of investment
depends.
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Jected to the Jurisdiction of their neighbors.
For these and other reasons we have strongly
urged that standards for vessel-source pollu-
tion should only be set internationally
through IMCO, by flag states for their own
vessels, or by port states for vessels using
their ports.
A fifth category of principal issues in the
negotiations is protection of the marine en-
vironment. The environment was one of
the largely overlooked subjects at the 1958
and 1960 conferences. In contrast, today we
are acutely aware of the need for adequate
protection of the marine environment.
The Stockholm Conference on the Human
Environment brought worldwide attention
to the need for multilateral action on this
subject. And it is widely understood that
the Third U.N. Conference on the Law of
the Sea must establish an adequate juris-
dictional basis for protection of the marine
environment against threats from all sources.
This very awareness of the need to pro-
tect the marine environment, however, may
hold a subtle danger for the law of the sea
unless we are careful to functionally dis-
tinguish the differing threats to the marine
environment. Some coastal states have
sought jurisdiction for protection of the ma-
rine environment from all sources in an area
coextensive with their resource claims. With
respect to pollution from exploration and
exploitation of seabed resources, coastal
states should have this authority subject to
an obligation to observe at least minimum
international standards.
But with respect to vessel-source pollution,
to recognize coastal state jurisdiction to
make and enforce pollution-prevention stand-
ards such as construction standards for ves-
sels could seriously endanger freedom of
navigation. There are 119 coastal nations,
and if each had jurisdiction to set construc-
tion standards for vessels it could create a
hodgepodge of conflicting standards. Such
jurisdiction would also permit decisions on
standards to be made solely by coastal na-
tions without the careful balancing of mari-
time and coastal interests which would re-
sult from an international solution.
Moreover, if coastal nations were to have
jurisdiction capable of affecting navigational
freedom in an area as broad as 200 miles, a
majority of all those coastal nations would
be totally "zone locked" with no access to any
ocean on which they face without being sub-
Marine Scientific Research
A sixth principal category of issues in the
negotiations is marine scientific research.
Marine research has benefited all mankind
and will become even more important in the
years ahead as we seek greater information
needed for adequate protection and rational
use of the marine environment. While inter-
national law generally recognizes freedom of
research beyond the territorial sea, the exist-
ing Continental Shelf Convention subjects
research concerning the continental shelf and
undertaken there to the consent of the coastal
state.
The Shelf Convention, though, also creates
an obligation normally not to withhold con-
sent if the request is submitted by a qualified
institution with a view to purely scientific re-
search into the physical or biological charac-
teristics of the continental shelf. There is a
further 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.
Unfortunately, the experience with the
Shelf Convention regime for scientific re-
search has not been good. Some states have
arbitrarily denied consent. Others have im-
posed burdensome conditions on research or
simply not replied to the request for permis-
sion. On the basis of this experience, we feel
that it is preferable to meet the legitimate
concerns of coastal nations by creating a
series of obligations binding on the research-
ing nations rather than by giving coastal
nations the right to withhold consent.
Accordingly, we have proposed that a na-
tion planning a research voyage in areas
where the coastal state has resource juris-
diction should be required to provide the
concerned coastal nations with reasonable
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advance notification of its intent to engage in
research off their shores. Researching states
would certify that the research will be con-
ducted in accordance with the treaty by a
qualified institution with a view to purely
scientific research.
They would also insure that the coastal
state had all appropriate opportunities to
participate or be represented in the research
project directly or through an appropriate
international institution, that all data and
samples were shared with the coastal state,
that significant research results were suitably
published, that the coastal state was assisted
in assessing the data and results, and that
there was compliance with all applicable
international environmental standards.
We believe this approach achieves a better
balance between the interests of coastal na-
tions and the international community than a
consent regime. Similarly, we are convinced
that this approach is in the common interest
of all nations in better promoting a free flow
of scientific knowledge about the earth we
share in common.
Dispute Settlement and Entry Into Force
Finally, it is important that any com-
prehensive oceans law treaty also establish
adequate machinery for the settlement of
disputes. Machinery which would insure
compulsory third-party settlement of disputes
arising under the treaty would serve to mini-
mize conflict as well as contribute to in-
creased stability of expectations. As such, we
have proposed the creation of a new oceans
tribunal which would have broad jurisdiction
to deal with such disputes. We particularly
hope that this issue can be addressed early in
the conference and that all nations will rec-
ognize their strong interest in adequate dis-
pute settlement procedures.
To insure that advancing technology will
not overtake the ability of the international
community to achieve cooperative solutions,
8
aftEMPTIP35290PR81159PRJA that
portions of the new oceans law treaty, par-
ticularly those relating to deep seabed mining
and fisheries, should go into force on a pro-
visional basis. Provisional application of
those portions of the treaty would enable a
timely solution to these problems without
waiting for the process of international rati-
fication to bring the new treaty into full
force. The concept of provisional application
is well respected in international law and
would in no way prejudge the negotiation.
The Third U.N. Conference on the Law of
the Sea is, in a very real sense, engaged in
drafting a basic charter for over two-thirds
of the earth's surface. In drafting that char-
ter, the challenge is to strengthen shared
community rights in the oceans, including
navigational freedoms and marine scientific
research, while building a more definite and
rational regime for the use of the resources
of the oceans, for the protection of the ma-
rine environment, and for the resolution of
disputes.
In meeting that challenge, the best guide
is a careful functional division of ocean uses.
The nature of highly migratory species re-
quires a different jursidictional regime than
that appropriate for coastal and anadromous
species. Similarly, the prevention of pollution
from seabed exploration and exploitation
requires a different regime than that for
vessel-source pollution. Conceptualistic ap-
proaches, such as those which seek to resolve
the problem of international straits by as-
similating them to national territory, or the
problems of rational resource management
by an extension of the territorial sea, have no
place in a modern law of the sea.
The United States will go to Caracas pre-
pared to negotiate a comprehensive oceans
law treaty. If the conference can keep before
it the fundamental need to examine each
issue on its merits, it will be well on the way
to a new treaty that will serve the common
interests of all nations.
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U.S. Defines Position on 200-Mile Economic Zone
at Conference on the Law of the Sea
Following is a statement made before the
Third U.N. Conference on the Law of the Sea
at Caracas on July 11 by John R. Stevenson,
Special Representative of the President and
U.S. Representative to the conference.
l'ress relense O I ilate,l July II
Mr. President [Hamilton Shirley Amera-
singhe, of Sri Lanka], distinguished repre-
sentatives: First of all, I want to express on
behalf of my delegation our sincere thanks
to the Venezuelan Government for the splen-
did arrangements it made for the conference
and for us. It is truly a miracle that since
the. invitation was extended by Venezuela
and accepted by the General Assembly of the
United Nations in December, all the prepara-
tions should have been carried out so effi-
ciently with such careful attention to our
needs and our comfort.'
Three Auguries of a Successful Conference.
Mr. President, the practical and favorable
working conditions which the Venezuelan
Government has so graciously provided are
the first of three auguries of a most success-
ful conference. The other two are the adop-
tion on schedule by consensus of the rules of
procedure and, second, the constructive, mod-
erate tone and the developing consensus on
substance reflected in the statements given
in the last two weeks.
Adoption of Rules of Procedure. The adop-
tion of the rules of procedure on schedule by
consensus was significant because these rules
are a reasonable accommodation between
those who wished to avoid premature voting
Ambassador Stevenson delivered the opening par-
agraph in Spanish.
and those who were concerned about undue
delay. It was also significant, Mr. President,
because it showed what inspired, firm, and
sensitive leadership, as provided by you, sir,
can do in reconciling differences and leading
us to a generally acceptable result. You have
set a high standard for our committee chair-
men, but knowing and respecting all of them
as I do, I am convinced that the team of
Eng,o, Aguilar, Irankov, and Beesley [Paul
Bamela Engo, of .Cameroon; Andr?guilar,
of Venezuela; A. Yankov, of Bulgaria; J. A.
Beesley, of Canada] will live up to this chal-
lenge. The conference has selected its leader-
ship with care and with great wisdom.
Moderate and Constructive Tone of Gen-
eral Debate. Our delegation has noted with a
growing sense of appreciation and optimism
for the future the generally moderate, con-
structive tone of the statements made in the
course of the last two weeks. Only very few
delegations have departed from this general
pattern, misrepresenting past events and the
present positions of some delegations, includ-
ing our own.
We are not here to engage in mutual re-
criminations. We must roll up our sleeves
and get down to the practical business of
drawing up a generally acceptable constitu-
tion for the oceans before disputes over con-
flicting uses of the same ocean space and uni-
lateral action by individual states put such
agreement out of our reach.
Growing Consensus on Limits of National
and International Jurisdiction. In the course
of listening to and reading the statements
made during the last two weeks, I have been
struck by the very large measure of agree-
ment on the general outlines of an overall
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settlement. Most delegations that have spoken
have endorsed or indicated a willingness to
accept, under certain conditions and as part
of a package settlement, a maximum limit of
12 miles for the territorial sea and of 200
miles for an economic zone, and an interna-
tional regime for the deep seabed in the area
beyond national jurisdiction.
The United States has for a number of
years indicated our flexibility on the limits of
coastal state resources jurisdiction. We have
stressed that the content of the legal regime
within such coastal state jurisdiction is more
important than the limits of such jurisdic-
tion. Accordingly, we are prepared to accept,
and indeed we would welcome, general agree-
ment on a 12-mile outer limit for the terri-
torial sea and a 200-mile outer limit for the
economic zone, provided it is part of an ac-
ceptable comprehensive package including a
satisfactory regime within and beyond the
economic zone and provision for unimpeded
transit of straits used for international navi-
gation.
There remain two issues with respect to the
limits of coastal state economie jurisdiction
beyond 200 miles with which the conference
must deal: jurisdiction over the resources of
the continental margin when it extends be-
yond 200 miles and jurisdiction over anadro-
mous fish such as salmon, which originate in
coastal rivers but swim far out into the ocean
before returning to the stream of their birth
to spawn and die.
A number of states have expressed the view
that, under the Continental Shelf Convention
and the continental shelf doctrine of custom-
ary international law as interpreted by the
International Court of Justice, they have
rights over the resources of the continental
margin and that they will not accept any law
Of the sea treaty which cuts off the rights at
200 miles.
Other states are reluctant to reduce the
common heritage of mankind by recognizing
coastal state jurisdiction beyond 200 miles.
Still others, including the United States, have
suggested an approach which gives coastal
states the limit they seek but provides,
through uniform payments of a percentage
10
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of the value of production, for the sharing by
other states in the benefits of the exploitation
of the nonrenewable resources in part of the
area. This would seem to be an equitable ba-
sis for an accommodation.
With respect to salmon, the views of my
country are well known. This species of fish
depends for survival on the maintenance at
considerable economic cost of a favorable en-
vironment in coastal rivers and streams and
can effectively be conserved and managed
only if caught when returning to the fresh
waters of its origin in the internal waters,
territorial sea, or economic zone of the host
state. The very survival of this species of
fish may depend on the action we collectively
take at this conference.
Consensus on limits of national and inter-
national jurisdiction is conditional on the na-
ture of coastal and international regimes
within these limits. The statements to date
make clear that in the case of a large number
of states whose agreement is critical for an
effective, generally acceptable treaty, the
growing consensus on the limits of national
jurisdiction?i.e., a maximum outer limit of
12 miles for the territorial sea and of 200
miles for the economic zone?is conditional
on a satisfactory overall treaty package and,
more specifically, on provisions for unim-
peded transit of international straits and a
balance between coastal state rights and du-
ties within the economic zone.
Territorial Sea. With respect to the coastal
states' right to establish a territorial sea of
up to a maximum of 12 miles, it is the view
of many delegations, including our own, that
general recognition of this right must be ac-
companied by treaty provisions for unim-
peded passage through, over, and under
straits used for international navigation.
The formulation of treaty language which
will maintain a nondiscriminatory right of
unimpeded transit while meeting coastal state
concerns with respect to navigational safety,
pollution, and security will be one of the Sec-
ond Committee's most important tasks.
Economic Zone. Our willingness and that
of many other delegations to accept a 200-
mile outer limit for the economic zone de-
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pends on the concurrent negotiation and ac-
ceptance of correlative coastal state duties.
The coastal state rights we contemplate
comprise full regulatory jurisdiction over ex-
ploration and exploitation of seabed re-
sources, nonresource drilling, fishing for
coastal and anadromous species, and installa-
tions constructed for economic purposes.
The rights of other states include freedom
of navigation, overflight, and other nonre-
source uses.
With respect to the zone as a whole, we
contemplate coastal state duties to prevent
unjustifiable interference with navigation,
overflight, and other nonresource uses and
to respect international environmental obli-
gations. With regard to the seabeds and eco-
nomic installations, this includes respect for
international standards to prevent interfer-
ence with other uses and to prevent pollution.
With regard to fishing, this includes a duty
to conserve living resources.
For the seabeds, we also contemplate a
coastal state duty to observe exploration and
exploitation arrangements it enters into.
For fisheries, to the extent that the coastal
state does not fully utilize a fishery resource,
we contemplate a coastal state duty to permit
foreign fishing under reasonable coastal state
regulations. These regulations would include
conservation measures and provision for har-
vesting by coastal state vessels up to their
capacity and could include the payment of a
reasonable license fee by foreign fishermen.
We also contemplate a duty for the coastal
state and all other fishing states to cooperate
with each other in formulating equitable in-
ternational and regional conservation and al-
location regulations for highly migratory
species, taking into account the unique mi-
gratory pattern of these species within and
without the zones.
The negotiation and elaboration of these
duties is a critical responsibility of the Sec-
ond Committee.
With respect to the related assertions by a
number of states of coastal state plenary ju-
risdiction over scientific research and vessel-
source pollution throughout the economic
zone, the statements made clear that the will-
ingness of many delegations, including my
own, to negotiate on the basis of conditional
acceptance of a 200-mile economic zone does
not include acceptance of a requirement of
coastal state consent for scientific research
and coastal state control over vessel-source
pollution within the zone.
For our part, we believe that, as an al-
ternative to coastal state consent, a series of
obligations should be imposed on the re-
searcher and his flag state to respect coastal
state resource interests in the zone. The ob-
ligations would include advance notification,
participation, data sharing, assistance in sci-
entific research technology and in interpreta-
tion of data, and compliance with applicable
international environmental standards.
Vessel-source pollution presents a trouble-
some problem to the entire international com-
munity, including coastal states. At the same
time, interference with freedom of naviga-
tion must be prevented. We believe interna-
tional standards enforced by flag and port
states, with provision for specific additional
coastal state enforcement rights, can accom-
modate these legitimate interests. In this con-
nection, we believe the coastal state may be
authorized to take enforcement action in
emergencies to prevent imminent danger of
major harmful damage to its coast, or pur-
suant to a finding in dispute settlement that a
flag state has unreasonably and persistently
failed to enforce applicable international
standards on its flag vessels. Of course, flag
and port states would retain their right to
set higher standards.
While important differences in our posi-
tions nmain to be resolved in this session, we
are heartened as we embark in these nego-
tiations by the realization that most states
want to insure both effective prevention of
vessel-source pollution and protection of nav-
igational freedoms.
We hope that the Third Committee can
make major progress in producing agreed ar-
ticles on these scientific research and pollu-
tion questions.
International Seabed Regime Beyond Na-
tional Jurisdiction. Just as coastal state
rights within the zone must, if we are to
reach agreement, be balanced by duties, the
international authority's jurisdiction over the
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exploitation of the deep seabed's resources?
the common heritage of mankind?must be
balanced by duties that protect the rights of
individual states and their nationals?most
critically, in our view, their right to nondis-
criminatory access under reasonable condi-
tions to the seabed's resources on a basis
that provides for the sharing of the benefits
of their exploitation with other states.
The statements made do indicate that there
are substantial differences among us in our
interpretation and proposed implementation
of the common-heritage principle. Both de-
veloping and developed countries have many
aspirations concerning the common heritage;
in some cases these are in harmony and in
others they are not. My delegation believes
that on a variety of issues which seem on the
surface to present a wide gulf we are closer
together than we think. Let us employ every
possible method of work to insure that we
find these points of harmony and proceed at
once to reflect this harmony in draft articles.
This, we believe, is the principal task before
the First Committee at this session.
Interest of Landlocked and Geographically
Disadvantaged States. Most prior speakers
have referred to the desirability, indeed the
necessity, of providing special benefits ? in a
comprehensive law of the sea treaty for the
landlocked and geographically disadvantaged
states. The most widely supported proposals
are that landlocked states' right of access to
the sea and special rights in the fisheries of
adjacent coastal states be recognized.
Although these recommendations do not di-
rectly affect the United States, we applaud
coastal states' willingness to provide these
benefits as part of an overall equitable and
widely acceptable settlement, and we will of
course support such provisions.
Much more controversial is the proposal
of some landlocked and other geographically
disadvantaged states that they participate in
the benefits of the exploitation of nonrenew-
able resources?principally petroleum and
natural gas?of the continental margin,
either through a direct right of access to
neighboring coastal states' continental mar-
gins or by the establishment of limits of
coastal state jurisdiction that will keep some
12
of the continental margin outside of coastal
state control and within the common heritage.
It is my delegation's view that, as part of
a satisfactory and widely acceptable treaty,
an equitable and perhaps the most practical
accommodation in this area may well be to
provide for coastal states' exclusive rights
in the continental margin but also to provide
for international payments from mineral re-
sources at a modest and uniform rate in the
area beyond 12 miles or the 200-meter iso-
bath, whichever is further seaward. These
payments would be used primarily for devel-
oping countries, including developing land-
locked and other geographically disadvan-
taged states. Landlocked and other geograph-
ically disadvantaged states should not expect
that sharing in the benefits from deep seabed
hard minerals alone could make a significant
contribution to their economies.
Com palsory Dispute Settlement. Mr. Presi-
dent, my government believes that any law
of the sea treaty is almost as easily suscepti-
ble of unreasonable unilateral interpretation
as are the principles of customary interna-
tional law. This is particularly true when we
consider that the essential balance of critical
portions of the treaty, such as the economic
zone, must rest upon impartial interpretation
of treaty provisions. One of the primary mo-
tivations of my government in supporting
the negotiation of a new law of the sea
treaty is that of making an enduring contri-
bution to a new structure for peaceful rela-
tions among states. Accordingly, we must
reiterate our view that a system of peaceful
and compulsory third-party settlement of dis-
putes is in the end perhaps the most signifi-
cant justification for the accommodations we
are all being asked to make.
Objectives for the Caracas Session. It is the
view of my delegation that the conference
should strive to adopt an entire treaty text
this summer. What is required to do so is not
so much technical drafting as the political
will to decide a relatively small number of
critical issues. Once these decisions are made,
the number of treaty articles required to im-
plement them for the territorial sea, straits,
and the economic zone would not be large.
The deep seabed regime will require more ar-
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ticles, and the First Committee should con-
centrate on the preparation of agreed articles
whenever this is possible.
What an electrifying and heartening de-
velopment it would be for the international
community, and what a deserved tribute to
our Latin American host, if we could adopt
an agreed text this session!
If we do not at least try to reach agree-
ment on the treaty this summer, we may well
not even achieve the basic minimum required
to finish next year and in the interim prevent
further unilateral action prejudicial to the
success of the conference.
The minimum objective for Caracas, as we
see it, is to complete treaty texts on most, if
not all, of the critical articles?the territorial
sea, straits, the economic zone, the seabed
regime and the authority's functions, pollu-
tion from ocean uses, and scientific research.
To achieve this objective, it is critical to rec-
ognize now that neither a statement of gen-
eral principles nor articles which define the
rights of coastal states and of the seabed au-
thority without defining their corresponding
duties would be satisfactory_ or, indeed, at all
acceptable to a number of delegations, includ-
ing our own.
As I indicated at the outset, there is al-
ready a very general agreement on .the limits
of the jurisdiction of coastal states and the
seabed authority provided we can agree on
their corresponding obligations. It is the ne-
gotiation of these duties that should be the
main thrust of the negotiations this summer.
: CIA-RDP801301495R000800140001-8
This is not, as some delegations have im-
plied, an attempt to destroy the essential
character of the economic zone?to give its
supporters a juridical concept devoid of all
substantive content.
On the contrary, the coastal states' exclu-
sive control over the nonrenewable resources
of the economic zone is not being challenged.
In the case of fisheries, coastal state manage-
ment and preferential rights over coastal
and anadromous species would be recognized.
The principle of full utilization will insure
that renewable resources which might not
otherwise be utilized will give some economic
benefit to the coastal state and help meet the
international community's protein require-
ments. Agreed international conservation and
allocation standards for the rational manage-
ment of tuna should in the long run benefit
coastal states which seek to engage in fishing
these species and would maintain the popu-
lations of the tuna that migrate through their
zone. Finally, most states are prepared to
agree to coastal state enforcement jurisdic-
tion with respect to resource exploitation
within the economic zone.
Gentlemen, we have come to Caracas pre-
pared to negotiate on these critical questions.
They are not merely the legal fine print to be
filled in once general principles have been
agreed, but the very heart of the conditional
consensus we are well on the way to achiev-
ing. Years of preparation have brought us to
the moment when we must complete the task
that we have undertaken. We must not let
this opportunity pass.
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U.S. Gives Position on Seabed Regime, Scientific Research,
Straits, and Economic Zone at Law of the Sea Conference
Following are statements by John R. Ste-
venson, Special Representative of the Presi-
dent and chairman of the U.S. delegation to
the Third U.N. Law of the Sea Conference
at Caracas, made in Committee I of the con-
ference on July 17, in Committee III on July
19, and in Committee II on August I; a
statement by John Norton Moore, Deputy
Special Representative of the President and
deputy chairman of the U.S. delegation,
made in Committee II on July 22; U.S. draft
articles on the economic zone and continental
shelf; and alternative texts of draft articles
on settlement of disputes.
STATEMENT BY AMBASSADOR STEVENSON,
COMMITTEE I, JULY 17
Press release 813 dated July 24
Mr. Chairman [Paul Bamela Engo, of
Cameroon]: May I say at the outset what
great satisfaction my delegation has in see-
ing you in the chair. We appreciate very
much, as all delegations do, the contributions
that you and your colleagues at the podium
have made and continue to make to the
success of our work. Your leadership, wis-
dom, and political skills have in many ways
enabled us to reach an advanced stage of
work.
As you correctly pointed out in your state-
ment to this committee on the 10th of July,
the past work of the preparatory committee
has given many of us a sense of false com-
fort, for we have thought that the prepara-
tion of a single large and complex document
was in and of itself an achievement. You
told us that our task was to begin to nego-
tiate. Indeed, you demanded it of us. Mr.
Chairman, we all owe you a great debt for
14
your persistence, because it is now obvious
after more than 50 statements in this com-
mittee that you have served as the catalyst
for the commencement of negotiations for
which we have all waited so many years.
We have listened with great care to the
statements of all delegations who have
spoken before us, and it is now clear beyond
any doubt that serious negotiations are oc-
curring. Mr. Chairman, our analysis of
the statements made in the last week of our
work leads us to certain very specific con-
clusions about the nature and scope of the
problems before us in Caracas, and I will
turn directly to them.
The central issue in the negotiations is
the extent of control by the authority over
commercial development of the resources of
the international seabed area. In a very real
sense, the question of who will control is
resolved. The authority will have the con-
trol and will exercise it through its principal
organs and their subsidiary organs. The
authority should contain four principal or-
gans: an assembly, a council, an operational
arm, and a dispute-settlement body. The
United States, in the latter part of the
Geneva session of the Seabed Committee last
year, proposed the creation of a compre-
hensive law of the sea tribunal for disputes
arising out of the interpretation or appli-
cation of the law of the sea convention.1
We would anticipate that the dispute-settle-
ment machinery in the authority would be
a more specialized organ.
Each of these principal organs will have
1 For U.S. statements made in the July?August
1973 session of the U.N. Committee on the Peaceful
Uses of the Seabed and the Ocean Floor Beyond the
Limits of National Jurisdiction, see BULLETIN of
Sept. 24, 1973, p. 397.
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to be given different types of powers. Broad
policy guidance will come from the assembly;
executive decisionmaking will be in the coun-
cil, with particular reference to the imple-
mentation of the general system of explora-
tion and exploitation. The operational arm
will manage the day-to-day affairs of the
authority, and the dispute-settlement pro-
cedures will help preserve the integrity of
this treaty we are here to negotiate. It will
be necessary to provide for some checks
and balances among the organs of the au-
thority to insure against any abuse of power.
This approach may help find a common mid-
dle path to agreement on the structure of
the authority and many of its powers and
functions.
The questions we face are: How much
control? And subject to what safeguards?
And over what activities? These are clearly
not easy questions, but our impression of
the statements of various speakers is that
the question of control is made somewhat
more difficult by thinking of it in terms of
control versus no control. We believe a
better approach would be to recognize that
certain controls are essential in the authority
?these controls in a broad sense are the
rights of the authority, and these rights
should be accompanied by corresponding
duties.
Our first task is to identify the common
denominators?what types of controls do
most delegations seek to repose in the au-
thority? We have identified seven major
categories which appear to command wide-
spread support:
?First, the right of the authority to pre-
vent degradation of the marine environment
from seabed exploration and exploitation;
?Second, the right to insure that suffi-
cient and reliable information and data are
given to the authority so as to allow it in-
dependently to satisfy itself that it is receiv-
ing all benefits and income to which the
treaty entitles it;
?Third, the right to impose requirements
which prevent any state or person who does
not have the bona fide intention of explor-
ing and exploiting from obtaining or keep-
ing any mining rights in the area;
?Fourth, the right to require that mining
be carried out safely;
?Fifth, the right to establish the pro-
cedures and mechanisms which will insure
that those provisions of our treaty which
promote programs for the transfer of tech-
nology to the developing countries and pro-
vide for the training of developing country
personnel be faithfully executed;
?Sixth, the right to insure that the re-
sources of the area are not monopolized by
a few countries or private entities so as to
preclude developing countries from partici-
pation in the exploitation of the resources
of the area when they have the technology
and financial capacity to do so; and
?Seventh, the right to participate in the
benefits of resource development.
Mr. Chairman, my delegation can pledge
its full support to work to achieve these
kinds of controls. In some cases, we believe
the controls should be carefully spelled out
in the treaty itself. In others, we would
want to include the controls by way of a
mandate to regulate in the future, provided
we can agree in the treaty on standards for
the regulatory machinery and a just pro-
cedure for rulemaking which will inspire
the confidence of all states.
We have also listened with care to the
statements of other delegations concerning
the duties or obligations of the authority.
Here again, we have found basically five
common denominators:
?First, developing and developed coun-
tries alike have spoken out clearly for the
need to insure that no state is subject to
discrimination in the exercise of its rights
and that no state can be deprived of a right
of access to the resources if it meets the
obligations imposed by the treaty?this be-
ing one of the fundamental principles of
the common-heritage concept.
?Second, virtually all countries have rec-
ognized the duty to provide stable conditions
of investment which will promote the de-
velopment of the resources. There is wide-
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spread recognition that we all depend on
the creativity and initiative of a pioneering
few to achieve realizable benefits for all from
the extraction of the resources.
?Third, it has been wisely said by many
delegations that the authority should not en-
cumber those who extract the resources with
needless regulatory interference and admin-
istrative burdens which reduce economic ef-
ficiency and thus the benefits, including the
revenues, which will be available for shar-
ing.
?Fourth, many delegations have noted the
need to protect the property, including pro-
prietary data and trade secrets, .of those on
whom we depend for the extraction of the
resources.
?Fifth, the authority must provide facil-
ities and institutions for the knowledge and
technology which will be transferred to de-
veloping countries. Effective transfer of
technology, which many have stressed, re-
quires careful planning and the creation of
new institutions of learning. In this area
the authority will make one of its most sig-
nificant contributions to the benefit of all
mankind.
Mr. Chairman, we are gratified that most
delegations have referred in their statements
to the need for negotiations on the funda-
mental terms, conditions, and safeguards for
exploration and exploitation. Indeed, one
delegation suggested that this committee
change its perspective quickly and begin at
once to examine these fundamental matters
in the hopes that by doing so we will find
common ground which may reduce the dif-
ferences between what appear to be widely
disparate conceptual approaches. We share
this belief. It was our view in the working
group last summer, and it remains our view
today, that the differences between the two
competing conceptual approaches to the
question "Who may exploit the area?" are
not as serious as previous debate would have
indicated and that a close study of the basic
conditions of exploitation founded on what
now appear to be widely supported common
denominators will help us find the path to
agreement.
16
Regrettably, Mr. Chairman, it appears
that in one major area no sign of a rap-
prochement is yet on the horizon. A few
major producers and exporters of nickel
and copper have brought to our attention
their belief that a problem will accrue to
them from seabed nickel and copper pro-
duction, the two metals of principal commer-
cial interest in nodules. The Secretary Gen-
eral has, at the request of the Seabed Com-
mittee, done several useful studies of the
question, including a study now before us,
A/CONF.62/25. Mr. Chairman, my delega-
tion is pleased that at an appropriate time
this summer the committee will have an
opportunity to study this report more fully.
We believe in light of recent international
experience that it will be most useful for
all countries, whether developed or develop-
ing, who are consumers of these materials
in either raw or manufactured form to an-
alyze together their interests.
Mr. Chairman, a better understanding of
this problem and the extent to which it has
already influenced the work of this committee
may help us over the few hurdles ahead of us.
Several nations have made proposals in con-
nection with economic implications which
call for production and price controls or
which limit access to the resources of the
area. Still other proposals have been made
which, while they do not appear to be di-
rectly related to economic implications, may
be motivated by a desire to insure that the
authority will be able to regulate production
effectively. Mr. Chairman, several of these
proposals can be seriously disruptive in the
negotiation because they are not only capa-
ble of being used to maintain or increase
prices but also can be used to deprive states
of access to the resources.
In addition, if used, they may well de-
crease the benefits available from the sea, in-
cluding the benefits to consumers everywhere
from the availability of a new supply of
nickel and copper and the products made
from those metals. The U.N. economic studies
have shown that the increases in copper de-
mand will greatly exceed the rate of develop-
ment in seabed production. Similar conclu-
sions, to a lesser extent, hold for nickel, but
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in any case nickel is largely a developed
country export. The effect on manganese is
speculative, and only one company that we
know of has any plan to produce any man-
ganese at all from nodules. The cobalt pro-
duction of one or two developing countries
may be affected. In these cases appropriate
measures will have to be considered. Let us
move with extreme care and not try to solve
problems which in reality may be quite small
and manageable with remedici more dan-
gerous than the illness we seek to cure.
Mr. Chairman, all countries, not only the
rich, but rich and poor alike, are justifiably
concerned by any price increase in essential
commodities. Higher prices for resources
used for development are a serious matter
today, causing widespread hunger and star-
vation in many poor countries.
We believe, Mr. Chairman, that seabed
metal production should be treated on the
same basis as land production. Together, the
two sources will account for the global sup-
ply and meet the global demand for these
metals. To draw up special restrictions for
one source and not the other is equivalent to
agreement by treaty to discriminate against
all states who may be seabed producers. This
is neither a fair nor rational approach to the
disposition of the common heritage of man-
kind.
Mr. Chairman, my delegation places spe-
cial emphasis on the decisionmaking proce-
dures which will be used by the authority for
dealing with the multitude of problems that
will face the authority in its quest for con-
trol over the resources of the area. As I men-
tioned earlier, we believe that, in order to
protect the interests of all states, decision-
making should be dispersed throughout the
organs of the authority to avoid any single
organ's dominance over the machinery.
In respect of the basic resource policies of
the authority, we wish to assure a special
procedure which we call rulemaking. The au-
thority will have to deal with a host of un-
predictable developments. In these areas,
which include environmental protection, min-
ing safety, resource conservation, adjust-
ments to regulatory provisions which insure
diligence in exploration and deter specula-
tion, to name only a few, we think the au-
thority should make rules by a procedure
similar to the one used by the International
Civil Aviation Organization. Rules should be
drafted by a specialized subsidiary organ,
and after council approval, forwarded to all
states for review. If after a fixed time pe-
riod, say 90 days, less than one-third of the
members of the authority have objected, the
rules would become binding. This approach,
we believe, will give maximum opportunity
for expert review in the authority and in gov-
ernments and avoids the risk of undue influ-
ence by one or another of the organs of the
authority.
Mr. Chairman, the authority has not yet
been created. We are here to create it. This is
an exciting and important experiment in in-
ternational cooperation. We are each pre-
pared to agree to controls over valuable
resources by an intergovernmental organiza-
tion. This is a unique adventure. But it can-
not succeed if we are too ambitious. We are
asking all nations to have trust in an un-
known body. Let us build into this treaty as
many necessary procedural protections as we
can to insure that those who are wary of our
efforts will be satisfied with our work prod-
uct. To that end, Mr. Chairman, my delega-
tion wishes to stress the following points
which we regard as most important in these
negotiations:
1. The resource system we choose for the
treaty must insure nondiscriminatory access
to the resources of the area for all states. If
the authority has the power to restrict the
number of areas available for commercial
development and to select among applicants,
my government would not be satisfied that
our access was secure and free of potential
discrimination.
2. The mandate of the authority should
only include control of activities in the area
which are directly related to the exploration
and exploitation of seabed resources.
3. The treaty should provide an appropri-
ate system of checks and balances among the
organs of the authority.
4. A carefully defined system of rulemak-
ing should be elaborated in the treaty to in-
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sure a fair and thoughtful decisionmaking
process.
5. Provisions for the compulsory settle-
ment of disputes and machinery for that pur-
pose are essential.
6. Voting arrangements in the council of
the authority should be realistic.
7. We should seek methods for accommo-
dating the concerns of land-based producers
who are developing countries if it is clear
that seabed production harms their level of
domestic production, but at the same time
the consumers of goods made from raw ma-
terials found in the seabed must be protected
from artificial price increases for such mate-
rials.
8. The provisional application of the per-
manent regime and machinery.
Before closing, Mr. Chairman, my delega-
tion would like to take note of the remarks
of one speaker who indicated that industrial-
ized countries had supported a system for
exploitation which would permit both li-
censing and direct exploitation by the au-
thority simultaneously. He rejected such a
parallel system. We support his rejection.
We are here to find a single system for ex-
ploration and exploitation which will accom-
modate the interests and needs of all coun-
tries.
For our part, we approach the next two-
week period with the hope that when the in-
formal committee makes its report to this
committee, the third reading of the regime
and machinery will be concluded except for
those areas which we know cannot be easily
solved and will, in any case, require your own
firm guidance and personal attention in the
weeks and months ahead. In August we look
forward to a thorough and careful elabora-
tion by the informal committee of the new
aspects of our work?the effort to study
more closely the resource exploitation system
and its basic conditions of operation. We will
also have to deal with the unfinished business
of economic implications.
We are here to negotiate, Mr. Chairman,
and we are convinced that the time to do so
is now.
18
STATEMENT BY AMBASSADOR STEVENSON,
COMMITTEE III, JULY 19
Press release 317 dated July 26
Mr. Chairman [A. Yankov, of Bulgaria] :
I will limit my comments today primarily to
marine scientific research within the eco-
nomic zone. We have previously indicated
that the coastal state should have the right
to authorize and regulate scientific research
in the territorial sea. In the area beyond the
limits of national jurisdiction, the present
right to conduct research should continue, as
reflected in the declaration of principles
adopted by the General Assembly in 1970.2
Similarly, it is clear that coastal states should
have jurisdiction to control commercial ex-
ploration in the economic zone. The basic
question is the regime for scientific research
in the economic zone adjacent to the terri-
torial sea.
If an economic zone is established at a dis-
tance of 200 miles from the coast, at least
one-third of the ocean will be included in
this zone of particular importance to scien-
tists. This conference has before it two fun-
damental questions regarding marine sci-
ence. First, we must determine whether to
foster the conduct of marine science; second,
we must decide how other interests are to be
accommodated with respect to the conduct of
marine science.
We believe that there is a consensus in this
conference that marine scientific research
should be encouraged. We also believe that
there is a consensus that rules regarding ma-
rine science should insure that all will bene-
fit to the fullest extent and that the interests
of the coastal state in the economic zone are
protected. The challenge we face is the crea-
tion of a regime which reflects this consensus.
Fostering Marine Scientific Research. Ob-
taining needed knowledge about the ocean is
often difficult, time consuming, and expen-
sive. Many developing countries, when con-
sidering the manifold demands on their
For text of the declaration (General Assembly
Resolution 2749 (XXV)), see BULLETIN of Feb. 1,
1971, p. 155.
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available resources, feel that they cannot jus-
tify a substantial diversion of their scarce
resources to this type of research. How then
do we insure that research conducted by
countries willing to utilize some of their re-
sources for scientific investigation of the
oceans benefits all countries, including devel-
oping countries? Do we increase their burden
by complicating the planning and conduct of
research and increasing the expense, or do
we create a regime which is as conducive as
possible to conducting further research in a
manner designed to insure universal benefit?
I believe that we all would agree that we
should strive for the latter. Instead of plac-
ing burdens on research, we should insure
that research is for the benefit of all and that
the interests of coastal states in the economic
zone are protected.
Mr. Chairman, many states have called for
a coastal state right of consent for research
in the .zone. Few countries in the world have
the long coastlines characteristic of the
United States and some of its neighbors in
the Western Hemisphere. Frequently, valid
and useful scientific research can be con-
ducted off these lengthy coasts even though
neighboring states may refuse to grant con-
sent for research. This is not the case, how-
ever, for many countries in other parts of the
world. For example, how could any research
scientist undertake a meaningful study of
the Guinea Current in the Gulf of Guinea if
only some of the coastal states gave consent?
How can data from different areas of the
world be compared in order to formulate new
hypotheses about the unknown?
Mr. Chairman, marine scientific research
will not be fostered by a consent regime. In
many cases, such a regime will simply pre-
clude the research or undermine the validity
of the scientific findings. In others, it will
make the research more expensive, with the
obvious consequence that less research will be
conducted. As has been often stated, oceanic
processes do not respect manmade jurisdic-
tional boundaries. Scientific investigation of
such oceanic phenomena as currents gener-
ally requires research off the coasts of many
countries. If several states give their consent
and others withhold consent, the research
most likely will simply not be conducted.
Nonconsenting and consenting states alike
will be denied knowledge that otherwise
would have been obtained from this research.
Insuring Benefit to All. To insure that all
states benefit from marine scientific research,
it is important that no restrictions be placed
on the wide dissemination of research find-
ings in the open literature and in global data
banks available to all. The scientific process
is a gradual one, with scientists building upon
each others' research. It is a rare if not
unique phenomenon that one research project
provides the needed insight for a major sci-
entific breakthrough; it is equally rare that
the researcher himself is the one who ob-
tains the most benefit from the research
which has been conducted.
Mr. Chairman, we must insure that scien-
tific knowledge flows not only to the coastal
state and the researching state but to all
mankind. To do otherwise would remove es-
sential building blocks of science and widen
the gap between developing and developed
countries.
Protection of the Interests of Coastal
States. As stated previously, oceanic proc-
esses do not respect manmade jurisdictional
boundaries. Ideally, therefore, a more com-
plete understanding of such oceanic proc-
esses could be obtained if marine scientists
were free to carry out scientific research any-
where in the seas without restraints or re-
strictions. Balanced against this interest,
however, are the legitimate rights and in-
terests of coastal states. Last summer we set
forth a draft treaty proposal for research
in the economic zone. That proposal does not
call for freedom of scientific research, nor
does it deny the rights of the coastal state.
Rather, our proposal sets forth a series of
coastal state rights. These rights are ex-
pressed in the following obligations with
which a researcher must comply if he wishes
to conduct research in the zone:
?Advance notification of the proposed re-
search, including a detailed description of the
research project;
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.?A right of the coastal state to partici-
pate directly or through an international or-
ganization of its choice;
?Sharing of all data and samples with the
coastal state;
?Assistance to the coastal state in inter-
preting the results of the research project in
a manner that is relevant to the coastal
state;
?Publication as soon as possible of the
significant research results in an open, read-
ily available scientific publication;
?Compliance with all applicable interna-
tional environmental standards; and
?Flag-state certification that the research
will be conducted in accordance with the
treaty by a qualified institution with a view
to purely scientific research.
We have tried in the listing of obligations
to meet the legitimate concerns of coastal
states. We studied national laws of other
states in compiling the list. Perhaps we have
not been successful in phrasing or listing
every obligation that should be included. If
there are other obligations that some feel
should be included, these obligations should
be discussed and, if found meritorious, in-
cluded in the treaty.
I should like to explain briefly why we be-
lieve that these obligations will protect the
interests of the coastal state. Advance notifi-
cation will apprise the coastal state of the
proposed research, provide background in-
formation on the need for, and the steps lead-
ing up to, the research project, and allow
the coastal state to plan its participation in
the research project. By participating, the
coastal state can satisfy itself that the ac-
tivities undertaken are in fact scientific and
maximize the benefit it receives from the re-
search conducted.
Not only do we propose sharing of all data
and samples with the coastal state, but also
we recognize that some coastal states may
desire assistance in interpreting the data and
samples received. This proposal provides not
only that the flag state must assist the coastal
state in interpreting the data resulting from
20
that research project, but also that it must
provide such assistance in interpretation in
a manner that is relevant to the coastal
state.
Open publication of the research results
will insure that the research benefits all
mankind. It will also provide additional as-
surance that the research is not commercially
oriented, since those who collect proprietary
data rarely are willing to share such data
with their competitors.
To insure protection of the environment of
the economic zone, researchers would be re-
quired to comply with all applicable interna-
tional environmental standards. In addition,
we recognize that drilling into the continen-
tal margin for scientific purposes can create
both an environmental threat and resource
management problems. We therefore pro-
posed before Subcommittee II last summer,
in articles on the coastal seabed economic
area, that coastal states have the exclusive
right to authorize and regulate all forms of
drilling, including scientific drilling.
We also believe that the requirement that
the flag state certify that the research is
conducted by a qualified institution with a
view to purely scientific research is a mean-
ingful protection. As evidenced by these ne-
gotiations, countries such as my own which
conduct a large amount of research have a
great interest in protecting the right to con-
duct marine scientific research, and we be-
lieve that all countries will exercise great
caution in granting such certification.
Finally, our articles require that those
"conducting scientific research shall respect
the rights and interests of the coastal State"
in its exercise of jurisdiction in the zone.
Clearly, the researcher cannot unreasonably
interfere with fishing or seabed exploitation
activities conducted by the coastal state in
the zone. Additional protection for the re-
source activities of the coastal state will be
provided by the opportunity to participate
in the research. Moreover, under the coastal
seabed economic area articles tabled last
summer in Subcommittee II, coastal states
may establish safety zones around installa-
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tions. Research vessels, of course, would be
required to respect such safety zones.
Mr. Chairman, under our proposal, if the
researcher meets these obligations, he may
conduct the research without coastal state
consent. What happens, however, if there
is a dispute as to whether they have in fact
been met? Coastal states should not be with-
out a remedy if they believe that all the
prerequisites for the conduct of research
have not been met. There should be an ef-
ficient mechanism available through compul-
sory dispute-settlement procedures to the
coastal state and the researching state for
the rapid resolution of such disputes. We
welcome views on ways that these interests
can best be balanced.
As I stated at the outset, we believe that
the approach in our draft articles provides
a balance of rights and duties which protects
the interests of coastal states while fostering
the conduct of marine scientific research and
insuring that such research benefits all.
Technology Transfer. Some have sug-
gested that a coastal state right of consent
could be used as a bargaining lever to obtain
technology transfer. We do not believe that
any useful technology transfer in marine
science would result through such a mecha-
nism. First, to be meaningful, technology
transfer in marine science must be regular
and sustained and not as a result of nego-
tiations with the occasional research vessel
which seeks permission. As previously
pointed out, a consent regime will increase
research costs, thereby reducing the amount
of research which is conducted and the at-
tendant transfer of marine science technol-
ogy. Second, neither scientific objectives nor
the objectives of developing countries will be
served if the cost of research becomes a
major factor in determining where research
will be conducted. For our part, we believe
that transfer of marine science technology
can best be accomplished through a multi-
lateral effort, not through ad hoc bargaining
for consent to do research.
In a statement before Subcommittee III
of the Seabed Committee in 1972, we stated
our "willingness, in principle, to commit
funds to support multilateral efforts in all
appropriate international agencies with a
view toward creating and enlarging the abil-
ity of developing states to interpret and use
scientific data for their economic benefit and
other purposes; to augment their expertise
in the field of marine science research; and
to have available scientific research equip-
ment including the capability to maintain
and use it."
In that statement, we emphasized that
these funds would be in addition to financial
efforts by the international seabed authority.
We reemphasize our willingness today to
participate in such programs.
Mr. Chairman, I have tried to set forth
briefly the views of my delegation concern-
ing marine scientific research. As I said at
the outset, we believe that there is an emerg-
ing consensus that scientific inquiry should
be encouraged. We remain convinced that
the best way to accomplish this is to insure
that the individual scientist is as unfettered
as possible and that the most logical means
for meeting the legitimate interests of coastal
states is through a series of internationally
agreed obligations on the researcher. We
look forward to working with others at this
conference in achieving these goals.
STATEMENT BY MR. MOORE, COMMITTEE II,
JULY 22
Press release $26 dated August 8
Mr. Chairman [Andres Aguilar, of Vene-
zuela] : In accordance with your guidelines
for our work, my delegation would like to
take this opportunity to comment on pro-
posals made by several states on the issue
of straits and, in this connection, to devote
particular attention to the concerns of states
bordering straits with respect to security,
safety of navigation, and prevention of pol-
lution.
The U.S. delegation has stated on numer-
ous occasions the central importance that
we attach to a satisfactory treaty regime
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of unimpeded transit through and over
straits used for international navigation. In-
deed, for states bordering as well as states
whose ships and aircraft transit such straits,
there could not be a successful Law of the
Sea Conference unless this question is sat-
isfactorily resolved. The inadequacies of the
traditional doctrine of innocent passage?a
concept developed not for transit through
straits but for passage through a narrow
belt of territorial sea?are well known.
We are appreciative of the strong trend
in the debates as well as several proposals
recently introduced in this committee which
reflect an understanding of the importance
of navigation and overflight through straits
for the global flow of trade and communica-
tions and for a stable and peaceful world
order. These proposals also reflect that
there need be no conflict between the inter-
ests of states transiting and states bordering
straits. While unimpeded transit of straits
used for international navigation is vital to
achieving a successful treaty, we can and
must also protect the interests of states bor-
dering straits.
The proposals made reflect the fact that
three categories of concern have been most
frequently expressed by states bordering
straits. They are security, safety of navi-
gation, and prevention of pollution.
With respect to the first of these concerns,
the security of states bordering straits, we
should remember that unimpeded transit is
a right of transit, not a right to engage in
activities inimical to the security of these
states. It is solely a right of the transiting
ship or aircraft to transit the strait; that is,
to enter the strait, pass through or over in
the normal mode using customary naviga-
tional routes and applicable traffic-separation
schemes, and then to exit the strait. In
this regard, it should be borne in mind that
the right of unimpeded transit is a substan-
tial restriction on present high seas free-
doms. To make this clear, we agree that
the chapter on passage of straits used for
international navigation might specify that
the right of unimpeded transit is solely for
22
the purpose of continuous and expeditious
transit of the strait.
To insure that unimpeded transit will be
consistent with the security interests of
states bordering straits, the treaty should
require that ships and aircraft in transit re-
frain from any threat or use of force in
violation of the Charter of the United Na-
tions against the territorial integrity or po-
litical independence of a state bordering the
strait. Situations of actual hostilities are of
course, like all conflict settings, governed by
the overriding norms of the United Nations
Charter.
It should also be noted with respect to
security concerns that straits are confined
waters and prudent seamen will want to
pass through them as quickly as circum-
stances permit. As a practical matter, a
strait is a most unlikely place for any threats
to security against a? state bordering the
strait.
The second category of concern is safety
of navigation. Here, too, it is possible to
achieve a balance which will fully protect
the interests of states whose ships and air-
craft transit a strait and the interests of
states bordering the strait.
The first need is to insure that transiting
vessels and aircraft comply with applicable
international safety regulations. The pro-
posal contained in articles recently intro-
duced by the United Kingdom meets this
need. It provides that "ships in transit shall
comply with generally accepted international
regulations, procedures and practices for the
safety of navigation at sea, including the
international regulations for preventing col-
lisions at sea." We support this proposal.
With respect to aircraft, we believe that
civil aircraft in transit should comply with
the high seas standards, recommended prac-
tices, and procedures established by the In-
ternational Civil Aviation Organization un-
der the Chicago Convention. State aircraft,
which are not governed by these rules, should
normally respect them and should at all times
operate with due regard for the safety of
navigation.
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Because of the importance of traffic-sepa-
ration schemes for safety of navigation in
crowded straits, it would seem useful to
encourage states bordering straits to pro-
pose traffic-separation schemes where neces-
sary to promote the safe passage of ships.
Such schemes could then go into effect after
approval by the competent international or-
ganization.
The third category of concern is preven-
tion of pollution. All states recognize the
importance of fully protecting the marine
environment. In this connection, the pro-
posal made by the United Kingdom to re-
quire that ships in transit comply with gen-
erally accepted international regulations,
procedures, and practices for the prevention
and control of pollution from ships is an
important one. It should also be noted that
the new international discharge standards
for areas close to the coast are very strict.
The United States is of the view that, sub-
ject to appropriate safeguards and the usual
exemption for ships and aircraft entitled to
sovereign immunity, states bordering straits
should be able to enforce against violations
occurring within the strait for deviation
from internationally approved traffic-separa-
tion schemes. Such deviations may seriously
threaten the marine environment within
straits.
With respect to both safety and pollution
concerns in straits, it is also important to
make adequate provisions for compensation
should damage result despite the most rig-
orous prevention requirements. The recent
liability and fund conventions for compen-
sation for damage caused by pollution from
oil are a great step forward in this regard.
And the provisions concerning liability in
the United Kingdom articles and in A/
CONF.62/C.2/L.11, jointly prepared by a
number of Eastern European states, also
seem worthy of study.
Similarly, with respect to both safety and
pollution concerns in straits, some straits,
because of depth or other navigational or
environmental limitations, will require spe-
cial standards in addition to those univer-
sally adopted. To meet this need, we would
welcome states bordering a strait recom-
mending to the appropriate international or-
ganization for approval any special safety or
pollution standards which they feel are re-
quired. In this way, states bordering the
strait have the predominant role in for-
mulating such special standards, but at the
same time the international community's in-
terest is also fully protected.
Mr. Chairman, my delegation is also
pleased that most of the recently introduced
proposals concerning transit of straits in-
clude the essential element of transit by
aircraft as well as ships. There have, how-
ever, been suggestions that questions of
overflight of aircraft are not matters of
oceans law and need not be dealt with in
the Law of the Sea Conference. It should
be recalled that the question of overflight
was inseparably linked with the law of the
sea in the 1958 Conventions on the high
Seas and on the Territorial Sea and Con-
tiguous Zone.
Moreover, since the breadth of the terri-
torial sea will be decided by the conference,
the question of overflight cannot be avoided
unless those states making this suggestion
are willing to forgo sovereignty over the
airspace above the territorial sea. The sub-
ject is clearly before the Law of the Sea
Conference, as the List of Subjects and Issues
approved by the Seabed Committee specifi-
cally refers in items 2.5 and 6.3 to the free-
dom of overflight.
All aircraft, civil as well as state, now
have a right of overflight within high seas
areas, including high seas within straits
used for international navigation. The Chi-
cago Convention reflects this right by dif-
ferentiating between flights over territory,
which are subject to the consent of the state
in question, and flights over the high seas,
which are not. An extension of the terri-
torial sea to 12 miles by a new law of the
sea treaty would, unless accompanied by ade-
quate provision for overflight of straits, alter
this basic right of overflight through a large
number of straits used for international
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navigation which would be overlapped by a
12-mile territorial sea.
It is insufficient in this regard to rely on
the Chicago Convention for the protection
of this vital overflight right of straits over-
lapped by a territorial sea. For one thing,
not all states have become parties to the
convention. Secondly, with respect to over-
flight of territorial waters by civil aircraft,
the convention permits states in certain cir-
cumstances to restrict or suspend overflight.
Finally, the provisions of the convention
do not apply to overflight by state aircraft.
These state aircraft include a wide variety
of aircraft important to the effective func-
tioning of states, including aircraft special-
ized for weather, diplomatic, customs and
immigration, search and rescue, and military
uses.
Mr. Chairman, unimpeded transit of
straits used for international navigation, and
the interests of states bordering straits in
security, safety of navigation, and preven-
tion of pollution are complementary. All
states share an interest in insuring each of
these goals. It is fortunate, then, that as
proposals recently introduced before this
committee make clear, the conference need
not make a choice between them. Rather,
the task is to prepare articles which will
fully protect the interests of all states.
STATEMENT BY AMBASSADOR STEVENSON,
COMMITTEE II, AUGUST 1
Press release 387 dated August 22
Mr. Chairman: In plenary, my delegation
indicated its willingness to support a 200-
mile economic zone as part of an overall ac-
ceptable law of the sea treaty.3 In this
connection, we would like to make some pre-
liminary comments on the portions of the
nine-power working paper dealing with the
economic zone (document A/CONF.62/L.4).
The economic zone is a new concept de-
signed to reconcile the primary interests of
For a statement made by Ambassador Stevenson
on July 11, see BULLETIN of Aug. 5, 1974, p. 232.
24
the coastal state in resources with the pri-
mary interests of all states in navigation and
other uses.
Viewed in this light, the economic zone
would be the sum total of the judgments of
the international community as to the most
appropriate balance between coastal and in-
ternational interests. Achieving this balance
presents a very special problem concerning
our mode of work. If we are to capture in
treaty articles the essence of the balance, we
must not attempt to do it in a few general
articles?only a series of carefully drafted
articles will accomplish this delicate task.
My delegation would welcome comments
on its proposals for the economic zone based
on the specific interests of states and the in-
ternational community. But we cannot nego-
tiate in the face of conceptual arguments
that one or another idea is incompatible with
the "essential character" of the zone. Argu-
ments based on deductive reasoning from an
abstract concept can only move us further
apart.
One of the most serious restraints in the
history of the law of the sea on the expansion
of coastal state jurisdiction over resources
has been the concern that this jurisdiction
would, with time, become territorial in char-
acter. In the Seabed Committee, the propo-
nents of the economic zone argued, that it
could be constructed with sufficient safe-
guards to prevent such a result. Having ten-
tatively accepted those arguments here, we
are presented with a proposal in document
L.4 that tends to confirm some of our serious
misgivings. For us and for others, the "spe-
cific articles" that the cosponsors left out
largely spell the difference between an ac-
ceptable and unacceptable result. Accord-
ingly, we would be unable to express even
tentative acceptance of the document as a
basis of negotiation now, or in any final ac-
tion of this session, if this means exposing
ourselves to a process of fruitless deductive
reasoning from article 12 or, worse still, a
future argument that a consensus on such
texts was evidence of new general interna-
tional law.
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? Having said this, let me reiterate with re-
spect to article 12 (a) that we contemplate
full coastal state regulatory jurisdiction over
exploration and exploitation of seabed re-
sources and fishing within the economic zone
with special treatment for anadromous spe-
cies and for highly migratory species.
The question of fisheries jurisdiction, a
central aspect of the economic zone, illus-
trates the difficulties inherent in a deductive
approach. My delegation supports the inclu-
sion of coastal state duties to insure the con-
servation and full utilization of fish stocks
under coastal state laws and regulations and,
as stated above, special treatment for anad-
romous and highly migratory species of
fish. We believe our proposals will stimulate
fisheries investment in the coastal state and
that additional provisions can be discussed
to this end. However, we agree with the
distinguished observer from the Food and
Agriculture Organization in supporting in-
ternational cooperation in fisheries manage-
ment and would encourage states to enter
into appropriate treaty and organizational
arrangements, but we are not urging a man-
datory general transfer of coastal state fish-
eries management jurisdiction to multilat-
eral commissions. We believe these points
should be negotiated on their merits and that
such negotiations will facilitate agreement
on the establishment and exercise of coastal
state fisheries jurisdiction in the zone.
Recognizing that coastal state resource in-
terests can be seriously affected by certain
other activities, we have also proposed an
exclusive coastal state right to authorize and
regulate all installations for economic pur-
poses and all drilling, whether or not such
installations or drilling are related to ex-
ploration and exploitation of resources.
We support the inclusion of environmental
rights and duties with respect to installation
and seabed resource activities. We also sup-
port some revenue sharing from mineral re-
sources and provisions on the integrity of
investments in the development of such re-
sources.
We support compulsory dispute-settlement
procedures to prevent an abuse of treaty
rights, not to second-guess the coastal state
in exercising its rights in the economic zone.
We recognize that specific negotiation is
required on these and other aspects of our
proposals. We would hope the cosponsors of
document L.4, in referring to specific articles,
agree that such negotiation should be our
main task.
The remaining question concerns activities
other than those I have discussed, subject
of course to the provisions of the convention
regarding pollution and scientific research.
Articles 14, 15, and 17 do not make it suf-
ficiently clear that all high seas freedoms
recognized by the general principles of inter-
national law are preserved, subject to, and
except as otherwise provided in, the conven-
tion. It is also not sufficiently clear that the
enjoyment of these freedoms is on an equal
footing with?not subject to?the enjoyment
by the coastal state of its rights in the zone.
We understand this to be the intention of
the articles and trust this is merely a draft-
ing problem.
Mr. Chairman, while these remarks are
also applicable to other proposals, including
that of the delegation of Nigeria (document
A/CONF.62/C.2/L.21), we believe the com-
prehensive structure of the Nigerian proposal
should commend itself to the entire com-
mittee. Despite serious substantive problems
on some points, we can see in that proposal
a way for you to guide this committee to-
ward the achievement of its goals. We are
also encouraged by the remarks of the dis-
tinguished Representative of Nigeria on mat-
ters that remain to be dealt with and look
forward to detailed elaboration of those
ideas.
In conclusion, let me express the hope that
the sponsors of document L.4, L.21, and
other proposals will be able to accept these
remarks as constructive in character and in
the spirit of the famous French phrase, "Yes,
but . . . ." However, I urge you, Mr. Chair-
man and others, not to underestimate the
critical importance of the "but" to my dele-
gation.
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U.S. DRAFT ARTICLES ON ECONOMIC ZONE
AND CONTINENTAL SHELF
U.N. doc. A/CONF. 112/C.2/L.47 dated August 8
UNITED STATES OF AMERICA: DRAFT ARTICLES FOR
A CHAPTER ON THE ECONOMIC ZONE AND THE CON-
TINENTAL SHELF 4
PART I. THE ECONOMIC ZONE
A. COASTAL STATE JURISDICTION
Article 1. General
1. The coastal State exercises in and throughout
an area beyond and adjacent to its territorial sea,
known as the economic zone, the jurisdiction and the
sovereign and exclusive rights set forth in this chap-
ter for the purpose of exploring and exploiting the
natural resources, whether renewable or non-renew-
able, of the sea-bed and subsoil and the superjacent
waters.
2. The coastal State exercises in the economic zone
the other rights and duties specified in this Conven-
tion, including those with regard to the protection
and preservation of the marine environment and the
conduct of scientific research.'
3. The exercise of these rights shall be in con-
formity with and subject to the provisions of this
Convention, and shall be without prejudice to the
provisions of part III of this chapter.
Article 2. Limits
The outer limit of the economic zone shall not
exceed 200 nautical miles from the applicable base-
lines for measuring the territorial sea.
Article 3. Artificial Islands and Installations
1. The coastal State shall have the exclusive right
to authorize and regulate, in the economic zone, the
ccinstruction, operation and use of artificial islands
and installations for the purpose of exploration or
exploitation of natural resources, or for other eco-
nomic purposes, and of any installation which may
interfere with the exercise of the rights of the
coastal State in the economic zone.
'These articles, which are presented as a basis for
negotiation subject to agreement on other basic
questions of the law of the sea, replace in their
entirety draft articles on fisheries and the coastal
sea-bed economic area contained in documents A/
AC.138/SC.II/L.9 [Official Records of the General
Assembly, Twenty-seventh Session, Supplement No.
21 (A/8721, pp. 175-179)] and A/AC.138/SC.II/
L.35 [ibid., Twenty-eighth Session, Supplement No.
21 (A/9021, vol. III, pp. 75-77)].
' Detailed provisions on these subjects are to be
set forth in the chapters of the Convention on sci-
entific research and pollution.
26
2. The coastal State may, where necessary, estab-
lish reasonable safety zones around such off-shore
installations in which it may take appropriate meas-
ures to ensure the safety both of the installations
and of navigation.
3. The provisions of article 28 shall apply, mutatis
mutandis, to such artificial islands and installations.
Article 4. Drilling
The coastal State shall have the exclusive right to
authorize and regulate drilling for all purposes in
the economic zone.
Article 5. Right to Protect the Marine Environment
In exercising its rights with respect to installa-
tions and sea-bed activities in the economic zone,
the coastal State may establish standards and re-
quirements for the protection of the marine environ-
ment additional to or more stringent than those re-
quired by applicable international standards.
Article 6. Coastal State Measures
With respect to activities subject to its sovereign
or exclusive rights, the coastal State may take such
measures in the economic zone as may be necessary
to ensure compliance with its laws and regulations
in conformity with the provisions of this Convention.
B. INTERNATIONAL STANDARDS AND DUTIES
Article 7. Navigation, Overflight, and Other Rights
Nothing in this chapter shall affect the rights of
freedom of navigation and overflight, and other rights
recognized by the general principles of international
law, except as otherwise specifically provided in this
Convention. The provisions of this article do not
apply to activities for which the authorization of
the coastal State is required pursuant to this Con-
vention.
Article 8. Unjustifiable Interference
1. The coastal State shall exercise its rights and
perform its duties in the economic zone without un-
justifiable interference with navigation or other uses
of the sea, and ensure compliance with applicable
international standards established by the appropri-
ate international organizations for this purpose.
2. In exercising their rights, States shall not un-
justifiably interfere with the exercise of the rights
or the performance of the duties of the coastal State
in the economic zone.
Article 9. Duty to Protect the Marine Environment
In exercising its rights with respect to installations
and sea-bed activities, the coastal State shall take all
appropriate measures in the economic zone for the
protection of the marine environment from pollu-
tion, and ensure compliance with international min-
imum standards for this purpose established in ac-
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cordance with the provisions of chapter (pollu-
tion).
Article 10. Dispute Settlement
Any dispute with respect to the interpretation or
application of this chapter shall, if requested by any
party to the dispute, be resolved by the compulsory
dispute settlement procedures contained in chapter
PART II. FISHERIES
Article 11. General
The coastal State exercises exclusive rights for
the purpose of regulating fishing within the eco-
nomic zone, subject to the provisions of these arti-
cles.
Article 12. Conservation
1. The coastal State shall ensure the conservation
of renewable resources within the economic zone.
2. For this purpose, the coastal State shall apply
the following principles:
(a) allowable catch and other conservation meas-
ures shall be established which are designed, on the
best evidence available to the coastal State, to main-
tain or restore populations of harvested species at
levels which can produce the maximum sustainable
yield, taking into account relevant environmental
and economic factors, and any generally agreed glo-
bal and regional minimum standards;
(b) such measures shall take into account effects
on species associated with or dependent upon har-
vested species and at a minimum, shall be designed
to maintain or restore populations of such associated
or dependent species above levels at which they may
become threatened with extinction;
(c) for this purpose, scientific information, catch
and fishing effort statistics, and other relevant data
shall be contributed and exchanged on a regular ba-
sis;
(d) conservation measures and their implementa-
tion shall not discriminate in form or fact against
any fisherman. Conservation measures shall remain
in force pending the settlement, in accordance with
the provisions of chapter ?, of any disagreement as
to their validity.
Article 13. Utilization
1. The coastal State shall ensure the full utiliza-
tion of renewable resources within the economic
zone.
2. For this purpose, the coastal State shall permit
nationals of other States to fish for that portion of
the allowable catch of the renewable resources not
fully utilized by its nationals, subject to the conser-
vation measures adopted pursuant to article 12, and
on the basis of the following priorities:
(a) States that have normally fished for a re-
source, subject to the conditions of paragraph 3;
(b) States in the region, particularly land-locked
States and States with limited access to living re-
sources off their coast; and
(c) all other States.
The coastal State may establish reasonable regu-
lations and require the payment of reasonable fees
for this purpose.
3. The priority under paragraph 2 (a) above shall
be reasonably related to the extent of fishing by
such State. Whenever necessary to reduce such fish-
ing in order to accommodate an increase in the har-
vesting capacity of a coastal State, such reduction
shall be without discrimination, and the coastal
State shall enter into consultations for this purpose
at the request of the State or States concerned with
a view to minimizing adverse economic consequences
of such reduction.
4. The coastal State may consider foreign nationals
fishing pursuant to arrangements under articles 14
and 15 as nationals of the coastal State for purposes
of paragraph 2 above.
Article 14. Neighbouring Coastal States
Neighbouring coastal States may allow each others'
nationals the right to fish in a specified area of their
respective economic zones on the basis of reciprocity,
or long and mutually recognized usage, or economic
dependence of a State or region thereof on exploita-
tion of the resources of that area. The modalities of
the exercise of this right shall be settled by agree-
ment between the States concerned. Such right can-
not be transferred to third parties.
Article 15. Land-locked States
Nationals of a land-locked State shall enjoy the
privilege to fish in the neighbouring area of the eco-
nomic zone of the adjoining coastal State on the ba-
sis of equality with the nationals of that State. The
modalities of the enjoyment of this privilege shall
be settled by agreement between the parties con-
cerned.
Article 16. International Co-operation Among States
'1. States shall co-operate in the elaboration of
global and regional standards and guidelines for the
conservation, allocation, and rational management
of living resources directly or within the framework
of appropriate international and regional fisheries
organizations.
2. Coastal States of a region shall, with respect
to fishing for identical or associated species, agree
upon the measures necessary to co-ordinate and en-
sure the conservation and equitable allocation of
such species.
3. Coastal States shall give to all affected States
timely notice of any conservation, utilization and al-
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location regulations prior to their implementation,
and shall consult with such States at their request.
Article 17. Assistance to Developing Countries
An international register of independent fisheries
experts shall be established and maintained by the
Food and Agriculture Organization of the United
Nations. Any developing State party to the Conven-
tion desiring assistance may select an appropriate
number of such experts to serve as fishery manage-
ment advisers to that State.
Article 18. Anadromous Species
1. Fishing for anadromous species seaward of the
territorial sea (both within and beyond the economic
zone) is prohibited, except as authorized by the
State of origin in accordance with articles 12 and 13.
2. States through whose internal waters or terri-
torial sea anadromous species migrate shall co-
operate with the State of origin in the conservation
and utilization of such species.
Article 19. Highly Migratory Species
Fishing for highly migratory species shall be reg-
ulated in accordance with the following principles:
A. Management. Fishing for highly migratory
species listed in Annex A within the economic
zone shall be regulated by the coastal State, and
beyond the economic zone by the State of nationality
of the vessel, in accordance with regulations estab-
lished by appropriate international or regional fish-
ing organizations pursuant to this article.
(1) All coastal States in the region, and any other
State whose flag vessels harvest a species subject
to regulation by the organization, shall participate
in the organization. If no such organization has
been established, such States shall establish one.
(2) Regulations of the organization in accordance
with this article shall apply to all vessels fishing
the species regardless of their nationality.
B. Conservation. The organization shall, on the
basis of the best scientific evidence available, estab-
lish allowable catch and other conservation measures
in accordance with the principles of article 12.
C. Allocation. Allocation regulations of the orga-
nization shall be designed to ensure full utilization
of the allowable catch and equitable sharing by mem-
ber States.
(1) Allocations shall take into account the special
interests of the coastal State within whose economic
zone highly migratory species are caught, and shall
for this purpose apply the following principles within
and beyond the economic zone: [insert appropriate
principles].
(2) Allocations shall be designed to minimize ad-
verse economic consequences in a State or region
thereof.
D. Fees. The coastal State shall receive reasonable
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fees for fish caught by foreign vessels in its eco-
nomic zone, with a view to making an effective con-
tribution to coastal State fisheries management and
development programmes. The organization shall
establish rules for the collection and payment of such
fees, and shall make appropriate arrangements with
the coastal State regarding the establishment and
application of such rules. In addition, the organi-
zation may collect fees on a non-discriminatory basis
based on fish caught both within and outside the
economic zone for administrative and scientific re-
search purposes.
E. Prevention of Interference. The organization
shall establish fishing regulations for highly migra-
tory species in such a way as to prevent unjustifiable
interference with other uses of the sea, including
coastal State fishing activities, and shall give due
consideration to coastal State proposals in this re-
gard.
F. Transition. Pending the establishment of an
organization in accordance with this article, the pro-
visions of this article shall be applied temporarily
by agreement among the States concerned.
G. Interim Measures. If the organization or States
concerned are unable to reach agreement on any of
the matters specified in this article, any State party
may request, on an urgent basis, pending resolution
of the dispute, the establishment of interim measures
applying the provisions of this article pursuant to
the dispute settlement procedures specified in chap-
ter ?. The immediately preceding agreed regula-
tions shall continue to be observed until interim
measures are established.
Article 20. Marine Mammals
Notwithstanding the provisions of this chapter
with respect to full utilization of living resources,
nothing herein shall prevent a coastal State or in-
ternational organization, as appropriate, from pro-
hibiting the exploitation of marine mammals.
Article 21. Enforcement
1. The coastal State may, in the exercise of its
rights under this chapter with respect to the re-
newable natural resources, take such measures, in-
cluding inspection and arrest, in the economic zone,
and, in the case of anadromous species, seaward of
the economic zones of the host State and other
States, as may be necessary to ensure compliance
with its laws and regulations, provided that when
the State of nationality of a vessel has effective
procedures for the punishment of vessels fishing in
violation of such laws and regulations, such vessels
shall be delivered promptly to duly authorized offi-
cials of the State of nationality of the vessel for
legal proceedings, and may be prohibited by the
coastal State from any fishing in the zone pending
disposition of the case. The State of nationality
shall within six months after such delivery notify
the coastal State of the disposition of the case.
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2. Regulations adopted by international organiza-
tions in accordance with Article 19 shall be enforced
as follows:
(a) Each State member of the organization shall
make it an offence for its flag vessels to violate such
regulations, and shall co-operate with other States
in order to ensure compliance with such regulations.
(b) The coastal State may inspect and arrest for-
eign vessels in the economic zone for violating such
regulations. The organization shall establish pro-
cedures for arrest and inspection by coastal and
other States for violations of such regulations be-
yond the economic zone.
(c) An arrested vessel of a State member of the
organization shall be promptly delivered to the duly
authorized officials of the flag State for legal pro-
ceedings if requested by that State.
(d) The State of nationality of the vessel shall
notify the organization and the arresting State of
the disposition of the case within six months.
3. Arrested vessels and their crew shall be entitled
to release upon the posting of reasonable bond or
other security. Imprisonment or other forms of
corporal punishment in respect of conviction for
fishing violations may be imposed only by the State
of nationality of the vessel or individual concerned.
PART III. THE CONTINENTAL SHELF
Article 22. General
1. The coastal State exercises sovereign rights
over the continental shelf for the purpose of explor-
ing and exploiting its natural resources.
2. The continental shelf is the sea-bed and subsoil
of the submarine areas adjacent to and beyond the
territorial sea to the limit of the economic zone or,
beyond that limit, throughout the submerged natural
prolongation of the land territory of the coastal
State to the outer limit of its continental margin,
as precisely defined and delimited in accordance with
article 23.
3. The provisions of this article are without preju-
dice to the question of delimitation between adjacent
and opposite States.
Article 23. Limits
(Provisions are needed for locating and defining
the precise limit of the continental margin, and to
provide a precise and permanent boundary between
coastal State jurisdiction and the international sea-
bed area.)
Article 24. Natural Resources
The natural resources referred to in article 22 con-
sist of the mineral and other non-living resources of
the sea-bed and subsoil together with living orga-
nisms belonging to sedentary species, that is to say,
organisms which, at the harvestable stage, either
are immobile on or under the sea-bed or are unable
to move except in constant physical contact with the
sea-bed or the subsoil.
Article 25. Superjacent Waters
The rights of the coastal State over the continental
shelf do not affect the legal status of the superjacent
waters, or that of the air space above those waters.
Article 26. Application of Economic Zone Provisions
The provisions of part 1 of this chapter shall ap-
ply, mutatis mutandis, to the sea-bed and subsoil of
the continental shelf.
Article 27. Duties With Respect to Non-Renewable
Resources
In the exercise of its rights with respect to the
non-renewable resources of the continental shelf, the
coastal State:
(a) shall comply with legal arrangements which
it has entered into with other contracting States,
their instrumentalities, or their nationals in respect
to the exploration or exploitation of such resources
and shall not take property of such States, instru-
mentalities or nationals except for a public purpose
on a non-discriminatory basis and with adequate pro-
visions at the time for prompt payment of just com-
pensation in an effectively realizable form, and
(b) shall pay, in respect of the exploitation of
such non-renewable resources seaward of the terri-
torial sea or the 200-metre isobath, whichever is
farther seaward (insert formula), to be used as
specified in article 1, for international community
purposes, particularly for the benefit of developing
countries.
Article 28. Installations
1. The coastal State shall have the exclusive right
to authorize and regulate on the continental shelf
the construction, operation and use of artificial is-
lands and installations for the purpose of explora-
tion or exploitation of natural resources or for other
economic purposes, and of any installation which
may interfere with the exercise of the rights of the
coastal State.
2. The coastal State may, where necessary, estab-
lish reasonable safety zones around such off-shore in-
stallations in which it may take appropriate meas-
ures to ensure the safety both of the installations
and of navigation. Such safety zones shall be de-
signed to ensure that they are reasonably related to
the nature and function of the installation. Ships of
all nationalities must respect these safety zones.
3. The breadth of the safety zones shall be deter-
mined by the coastal State and shall conform to ap-
plicable international standards in existence or to be
established by the Inter-Governmental Maritime
Consultative Organization regarding the establish-
ment and breadth of safety zones. In the absence of
such additional standards, safety zones around in-
stallations for the exploration and exploitation of
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non-renewable resources of the sea-bed and subsoil
may extend to a distance of 500 metres around the
installations, measured from each point of their
outer edge.
4. Due notice must be given of the construction
of any such installations and the extent of safety
zones, and permanent means for giving warning of
the presence of such installations must be main-
tained. Any such installations which are abandoned
or disused must be entirely removed.
5. States shall ensure compliance by vessels of
their flag with applicable international standards
regarding navigation outside the safety zones but
in the vicinity of such off-shore installations.
6. Installations and safety zones around them may
not be established where interference may be caused
to the use of recognized sea lanes essential to inter-
national navigation.
7. For the purpose of this section, the term "in-
stallations" refers to artificial off-shore islands, fa-
cilities, or similar devices, other than those which
are mobile in their normal mode of operation at sea.
Installations shall not afford a basis for a claim to
a territorial sea or economic zone, and their pres-
ence does not affect the delimitation of the terri-
torial sea or economic zone of the coastal State.
Article 29. Submarine Cables and Pipelines
J. Subject to its right to take reasonable meas-
ures for the exploration and exploitation of the nat-
ural resources of the continental shelf, the coastal
State may not impede the laying or maintenance of
submarine cables or pipelines on the continental
shelf.
2. Nothing in this article shall affect the jurisdic-
tion of the coastal State over cables and pipelines
constructed or used in connexion with the explora-
tion or exploitation of its continental shelf or the
operations of an installation under its jurisdiction,
or its right to establish conditions for cables or pipe-
lines entering its territory or territorial sea.
ANNEX A
Highly Migratory Species
1. Albacore Tuna
2. Bluefin Tuna
3. Bigeye Tuna
4. Skipjack Tuna
5. Yellowfin Tuna
6. Pomf rets
7. Marlin
3. Sailfish
9. Swordfish
10. Sauries
11. Dolphin (fish)
12. Cetaceans (whales and porpoises)
30
ALTERNATIVE TEXTS OF DRAFT ARTICLES
ON SETTLEMENT OF DISPUTES
AUSTRALIA, BELGIUM, BOLIVIA, COLOMBIA, EL SAL-
VADOR, LUXEMBOURG, NETHERLANDS, SINGAPORE
AND UNITED STATES OF AMERICA: WORKING PAPER
ON THE SETTLEMENT OF LAW OF THE SEA DISPUTES
The representatives of a number of countries have
held informal consultations on issues connected with
the settlement of disputes which may arise under
the Law of the Sea Convention. This working paper,
resulting from those discussions, is presented as a
possible framework for further discussions at the
next session of the Conference. It sets out various
possible alternatives, together with notes indicating
relevant precedents." The paper does not necessarily
reflect the proposals of individual Governments, and
does not in any way preclude any sponsoring dele-
gation from presenting later its own proposals on
the subject.
Where only one text appears under a particular
heading, this does not necessarily imply that there
are no other opinions concerning that question or
that all delegations which have participated in the
informal consultations agree on the necessity for
such a provision.
1. Obligation to settle disputes under the Convention
by peaceful means
Alternative A
The Contracting Parties shall settle any dispute
between them relating to the interpretation or ap-
plication of this Convention through the peaceful
means indicated in Article 33 of the Charter of the
United Nations.
Alternative B
[Having regard to the Declaration on Principles
of International Law concerning Friendly Relations
and Cooperation among States in accordance with
the Charter of the United Nations,] the Contracting
Parties shall settle any dispute between them relat-
ing to the interpretation or application of this Con-
vention by peaceful means in conformity with the
Charter of the United Nations.
2. Settlement of disputes by means chosen by the
parties
Alternative A
If any dispute arises between two or more Con-
tracting Parties relating to the interpretation or
'The notes indicating relevant precedents which
were included in the working paper (U.N. doe. Al
CONF.62/L.7, Aug. 27) are not printed here.
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application of this Convention, those Parties shall
consult together with a view to the settlement of the
dispute by negotiation, inquiry, mediation, concilia-
tion, arbitration, judicial settlement, recourse to
special procedures provided for by an international
or regional organization, or other peaceful means
of their own choice.
Alternative B
The parties to the dispute may agree to settle
the dispute by any peaceful means of their own
choice, including negotiation, mediation, inquiry, con-
ciliation, arbitration, judicial settlement, or recourse
to special procedures provided for by an interna-
tional or regional organization.
3. Clause relating to other obligations'
Alternative A
If the parties to a dispute [agree to resort to a
procedure entailing a binding decision or] have
accepted, through a general, regional, or special
agreement, or some other instruments, an obligation
to resort to arbitration or judicial settlement, any
party to the dispute shall be entitled to refer it to
[such procedure or to] arbitration or judicial settle-
ment in accordance with that agreement or instru-
ments in place of the procedures specified in this
Convention.
Alternative B
The provisions of this Convention relating to dis-
pute settlement shall not apply to a dispute with
respect to which the parties are bound by an agree-
ment, or other instruments, obliging them. to submit
that dispute to another procedure entailing a binding
decision.
Alternative C
Notwithstanding the provisions of any agreement
or other instruments in force between them, the
Contracting Parties shall, unless they otherwise
agree, apply the procedures laid down in this Con-
vention to any dispute relating to its interpretation
or application.
4. Clause relating to settlement procedures not en-
tailing a binding decision
Alternative A
Where a Contracting Party which is a party to a
dispute relating to the interpretation or application
of this Convention has submitted that dispute to a
dispute settlement procedure not entailing a binding
7 A special provision may be needed when parties
to a dispute are subject to the jurisdiction of the
International Court of Justice as well as Parties to
this Convention.
decision, the other party or parties to the dispute
may at any time refer it to a dispute settlement pro-
cedure provided for by this Convention, unless the
parties have agreed otherwise.
Alternative B
Notwithstanding any agreement to refer a dispute
to a procedure not entailing a binding decision, any
Contracting Party which is a party to a dispute re-
lating to the interpretation or application of this
Convention, which is required by this Convention to
be submitted on the application of one of the par-
ties to a dispute settlement procedure entailing a
binding decision, may refer the dispute at any time
to that procedure.
Alternative C
The right to refer a dispute to the settlement pro-
cedure provided for by this Convention for obtaining
a binding decision may be exercised only after the
expiration of the time-limit established by the par-
ties in an agreement to resort to a dispute settle-
ment procedure which does not entail a binding de-
cision, or, in the absence of such a time-limit, if,
[within a period of ? months] [within a reasonable
time, taking into account all the relevant circum-
stances] that procedure has not been applied or has
not resulted in a settlement of the dispute.
5. Obligation to resort to a means of settlement re-
sulting in a binding decision
Alternative A.1
Any dispute which may arise between two or
more Contracting Parties regarding the interpreta-
tion or application of this Convention shall be sub-
mitted to arbitration at the request of one of the
parties to the dispute.
Alternative A.2
Any dispute between two or more Parties to this
Convention concerning the interpretation or appli-
cation of this Convention shall, if settlement by ne-
gotiation between the Parties involved has not been
possible, and if these Parties do not otherwise agree,
be submitted upon request of any of them to arbi-
tration as set out in annex . . . to this Convention.
Alternative B.1
Any dispute between two or more Contracting
Parties relating to the interpretation or application
of this Convention shall be submitted, at the request
of any of the parties to the dispute, to the Law of
the Sea Tribunal to be established in accordance
with the annexed statute.
Alternative B.2
Notwithstanding the submission of a dispute to a
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procedure not entailing a binding decision, any Con-
tracting Party which is party to a dispute relating
to the interpretation or application of this Conven-
tion, which is required by this Convention to be sub-
mitted on the application of one of the parties to a
dispute settlement procedure entailing a binding de-
cision, may refer the dispute at any time to the Law
of the Sea Tribunal.
Alternative C.1
Any dispute arising between Contracting Parties
concerning the interpretation or application of this
Convention which is not settled by negotiation shall
be referred to the International Court of Justice by
the application of any party to the dispute.
Alternative C.2
Any dispute arising between Contracting Parties
concerning the interpretation or application of this
Convention shall be referred by application of any
party to the dispute to a chamber to be established
in accordance with the Statute of the International
Court of Justice to deal with the Law of the Sea
disputes.
Alternative D
Subject to the provisions of this Chapter, any
party to a dispute relating to the interpretation or
application of this Convention shall be entitled to re-
fer such dispute at any time to [the dispute settle-
ment procedures entailing a binding decision which
are provided for in this Convention] [arbitration]
[the tribunal established under this Convention]
[the International Court of Justice].
6. The relationship between general and functional
approaches
Alternative A.1
When a party to a dispute objects to a decision
arrived at through a specialized dispute settlement
procedure 8 provided for in this Convention, that
party, may have recourse to the dispute settlement
procedure entailing a binding decision provided for
in this chapter on any of the following grounds:
(a) lack of jurisdiction;
(b) infringement of basic procedural rules;
(c) misuse of powers; or
(d) violation of the Convention.
Alternative A.2
Whenever this Convention provides for a special-
ized procedure, without allowing further recourse
It is envisaged that provisions relating to special
procedures which may be required in such functional
fields as fishing, sea-bed, marine pollution, scientific
research, will be set out either in a separate part
of the dispute settlement chapter or within the chap-
ter to which they relate.
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to the dispute settlement procedure entailing a bind-
ing decision, this chapter shall not apply.
Alternative B.1
1. Before resorting to the dispute settlement pro-
cedure entailing a binding decision provided for in
this chapter, the parties to any dispute relating to
chapters ? of this Convention [e.g., those relating
to fishing, pollution, or scientific research] may agree
to refer it to a special fact-finding procedure in
accordance with the provisions of annex ?.
2. In any procedure entailing a binding decision
under this chapter, the findings of fact made by
the fact-finding machinery shall be considered con-
clusive [unless one of the parties presents positive
proof that a gross error has been committed].
or
2. Should the findings of fact made by the fact-
finding machinery be challenged by a recourse to the
dispute settlement procedure provided for in this
chapter, the party challenging such facts shall bear
the burden of proof.
Alternative B.2
1. At the request of any party to a dispute relat-
ing to chapters ? of this Convention [e.g., those
relating to fishing, pollution or scientific research],
the dispute shall be referred to a special fact-finding
procedure in accordance with the provisions in an-
nex ?.
2. If any party to the dispute considers that the
fact-finding decision is not in accordance with the
provisions of this Convention, it may appeal to
the dispute settlement procedure provided for in
this chapter.
Alternative C.1
1. The Law of the Sea Tribunal, to be established
in accordance with the annexed statute shall estab-
lish special chambers to deal with disputes relating
to chapters of this convention. Each chamber of
the Tribunal shall be assisted in the consideration of
a dispute by four technical assessors sitting with it
throughout all the stages of the proceedings, but
without the right to vote. These assessors shall
be chosen by each chamber from the list of qualified
persons prepared pursuant to the statute of the
Tribunal. [Their opinion on scientific and technical
questions shall be considered by the chamber as
conclusive.]
2. Each chamber shall deal with the dispute in
accordance with the special procedure prescribed for
that chamber by the statute of the Tribunal, taking
into account the special requirements of each cate-
gory of cases.
Alternative C.2
1. When a dispute submitted to the Law of the
Sea Tribunal involves scientific or technical ques-
tions, the Tribunal shall refer such matters to a
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special committee of experts chosen from the list
of qualified persons prepared in accordance with the
statute of the Tribunal.
2. If the dispute is not settled on the basis of the
committee's opinion, either party to the dispute may
request that the Tribunal proceed to consider the
other aspects of the dispute, taking into considera-
tion the findings of the committee and all other
pertinent information.
7. Parties to a dispute
Alternative A
1. The dispute settlement machinery shall be open
to the States parties to this Convention.
2. The conditions under which the machinery shall
be open to other States, international intergovern-
mental organizations, [non-governmental interna-
tional organizations having a consultative relation-
ship with the United Nations or a specialized agency
of the United Nations or any other international
organization], and natural and juridical persons
shall be laid down [by . . .] [in an annex to this
Convention], but in no case shall such conditions
place the parties in position of inequality.
Alternative B
The dispute settlement machinery shall be open
to the States parties to this Convention [and to
the Authority, subject to the provisions of article
8. Local remedies
Alternative A
A Contracting Party which has taken measures
alleged to be contrary to this Convention shall not
be entitled to object to a request for submission of
dispute to the dispute settlement procedure under
this chapter solely on the ground that any remedies
under its domestic law have not been exhausted.
Alternative B.1
The Contracting Parties shall not be entitled to
submit a dispute to the dispute settlement procedure
under this chapter, if local remedies have not been
previously exhausted, as required by international
law.
Alternative B.2
1. In the case of a dispute relating to the exercise
by the coastal State of its enforcement jurisdiction
in accordance with this Convention, the occasion
[subject matter] of which, according to the domestic
law of the coastal State, falls within the competence
of its judicial or administrative authorities, the
coastal State shall be entitled to request that the
submission of the dispute to the means of dispute
settlement provided for in this chapter be delayed
until a decision with final effect has been pronounced,
within a reasonable time, by the competent authority.
2. In such a case, the party to the dispute which
desires to resort to the procedure for dispute set-
tlement provided for in this chapter may not submit
the dispute to such procedure after the expiration
of a period of one year from the date of the afore-
mentioned decision.
[3. When the case has been submitted to the
settlement procedure under this chapter, the party
challenging the findings of fact by the judicial au-
thorities of the coastal States shall bear the burden
of proof.]
9. Advisory jurisdiction
If a court of a Contracting Party has been au-
thorized by the domestic law of that Party to request
the Law of the Sea Tribunal to give an advisory
opinion [a ruling] on any question relating to the
interpretation or application of this Convention, the
Law of the Sea Tribunal may [shall] give such an
opinion [ruling].
10. Law applicable
Alternative A
In any dispute submitted to it the dispute settle-
ment machinery shall apply the law of this Conven-
tion, and shall ensure that this law is observed in
the interpretation and application of this Conven-
tion.
Alternative B
In any dispute submitted to it, the dispute settle-
ment machinery shall apply, in the first place, the
law of this Convention. If, however, the dispute re-
lates to the interpretation or application of a re-
gional arrangement or public or private agreement
concluded pursuant to this Convention, or to regu-
lations adopted by a competent international orga-
nization, the dispute settlement machinery shall
apply, in addition to the Convention, the rules con-
tained in such arrangements, agreements, or regu-
lations, provided the regulations are not inconsistent
with this Convention.
Alternative C
Any dispute submitted to the dispute settlement
procedure established by this convention shall be de-
cided in accordance with applicable international
law.
Alternative D
In any dispute submitted to it, the dispute settle-
ment machinery shall apply:
(a) the provisions of this Convention;
(b) the rules and regulations laid down by the
competent international authority;
(c) the terms and conditions of the relevant con-
tracts or other legal arrangements entered into by
the competent international authority.
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10A. Equity jurisdiction
The provisions of this chapter shall not prejudice
the right of the parties to a dispute to agree that
the dispute be settled ex aequo et bono.
11. Exceptions and reservations to the dispute set-
tlement provisions
Alternative A
The provisions of this chapter shall apply to all
disputes relating to the interpretation and applica-
tion of this Convention.
Alternative 8.1
The dispute settlement machinery shall have no
jurisdiction to render binding decisions with respect
to the following categories of disputes:
(a) Disputes arising out of the normal exercise
of regulatory or enforcement jurisdiction, except
when gross or persistent violation of this Convention
or abuse of power is alleged?
(b) Disputes concerning sea boundary delimita-
tions between States.
(c) Disputes involving historic bays or limits of
territorial sea.
(d) Disputes concerning vessels and aircraft en-
titled to sovereign immunity under international law,
and similar cases in which sovereign immunity ap-
plies under international law.
(e) Disputes concerning military activities [, un-
less the State conducting such activities gives its
express consent].
(f) ? ? ? ?
(g) ? ? ? ?
Alternative B.2
The dispute settlement machinery shall have no
jurisdiction with respect to the following categories
of disputes:
(a) Disputes arising out of the normal exercise of
discretion by a coastal State pursuant to its regula-
tory and enforcement jurisdiction under this Conven-
tion, except in cases involving an abuse of power.'
(b) Disputes concerning sea boundary delimita-
tions between adjacent and opposite States, includ-
ing those involving historic bays and the delimita-
tion of the adjacent territorial sea.
(c) Disputes concerning vessels and aircraft enti-
tled to sovereign immunity under international law,
and similar cases in which sovereign immunity ap-
plies under international law.
(d) Disputes concerning military activities [, un-
less the State conducting such activities gives its
express consent.]
(e) ? ? ? ?
(f) ? ? ? ?
?The precise drafting and implications of this ex-
ception will require further examination in the light
of the substantive provisions of this Convention.
34
Alternative C.1
1. In ratifying this Convention, acceding to it, or
accepting it, a State may declare that it does not ac-
cept the jurisdiction of the dispute settlement ma-
chinery to render binding decisions with respect to
one or more of the following categories of disputes:
(a) Disputes arising out of the normal exercise
of regulatory or enforcement jurisdiction, except
when gross or persistent violation of this Convention
or abuse of power is alleged.'"
(b) Disputes concerning sea boundary delimita-
tions between States.
(c) Disputes involving historic bays or limits of
territorial sea.
(d) Disputes concerning vessels and aircraft en-
titled to sovereign immunity under international
law, and similar cases in which sovereign immunity
applies under international law.
(e) Disputes concerning military activities [, un-
less the State conducting such activities gives its
express consent].
(f) ? ? ? ?
(g) ? ? ? ?
2. If one of the Contracting Parties has made
such a declaration, any other Contracting Party may
enforce the same exception in regard to the Party
which made the declaration.
Alternative C.2
1. In ratifying this Convention, acceding to it, or
accepting it, a State may declare that it does not
accept the jurisdiction of the dispute settlement ma-
chinery with respect to one or more of the following
categories of disputes:
(a) Disputes arising out of the normal exercise of
discretion by a coastal State pursuant to its regula-
tory and enforcement jurisdiction under this Conven-
tion, except in cases involving an abuse of power.'"
(b) Disputes concerning sea boundary delimita-
tions between adjacent and opposite States, includ-
ing those involving historic bays and the delimita-
tion of the adjacent territorial sea.
(c) Disputes concerning vessels and aircraft en-
titled to sovereign immunity under international
law, and similar cases in which sovereign immunity
applies under international law.
(d) Disputes concerning military activities [, un-
less the State conducting such activities gives its
express consent.]
(e) . . . .
(f) ? ? ? ?
2. If one of the Contracting Parties has made
such a declaration, any other Contracting Party may
enforce the same exception in regard to the Party
which made the declaration.
" The precise drafting and implications of this
reservation will require further examination in the
light of the substantive provisions of this Convention.
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Ambassador Stevenson Reviews Work
of Law of the Sea Conference
Statement by John R. Stevenson,
This is the first of a series of reports I
will be making in the next few weeks, in-
cluding reports to the President and to com-
mittees of the House and Senate, about the
results of this session of the Law of the Sea
Conference. I want to emphasize at the out-
set that while the results obviously are not
all we hoped for, neither is there any cause
for billing the conference a failure.
I said in my first press conference here
on June 20 that "great issues, involving
the interests of so many states, are obviously
not easily resolved." This is not to say that
they cannot and will not be resolved within
the time framework originally scheduled by
the United Nations. That time framework
for completion of a treaty in 1975 is, as you
know, of substantive importance in this ne-
gotiation. Not only the United States but
many other countries are under domestic po-
litical pressures to take legislative action
which would have the effect of foreclosing
many avenues of negotiation which have
opened up this session.
What we are attempting to do here is to
establish the goals of our international so-
ciety for a large part of the world for the
foreseeable future. This would not be easy
were we able to foresee all the factual cir-
cumstances of man's future in the seas. It
'Issued at a news conference held at Caracas on
Aug. 28 at the conclusion of the Caracas session of
the Third U.N. Conference on the Law of the Sea
(text from press release 353 dated Sept. 3). Am-
bassador Stevenson is Special Representative of the
President for the Law of the Sea Conference and
chairman of the U.S. delegation to the conference.
is more difficult when in large measure we
must act on imperfect knowledge and in re-
liance on our general experience that a sys-
tem of legal order is a preferable approach
to peaceful accommodation in the seas.
Perhaps a most significant result of this
session, and one not to be underestimated,
has been the agreement of almost all nations
represented here that the interests of all will
be best served by an acceptable and timely
treaty. To that end, the conference has
scheduled not only the next session in the
spring in Geneva but a return to Caracas
for the signing of the agreement in the ex-
pectation that this will take place in ac-
cordance with the U.N. timetable.
Other accomplishments of the session are
considerable. Among the most important are
the following:
a. The vast array of law of the sea issues
and proposals within the mandate of Com-
mittee II dealing with territorial sea, straits,
and the economic zone was organized by the
committee into a comprehensive set of in-
formal working papers reflecting main
trends on each precise issue. A large num-
ber of formal proposals were introduced as
a basis for insertions in these main trends
papers. All states can now focus on each
issue, and the alternative solutions, with rel-
ative ease. A similar development occurred
with respect to marine scientific research.
b. The transition from a Seabed Commit-
tee of about 90 to a conference of almost
150 was achieved without major new stum-
bling blocks and with a minimum of delay.
c. The overwhelming majority clearly de-
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sires a treaty in the near future. Agreement
on the rules of procedure is clear evidence
Of this desire to achieve a widely acceptable
treaty. The tone of the meeting was mod-
erate and serious. The conference adopted
a recommended 1975 work schedule deliber-
ately devised to stimulate agreement.
d. The inclusion in the treaty of a 12-mile
territorial sea and a 200-mile economic zone
was all but formally agreed, subject of course
to acceptable resolution of other issues, in-
cluding straits. Accordingly, expanded
coastal state jurisdiction over living and
nonliving resources appears assured.
e. With respect to the deep seabeds, the
first steps have been taken into real nego-
tiation of the basic questions of the system
of exploitation and the conditions of exploi-
tation.
f. Traditional regional and political align-
ments of states are being replaced by in-
formal groups whose membership is based
on similarities of interest on a particular is-
sue. This has greatly facilitated rationaliza-
tion of issues and is necessary for finding
effective accommodations.
g. The number and tempo of private meet-
ings has increased considerably and moved
beyond formal positions. This is essential
to a successful negotiation.
With few exceptions, the conference pa-
pers now make it clear what the structure
and general content of the treaty will be.
The alternatives to choose from and the
blanks to be filled in, and even the relative
importance attached to different issues, are
all known.
What was missing in Caracas was the
political will to negotiate, and the main rea-
son for this was the conviction that this
would not be the last session. The next step,
as I said in my plenary speech, is for gov-
ernments to make the political decisions
necessary to resolve a small number of criti-
cal issues. In short, we must now move from
the technical drafting and negotiating stage
at this session, which has laid bare both
the outlines of agreement and the details of
36
disagreement, to the political level which
makes compromise possible.
Each state here, depending upon its situa-
tion and circumstances, has a different idea
of the relative importance of different issues
and how the blanks should be filled in. The
United States and some others have stated
that it is essential to preserve unimpeded
passage of straits and the general rights
of navigation, in which all countries which
trade with the rest of the world have a vital
interest. There are differences as to the
balance of coastal state rights and duties
within an economic zone. There are differ-
ences as to how the problem of pollution
within the zone should be handled and how
scientific research can be conducted in a
fashion that will not hinder research but will
also recognize the interests of states in ac-
tivities near their coasts. There are dif-
ferences as to how and by whom the deep
seabed should be exploited.
What we have done, I believe, is to lay
all these problems on the table in the form
of concrete alternative treaty texts, so that
representatives of governments can go home
and provide their governments with the in-
formation and the assessments that will per-
mit them to decide what accommodations will
best serve our common purpose. My dele-
gation expects to arrive in Geneva willing
to negotiate on all the remaining troublesome
aspects of this treaty in the hope and in the
spirit that other governments will be pre-
pared to do likewise.
I have every confidence that the necessary
decisions will be made and that most states
will come to Geneva ready to conclude a
treaty. Factual assessments can be made
by computers. Judgments of the future, in-
formed judgments on the best course for
peace and stability of the world, must be
made by men and governments in good faith
and a spirit of compromise.
The United States has, I think, demon-
strated that good faith and the willingness
to accommodate the interests of others. There
is much work to be done, but I look forward
to returning to this hospitable city to sign
the Treaty of Caracas next year.
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Department Reports to Congress on Law of the Sea Conference
and Discusses Legislation on 200-Mile Fisheries Jurisdiction
Following are statements presented to the
Senate Committee on Foreign Relations on
September 5 by Carlyle E. Maw, Under Sec-
retary for Security Assistance; John R. Ste-
venson, Special Representative of the Presi-
dent and chairman of the U.S. delegation to
the Third U.N. Conference on the Law of the
Sea; and John Norton Moore, Deputy Special
Representative of the President and deputy
chairman of the delegation.'
STATEMENT BY UNDER SECRETARY MAW
I appreciate the opportunity to appear be-
fore this committee to testify on S. 1988. The
Department of State attaches great impor-
tance to the successful conclusion of a com-
prehensive oceans law treaty, and we are con-
cerned that unilateral action at this time
would seriously damage the chances for
agreement.
S. 1988, as amended, has major implica-
tions for the foreign relations of the nation.
The administration strongly supports the ef-
fort to conclude a timely oceans law treaty
within the Third U.N. Conference on the
Law of the Sea. It is in the interest of all na-
tions that such a comprehensive treaty be
concluded.
The great potential of the world's oceans
can only be fully realized with the stability
which accompanies broadly based agreement
on their legal regime. And without such an
agreement, their great potential for peaceful
1 The complete transcript of the hearings will be
published by the committee and will be available
from the Superintendent of Documents, U.S. Gov-
ernment Printing Office, Washington, D.C. 20402.
development may be overshadowed by the po-
tential for conflict.
It is particularly important that during the
final stages of the Law of the Sea Conference
all nations should refrain from new ocean
claims which could irreparably damage the
delicate fabric of the negotiation. Passage
of S. 1988 or similar legislation unilaterally
extending the fisheries jurisdiction of the
United States would be seriously damaging
to the negotiations as well as more broadly
to the overall oceans and foreign relations
interests of the United States. We strongly
oppose the passage of this or similar legisla-
tion at this time.
Mr. Chairman, Ambassador John R. Ste-
venson, the Special Representative of the
President for the Law of the Sea Conference,
will report on the progress made at the Ca-
racas session of the Third U.N. Conference
on the Law of the Sea. Professor John Nor-
ton Moore, the Chairman of the National Se-
curity Council Interagency Task Force on
the Law of the Sea and Deputy Special Rep-
resentative of the President, will then give
the executive branch views on S. 1988.
STATEMENT BY AMBASSADOR STEVENSON
I welcome this opportunity to appear be-
fore the Senate Foreign Relations Committee
to report on the progress made at the first
substantive session of the Third U.N. Con-
ference on the Law of the Sea, held in Ca-
racas, Venezuela, from June 20 to August
29, 1974.
Before proceeding with this report, I would
like to say how much we appreciated the at-
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tendance at the conference of three members
of this committee, Senators Clifford Case,
Edmund Muskie, and Claiborne Pell, as well
as members of their and the committee's
staffs. We are deeply grateful for their will-
ingness to attend the conference and for the
advice and assistance that they and other
members of the committee have given to our
efforts to achieve an agreed constitution and
supporting legal regime for two-thirds of
this planet. It has been and will remain a
fundamental part of our policy to work
closely with the Congress and this committee
to achieve a law of the sea treaty that fully
protects the basic interests of the United
States.
Accomplishments of Caracas Session
I want to emphasize at the outset that,
while the results of the Caracas session were
not all we hoped for, the session was not a
failure.
A most significant result was the apparent
agreement of most nations represented there
that the interests of all will be best served
by an acceptable and timely treaty.
To that end, the conference has scheduled
not only the next session in the spring in
Geneva but a return to Caracas for the sign-
ing of this agreement in the expectation that
this will take place in accordance with the
U.N. timetable. That timetable provides for
conclusion of the treaty in 1975.
Further evidence of this desire to achieve
promptly a widely acceptable treaty was re-
flected in the adoption by consensus of the
rules of procedure early in the session. These
rules make several changes in normal proce-
dures that are designed to promote wide-
spread agreement.
The tone of the general debate and the in-
formal meetings was moderate and serious
and reflected wide agreement on the broad
outlines of a comprehensive general agree-
ment.
Finally, I am sure the members of the Sen-
ate who were with us will agree that the del-
egates from all regions worked hard. Three
or four simultaneous meetings were common,
38
and there were some night sessions. The
number of papers worked on was enormous,
but this time the object?largely achieved?
was organizing and reducing the alternatives,
not proliferating them.
Other accomplishments of the session were
considerable. Among the most important are
the following:
a. The vast array of critical law of the sea
issues and proposals within the mandate of
Committee II?including, among others, the
territorial sea, economic zone, straits, fisher-
ies, and the continental margin?was orga-
nized by the committee into a comprehensive
set of working papers containing precise
treaty texts reflecting main trends on each
precise issue. All states can now focus on
each issue, and the alternative solutions, with
relative ease.
A similar development occurred with re-
spect to marine scientific research in Com-
mittee III. Committee I, dealing with the
novel subject of a legal regime for exploiting
the deep seabed, had previously agreed to al-
ternative treaty texts in the preparatory com-
mittee and further refined these texts at the
Caracas session.
b. The transition from a preparatory com-
mittee of about 90 to a conference of almost
150, including many newly independent
states, was achieved without major new
stumbling blocks and with a minimum of de-
lay.
c. The inclusion in the treaty of a 12-mile
territorial sea and a 200-mile economic zone
was all but formally agreed, subject of course
to acceptable resolution of other issues, in-
cluding unimpeded transit of straits. Ac-
cordingly, expanded coastal state jurisdiction
over living and nonliving resources appears
assured as part of the comprehensive treaty.
d. With respect to the deep seabeds, the
first steps have been taken into real nego-
tiation of the basic questions of the system
of exploitation and the conditions of exploi-
tation.
e. Traditional regional and political align-
ments of states are being replaced by infor-
mal groups whose membership is based on
similarities of interest on a particular issue.
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This has greatly facilitated clarification of
issues and is necessary for finding effective
accommodations.
f. The number and tempo of private meet-
ings has increased considerably and moved
beyond formal positions. This is essential to
a successful negotiation. Of course, by their
very nature, the results of such meetings
cannot be discussed publicly.
With few exceptions, the conference papers
now make it clear what the structure and
general content of the treaty will be. The al-
ternatives to choose from and the blanks to
be filled in, and even the relative importance
attached to different issues, are well known.
Accommodation on Critical Issues Required
What was missing in Caracas was suffi-
cient political will to make hard negotiating
choices. A principal reason for this was the
conviction that this would not be the last
session. The absence prior to the completion
of this session of organized alternate treaty
texts on many issues also inhibited such de-
cisionmaking.
The next step is for governments to make
the political decisions necessary to resolve a
small number of critical issues. In short, we
must now move from the technical drafting
and preliminary exploratory exchanges of
views at this just-completed session, which
has laid bare both the outlines of agreement
and the details of disagreement, to the high-
est political levels, involving heads of states
themselves, to make accommodation on these
critical issues possible.
The fundamental problem is that most
states believe the major decisions must be
put together in a single package. Every state
has different priorities, and agreement on
one issue is frequently conditioned on agree-
ment on another. Thus it might have been
possible?and might have been helpful to the
executive branch in its efforts here today?
to adopt a general declaration of principles
in Caracas endorsing, among other things, a
12-mile territorial sea and a 200-mile eco-
nomic zone.
Our delegation opposed such an idea be-
: CIA-RDP80601495R000800140001-8
cause it would have diverted us from nego-
tiating the key details of an economic zone
that can spell the difference between true
agreement and the mere appearance of agree-
ment and because our willingness to support
such concepts is also conditioned on satis-
factory resolution of other issues, including
unimpeded passage of straits. In choosing to
concentrate on precise texts and alternatives,
our delegation believed we were in fact best
promoting widespread agreement on sched-
ule. However, we recognized that the ab-
sence of tangible symbols of agreement would
place us in a politically difficult situation be-
tween sessions.
In his closing statement before the Caracas
session, the President of the conference, rec-
ognizing the problem, stated, "we should re-
strain ourselves in the face of the temptation
to take unilateral action," and then urged
states to prepare to reach agreement "with-
out delay" since governments cannot be ex-
pected to exercise "infinite patience."
We regret that for a variety of reasons the
conference was unable to capitalize upon the
initial prevailing good will to produce a final
treaty at the Caracas session. Nevertheless
the political parameters of an overall agree-
ment were made much clearer at Caracas,
and we are at the stage where differences in
approaches are embodied in specific treaty
articles expressed as alternative formula-
tions on almost all the major issues.
Rights and Duties in the Economic Zone
On July 11 at a plenary session, we noted
there was a growing consensus on the limits
of national jurisdiction, which we expressed
in the following terms: 2
A maximum outer limit of 12 miles for the terri-
torial sea and of 200 miles for the economic zone . .
conditional on a satisfactory overall treaty pack-
age and, more specifically, on provisions for unim-
peded transit of international straits and a balance
between coastal state rights and duties within the
economic zone.
To promote negotiations on the essential
For a statement by Ambassador Stevenson made
on July 11, see BULLETIN of Aug. 5, 1974, p. 232.
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balance of coastal state rights and duties the
United States submitted draft articles pro-
posing the establishment of a 200-mile eco-
110MiC zone in the treaty. The U.S. draft arti-
cles consist of three sections: the economic
zone, fishing, and the continental shelf.
The economic zone section provides for a
200-mile outer limit with coastal state sov-
ereign and exclusive rights over resources,
exclusive rights over drilling and economic
installations, and other rights and duties re-
garding scientific research and pollution to
be specified. There would be coastal state en-
vironmental duties with respect to installa-
tions and seabed activities. All states would
enjoy freedom of navigation and other rights
recognized by international law within the
economic zone.
The fishing section gives the coastal state
exclusive rights for the purpose of regulating
fishing in the 200-mile economic zone sub-
ject to a duty to conserve, and to insure
full utilization of, fishery stocks taking into
account environmental and economic factors.
In substance, there is no significant dif-
ference between the objectives of S. 1988
and the U.S. proposal at the conference. Fish-
ing for anadromous species such as salmon
beyond the 12-mile territorial sea would be
prohibited except as authorized by the host
state. Highly migratory species such as tuna
would be regulated by the coastal state in
the zone and by the flag state outside the
zone, in both cases in accordance with regu-
lations established by appropriate interna-
tional or regional organizations. Membership
in the organization would be mandatory, and
the coastal state would receive reasonable
fees for the highly migratory fish caught
in its zone by foreign vessels. The interna-
tional organization, in establishing equitable
allocation regulations, would be obligated to
insure full utilization of the resource and
to take into account the special interests of
the coastal states within whose economic
zones highly migratory fish are caught.
The continental shelf section provides for
coastal state sovereign rights over explora-
tion and exploitation of continental shelf
resources. The continental shelf is defined
40
as extending to the limit of the economic
zone or beyond to a precisely defined outer
limit of the continental margin.
The coastal state would have a duty to
respect the integrity of foreign investment
on the shelf and to make payments from
mineral resource exploitation for interna-
tional community purposes, particularly for
the economic benefit of developing countries.
In our plenary statement we suggested that
these payments should be at a modest and
uniform rate. The revenue-sharing area
would begin seaward of 12 miles or 200
meters' water depth, whichever is further
seaward.
The draft articles on the economic zone
place the United States in the mainstream
of the predominant trends in the conference,
and we were pleased with the favorable re-
action to our proposal.
We were disappointed, however, at the
support, particularly among a number of
African countries, for an economic zone in
which there would be plenary coastal state
jurisdiction not only over resources but over
scientific research and vessel-source pollu-
tion as well and in all of these areas there
would be no international standards except
provisions for freedom of navigation and
overflight and the right to lay submarine
cables and pipelines. Many of the same coun-
tries are saying that if a pattern of unilateral
action by individual countries emerges be-
fore a treaty is agreed they would go further
and opt for a full 200-mile territorial sea.
We believe that specifying the rights and
duties of both coastal states and other states
in the economic zone is the approach best
designed to avoid the sterile debate over ab-
stract concepts.
At the final meeting of the Second Com-
mittee on August 28, the chairman, Ambas-
sador Andres Aguilar of Venezuela, made a
constructive and challenging statement sum-
ming up its work. On its own initiative, the
committee decided to have the statement cir-
culated as an official committee document.
This occurred after initial opposition by the
200-mile territorial sea supporters, which
was withdrawn in the face of other delega-
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necessary. Because of its great importance
and the universal respect and admiration
earned by Chairman Aguilar for his strong
and effective leadership, I would like to quote
briefly from that statement:
No decision on substantive issues has been taken
at this session, nor has a single article of the fu-
ture convention been adopted, but the states rep-
resented here know perfectly well which are at
this time the positions that enjoy support and which
are the ones that have not managed to make any
headway.
The paper that sums up the main trends does
not pronounce on the degree of support which each
of them has enlisted at the preparatory meetings
and the conference itself, but it is now easy for
anyone who has followed our work closely to discern
the outline of the future convention.
So far each state has put forward in general
terms the positions which would ideally satisfy its
own range of interests in the seas and oceans.
Once these positions are established, we have before
the opportunity of negotiation based on an ob-
jective and realistic evaluation of the relative
strength of the different opinions.
It is not my intention in this statement to present
a complete picture of the situation as I see it per-
sonally, but I can offer some general evaluations
and comments.
The idea of a territorial sea of 12 miles and an
exclusive economic zone beyond the territorial sea
up to a total maximum distance of 200 miles is,
at least at this time, the keystone of the compromise
solution favored by the majority of the states par-
ticipating in the conference, as is apparent from
the general debate in the plenary meetings and the
discussions held in our committee.
Acceptance of this idea is, of course, dependent
on the satisfactory solution of other issues, especially
the issue of passage through straits used for inter-
national navigation, the outermost limit of the con-
tinental shelf and the actual retention of this con-
cept, and, last but not least, the aspirations of the
landlocked countries and of other countries which,
for one reason or another, consider themselves geo-
graphically disadvantaged.
There are, in addition, other problems to be studied
and solved in connection with this idea; for example,
those relating to archipelagoes and the regime of
islands in general.
It is also necessary to go further into the matter
of the nature and characteristics of the concept of
the exclusive economic zone, a subject on which
important differences of opinion still persist.
On all these subjects substantial progress has
been made which lays the foundations for negotia-
tion during the intersessional period and at the next
session of the conference.
Mr. Chairman, perhaps the most marked
differences between the position of the
United States and that of a majority of other
states at the conference emerged in the First
Committee, which deals principally with the
mining of manganese nodules in the deep sea-
bed for the production of nickel, copper, co-
balt, and perhaps certain other metals. The
basic differences relate to who will exploit
the deep seabed resources and how this ex-
ploitation will take place.
The United States took the position that
access to the resources should be guaranteed
on a nondiscriminatory basis under reason-
able conditions that provide the security of
expectations needed to attract the invest-
ment for development of the resources. This
would generate international revenues to be
used for international community purposes,
particularly for developing countries. A
number of developing countries have sup-
ported a concept under which the interna-
tional seabed authority would itself under-
take exploration and exploitation and which,
under the new formula introduced by the
developing countries at Caracas, would in
addition have discretion to contract with
states and private companies to operate un-
der its direct and effective control and under
basic conditions of exploitation set forth in
the convention itself.
During the last few weeks of the confer-
ence real negotiations began on the basic
conditions for exploitation when the First
Committee agreed to establish a small in-
formal negotiating group. This group will
resume its work at the next session of the
conference, and we hope that negotiations
in this context and during the intersessional
period will lead to a narrowing of differences
and a realistic approach that will promote
access by industrialized consumer countries
and the development of the mineral resources
of the deep seabeds.
The differences between what we call reg-
ulation and what others call control may be
narrowed if we can agree on the conditions
of exploitation, including measures to insure
that exploitation on a nondiscriminatory ba-
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sis will take place, and if agreement can be Provisions for Settlement of Disputes
reached on protecting relevant interests in
the decisionmaking process.
Marine Environment and Scientific Research
In the Third Committee of the conference,
there were mixed results on formulating
treaty texts for protection of the marine en-
vironment and oceanographic scientific re-
search.
We were pleased that texts concerning the
preservation of the marine environment were
prepared on several points, including basic
obligations, particular obligations, global
and regional cooperation, and technical as-
sistance. But basic political issues remain
to be resolved on the jurisdiction of port and
coastal states with respect to vessel-source
pollution and on whether there will be dif-
ferent obligations for states depending upon
their stage of economic development?the
so-called double standard.
We believe that the Caracas session broad-
ened the basis of understanding of the com-
plex problems involved in drafting new legal
obligations to protect the marine environ-
ment, and there were indications that all
states were analyzing their environmental
policies in detail.
On the scientific research issue, the vari-
ous proposals were reduced to four principal
alternatives regarding scientific research
within the areas of national jurisdiction.
Some states advocated a regime requiring
coastal state consent for all research. Others
supported a modified consent regime. The
United States supported a regime which
places obligations on the state conducting the
research to notify the coastal state, provide
for its participation, and insure sharing of
the data and assistance in interpreting such
data. Other states proposed complete free-
dom of scientific research.
We were encouraged by the fact that for
the first time states appeared to be moving
toward serious negotiations on this subject,
including serious consideration of our pro-
posal.
42
Mr. Chairman, we know there will be dis-
putes with respect to the interpretation and
application of the provisions of the treaty.
The willingness of the United States and
many others to agree to a particular balance
of the rights and duties of states and the in-
ternational authority is predicated upon rea-
sonable confidence that the balance will be
fairly maintained. Accordingly, the estab-
lishment of an impartial system of peaceful
and compulsory third-party dispute settle-
ment is critical.
We were encouraged to find at the Caracas
session that there were states from all re-
gional groups that support the need for com-
prehensive dispute-settlement provisions. At
the end of the session, the United States
cosponsored, with eight other states from
different regions, a working paper contain-
ing alternative texts of draft treaty articles.
This document was prepared, and is in gen-
eral supported, by a broader informal group
chaired by the Representatives of Australia
and El Salvador, for which Professor Louis
Sohn of the Harvard Law School served as
rapporteur. We hope this document will fa-
cilitate the drafting of treaty articles on
this important element of the convention.
With your permission, Mr. Chairman, I
will submit for the record a copy of the
report transmitted by the delegation to the
Secretary of State on August 30 and copies
of all draft articles sponsored or cosponsored
by the United States. The consolidated treaty
texts in Committee II and other documents
will be transmitted to the committee as soon
as we receive them from the U.N. Secretar-
iat.
Mr. Chairman, it is my firm conviction
that a comprehensive treaty is obtainable
by the end of 1975 as contemplated in last
year's U.N. General Assembly resolution. To
do so, however, governments must begin seri-
ous negotiation the first day at Geneva; and
to prepare for that, they must during the
intersessional period appraise the alterna-
tives, meet informally to explore possible
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accommoefleMigvtfiA?E"ki 4M93037-
sitions, and supply their delegates with in-
structions that permit a successful negotia-
tion.
A multilateral convention of unparalleled
complexity affecting some of our nation's
most vital economic and strategic interests
is within our reach. We cannot and will not
sign just any treaty, but in my judgment
we would be terribly remiss in our responsi-
bilities to the United States and to the in-
ternational community as a whole if we were
now to overlook broader and longer range
perspectives.
In the year ahead we intend to work dili-
gently and carefully for a convention that
will protect our interests in the broadest
sense of that term. In this endeavor, Mr.
Chairman, we trust that we shall have the
guidance and support of the Congress and
of your committee.
Through our mutual cooperative efforts I
am certain that we can take the necessary
steps and develop constructive initiatives so
that all will agree that the United States
has done all it could to foster a successful
outcome of the Third U.N. Conference on
the Law of the Sea on schedule in 1975.
STATEMENT BY MR. MOORE
It is a particular pleasure to appear before
this committee to testify for the executive
branch on two bills of fundamental impor-
tance to U.S. oceans policy. Both bills raise
questions deeply affecting the foreign rela-
tions of the nation as well as our fisheries
and other oceans interests. They also pose
a stark choice for our policy toward an area
covering more than two-thirds of the sur-
face of the earth. Is U.S. oceans policy to
be pursued through cooperative efforts at
international agreement? Or is it to be pur-
sued through unilateral national measures
risking an irreversible pattern of conflicting
national claims?
In testifying on these bills, I am appre-
ciative of the outstanding service the spon-
: cL6F#Deisogpsi LI oo
KATENow1 8
ve Continually
rendered to the nation in fishery and other
ocean matters. I am also appreciative of
the very real problems confronting coastal
and anadromous species off our coasts. This
increased pressure is part of a global trend
which in the absence of an adequate interna-
tional legal framework for fisheries juris-
diction has in many areas led to overexploi-
tation. The depletion of the haddock stock
off our Atlantic coast is an example.
The principal problem in the present pat-
tern of international fisheries jurisdiction is
that management jurisdiction does not gen-
erally coincide with the range of the stocks.
As such, any effort at sound management
and conservation confronts the classic "com-
mon pool problem" similar to that experi-
enced in the early days of the east Texas oil-
fields; that is, in the absence of agreement,
it is not in the interest of any producer act-
ing alone to conserve the resource. The solu-
tion to this common pool problem in fisheries
is broadly based international agreement
providing coastal states with management
jurisdiction over coastal and anadromous
species with highly migratory species man-
aged by appropriate regional or international
organizations.
For the first time in the history of oceans
law it is realistic to expect such a broadly
based agreement covering fisheries jurisdic-
tion. After lengthy preparatory work in the
U.N. Seabed Committee, the Third U.N. Con-
ference on the Law of the Sea has recently
completed its first substantive session, held
in Caracas, Venezuela from June 20 to Au-
gust 29. If other issues are satisfactorily
resolved, the conference offers every promise
of solving the coastal and anadromous fish-
eries problems which prompted the bills be-
fore this committee.
The strong trend in the conference is for
acceptance of a 200-mile economic zone pro-
viding coastal states with jurisdiction over
coastal fisheries in a 200-mile area off their
coasts. There is also considerable support
for host state control of anadromous species
throughout their migratory range and grow-
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Aoaroved For Release 2006/03/17
ing support' for special provisions on inter-
national and regional management of highly
migratory species. In this connection the
U.S. delegation has indicated that we can
accept and, indeed, would welcome the 200-
mile economic zone as part of a satisfactory
overall treaty which also protects our other
oceans interests, including unimpeded tran-
sit of straits used for international naviga-
tion.
It is also realistic to expect a broadly based
oceans treaty in the near future. The General
Assembly resolution which established the
Law of the Sea Conference provided that any
subsequent session or sessions necessary af-
ter the Caracas session would be held no later
than 1975. Pursuant to this schedule, the Ca-
racas session of the conference agreed on a
second session to be held in Geneva from
March 17 to May 3-10, 1975. It also agreed
that the formal signing session will take
place in Caracas, with July and August 1975
discussed in this regard. We believe that it
is important to adhere to this conference
schedule.
Preventing Further Depletion of Fisheries
Even on this schedule, it is of course also
important that we prevent further depletion
of our coastal and anadromous stocks before
the new law of the sea treaty comes into
force. We are taking several important steps
to meet this need:
? ?First, we are actively pursuing bilateral
and limited multilateral approaches for the
protection of our stocks. Progress has been
significant in recent months, and we intend
to continue to vigorously pursue improved
protection bilaterally and within regional
fisheries commissions.
For the information of the committee the
administration is preparing and will shortly
submit for the record a report on the present
condition of our coastal and anadromous
stocks and efforts to provide increased in-
terim protection to those stocks. I am ac-
companied by the Honorable Howard Pol-
lock, Deputy Administrator of the National
44
C 16ke- al:1/ p ORal pnRi c089 rr Ocl 4 0 A 0 0 rnm 1? R
orstration,
Department of Commerce, and Mr. William
Sullivan, Acting Coordinator of Ocean Af-
fairs, Department of State, who are prepared
to answer questions on these and future ef-
forts to protect our coastal and anadromous
stocks in the interim period before a new law
of the sea treaty is applied.
?Second, we have proposed that the fish-
eries as well as certain other provisions of
the new law of the sea treaty should be ap-
plied on a provisional basis; that is, they
should be applied after signature of the new
treaty but before waiting for the process of
ratification to bring the treaty into full legal
effect. Provisional application is a recognized
concept of international law, and our pro-
posal was favorably received. We will of
course consult closely with the Congress as
to how provisional application is to be ef-
fectuated.
?Third, we are today announcing a sig-
nificant new measure to provide increased
protection for our stocks until the new law
of the sea treaty can be fully applied; that
is, new enforcement procedures to substan-
tially tighten control over the incidental catch
of living resources from the U.S. continental
shelf. In addition, we are carefully reviewing
the availability of means to make possible
increased Coast Guard enforcement efforts
to protect our coastal and anadromous spe-
cies in particularly vulnerable areas.
Attached is a letter to Senator Magnuson
setting out the new enforcement measures
for tighter control over incidental catches of
U.S. continental shelf resources.3 Because of
their potentially severe impact on foreign na-
tions fishing over our continental shelf, these
far-reaching new measures will go into effect
only after a 90-day grace period to enable
affected nations to adjust their fishing meth-
ods or to conclude agreements further pro-
tecting our living resources. We are today
notifying affected states of these new meas-
ures.
These new procedures will provide sub-
Not printed here.
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stantial increased protection to our valuable
living resources. We believe that they are
entirely justified by existing international
law and that jurisdiction over the living re-
sources of the continental shelf carries with
it the right to require other states to enter
into agreements for the protection of such
resources if they are taken during fishing for
non-shelf stocks as well as if the taking of
such shelf resources is intentional.
An expanded enforcement effort by the
Coast Guard would also help insure compli-
ance with existing regulations and assist in
the transition from the present limited fish-
eries jurisdiction to the broader jurisdiction
which is the likely outcome of a successful
Law of the Sea Conference.
Difficulties of Proposed Legislation
Despite the interim problem in protection
of our coastal and anadromous stocks, the
executive branch is strongly opposed to the
enactment of legislation such as S. 1988,
which would unilaterally extend U.S. fish-
eries jurisdiction.
Enactment of this legislation would not
satisfactorily resolve our fisheries problems,
would at most merely anticipate a result
likely to emerge in a matter of months from
a successful Law of the Sea Conference, and
would be seriously harmful to U.S. oceans
and foreign relations interests in at least five
principal ways:
?First, unilateral action extending na-
tional jurisdiction in the oceans is harmful to
overall U.S. oceans interests, and as such we
have consistently protested any extension of
fisheries or other jurisdiction beyond recog-
nized limits.
A unilateral extension of jurisdiction for
one purpose will not always be met by a sim-
ilar extension but, rather, may encourage
broader claims which could have serious im-
plications; for example, with respect to our
energy needs in transportation of hydrocar-
bons, our defense and national security inter-
ests in the unimpeded movement of vessels
and aircraft on the world's oceans, or our in-
terest in the protection of marine scientific
research rights in the oceans.
Because of our broad range of oceans in-
terests and our leadership role in the world,
an example of unilateral action by the United
States would have a particularly severe im-
pact upon the international community which
could quickly lead to a crazy quilt of uncon-
trolled national claims. Indeed, it was the
threat of just such a result, with its open-
ended invitation to conflicts and pressures
on vital U.S. interests, that led to a decision
in two prior administrations at the highest
level of government that U.S. oceans inter-
ests and the stability of the world commu-
nity would best be served by a broadly sup-
ported international agreement. This admin-
istration strongly agrees with that judgment.
Soundings from our Embassies and at the
Caracas session of the Law of the Sea Con-
ference indicate that the possibility of uni-
lateral claims by others is not merely an ab-
stract concern should this legislation pass.
?Second, enactment of legislation such as
S. 1988 could be seriously damaging to im-
portant foreign policy objectives of the
United States.
Unilateral extension of our fisheries juris-
diction could place the nation in a confronta-
tion with the Soviet Union, Japan, and other
distant-water fishing nations fishing off our
coasts. These nations strongly maintain the
right to fish in high seas areas and are un-
likely to acquiesce in unilateral claims, par-
ticularly during the course of sensitive law
of the sea negotiations in which they have
substantial interests at stake. The implica-
tions for d?nte and our relations with Ja-
pan are evident. In fact, both the Soviet Un-
ion and Japan have already expressed se-
rious concern over this legislation to our
principal negotiators at the Law of the Sea
Conference.
Similarly, unilateral extension of our fish-
eries jurisdiction coupled with reliance on
the Fishermen's Protective Act to protect
threatened distant-water fishing interests of
the United States seems certain to assure con-
tinuation of disputes with Ecuador and Peru
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as well as to generate new disputes with
other coastal states off whose coasts our na-
tionals fish.
It is strongly in the national interest to
encourage cooperative solutions to oceans
problems rather than a pattern of competing
national claims. A widely agreed comprehen-
sive law of the sea treaty will promote de-
velopment of ocean uses and will reduce the
chances of ocean disputes leading to conflict
among nations. If these interests seem too
theoretical we might recall the recent "cod
war" between the United Kingdom and Ice-
land, which resulted from a more modest
Icelandic claim of a 50-mile contiguous fish-
eries zone.
?Third, a unilateral extension of our fish-
eries jurisdiction beyond 12 miles would not
be compatible with existing international
law, and particularly with the Convention on
the High Seas, to which the United States
and 54 other nations are party.
The United States has consistently pro-
tested any extension of fisheries jurisdiction
beyond 12 miles as a violation of interna-
tional law. And the International Court of
Justice held only last month in two cases
arising from the "cod war" that the 50-mile
unilateral extension of fisheries jurisdiction
by Iceland was not consistent with the rights
of the United Kingdom and the Federal Re-
public of Germany.
Mr. Chairman, what would we do if this
bill were to become law and another country
brought us before the International Court of
Justice? Would we invoke our reservation
and maintain that issues relating to the use
of the seas up to 200 miles from our coast, or
even hundreds of miles beyond this in the
case of salmon, are exclusively within our do-
mestic jurisdiction? Or would we respond on
the merits and risk losing what we are cer-
tain to get from a widely accepted law of the
sea treaty?
Violation of our international legal obliga-
tions by encroaching on existing high seas
freedoms can be seriously detrimental to a
variety of oceans interests dependent on
maintenance of shared community freedoms
in the high seas. The appropriate way to
change these obligations in order to deal with
new circumstances is by agreement. It is par-
ticularly inappropriate to argue that a uni-
lateral act contrary to these obligations is
required by such circumstances when a
widely supported agreement that resolves
the problem is nearing completion. As this
committee knows, violation of our interna-
tional legal obligations can have the most se-
rious short- and long-run costs to the nation.
?Fourth, a unilateral extension of our
fisheries jurisdiction would pose serious risks
for our fisheries interests.
Protection of our coastal and anadromous
stocks can only be achieved with the agree-
ment of the states participating in the har-
vesting of those stocks. Unilateral action not
only fails to achieve such agreement, but it
may also endanger existing fishery agree-
ments and efforts to resolve the problem on a
more lasting basis with such countries. Sim-
ilarly, protection of our interests in fishing
for highly migratory species such as tuna or
coastal species such as shrimp where U.S.
nationals may fish off the coasts of other na-
tions can only be achieved through coopera-
tive solutions.
In short, we cannot expect to achieve ac-
quiescence from states fishing off our coast,
and we will harden the positions of other
countries off whose coasts we fish. The reso-
lution of old disputes will be made more dif-
ficult, and their costs to our fishermen and
our government will continue. At the same
time we will face new disputes off our own
coast and elsewhere.
S. 1988 or other similar legislation unilat-
erally extending U.S. fisheries jurisdiction
would provide others with an opportunity to
make unilateral claims damaging to our dis-
tant-water fishing interests despite any ex-
ceptions for highly migratory species or pro-
visions for full utilization written into the
legislation. If the United States can make a
unilateral claim eliminating the freedom to
fish on the high seas, it is difficult to assert
that other nations are bound by the excep-
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tions and provisions contained in our own
legislation. Moreover, even by its terms S.
1988 would include highly migratory species
in the extension of coastal state jurisdiction
where such species "are not managed pur-
suant to bilateral or multilateral fishery
agreements." We should keep in mind that
the principal countries with which we have
disputes concerning jurisdiction over highly
migratory species are not now parties to
agreements relating to the management of
such stocks.
A unilateral extension of fisheries juris-
diction by the United States could also make
it more difficult to achieve meaningful guar-
antees such as those we are advocating at the
Law of the Sea Conference binding on all na-
tions for the conservation of the living re-
sources of the oceans. Moreover, it could
make more difficult acceptance of a rational
basis for fisheries management; that is, ju-
risdiction over anadromous species in the
host state and jurisdiction over highly mi-
gratory species in a regional or international
organization. As such, legislation such as S.
1988, although intended to protect our fish
stocks, could, paradoxically, have the oppo-
site effect not only on stocks off our coast
but on fish stocks the world over.
?Finally, passage at this time of legis-
lation such as S. 1988 unilaterally extending
the fisheries jurisdiction of the United States
would seriously undercut the efforts of all
nations to achieve a comprehensive oceans
law treaty.
Our nation has urged particular care and
restraint in avoiding new oceans claims dur-
ing the course of the Third U.N. Conference
on the Law of the Sea. A pattern of esca-
lating unilateral claims during the confer-
ence could destroy the delicate fabric of this
most promising and difficult negotiation. It
could also undermine the essential political
compromise by which all nations would agree
on a single package treaty. And by uni-
laterally taking action which we have said
must be dependent on a satisfactory overall
compromise, it could harm other U.S. oceans
interests such as protection of vital navi-
gational freedoms, marine scientific research,
environmental goals, or economic interests
such as a regime for deep seabed mining
which will promote secure access to the
minerals of the deep seabed area.
Mr. Chairman, these principal difficulties
with legislation such as S. 1988 are in no
sense alleviated by its emergency or interim
nature. Section 11(b) of S. 1988 provides
that the act would expire on such date as
the Law of the Sea Treaty comes into force
or is provisionally applied. Unfortunately,
however, in the interim period the legislation
would be simply a unilateral extension, with
all of the associated costs of unilateralism
and with none of the benefits of a lasting so-
lution. Moreover, this legislation could well
prevent the agreement which is expected to
supercede it.
In commenting on S. 1988 I have sought
only to deal with the fundamental issue of
unilateral extension of U.S. fisheries juris-
diction, which is the central feature of this
bill. The executive branch has not at this
time taken a position on the fisheries man-
agement aspects of the bill.
Similarly, I have not sought to discuss the
specifics of S. 3783 which, because it is in-
tended to be rooted in the 1958 Geneva Con-
vention on Fishing and Conservation of the
Living Resources of the High Seas, is poten-
tially not as objectionable as S. 1988. The
principal problem with S. 3783, of course,
is that the most important nations fishing
for our coastal and anadromous species, in-
cluding the Soviet Union and Japan, are not
parties to the 1958 convention.
With appropriate changes, it is possible
that S. 3783 or a similar measure rooted in
existing international law could be a useful
alternative to S. 1988 without the grave im-
pact on our overall oceans and foreign rela-
tions interests. Accordingly, before com-
menting further on S. 3783, the executive
branch would welcome an opportunity for
further study with the Congress with a view
to examining the possibility of changes
which might make S. 3783 acceptable.
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Cooperative Solutions Required
Mr. Chairman, this committee, the Con-
gress, and the nation are faced with a
fundamental choice. Are we to pursue co-
operative efforts at solution to our oceans
problems even when the going is rough and
the pace slower than we would like? Or are
we to pursue unilateral policies destined to
lead to escalating conflict in the oceans?
The overall oceans interests of our nation,
our foreign relations interests, compliance
with our international legal obligations, our
fisheries interests themselves, and our inter-
est in concluding a timely and successful
law of the sea treaty all strongly require
that we firmly set our course toward coop-
erative solutions.
In any event, I am particularly heartened
that this fundamental choice is being ex-
amined by this committee and trust that on
this issue, as on all others, it will bring its
understanding and experience to bear on the
short- and long-range implications of this
choice for the foreign relations of the nation.
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* IJ. S. GOVERNMENT PRINTING OFFICE : 1974 584-270/9
Approved For Release 2006/03/17 : CIA-RDP80601495R000800140001-8
DEPARTMENT OF STATE PUBLICATION 8794
International Organization and Conference Series 116
Released November 1974
Office of Media Services
Bureau of Public Affairs
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Approved For Release 2006/03/17 : CIA-RDP801301495R000800140001-8
DEPARTMENT OF STATE, U.S.A.
WASHINGTON, D.C. 20520
POSTAGE AND FEES PMD
DEPARTMENT OF STATE
STA-501
THIRD CLASS BULK RT.
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