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Towards The Development Of An International Regime For The Seabed Beyond The Limits Of National Jurisdiction: A Comparative Study Of Four Proposals. (Volumes I And Ii)

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Towards The Development Of An International Regime For The Seabed Beyond The Limits Of National Jurisdiction: A Comparative Study Of Four Proposals. (Volumes I And Ii)

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Content TOWARDS THE DEVELOPMENT OF AN INTERNATIONAL REGIME FOR THE SEABED BEYOND THE LIMITS OF NATIONAL JURISDICTION! A COMPARATIVE STUDY OF FOUR PROPOSALS by Otis Robert Cole, Jr. A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (International Relations) January 1973 INFORMATION TO USERS This dissertation was produced from a microfilm copy of the original docum ent. While the m ost advanced technological means to photograph and reproduce this docum ent have been used, the quality is heavily dependent upon the quality of the original submitted. T he following explanation of techniques is provided to help you understand markings or patterns w hich may appear on this reproduction. 1. T he sign or "target" fo r pages apparently lacking from the docum ent photographed is "Missing Page(s)". If it was possible to obtain the missing page(s) or section, they are spliced into the film along with adjacent pages. This m ay have necessitated cutting thru an image and duplicating adjacent pages to insure you com plete continuity. 2. When an image on th e film is obliterated with a large round black m ark, it is an indication that th e photographer suspected th at the copy may have moved during exposure and thus cause a blurred image. You will find a good image of the page in the adjacent frame. 3. When a m ap, drawing or chart, etc., was part of the material being p h o to g ra p h e d the photographer followed a definite m ethod in "sectioning" the material. It is custom ary to begin photoing at the upper left han d corner of a large sheet and to continue photoing from left to right in equal sections w ith a small overlap. If necessary, sectioning is continued again — beginning below the first row and continuing o n until com plete. 4. T he majority of users indicate th a t the textual content is of greatest value, however, a som ewhat higher quality reproduction could be m ade from "photographs" if essential to the understanding of the dissertation. Silver prints of "photographs" may be ordered at additional charge by writing th e Order Department, giving the catalog number, title, author and specific pages you wish reproduced. University Microfilms 300 North Zeeb Road Ann Arbor, Michigan 48106 A Xerox Education Company COLE, Jr., Otis Rohert, 1915- TONARDS THE DEVELOPMENT OF AN INTERNATIONAL REGIME FOR THE SEABED BEYOND THE LIMITS OF NATIONAL JURISDICTION: A COMPARATIVE STUDY OF FOUR PROPOSALS. (VOLUMES I AND II). University of Southern California, Ph.D., 1973 Political Science, international law and relations University Microfilms. A X E R O X Company. Ann Arbor, Michigan © C o p y r i g h t b y OTIS ROBERT COLE, JR. 1973 d isse r t a t io n has been n ic r o f iw e d exactly a s received UNIVERSITY O F SO U T H E R N C A L IFO R N IA THE GRADUATE SCHOOL UNIVERSITY PARK LOS ANGELES. CALIFORNIA 8 0 0 0 7 This dissertation, written by OTIS ROBERT COLE, J R .__________ under the direction of Ai.?. Dissertation C om mittee, and approved by all its members, has been presented to and accepted by The G radu ate School, in partial fulfillment of require ments o f the degree of DOCTOR OF PHILOSOPHY DISSERTATION COMMITTEE Chairman PLEASE NOTE: Some p a g e s may hav e in d is tin c t p r i n t . Filmed as received. University Microfilms, A X erox Education Company FOREWORD This dissertation was written, as its title pro claims, to be a comparative study of four proposals that have been advanced for the future governance of the seabed beyond the limits of national jurisdiction. But also, as its title indicates, it has been written with the hope that in some small way it might make a contribution to ward the development of a seabed regime for the accomp lishment of such governance. To this end extensive back ground material has been incorporated into the text, an extensive bibliography is included and pertinent documents and excerpts therefrom have been appended. By the com parative study itself and through the above mentioned background, bibliography, and documents, all collected within the confines of one paper, it is hoped that the study might serve as a reference of some value for those who may wish to delve into matters surrounding the great debate on ocean resources and related oceanic subjects. This research paper could not have been written without the cooperative assistance of many people, and it is to them that the writer will be eternally grateful. Special acknowledgment and appreciation is given to the following personsi Mrs. Elisabeth Mann Borgese and her able assistant, Mrs. Madeline C. Marina, for furnishing ii papers and publications of The Center for the Study of Democratic Institutions, including The Ocean Regime and the two Pacem in Marlbus Convocation proceedings; Mrs. W. M. Chapman who very graciously permitted me to peruse the late Dr. Wilbert McLeod Chapman's extensive personal li brary and for lending reference material therefrom; Mr. Aaron Danzig, Esquire, for forwarding to me World Peace Through Law Center publications; Dr. L.F.E. Goldie for his informative consultation and one of his papers; The Honorable Bob Wilson, Congressional Representative from California's 36th District, and his staff for the prompt and courteous forwarding on several occasions of relevant Congressional hearings and studies; Captain Henry A. Ar nold, U.S.N.(ret.), staff member of the President’s Com mission on Marine Resources and Ocean Engineering, for Commission reports; Professor Minos Generales of San Diego State College for permitting me to use his department's International Relations Library and to borrow reference material therefrom; Commander Robert M. Laske, U.S.N., editor of the Naval War College Review, for making avail able certain N.W.C. Reviews; and Rear Admiral Wilfred A. Hearn, U.S.N.(ret.), U.S. Delegate to the 1958 Geneva Conference on the Law of the Sea, and Captain John R. Brock, U.S.N., Deputy Assistant Judge Advocate General of iii the Navy for International Law, for information and papers. The writer is also indebted to personnel of the U.S. Department of State, U.S. Arms Control and Disarma ment Agency, and the United Nations for answering his plea for reference material. Further, no acknowledgment would be complete without reference to the librarians and their assistants of the University of Southern California, University of California at Los Angeles, San Diego State College, San Diego County, San Diego Law, Coronado, and Scripps Institution of Oceanography libraries and of the Ocean Research Institute of La Jolla for their able and sympathetic assistance in furthering my quest for relevant references. The use of material of the prestigious Law of the Sea Institute, U.S. Naval Institute, and the Marine Technology Society and their contributors is gratefully acknowledged. And finally, how can I express even ade quate appreciation and thanks to my long suffering, hard working and efficient typist and editorial advisor, who prefers to remain anonymous? The simple truth is that any such attempt would prove unworthy, so I merely say, -Thanks". OTIS R. COLE, JR. Coronado, California iv TABLE OP CONTENTS LIST OP LIST OF Chapter I. II. III. IV. V. VI. VII. Page TABLES.................................... vii ILLUSTRATIONS............................. viii INTRODUCTION............................. 1 HISTORICAL BACKGROUND— PRE-WORLD WAR II... 23 HISTORICAL BACKGROUND— POST WORLD WAR II TO 1961.................................. HISTORICAL BACKGROUND— 1961-1971......... 69 THE STUDY APPROACH AND PARAMETERS........ 120 Objective.............................. 121 Assumptions.................. 122 Scope..................... 127 Approach............................... 129 Source Material........................ 136 DESCRIPTION AND SUMMARIES OF SELECTED PROPOSED REGIMES......................... 138 The Borgese Proposal................... 139 The Pell Proposal...................... 150 The U.S. Proposal...................... 159 The Danzig Proposal.................... 165 PURPOSES AND ORGANIZATION................ 17*+ Comparisons............................ 176 Topic 1.............................. 177 Topic II............................. 185 Topic III............................ 186 Topic IV............................. 192 Topic V.............................. 19*+ Topic VI............................. 201 Topic VII............................ 204 Topic VIII........................... 213 Topic IX............................. 218 Summary........... 222 Chapter Page VIII. POLITICAL AND LEGAL ASPECTS............... 232 Political Aspects....................... 239 Topic 1............................... 240 Topic II.............................. 255 Topic III............................. 257 Topic IV.............................. 260 Topic V............................... 263 Topic VI.............................. 26? Summary of Political Aspects ..... 277 Legal Aspects..................... 286 Topic 1............................... 287 Topic II................. 288 Topic III................ 292 Topic IV.............................. 293 Topic V............................... 295 Topic VI.............................. 298 Topic VII............................. 306 Summary of Legal Aspects................ 307 IX. ECONOMIC, NATIONAL SECURITY AND SCIENTIFIC ASPECTS........................ 317 Economic Aspects........................ 319 Questions Concerning Living Sea Resources............................. 332 Questions Concerning Non-Living Sea Resources............................. 365 National Security Aspects............... 373 Questions Concerning National Security. 395 Scientific Aspects...................... 401 Questions Concerning Science, Tech nology, Conservation and Pollution 431 X. CONCLUSIONS............................... 440 BIBLIOGRAPHY....................................... 471 APPENDICES, Volume II vi LIST OP TABLES Table Page 1. Comparative Table of Treaties' Form...... 193 2. Summary of Draft Treaties' Support for Various Objectives..................... 213 3. Comparative Table of Structural Organiza tion................................... 214 4. Required Reports......................... 220 5. Summary of Draft Treaties' Support for Various U.N. Resolution A/2749 (XXV) Principles............................. 256 6. Outer Limits of National Jurisdiction Over the Seabed as Prescribed in Draft Treaties............................... 258 7. Degree of United Nations Control/Influence That May Be Exerted Under the Provisions of Proposed Treaties................... 264 8. Legal Status of Seabed Devices and Installations.......................... 289 9. Structure of Judiciary Organs............ 308 10. Tabulation of Marine Mineral Resources ~ Offshore Mineral Deposits............. 336 11. Elements in Manganese Nodules, Pacific Ocean..................... . 352 12. Treaty Economic Specifications for Entre preneurial Exploration and Exploitation of Non-Living Seabed Resources......... 371 13. Summary of Comparisons on Problems and Issues................................. 447 vii LIST OF ILLUSTRATIONS Figure Page 1. Diagrammatic Profile of Continental Margin... 15 2. Continental Shelf in Profile.................. 16 viii CHAPTER I INTRODUCTION Society cannot exist without law and order, and cannot advance except through vigorous innovators. — Bertrand Russell It has been said that it is strange we call our planet "Earth", since its most pronounced feature, in com* parison with all of the other known planets of our solar system, is that it is a water planet.* Its great oceans and seas are truly global in scope and inherently inter national in character. They define the coastlines of more than 100 nations. The high seas, which comprise about two thirds of the earth's surface, belong to no nation and yet are used by all. The same is true ~ excluding the legal continental shelf — for the seabed and the subsoil thereof under the high seas and for the living and non-living resources that are contained therein. Man, through seapower, may control portions of the oceans for brief periods of time. He may even live in the sea for short intervals. However, to meaningfully lay claim to, exercise jurisdiction over, and administer or *Don Walsh, "The United States and the World Ocean," Smithsonian Publication *»650 (1965), p. 2. 1 2 rule any area of the earth, man must normally occupy and police it, or at least the events which take place there. The ocean's watery trackless expanses with its hostile, opaque and foreign environment have, since the beginning of time, defied man's occupation and rule. Thus, since antiquity nations have had to share the seas with one another under various agreements and understandings or suffer utter chaos in maritime matters. Now new technologies are projecting national inter ests further seaward as more countries attain the capa bility or urge to conduct maritime and naval activities more distant from their coasts, exploit previously inac cessible ocean resources, and expand ocean exploration activities into distant seas and to deeper seabeds. The intensified use of the sea, now projected worldwide, could very well stimulate national rivalries and conflicts that could arrest the development of marine resources, shake the current regime of the sea to its very foundations, and defeat the recently expressed hopes for a greater use of the sea for the betterment of mankind. Thu , the increased development of the seas, to gether with the rising expectations of reaping benefit therefrom, creates both problems and opportunities for the various nations of the world. Such a situation has prompted much recent activity and action in the political. 3 military, scientific, economic, and legal circles of the international community and of nations. Much of such ac tivity has taken place within the framework of the United Nations and to a lesser extent, within regional blocs. However, the international character of marine sciences and the common property and common user aspects of the high seas and their seabeds has led also to considerable bilateral and multi-lateral activity among nations. The United Nations has become the forum and legis lative body for the nations of the world in marine affairs. Almost every specialized agency of the U.N. has some in volvement with the oceans. In addition to its interest and activities in such matters as the International Geo physical Year (1957)» the Geneva Conventions on fisheries and regimes of the sea (1958 and I960) and various admin istrative and scientific undertakings of the 1960's, the United Nations has more recently changed its emphasis and politicized its activities to meet current and future oceanic developments. Such developments have led to many proposals, reso lutions and calls for action within the U.N. by the vari ous nations and by non-governmental groups, particularly in the following areasi 1. Title to the ocean floor and subsoil under the high I f seas and the seaward limits of national jurisdiction over the seas and the continental shelf. 2. Rights, guarantees, registration and licensing for those who conduct scientific research, exploration, and harvesting operations on, in and over this sea floor. 3. Need to establish a reasonable set of rules of con duct governing activities by each nation on and under extra-territorial waters — including conduct in matters of pollution, nuclear testing, offensive armaments, missile ranges and conservation. Jf, "Freedom of the Seas” and "Sovereignty of the Seas" versus regulation, public order, and international sea patrol. During the past several years the question of a future regime for the oceans has generated a great deal of interest in international, governmental, legal and academic circles. The subject has become a focus of attention in these circles, since the Government of Malta, in August 1967, proposed that the seabed and its subsoil be subjec ted to international jurisdiction and "preserved exclu- 2 For a discussion on this subject see Victor Basiuk, "Marine Resources Development, Foreign Policy, and the Spectrum of Choice^" Orbls. Vol. XII, No. 1 (1968), pp. 52-55. 5 3 sively for peaceful purposes. mJ This note verbale has acted as a catalyst in inspiring further and extensive literature, action, debate and proposals concerning oce anic affairs. Former United Nations Secretary-General, U Thant, more recently said that "The deep seas demand that men develop devices of law, politics and cooperation to utilize and protect this last, great unappropriated re source," and that "The very immensity of the world's oceans calls for international cooperation on a suitably grand scale. Many proposals have been made to accomplish the worthy goals and objectives set forth by these two men and others. One such proposal was advanced in 1968 by Mrs. Elisabeth Mann Borgese who authored and published a draft statute for an international regime for the high seas and the seabed thereunder.^ Another proposed draft ^See Ambassador Arvid Pardo of Malta's Note Verbale to the U.N. Secretary-General (a/6695. 18 August 1967; re- questing that the subject be included as an agenda item for the agenda of the 22nd U.N. General Assembly. k\J Thant, "Message," Proceedings Pacem In Maribus Convocation. Malta. June 28-Julv 3. 1970. p. 17 ^Elisabeth Mann Borgese, "The Ocean Regime — A Suggested Statute for the Peaceful Uses of the High Seas 6 agreement of this nature was submitted to the United States Senate in early 1969 in the form of a resolution by Senator Claiborne Pell of Rhode Island.^ Yet another suggested treaty in this field is one proposed in mid-1970 by President Nixon and submitted as a suggested working 7 paper to the U.N. General Assembly. A further alterna tive proposal is a 1971 revision to an earlier (i.e., 1968) draft treaty originated by the United Nations Committee of O The World Peace Through Law Center. It is the purpose of this dissertation to examine and the Sea-Bed Beyond the Limits of National Jurisdic tion? A Center Occasional Paper (1968). For the text of this draft statute see Appendix I. 6U.S. Congress, Senate, Senate Resolution 92 [pro posed!, "Treaty on Principles Governing the Activities of States in the Exploration and Exploitation of Ocean Space," 91st Cong., 1st Sess., February 4, 1969. For the text of Resolution 92 see Appendix II. 7 U.S. President, "Draft United Nations Convention on the International Seabed Area — Working Paper" (August 3. 1970). For the text of this paper see Appen dix III. O United Nations, United Nations Committee of the World Peace Through Law (Mr. Aaron Danzig, Chairman), "Revised Draft Treaty Covering the Exploration and Exploi tation of the Ocean Bed (1971)*" For the text of this draft treaty see Appendix IV. 7 the four above mentioned proposals relative to each other in order to determine, insofar as deemed practical, their relative merits and weaknesses, assuming that each were to be implemented in the world of reality which is likely to obtain in the near term. The degree and manner in which each addresses itself to the principles for the governance of the high seas ocean floor recently set forth in a U.N. Q General Assembly resolution, as well as the extent to which each copes with selected issues and problems, will also be examined. It is the intent of this study to ar rive at a finding, or at least an indication, of the order of merit of these four proposals when measured against a "real world" background. In order to accomplish this purpose the author has divided the paper into appropriate chapters and has pro vided an extensive and rather voluminous appendix which includes not only the four draft proposals under study and their accompanying notes, but also various relevant docu ments and extracts. Chapters II, III and IV provide the reader with the background of the milestones in the devel opment of the various complex issues and problems related to the seas, and the framework of custom, agreements and 9U.N. Doc. A/RES/27^9 XXV, Dec. 17, 1970. 8 international law which have been developed over the years to govern the uses of the seas of the world. Chapter II covers such developments from antiquity to World War II. Chapter III, embracing the period of World War II to 1961, is devoted to the shattering effects of that war on the then existing and rather sophisticated oceanic frameworki the abrupt shift from a two dimensional to a three dimen sional view of and usage of the oceansi the rising influ ence of the United Nations in oceanic affairsi and the 1958 and i960 Geneva Conventions on fisheries and the seas. Chapter IV gives the explosive and extensive devel opments in marine affairs in the last decade which is so necessary to an appraisal of any proposed ocean regime to govern the multi-faceted three dimensional oceanic world of the near future. While the background coverage given is admittedly detailed and quite all encompassing, it is deemed necessary. This is so particularly in view of the general lack of knowledge on the subject except among ex perts and because of the complex and intertwined relation ships, all of which must be considered as a whole and relative to one another when appraising international oceanic regimes. Chapter V covers the approach to the study and its parameters. It sets forth and discusses the study's objec tive assumptions, scope, methodology and source material. 9 Chapters VI through X discuss briefly the general, political, legal, military, technological, scientific and economic aspects of an international seabed regime and measure and compare the four proposed treaties under the foregoing headings. These chapters set forth the infor mation leading to the study's findings and conclusions. Chapter XI gives the conclusions and is the final chapter. Since this analysis enters the realm of the rela tively unknown, or at least uncommon, to many people it is believed appropriate at this point to mention and define some of the terms used in discussing oceanic matters and to set forth some information concerning the oceans' para meters, description, and geophysical features. Just as the air serves as the atmosphere above the dry land and sea, the seas and oceans constitute the atmosphere of the submerged land which forms more than five sevenths of the earth'8 surface. This submerged land is variously called the sea bottom, ocean floor and seabed, the last named being the more widely used.10 The soil of the seabed is referred to as the subsoil. The water, or water column as it is sometimes called, over the seabed constitutes an en- 10Department of the Navy, Navigation Dictionary. Hydrographic Office Publication No. H.O. 220 (1956), p. 28. 10 vlronnent which Is most hostile to man and his equipment. It is danger-ridden, airless, cold, dark, wet, saline, corrosive, and for every increase of 33 feet into its depths a person or object is subjected to an additional example, at 3.300 feet the pressure would be 1,470 pounds per square inch. There are, however, rich resources to be harvested and developed in this vast hostile area. While the seas are three dimensional, frequently their nomenclature falls into those terms delineating their surface and those terms dealing with the three dimensional nature of the seas. Around the surface areas of the seas there has grown up a complex of international law, customs, understandings and literature, but the depths of the ocean and the ocean floor have been relatively unknown and of little interest until the past few years. Just as man has built fences and walls on the land to delineate various boundaries, so has he also done on and in tae seas. Thus we have the internal waters and seas of a nation which lie wholly within its boundaries pressure of 14.7 pounds per square inch.11 Thus, for Science The Book of Popular 11 12 and completely subject to Its sovereignty. Extending to seaward from a nation's coastal low water mark and beyond the limits of its internal seas lies the belt of territorial sea, as yet not clearly defined in breadth but generally (with some notable exceptions) between three and twelve miles depending upon each nation's claim. This portion of the sea, although a part of the ocean, is under the sovereignty of its adjacent state. Between the outer limits of the territorial sea and a boundary line twelve miles off shore from the inner limits of the territorial 12 At this point it is deemed appropriate to dis tinguish between sovereignty and jurisdiction as these terms may be used with reference to the seas and their seabeds. "At the basis of international law lies the no tion that a state occupies a definite part of the surface of the earth, within which it normally exercises, subject to the limitations imposed by international law, juris diction over persons and things to the exclusion of other states. When a state exercises an authority of this kind over a certain territory it is popularly said to have 'sovereignty' over the territory. ... and in the absence of a better word it is a convenient way of contrasting the fullest rights over territory known to law with ... minor rights ... . [Further,] ... it bears an obvious re semblance to ownership in private law ..." (James L. Brierly, The Law, of Nations [6th ed.] (1963). p. 162). Jurisdiction is the more general term and it carries the connotation of lawful right to exercise official authority. It is normally used in a more limited sense in areas where in a state has or claims certain specific powers, such as the administration of customs, conservation and anti-pollu tion measures and policing. The extent of jurisdiction of states as it concerns the seas and seabeds are set forth in the four Geneva Conventions on the Law of the Sea, 1958. (See Appendix VIII, A,B,C, and D). 12 sea lies that area of the ocean known as the contiguous zone. In this zone the adjacent nation exercises juris diction through policing and administrative activities, but it does not have full sovereignty, unless, of course, its territorial sea claim includes this zone. To seaward of the contiguous zone (or territorial sea if it extends to or beyond the contiguous zone) lie the high seas which are owned by no nation and free to be used by all subject only to certain generally accepted but not necessarily universal international laws. States may exercise juris diction over their nationals in such areas. On occasion there may be proclaimed by the various coastal states specialized areas on the high seas, such as for defense or test purposes, but such proclamations, although utilitarian, may possess dubious legal standing. The land underlying the seas and oceans is commonly divided by geological definition into the continental shelf, the continental slope and the abyssal plain. Occa sionally one hears of the terms continental terrace, con tinental rise, and continental margin. The continental shelf, as defined by geologists, is that area of the ocean floor between the mean low water line of land and that definitive change in the inclination of the floor or seabed that marks the inner edge of the continental slope. This 13 change usually occurs around the 130 to 150 meter depth contour line. The width of the shelf ranges from less than one mile to as much as eight hundred miles. The legal definition of the continental shelf is somewhat different.1- ^ In order better to clarify and de fine various legal aspects within the framework of inter national law, the continental shelf, its subsoil and bottom clinging living resources (but not the water over it) were placed under the jurisdiction of the adjacent coastal nations by the 1958 Geneva Convention on the Continental Shelf. However, the seaward limit of this shelf area was not definitively prescribed to seaward of a depth of 200 meters. For this reason the legal definition has not been satisfactory and efforts are now being made to achieve a more satisfactory one. The continental slope, which is a geological term, usually from ten to twenty miles wide, extends from the outer edge of the continental shelf to the abyssal plain. Its inclination varies widely from as little as three degrees to over forty-five degrees. Slopes of twenty-five degrees are common, as are canyons and gorges. The conti nental slope, like the abyssal plain, is in the same def- ^See Article 1 of Appendix VIII D for the 1958 Geneva Convention definition. initional category as the high seas. The abyssal plain appears to be a rolling plain from 3,300 to about 5#500 meters below the surface of the sea. It is scarred by deep gorges (called trenches) and studded with sea mounds (guyots). More than 75£ of the abyssal plain is less than 5.000 meters, and its mean depth is about 3,800 meters. Ocean basins are frequently separated by great submarine mountain ranges, a few peaks of which rise above the sea's surface. Natural resources, little developed and as yet almost unknown, await man's harvesting on the shelf, slope and possibly the abyssal plain.Figures 1 and 2 show in graphic form various features of the ocean referred to above.^ The world's oceans and seas are sometimes referred to as the "world ocean" and sometimes as "ocean space", lit For further information re the seas and seabed see U.S. Congress, House, Committee on Foreign Affairs, Sub-Committee on International Organizations and Movements, Interim Report on the United Nations and the Issue of Deep Ocean Resources Together With Hearings. House Report No. 999. 90th Cong., 1st Sess., Dec. 7, 1967, statement of Dr. Arvid Pardo, pp. 267-73* ■^Glossaries of oceanic terms are available as followsi John E. Long (ed.), Ocean Sciences, pp. 265-8O1 Navigation Dictionary. £Q. ci£.1 U.S. Congress, Senate, Committee on Foreign Relations, Subcommittee on Ocean Space, Activity of Nations in Ocean Space. Hearing, 91st Cong., 1st Sess., July 1969, pp. 202-203. D IA G R M ItttflC PROFILE OF CONTINENTAL MARGIN SHOWING ANEAAGE VflDTHS AND DEPTHS smeu edge AVIR/6E PEPTH I*> METE AS OCCAM "DEPTH 1 ,460- 3^00 METEn3 E P T H 4,000 M E T E R S CCtfnWeWTAU 5KELP CONTINENT^- TERRACE cotm w enT A L R ise ^ JEEP 9ER BO j C0 W T1 W EHTM - KAR6I M From U.S. Congress, Committee on Commerce, Special Study on United Nations Suboceanic Lands Policy. Hearings, 91st Cong., 1st Sess., September-November, 1969 (Washington, D.C.i Government Printing Office, 1970), p. 118. (Notei Chart as printed did ' ct show any "average widths" as indicated in the title. Profile is geological.) FIGURE 1 coTvrmenTftL sn eif m pROFite (VERTICAL SCALE EXAGGERATED) LAND DEPTH \N METERS — 1 S£A LEVEL ^UFEftJAGENT ■^sTwrniu loo CONTINENTAL s h e l f Physical version I . - CONTINENTAL s h e l f LEGAL V E R S IO N 1 TO 6o0 T E FIGURE 2 * From U.S. Department of State, Sovereignty of the Sea, Geographic Bulletin No. 3, April 1965. Dept, of State Publication No. 78^9, (Washington, D.C.i Government Printing Office, 1965), p. 28. (Note that “Physical Version" as shown above is the geological version. Also note that "TO INDEFINITE DISTANCE" should properly read "TO EXPLOITABLE DEPTHS".) 17 "inner space", or "hydrospace". Its vastness is difficult to comprehend. It covers an area nine times that of the moon. Its volume is fourteen times that of the land mass which projects above its surface. Its average depth is two and one half miles. The Pacific Ocean alone covers thirty-four percent of the globe — more than all the land masses put together. As Don Walsh of the bathyscaph TRIESTE deep dive fame wrote of the world oceani Indeed, this is a vast unknown frontier — a geo graphic frontier that man must explore, not in 2000 years but in a decade or two to ensure the continued, and I hope peaceful, march of civilization here on Earth.1® Prom a historical perspective the sea has revealed a dual character. On the one hand it has served as a pro tective geographic barrier insulating and compartmenting human endeavor. On the other hand, it has always been an inviting medium for food, commerce and communication. As a barrier, the sea has acted both as a military shield against aggression and as a limit for the expansion of continentally oriented nations. For those nations more bold and imaginative it has fostered the march of empire. In providing its living resources the world ocean has fed ■^Don Walsh, og. cit., p. 2. (See fn. 1 supra.) 18 millions of humans and sustained its own marvelous ecolo gical chain. The movement of bulk goods on strategically located rivers and along coastal routes has long been fa vored over cumbersome and arduous movement through moun tains and arid lands. The use of the oceans for commer cial intercourse, the export of cultural influence and eventually deliberate settlement overseas to relieve domes tic pressures are all logical extensions of the use of water routes. Today the oceans continue to serve in these capa cities, but the impact of rapid advances in science and technology has thrust the seabed and its resources into such prominence and importance with promise of new found wealth, perhaps for all, that they now occupy the center of attention and speculation and add their complexities and problems to a more expectant and ever shrinking world. Unlike the barren frozen polar frontiers and the empty outer space, which are areas of limited practical value in which national interests are primarily in the inherently common and sharable uses of transit and scientific inves tigation, we are, as Professor Richard B. Bilder writesi ... dealing with an emerging world of tremendous poten tial wealth and significance, one in which rewards of exclusive access and jurisdiction may appear very tempt- 19 17 ing to states. Since this paper uses the so-called "real world” as a background matrix in its examination of the selected proposed oceanic treaties, it is considered pertinent here to set forth very briefly some of the features that char acterize this world which the writer considers significant in the context of this paper, and which are likely to pre vail on into the 1970s, influencing thinking, diplomacy and events in this near term. All of these features are intertwined and interconnected, each exerting its effects upon the others. Among these characteristics are the realities and limitations of private enterprise, national and interna tional economics, the limitations of technology and lack of scientific and geological knowledge of the oceans and their seabed, particularly in the deep seas. Included also is intense nationalism among developed and underdeveloped nations alike which is exacerbated by the almost worldwide conflict of ideologies, the insecurity felt by nations, particularly in view of modern conventional and nuclear 1 7 Richard B. Bilder, "Emerging Legal Problems of the Deep Seas and Polar Regions," Naval War College Re view. Vol. XX, No. 5 (1967), p. ^3. 20 weapons systems and the weakness of the United Nations, and the compulsion under the nation-state system for each nation to seek accommodations or solutions which are in its own national interest including exclusive rights to the newly available wealth of the oceans. These forces will continue to cause national power and realpolitik with all of their threats to peace to be brought into play. Further, the increase in world population with its accom panying hunger and starvation which is most prevalent in underdeveloped and poor countries is occurring at a time of rising expectations of the peoples of the world, a grow ing polarization between the "have" and the "have not" nations, an era of diminishing living and non-living re sources, nearly static agricultural production, ruinous pollution and increasing moral awareness, at least in some nations. These are many of the features which will inhibit the nations of the world in some cases, and per haps help in others, to arrive at a viable and workable international regime for the study, development and govern ance of the seas and their resources. The Governor of Malta, Sir Maurice Dorman, in his welcoming speech to the 1970 Pacem In Maribus Convocation conferees, furnished an apt finale for this introductory chapter when he characterized the problems of those in volved in attempting to develop an acceptable ocean regime 21 and posed certain questions as followsi The importance of these problems can be summarised under three main headingst Danger, Damage and Develop ment* Malta asksi Should the great powers, with the tech nology to benefit, be allowed to carve up the seabed in a new scramble for wealth? Should the maritime nations be allowed to extend their submarine frontiers indefi nitely? Should the small, the poor or the landlocked be excluded? Complex problems in the light of the dan gers which can arise, the damage which can ensue, and the development which will certainly follow. Malta has proposed and advocated the creation of an international regime beyond the limits of reasonable national jurisdiction, an agency to act as a trustee to control, administer, and exploit the submarine wealth of the world for the benefit of all. A protec tion for the present, a framework for the future. This proposal has aroused the keenest international aware ness of the overriding need for world-wide action. It has caught the imagination and touched the idealism of some, but it has also inevitably alerted and emphasised the self-interest of others. Superimposed on the conflicts of view between ex perts on the many scientific, engineering and technical questions to which certain answers are not yet avail able, and on the limited and defective state of inter national law, superimposed on this complex of problems are the crucial questionsi What kind of organization? What powers? What legal forms? Controlled by whom? Guided by what principles? Governed by what represen tation, and extending to what limits should a new re gime entail?10 It is in the determination of if and how well cer tain selected proposals for an ocean regime respond to problems and questions such as those posed by Sir Maurice 18 Sir Maurice Dorman, "The Sea Around Us," Proceed ings Pacem In Maribus Convocation (1970). pp. 7-9. Dorman that this inquiry is dedicated. CHAPTER II HISTORICAL BACKGROUND— PRE-WORLD WAR II1 Why do you deny me water? Its use is free to all. Nature has made neither sun nor air nor waves private propertyi they are public gifts. — Ovid With relatively minor exceptions the seas of the world prior to World War II were looked upon primarily from a two dimensional point of view. Surface transpor tation, fishing, piracy and surface naval operations com prised the major uses of the seas. It was natural, there fore, that considerations of seaborne commerce, fisher ies, navigation, protection, tolls, free use of the seas, sovereignty over sea areas, national security, naval war fare and the like, formed the bulk of the sea issues with For the reader who desires further details on this subject the following are suggested as being repre sentative of the many pertinent references availablei J.S. Brierly, The Law of Nations (6th ed.) (19*3), pp. 1- *40, 19*4-97, 202-7, 212-13. 237-*40, and 30*4-16» David P. Stang, "The Walls Beneath the Sea," U.S. Naval Institute Proceedings. Vol.*IV (1968), pp. 33-37» Thomas W. Fulton, TheSovereignty of the Sea (1911)* Wesley Marx, Jfhfi frftU Ocean (1969). p p . 181-193 and H. Gary Knight, The Law_of the Sea— Documents and .Notes (1969), Chaps. 3 & 5. 23 2k which maritime states and nations dealt. Thus, a law of the sea has developed over the years through custom, treaty, codification and enactment as a means of assisting civil ized states in the conduct of their maritime affairs. While it is not the writer's purpose to trace the history of the development of the law of the sea, it is believed that it will prove of some value to the reader briefly to review highlights of the maritime history of yesterday before considering suggested means of dealing with the rapid technologically forced changes and issues in maritime matters which confront the world of today and tomorrow. In so doing it is hoped the reader will gain some perceptive insights and an appreciation of the fact that development in sea matters is, and has always been, a continuing dynamic process based on the interests and requirements of states. Through the centuries claims of sovereignty over areas of the seas and decrees declaring boundary lines thereon have been built up like barriers, then torn down only to be reconstructed once again. Although never de fined as to breadth, there is evidence that throughout history, at least from the times of ancient Greece, there has been an almost universal acknowledgment that a coast al state has some special claim over, or special interest 25 in, a strip of the sea which washes its shores. This usually involved fishing, customs and security issues. Likewise there seems to have been general recognition of the sovereignty of a state over its internal waters and its smaller and readily defensible bays and harbors. However, on the high seas of the pre-Roman era, Crete, Athens, other Greek states, Carthage and the early Italian states — all attempted to secure maritime dominion, with the state possessing naval supremacy, for the time being taking advantage of its position. Potter indicates that there were no meaningful juridical regimes nor legal prac- 2 tices with respect to the sea during these times. How ever, states bordering on the Mediterranean had been, and under the Romans continued to be, accustomed to regulate and control by law their navigation and sea-borne commerce. The concept of "freedom of the seas", mare liberum, was brought into being in Roman law probably as early as the first or second century A.D. It appears in the text of the jurist, Marcianus, and states that the sea and its coasts are common to all men.^ However, the doctrine of 2Pitman B. Potter, The Freedom of the Sea in His tory. Law and Politics (192*0, Ch. II, pp. 11-25. ^Percy T. Fenn, Jr., "Justinian and the Freedom of 26 Roman jurists and the practice of the Roman state seemed to be at variance in that Rome claimed and attempted to secure maritime dominance by force, just as Athens and the others had done. In so doing, it appears that Rome may have looked upon the "civilized seas" of her day, i.e., those of the Mediterranean basin, as a Roman lake, the shores of which she dominated and the use of which under Roman law (not under any law of nations) were "public". The term "public" meant common to all Roman citizens but not necessarily to non-Romans. In the case of the Atlantic l Ocean, however, Rome did not apply policies of limitation. With the break-up of the Roman Empire, complete anarchy prevailed on the seas and piracy was commonplace on all trade routes. Under the twin pressures of state interests and the common international interest in pro tecting sea-borne commerce from the constant peril of attack by freebooters, the principle of mare liberum ex pressed in Roman law shifted to that of mare clausum. Jurists and writers assigned to coastal states, as a prin ciple of law, certain jurisdictions in the waters adjacent the Sea," American Journal of International Law. Vol. XIX. No. 3 (1925), p. 716. k Potter, ££. cit.. pp. 27, 30-32. 27 to their coasts and prescribed varying breadths to such sea areas. Thus, territorial waters and sovereignty over then cane into being in law and in practice. Initially such coastal sea areas clains covered a breadth of sixty to one hundred niles which enconpassed practically all of the waters utilised by sea comnerce. Initially also, in order to protect sea connerce fron the depredations of pirates and in the absence of effective sovereign authority, nerchants formed associations among themselves for mutual protection of their common interests. As the power of independent princes grew they took over the duty of policing the neighboring seas under an admiral ty jurisdiction of their own which led to maritime laws and customs such as the Laws of Oleron. the Book of the Consulate of the Sea, and the Sea Laws of Wisbv of the twelfth and thirteenth centuries.^ During the thirteenth century this duty came to be accepted as a prerogative of sovereign power. Between the thirteenth and sixteenth centuries state interests, such as safety of commerce, security of coastal territory, levying of tribute to gain revenue, fishery preserver, and, most of all, to preserve ^Elliott B. Nixon, "Maritime Law," The Encyclopedia Americana. Vol. XVIII (1959), pp. 29^-96. 28 a nonopoly of trade, Induced the more powerful city states and later nations to extend this prerogative of power to assertions of exclusive domination over large areas of the seas. In some cases they even extended the principle of the mid-line boundaries governing the ownership of rivers to the open seas by claiming possession of opposite shores that were washed by their coastal seas or by claiming sov ereignty to the midline of lake-like seas. It is hardly surprising that the jurists of the day tended to give legal sanction to these extensions of sovereignty, usually under the pretext of the sovereign right and duty to maintain order and punish offenders. Witness some of these claims by states during their periods of great power and prestigei Venice assumed sovereignty over the whole Adriatic Sea, quelled her neighbors' protests by force of arms and exacted tolls from all foreign ships using this sea. Genoa claimed sovereignty and domination over the Ligurian Sea. Denmark, Sweden, and later Poland contended for or shared dominion over the Baltic Sea, with the Sound and Belt definitely falling to the possession of Den mark and the Gulf of Bothnia to Sweden. 29 Norway claimed all the seas between itself, the Shetland Islands, Iceland, Greenland and Spitsbergen. Later Denmark claimed these same waters. Both based claims on the principle that they possessed the op posite shore. Denmark exacted toll from ships using the Belt and Sound. Spain and Portugal made still more extensive claims, mostly in the interests of maintaining their trade monopolies through denial to other states of the use of the seas as a means of commerce with their colo nies. The climax of such claims was reached when Spain and Portugal divided the great oceans between them, Spain claiming the exclusive right of navigation in the western portion of the Atlantic, the Gulf of Mexico and in the Pacific, and Portugal claiming similar rights in the At lantic south of Morocco and in the Indian Ocean. These extensive claims, together with equally extensive and ex clusive land claims, were legitimatized by the various Papal Bulls of 1^93 and 1506 and the Treaty of Tordesillas of lk 9 b between Spain and Portugal.^ The concept of the ^Por more complete coverage of Middle Ages maritime matters see Thomas W. Fulton, The Sovereignty of the Sea (1911), pp. 3-6. 30 high seas as rss communis became virtually non-existent. Although most nations accepted or bowed to these Papal Bulls initially, the Spanish and Portuguese claims proved to be the high water mark of the principle of ■&££ clausum. Western European nations, particularly England and the Netherlands, were developing as maritime powers. By the middle of the sixteenth century they were chal lenging the Iberian domination of the seas and trade monop olies. The pirating of Spanish and Portuguese ships in the legalized form of privateering became national policy for the English, Dutch and French. In 1580, in support of England'8 policy of defiance of the Papal Bulls and in answer to the Spanish King Philipp II*s protest in this regard, Queen Elizabeth notedi this (Papal) Donation of that which is another man's, which is of no validity in law, and this imagi nary propriety, cannot hinder other Princes from trading into those countries and, without breach of the law of nations, from transporting colonies into those parts thereof where the Spaniards inhabit nott ... neither from freely navigating that vast ocean, seeing the use of the sea and air is common to all. Neither can a ti tle to the ocean belong to any people or private per sonal forasmuch as neither nature nor public use and custom permitteth any possession thereof.? The Dutch used their growing maritime power to col- William Camden, The History of the Most Renowned and Victorious Princess Elizabeth. Late Queen of England (1688). p. 255. quoted in Knight. Law of the Sea, p. »3. (See fn. 1 supra.) 31 onize, and in turn set up, their own trade monopolies, par ticularly in the East Indies spice trade. England, in spite of Queen Elizabeth's proclaimed freedom of the seas policy, did not hesitate under subsequent rulers to regress therefrom. By the so-called King's Chambers, James I in 1604 defined certain waters within vhich England would en- 8 force her neutrality. Under other sovereigns England claimed sovereignty over the North Sea, imposed taxes on the Dutch herring fleet fishing off the Scottish coast — one of the early fishing issues — , instituted a policy of impressing seamen on the high seas, and, in English waters, required foreign vessels to perform certain acts of recog nition of English sovereignty, such as dipping their flags Q or topsails in the presence of English ships. Amidst all these projections of national sover eignty privateering was still considered as patriotic re taliation and the resulting anarchy caused many people to view such actions as morally wrong.10 The ensuing travail brought forth the so-called "battle of the books" over Q Brierly, gfi. cit.. p. 195* (See fn. 1 supra.) ^Marx, g£. cit.. p. 184. (See fn. 1 supra.) 10Ibid. p. 184. 32 mare clausum and mare liberum* The battle's opening shots were fired by the brilliant Dutch scholar, Hugo de Groot, or Grotius as he was better known. In his Mare Liberum, published in 1609 (later found to be a chapter from his unpublished work, De Jure Praedae. Grotius, drawing heavily from the writings of Italian schol ar, Gentili, and Spanish jurist, Vasquez, defended the Dutch contention against Portugal's in a privateering case. In so doing he wrote in such broad and brilliant terms as to demolish the case for the concept of exclusive use of the oceans. He mocked the Portuguese and Spanish for their presumptuous oceanic claims and their justifications there for. With reference to English policy of exacting tolls from the Dutch herring fleet he stated thati "The right of fishing ought everywhere to be exempt from tolls, least a servitude be imposed upon the sea, which is not susceptible of a servitude,Thus in place of exclusive claims and piratical retaliation thereto, Grotius offered the concept 12 of a sea governed by a sense of mutual respect. Although ^Hugo de Groot, Mare Liberum. 1609, as quoted ibid.. p. 186. 12 Marx, g£. cit.. p. 186. (See fn. 1 supra.) 33 the world of his day did not accept this concept, it was to form the foundation for a later era. The remarks of Grotius concerning fishing tolls rankled the English monarch who proceeded to commission first William Welwood and later John Selden, both great scholars, to rebut Grotius' arguments, particularly as they pertained to fisheries. The former, in his An Abridge* ment of All Sea-Lawes (1612) rebutted Grotius' assertions. Grotius presented a counter rebuttal. Welwood, in his De Domino Marls (1615) and Selden in his Mare Clausum (completed about 1616 but not published until 1635). re butted Grotius' counter rebuttal. Of the works of these English scholars Mare Clausum is the most famous and renowned. In it Selden endeavors to prove that the sea is not everywhere common, but is capable of appropriation, and has been in numerous cases. Prepounding his own law of the nations, Selden writes1 First, that the sea, by the law of nature or na tions, is not common to all men, but capable of private domination or property as well as the landf second, that the king of Britain is Lord of the Sea flowing about, as an inseparable and perpetual appendant of the British Empire.^ ^Stang, < 2i>. , PP« 35-36. (See fn. 1 supra.) lifJohn Selden, Mare Clausum (1635) as quoted in Marx, ££• cit., p. 187. 3^ Thus, during the seventeenth century there was the confusion of several European sovereigns claiming large sections of the world's oceans while concomitantly reject ing other sovereigns' similar claims. Also during this century the British and Dutch engaged each other in hot and cold wars over issues such as fishing rights and tolls and the British requirement that foreign ships "vail bon net" (i.e., render homage to English ships). Patriotic privateering (mainly amongst the English, French, Dutch, Portuguese and Spanish), widespread piracy, and naval en forcement of various claims — all took a rising toll of sea commerce. Too many valuable ships and cargoes were being lost, insurance rates were skyrocketing, businesses and trade were being hurt badly. Gradually the European monarchs began to realise that unless their claims were enforced by superior forces they were meaningless, and that the cost of achieving superior forces was becoming prohibitive.1^ In the midst of such oceanic chaos the concepts of Grotius became increasingly attractive in offering the prospects of armistice and, through a sea common to all, the chance for great reward for those who could best em- 1^Stang, cit.. p. 36. (See fn. 1 supra.) 35 ploy the seas' resources.1* * It fell to the prominent Dutch jurist, Cornelius van Bynkershoek, to expound the legal concept that would underpin sovereign retreat from vast and exclusive sea claims. Bynkershoek, in his De Domino Marls Dissertatio1^ was essentially an advocate of mare liberum, but he advocated the principle of a national ter ritorial sea or maritime belt adjacent to each nation's 18 coast. Further, he held that a state's sovereignty ex- 19 tended as far out to sea as cannon would reach. Through ensuing years the various nations gradually withdrew their claims to a narrow coastal belt generally approaching the Cannon Shot Rule in width. It is of significance to note that it was United States Secretary of State, Thomas Jef ferson, who, in 1793* established the three mile national territorial sea limit to which the United States has ad- 20 hered ever since. By the beginning of the twentieth cen- ^Marx, cit.. pp. 187-88. (See fn. 1 supra.) ■^First published in 1702 and revised in 17^. 18 Knight, cit.. p. 62. (See fn. 1 supra.) ^Brierly, ££. cit.. p. 202. (See fn. 1 supra.) 20 Marx, SSL' cit.. p. 189. (See fn. 1 supra.) 36 tury the three mile limit was accepted world-wide and had 21 comparatively few exceptions. Thus the twin principles of free use of the sea by all and of the right of coastal states to exercise sovereignty over a narrow belt of waters adjoining their coasts was recognized and accepted by the maritime nations as being in the best interests of their 22 fishermen, merchant transport and naval power. The eighteenth and nineteenth centuries proved to be a period of expanding and fruitful maritime activity. Restrictions and exclusions gave way to more profitable competition. Great Britain emerged dominant in maritime trade, fishing and naval power, and she busied herself in forging her global empire. Marx writes of this erai The rest of the world was, by this time, quite willing to accept a common ocean. Although Britain enjoyed dominance, other nations might still pursue their own maritime aspirations. The Ligurian, the Adriatic, the Baltic, the North, the Atlantic, and the Pacific emerged from servitude, free of both tolls and privateering. Grotius' law of the sea was most persua sive. It did not have to be ratified by a constitu tional convention and encouraged reciprocity rather than retaliation. The self-regulating machinery of the shared-use concept — plenty of room for trading vessels and fishermen — could be set in motion . The Golden 21 Brierly, flfi* cit.. p. 20**. (See fn. 1 supra.) 22 Geoffrey E. Carlisle, "Three Mile Limit— Obsolete Concept?" U.S. Naval Institute Proceedings. Vol.XC3H(1967) p. 27. 37 2*» Rule at last became practicable. J In a gradual and peaceful manner various customs and regulations concerning the seas and man's activity therein grew, spinning a webb of generally accepted inter national law of the sea and regulatory agencies and instru ments. As shipping increased "rules of the road" were drawn up for mutual safety. As fishing increased and new fishing grounds were discovered, agreements were, for the most part, worked out to the mutual acceptance of the users of these grounds. "Contiguous Zones" beyond the limits of territorial waters for such purposes as customs, national security, health and other specifically defined areas of national interest became recognized. Rules of sea warfare embracing such issues as neutrality, visit and search, sur vivors and contraband were developed and generally accepted by maritime nations. As Knight describes iti As each potential use ripened into an actual use, new rules and regimes developed as handmaidens to the new technologies. Thus the gradual evolution of such concepts as the territorial sea. contiguous zones, ... and exclusive fisheries zones.2* * " As the world entered the twentieth century its oceans and seas were still primarily regarded as a two- 2-Wrx, ££• cit.. pp. 188-89* (See fn. 1 supra.) 9k Knight, ££. cit.. p. lj>3. (See fn. 1 supra.) 38 dimensional highway for toll-free merchant shipping and for fishing. The issues of piracy and slave trading had been eliminated. The policy of mare liberum prevailed for the purposes of navigation and trade, although it was gener ally recognized that jb&e& clausum could be applied in cer tain areas such as fisheries and territorial waters or for certain specified purposes in contiguous zones, such as for customs and health regulation and national security. Rules for naval warfare, neutral rights and protection on the high seas in war and peace attained a high degree of perfection and general acceptance. Whether the seas and their basins and resources were to be considered as res nullius (i.e., belonging to no person or state), or res communis (i.e., belonging to all mankind) was not regarded as an issue of any great importance. After all, were not fish the only sea resource of any great import at this time? And, with the possible exception of certain sea mammals (e.g., whales and fur seals), was not the supply of fish inexhaustible? True, there were treaties dealing with high seas fisheries dating back some years before 1900. However, these dealt mainly with congestion among fishing fleets in fertile fishing grounds and with fishing rights. Conservation treaties had scarcely begun to be 39 2*5 deemed necessary. J Generally speaking the maritime status as portrayed above prevailed in the world up to World War II. Develop ments were beginning to take place, however, that portended a different era in sea matters for the years following this war. The ocean scientist was commencing to compile mean ingful information regarding the seas and their contents and physical laws. Fishing fleets were growing in size and efficiency. Human population was expanding and the idea of a maximum sustainable yield of renewable ocean resources was being popularized. Fur seals had to be given international protection to prevent their extinction. Deep sea diving development was increasing salvage and sed entary fishing effectiveness. Wireless communication was invented. Communication by ocean cable was being further developed The speed of ships was increasing. The size of the world and of the ocean barriers was decreasing. In the late 1920s oil was discovered in the U.S. continental shelf.26 25For further details re pre-World War II fishing treaties and developments see Francis T. Christy and Anthony Scott, The Common Wealth in Ocean Fisheries. pp. 158-162. 26 Stang, cit.. p. 36. (See fn. 1 supra.) ko The navies of the great powers grew enormously in size, power and in the application of advanced technology to their weapons systems. Aircraft began their jointly ominous and beneficial development. The submarine intro duced an important third dimension to the oceans as did airplanes to the air column above the oceans. Neither of these types of craft could comply with some of the impor tant rules of sea warfarei both depended on surprise and attack with little or no warning. The big guns of modem warships could easily span narrow territorial seas with their gunfire. The invisible sea mine came into use. Naval disarmament efforts proved ineffective. World War I hastened developments in the maritime world and honored many of its rules in the breach. How ever, upon the conclusion of this war the world patched up the breaches as best it could, and, although fissures in the system were appearing, oceanic matters returned pretty much to pre-war norms. The war did usher in one important new element by making immediately evident the vital impor tance of the legal status of the air column. To settle this issue the 1919 Paris Convention on Air Navigation adopted as law the doctrine of full national sovereignty over a nation's territorial and territorial waters air 27 space. ' 2^Brierly, £i>. cit.. p. 218. (See fn. 1 supra.) 41 Freedom of the air applied only above the high seas — a ruling later to surface as an issue in future width of territorial seas arguments. In 1930 the League of Nations convened a Codifica tion Conference at The Hague for the purpose of codifying and securing international agreement on international law as it pertained to three separate subjects. One of these was the maritime subject of territorial waters. The con ference was entered into with thorough preparation and high hopes, but it resulted in a dismal failure, mainly due to Great Britain's refusal to yield on a contiguous zone issue. Since the necessary two-thirds votes were in hand for proclaiming three miles as the width of the territorial waters of the world, Britain's actions must be considered a monumental blunder in view of the modem day controversy 28 over this issue. World War II might be considered as the event that marked the end of the two dimensional ocean era. It had been a long era of painful and slow developments, but much progress had been made in advancing maritime international relations and agreements. The high seas were freer sensi bly narrow territorial waters and coastal state sovereignty ?Q Brierly, £j>. cit.. pp. 80, 204-207. (See fn. 1 SliBXa.) k2 thereover were generally recognizedt fishing (including sedentary fishing) rights, areas and regulations were rec ognized and in many cases governed by treaties between userst the need for such treaties and rights in contiguous zones were generally recognized and acceptedi regulatory rules, such as rules of the road, rules of naval warfare, rules against piracy and slave trade had been formulated and agreed toi communications, both by submarine cable and wireless, were governed in a mood of mutual agreementi ocean science research was being pursued at sea unhampered by restrictionsi and the legal status of the air column over the seas had been established. Above all, the nations of the world had learned that, "The law of the sea does not rise alone from a national claim but from the acknowl- 20 edgment of this claim by other nations.* 29 7Marx» cite« p. 189. (See fn# 1 supra.) CHAPTER III HISTORICAL BACKGROUND ~ POST WORLD WAR II TO 1961 The dim dark sea ... that divides and yet unites mankind. — Henry W. Longfellow World War II, with its ferocity, global scope and rapid advancement in applied technology, shook and shat tered the maritime international framework. The various developments mentioned in the previous chapter did indeed contribute to a breakdown and to the introduction of an era of change. Treaties, agreements, conventions, regula tions and laws of war were in many instances broken or simply disregarded. Wide scale unrestricted submarine, air and anti-submarine warfare and the almost indiscrim inate planting of sea mines rendered it impossible in most cases to observe such niceties of international law as giving merchant ships warning prior to attack, taking prizes, safeguarding survivors, according neutral rights and a host of other guarantees. The League of Nations was dealt its final death blow as a viable international organization for the main tenance of peace and order on land and sea. Extensive contiguous sea zones were established in furtherance of 43 to war efforts. Neutrality zones* epitomized by the one de clared by the 1939 Declaration of Panama, were proclaimed. Territorial water commenced to increase in breadth. Mer chant ships by the hundreds were sunk. Fishing fleets were harassed in some cases, kept bottled up in home ports and waters in others, and destroyed in still other cases. Many harbor installations were damaged or destroyed. Large sea areas were rendered most hazardous due to extensive naval and air mining operations and to floating mines which currents and heavy seas tore loose from their moorings. Scientific oceanographic expeditions almost ceased, due to the hazardous situation at sea and the demand for scien tific talent in the development of war technology. Pollu tion in certain sea and coastal areas, due principally to tanker sinkings, was commonplace. Depth charging and pol lution took their toll among living resources of the sea. Development of seabed oil and natural gas fields was se verely curtailed. The atom bomb made its debut. Chaos replaced public order on, under and over the seas. However, there were some "pluses". Deep diving submarine technology was greatly enhanced, as were "Man in the Sea" projects, ship salvage techniques and certain types of scientific knowledge of the oceans. International cooperation in sea matters, particularly among allied North Atlantic coastal nations, of necessity increased. A base *5 upon which to develop ocean engineering and ocean oriented technology was established. Great and diversified advances were made in ship, submarine and aircraft design and devel opment. Thousands of people throughout the world became "sea oriented" or were exposed to some experience involving the oceans. Not the least of the "pluses" was realization that the League of Nations had to be replaced by a stronger and more all-inclusive world organization. On the diplomatic front two events of maritime in terest took place during the war. The first of these was the United Kingdom-Venezuela Treaty of 19^2 providing for the division of the Gulf of Paria. This treaty and its supplementary legislation recognized the "rights of sov ereignty or of control" over the submarine areas of the continental shelf adjacent the Gulf of Paria, a body of water 70 miles long and 35 miles wide.^ The exploitation 2 of submarine oilfields was involved. According to Mal ta's U.N. ambassador, Arvid Pardo, this treaty "foreshad- ^Pan American Union, Department of International Law, Background Material on the Activities in the Organi zation of American States Relating to the Law of the Sea (1958), p. 3 9 . See Appendix V. 2Martinus W. Mouton, The Continental Shelf (1952), p. 6. 46 owed to some extent future legal developments* The second of the aforementioned diplomatic events was the reaffirmation of the legal status of territorial and high seas air spaces (i.e., national sovereignty over the former and freedom from national regulation and sov ereignty over the latter). This was done by the Chicago Convention on International Civil Aviation, December 7, 1944. The Convention resulted from the 1944 international Chicago Conference attended by representatives of 54 states. The U.S.S.R. and Axis nations were not represen ted. ^ Shortly after World War II large deposits of petrol eum resources were found to exist in the geological conti nental shelf of the United States. No international issues arose as long as exploration and exploitation occurred within territorial waters. It soon became apparent, how ever, that oil existed beyond the three mile limit. About this same time technical progress was contributing to in tensified fishing which pointed up the need to protect living sea resources from destructive exploitation. Ac- -^Arvid Pardo, "Whosa Is the Bed of the Sear The Proceedings of the American Society of Internal!ontl_law. April 1968, p. 217* ^William W. Bishop, Jr., International Law.,Cases and Materials (2nd ed.) (1962), pp. 373"75* *7 cordingly, on September 28, 1945* President Truman issued his two now historic proclamations.^ One of these^ declared that the natural resources of the subsoil and seabed of the continental shelf contig uous to the coasts of the United States were "subject to its jurisdiction and control." The other' established conservation zones in those areas of the high seas contig uous to the coasts of the United States which were, or might become, substantial fishing grounds. The first of these proclamations "attempted to change existing inter national law concerning the seabedi the second attempted to provide a framework for attending to high seas fisher ies conservation within the existing regime of the high „8 seas. ' ’ pan American Union, op. cit.. pp. 1 and 39*40. See Appendix V. ^U.S. Presidential Proclamation No. 2667, Depart* ment of State Bulletin, Vol. XIII, September 30, 1945, pp. 484-85* See Appendix VI for proclamation text. ^U.S. Presidential Proclamation No. 2668, ibid.. pp. 486-87. See Appendix VII for proclamation text. ®Wilbert M, Chapman, "The United States Pish Indus try and the united Nations Conferences on the Law of the Sea? The Law of the Sea. International Rules and Organiza tion for the Sea. Proceedings of the ence of the Law or the seainatituTe' 48 With the simultaneous issuance of these two procla mations the era of the three dimensional ocean had truly arrived on the world scene, and a veritable Pandora's Box of international activity had been opened up. In view of the subsequent far reaching effects, the devotion of further coverage herein to this turning point in maritime history is deemed appropriate. In dis cussing the continental shelf proclamation and the period immediately preceding it, Ambassador Pardo statedi While somewhat leisurely academic discussion con tinued, economic exploitation of the seabed and its subsoil beyond territorial waters had already started. This confronted the technologically advanced countries, particularly the United States, with the urgent need for a solution to the problem of jurisdiction and con trol of the land underlying shallow waters beyond the territorial sea. Unilateral action was thus taken, which, ..., has decisively influenced the development of the present legal structure. ..• undoubtedly the Truman Proclamation of 1945 must be considered the first and most significant state ment of principle. The Proclamation referred to the "continental shelf".9 This was a relatively new con cept in law, although not in science... In substance, the Truman Proclamation declared that valuable petroleum and mineral resources lie on and under the continental shelf, and that modem technology is capable of exploiting themt that there is a world wide need for these resources! and that, therefore. q Although the term "continental shelf" was not de fined in the proclamation, an accompanying White House press release of September 28, 1945. stated that it was generally considered to be "submerged land which is contig uous to the continent and which is covered by no more than 100 fathoms (600 feet) of water. ..." For further details see Department of State Bulletin, Vol. XIII, No. 484 (1945). 49 efforts to develop them should be encouraged. But for this purpose and in the interests of conservation and utilization, recognized jurisdiction over the resources was necessary. Exercise of jurisdiction over the re sources of the continental shelf by the contiguous state is, however, just and reasonable and, therefore the United States regarded the resources of the shelf con tiguous to the United States as "appertaining to the United States and subject to its jurisdiction and con trol" without in any way affecting the character of the high seas above the shelf. ... It will be noted that the Proclamation totally rejected the concept of the continental shelf as res omnium c o m m u n is and avoided founding assertion of juris diction on the raa nullius theory, preferring instead to justify the action taken on the assumption that since the continental shelf is the submerged extension of the littoral state, the latter has a reasonable right to exercise jurisdiction thereon.10 Professor Knight, in writing about the two proclamations, statedi These proclamations were unexpected and widely mis interpreted. The fisheries' part (2668), in retrospect, seems to have been only an assertion of the importance of making and respecting treaties concerning high seas fisheries regulation and conservation.11 Unfortunately, it was confused by many with the first proclamation, concerning the continental shelf. 10Pardo, cit.. pp. 217-218. (See fn. 3 supra.) ^The force that prompted this proclamation was the Alaskan salmon canners, who were anxious for a U.S. post war reassertion of the 1938 agreement with Japan which called for the latter voluntarily to cease fishing in Bris tol Bay. The State Department greatly weakened the origi nal draft, which called for a U.S. unilateral assertion of its rights to regulate the activities of foreign fishermen in the high seas off its coasts. (See Chapman, ££. cit.. PP. 35-37.) 50 In retrospect, again, this first declaration (2667) seems to have merely modified the position taken in the Anglo-Venezuelan Treaty of 19^2 that submarine resources in the shelf could and might be appropriated by neigh boring states. It should not be forgotten that at the time the United States was involved in an internal dis pute over its offshore (tideland) oil reserves» the Proclamation can therefore be seen as an element in the strategy of the federal government in claiming the rights over these resources. Its effects, however, were world wide. 12 Dr. Chapman, in his written statement submitted as testimony before a congressional committee in 1970, called the Truman continental shelf proclamation a "strategic er ror" and stated that it had a "disturbing effect on the Law of the Sea ... which ... unleased critical divisiveness among nations over this subject. In a paper presented in 1968 Dr. Chapman further commented on the Truman Proc lamations as follows1 The Department of State had done extensive diplo matic preparatory work before these proclamations were issued and it had good reason to expect little or no international interaction over them. It expected the change with respect to the continental shelf to be ac cepted without fuss. (In the end that has proved to be correctf there never has been substantial substantive 12h: Knight, The Law of the Sea — Documents and Notes (1969), p. 353. ^^wilbert M. Chapman, "Testimony of W.M. Chapman Before the Special Sub-Committee on The Outer Continental shelf, Senate Committee on Interior and Insular Affairs, 4 March, 1970." (From Mr. Chapman's.personal file, Feb. 21, 1970), p. 7. (Mimeographed) 51 Interaction over this.) It expected the two issues to be kept separate, as it had separated them in the proc lamations. In this it proved dead wrong.1^ As indicated above, the fishery jurisdiction issue and the continental shelf jurisdiction dealt with in these two proclamations became immediately misinterpreted and intertwined in proclamations and claims put forth during the next few years. Latin American claims of an exagger ated nature figured prominently and early among the various unilateral national claims which followed. These national claims fell generally into three groups. The first group dealt primarily with sovereignty over seabeds concerned with sedentary fisheries, such as pearl and oyster beds, of which Australia's seabed proclamation of 1953 is typical. The second group of proclamations was primarily concerned with mineral resources, mainly petroleum. The proclaimed division of the floor of the Persian Gulf and that of the North Sea amongst the contiguous nations are examples of this type of proclamation. It was the third group of such unilateral procla mations which was the most internationally disturbing, since these included not only very extensive claims to the 1U Chapman, "The United States Fish Industry and the 1958 and I960 United Nations Conferences on the Law of the Sear cit.. p. 37. (See fn. 8 supra.) 52 continental shelf areas and seabeds beyond continental shelves, but also the use of the seas above them. The ink was scarcely dry on Truman's Proclamations when, on October 29, 1945• the President of Mexico issued a declaration laying "... claim to the whole of the continental platform or shelf adjoining its coastline and to each and all of the natural resources existing there, whether known or unknown, and is taking steps to supervise, utilize and control the closed fishing zones necessary for the conservation of this source of well-being."1^ On October 11, 1946, the Government of the Argen tine Republic issued a decree declaring that "the Argen tine epicontinental sea and continental shelf are subject to the sovereign power of the nation" although free navi gation of these waters remained unaffected.1^ On June 25* 1947. Chile and on August 1, 1947. Peru, declared sover eignty of the waters, shelf and sea bottom up to 200 miles offshore.1^ Ecuador, Panama, Salvador, Costa Rica, Hon- 1^Pan American Union, £fi. cit.. p. 40. (See fn. 1 suora.) Also see Appendix V. ^Ibid., also see Appendix VIII D. 17 / 'Jose A. Alvarez, "Strategic Implications of Con tinental Shelves," Naval War College Review. Vol. XXII, No. 3 (1969), p. 49. 53 duras and other Latin American countries have made similar 18 extensive claims. In 1952 South Korea proclaimed its Rhee line which in effect closed an area up to 250 miles from its coasts to Japanese fishermen. In 1956 the U.S.S.R closed off the Sea of Okhotsk to Japanese salmon fisher men.1^ In 1957 the U.S.S.R. closed Peter the Great Bay to all foreign vessels and aircraft and in the same year In donesia. using the archipelago theory, closed off her in ternal waters and claimed a twelve mile territorial sea. Other countries laid various claims to seaward of their coasts and there developed widespread support for the twelve mile territorial sea width. Protests were gener ated by these various claims. Pishing claims, such as those of Iceland, became sources of international friction. In 19**5 the United Nations was bom amidst great hopes and expectations on the part of the various nations 18 Bishop, ££. cit. at fn. **, p. 539. See also Knight, ££. cit. at fn. 12, pp. 353*5** and Alvarez, on. cit.. p. 51. For a general coverage of post World War II territorial sea claims and arguments see James F. Meade, "The Great Territorial Sea Squabble," U.S. Naval Institute Proceedings. Vol.XCV, No. * * (1969), pp. **5-53• ^Knight, cit. at tn 12, p. 35**. (Notei In 1957 the U.S.S.R. relinquished this claim in favor of a regulatory treaty concerning Northwest Pacific fisheries.) 54 of the world. One of the many hopes was to continue and enlarge upon the work of the League of Nations in the field of codification of international law. In pursuance of this goal the conferees of the San Francisco Conference included the following as part of Article 13 of the United Nations Chartert 1. The General Assembly shall initiate studies and make recommendations for the purpose ofi (a) promoting international cooperation in the political field and encouraging the progressive development of international law and its codi fication! 20 It is of interest to note in connection with this article that the conferees had previously “rejected the proposition that the General Assembly of the United Nations ... should have authority to 'enact' rules of international law which 21 should become binding on members.* Further, they thought that “'progressive development' would establish a nice balance between stability and change, whereas 'revision' 22 would lay too much emphasis on change': 20 U.S. Department of State, Charter of the United Nations together with the Statute of the International Court of Justice. Publication 2353 (1961). p. 10. 21Bishop, S O L * P* 55. (See fn. 4 supra.) 22See 9 UNCIO Documents 69-70, 177-178, 240-249, 345-347, 423-424* 13 idem. 751-754, and Bishop, ££. at fn. 4, p. $6. 55 During the fall of 19^8, in fulfillment of Article 13* l.a., the International Law Commission of the United Nations was established with a special statute to regulate its organization and functioning.23 In the midst of bur geoning unilateral claims, declarations and protests in volving the seas, and, under pressure of rapid technologi cal advances, explorations and exploitations, the Inter national Law Commission at its first session in 19^9 ini tiated a study of the regime of the high seas as a matter 23J.L. Brierly, The Law of Nations (6th ed.) (1963), p. 81. Brierly expands further on the Commission and its statute on pages 81 and 82 as followsi The Commission consists of twenty-one [originally fifteen*] 'persons of recognized competence in inter national law' elected by the General Assembly which is expected to ensure that the commission as a whole is representative of the main forms of civilization and of the principal legal systems of the world. The Statute distinguishes between (a) the development of interna tional law, i.e., 'the preparation of draft conventions on subjects which have not yet been regulated by inter national law or in regard to which the law has not yet been sufficiently developed in the practice of States', and (b) its codification, i.e., 'the more precise for mulation and systematization of rules of international law in fields where there already has been extensive practice, precedent and doctrine'. The commission is to promote both of these purposes and those who drafted the statute recognized that there is no clear-cut line between them and that in any work of codification gaps may have to be filled in or amendments made to take ac count of new conditions. 56 of priority. Its second session (1950) also dealt exclu sively with the regime of the high seas. At the commis sion's third session (1951) the regime of the territorial sea was added to that of the high seas for study. During the 1952 (i.e., the fourth) session work continued on the aforementioned two regimes. At the fifth session (1953) the commission issued revised drafts of articles dealing with the continental shelf, fisheries resources of the sea, and the contiguous zone. In addition it also broad ened its study to deal with other aspects of the Law of the Sea that it had decided to lay aside at its second session. 2 i i This work was continued in 195** • Concurrent with the yearly sessions of the Inter national Law Commission, the Organization of American States' Inter-American Council of Jurists and its perma nent committee, the Inter-American Juridical Committee, held a series of meetings and conducted studies in search of agreements on similar Law of the Sea subjects. The Council of Jurists met in Rio de Janeiro in 1950, Buenos Aires 1953 • Caracas 1951 *# Mexico City in January 1956, and 2k Wilbert M. Chapman, "Concerning Fishery Juris diction and the Regime of the Deep-Sea Bed". A paper read at the Swedish International Institute for Peace and Con flict Research as part of the Symposium Toward a Better Use of the Ocean, a Study and Prognosis. Stockholm. 1969. 57 at the Specialized Conference of Ciudad Trujillo in March, 1956. While these conferences served as useful prelimi naries for United Nations conferences on the same subjects soon to follow, their results were more conspicuous in re vealing national interests, lack of agreement and the di- 2< versity of positions among the American states. J In 195** the United States submitted to the United Nations General Assembly two proposals concerning the Law of the Sea which it thought would be treated separately and would be acted upon favorably. One dealt with the continental shelf and the other sought the convening by the United Nations of an International Technical Confer ence on the Conservation of the Living Resources of the Seas. Unfortunately for the United States' position a majority of nations, primarily for real or imagined nation al interests, were in favor of holding in abeyance action on any part of the Law of the Sea until the International Law Commission could work up and present a draft covering the whole Law of the Sea. The General Assembly therefore, by a majority vote, asked the Commission to submit a com prehensive study and report on all aspects of the Law of 2 5 JPan American Union, op. cit.. pp. 1-47 and Appendices thereto. (See fn. 1 supra.) 58 the Sea in one package. Further, the 195^ General Assembly voted to convene an International Technical Conference on the Conservation of the Living Resources of the Sea. This conference was held during the spring of 1955 in Rome. While the Rome Conference proved fruitful in some respects it concluded that it was not competent to express any opinion as toi 1. the extent of the jurisdiction of the coastal state over fisheriesi 2. the appropriate extent of the territorial seat or 3. the legal status of the superjacent waters of the continental shelf. Further, the conferees were more or less evenly divided on the question of the special interests, rights, duties and responsibilities of coastal states in the matter of the conservation of the seas' living resources and on the ques tion as to whether the Conference was competent to consider them. The International Law Commission at its seventh (1955) session submitted various articles on the Law of the Sea to member nations for comment. In 1958 at the eighth session, based upon replies received from twenty- five governments, the Commission drew up its final report and submitted it to the General Assembly. This Commission, 59 made up of eminent and competent international lawyers and jurists from different nations and assisted by competent experts and advisors from other fields concerned with the problems and issues of the sea, after working with all as pects of the law of the sea over a period of eight years, saw fit to include the following in its final reporti 28. The Commission therefore recommends, .... that the General Assembly should summon an international confer ence of plenipotentiaries to examine the law of the sea, taking account of the legal but also the technical, biological, economic and political aspects of thaprofe- lem. and to embody the results of its work in one or more international conventions or such other instruments as it may deem appropriate. 29. The Commission is of the opinion that the confer ence should deal with various parts of the law of the sea covered by the present report. Judging from its own experience, the Commission considered--and the com ments o i Governments have confirmed this view— that the various sections of the law of the sea hold together, and are so closely interdependent that it would be ex tremely difficult to deal with only one part and leave the others aside. During 1957 there were extensive and detailed de bates in the General Assembly about the Law of the Sea, but no substantive decisions were taken in this field. Instead, the General Assembly substantiated the Commis- 26 United Nations, General Assembly, 11th Session, 1956, "Report of the International Law Commission Covering the Work of Its Eight Sessions, 23 April - k July 1956", General Assembly Official Records1 Supplement No. 9 (A/3159)* New York, 1956. (Italics mine.) See also Chapman, "Concerning Fishery Jurisdiction...". ££. cit.. p. 2^1. 60 sion's view that the various aspects of the law of the sea were so interrelated that they would be required to be con sidered together.2^ Accordingly, on February 21, 1957. the General Assembly adopted Resolution 1105 (XI) which called for the convening of a conference on the subject. This resolution instructed the plenipotentiaries to work up international conventions or other such instruments as recommended in the Commission's paragraph 28 of its final report. This conference convened in Geneva, Switzerland, on February 24, 1958, and concluded on April 2?, 1958. Eighty six nations were represented, including all but two of the United Nations members, and seven non-members. Also rep resented by observers were seven specialized U.N. agencies and nine intergovernmental organizations. The work of the conference was divided among five committees as followsi First Committee — Territorial Sea and Contiguous Zone Second Committee — General Regime of the High Seas 27 'United Nations, General Assembly, 11th Session, 1957* verbatim record of the debate in the Sixth Committee of the General Assembly at its 11th Session relating to agenda item 53(a), United Nations Conference on the Law of the Sea, A/Conf. 13/19. 3 December, 1957. See also Chapman, "Concerning Fishery Jurisdiction..*" ££. cit.. p. 241. 6 1 Third Committee — Fishing and Conservation of Living Resources of the High Seas Fourth Committee — Continental Shelf Fifth Committee — Question of Free Access to the Sea of Land Locked Countries The Conference was preceded by serious preparation and diplomacy. While national interests certainly had bearing on the proceedings and outcome, the Conference was none-the-less marked by a sincere effort and spirit of compromise to the end that four comprehensive interna- tional conventions were adopted and, in subsequent years, signed and ratified by most of the greater powers and many of the minor nations (albeit with reservations by some). The story of this Conference and its detailed results is too extensive to be included in this brief background chap ter. Suffice it to state here that the following conven tions were adopted, even though two primary issues re- 28 mained unresolved 1 28See Appendices VIII A, VIII B, VIII C and VIII D for the text of these four conventions. Although there are many accounts of this conference and the International Law Commission work leading up to them the writer found the following to be particularly pertinent and interesting1 Knight, ££. cit. at fh. 12, pp. 73-120 (which included an interesting bibliography on the subject on pp. 78 and 79), 132-35, 140-63, 185-200, 234-35. 243-49, 257-70, 331-43, % 354-72, 405-27, 431-38 and 443-48i Lewis M. Alexander (ed.) The Law of the Sea— Offshore Boundaries and Zones (1967) 6 2 CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE — Defined geographic criteria for measuring the inner territorial sea boundaryi adopted the "baseline concept" (with some exceptions)) defined national boundaries in the territorial sea between adjacent na tions) and provided, inter alia, for the right of in nocent passage, internal waters and contiguous sones. CONVENTION ON THE HIGH SEAS — Defined the high seas) provided for freedom of navigation, fishing, overflight, and submarine cable and pipe laying, and for such things as "flags of convenience", safety at sea obligations, piracy, and "hot pursuit". Chapters 2,3,16 and 17) Chapman, "Concerning Fishery Ju risdiction...," cit.. pp. 239-24-2) Lewis M. Alexander (ed.), "The Law of the Sea— Proceedings of the Third An nual Conference of the Law of the Sea Institute, June 24— 27, 1968.", pp. 22-88) and Lloyd V. Stover (member of Law Committee, Marine Technology Society), "Law of the Sea" (1966), pp. 8-35) U.S. Congress, Senate, Committee on For eign Relations, Conventions on the Law of the Sea. Hearing, 86th Cong., 2nd Session, Jan. 20, I960.Milner B. Schae fer, "Some Recent Developments Concerning Fishing and the Conservation of the Living Resources of the High Seas", San Diego Law Review. Vol.VEL No. 3. 1970. pp. 371-W) Department of State, Sovereignty of the Sea. Geographic Bulletin No. 3, April 1965) Myres S. McDougal and William T. Burke, The Public Order of the Ocean« A Contemporary International Law of the Sea (1962). pp. 63-81 and Chap- ters 3-7) and Marjorie M. Whiteman, Digest of International Law. Vol. IV (1965), Department of State Publication 7825. Chapters IX-XII. 63 CONVENTION ON PISHING AND CONSERVATION OP LIVING RE SOURCES OP THE HIGH SEAS — Imposed a new duty upon nations to cooperate with other nations for the conser vation of the living resources of the high seas and provided a system for such international cooperation? recognized a special interest of a coastal nation in the conservation of living resources in the high seas adjacent to its territorial sea and provided for cer tain actions and safeguards in the premise including a procedure for a compulsory settlement of disputes. CONVENTION ON THE CONTINENTAL SHELF — Defined the con tinental shelf as followsi For the purpose of these Articles, the term "continental shelf" is used as referring (a) to the seabed and the subsoil of the submarine areas adja cent to the coast but outside the area of the ter ritorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas? (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.29 This convention provides for the coastal state sov ereignty over its continental shelf, including exclu sive rights over its natural resources which "... con sist of the mineral and other non-living resources of 2^This definition is often referred to as the "rub ber boundary". See Appendix VIII D, Article 1. 6k the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organ isms which at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the sub soil .^0 The legal status of the superjacent waters as high seas and the air space above these waters are not af fected by this convention, nor are the several freedoms stipulated in the High Seas Convention. Various pro visions are made for installations erected on the shelf, safety zones around them, jurisdiction, conservation, scientific research, tunneling under the subsoil, and boundaries between adjacent coastal states. The 1958 Geneva Conference was a real step forward in the development of the Law of the Sea. William R. Neblett summarized its accomplishments as follows1 ... First, in certain areas it codified existing law and by large majority votes put an end to specula tive and argumentative theories. Second, it focused attention on other subjects and crystallized thinking to a sharp point by the interaction of opposing theories in debate. Third, often where full accord was not reached, it provided some weight of authority by actual 3°Ibid.. Article k. 65 votes recorded as greatly In favor of certain premises and opposed to others. Fourth, the enunciating of prin ciples has made it easier for later bilateral and multi lateral agreements between states. Fifth, it has placed restraints upon states who would move against the principles enunciated, whether or not those states ratify the respective conventions.31 On the negative side, the Conference left unresol ved key issues which were (and still are) of prime impor tance. These were (a) the breadth of the territorial sea, (b) the jurisdiction by coastal states over fisheries lying in the high seas, and (c) a meaningful legal definition of the continental shelf. The first involves claims by vari ous nations to territorial sea widths which vary between three and two hundred miles and involve, inter alia, fish ing rights, the Latin American "biosphere" problem, naval mobility, freedom of the seas, and use of international straits and airspace. The second, which is intertwined with the first, involves such problems as conservation of fish stocks, the Icelandic Fishery Problem, historic fish ing rights, fishing technology, yields, food requirements, fish economics and existing fishing treaties and agree ments. The third unresolved issue leaves the international community with an ill-defined "rubber" boundary which de fies legal or acceptable definition and which has led to ^Alexander (ed.), The Law of the Sea— Offshore Boundaries and Zones. ££. • P* 38. 6 6 dispute and expansionist national claims. In furtherance of the hope of reaching agreement on the first two of these issues, the 1958 Geneva Law of the Sea conferees adopted a resolution pointing out their fail ure to resolve these issues and requesting the United Na tions General Assembly at its thirteenth session to study the advisability of convening a second international con ference of plenipotentiaries to consider these unsettled questions.^2 The General Assembly made the requested study and passed a resolution in late 1958 inviting all member states and states which were members of the specialized agencies to participate in a conference during early i960 which would be limited to attempts to reach agreement on the two unresolved questions.^ There being favorable response from the member states, The Second United Nations Conference on the Law of the Sea was held at Geneva between March 17 and April 26, i960. Representatives from eighty-eight states were pres- ^21958 United Nations Conference on the Law of the Sea Resolution (A/CONF. 13/L. 56, No. VIII), April 27. 1958. ^United Nations, General Assembly, 13th Session, 1958, Resolution 1307 (XIII). December 10, 1958. 67 ent and observers from seven U.N. specialised agencies, the International Atomic Energy Agency and six inter governmental organizations attended. From the start it was evident that positions had hardened since 1958 and that national interests and cold war polarization dominated much of the negotiating and voting. Canada, the Uhited States, the Soviet Union, some Latin American countries, and several national groups — all offered proposals. None was able to obtain the necessary two-thirds majority vote required for approval. Near the end of the conference the United States and Canada presented a compromise proposal which called for a terri torial sea breadth of six miles, a contiguous fishing zone of an additional six miles and the preservation of historic fishing rights for a period of ten years. This proposal came within one vote of the required two-thirds for approv al. Thus, other than the various states registering sup port or non-support for certain principles and proposals, the Conference came to a close without any tangible accom plishment. Once again the nations of the world had failed to settle the issues of territorial sea breadth and high seas fisheries jurisdiction. Additionally, the definition - J i i , of the continental shelf remained ill defined. 6 8 ^ For further details on the i960 Geneva Convention the following references, among the many available, are suggested 1 Geoffrey E. Carlisle, "Three Mile Limit ~ Obsolete Concept?” U.S. Naval Institute Proceedings. Vol. XCIII, No. 2 (1967). P P . 28-291 Stover, pp. cit.. pp. 27-28i Alexander (ed.), < 2j>. cit.. pp. 39-40* Arthur H. Dean, "The Second Geneva Conference on the Law of the Seat The Fight for Freedom of the Seas." American Journal of International Law. Vol. LIV, No. 4 Cl960>, pp. 772-62, Chapman, "Concerning Fishery Jurisdiction...,” 22* cit. pp. 242-43 (See fn. 24 supra.)t Chapman, "The Uhited States Fish Industry and the 1958 and i960 United Nations Con ferences. ..," ££. cit.. p. 55(See fn. 8 supra.)» Conven tions on the Law of the Sea. Hearing, 86th Cong., 2nd Sess., January 20, I960.(For additional pertinent ref erences see bibliographic notes, Knight, ££• cit. at fn. 12, pp. 255-56. CHAPTER IV HISTORICAL BACKGROUND— 1961-1971 We must sail sometimes with the wind and sometimes against it— but we must sail, and not drift, nor lie at anchor. — Oliver Wendell Holmes During the six years following the i960 Conference a number of states extended their territorial sea or fish ing claims. Nine claimed 130 miles and seven extended their fishing claims to twelve miles. In 196^ the Sixteen Nation European Pisheries Conference drafted a convention to rec ognize the right of a country to establish a twelve mile fishing zone. In October, 1966, the U.S. Congress enacted legislation extending exclusive United States fishing rights to twelve miles. Newly emerged nations in general favored a wide jurisdiction.^* Since about 19^7 many national and international technical and less specialized bodies dealing with various aspects of problems related to improving the utilization and management of the ocean have arisen. Prominent among these are such United Nations bodies as the Intergovem- ^Geoffrey E. Carlisle, "Three Mile Limit — Obso lete Concept?," U.S. Naval Institute Proceedings. Vol. XCIII No. 2 (1967), p. 29. 69 70 mental Oceanographic Commission (IOC) of the Educational, Scientific and Cultural Organization (UNESCO), the Depart ment of Fisheries of the Food and Agriculture Organization (FAO), the World Meteorological Organization (WMO), the intergovernmental Maritime Consultative Organization (IMCO) and the Scientific Committee on Ocean Research (SCOR). In addition to these and other U.N. bodies there has come into existence various intergovernmental and re gional organizations, commissions and bodies having to do with various phases of ocean management. The more tech nically developed nations have added to their already existing national agencies and bureaus concerned with ocean matters. Generally speaking, these various bodies, agencies and commissions proceeded along fairly non-polit ical, independent and uncoordinated courses up through the early 1960s. However, commencing about 1965 the pace of interest, enthusiasm and development, both political and technical, began to quicken. In December, 1965. U.S. Ambassador James Roosevelt, serving with the U.S. Mission to the U.N., sensing this growing international interest, recommended to the U.N. Economic and Social Council (EC0S0C) that the Secretary- General be requested to undertake a study of the U.N.'s role as concerns underseas resources. In March, 1966, the 71 ECOSOC adopted a resolution to this effect. In May, 1966, the Commission to Study the Organization of Peace issued its 17th Annual Report which took the position that the four Geneva Conventions were passe and proposed interna tional control, ownership, and administration of the high 2 seas and seabed under the high seas by the United Nations. p "New Dimensions for the United Nation^" 17th Re- port, Commission to Study the Organization of Peace (1966). In essence, according to David P. Stang, the report called for immediate international agreementi (1) That no nation be permitted to appropriate the sea or seabeds beyond the 12-mile limit for fish or beyond the [geological] continental shelf for mineralst (2) That the United Nations be given title to these areas "beyond"i (3) That a United Nations Marine Re sources Agency be established to control and administer international marine resources! hold ownership rightsi and grant leases or use these rights in accordance with economic efficiency! and (k ) That the General Assembly should declare that the deep sea and the seabed must not be used by nations as an environment in which to install or operate weapons, or for purposes intended to further research on potential weapons or their development. (See David P. Stang, "The Walls Beneath the Sea7 U.S. Na val Institute Proceedings. Vol. X(3V,No. 3 (1968), pp. 38- 39.)For the views of William T. Burke, Clark M. Eichel- berger (the Commission's chairman), and Francis T. Christy, Jr., see Alexander, The Law of the Sea — Offshore Boun daries and Zones (1967). pp. 222-225 and 299“309. 72 This document was to become the springboard for many fu ture actions, resolutions and proposals. On December 6, 1966, the U.N. General Assembly passed Resolution 2172-^ requesting the Secretary-General to make a comprehensive survey of what was going on in the world pertinent to the oceans and make proposals as to what should be done about it. In the various advanced countries recognition was being given to the need for coordination. Action was being taken to coordinate their own internal ocean concerned agencies and to coordinate with the international and, in particular the U.N., ocean oriented agencies. The Uni ted States, being the world's leader in this field, com menced extensive actions along these lines. In June, 1966, the President's Scientific Advisory Committee released its report, "Effective Use of the Sea," and Congress passed the Marine Resources and Engineering Development Act, which, among other tiling. . provided for U.S. cooperation with other nations and with international organizations in marine science activities. It also appointed a cabinet- level council under the President to coordinate intema- ^United Nations, General Assembly, 21st Session, December 6, 1966, Resources of the Sea. Resolution No. 2172 (XXI). (See copy appended as Appendix IX.) 73 tional cooperative programs. On July 13. 1966, President Johnson made an important policy statement concerning the United States' position on the high seas and the seabed thereunder. During the next several years much study and congressional, presidential and departmental effort was devoted to restructuring, coordinating and programming our various ocean oriented agencies, and proposed national policies in oceanic affairs were extensively debated and studied. Although national and international activities in marine matters, and in particular in matters concerning k The most important part of this policy statement is quoted belowi Under no circumstances, we believe, must we ever allow the prospects of rich harvest and mineral wealth to create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and to hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings. Lyndon B. Johnson, "Remarks at the Commissioning of the Research Ship, OCEANOGRAPHER, July 13. 1966", Public Papers of the Presidentsi Lvndon B. Johnson 1966, Vol. II (1967), p. 72^.For further information concerning U.S. policy at this time see U.S. President, The Second Report of the President to the Congress on Marine, Resources and Engin eering Development. "Marine Science Affairs — A Year of Plans and Progress," March 1968, p. 231 and U.S. Depart ment of State, "U.S. Calls for U.N. Committee to Develop Principles for Cooperative Exploration and Uses of Ocean Floor," a statement by Arthur J. Goldberg, Department of State Bulletin. Vol. LVII, No. 1^83, Nov. 27. 1967. PP. 723 *724. 7^ the resources of the sea and seabed, continued at an in creasing pace throughout the world, and the main arena for international developments in this field proved to be the United Nations, The General Assembly's Resolution 2172 (XXI), Resources of the Sea.^ had an electrifying effect on the world community. In February, 1967* at a UNESCO, IOC meeting the Soviet delegation formally proposed that, within the IOC, a working group be created to draft con ventions to govern scientific research on, and exploration and exploitation of mineral resources under the seas. An amended version of this was adopted in October by the IOC and a working group was created.^ During February, 1967* United States Senator Frank Church proposed that an inter national agreement be formulated which would confer "title on the United Nations to mineral resources on the ocean floor beyond the continental shelf.During June, 1967. the more than 2000 jurists and lawyers from more than 100 countries, who met in Geneva at the Third World Conference ^This Resolution is appended as Appendix IX. ^Stang, ££. cit.. p. 39. (See fn. 2 supra.) r £2id. 75 on World Peace Through World Law, urged the U.N. General Assembly to assume "jurisdiction and control" over the Q mineral resources of the ocean bottom. Although the scope of interest and activity in ocean affairs remained broad, the main area of interest was narrowing to the resources of the sea and seabed and primarily the latter. The hope of the promise of ocean technology and the needs of the many developing countries, including the many new nation U.N. members, changed the focus of the General Assembly towards political aspects Q and its mood to "activist". This focus was greatly sharpened and action given direction, scope and momentum on August 18, 1967, with the submission by the Permanent Mission of Malta to the United Nations, headed by Ambas sador Arvid Pardo, to the U.N. Secretary-General of at Q Ibid. See also Treaty Governing the Exploration and Use of the Sea Bed. Pamphlet Series No. 10 of the United Nations Committee of the World Peace Through Law Center (1968), p. i. Q 7Louis Henkin, "The General Assembly and the Sea", The Law of the Sea. The United Nations and Ocean Manage ment. Proceedings of the Fifth Annual Conference of the Law of the Sea Institute. June 14-19. 1970 (1971).Lewis M. Alexander (ed.J7 p. 4. 76 REQUEST FOR THE INCLUSION OF A SUPPLEMENTARY ITEM IN THE AGENDA OF THE TWENTY-SECOND SESSION DECLARATION AND TREATY CONCERNING THE RESERVATION EX CLUSIVELY FOR PEACEFUL PURPOSES OF THE SEA-BED AND OF THE OCEAN FLOOR, UNDERLYING THE SEAS BEYOND THE LIMITS OF PRESENT NATIONAL JURISDICTION, AND THE USE OF THEIR RESOURCES IN THE INTERESTS OF MANKIND10 The memorandum accompanying this proposal mentioned that the seabed underlying the high seas, which represents a considerable portion of the world's area, could, in view of the rapid developments in technology, lead to an expansion of national and competitive claims to it, to the appropriation of its resources by the more technologically advanced nations, and to the use of the seabed for mili tary purposes. In view of this, Malta proposed that the seabed be declared "a common heritage of mankind"i that a treaty be concluded which would preclude national approp riation of such seabed, and provide for its use in ways United Nations, General Assembly, 22nd Session, Document A/6695 dated 18 August 196? (title as given in text above). See Appendix X for the text of this docu ment and its attached explanatory memorandum. A long and detailed statement by Ambassador Pardo concerning Malta's view on this item was delivered on November 1, 1967, be fore Committee I of the Assembly and is contained in U.N. General Assembly documentsi Provisional A/C.l/PV 1515 and Provisional A/C. 1/PV 1516 of November 1, 196?. In this statement Dr. Pardo estimated that about five or six billion dollars a year commencing about 1975 could be col lected from deep sea resource exploitations and made available to developing nations. 77 that would safeguard the Interests of mankind with any financial benefits accruing therefrom to be used "primar ily to promote the development of poor countries"» that the seabed "be reserved exclusively for peaceful purposes in perpetuity"t and that an international agency assume jurisdiction of the seabed as "trustee for all countries" to Tegulate, supervise and control all activities there on," and ensure compliance with the treaty.11 The Secretary-General complied with the Maltese request and included the item requested (slightly revised) 12 as Agenda Item 92, 22nd General Assembly. The debate that followed in the General Assembly "found many members surprised, uncertain, hesitant, cautious, but there were Also see Henkin, ££. cit., pp. 4-5. Note the similarity between the Malta Proposal and the recom mendations included in "The Seventeenth Report of the Commission to Study the Organization of Peace." supra at fn. 2. 12 The revised item read, "Item 92. Examination of the question of the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor, and the sub soil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of the re sources in the interests of mankind." (See U.S. Congress, House, Committee on Foreign Affairs, Sub-Committee on In ternational Organizations and Movements, Interim Report on The United Nations and the Issue of Deep Ocean Resources Together With Hearings. House Report 999. 90th Cong., 1st Sess., Dec. 7, 1967, p. 8R.) 78 already themes and variations, some harmony, some discord, much muting and muffling.The United States' assess ment of the world's technological capabilities did not co incide with that of Malta. Further, U.S. opinion gener ally viewed as premature the proposal's far reaching, definitive international arrangements concerning jurisdic tion over the deep sea ocean floor. It was felt that the nations of the world would have to know what resources were there before they could attempt to agree on rules for ik exploitation. Many members of Congress expressed concern and urged caution with regard to the Malta Resolution. Various congressional committees and sub-committees held hearings, rendered reports, and considered proposed reso lutions on the matter. Typical of such United States activities were the hearings and the Interim Report on The United Nations and The Issue of Deep Ocean Resources, ex tracts from which are appended as Appendix XI. ^ ^Henkin, cit., p. 5* lit A. Denis Clift, "... of Diplomats and Ocean Poli- ticsf U.S. Naval Institute Proceedings. Vol. XCV3, No. 7/809 (1970), pp. 34-35. ^Qp. Cit. at fn. 12, pp. 1R-6R, See also U.S. Con- f ress, Senate, Committee on Foreign Relations, Hearings ecord, Governing the Use of Ocean Space. 90th Cong., 79 Other nations held various views. Discussions and debate on the Malta Resolution are well summed up by Eugene Brooks in describing the discussion concerning it in one of the U.N. committees as followsi In the United Nations First Committee discussion in November, 1967* Ambassador Pardo's challenge was met with a somewhat masked response. Twenty-four of the forty-seven missions participating in the debate may be said to have offered varying degrees of support to Malta, while fourteen missions cast a jaundiced eye at the proposal, and nine were neutral — all told a ma jority in favor. But the proposal ran into heavy tides of caution and reserve set in motion by the influential maritime powers, Russia and the United States among them, echoed by the northern European tier of nations, with the notable exception of Sweden. The United States failed to comment directly on the heart of the Malta plan, an international agency, while its stress on traditional cooperation, free national uses and counsels of delay cast a mild shadow of doubt hiding deeper hostility. Russia, characteristically negative where international organization is concerned, in 1967 opposed even the formation of the gg hoc committee on the oceans. The developing nations, particularly those of mideast Africa and Asia, approved an international agency and advocated a freeze on further national claims to underwater areas. Some South American nations — Chile, Honduras, and Peru — used the debate to reiter ate their claims to a 200-mile national epicontinental zone, while supporting an international agency.16 1st Sess., November 29, 1967i U.S. Ambassador to the U.N. Arthur J. Goldberg's statement before U.N. General Assembly Committee I on November 8, 1967 (Department of State Bul letin. Vol. LVII, No. 1483, Nov. 27, 1967), pp. 723-25l and Elisabeth Mann Borgese, "A Center Report/The Republic of the Deep Seasr The Center Magazine. Vol. I, No. 4 (1968), pp. 20-22. „ i^Eugene Brooks, "The.Malta Plan and The United. Nations" a paper contributed at the Fourth Annual Confer ence of the Law of the Sea Institute, June 23-26, 1969, 80 The debate on the Malta Resolution, Agenda Item 92, culminated in the adoption on December 28, 196?, by the General Assembly of Resolution 2340(XXII), which estab lished a 35 nation A& Hoc Committee to study the peaceful uses of the seabed and ocean floor beyond the limits of national jurisdiction. The Committee was asked to prepare a study, for consideration the following year by the Gen eral Assembly, which would survey present and past activi ties of the U.N. and other bodies bearing on the seabed, give an account of the scientific, technical, economic, legal aspects of the matter, and give (c) An indication regarding practical means to promote cooperation in the exploration, conservation and use of the sea-bed and the ocean floor, and the subsoil there of, as contemplated in the title of the item [Item 92], and of their resources, having regard to the views, ex pressed and the suggestions put forward by Member States during the consideration of this item at the twenty- second session of the General Assembly.17 The resolution also requested the Secretary-General to See the proceedings on this conference, Louis M. Alexander (ed.) Tha taw of the Sea — National Policy Recommenda tions (1970), p. 49o. Brooks cites as his sources for this paragraph U.N. Documents A/C.l/PV 1515-1530, and states, "The views of the Member States at the 22nd Session are summarized topically in U.N. Docs, fsicl A/AC.135/1&" 17 United Nations, General Assembly, 22nd Session, Agenda Item 92, Document A/Res 2340 (XXII), 28 December 1967* See Appendix XII for the complete text of this docu ment including the committee membership composition. 81 seek the views of the Member States on the subject and to 18 provide certain studies and documentation. The Ad Hoc Committee held three sessions, the first two at the U.N. Headquarters in New York, March 18-27 and June 17-July 9, 1968, and the third at Rio de Janeiro, August 19~30» 1968. During the first session the Commit tee organized its work program, elected officers and es tablished two working groups, a Legal Working Group and an Economic and Technical Working Group. The second session was devoted primarily to detailed consideration by the two groups to problems and issues in their respective areas of concern. The third session was devoted mainly to finaliz ing reports and reaching agreement on specific recommenda tions to be made to the 23rd General Assembly. The work of the Economic and Technical Group in cluded discussion on five major topics as follows1 1. Assessment of the extent and distribution of seabed resources 1 2. Present state and foreseeable development of techno- 18 For a brief summary of the information requested of the Secretary-General see Brooks, op. cit.. p. 497. U.N. Docs. E/4449. E/4449 Add. 1, E/4449 Add. 2, A/AC. 135/15. A/AC. 135/11. A/AC. 135/11 Add. 1, A/AC. 135/10 Rev. 1 and A/AC. 135/28 as contain further pertinent de tails. 82 logy to explore, evaluate and exploit these resour ces! 3. The economics of such exploitation! 4. The possible consequences and benefits from exploi tation! and 5* The prospects for international cooperation in this field. The Legal Group discussed the following major subjectsi 1. Legal status of the seabed! 2. Reservation of the seabed "exclusively for peaceful purposes"! 3. Use of seabed resources "for the benefit and in the interests of mankind*! 4. Freedom of scientific research and exploration! 5> Freedom of the high seas! 6. Pollution and other hazards! 7. Defining seabed boundaries! 8. A moratorium on national claims to the seabed! and 9* A declaration of legal principles concerning peace ful use of the seabed. Also considered were four proposals which the United States had advanced during the fall of 1967. These weret 1. A Declaration of Principles to guide the exploration and use of the seabed and its resources! 83 2. A draft resolution requesting the 18-Nation Disarma ment Committee (ENDC), operating under U.N. auspices in Geneva, to take up the question of arms limita tion on the seabedi 3. A proposal for an "International Decade for Ocean Exploration" to stimulate interest and cooperation in investigating seabed resourcesi and 4. A proposal calling for the development of Interna tional Marine Preserves. The studies and reports of the Hoc Committee were moderate and constructive. The Economic and Techni cal Group Reports contained a wealth of information and some agreement in principle. The Legal Group reached no consensus on any of its above listed discussion subjects. Its report did give various national points of view and the extent to which a particular point of view appeared to have support. Probably the most significant achieve ment of the Committee's labors was in the realm of educa tion. The delegates of the underdeveloped nations began to have second thoughts regarding the "pot of gold" await ing their harvest on the ocean floor and its potential for enriching them. The realization that the technology and resources of the developed countries would be necessary to reap any benefits from the seabeds became apparent to most 84 of them. For their part, the views of the delegates from the developed maritime nations, including the Soviet Union, were quite similar. They evidenced the desire to forestall premature decisions which might jeopardise scientific re search, freedom of navigation, and other legitimate uses of the sea and seabed. Most of them reacted favorably to various proposals intended to facilitate international cooperation in the exploration and exploitation of the sea 19 and its seabed. z However, both the debates in the fall of 1967 and the deliberations of the Afi Hoc Committee delegates re vealed a polarization of the views of the underdeveloped nations on the one hand and the more technologically ad- ^For a summary and assessment, including United States efforts, contributions and accomplishment, see U.S. Congress, House, Committee on Foreign Affairs, Sub-Commit tee on International Organizations and Movements, The Oceansi A Challenging New Frontier. House Report No. 1957, 90th Cong., 2nd Sess., Oct. 9, 1968, pp. 1R-14R, extracts from which are appended as Appendix XIII. Also see Brooks, op. cit.. pp. 497-504j United Nations General Assembly, 23rd Session, Sept. 1968, Report of the Ad Hoc Committed to Study the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction. U.N. Doc. A/7230 (XXIII)t and U.S. Department of State Bulle tins, Vol. LVIII, No. 1491, Jan. 22, 1968 (pp. 125-27)1 Vol. LVIII, No. 1493* Feb. 5, 1968 (pp. 183-83)1 Vol. LVIII, No. 1504, April 22, 1968 (pp. 543-5^5)« Vol. LIX, No. 1517. July 22, 1968 (pp. 104-107)I Vol. LIX, No. 1520, Aug. 12, 1968 (pp. 171-77)1 vol. LVIII, No. 1494, Feb. 12, 1968 (pp. 211-215)1 and Vol. LIX, No. 1519, Aug.5, 1968 (pp. 150-53). 85 vanced and powerful nations on the other. The former, fearing a seabed resource grab by the latter and having visions of the six billion dollar windfall in their favor from the exploitation of the sea's wealth, as mentioned by Dr. Pardo in the debates, generally favored control over the seabed and its resources by an international agency and a moratorium on further exploitation until such control could be instituted. The latter, fearing the ma jority vote control in the General Assembly which was held by the more numerous underdeveloped and less experienced nationsi having doubts as to the direction the United Na tions might take if it became financially independent through ocean resource revenues} desiring to profit from their advanced ocean technology} and having, in some cases, fear for their national security, generally were cautious in their views concerning an international control of the high seas and deep seabed, the peaceful use only of the seabeds, and the devoting of profits derived from the sea bed resources to finance the United Nations and the poor countries. This polarization was apparent in the inability of the delegates of the Legal Group to agree on a set of prin ciples for the governance of the seabed to recommend to the General Assembly. Consequently two sets of principles 86 20 were so recommended. The polarisation between the "have" and the "have not" nations, generally speaking, between the nations of the northern hemisphere and those of the southern hemisphere, although often muted, was, and still is, a divisive factor in ocean diplomacy and politics a major factor to be reckoned with in the establishment of any international ocean regime. As might be expected, much discussion and debate concerning the various subjects considered by the Hoc Committee were going on, both at governmental and non governmental levels in the nations of the world. The United States, being the leader in ocean developments, was literally bombarded with proposed draft treaties, resolu tions, legal arguments, studies and oceanic manifestations. Most of the resolutions introduced in the House and Senate were on the cautious to negative side. Not all, however, for in November, 1967, Senator Claiborne Pell of Rhode U.N. Doc. A/7230, op. cit., pp. 17-19. Part IV of this document (see Appendix XIV) lists these two sets ast "(a) Draft declaration of general principles proposed for submission to the General Assemblyi [More commonly called the Rio "A" List or NAN Principles. These prin ciples were favored by delegates from the advanced coastal nations.] (b) Draft statement of agreed principles proposed for submission to the General Assembly. [Known as the Rio "B" List or "B" Principles. These were favored by the underdeveloped nations.]" 87 Island proposed a Senate Resolution entitled Declaration of Legal Principles Governing Activities of States in the Exploration and Exploitation of Ocean Space.21 later to be proposed by him in the form of a draft treaty. In intro ducing the proposal Senator Pell expressed the hope that the draft might "serve not only this country, but also all mankind as a first step towards peaceful and useful admin- 22 istration of the great world ocean." During the summer of 1968 the United Nations Com mittee of the World Peace Through Law Center published a study which incorporated a "Proposed Treaty Governing the 21 First proposed as Senate Resolution 186, 90th Congress, 1st Session) proposed again in March, 1969, as Senate Resolution 33* 91st Congress, 1st Session) and again proposed in February, 1969, slightly revised in the form of a draft treaty as Senate Resolution 92, 91st Con gress, 1st Session. See Congress, House, 90th Cong., at fn. 15» PP. 2-7. a related proposed resolu tion by Senator Pell, Senate Resolution 172 on pp. 1-2). Senate Resolution 33 was considered in Congress, Senate, 91st Cong., 1st Sess., Committee on Foreign Relations, Sub committee on Ocean Space, Activities of Nations in Ocean Space (1969), pp. 9-14. As of this writing none of these proposed resolutions has been passed by the Senate, al though the discussion and debate over them have proved of value. A copy of Senate Resolution 92 is included as Appendix II. 22 As cited by Clift, cit.. p. 35. (See fn. 1^ 1st Sess., Governing ;he Use of Ocean Space..., cit gupya.) 88 Exploration and Use of the Ocean Bed."2- ^ This draft treaty was prepared in compliance with the resolution adopted by the Geneva World Conference on World Peace Through Law on July 13. 1967, which urged United Nations jurisdiction over the resources of the ocean beyond the territorial sea. In October, 1968, another study was published in corporating a third such draft treaty. This was published by the Center for the Study of Democratic Institutions under the authorship of Mrs. Elisabeth Mann Borgese. The draft treaty was titled, "Draft Statute of the Interna tional Regime for the Peaceful Uses of the High Seas and of the Sea-Bed Beyond the Limits of National Jurisdic tion . Concurrently with the above mentioned 1968 activi ties the United States was working on restructuring its own 23World Peace Through Law Center, Pamphlet Series No. 10, ££. cit.. pp. 7-27. (See fn. 8 supra.) This draft treaty is often referred to as the Danzig Treaty after Aaron L. Danzig, the Chairman of the Drafting Committee which produced it. A revised version of this draft treaty, based on three years of debate and discussion, was drafted in early 1971 and is being circulated for comment at the time of this writing. A copy of this revised draft is in cluded as Appendix IV. 24 Elisabeth Mann Borgese, The Ocean Regime — A Center Occasional Paper (1968), pp. 9-22. A copy of this draft treaty is included as Appendix I. 89 internal governmental ocean affairs organization, seeking progress with the problem of keeping the seabeds de-nuc- learized, continuing its extensive all encompassing marine affairs studies as directed by the Marine Resources and En gineering Development Act of 1 9 6 6 , groping for a coor dinated national position in marine matters, and engaging in extensive diplomatic consultations on such matters in an effort to guide and influence developments. The U.N. General Assembly's 23rd Session, meeting in late 1968 and early 1969, received the report and recom mendations of its ocean affairs A£ Hoc Committee, and de bated and studied them. In view of the wide disarray of views reported by the Ad Hoc Committee and as evidenced in General Assembly Committees I and II discussions, and in ^Of pertinent interest in connection with these studies are the four annual reports of the study group to the President and Congress each titled Marine Science Affairs and dated respectively February 1967, March 1968, January 1969 and April 1971 and their forerunner, Effec tive Use of the Sea issued by the President's Science Ad- visory Committee, June 1966. Also of relevance to U.S. efforts is the information contained in the following two Congressional hearings records 1 U.S. Congress, House Com mittee on the Judiciary, Special Sub-Committee on Submerged Lands. Marine Resources Conservation and Development Act. Hearings, 90th Cong., 2nd Sess., July 1908, and U.S. Con- gress, House Committee on Merchant Marine and Fisheries, Sub-Committee on Oceanography, Oceanography Legislation. Hearings, 90th Cong., 1st Sess., October 1967, April and July 1968. 90 view of the heeitancy and reluctance of the more powerful nations, the General Assembly could, in essence, agree only to further study of marine matters. It did pass sev eral oceanic resolutions as followsi Resolution 2413 (XXIII), 26 "Exploitation and Con servation of Living Marine Resources*" which invited the Member States to increase international cooperation in the field of development, exploitation and conservation of living marine resources outside the limits of national ju risdiction! urged the U.N. specialized agencies and other intergovernmental organizations concerned to assist! and requested the Secretary-General to render a progress report on this effort at the General Assembly's 25th Ses, Ion. Resolution 2414 (XXIII),27 "International Coopera tion in Problems Related to the Oceans•" endorsed the con cept of a coordinated, long term program of oceanographic research and requested the Secretary-General to present a comprehensive outline of the scope of this program at the Economic and Social Council 4?th Session and to render a 26U.N. Doc. A/RES 2413 (XXIII), 24 December 1968. (See Appendix XV.) 27U.N. Doc. A/RES 2414 (XXIII), 27 December 1968. (See Appendix XVI.) 91 progress report at the 25th Session of the General Assem bly. Resolution 2467 (XXIII),2® "Examination of the Ques tion of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present Na tional Jurisdiction, and the Use of Their Resources in the Interests of Mankind." This was in reality four resolu tions under one title. It dealt with the issues raised by the Report of the Ad Hoc Committee on the Seabed and by the subsequent debate in the General Assembly Political Committee. Part A of the Resolution took note of the Ad Hoc Committee report, and established a Committee on the Peace ful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction composed of delegates from forty-two nations. It instructed the Committee to study the elaboration of legal principles which would promote international cooperation in the exploration and use of the deep seabeds and insure the exploitation of their re sources for the benefit of mankind. Additionally it re- pfl U.N. Doc. A/RES 2467 (XXIII), 14 January 1969 (See Appendix XVII.) 92 quested the Committee to examine proposed measures of co- operation in order to prevent marine pollution which might result from exploration and exploitation of seabed resour ces. Part B called upon the Secretary-General to under take a study on marine pollution control to be submitted to the General Assembly and the Seabed Committee. By Part C the General Assembly requested the Secre tary-General to undertake a study Mon the question of es tablishing in due time appropriate international machinery for the exploration and exploitation of the resources in this area, and the use of these resources in the interests of mankind...." Also it called upon the Seabed Committee to submit a report on this question. Worthy of note re garding Part C is that the Soviet Bloc opposed it and the U.S. abstained, feeling that it was premature to be con sidering such international machinery. Part D welcomed the concept of the United States' proposal for an International Decade of Ocean Explorationt invited Member States to formulate proposals for this pro gram! urged early publication of results and findings by all participants! and requested certain coordinating and 29 cooperative actions. 29 7For additional information regarding the 23rd 93 The work of the 23rd General Assembly Session was aptly summed up by Denis Clift when he wrotei A distinct three-year phase of international oce anic affairs culminated ... with the adoption of three resolutions at the 23rd Session of the U.N. General Assembly. ... The oceanic resolutions adopted by the United Na tions' 23rd Session mirror the development of oceanic affairs since the mid-1960's. In this period the inter national community placed the oceans, the seabeds, and their resources on its agenda of priority issues. De bate on oceanic issues began, exploratory studies were undertaken, and in the main, the decision was reached that man was just beginning in his efforts to make full use of the seas, that more knowledge would be required before any treaties governing such important aspects of the marine environment could be considered.30 Major developments in international oceanic affairs continued during 1969. The Permanent Sea-Bed Committee^ held three sessions at the United Nations Headquarters, February 6 and 7, March 10-28, and August 11 to 29, in car- Session see Brooks, ££. cit. at fn 16, pp. 50*1-151 Clift, op. cit. at fn. 1**, pp. 37“38f U.S. Congress, Senate, 91st Cong., 1st Sess., Committee on Commerce, Special Study on United Nations Suboceanic Lands Policy (1970), pp. 3-**i Department of State Bulletins, Vol. LIX, No. 1535, Nov. 25, 1968, pp. 55**-58, and Vol. LXI, No. 1575, Sept. 1, 1969, pp. 191-9** i and National Council on Marine Resources and Engineering Development, Marine Science Affairs — A Year of Broadened Participation, the 3rd Report to the President and to Congress, January 1969, pp. 51-5** • 3°Clift, £B. s±£., pp. 37-38. (See fn. 1** supra.) ^The Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Juris diction. 94 rying out its mandate assigned by General Assembly Resolu tion 2467 (XXIII). Like its predecessor, it established a Legal and an Economic and Technical Sub-Committee. Lack of time and lack of agreement among the delegates hampered substantive progress and accomplishment. The Secretary- General* s study of internal machinery for the exploration and exploitation of seabed resources was completed in time for the Committee to consider.-*2 As might have been pre dicted, some of the developing countries urged extensive regulating machinery and the Soviet Union took a generally negative attitude towards any machinery. The United States took a middle course. The Legal Sub-Committee devoted much of its efforts in dealing with the legal implications of the Secretary- General 's study report and with the study of legal prin ciples and norms to promote international cooperation. Its report included a well received synthesis of some elements of its discussions on these matters. The Economic and Tech nical Committee spent much time dealing with international organization aspects of promoting exploitation under vari ous possible seabed regimes. Although reports were sub mitted by the Seabed Committee to the General Assembly in ■ * 2This study was included in the Secretary-General's report U.N.Doc. A/AC.138/12 and Corr. 1 and Add. 1 and Add.l/Corr.l. 95 the fall of 1969. they were generally devoid of substantive recommendations and revealed an unwillingness on the part of the delegates to consider realistic compromises. Some blamed the United States for lack of progress, since it was considered that most nations were waiting for it to 33 reach a national position. ^ Although important, the work of the Seabed Commit tee received less international consideration during 1969 than did the increasingly important developments in the seabed arms issue.^ The Malta Proposal asserted, and the General Assembly several times affirmed, that the seabed under the high seas "should be used exclusively for peace ful purposes". The United States agreed to this principle but interpreted it as prohibiting only offensive weapons ^United Nations, General Assembly, 24th Session, Report of the Committee on the Peaceful Uses of the Sea- Bed and the Ocean Floor Beyond the Limits of National Ju risdiction. U.N. Doc. Supplement No. 22 (A/7622). 1969 with addendum Supplement No. 22A (A/7622/Add. 1). For further information concerning the Committee's 1969 ses sions see Senate Hearings, Special Study on U.N. Suboce- anic Lands Policy, ofi. £i£., pp. 5-6» Anne Winslow, (ed.) Issues Before the 24th General Assembly. September 1969/ No. 574, passim pp. 62-o8| Henkin, ££. cit. at fn. 9. p.l7i Department of State Bulletin, Vol. LXI, No. 1575. pp. 193* 194. ^Cllft, flfi. cit.. p. 39. (See fn. 14 supra.) 96 being emplaced on the seabed — not defensive systems -- and as not forbidding peaceful military seabed work such as research. Further, she demanded verification inspec tions and periodic review conferences. The U.S.S.R., the only other nation really involved, opted for complete dis armament of the seabeds and proposed that the Eighteen Nation Disarmament Committee (ENDC)-^ be assigned the task of seabed disarmament. The United States concurred and, over the protest of some U.N. members, the task was so assigned. During the Spring of 1969 both of the superpowers submitted draft treaties to the ENDC. Differences were reconciled, and on October 7 the United States and the Soviet Union submitted to the Conference of the Committee on Disarmament (CCD) at Geneva a jointly agreed upon "Draft Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and the Subsoil Thereof.”^ 35 ^The United Nations Disarmament Committee, which meets at Geneva each year. In December 1969 the U.N. Gen eral Assembly, through adoption of Resolution 2602 (XXIV), enlarged the Committee to 26 members and changed its desig nation to the Conference of the Committee on Disarmament (CCD). France refuses to attend the meetings, so in effect there are 25 members. 36CCD Doc. CCD/269. 97 This draft treaty inspired comments and objections from other U.N. State Members. Some felt the treaty did not go far enough in prohibiting military uses of the sea bed. Others, mainly coastal states, sought to safeguard what they considered their rights on their continental shelves and in their coastal waters. A revised joint draft incorporating some of these objections was submitted to the CCD by the superpowers on October 3 0 . This revised draft was submitted to the 24th General Assembly where it was subjected to close scrutiny and suggested changes by the General Assembly First Committee and various State Members.3® The final outcome of this activity was General Assembly Resolution 2602 (XXIV), Part F,39 which welcomed the submission of the draft treaty and called upon the CCD to continue its work so that the text of a draft treaty could be re-submitted to the General Assembly for its con sideration. A new joint revised draft was worked up and 3^C.C.D. Doc. CCD/269/Rev. 1. 3®The U.N. Seabed Committee, which had already ren dered its report, held five additional meetings in November 1969 to consider the draft arms treaty. It then issued an addendum to its report (Supplement No. 22A (A/7622/Add. 1 (XXIV) 1969) giving its comments and recommendations. 39U.N. Doc. A/RES/2602 (XXIV), December 16, 1969. 98 ko submitted to the CCD on April 23. 1970, and still another jii on September 1. The latter was presented to the 25th Session of the General Assembly where it was commended to lip the Member States for signature and ratification. On February 11, 1971. it was opened for signature at Washing* ton, London and Moscow. Sixty-two nations signed it in Washington this same day. In the opinion of many the treaty is flawed by the refusal of the two nuclear powers, France and Communist China, to join in the pact, by the fact that a party to the treaty can withdraw for cause on only three months notice, and because the treaty applies only to the seabed and subsoil thereof — not the water and air columns over them. J 40C.C.D. Doc. CCD/269/Rev. 2, April 1970. ^C.C.C. Doc. CCD/269/Rev. 3, September 1970. 42U.N. Doc. A/RES/2660 (XXV), December 7, 1970. See Appendix XIX. ^Source material for this section on seabed dis armament (in addition to that previously footnoted) was drawn mainly from the following sources t C. Norman Poirier, "Arms Control for the Seabed", Proceedings of the 5th An nual Law of the Sea Conference (1970), Louis M. Alexander (ed.), pp. 109-ll^i Congressional Hearing, Senate, Activi ties of Nations in Ocean Space. ££. ci£., pp. 3-31 (See fn. 21 suora.)« Clift, ££. cit.. pp. 38-39 (See fn. 1^ supra.)> Issues Before the 24th General Assembly, pp. ci£.. PP. 66- 671 Arms Control and Disarmament Agency (ACDA) Eighth (19o8) 99 Another development of note took place In 1969 In connection with the North Sea seabed boundaries. Follow ing the discovery of natural gas and oil under the North Sea in 1965 the various petroleum interests commenced ex ploiting these resources commercially. For the most part boundaries for the claims to the seabed were agreed to amicably by the various adjacent coastal nations* using the equidistance principle embodied in the 1958 Geneva Conti- JlK nental Shelf Convention. However, a dispute over bound aries arose between Denmark and the Netherlands and the Federal Republic of Germany. The former two countries Ninth (1969) and Tenth (1970) Annual Reports to Congress, passim» Henkin, 2£. £ii., pp. 15-17 (See fn. 9 supra.)i and Department of State Bulletins, Vol. LIX, No. 1535, Nov. 25, 1968, pp. 554-58* Vol. LX, No. 1556, April 21, 1969. pp. 333-371 Vol. LX, No. 1564, June 16, 1969, pp. 520- 241 Vol. LXI, No. 1584, Nov. 3. 1969, pp. 365-67» Vol. LXI, No. 1586, Nov. 17, 1969, PP. 425-29* Vol. LXI, No. 1588, Dec. 1, 1969, pp. 480-841 Vol. LXII, No. 1613. May 25. 1970, pp. 663-671 Vol. LXIII, No. 1631, Sept. 28, 1970, pp. 362- 66, Vol. LXIII, No. 1644, Dec. 28, 1970, pp. 803-806* and Vol. LXIV, No. 1654, Mar. 8, 1971, pp. 288-90. 44 For the most part the seabed of the North Sea con sists of continental shelf area of a depth less than 200 meters. See Richard A. Speare, "The North Sea Continental Shelf Case," Marine Technology Society Journal. Vol. IV, No. 2, 1970, pp. 35-40. For an account of petroleum oper ations in the North Sea see A.F. Fox, "Oil and Gas Opera tions in the North See," Proceedings of the 5th Annual Law of the Sea Conference (1970), £fi. cit.. pp. 264-69. 100 being signatories of the foregoing convention, and each being adjacent to West Germany, invoked the equidistant principle which also happened to be to their advantage. West Germany, not being a party to the Convention and hav ing a concave shaped North Sea coast, protested the use of the equidistant method of establishing her northern and southern continental shelf boundaries and the special cir cumstances claims of her opponents, claiming that the shelf would better be allocated through giving her a just and equitable share of the divisible area. The dispute was referred to the International Court of Justice. On Febru ary 20, 1969, the court handed down its decision which was in favor of West Germany's claim. The court held that the parties should negotiate a settlement based on the concept that the shelf was a natural prolongation of the coastal state's land territory.^ There were other developments worthy of note con cerning ocean affairs which took place during 1969* In January the President's Commission on Marine Science En gineering and Resources concluded its three year study and published its report. This report contained many rec- ^I.C.J. Reports (1969). "North Sea Continental Shelf Cases, Vol. Ill7 k6 Qur Nation and the Sea — a Plan for National 101 ommendations which influenced the United States' oceanic policy, programs and internal organisation. In February Senator Pell filed in the Senate a revision of his former draft seabed treaty. In March the Commission to Study the Organization of Peace published its 19th Report, which tin contained far-reaching recommendations on this subject. The 24th Session of the General Assembly convened in the Fall and received, debated and considered its Sea bed Commission's report, which included deliberations on the Secretary-General's study of possible international machinery and assertion of the Committee delegates' con- 48 tinued inability to agree on governing principles. By resolution the General Assembly, in effect, told the Com mittee to keep trying and it asked the Secretary-General Action. Report of the Commission on Marine Science, Engin eering and Resources to the President and Congress, Janu ary 9. 1969. This report is sometimes referred to as the "Stratton Report" or "Stratton Commission Report" after its chairman, Julius A. Stratton. Its publication was fol lowed by three volumes of the Commission's Panel Reports which, although the joint work of many people, was edited by Professor Carl A. Auerbach. ^"The United Nations and the Bed of the Sea," 19th Report of the Commission to Study the Organisation of Peace (1969). ^8U.N. Doc. Supplement No. 22 (A/?622) (XXIV), 1969 op. cit. (See fn. 33 supra.) 102 to prepare a further study "on various types of interna- 49 tional machinery." The results of both of these efforts were to be presented to the next (i.e. 25th) session of the General Assembly. This same Resolution requested the Secretary-Gen eral, prior to the next session of the General Assembly, ... to ascertain the views of the Member States on the desirability of convening at an early date, a con ference on the law of the sea to review the regimes of the high seas, the continental shelf, the territorial sea and contiguous zone, and fishing and conservation of the resources of the high seas, particularly in order to arrive at a clear, precise and internationally ac cepted definition of the area of the sea-bed and ocean floor which lie beyond the limits of national jurisdic tion, in the light of the international regime to be established for that areat ...50 Another section of this Resolution, adopted over the dissent of major powers and most of the principal tech nologically advanced nations, declares, ... that, pending the establishment of the afore mentioned international [sea-bed] regimei (a) States and persons, physical or juridical, are bound to refrain from all activities of exploitation of the resources of the area of the sea-bed and ocean floor, and the subsoil thereof beyond the limits of national jurisdiction! 49 7U.N. General Assembly Resolution, U.N. Docs. RES 2574B (XXIV) and RES 2574C (XXIV), both of 15 December 1969. See Appendix XX for test of RES 2574a ,b,c & D. 50Ibid. U.N. Doc. RES 2574A (XXIV) 15 December 1969. 103 (b) No claim to any part of that area or its re sources shall be recognized.51 The adoption of this moratorium resolution over the protest of the only State Members that might in fact be governed by it indeed highlights the split between the un derdeveloped and developed nations on the seabed resources issue as well as the defect in the General Assembly one nation one vote system. The United States covered the views of the developed nations when it made the following pointsi (a) The General Assembly 2^-th Session resolutions on issues "contained proposals which were never considered in the Seabed Committee and which received scant attention in the Assembly." (b) The moratorium resolution was passed over the United States' protest and in the face of her statement before adoption that she would not be bound by it. (c) The moratorium resolution "went counter to past decisions of the General Assembly designed to speed the use of deep sea resources for the common benefit of man kind ." (d) This resolution, which was "trying to impose a 51Ibid. U.N. Doc. RES 257^D (XXIV), 15 December 196ft 104 fr e e z e on exploitation pending agreement on an interna tional regime t" was particularly unfortunate "because it was accompanied by another resolution [2574b] which sug gests that there can be no agreement on any single aspect” of the seas and seabed "until there is agreement on all such matters." The effects of these two resolutions may well be to set in motion unjustifiably expansive claims of national jurisdiction over large sea and seabed areas. The other resolution affecting the seabed which was adopted by the General Assembly in this session was the seabed disarmament resolution mentioned previously. There was in reality very little progress made during the 24th Session in settling any oceanic issues. Many dele gates, like the Seabed Committee delegates had done, at tributed this to the fact that the United States had not yet formulated its national position, and there is probab ly some truth in this view. However, Soviet negativism and the wide diversity of national views stemming from the varying national interests of Member States were also important factors which detracted from unanimity and solu- Department of State Bulletin, Vol. LXII, No. 159Q February 9, 1970, pp. 164-65. 53U.N. Doc. 2602F (XXIV), 16 December 1969. 105 tions.^ Developments In oceanic affairs continued at a rap id pace in the private, national and international sec tors during 1970, A major event on the national and the international scenes was the arrival by the United States at a national position on ocean matters after many months of departmental coordinating, congressional hearings, de bate and discussion. Many in the United States had been critical of the administration for holding up ocean devel opments by reason of having no national policy.^ On May 23, 1970, the President announced a new national oce anic policy and stated that his country would make specific proposals to the U.N. Seabed Committee in August.In ^Henkin, £i£., pp. 6-15. (See fn. 9 supra.) Also for further information concerning the General Assem bly's 24th Session seei United Nations, General Assembly, 24th Session, Resolutions Adopted by the General Assembly During Its Twenty-Fourth Session. 16 September-17 December U.N. Doc. Supplement No. 30 (A/7630 XXIV), 1970, pp. 10-l6» Department of State Bulletins. Vol. XLII, No. 1596, Jan. 2$ 1970, pp. 89-95. and Vol. XLIII, No. 1620, July 13, 1970, pp. 38-39. - ’- ’ For example see Congressional Hearing, Senate, Activities of Nations in Ocean Space. Senator Pell, ££. cit.. p. 213.(See fn. 21 supra.) 56Richard M. Nixon, Statement b.v the President on U.S. Oceans Policy. White House press release dated May 23, 1970. The text of this statement is included in Depart ment of State Bulletin, Vol. LXII, No. 1616, June 15, 1970, P. 737. 106 his statement announcing the new policy, ..., President Nixon proposed that States should by international agreement renounce their sovereign rights in the seabed under the high seas beyond a water depth of 200 meterst establish an international regime for the area beyond with certain basic principles and rules applicable throughout this areat authorize coastal States as Trustees for the international community to carry out the major administrative role in licensing the exploration and exploitation of natural resources from the limit of coastal State national jurisdiction to the edge of the continental margin and to share in the international revenues from the International Trus teeship Area which they administered! and establish an international organization to perform functions similar to the Trustee State functions for the area beyond the continental margin. In making this statement the President emphasized the inadequacy of the present law of the sea to meet the needs of modem technology and the concerns of the inter national community. He noted the threat of unrestricted exploitation and conflicting jurisdiction if the law of the sea were not modernized on a multilateral basis, the ecological hazards resulting from unregulated use of the seabeds, and the special responsibility of major mari time powers with their technological capacity to ex ploit the seabed to provide leadership in working out an equitable international solution.57 The U.N. Seabed Committee met in sessions in New York on February 26 and from March 2 to 26, and in Geneva from August 3 to 28, 1970, to work on and study items as- g f . S t a t g P v U g t j a , v o l . l x i i i . No. 1626, Aug. 24, 1970, p. 209* The President also re ferred to U.S. proposals to fix the boundary between ter ritorial and high seas at a maximum of 12 miles For the U.S. position on this matter see Department of State Bul letin. Vol. LXII, No. 1603, March 16, 1970, p. 3^3.For an interesting discussion of U.S. ocean programs and poli cies see A. Denis Clift, "U.S. Oceanic Programs and Policy" Naval War College Review. Vol. XXIII, No. 5 (1971), pp. 24-30. 107 signed to it during the 24th General Assembly Session.-*8 At the March 6 Seabed Committee meeting the U.S. Representative, Mr. C.H. Phillips, outlined the objectives that would need to be met by any international seabed re gime regardless of its character. On August 3. at the Geneva Session, Mr. Phillips introduced to the Committee the President's draft seabed convention proposal.^ Al though various facets of the U.S. proposals were obviously discussed in committee, the Seabed Committee's report does not indicate the draft treaty per se was considered. It was, however, included in the Committee's report, and thus introduced into the 25th General Assembly session. The main topics considered by the Seabed Committee were legal principles, economic and technical conditions and rules, exploration and exploitation, pollution, peaceful uses of the ocean and international machinery. It dealt extensive ly with the Secretary-General's report on international machinery. Again the results of the Committee's work was 58U.N. Doc. RES 2574(XXIV). (See fn. 49 supra.) ^Originally issued as U.N. Doc. A/AC. 138/25, Draft United Nations Convention on the International Sea- Bed Areai Working paper submitted by the United States of America.Included as Annex V of United Nations, General Assembly, 25th Session, Report of the Committee on the Peaceful Uses of the Sea-Bed end the Ocean Floor Beyond the Limits of National Jurisdiction. Supplement No. 21 (A/8021), 1970. A copy of this draft treaty is included 108 marred by a divergence and diversity of views, a need for more study, and an inability to arrive at and present agreed upon definitive proposals and recommendations. How ever, the studies conducted, the material assembled, and the presentation of the views and proposals of the various delegates again proved of value as pertinent information, education, and groundwork.^0 The 25th Session of the General Assembly convened in the Fall of 1970 and, after considering and debating the Seabed Committee's report, the much revised draft Seabed Disarmament Treaty submitted by the Conference of the Com mittee on Disarmament (CCD), and the Member State responses to the Secretary-General's query concerning a possible future conference on the law of the sea and related mat ters, ^ passed three far reaching resolutions concerning oceanic affairs. as Appendix III. ^°U.N. Seabed Committee 1970 Report, ibid.. passim. ^The U.S. response was favorable towards holding such a conference, provided it would focus on unresolved issues addressed in manageable packages and not throw open to re-negotiation all that had been generally agreed upon at the 1958 Conference on the Sea. See Department of State Bulletin. Vol. XLIII, No. 1620, July 13. 1970. 109 One of these resolutions concerns the draft Seabed 62 Disarmament Treaty and has been considered above. Another of the resolutions is a "Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction."^3 The third resolution called for the "Reservation Exclusive ly for Peaceful Purposes of the Sea-Bed and Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdiction and the Use of Their Resources in the Interests of Mankind, and Convening 64 of a Conference on the Law of the Sea." The "Principles" Resolution was a declaration of legal principles stating, inter alia, that the seabed un der the high seas and its resources shall be treated as "the common heritage of mankind,” and shall be used exclu sively for peaceful purposes 1 that "On the basis of these principles ... an international regime applying to the area and its resources and including international machin ery ... shall be established ..."i and that "states shall 62U.N. Doc. A/RES/2660 (XXV), December 7, 1970. 63U.N. Doc. A/RES/2749 (XXV), December 17, 1970. See Appendix XXI. ^U.N. Doc. a/RES/2750 (XXV), December 17, 1970. See Appendix XXII. 110 promote international co-operation” in such things as scientific research, conservation of ocean resources, rights of other states, and pollution prevention. Resolution 2750 (XXV) calls for, inter alia, con vening a law of the sea conference in 1973 to "deal with the establishment of an equitable international regime, including international machinery ...Mi precise defini tions of the high seas, the continental shelf, the terri torial seas, and contiguous zonest questions involving high seas fisheries, conservation, scientific research, pollution and international straits. Additionally the Resolution enlarged the Seabed Committee by 44 members and gave both the committee and the Secretary-General in structions and authority to get on with the work prelim inary to the 1973 conference. To a great extent, so far, this background chapter has stressed national governmental and international ac tions and activities. However, the private sectors in var ious countries, in particular in the more technologically advanced ones, have been busy in all oceanic fields of en deavor — international law and politics, commercial enter prise, scientific exploration, education, technology, anti pollution and conservation among others. Such activities are too numerous to mention. However, a few of them are Ill addressed below. The World Peace Through Law Center has been success ful in holding periodic conferences of lawyers, jurists and legal scholars from all over the world to contribute their ideas and support for the Center's objectives and activities. Each summer for the past six summers the Law of the Sea Institute, composed of prominent men from vari ous ocean related fields, has met and discussed various oceanic topics and published its proceedings. The Swedish International Institute for Peace and Conflict Research held a symposium which included well known world marine affairs personalities and experts.^ During the summer of 1970, and again in 1971, the Center for the Study of Demo cratic Institutions at Santa Barbara, California, sponsored well-prepared and well-attended convocations at Malta. At tendees from all sea related walks of life and from approx imately sixty nations attended the convocations.^ ^The symposium was titled "Towards a Better Use of the Ocean, a Study and Prognosis," and was held in Stock holm in the summer of 1969. ^The Convocations, Pacem In Mari bus, had as their mission "to Explore Peaceful Uses of the Oceans and the Ocean Floon" Mrs. Elisabeth Mann Borgese's The Ocean Regime. a suggested draft statute for peaceful uses of the high seas and seabed thereunder was a main topic of dis cussion at the 1970 Convocation. 112 In the commercial world the search for petroleum resources and the exploitation thereof ranks as first in the non-living sea resources field. The big petroleum companies are searching for, and finding natural gas and oil in the subsoils of the continental shelves in many parts of the world. Technological developments have enabled the producers to exploit in ever increasing depths. Such developments are outstripping the developments of the international law necessary to handle them. This is making it ever more evident that some sort of regulation and inter* national agreement must be arrived at soon to prevent a "seabed grab” which will inevitably lead to tensions and conflicts.^ Undersea mining, other than for sand, seashells and gravel, is still in its infancy, but developments and ad vances are taking place in this field. In particular, ad vances are being made in the exploration for, assaying of, and extraction techniques for the manganese nodules that abound in the seabed under the high seas. In fact recov- 6*7 'For a comprehensive coverage of various facets of the off-shore oil business, including the views of the Na tional Petroleum Council see Cecil J. Olmstead's statement before the Senate Committee on Commerce, Special Study on United Nations Suboceanic Lands Policy. ££• fill.. PP. 76- 1 0 2 . (See fn. 29 supra.) 113 ery operations have been and are being carried out on Blake Plateau located under the high seas between 200 and 600 mile8 off the coasts of Georgia and Florida, in 2000 68 to 3000 feet of water, without anyone's permission. Work is proceeding, without much success so far, in the chemical extraction of the various components of sea water. There are some successful efforts in the mining of tin and diamonds from shallow depths and the extraction of fresh water from sea water is advancing rapidly. In the field of scientific investigation and explo ration there is much that recently has been, and still is, going on — much of it with national and international aid and assistance. The International Decade of Ocean Explo ration is sparking action on many scientific frontiers utilizing private, national and international efforts. As President Johnson said, such a program would ... expand cooperative efforts by scientists from many nations to probe the mysteries of the seat ... increase our knowledge of food resources, to assist in meeting world-wide threats of malnutrition and dis- 68 For further details and an interesting coverage of the manganese nodule recovery and processing develop ments see John E. Flipse's (President of the Deep Sea Ven tures, Inc.) statement and testimony before the Senate Com mittee on Commerce, ibid.. pp. 39-53» Also see NA Call to Speed Development of Underwater Mining? The Current Di gest of the Soviet Press. Vol. XXI, No. 30 (October 1, 1969). p. 10-11. seaset ... bring closer the day when the people of the world can exploit new sources of minerals and fossil fuels.®9 This quote pretty well covers (albeit broadly) the fields into which ocean science is currently probing. In the area of marine education, "expanding" is the key word. With impetus being given by the Sea Grant Pro gram in the United States to oceanographic and ocean en gineering courses in various colleges, scientists and en gineers in the fields of marine biology, physical and chem ical oceanography, ocean engineering and technology and a host of related courses are being graduated in increasing numbers. Also marine science technicians are being trained in quantity.70 The same efforts are being made in other advanced nations, notably in the U.S.S.R. Marine technology, like marine science, is scattered ^President Lyndon B. Johnson, State of the Union message, Washington, March 8, 1968, as cited in Marine Science Affairs. 1969, fii£.. p. 125* Also see pp. 125- 133 for further information re planned and current ocean related scientific endeavors. See John E. Long (ed.), Ocean Sciences (1964) for basic essays on various facets of marine science and for a glossary of terms. 70See Marine Science Affairs. 1969. ££. £i£.. pp. 135-1^1 and 180-182. 115 throughout the United States and supported in a diversity of ways — individual entrepreneurs, specialized companies, large industries, universities, and Federal grants. The Federal Government through the industrial-military complex has supported many programs, mainly of a naval nature, from which civilian spin-offs have developed. Private industry has moved far and fast in applying ocean technol ogy to offshore petroleum exploration and exploitation. The quest for natural gas and oil is widespread geograph ically and is probing deeper and deeper into the ocean depths with the rapid advances in technology. In the areas of standards for instrumentation, instrument checking and development, accurate mapping and navigation, buoy data stations, data collection and collation, and other such necessary adjuncts to scientific research and ocean engi neering development, the U.S. Government and U.S. private enterprise lead the world, and a solid base for further technological development is rapidly being laid. Technol ogy is also assisting in improvements in locating, catch ing and processing live sea resources! improving oceanic transportation and delivery! enhancing safety at seai ad vancing the science and practicality of man's ability to survive and work in the oceans' depthsi developing deep sea power plants for underwater tasks! perfecting deep 116 ocean drilling techniquesi developing and utilizing various types of deep sea submersiblesi and delving into a host of other ocean related fields. While the lion's share of ocean technology is possessed by the United States, the leader in this field, other advanced nations are experi encing to varying degrees rapid advancement in ocean tech- 71 nology.' Extensive literature is being written and up dated on all phases of ocean development. The realms of ocean fisheries, conservation of liv ing resources, and the fight against pollution merge pri vate actions with government actions and bring science and technology to bear on the problems. The fishing indus tries of the world are a hodge-podge of government owned or subsidized and privately owned enterprises. One of the bones of contention in the fishing industry is the seizure and fining of fishing boats in various parts of the world by foreign governments claiming extended exclusive fishing zones off of their coasts. Such actions create friction and lead to conflicts. So far no solution has been ar rived at to eliminate or at least alleviate the problem. 71 Our Nation and the Sea, op. cit. at fn. 40, pp. 209-225 and Marine Science Affairs. 1969, 2£. cife., Chapter V, XII, XIII and XIV passim. 117 Technology and science have combined to create sizeable high seas long range fishing fleets complete with a fish processing mother ship, much more efficient fish catching equipment and a better knowledge of fish and fish ing grounds. The most notable examples are the Soviet and Japanese fishing fleets. To the extent that such fishing fleets alleviate the world's human hunger problem they represent a creditable advancement. However, they over fish in and congest other nations' historic or newly claimed fishing grounds, and on occasion violate territorial waters of other nations. To this extent they create problems and contribute to rapid depletion of fish stocks, thereby mak ing the conservation of living resources of the sea all the more urgent. Since knowledge of the ocean's fish stocks and fisheries and their ecological chains are not suffi ciently well known, we are not sure what and how much dam- 72 age is being done to ocean fish stocks. Pollution of the oceans enters another unknown. Although we now know that the oceans are being polluted at 72 * See Chapman, "Concerning Fishery Jurisdiction...," op. cit. at fn. 24, Chap. Ill', pp. 243-45t Testimony of Donald L. McKeman before Senate Sub-Committee on Ocean Space, Activities of Nations in Ocean Space. ££. s l l . pp. 49-63i and Marine Science Affairs. 1969. ££. £i±., Chapter VI, passim. 118 an accelerating rate and have found evidence of such pol lution damaging living sea resources, we are not fully knowledgeable of the problems and their solutions. In this field private as well as government effort is being applied to determine the causes and reduce the effects.73 This background on world marine affairs, past and present, demonstrates the very complex interrelationships of the many facets, interplays and issues affecting the ocean arena. Such a background is necessary, if one is to comprehend the implications and ramifications of proposed ocean regimes and compare several of them. There are those who see the problems and issues of the world's seas as being similar in nature to those of the empty Outer Space and Antarctica, and who point to the considerable progress in solving problems in these two areas in recent years. However, "As Professor Burke has pointed out, ..., the resemblance between those two problems and that of the deep-sea bed £and oceans above them] are more superficial nU, than real. More discerning persons look upon the seas 730ur Nation and the Sea, op. cit., pp. 72-81, give8 information on the pollution problem. (See fn. 40 supra.) nli r Chapman, "Concerning Fishery Jurisdiction and the Regime of the Deep Sea-Bed." A paper read at a symposium of the Swedish International Institute for Peace and Con- 119 as having a long history of a variety of private, national, and international uses and conflicts which, due primarily to rapid advances in technology and the urgency of imple menting conservation and anti-pollution measures, are cur rently increasing in number and complexity to the point where a new form of regulation of world affairs is needed for the immediate future. flict Research, Stockholm, 1969, p. 236. CHAPTER V THE STUDY APPROACH AND PARAMETERS As there is a partiality to opinions which is apt to mislead the understanding, so there is also a partiality to studies, which is prejudicial to knowledge. Locke As mentioned in Chapter I, the general purpose of this research project is to examine in relation to one another four proposals that have been advanced for an in ternational ocean regime primarily oriented towards the governance of the seabed under the high seas and its re sources. Such a regime has been deemed by many to be a necessity for the near future in view of the advances and changes that are being made and that could or will soon be made in the arena of the world's oceans and seas. Such examination must be conducted in the light of the current oceanic framework and world conditions and in accommodation of the interlocking problems and issues created, or soon to be created, by advances and changes. The direction in which the world moves in this field is of such vast and far reaching import that we dare not be remiss in subjec ting such proposals to close scrutiny and study. This chapter discusses the study's objective, assumptions, scope, approach or methodology, and source material. 120 121 This study, as stated above, examines four proposed draft treaties, each designed primarily as the framework for the international control and regulation of the seabed tinder the oceans and seas which are beyond national juris diction and the resources on and under this seabed. The objective or purpose of the study ist Through examination of four selected proposed ocean regime treaties, 1. Determine the extent to which each draft treaty ad dresses itself to the principles for the governance of the high seas seabed as set forth in the United Nations General Assembly Resolution 27^9 (XXV); 2. Explore the extent to which each such treaty copes with selected issues and problems generated by the advances and changes taking place in the deep oceans and elsewhere in the world; 3. Probe the extent to which each treaty calls for in ternational regulation and control of the seabed; and 4. Obtain a measurement, or at least some feel, for the weaknesses and strengths of each treaty, in order to give an indication of the order of merit of these proposed treaties relative to each other as observed from the in formation generated by this study and against the matrix 122 of the "real world".1 It is believed that the greatest usefulness of this study will be in the "side by side look" at these four current proposals which it will afford the reader, thus enabling him better to appraise them and thereby better to form an opinion as to what kind of an ocean regime the world should have. Assumptions In view of all of the activity and debate concern ing the regulation of and control over the deep ocean sea bed that has gone on in the past few years, it would appear obvious that there is a need for an international ocean regime and that it is only a matter of time before such a regime is agreed upon and placed in force. However, there are those nations, individuals, and organizations that are not favorably disposed towards the establishment of any kind of international control over the seas or seabeds, even though some may have given lip service in support of it„ The U.S.S.R., as its record down through 1971 indi- That is to say, the world of real polltik. harsh economics, intense nationalism, conflicting ideologies, rising expectations, tenuous national security, rapidly advancing ocean science and technology, diminishing natu ral resources and the rising spectre of pollution. 123 2 cate8, has not been particularly enthused over the idea. Mainland China has not expressed herself in favor of ocean regimes and but recently was made a member of the U.N. If the regime put up for adoption "violates" the Latin Ameri cans' 200 mile continental shelf and territorial sea claims there will be opposition from this quarter. Members of Congress have expressed misgivings and opposition. The Charleston News and Courier labels President Nixon's ocean floor draft treaty as "Seabed Pact Giveaway."^ The U.S. k National Petroleum Council has voiced its objections. Dr. Wilbert M. Chapman has been very vocal in his denunci- 2 In an article by Special Correspondent M. Rostar- chuk, "A Call to Speed Development of Underwater Mining" Izvestia. dateline Sept. 6, 1969. p. 5 (as cited in The Current Digest of the Soviet Press. Vol. XXI. No. 36. Oct. 1, 1969. pp. 10-11). there is no hint of "sharing the wealth" or of international controls given. See also Izvestia. Jan. 8, 1970, article "The Ocean and The Law" by S. Smirnov as quoted ibid.. Vol. XII, No. 1, Feb. 3, 1970. However, in the 1971 Seabed Committee discussions she entered into broad ranging discussions in support of her model for an international regime. ^Editorial, [Charleston, S.C.] News and Courier. June 1970. k U.S. Congress, Senate, Committee on Foreign Rela tions, Subcommittee on Ocean Space, Activities of Nations in Ocean Space. Hearings, 91st Cong., 1st Sess., July 2^- 30, 1969, testimony of Cecil J. Olmstead, p. 136. 12k ation of ocean regimes such as those mentioned in Chapter IV and suggests that the Malta Resolution and proposals for ocean regimes arising therefrom are, in part at least, the work of internationalists "who have seized upon the ocean as a vehicle for reforming the social, economic and diplomatic conduct of the human race [and who] have done, and are doing, great damage to the cause of improving the use of the ocean as a means for bettering mankind."^ Thus, it may not be taken for granted that an ocean regime will soon eventuate. If no regime can be agreed upon and accepted by a majority of nations, or at least by the major maritime countries, this study would serve little useful purpose. Hence the study makes the follow ing two assumptionsi 1. That an international regime for the seabed and ocean floor under the sea beyond the limits of national juris diction will eventuate in the near term. 2. That such a regime will embody international regula tory and control features. Since the study seeks to determine, at least to ^Wilbert M. Chapman, "The Ocean Regime of the Real Worldr Proceedings of the 4th Annual Conference of the Law of the Sea Institute. June 23-26. 1969. p. 465.Also see Activities of Nations in Ocean Space, op. cit., pp. 267- 76 for further views of Dr. Chapman. 125 some extent, the relative order of merit of the four pro posals selected for this research project using the matrix of the “real world"** as the testing ground, it is necessary to include assumptions 3 and 4 as stated belowi 3. That the nation-state will continue to be the pri mary and prevalent unit for the governance of the people of the world throughout the near term (i.e., circa the decade of the 1970s). 4. That present day world conditions, organizational arrangements, problems and issues will not change drastic ally during the near term. One other assumption that must be made lies in the realms of technology, geology, and economics. Although the seaward limits of national jurisdiction over the sea and the continental shelf have not as yet been definitively set and agreed to by nation-states, it appears that such limits may be set and accepted in the near future. It further appears that the limit for the continental shelf may be set by a depth measure somewhere between the 200 and 500 meter coastal isobath. Thus the preponderance of the international seabed may be at great depths below the surface. As depth increases, :.he application of technology ^See footnote 1 supra. 126 to productive and practical work becomes more difficult, the environment more hostile, and seabed enterprise expense and risk become greater. Worldwide surveys have not been made so we do not know where, or if, desired seabed resour ces are to be found. Current indications are that the abyssal plain (i.e.*the deep-ocean floor seaward from the continental slope and the continental rise) may be a barren desert as far as resources are concerned except for man ganese nodules. This also may prove true of the continen tal slope and rise. In any event even if resources are present they may prove economically infeasible to recover, process, and market. If these factors pertain and control there may be no seabed resource recovery of any import beyond narrow territorial seas. Were this to be the case there would be little reason to have a seabed regime. The study therefore must assumei 5. That resources on and under the seabed of the seas beyond national jurisdiction which are required by nation- 7 See John L. Mero, NA Legal Regime for Deep Sea Mining," San Diego Law Review. Vol. VI, No. 3 (1970), pp. 493-98t Alvin Kaufman, "A Survey of the Economics of Ocean Miningf Marine Technology Society Journal. Vol. IV, No. 4, (1970), p. 65i Chapman, $i>. cit.. pp. 452-54» and Frank L. Laque, "Deep Ocean Minings Prospects and Antici pated Short-Term Benefits," Pacem In MaribusOcean Enterprises. A Center Occasional Paper. E.H. Burnell and Piers von Simon (eds.), (1970), pp. 17-27. 127 states do exist and that they exist in locations where it is both technologically and economically feasible to re cover, process and market them. Scope The background chapters, particularly Chapter IV, have set forth the changes and developments that have been and are taking place in ocean space due, to a great extent, to the advances in science and technology which permit, or hold the promise of permitting, greater use of the seas and their resources. In the current international and nationalistic milieu such development and promise have created issues and problems in oceanic affairs as well as proposed solutions for handling them. The field of poten tial study in ocean space is too broad to permit full cov erage of all facets by a project such as this one. There fore the study's scope in substantive matters is limited primarily to selected seabed issues and problems and the manner in which the four selected draft treaties propose to deal with them. The primary focus is on certain United States gov ernmental and non-governmental efforts in suggesting ways and means for controlling and regulating the high seas floor, its subsoil and its resources. However, inasmuch as two of the draft treaties considered include provisions 128 concerning the water and air columns above the seabed with their attendant issues and problems, and being "conscious that the problems of ocean space are closely interrelated Q and need to be considered as a whole," the study, of necessity, also includes matters pertaining to non-seabed ocean space. The treatment of such non-seabed areas is limited as much as deemed practicable so as to keep the study from becoming too broad and all encompassing. Since Ambassador Pardo's August 18, 1967. Maltese Resolution request to the U.N. Secretary-General is gener ally credited with triggering much non-governmental, gov ernmental and international activity concerning the high seas seabed and its resources, including the selected draft treaties, the timeframe of this study for all prac tical purposes begins at this point. This is not to say, however, that what went on in, over and on the seas prior to this date have no bearing on the study. Chapters II, III, and IV give ample testimony to the contrary. Earlier in this chapter the writer mentioned "the near term" in connection with the assumptions upon which the study is based. This near term is the timeframe with- ®U.N. Doc. Resolution 2750 C XXV, 17 December 1970, Preamble section. 129 in which the study confines its examination of the selec ted proposals# Since recent history has shown that trea ties of the magnitude and applicability of the proposed draft treaties take from five to ten years to consummate, the near term for the purposes of this study is defined as from the current date (i.e., 1972) to approximately 1978. Thus for all intents and purposes the study's timeframe embraces the period from 19&7 to 1978. The scope of the framework or setting against which this project is for the most part projected is the "real o world matrix", the currently applicable law of the sea fabric, the Seabed Disarmament Treaty, the 19^ Chicago Convention on air space, and the variety of pertinent unilateral and regional proclamations, treaties, agree ments and United Nations resolutions. The intent of the rather voluminous appendix is to bring together for the reader's convenience the more important and pertinent of these documents. The backbone of the framework is con tained in the four 1958 Geneva Conventions. Approach This study is primarily concerned with the seabed under the seas beyond national jurisdiction and its subsoil g See footnote 1, supra. 130 and resources* As pointed out in the background chapters, this third dimension of the seas was almost wholly inac cessible and little known until very recent years. Even today it still denies easy and massive access and opera tions, and it is still a relatively unknown frontier of the world. Therefore this unique, opaque but massive area which defies man's occupation and has never been the sub ject of man's rule and domination has no past history which can be used for historical comparisons, for sampling, or for data purposes. Nor does a study of this type lend itself to the making and proving (or disproving) of hypo theses and the use of inductive reasoning in arriving at findings and conclusions. Certainly with no sampling data or statistics upon which to base empirical findings, deduc tive methods of research are not applicable. Thus the more modem research tools, such as the statistical methods, game theory, and computer analyses, do not lend themselves to usage in conducting this study. Likewise the more cur rent approaches to international relations studies and re search, such as McClelland's, Li ska's*^ Kaplan' s^2and 10See Charles A. McClelland, Theory and the Inter national System (1966). n See M. Li ska, International Equilibrium (1957) 12See Morton Kaplan, System and Process in Inter national Politics (1957). 131 Snyder’s,1- ^ are not applicable to this particular project. Nor does the method of content analysis with its mission being to study "communication — its nature, its underly ing meanings, its dynamic processes, and the people who are engaged in talking, writing or conveying meaning to one Ik another" have application here. Stanley Hoffman, in his penetrating analysis of international relations in the modem world, offers some interesting "Suggestions for the Study of International Relations"1^ which have some relevancy to this project. In his section, "The futurei relevant utopias," inter alia, he suggests we should use a normative or value ap proach in trying to build relevant utopias and that in so doing we would avoid the twin escapisms of realism and idealism and that we would be forced to take into account *^See Richard C. Snyder, H.W. Bruck, and Burton Sapin, Decision-Making as an Approach to the Study of In gll.tisgTi95»7. ^Matilda White Riley and Clarice S. Stoll, "Con tent Analysis." Encyclopedia of the Social Sciences. David L. Sills (ed.), Vol. 3 (1968), pp. 371-77. 15Stanley H. Hoffman (ed.). Contemporary Theory in International Relations (I960), pp. 171-190. 132 all the aspects of world politics.1^ As pertains to this project It would appear that each of the four draft trea ties could be classified as one of Hoffmann's "relevant utopias" to be examined, as contemplated by this paper. Further, although included in his discussion of the study ing of historical research, he states that the comparative method of study is indispensable in accomplishing the tasks of classification, analysis of differences, determination of contingent factors (as opposed to regular ones) and for 17 the quest for regularities or similarities. Since these are the kinds of factors this project is to focus upon, the comparative method appears to hold merit. Shmuel Eisenstadt's article appears to bear this out, and it will 18 be used for such guidance as is deemed applicable. Thus the approach selected for this study is the compara tive approach. Further, it is to be more of the approach of the classic studies of the "founding fathers", such as Montesquieu and Adam Ferguson. That is to say, it will be l6Ibid.. pp. 184-90. 17Ibid.. pp. 176-79. 18 Shmuel N. Eisenstadt, "Social Institutions” (Section II, Comparative Study). Encyclopedia of the So cial Sciences, op. cit.. Vol.14, pp. 421-28. 133 more of a comparative study than an analysis of social 19 change. 7 To accomplish the necessary comparisons Involved In this project the author has elected to divide the broad area to be covered into several fields which are treated (against the background of Chapters II, III and IV) in separate but related chapters, as followsi Description and Summaries of Selected Proposed Regimes (Chapter VI) Purposes and Organization (Chapter VII) Political and Legal Aspects (Chapter VII) Economic, National Security and Scientific Aspects (Chapter IX) In handling the material for each of these chapters, except for Chapter VI, introductions into each chapter's subjects are given. Then from these introductions and from various pertinent sources the. more important and pressing relevant issues and problems are selected, num bered and briefly stated. Under each such item the res ponse or addressal given to it by each of the four draft treaties selected for study is set forth, often in cryptic 19Ibid., p. 421. 13^ form, together with the pertinent treaty article(s) num- ber(s). Where no addressal is made this fact is so recor ded. At the end of each such coverage comments of a sum mary nature are given. In order to give each draft treaty a short title for handy and space saving reference in this study they have been assigned short titles as given belowi SHORT TITLE PROPER (LONG) TITLE Borgese The Ocean Regime — A Suggested Statute for the Peaceful Uses of the High Seas and the Sea-Bed Beyond the Limits of National Juris diction. (By Elisabeth Mann Borgese. Pub- lishedi October 1968) Pell Senate Resolution 92 (91st Congress, 1st Session), Treaty on Principles Governing the Activities of States in the Exploration and Exploitation of Ocean Space. (Introduced by Senator Claiborne Pell on February 4, 1969) U.S. Draft United Nations Convention on the Inter national Seabed Area. (Proposed by President Nixon on May 23, 1970. Introduced into U.N. channels on August 3» 1970) Danzig Treaty Governing the Exploration and Exploi tation of the Ocean Bed. (Revised draft trea- 135 ty worked up by the U.N. Committee of the World Peace through Law Center, Mr, Aaron L. Danzig, Chairman. Submitted for comment January, 1971) Chapter VI is designed to give a brief general description and comparison in broad outline of the four selected draft treaties. It also includes the response or addressal of each treaty to some of the more broad generalities involved in oceanic affairs and items that may not fall within the more specific categories of Chap ters VII through IX. The final chapter of the study, Chapter X, is de voted to general findings, opinions and conclusions. It also contains the final summation of the project. This comparative approach, like any study approach, has its weaknesses and its strengths. It is deemed to have strength in that it is a classical type of comparison of four existing proposals, all of which were drawn up within approximately two years of one another, under about the same set of conditions, with the same general goal in mind and surrounded by much the same debate, controversy and argument. The approach has weakness in that opinion and judg ment, bias and prejudice are bound to creep in to some ex- 136 tent and, to a degree perhaps, skew the results. Also, the project does not lend Itself to the use of more modern analytical methods and tools. Further, it deals with a fast moving subject which is likely to incur comparatively rapid changes that may render study assumptions false and thereby negate results. In spite of these weaknesses, and perhaps of others of a minor nature, it is believed that the approach as given above is a fitting one for this pro ject and that it will produce worthwhile results. Source Material Although the time period covered by this paper (exclusive of the background chapters, of course) is brief, there is no dearth of pertinent primary and secondary source material, as the study's bibliography attests. The selected seabed regime draft treaties, pertinent United Nations documents, presidential reports, congressional reports and hearings, Department of State Bulletins, and Center for the Study of Democratic Institution papers and publications comprise the bulk (although not all) of the primary source material used. International Law digests, reviews, text and articles, naval publications, the pro ceedings of various institutes, such as the University of Rhode Island's annual Law of the Sea Conference, marine scientific publications such as the Marine Technology So* 137 ciety Journal, periodicals, newspapers, occasional type articles and many other similar types of publications, papers and studies furnish an abundance of secondary sour ces. Pre-1967 background material is plentiful and is, for the most part, found in international law texts, trea ties, resolutions, and, in general, in older versions of the above mentioned types of sources. In using source material care was exercised to ob tain the latest information on this fast moving subject. This was not always easy to do, since literature publica tion lags developments by some months, even years on oc casion. Also in using such material attempt was made to consult several sources on various issues since many au thors have strong and diverse feelings and opinions on the matter of a sea regime. Thus bias and prejudice are not uncommon and should be avoided in substantiating findings. CHAPTER VI DESCRIPTION AND SUMMARIES OF SELECTED PROPOSED REGIMES Under no circumstances, we believe, must we ever allow the prospects of rich harvest and mineral wealth to create a new form of colonial competition among maritime nations. We must be careful to avoid a race to grab and hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings.1 — President Lyndon B. Johnson Many are convinced that such factors as the rapid advances in ocean science and technology, the conversion of the deep ocean to military use, the increasing need for living and non-living resources of the sea, and the competing uses of the sea will soon pose the threat of anarchy in the world ocean if a new system of law for the control and regulation of the seas and ocean floor beyond the limits of national jurisdiction is not soon created and placed into force. Various plans and proposals have been advanced to avert this threat. Four such proposals, mentioned in Chapters I and IV of this paper, were selec- } for examination herein. ^Lyndon B. Johnson, "Remarks at the Commissioning of the Research Ship, OCEANOGRAPHER, July 13, 1966, Public Papers of the Presidents! Lyndon B. Johnson 1966. Vol. II (19o7), p. 724. 1 3 8 139 The purpose of this chapter is to give a brief general description of these four proposals. Succeeding chapters will examine these draft treaties in some detail. The timeliness of such an examination is believed propi tious since two of the four proposals have been either 2 initiated or revised in the past year, the United States after much discussion and resultant delay has finally ar rived at a national position on ocean matters, and the United Nations has called for the convening of "a confer ence on the law of the sea which would deal with the estab lishment of an equitable international regime — including an international machinery — for the area and the resour ces of the seabed,... "3 Without further ado the four se lected proposals are summarized and described in the fol lowing sections. k The Borgeae Proposal Mrs. Borgese, in the introduction preceding her 2 Using the abbreviated titles set forth in Chapter V, these are the U.S. and the Danzig proposals. It is to be noted that the many "Ibid." footnotes in this Chapter refer to the page numbers of the footnoted documents — NOT to the page number of the text of the treaties as given in the Appendices hereto. 3UN Doc A/809? RES 2750 (XXV), 17 December 1970. k Elisabeth Mann Borgese, "The Ocean Regime — A Suggested Statute for the Peaceful Uses of the High Seas IkO draft statute wrote that "Ocean Space — and its ecology ~ is one and indivisible. Our legal order, our political order, our economic order must adapt to this fundamental fact.*^ Further on in this introduction she wrotet An ocean treaty calls for the creation of an institution composed in such a manner that it should be able to develop a code, in accordance with the fluctuating tech nological and economic situation.6 Her "Ocean Regime" epitomizes these characteristics. It is indeed a model for a regime for the governance, by an international entity, of the high seas, the seabed and sub- soil thereunder and, presumably, the atmosphere thereover.' Q Among the fourteen fundamental principles of the Regime are included such features asi 1. The high seas and their seabed and subsoil is an and the Sea-Bed Beyond the Limits of National Jurisdic tion? A Center Occasional Paper. Center for the Study of Democratic Institutions, October 1968, pp. 9-22. See Ap pendix I for the Statute text. 5Ibid.. p. 2. 6Ibld.. p. 2. 7 Although the atmosphere over the high seas is not explicitly included in the statute's text, it is included in the statute's definition of "Ocean Space". 8.l£i4 ., pp. 9-10 and 23-25. Article II. 1M indivisible ecological whole and is the common heritage of mankind. 2. The resources of the sea and seabed are common property, and the use, exploration and exploitation of the high seas seabed is to be for peaceful purposes only. 3. There shall be freedom of scientific investigation in ocean space. l*. Member States are responsible for national or "flag" activities in ocean space and are to cooperate with other Member States and with the regime organs. Nationals of all States have the right to engage in fishing, aquaculture, in-solution mining, transportation and telecommunications on and under the high seas. 5. The Ocean Regime shall provide a framework for the future pattern of international organization. Its eight objectives9 embody the acceleration and development of ocean research, exploration and sound eco nomic exploitation1 coordination of all non-national oce anic activities, plans and agencies 1 encouragement of oce anic development enterprises) promotion of conservation and anti-pollution measures) improvement of the ocean related work force's living and working conditions) furtherance 9Ibid.. pp. 10-11 and 28-29, Article IV. 142 of International trader safeguarding of mineral and metal price structuresi promotion of expansion and modernization of production while safeguarding legitimate competitiont and the promotion of the development and harmonization of maritime law and international law relating to outer space* Subject to the provisions of the statute and any separate agreements that may be made, the activities of the Regime are to be carried out with due observance of the sovereign rights of States. However, the authority and functions of the Regime are far reaching indeed.10 It is authorized "to regulate, supervise, and control all activities on the high seas and on or under the seabed"!11 regulate commercial seabed exploitation) issue licenses for exploration and exploitation of the seabed) regulate fishing, fish farming and aquaculture) disseminate ocean information and data) issue ocean space pollution regula tions) set ocean activity safety standards) inspect all seabed stations, installations, equipment, vehicles, etc.) control harmful and potentially harmful ocean space acti vities of license holders and impose fines and license 10Ibid.. pp. 11-12 and 29-31. Articles V and VI. 11Ibld.. p. 11, Article V 1. Ik3 cancellations for violations of the Regime's provisions! settle disputes and make awardsi and control armed forces operating on the seabed. In carrying out these various functions the Regime is to conform to U.N. principles and purposes, render various opinions, decisions, and recom mendations, allocate its financial resources efficiently and effectively towards the betterment of mankind! and submit reports to the U.N. and various U.N. agencies. The legal status of the Regime is that of having a juridical personality of international standing and capability and at the same time enjoying the juridical capacity in the legal system of all member states wherein it may acquire and transfer property and sue and be sued in its own name. Membership in the Regime is divided into the clas sifications of Member, Associate Member and Individual, 12 and all may conduct activities under the Statute. Only states joining the Regime can be Members. Associate Mem bers are to be intergovernmental organizations or non governmental international organizations and corporations holding licenses issued by the Regime. Individuals are to be experts and civil servants, appointed or elected to 12Ibld.. pp. 12-13 and 31-32, Article VII. serve in various Regime organs. A State does not have to be a Member of the U.N. to qualify for Regime membership and the principles of sovereign equality of Regime Members and full autonomy of all Associate Members is to apply. The organization of the Regime, as described by Mrs. Borgese, is sui generis, and its establishment and 1*» operation would raise unprecedented problems. J The or ganizational structure set forth in the Regime has "fea tures of a corporation, a business, a cooperative, a gov ernment. It will be both governmental and non-govemmen- tal ... ."lif The Regime organization consists of The Mari time Commission, The Maritime Assembly, The Maritime Plan ning Agency, The Maritime Secretariats, Regional Arrange ments, and The Maritime Court. It is designed to be inde pendent of the United Nations but emanate from, be legit imized by, and associated with the U.N., since the compo sition, functions, authority and responsibilities of these various structural organs are included in the text of the Statute (see Appendix I) they will be but very briefly covered here. 1^Ibid., pp. 9 and 32. 14Ibid., p. 32 145 The seventeen member Maritime Commission is to be the political-executive branch of the structure and in certain cases will act as the executive committee of the Maritime Assembly.1^ It is to be responsible and respon sive to the Assembly and each member would have one vote. Five of the members would be from the five Member States most advanced in ocean technology and the other twelve members are to be elected by the Assembly on an equitable representation basis. Real decision making power in the most urgent matters is vested in the Commission. The Maritime Assembly is to consist of four cham bers of eighty-one delegates each which is to meet in regular annual sessions and in such special sessions as required.^ It is designed to reflect — on the basis of fair geographical distribution — political, economic and scientific/technological interests. This organ might be looked upon as the legislative organ, however its make-up, procedures, and powers give it "more than consultative power but somewhat less than full legislative power, 15Lbi<L, pp. 13-14 and 32-33, Article VIII. l6Ibid.. pp. 14-15 and 33-35, Article IX. 17Ibid.. p. 35. Ik6 The first chamber, elected by the U.N. General Assembly with nine members coming from each of nine re gions of the world, would represent political interests. The second chamber, representing international mining corporations, organizations, unions, producers, and con sumers directly interested in seabed non-living resources, is to be elected in a manner to be determined. The third chamber, also to be elected in a manner to be determined, would represent interests connected with fishing, fisheries and problems and concerns connected therewith. The fourth chamber representing ocean oriented scientists and tech nologists and various associated organizations, commis sions and associations would likewise be elected in a manner to be determined. All chambers can initiate recommendations and opin ions. Adoption of recommendations require a majority vote of two chambers — i.e., of the first chamber and the cham ber competent in the matter voted upon. Decisions adopted by the Commission are to become effective when approved by two chambers, including the first. The Commission could return decisions and recommendations to the Assembly by a three-fourths majority vote and they could not be taken up again before the lapse of two years. The Maritime Planning Agency, to be composed of economists, scientists, administrators and other experts appointed one half by the Commission and one half by the 18 Assembly would serve the function implied in its title. Such planning would include that concerning the develop ment, exploitation, and conservation of ocean space living and non-living resources, pollution, budgeting, redistri bution of revenue, economic matters, and annual and ten- year programs. Also included in its responsibilities is to be the coordination of efforts and projects undertaken by U.N. and non-governmental organizations working on ocean problems. Maritime secretariats for ocean mining, deep sea oil extractions, fisheries and aquaculture, and others as necessary are to be established. They will perform the usual secretariat functions and will work under a commission appointed by the Secretary-General who will 19 act as the chief administrative officer of the Regime. 7 Regional arrangements are provided for under the 20 Regime with but one regional organization per region. l8Ibid.. pp. 15-16 and 35-36, Article X. pp. 17 and 36, Article XI. 20Ibid.. pp. 17-18 and 36-37, Article XII. 1**8 The functions of regional arrangements are to include the formulation of policies on matters of an exclusively re gional nature, cooperation with regional U.N. committees, advising the Committee, Assembly and Planning Agency, and in general provide for some Regime decentralization. The Statute calls for the establishment of The Maritime Court consisting of nine judges appointed for six year terms with no more than two judges from any one 21 region nor more than one from any single country. "The function of the court is to ensure the rule of law in the interpretation and application of the law of the seas, of the present Statute, and of its implementing 22 regulations." The court would rank lower than the In ternational Court of Justice to which Member States would have the right of appeal. The Maritime Court would not supercede national courts when matters would fall within the purview of the latter. The Code of the Court, yet to be written, is to be contained in a Protocol annexed to the present Statute. Other articles of the Regime have to do with such 21Ibid.. pp. 18-20 and 37, Article XIII. 22Ibid.. p. 18. w matters as definitions, devices and installations, peace ful use of ocean space, amendments, headquarters, with drawals and protocol.23 Features in these Articles which are perhaps of unusual interest aret Although stations, installations, devices, vehicles, etc., may, subject to certain restrictions, be emplaced or used on or below the seabed, they must all be open 2k to representatives of the Regime. While the seabed and what is below it are to be used for peaceful purposes only, military equipment and personnel engaged in such non-weaponry efforts as scientific research or the emplacement of detector and tracking systems is permitted. However, such military personnel "must wear the insignia of the United Nations Forces and must report on its activities and findings to the Maritime Commission and to the Security Council of the United Nations."2' * "The Headquarters of the Regime shall be estab- 23Ibid.. pp. 9-10, 20-22, 23, 25-28, 37-39, Arti cles I, III, and XIV-XXI. 2 k Ibid.. p. 20, Article XIV. 25Ibid.. p. 20, Article XV C. 150 lished at Valleta on the Island of Malta." The Pell Proposal27 Senator Pell's proposal, presented to the Senate in the form of a senate resolution relative to a proposed Ocean Space Treaty, has as Its objectives the resolving of the problem of "the threat of anarchy [which] is imminent in the field of scientific exploration and commercial ex ploitation of the deep sea and its resources" and the es tablishment of an "international agreement on a rule of law governing the activities of nations in the exploration and exploitation of the deep sea and its resources ... in the common interest of all mankind."2* * The Resolution, similar in all respects except format and minor wording to Senate Resolution 33, which Senator Pell submitted at the same time, was in the form of putting the President on notice that "it is the sense of the Senate that the President 26Ibld.. p. 21, Article XVII. 27 'U.S. Congress, Senate, Senate Resolution 92, "Treaty on Principles Governing the Activities of States in the Exploration and Exploitation of Ocean Space, ” sub mitted by Senator Claiborne Pell, February k, 1969, and referred to the Senate Committee on Foreign Relations, 91st Cong., 1st Sess. See Appendix II for the text of the treaty. 28Ibid.. p. 1. 151 should take all necessary steps" to conclude "with as wide spread acceptance as Is possible, a treaty on the peaceful 29 exploration and exploitation of ocean space" similar to Senate Resolution 92. The Treaty's preamble recalls various previous and related United Nations actionsi points out the threat of anarchy in ocean spacei recognizes that ocean space is man'8 common heritage, that it should be developed for peaceful purposes, be subject to conservation measures and be free for the use of all nationsi and it recognizes that developmental problems exist. It compares the importance of international cooperation in ocean space with that achieved in the field of outer space. Ocean space is de fined as "the waters of the high seas, including the super jacent waters above the continental shelf and outside the territorial sea of each nation, and the seabed and subsoil of submarine areas of the high seas outside the area of the territorial sea and continental shelf of each nation."30 The body of the treaty is divided into nine parts and thirty-nine articles. Articles 1 through 9 of Part I set forth "General Principles Applicable to Ocean 29Ibid.. pp. 1-2. 3°Ibid.. pp. 2-4. 152 Space"31 to guide the signatory nations in the exploration and use of such space. Briefly stated, these principles cover the following pointsi Ocean space diall be used for the benefit of and shall belong to all mankind. The exploration and use of ocean space and its resources shall be free to all nations on a basis of equal opportunity and free access to all and in accord ance with international law. Ocean space is not subject to national appropria tion, occupation or claims of sovereignty. Scientific investigation of ocean space shall be encouraged, opened to all, and conducted with freedom from restrictions. Ocean space activities shall be conducted in con sonance with the U.N. Charter, provisions of this treaty and international law and in the interests of peace, security, cooperation and understanding. 31Ibid.. pp. 4-7. It is of interest to note that these general principles were adopted almost without change from the 1963 U.N. General Assembly Resolution, Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. U.N. Doc. A/RES 1962 (XVIII), December 24, 1963.These outer space prin ciples were later incorporated into the 196? international Outer Space Treaty. (For the Treaty's text see the Annex to U.N. Doc. A/Res/2222 (XXI), January 25, 1967.) 153 Signatory nations shall bear international respon sibility for their national activities in ocean space and that of their nationals. International organiza tions shall bear their own responsibility. In their activities in ocean space signatory states will apply the principle of cooperation and mutual assistance and shall render assistance to any persons, vehicles, etc. in distress. Signators will keep others informed re any danger ous phenomena they discover in ocean space. The three articles of Part II deal with the "Use 32 of Ocean Space Except Seabed and Subsoil."-' They stip ulate that all signatory states, subject to previous treaty agreement, shall have the right for their nationals to en gage in fishing, aquaculture, in-solution mining, transpor tation, and telecommunications in ocean space waters and that disputes in all but the last named field are to be settled in accordance with the 1958 Geneva Conventions on the Sea. In the case of telecommunications the provisions of the Geneva 1959 International Telecommunication Con vention shall apply. ^2Ibid.. pp. 7-8, Articles 10 through 12. 15^ Part III* by far the most extensive portion of the treaty, deals with the "Use of Seabed and Subsoil of Ocean Space.By its Article 13 each state party to the treaty undertakes to engage in the exploration and exploitation of the natural resources of the seabed and its subsoil "only under licenses issued by a technically competent li censing authority to be designated by the United Nations and to be independent of any State."^ Although this licensing authority is not described, the treaty is specific in the powers assigned to it. This agency is authorizedi to issue licenses to signatory na tions for the peaceful and orderly exploration of, and ex ploitation of, the natural resources of the seabed and sub soil of ocean spacet to issue such licenses to interna tional organizations as if they were states? to decide to which of two contending parties to issue a licenset to determine the size, dimensions, fees or royalties and peri od of duration covered by the licenset to provide for the most efficient exploitation of the resources consistent with conservation considerations! to disseminate immediately ^^Ibid.. pp. 8-17, Article 13 through 2k, P» 8 155 and effectively information and data received from licen sees regarding their activitiesi to inspect (or have in spected) all stations, installations, vehicles, etc. used on or in the seabed and subsoil »33 to order licensees to suspend, modify or prohibit activities if they might cause potentially harmful interference with the peaceful explora tion and exploitation of ocean spacet to impose fines and cancel licenses for violation of the treaty's provisions! to issue regulations concerning the disposal of radioactive waste material in ocean spaceK and to settle disputes between license holders and make awards. The activities of nationals and non-governmental entities in the exploration and exploitation of the sub marine areas of ocean space are to require the authoriza tion and continuing supervision by their appropriate state.. The licensing agency, in issuing its licenses shall give due consideration to the potential impact on the world market for each resource extracted. Licensees are to be entitled to erect installations and other devices on and under the ocean space seabed as required by their activi- 35Ibid.. p. 18-19, Article 27. 36Ibid., p. 19, Articles 28-29. 156 ties, and they may be safeguarded by a 500 meter safety zone subject, however, to the following» They must not interfere with international commerce and navigation in recognized sea lanes and must be equipped with an adequate warning system. They must be removed completely when no longer needed. They shall not have the status of an island nor have any terri torial sea.37 In the event the decision of the licensing authori ty in a dispute case is delayed excessively, or if it is desired to appeal it, a licensee can have such a case submitted to a standing review panel of three or less members appointed by the International Court of Justice. The decision of this panel will normally be final and binding but under certain conditions a case may be brought before the International Court of Justice. Part IV, "Use of Seabed and Subsoil of Ocean Space for Peaceful Purposes Only," deals with potential mili tary uses of this submarine area.3® Basically it permits military personnel and equipment for scientific research 37Ibid.. pp. 12-13, Article 17. 3®Ibid.. pp. 17-19. Articles 25 through 29. 157 or for any other peaceful purpose) the temporary use or stationing on the ocean space seabed of military subma rines designed primarily for non-seabed uset and the use or stationing of such non-weapon devices as tracking and detection systems. It prohibits signatory states from emplacing or installing or even the encouraging of, or assisting in, the emplacement of nuclear weapons and wea pons of mass destruction on or in the seabed or subsoil of ocean space. Part V deals with "Regulation on the Disposal of 19 Radioactive Waste Material in Ocean Space"^ and Part VI with the "Limits of the Continental Shelf* The latter defines and uses the term "continental shelf" in this treaty to refert (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea to a depth of 550 meters, or to a distance of 50 miles from the baselines from which the breadth of the territorial sea is measured, whichever results in the greatest area of continental shelf, and (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands. In no case, however, shall the continental shelf be considered for such purpose to encompass an area greater than the area (exclusive of territorial sea) of the State or p. 19. Articles 28-29. See footnote 36. kn Ibid.. pp. 19-20, Article 30. 158 ill island to which it is adjacent. Part VII, "Sea Guard," provides for the establish ment of a permanent naval force, a Sea Guard of the United Nations, which may be directed to take such action as may be deemed necessary to maintain and enforce international Up compliance with the treaty's principles. The Sea Guard is to be under the control of the U.N. Security Council but the licensing authority, under the Security Council, shall be responsible for the performance of the Sea Guard in connection with the enforcement of the treaty's provi sions. Member States are encouraged to provide such Sea Guard forces. To deal with criminal jurisdiction in ocean space, Part VIII provides that national laws are to apply to crimes in ocean space pending international agreement on ii-s a code of criminal law to cover such crimes. J Part IX, "Final Articles ," consists of the usual type of protocol and closing articles. 4lIbid.. p. 20. **2Ibid.. pp. 21-22, Articles 31 through 33* ^3Ibid.. p. 22, Article 34. 44 Ibid.. pp. 23-25. Articles 35 through 39. 159 The U.S. Proposal45 The Administration's proposal was submitted in the form of a working paper to the U.N. Seabed Committee for discussion within that committee during its session in August 1970. The proposal and its five appendices are quite lengthy and detailed. A summary of this document is perhaps best presented through major extracts from the official State Department summary of it as given belowi The basic structure of the Convention reflects the President's proposals that States should by interna tional agreement renounce their sovereign rights in the seabed under the high seas beyond a water depth of 200 metersi establish an international regime for the area beyond with certain basic principles and gen eral rules applicable throughout this areai authorize coastal States as Trustees for the international com munity to carry out the major administrative role in licensing the exploration and exploitation of natural resources from the limit of coastal State national jurisdiction to the edge of the continental margin, and to share in the international revenues from the Trusteeship Area which they administeredi and establish international machinery to perform similar functions in the area beyond the continental margin. •'U.S. President, "Draft United Nations Convention on the International Seabed Area" (August 3, 1970). See Appendix III for treaty's text. k6 U.S. State Department, "Summary of Provisions of Draft 'United Nations Convention on the International Seabed Area'," prepared by John R. Stevenson, Legal Advi sor, Department of State (August 3, 1970). 160 Basic Principlea Among the basic principles which would become ap plicable to the entire International Seabed Area (in cluding the International Trusteeship Area) under the Convention would be the followingi The International Seabed Area would be the common heritage of mankind and no State could exercise sover eignty or sovereign rights over this area or its re sources, or, except as provided in the Convention, acquire any right or interest therein. The International Seabed Area would be open to use by all States without discrimination, except as other wise provided in the Convention, and would be reserved exclusively for peaceful purposes. Provision would be made for the collection of rev enues from mineral production in the Area to be used for international community purposes including economic advancement of developing countries and to promote the safe, efficient and economic exploitation of the min eral resources of the seabed. Exploration and exploitation of the natural resour ces of the Area must not result in unjustified inter ference with other activities in the marine environment and all activities in the Area must be conducted with adequate safeguards against pollution and for the pro tection of human life and the marine environment. A Contracting Party would be responsible for ensur ing that those authorized by it (as Trustee in the Trusteeship Area) or sponsored by it (in the area be yond) complied with the Convention. Contracting Parties would also be responsible for any damage caused by those authorized or sponsored by them. The general rules would be as followst Mineral Resources All exploration and exploitation of the mineral deposits in the Area would be licensed by the appropri ate Trustee in the Trusteeship Area and by the Inter national Seabed Resource Authority in ti.e area beyond subject to general provisions relating to the terms of licenses included in Appendices forming part of the Convention, a number of which allow greater discretion to the Trustee State in the case of the Trusteeship Area. The Contracting Parties would have primary res ponsibility for inspecting activities licensed rr spon sored by them. The Int .national Seabed Resource Au thority would also have authority to inspect and deter- l6l mine if a licensed operation violates the Convention. Licenses would be revoked only for cause and in accord ance with the Convention. Expropriation of investments made, or unjustifiable interference with operations conducted pursuant to a license, would be prohibited. Living Resources of the Seabed All Contracting Parties would have the right to explore and exploit these resources (e.g., king crab) subject to necessary conservation measures and the right of the Trustee in the Trusteeship Area to decide whether and by whom such resources should be exploited. Protection of the Marine Environment. Life and Property The International Seabed Resource Authority would be authorized to prescribe rules to protect against pollution of the marine environment and injury to per sons and resources resulting from exploration and ex ploitation and to prevent unjustifiable interference with other activities in the marine environment. Scientific Research Each party would agree to encourage and to obviate interference with scientific research and to promote international cooperation in scientific research. International Trusteeship Area The provisions of the Convention relating to the International Trusteeship Area would define the outer limit of this area as a line beyond the base of the continental slope where the downward inclination of the seabed reaches a specified gradient. Such gradient would be determined by technical experts who would take into account, among other factors, ease of deter mination, the need to avoid dual administration of single resource deposits and the avoidance of includ ing excessively large areas in the Trusteeship Area. Other provisions would limit the Trustee's rights to those set forth in the Convention. These rights of the Trustee State would include the issuing, suspending and revoking of mineral exploration and exploitation licenses subject to the rules set forth in the Conven tion and its Appendices, full discretion to decide whether a license should be issued and to whom a li cense should be issued, exercise of criminal and civil jurisdiction over its licensees, and retention of a portion (a figure between 33*1/3# and 50# is suggested for consideration) o: the fees and payments required under the Convention ~ >r activities in the Area. The Trustee State would also be able to collect and retain 162 additional license and rental fees to defray Its ad ministrative expenses and to collect other additional payments, retaining the same portion as indicated above of such other additional payments. International Seabed Resource Authority The principal organs of the proposed International Seabed Resource Authority would be an Assembly of all Contracting Partiesi a Council of 2k members, includ ing the six most industrially advanced Contracting States, at least twelve developing countries and at least two landlocked or shelf-locked Statesi and a Tri bunal of from five to nine judges elected by the Coun cil. The Assembly, which would meet at least once every three years, would elect members of the Council, ap prove budgets proposed by the Council, approve propo sals of the Council for changes in allocation of net income within the limits prescribed in an Appendix to the Convention, and make recommendations. The Council, which would make decisions only with the approval of a majority of both the six most indus trially advanced Contracting States and of the eighteen other Contracting States, would appoint the Commissions provided for in the Convention, submit to the Assembly budgets and proposals for changes in the allocation of net income within the limits prescribed in an Appendix, and could issue emergency orders at the request of a Contracting Party to prevent serious harm to the marine environment. The Tribunal would decide all disputes and advise on all questions relating to the interpretation and application of the Convention. It would have compul sory jurisdiction in respect of any complaint brought by a Contracting Party against another Contracting Party for failure to fulfill its obligations under the Convention, or whenever the Operations Commission, on its own initiative or at the request of any licensee, considered that a Contracting Party or licensee had failed to fulfill its obligations under the Convention. If the Tribunal found the Contracting Party or licensee in default, such Party or licensee would be obligated to take the measures required to implement the Tribu nal's judgment. The Tribunal would have the power to impose fines of not more than $1,000 for each day of an offense as well as to award damages to the other Party concerned. Where the Tribunal determined that a licen 163 see had committed a gross and persistent violation of the provisions of the Convention and within a reason able time had not brought its operations into compli ance, the Council could either revoke the license or request the Trustee Party to do so. Where a Contrac ting Party failed to perform the obligations incumbent on it under a judgment of the Tribunal, the Council, on application of the other Party to the case, could decide upon measures to give effect to the judgment, including, when appropriate, temporary suspension of the rights of the defaulting Party under the Convention (the extent of such suspension to be related to the extent and seriousness of the violation)• In addition, any Contracting Party, and any person directly affected, could bring before the Tribunal the question of the legality of any measure taken by the Council, or one of its Commissions, on the ground of violation of the Con vention, lack of jurisdiction, infringement of impor tant procedural rules, unreasonableness, or misuse of poserst and the Tribunal could declare such measure null and void. The Convention also provides for the establishment of three Commissions, each of from five to nine mem bers. The Rules and Recommended Practices Commission would consider and recommend to the Council adoption of Annexes as described below. The Operations Commis sion would issue licenses for mineral exploration and exploitation in the area beyond the International Trus teeship Area and supervise the operations of licensees in cooperation with the Trustee or Sponsoring Party, but not itself engage in exploration or exploitation. The International Seabed Boundary Review Commission would review the delineation of boundaries submitted by the Contracting Parties for approval in accordance with the Convention, negotiate differences among the Parties and if the differences were not resolved ini tiate appropriate proceedings before the Tribunal, and render advice to Contracting Parties on boundary ques tions. The members of the Rules and Recommended Practices Commission and the International Seabed Boundary Re view Commission would not be full-time employees of the Authority. The Secretariat of the Authority would consist of a Secretary-General appointed by the Council and a staff appointed by the Secretary-General under the 164 general guidelines established by the Council. Any amendment of the Convention or the Appendices would require the approval of the Council and a two- thirds vote of the Assembly and would come into force only when ratified by two-thirds of the Contracting Parties, including each of the six most industrially advanced Contracting States. Appendices, which are integral parts of the Con vention, are included in the draft Convention by way of example only as they require extensive consideration of the questions involved by technically qualified experts. The illustrative Appendices included in the draft Convention relate to (a) terms and procedures applying to all licenses in the International Seabed Areat (b) terms and procedures applying to licenses in the Inter national Seabed Area beyond the International Trustee ship Areat (c) terms and procedures for licenses in the International Trusteeship Areai (d) division of revenuet and (e) designation of members of the Council representing the six most industrially advanced States. Annexes to the Convention would be prepared by the Rules and Recommended Practices Commission, submitted for comments to the Contracting Parties and to the Council for adoption and would come into force unless more than one-third of the Contracting Parties disap proved within three months. ... Any Contracting Party believing that a provision of an Annex could not be reasonably applied to it e- cause of special circumstances might seek a waiver from the Operations Commission. The Convention would provide for due protection of the integrity of investments in the International Seabed Area made prior to the coming into force of the Convention. 165 The Danzig Proposal47 As mentioned in Chapter IV, footnote 23, the draft treaty proposal summarized here Is a 1971 revision of the original 1968 U.N. Committee of the World Peace Through Law Center draft treaty. Mr. Aaron L. Danzig, a New York lawyer, was chairman of this Committee during the writing of the original proposal and during the revision thereto. The revised draft treaty's preamble recognizes "the common interest of all mankind in progress of the exploration and use of the ocean bed and the utilization of its resources for peaceful purposes"! expresses the belief that the exploration and use of the ocean bed should be carried on for the benefit of all peoples of the worldi states the desire to contribute to international cooperation in the various aspects of ocean bed explora tion and use for peaceful purposes and thereby contribute to the development of mutual understanding and friendly relations between states and peoplesi recalls various past U.N. actions and resolutions concerning the sea! and United Nations Committee of the World Peace Through Law Center, “Revised Draft Treaty Covering the Exploration and Exploitation of the Ocean Bed (1971)." See Appendix IV for treaty's text. ^8Ibid.. p. 9. 166 expresses the conviction that such a treaty as this one will further the purposes and principles of the Charter of the United Nations. The draft treaty assigns ownership of and jurisdic tion over the resources of the ocean bed and non-living resources of the high seas to the United Nations. "The term 'ocean bed' is used as referringi (a) to the seabed and subsoil of the submarine areas adjacent to the coast beyond the first depth of 200 meters but outside the area of the territorial seat and (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands."^0 The term "high seas" is used as defined in the 1958 Geneva Convention on the High Seas. Subject only to authorized exclusive exploration and exploitation rights the ocean bed is to be opened to all States for explora tion and use in accordance with international law for the benefit of all countries, and there is to be freedom of scientific investigation in, on and under the ocean bed, no license being required for the latter.^ The Ocean Agency (to be defined later) shall have the sole authority ^9Ibid.. pp. 9-11. ^°Ibid.. p. 11, Article I. ^Ibid.. p. 14, Article II. 16? 52 to grant the rights mentioned above. Treaty signators are to agree to carry on their ocean bed activities in accordance with international law and the U.N. Charter and in a manner so as to promote international peace, cooperation and understanding.^ Article V, the military article, declares that the ocean bed shall be used exclusively for peaceful purposes and forbids any kind of military bases, installations, weapons, and maneuvers on, in, or under the ocean bed "ex cept that devices for the interception, detection, identi fication and tracking of military activity, vehicles or weaponry of any State shall be permitted, provided that advanced notice of placement or installation of any such devices are open for inspection at all times by the Ocean - 54 Agency." Each signatory State and all persons are to have absolute liability, jointly and severally, to any other State, to persons, or to the Ocean Agency for certain specified damages. States Parties to the Treaty are to 52Ibid.. p. 16, Article III. ^Ibid.. p. 16, Article IV. ^Ibid.. p. 17, Article V. 168 carry out their ocean bed and high seas activities in conformity with the treaty's provisions and assure that their nationals and juridical persons do likewise. Owner ship of objects placed in, on or under the Ocean Bed re mains with the State or entity having title thereto.^ The Ocean Agency is to control and regulate dis posal of harmful material in or on the ocean bed and high seas, State Parties to the Treaty are to avoid contamina ting or changing the ocean environmenti to afford each other the opportunity to observe ocean bed scientific research on a reciprocity basis» to inform the Ocean Agency (for further dissemination) and the public and interna tional scientific communities concerning their scientific activities and the results thereofi and to abide by the provisions of this treaty in their exploration and use of the ocean bed.*^ Article XIII of the Treaty calls for the establish ment of an Ocean Agency which is to be a corporation char tered by the U.NThe Agency is to have the following 55Ibld.. pp. 18-19, Articles VI-VIII. 56Ibid.. pp. 19-22, Articles IX-XII. 57Ibid.. pp. 22-31, Article XIII. 169 powersi To provide assistance to States and persons for the purpose of enabling their participation in the scientific and commercial exploration and exploitation of ocean bed resources. To promulgate appropriate rules, regulations and standards to protect the ocean bed and high seas from pollution and ecological damage. To grant licenses for State and non-governmental entities to explore or exploit the ocean bed. The Agency under this power has the sole and exclusive authority to grant and administer exclusive ocean bed exploration and exploitation rights and to fix charges, royalties and fees, to be paid to the Agency, for such licenses. Licenses generally will be awarded to the highest competent bidder but the Agency may disregard this requirement to assist in the improvement of a developing State's technological capability. Licenses granted between the edge of the continental shelf and 50 miles from the coast will be granted only to the adjacent State or licensees approved by the adjacent State. Income derived from licensed operations is to be used to defray the Agency's expenses with any excess to accrue to the U.N. earmarked for the purposes speci- 170 fled In the U.N. Charter, Article 55 subparagraphs a. and b., except that 50 percent of all such excess which Is derived from the area between the edge of the conti nental shelf and 50 miles from the coast Is to be paid to the adjacent coastal state. The Agency is to give due regard to the effect of granting any license upon the market for any product affected by such license and is not itself to engage in exploitation activities. It may engage in the exploration of ocean resources for scientific purposes or for purposes incidental to carrying out its other functions. To make provision for administrative hearings in case of dispute and to make recommendations to the U.N. regarding applicable civil and criminal liability laws. To exercise such additional powers as may be re quired to carry out its responsibilities. The Ocean Agency's corporate charter is to be rec ommended by the U.N. Secretary-General and approved by the Economic and Social Council of the United Nations and is to contain the following provisionst Each State Party to the Treaty is to be entitled to one share and one vote as a shareholder. The share holders are to meet at least once every three yearst have the sole power to amend the corporate charter 171 (subject to UNESCO's approval)» and to vote on all is sues involving changes in the Agency's powers or duties (providing such changes do not enlarge the scope of the Treaty). Action on all such matters is to be by affir mative vote of a majority of the shareholders. The shareholders are to elect a board of directors of twenty-four members — six from each of the six States having the highest Gross National Product, eighteen from other States of which twelve must be from developing States and one from a land-locked State. Shareholders may remove any Director at any time. Action on all matters by the Board of Directors is to be by a majority affirmative vote including a majori ty affirmative vote of the members of each of the two above-mentioned groups. The Board of Directors is to adopt appropriate by-laws and elect its own officers and committees. The elected President is to be the Corporation's chief executive officer. The duration of the Corporation is to be perpetual. The business of the Corporation is to be managed by its Board of Directors who shall have all the powers of the Corporation not required to be exercised or done by the shareholders. 172 Article XIV provides for the establishment of an Ocean Tribunal.^8 It Is assigned the power to adjudicate any and all disputes of any nature whatsoever arising out of the Treaty or any activity in connection therewith be tween entities, or the Ocean Agency. Signatory States, by their signature to the Treaty, agree to submit to the jurisdiction of the Tribunal and any inferior court the Treaty may establish and to give full faith and credit to their proceedings. All licenses issued by the Agency are to provide for compulsory sub mission of all disputes arising out of such licenses to adjudication by the Ocean Tribunal after the exhaustion of all Ocean Agency prescribed administrative remedies. How ever, among States the Tribunal is to have original juris diction. If a substantial international question is in volved and so certified, appeal from the Tribunal's deci sions may be made to the International Court of Justice, which court shall issue advisory opinions only. However, such advisory opinions are to be accepted as binding. The Tribunal is to consist of fifteen judges, des ignated by the U.N. General Assembly to serve for nine year terms. The entire fifteen judges will not be re 58Ibid.. pp. 32-31* * , Article XIV. 173 quired to sit on any one case and the Tribunal may desig nate one or more of its members to hear and determine any case, subject to such review as the Tribunal may deem appropriate# The Tribunal is to promulgate its own rules of procedure and its process is to extend to persons, natural or juridical, wherever found. The U.N. is to bear the expenses of the Tribunal and the U.N. General Assembly may establish such inferior courts as it deems appropriate in addition to those which may be established by the Tribunal. The remainder of the Treaty consists of the usual CO type of protocol articles. 7 59Ibid.. pp. 33-36, Articles XV-XVII. CHAPTER VII PURPOSES AND ORGANIZATION A purpose is the eternal condition of success. -- T.T. Munger The culminating point of administration is to know how much power, great or small, we ought to use in all circumstances. — Montesquieu Previous chapters of this paper form the introduc tory background and methodological prelude to this and the succeeding chapters which in turn form the comparative examination of and conclusions concerning the four selec ted ocean regime proposals. The purpose of this particu lar chapter is to examine on a comparative basis some of the general features of these draft treaties, the purposes for which they were written, their objectives, and various facets of the organizational structures they call for. Since this and the succeeding four chapters con stitute for the most part the Mdata section" of the study, much of their texts is in cryptic style and is set forth with little discussion beyond essential facxs and the basic elements of issues and problems. In some cases tabular or semi-tabular format is used for the sake of brevity and clarity. The reader is reminded that details 174 175 concerning the four selected draft treaties are provided in the summaries given in Chapter VI and their texts are appended as Appendices I-IV. Ocean regimes deal with vast and complex subjects, problems and issues, many of which overlap and are inter connected. Thus not all matters examined fit into single categories. Therefore where such overlaps occur the mat ters involved will be examined in a logical part of the paper but will not necessarily be repeated under other topical parts even though they may be relevant to these topics. Where articles are cited they refer to the ar ticles of the particular treaty under discussion or exam ination. Such articles may be readily found in Appendices I-IV. Before proceeding with the examination of the various selected proposals that have been advanced as ocean regimes and before making judgments concerning them, it will, I believe, have merit for the reader to ponder the views of Stanley Hoffman as expressed in the following quote from one of his worksi .... international relations, like other social rela tions, involve not mere impersonal forces, but men. It is through men's values and institutions, through the thoughts and acts of their leaders, that the basic factors of the material environment affect interna tional politics. Particularly in the area which has 176 been at the origin of so much nonsensei the geograph ical milieu, the 'compelling' character of the environ ment has been much too easily assumed. The relation ship between man and milieu is not one-way. Different human groups in similar environments behave different ly) th$r differentiate space, they can shape the vege tation, the soils, the hydrographical network accord ing to their political and economic aims. World poli tics in this century have proven that geography can be exploited by a policy, at least as much as policies are 'dictated' by geography. What counts in policy making is how the policy-maker views the environment, and to what use he wants to put it. 'The most stub born facts are those of the spirit, not those of the physical world.' Therefore the consideration of men's values, beliefs, and emotions, of their purposes and ideas, is indispensable. It is always preferable to phrase and check one's hypotheses by referring to commonly accepted notions of human behavior, than by turning to the conduct of gases or pistons.* Comparisons For the first comparative look at the draft trea ties being considered it seems appropriate to examine some of their more general features. Apropos to the above quotation the first feature to be looked at is the purpose(s) for which the proposals were written. Follow ing this various features such as scope, type, approach, objectives, and proposed organizational structures are examined. Stanley H. Hoffman (ed.), Contemporary Theory in International Relations (i960), p. 173. 177 I. Purpose(a) for Which Draft Treaties Were Written A. Borgese. — Mrs. Borgese's The Ocean Regime was written as the end result of a study of the law of the seas and the constitutional embodiment of Malta's U.N. Ambassador Pardo's proposition by The Center for the Study of Democratic Institutions of which Mrs. Borgese is a senior fellow. This study began in January 1968 and included three conferences held at the Center that were attended by various leaders in the international 2 community. As described by the Center's Chairman, Mr. R.M. Hutchings, on a membership form, "Its [The Center's] object is to understand and to promote the understanding of the basic issues that underlie the formulation of public policy". The several purposes for which The Ocean Regime was written are in keeping with this objective. These purposes are summarized as follows I 1. To avoid and prevent making the many mistakes in the deep sea areas that man and his imperfect societies have made on land and in internal and Elisabeth Mann Borgese, The Ocean Regime - A Cen ter Occasional Paper. Center for the Study of Democratic Institutions (October 1968), pp. 6-7. % 178 territorial waters.3 2. To adapt our legal, political and economic orders to the “fundamental fact" that "ocean space — and its ecology — is one and indivisi ble 3. To speed up international treaty making action on an ocean regime by using a private organization and privately drawn up model ocean statute to ana lyse issues and problems and suggest solutions for governments and international organizations.^ 4. To create a model ocean regime for trial or rehearsal during the course of a non-governmental privately organized and conducted international conference 1 and to thereby demonstrate to govern ments the merits and demerits of the various pro visions of such a regime, thus contributing to the breaking of vicious circles which invariably en- snarl diplomacy and international negotiations.^ 5. To create an international institution which would constitute a new sovereignty in the world to govern and control the activities of sovereign 3Ibid.. p. 2. * *Ibid.. p. 2. %bid.. pp. 2 and 7-8. ^Ibld.. pp. 7-8. 179 nations and other entities in the ocean areas out side of the limits of national jurisdiction, and which would "provide a framework for the future 7 pattern of international organization* 6. Possibly (as some have suggested) to enhance the grand design of assuring world peace and pros perity through the internationalization of the world order, perhaps through the workings of the theory of political functionalism as espoused by Amitai Etzioni, David Mitrany, Ernst Haas and others.® B. Egli. — Senator Claiborne Pell of Rhode Island, a Democrat reputed to be of liberal persuasion and one whose interests and activities in the United Nations 7 'Ibid., pp. 2 A 10t and Elisabeth Mann Borgese, "A Center Report/the Republic of the Deep Seas," The Cen ter Magazine. Vol. I, No. * * • , 1968, p. 27. Q See for example Robert L. Priedheim, "Understand ing the Debate on Ocean Resources," Occasional Paper No. 1 of The Law of the Sea Institute, February 1969. pp. ^1-59I Wilbert McLeod Chapman, "The Ocean Regime of the Real World," paper read at The Law of the Sea Institute ^th Annual Conference, June 1969, pp. 1-2 and 11-12i Appen dix I, Art. II C. Ui and Proceedings Pacem in Maribus Convocation. Malta, June 28-'uly 3, 1970, pp. 120-22. 180 extend back to its creation in 19^5. was an outspoken critic of the Johnson and Nixon administrations during the period 1967-70 for their failures to establish a United States ocean policy and thereby give world leadership to the fast moving oceanic developments, particularly in the United Nations arena. He therefore introduced a series of resolutions in the Senate in the form of proposed principles and treaties for governing Q the activities of states in ocean space. In offering these resolutions, of which his Senate Resolution 92 draft treaty was one, he stated the following to be his purposei In offering these resolutions, ..., I cer tainly realize that I have taken a rather unpre cedented course of action, but I do think it is important to make clear that I have taken this course of action not with a view to break prece dent but rather with a view to prodding the execu tive branch into meeting its constitutional author ity. I would much rather they would send us [i.e., the Senate] a draft treaty to discuss and approve down here. But since they haven't, I have done the reverse, to try to get them to focus on the problem, and it's not only our own Government that should focus on this problem [i.e., of working to wards an international ocean regime]. 10 See U.S. Senate Resolutions 172 and 186 (both 90th Cong., 1st Sess. 1967', 263 (90th Cong., 2nd Sess. 1968), 33 (91st Cong., 1st Sess. 1968), and 92 (91st Cong., 1st Sess. 1969). 10U.S. Congress, Senate, Committee on Commerce« 181 There are those who believe the purpose given in section IA 6. immediately above applies to Senator Pell's treaty also.*1 C. U.S. — During the period 1967-1970 the United States, the world leader in ocean technology and de velopment and in naval power, was the subject of much criticism for having a "policy of no policy" in the development of an ocean regime. Actually the executive branch of the government was making slow and difficult progress in reconciling departmental differences, 12 waiting for and then digesting the Stratton Report, in consulting with the U.N. and with other national governments, making critical decisions, and finally in weaving its various decisions and positions into a de tailed proposed draft treaty which might be acceptable to the U.S. as well as other nations, at least as a working paper. On May 23, 1970, President Nixon is Soecial Study on United Nations Suboceanic Lands. Policy. Hearings, 91st Cong., 1st Sess., October 5# 1969, p. 133* 11See fn. 8, first two references. 12 Report of The President's Commission on Marine Science, Engineering and Resources, Our Nation and the Sea - A Plan for National Action. Julius A. Stratton, Chairman (19&9). 182 sued a statement on U.S. ocean policy.^ In it he proposed that all nations adopt a treaty pertinent to the oceans, gave certain features he believed should be included therein and objectives to be sought, and stated that the U.S. would introduce specific proposals in this regard at the next meeting of the U.N. Seabeds Committee. Thus the purposes of the U.S. draft treaty are i 1. To implement the President's May 23, 1970 statement. 2. To put forward to the U.N. "a working document for discussion purposes ... in the interests of promoting meaningful further consultations and co operation on the achievement of the objectives set forth by President Nixon in his May 23, 1970 an- 1 it nouncement*" 3. To set forth in greater detail than in the 11 U.S. President, “Statement by the President on U.S. Oceans Policy," May 23, 1970. lit U.S. Department of State, "Statement of John R. Stevenson, the Legal Advisor, Department of State, regard ing draft United Nations Conven'l .on on the International Seabed Area," Avgust 3* 1970, 5* 1 8 3 May 23 statement U.S. ocean policy, views and con cepts.1^ k. To exert U.S. leadership in world oceanic nego tiations and treaty making processes. 5. To quiet and hopefully satisfy domestic and international criticism of apparent U.S. "do no thing" and "foot dragging" policies and actions in oceanic matters.1^ D. Danzig. — Resolution No. 15 adopted by the World Peace Through Law Conference in Geneva on July 3. 1967, urged the U.N. to assume jurisdiction over the resour ces of the ocean beyond the territorial sea. During a U.N. General Assembly meeting in August, 1967, Malta's Ambassador Pardo presented his now famous proposals concerning the deep ocean floor resources. At the urging of Mr. Charles Rhyne, Esquire, President of the World Peace Through Law Center, the Center's United Nations Committee with the cooperation of some members 15U.S. Department of State Bulletin. Vol. LXIII, No. 1626, August 2^, 1970, pp. 209-10. 1^Por example, see U.S. Congress, Senate, Commit tee on Foreign Relations, Subcommittee on Ocean Space, Activities of Nations in Ocean Space. Hearings, 91st Cong., 1st Sess., July 30, 1969, passim, pp. 213-233. 184 of the U.N. Commission to study the Organization of Peace drew up a draft treaty^ late in 1967 reflecting the manner in which the above mentioned resolution and the Malta proposals could be implemented. This draft treaty was widely circulated. During the three years following its publication many comments and recommenda tions were received, governments and non-governmental organizations had drafted similar type statutes, there had been much debate concerning oceanic matters at U.N., national and private levels, and several pertinent U.N. General Assembly resolutions had been passed. Thus the 1 Q purposes of the revised draft treaty arei 1. To "reflect [through revisions to the original treaty] the best of the thinking, experience and discussions since 1967."^ 2. To present recommendations and "innovative and constructive ideas" that "carry with them the bene- 1^Treaty Governing the Exploration and Use of the Sea Bed. Pamphlet Series No. 10 of the U.N. Committee of the World Peace Through Law Center (1968). l8Revised Draft Treaty Covering the Exploration and Exploitation of the Ocean Bed (1971). drafted by the U.N. Committee of the World Peace Through Law Center, Aaron L. Danzig, Chairman. 19Ibid.. p. 3. 185 fit of emanating from an international organiza tion and are therefore not subject to the preju dices that might adhere to any document prepared by a particular State."20 3. To reflect (as in the case of the original draft treaty) "the manner in which our Resolution [i.e., No. 15 of 1967 mentioned above] and the •21 Malta proposals could be implemented . II. Date of Issue or Publication of Draft Treaties A. Borgese Published October 1968. No revisions have been made.22 B. ££11 Submitted to the Senate as Senate Resolution 92 on February 4, 1969, as a modification of previous resolutions dating back to 1967 which were subjec ted to Congressional Hearings.z3 C. U.S. Submitted dated August 3. 1970, to the U.N. Seabed Committee "as a working paper for discussion purposes . ^This original draft has not been modified. 20Ibid.. p. 3. 21Ibid.. p. 1. 22£e. , fn.2. 23fl£. cit.. fn. 9» op. cit.. fn. l6j and U.S. Con gress, Senate Committee on Foreign Relations, Governing the Use of Ocean Space. Hearings, 90th Cong., 1st Sess. November 29$ 1967. 2k U.S. President, Draft United Nations Convention on the International Seabed Area. August 3. 1970, cover page. 186 D. Danzig Completed about January 1( 1971» as a revision of the original 1968 draft treaty.2' III. Geographical. Temporal and Resource Scones of Draft Treaties A. Borgese. ~ Geographically the regime encompasses the high seas beyond the limits of territorial waters and the seabed beyond the limits of the continental shelf as defined by the regime. The air column over the high seas is not included. Territorial seas are defined as extending 12 miles from the shoreline. The continental shelf is defined as extending to a depth of 200 meters in the superjacent waters or a distance of 50 miles from the base line from which the terri torial sea is measured. This applies to littoral states and islands. (See Arts. I-III.) The temporal extent is indefinite after the treaty enters into force. (See Art. XVIII.) Included resources are all natural resources within the geographical limits described above. The term natural resources is defined as including "minerals, metals, and other non-living resources of the sea-bed 2 ~*0p . c i t . . fn. 1 8 . 187 as well as living resources of the high seas, both animal and vegetal." (See Arts. II, 3* and III, 5.) It is noted that in-solution and in-suspension miner als and chemicals are not included in this definition. B. Pell. — The geographical scone is "ocean space" which term is defined as "the waters of the high seas, including the superjacent waters above the continental shelf and outside the territorial sea of each nation, and the seabed and subsoil of the submarine areas of the high seas outside the area of the territorial sea ■26 and continental shelf of each nation. (See Preamble, 1st para.) Other than as given above, the high seas are not defined, nor is the outer limit of the terri torial sea. The draft treaty appears to use the 1958 Geneva High Seas, and Territorial Seas and Contiguous Zone Conventions definitions which are not definitive (see Preamble, 5th para, and art. 30). On the other hand, the term continental shelf is clearly defined. Essentially it is the seabed and subsoil under the ocean outside the territorial sea adjacent to the coast 26Cf. Borgese (Art. Ill, 1.) definitions of "Ocean Space" which includes "the high seas, the territori al waters, and contiguous zonest the atmosphere above its the continental shelft the sea-bed and what is below it*" 188 beginning at the 550 meter depth or at a distance of 50 miles from the territorial sea base measurement line. This applies to islands as well as continental states but the seabed area cannot exceed the area (ex clusive of the territorial sea) of the state or island to which it is adjacent (see Art. 30). The atmosphere over the high seas is not mentioned. The temporal extent appears to be indefinite after entering into force (see Arts. 36-38)* Resources coming under the treaty are "the living and mineral resources in suspension in the high seas and in the seabed and subsoil of ocean space" (see Preamble, para. 9). The natural resources of the sea bed and subsoil of ocean space are defined explicitly as defined in the 1958 Geneva Seabed Convention (see Pell, Art. 14). The resources of the high seas are only implicitly defined in the Preamble. Vegetal re sources are not included except perhaps under the broad terms of "living resources" or "living organisms". Of note is the fact that "in-solution minerals" and "in suspension minerals" are included as high seas resour ces but in-solution chemicals are omitted. C. U.S. — Geographically this draft treaty applies only to "International Seabed Area" which "shall com 189 prise all areas of the seabed and subsoil of the high seas seaward of the 200 meter isobath adjacent to the coast of continents and islands" (Art. 1 [2]). Article 1 (3) and (*0 make jr o vis ion for straight line boun daries to be drawn to delineate precisely this seabed area boundary. This permits very minor deviations from the 200 meter limit. Article 26 delineates "The International Trusteeship Area" in which certain rights and responsibilities are assigned the adjacent coastal nation by Article 27. This trusteeship area in general includes the continental and island margins between the 200 meter depth limit and a line beyond the base of the continental slope where the downward inclina tion of the surface of the seabed declines to a yet to be agreed upon gradient. Of note is that unlike the Borgese and Pell draft statutes the U.S. draft is lim ited solely to the seabed and its subsoil. Further, Article 6 states that "Neither this Convention nor any rights granted or exercised pursuant thereto shall affect the legal status of the superjacent waters of the high seas, or that of the air space above those waters." Also of note are the following! High seas are not defined, although the U.S. has proposed an outer limit to the territorial sea be set 190 at 12 nautical miles from the coast. A note to Article 2 recognizes that States current ly have rights in the International Seabed Area under, or consistent with, the 1958 Geneva Convention on the Continental Shelf. The treaty's temporal extent appears to be indefi nite, extending from the time of entering into force. However, the final clauses (Art. 78) are yet to be written and the entire treaty is only a working and discussion paper. Of note is that there are provisions for the protection of interests and investments made prior to the treaty's coming into force and a transi tion licensing arrangement for exploitation contracts made on and after 1 July 1970 (see Art. 73)• The resources included under the treaty are mineral and living resources in or on the International Seabed Area (see Arts. 13 and 22). Article 75 (5) mentions "natural resources of the International Seabed Area*" but this term is not defined nor are the two previously mentioned terms defined in the text of the basic Con vention. However, Appendix A, subparagraph 5.1 defines the "categories of minerals" that are subject to ex ploitation as i (a) Fluids or minerals extracted in a fluid state, 191 such as oil, gas, helium, nitrogen, carbon dioxide, water, geothermal energy, sulphur and saline min erals. (b) Manganese-oxide nodules and other minerals at the surface of the seabed. (c) Other minerals, including category (b) miner als, that occur beneath the surface of the seabed and metalliferous muds. Although “living resources of the seabed” are not defined, presumably this term's meaning is as defined in the 1958 Geneva Convention on the Continental Shelf. It is worthy of note that in this very detailed draft Convention its major raison d'etre, seabed resources, are not clearly defined in the articles of the basic document. D. Danzig. — The geographical confines of this draft treaty are the limits of the “Ocean Bed". Article I defines this term "as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coasts beyond the first depth of 200 meters but outside the territorial seat (b) to the seabed and subsoil of simi lar submarine areas adjacent to the coasts of islands." Since this basic and simplistic delineation of the ocean bed leads to inconsistencies vis a vis the 1958 Geneva Sea Conventions, Article I further stipulates that in case of conflicti The Danzig treaty provisions shall override those of the 1958 Geneva Convention on the Continental 192 Shelf. The 1958 Geneva Convention on the Terri torial Sea and the Contiguous Zone provisions shall override those of the Danzig draft treaty. To be noted is that the Danzig Treaty permits no alter nate linear limit from the coast baseline as do the Borgese and Pell drafts, but it does provide for an intermediate area "between the edge of the Continental Shelf and 50 miles from the coast" which is in some respects similar to the U.S. draft [see Arts. XIII and XIII A. (iii)]. Also to be noted is that the treaty occasionally extends itself into the high seas, for example Articles I, IV, XIII A. (ii) and (vii). The temporal extent of this treaty is apparently indefinite commencing from the time it becomes effec tive. Resources included as being under the provisions of this treaty are identified only as "The Resources of the Ocean Bed" (see Art. I). Provision is made in Article XIII A. (vii) for the assumption of jurisdic tion by the treaty's Agency over all or part of the non-living resources of the high seas. IV. Form of Treaty While perhaps the form in which the treaty is drafted is of minor importance, the below table does give 193 a comparison of the major subdivision forms used and an inkling as to the comparative length and detail of the treaties. TABLE 1 COMPARATIVE TABLE OF TREATIES' FORM Treaty Treaty Subdivisions Preamble Parts Chapters Articles Section Sub- Section Appendices Borgese — — — yes yes yes — 21 Pell ye 8 yes — yes yes yes 9 39 U.S. — — yes yes yes yes yes 9 78 5 Danzig yes — — yes yes yes — 17 Notei 1. Blanks (i.e., — ) indicate the treaty does not use this type of subdivision. 2. The numerals under the major sub-divisions indi cate the number of such sub-divisions the treaty contains. 3. The Pell and U.S. treaties use Arabic numerals for both Article and Section numbering, rendering it difficult to make brief definitive references. In view of this in referring to some sub-sections of those treaties the writer has used parentheses around the sub-section numbers for clarity. 19^ V. Legitimacy and Autonomy of the Treaties and Their Functional Organs. By "legitimacy" the writer is referring to the international organization, law, convention, or agreement the referenced model regime is supposed to be the offspring of, be sheltered by, work within, or otherwise be attached. By "autonomy" is meant how much, if any, freedom of action from an international hierarchy is such a model regime to have. A. Borgese. — 1. In Mrs. Borgese's model the legiti macy is derived from the United Nations, although her Ocean Regime is sui generis. In her comments on the Regime she writesi There is general agreement that the Regime cannot bg the United Nations whose structure ~ with the one-nation-one-vote system in the General Assembly and the veto in the Security Council ~ is not suited for the task that must be assumed by the Regime. The Regime must be independent of the United Nationsi yet it must in some way be associ ated with it ... . It must emanate from it. It must be legitimized by it. It must be structured in such a way as to coordinate all the activities that are concerned with the oceans in all of the U.N. agencies and committees.*7 2. From a reading of the draft statute and various Borgese, The Ocean Regime. ££• cit. at fn. 2, p. 32. Also see Borgese, "A Center Report," 1968, ££. cit. at fn. 7» p« 26-27. 195 statements and comments by Mrs. Borgese it would appear that the proposed treaty and its functional organs would be autonomous. In the quotation imme diately above she states that the Regime cannot the U.N. Further on she writes that "the Regime 28 cannot be a [U.N.] 'specialized agency'". and that "it will have the features of a corporation, 29 a business, a cooperative, a government." 7 In another place the statement is made that the Regime 30 "would create a new sovereignty ...» On the other hand, the Regime is so closely tied in with the United Nations one wonders if its autonomy would not in fact be much less than apparently contemplated. Examples of this tie-in are given belowi a. "It [the Regime] shall coordinate the acti vities and plans of all United Nations special agencies (Art. IV, 2) b. [The Regime shall] "conduct its activities in accordance with the purposes and principles 28 Borgese, The Ocean Regime, op. cit. at fn. 2, p. 32. 29U2i!.. P« 32. 97 ^°Borgese, "A Center Report^" 1968, S U 2 > cit. at fn.7» 196 of the United Nations .*. and in conformity with policies of the United Nations ..." re garding world disarmament* (Art. VB. L.) c. [The Regime shall] "submit reports on its activities annually to the General Assembly of the United Nations and, when appropriate, to the Security Council." (Art. VB 5»). and to the Economic and Social Council and other organs of the U.N. on pertinent matters. (Art. VB. 6.) d. The first chamber of the Maritime Assembly is to be elected by the U.N. General Assembly and every member of the General Assembly is an eligible candidate. (Art. IXB. 1.) e. Except in matters of security and pollution the first chamber's approval is required be fore decisions of the Maritime Commission can become effective. (Art. IXC. 4.) f. Military personnel engaged in ocean acti vities permitted by the Regime are to wear U.N. insignia and report their activities and findings to the Security Council of the U.N. (Art. XVC.) g. Right of appeal from Maritime Court deci- 197 sions and, in certain cases, litigation may be pursued through the U.N.'s International Court of Justice. (Art. XIII 11. and 16.) B. Pell. — 1. Although the Pell proposal is offered as a treaty outside the framework of the United Nations whereby "States Parties to the Treaty" would assume the State's obligations, the functional organs set up by the treaty would be creatures of the United Nations. This is so because the only three functional organs of the treaty arrangement are thati a. The Licensing Authority is "to be designated by the United Nations and to be independent of any State." (See Art. 13) Although it is not further defined this Authority will presumably be "a special ized United Nations agency."31 b. The enforcing agency is to be the "Sea Guard of the United Nations," a permanent force under the control of the Security Council of the United Na tions. (Arts. 31-33) c. The dispute settling machinery is to consist of 31Wolfgang Friedmann, The Future of the Oceans (1971)* p. 89. Also see Dr. Auerbach's testimony in Acti vities of Nations in Ocean Space, op. cit. at fn. 16, p. 121. 198 the Licensing Authority presumably a U.N. agency, a standing Review Panel, appointed by the United Nations International Court of Justice, and the final review organ, the International Court of Jus tice itself. Thus the legitimacy of the Pell proposal stems from the United Nations, of which the treaty's functional organs are a part. 2. The autonomy of the Pell treaty is limited. It is probably dependent on the degree to which the functional organs emphasize the economic, scientific, and technological features of their missions and de- emphasize military and political issue activity or entanglement. C. U.S. — 1. Although the U.S. draft treaty was pre sented to the U.N. Seabed Committee for its considera tion and for subsequent consideration by the U.N. Gen eral Assembly, and although its title is United Nations Convention on the International Seabed Area, the statute and its prescribed functional organs if found acceptable and placed into force would derive their legitimacy solely from the Convention itself and not from the United Nations. In this respect their legitimacy would be similar to that of the various provisions of the 1958 199 Geneva sea and seabed conventions. Article 31 of the U.S. draft model states very simply that "The Interna tional Seabed Resource Authority is hereby established" and that "The principal organs of the Authority shall be the Assembly, the Council and the Tribunal." 2, The autonomy of the Convention and its func tional organs is very complete, subject only to the principles, rules and regulations provided for in the Convention itself and other pertinent international con ventions and laws. The States, which are "Contracting Parties" to the Convention, through the Assembly and Council exercise autonomous control. Article 33 stip ulates in part that "The legal capacity, privileges and immunities of the Authority shall be the same as those defined in the Convention on the Privileges and Immuni ties of the Specialized Agencies of the United Nations*” D. Danzig. — 1. The legitimacy of the Danzig treaty and its functional organs emanate from the United Na tions, of which it is, for all practical purposes, an agency. Note the following ties to the U.N.t a. Article I states that "The resources of the Ocean Bed and non-living resources of the high seas shall appertain to the United Nations which shall 200 have jurisdiction thereover." b. The treaty's operational and administrative agency, which is established by Article XIII”... shall be a corporation chartered by the United Nations.” Article XIII B. (1) stipulates that, "The Charter shall be recommended by the Secretary- General of the United Nations and approved by the Economic and Social Council of the United Nations m • • t • c. The treaty's Tribunal ”... shall consist of fifteen judges who shall be designated by the Gen eral Assembly of the United Nations ... . The expenses of the Tribunal shall be borne by the United Nations as part of its General Budget. The General Assembly may establish such inferior courts as it deems appropriate ....” (See Art. XIV B.) Where substantial international question is invol ved, "Appeal from decisions of the Tribunal shall lie to the International Court of Justice" of the United Nations. (Art. XIV A.) d. Any excess of income over expenses derived by the treaty Agency is to "be paid to *he United Nations ...." (Art. XIII) 2. As concerns autonomy. "The Ocean Agency shall have 201 sole authority to grant rights for exclusive ex ploration or exploitation of the Ocean Bed*" (Art. Ill) However, a perusal of the ties with the United Nations as enumerated above, certainly indicates that autonomy is slight. Further "the Agency is ... vested with ... strictly limited power to en large its scope ..." according to the Treaty's Prefatory Note.-' It is probable that the degree of autonomy permitted the Ocean Agency by the Uni ted Nations will be, as suggested in the case of the Pell Treaty above, dependent upon the type of acti vity the Agency engages in. VI Approach Several possible alternative approaches to legal re gimes for governing the exploration for and exploitation of non-living resources of the seabed beyond national juris diction have been suggested and subjected to debate, dis cussion and analysir. Jared Carter writes about a “minimum regime", a "moderate regime" and a "maximum regime".^ ^2See also the Treaty's Article XIII A. (vii). Jared G. Carter, "The Seabed Beyond the Limits of National Jurisdiction ," Stanford Journal of Interna tional Studies. Vol. IV (June 19o9), pp. 19-20. 202 Louis Henkin discusses "National v. International Regimes" labeling the former "Homesteading" and the latter "Inter- national operation" and International licensing". John D. Lewis describes five possible alternative regimes. J Victor Basiuk writes concerning the advantages and disad vantages of "narrowly national or unilateral", "broadly 36 international", "regional" and "structure mix" approaches. ^ Louis Henkin, "Changing Law for the Changing Sea," Uses of the Sea, ed. Edmund A. Gullion (1968), pp. 93-9^. •^John D. Lewis, "The Deep Sea Resources," Naval War College Review. Vol. XXI, No. 10 (1969), pp. 141-43. The five regimes Lewis discusses are for the most part ideas that have been suggested by others. Briefly they aret 1. Using the existing legal framework (including the "rubber boundary" and adjacency features of Art. 1 of the 1958 Geneva Continental Shelf Convention) with no international seabed regime envisioned. 2. Considering the deep ocean floor minerals as common property of mankind and setting up an international licensing and registering system similar to Senator Pell's proposed treaty to administer and regulate inter national seabed operations. 3* Considering the deep ocean seabed and subsoil as the property of no one and therefore subject to appropria tion by any state. 4. Considering the deep ocean seabed as world communal property and not subject to the jurisdiction of any one state. This regime envisions a legal system similar to that for an open-range. The exploiter would operate under his national flag. 5. Combining the international registry system of re gime 2 with the flag ptate approach of regime 4 above. -^Victor Basiuk, "Marine Resources Development, 203 Prances T. Christy has discussed and analysed on several occasions four alternate regimes which will be used here as criteria for comparative purposes. He has entitled these alternativesi 1. The “nation lake" approach wherein the sea floor is divided up among the coastal states so that none of it remains outside the jurisdiction of some coastal state. 2. The "flag nation" approach under which nations guarantee claims made by their entrepreneurs. 3. The "wait and see" approach which recommends that nothing be done about the establishment of a regime until important developments force the issue or until more is known about the geography and resources of the ocean floor. 4. The "international regime" approach which calls for the establishment of an international agency with jurisdiction over sea resources and exclusive authority to grant leases and extract rents. Christy also men-* tions a sort of compromise approach between the "flag nation" and "international regime" approaches which Foreign Policy, and the Spectrum of Choice ." Orbis. Vol. XII, No. 1 (1968), pp. 47-52. 20k calls for the establishment of an international regis try office for entrepreneurial or national claims in order to provide more limited access to resource and more security of claim title and to lessen conflicts, "first come first serve" tactics, over-capitalization, 37 and congestion. J All four of the draft treaties being considered by this paper are built around the "international regime" approach. However, the U.S. draft does strike a compromise with the nationalistic approach. This is achieved by au thorizing coastal states to act as Trustees (with certain rights and roles) in the seabed area between the outer limit of the coastal states* jurisdiction and the edge of the continental margin. VII Objectives The U.N. Seabed Committee, in its report to the General Assembly's 25th Session in 1970, stated in part as follows* The following objectives to be served by an inter- 37 J See Francis T. Christy, Jr.'s statement to the Senate Foreign Relations Committee (i.e., U.S. Congress, Senate, Hearing, Governing the Use of Ocean Space, o p . cit. at fn. 23, pp. 50-59. Also see Ambassador Arvid Pardo's address, "Whose is the Bed of the Sea?", Proceedings of the American Society of International Law. April 1968, pp. 223-26. 205 national regime governing seabed resource exploration and exploitation beyond the limits of national juris diction were described by the representative of the United States of America, Christopher H. Phillips, in his speech on 6 March 1970 to the Sea-Bed Committee, as objectives that would need to be met by any regime, regardless of its character. They were also referred to by the United States representative, V.E. McKelvey, in his speech on 11 March to the Economic and Techni cal Sub-Committee as useful in the evaluation of alter native rules and provisions that might be developed to implement the regime, and on 17 March he proposed that they be distributed to the Sub-Committee as a working paper for that purpose. The list of objectives (with Ambassador Phillip’s explanatory comments on them) [was] then distributed as a working paper... .3° Since the objectives referred to in the above quo tation "would need to be met by any [international] re gime "39 designed to govern seabed resources beyond national jurisdiction, and since they were accepted as a working paper by the Seabed Subcommittee "as [being] useful in the evaluation of alternative rules and provisions that might /in be developed to implement the regime," it is considered 41 appropriate to use these objectives as standards for comparison purposes. Accordingly the objectives are quo ted and enumerated below and the four selected treaties -^United Nations, General Assembly, 25th Sess., September 1970, Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction. Supplement 21 (A/8021), p. 53. 39Ibid. 4olbid. ^ Ibid.. pp. 53-55. 206 are comparatively measured against each by determining 42 whether or not they support the various objectives. "1. To encourage exploration and exploitation of sea bed resources." A. Borgese. — supports see Arts. IV, and V. B. Pell. — supports see Arts. 1-5» 7-10i 13» 15-18i and 28. C. U.S. — supports see Arts. 2-9i 20i 24» 271 4lj and 73* D. Danzig. — supports see Arts. II-IV| VIII-XIi XIII A. "2. To assure that all interested States will have ac cess, without discrimination, to the sea-bed for the pur poses of exploring and exploiting mineral resources.” A. Borgese. — supports see Arts. IIA. 2.-4.» B. 9.-131 HI 4| Vi XV. B. Pell. — supports see Arts. 1-101 12-13i 16i 30. C. U.S. — supports see Arts. 1-4» 6j 9» 111 12i 65* 73. D. Danzig. — supports see Arts. I-IVi VIIi IXi XIi XIII A| XIV A. "3. To encourage scientific research and the dissemi nation of scientific and technological information related to sea-bed resources." A. Borgese. — supports see Arts. II B.5.9,10 and Hi IV 1,2 and 3t XV B.l. B. Pell. — supports see 5th Preamble para graph i Arts. 1-5i 7-9i 42 For reasons explained later in the text objective number 12 is not used as a comparative standard. 207 C. U.S. — d. fianaijg. — supports see Arts. 1-4i 6j 9i 23-25» 40 j-m» 43(1)i 68 j and 1. supports see 4th Preamble para graph i Arts. I-Vt VIII- XI» XIII A.(v). ”4. To encourage the development of services, such as aids to navigation, maps and charts, weather information and rescue capability." A. Borgese. — Does not specifically support. Generalities included in Articles II B. 10 and llj IV l-3i V 5» and XC. and E. might be construed that, when the treaty's machinery was set up and operating, some of such ser vices would be encouraged and devel oped but the treaty is neither clear nor precise on this objective. Does not specifically support. The same comment given in A. immediately above applies to the Pell Treaty Articles 7—91 17 (5) and (18). Part VII (Articles 31-33) provides for a "Sea Guard" which will render police services but it is not believed this type of a service meets Objective 4. Supports. See Arts. 5(2)» 9» 21i 23bj 40 j, k and lj 41j 68j Annex A subparagraphs 8.5.-8.7i and Appen dix B 8.9. Does not support. Even vague gener alities and references to such ser vices are not included in the Danzig Treaty. B. Pell. — C. U.S. - D. Danzig "5. To provide procedures for the assignment of rights to mineral j or groups of minerals in specific areas under terms [l] that protect the integrity of investments in sea bed resource development, [2] that encourage economic 208 efficiency in the exploration and exploitation of sea-bed resources, [33 that prevent a race for claims, and [43 that discourage operators from seeking to hold large areas for purely speculative purposes." A. Borgese. — [l] Supports in generalities but spe cifics are lacking. See Arts. II 2, 3,6,7,8i IV ?» V 1-3, 13* , [2] Same as above. See Arts. IV 3, 6 V 5-11i X C. [3] Same as above. See Arts. II 2, 1 3.6» V 1-3. [4] Meager support. See Arts. V 1-3. Generalities only. B. Egu. — [13 Supports. See Arts. 3.6,13,15, ^ 16,19,28,29,31-33,31 *. [23 Supports. See Arts. 13,15,16,17, 18,19. [33 Supports generally but not pre cisely. See Arts. 6,7,16,18,21, r _ 23,31,32. [4] Supports. See Arts. 16a, 21. C. U.S. — [lj Supports. See Arts. 2,3,6,7, 10-14,20,21,40 i,j,& kj 43,44, 50-52, 55,58,65,73, and Sections 6, 10, 11, & 14 of Appendix A. [23 Supports. See Arts. 5(2), 10, 13-15, 28, 40 i. 43, 44, 50-52, 62C, 68, 69 and Sections 9 & l4 of Appendix A. [33 Supports. See Arts. 2, 10-12, 1^ 16-20, 27, 28, 43, 44, 681 Sec tions 5 & 7 of Appendix A, and Appendix B. [43 Supports. See Arts. 2, 11, 12, 14, 16-20, 27, 28, 43, 44, 681 Sections 5,7, & 13 of Appendix A, and Appendices B & C. D. Danzig. — [l3 Supports. See Arts. I, II, III, VI, VIII, IX, XIII A(ii), (iii) and (vi)j XIV A. [23 Supports. See Arts. II, III, VI, XI, XIII A(i), (iii), (iv), (vi), and (viii)i XIV A. 209 Does not support. Does not support. "6. To provide for a reasonable return on risk invest ment." A. Borgese. ~ Supports generally. See Arts. IV 1, 3 & 7» and X C. B. Pell. ~ Supports. See Art. 16 (a). C. U.S. — Supports. See Arts. 5.14,15.73» paras. 11 & 14 of Appendix At paras. 3,4,5. & 6 of Appendix B» Appendix C. D. Danzig. — Does not support. "7. To provide revenue to benefit international com munity purposes, taking special account of the needs of the developing countries, and to meet the operating expen ses of the international body established to administer its provisions." A. Borgese. — Supports. See Arts. II 3» IV 1» V A 111 V B 4| IX E 8 & Hi X D» XII G 6. B. Pell. — Supports the providing of revenue to meet operating expenses. See Arts. 16 (a), (iii) & (v)i 24 (3) & 33. Does not support the providing of rev enue to alleviate the needs of the developing countries. C. 12x5. — Supports. See Arts. 5i 11(3). (4) & (5)» 14» 2?gi 28d and ei 29» 35f and gi 40 f,g,k, and m» 4l» 44e» 52(2)j 55(2)i 68(1.a)» 73(2.d)* 3» 74(2)» Appendices A,B,C & D. D. Danzig. — Supports the providing of revenue to meet operating expenses. See Arts. VI, XIII (less section B)i XIV B. Does not support direct revenues to alleviate the needs of the developing 210 k*S nations. J "8. To assure that exploration and exploitation of seabed mineral resources will be carried out in a manner that will protect human life, prevent conflicts between users of the sea-bed, safeguard other uses of the ocean environment against undue interference, avoid irreparable damage to the environment and its resources, and promote the use of sound observation practices." A. Borgese. — Supports. See Arts. I, II, IV, V, VII E & F» IX E» X C-G» XII G| XIII| XIVf XV. B. Pell. — Supports. See Arts. l-9i ll-13i 15-29» 31-34. C. U.S. — Supports. See Arts. 2-4 j 6-13» 19-25i 27-30i 35> 40 i-m» 44-46» 50-60j 66-72j Appendices A-C. D. Danzig. — In general the treaty supports this objective but for the most part lacks specificity. Protection of human life is not mentioned. See Arts. I-XIi XIII At XIV A. 43 -'Article XII states in part, "The income derived by the Agency [from fees, royalties, etc.], ... , shall be utilized to defray the expenses of the Agency, any excess to accrue and be paid to the United Nations, earmarked however, for the purposes specified in Article 55. sub- paragraphs a. and b. of the United Nations Charter, except that ...." The treaty drafter's comment accompanying this Article states in part, "The predominant purposes for which the funds are contemplated to be used are the improvement of the economic, social and cultural status of mankind as a whole. The licensing program envisioned for the Agency re quires ... encouragement to the developing States and their nationals to participate in such exploitation ... the Treaty provides technical assistance [rather than revenue] to such countries ... •" 211 "9. To provide terms and procedures governing liabili ty for damage resulting from exploration and exploitation of sea-bed minerals so that damage will be adequately re paired or compensated." A . B o r g e s e . — S u p p o r t i s n o t s p e c i f i c n o r p r e c i s e . however ample legal machinery is pro vided for. See Arts. V A 10, 12i VI» VIII E» IX E 3-6» XIII. B . Pell. — Support is not specific. However, the treaty does stipulate that the environment shall be protected and legal and administrative machinery and procedures to handly problems in this area are provided for. See Arts. 6,9,11,12,16 (a) & (v), 21,24,28,29, 31-33, 34. C . U.S. — Supports. See Arts. 11,12,19(2),20, 22-23, 2?(2) c-e & h-i» 33,^0 i-l» 44(2) c&df 46j 50-59» 68(1) d-g» ?2j Section 12 of Appendix A. D . D a n z i g . — Supports. See Arts. V I , I X , X I I I A (ii) and (vi)j XIV A. ”10. To provide for the stability of rules, and yet for the flexibility to induce modifications over time res ponsive to new knowledge and new developments." A . B o r g e s e . — S u p p o r t s . S e e A r t s . I V , V A , V I I I E & F, IX C ,D & E i X C -L j X I I , X I I I 1 , 4-17t XIV l i X V I. B . P e l l . — S u p p o r t s , b u t s u c h s u p p o r t i s f o r t h e most part based in generalities and not in specifics. See Arts. 5,6, 10-13,15.16(b) & ( f) t 19,21-23, 24 (1) & (5)» 28,29. C . U.S. — Supports. See Arts. 12,13,16,20,23, 27(1) A (2)c,e,h,ii 28a,30,35e,h 36i38i39»40 i & ji 42,43,44(1),46, 54-57»59,60,66-73,76. D . Danzig. ~ Supports only in a general way — lacks specifics. See Arts. V I I ,I X , X I I I A(ii), (vi) & (vii)j XIV A. 212 "11. To provide effective procedures for the settlement of disputes." A. Borgese. — Supports. See Arts. VI, XIII. B. Pell. — Supports. See Arts. 5.6,11,12.16(b), 19,21-24,31,32,34,35(2). C. U.S. — Supports. See Arts. 1(3) & (4)» 10, 12,19(2), 20,26(3), 2?(2)d» 28f, 30, 35h, 39.40j,44(2)c & df 45(2)» 46-60, 66(2), 71, 72. D. Danzig. — Supports. See Arts. I, III, VI, VII, XII, XIII A(ii), (vi), (vii) & B(l), (i), (iii), (v)j XIV. "12. In the over-all, to establish an international regime so plainly viable that States will in fact ratify the treaties establishing it." Since the author of this paper would be put in a position of "second guessing" what States might or might not do, and since he would be pre-judging the four selec ted treaties, all of which are acknowledged as models that are open to revisions and subject to further "flesh- ing-out" development, the above objective will not be used as a comparative standard in this paper. Table 2 below presents in summary form a comparison of the degree of support the treaties give to the above listed objectives. 2 1 3 TABLE 2 SUMMARY OF DRAFT TREATIES' SUPPORT FOR VARIOUS OBJECTIVES OBJECTIVE DRAFT TREATY NUMBER B o r g e s e P e l l U .S . D a n z ig 1 yes yes yes yes 2 yes yes yes yes 3 yes yes yes yes i f some some yes no 5 [1] some yes yes yes [2] some yes yes yes [3] some some yes no !>] some yes yes no 6 yes yes yes no 7 yes some yes some 8 yes yes yes some 9 some some yes yes 10 yes some yes some 11 yes yes yes yes 12 • ••• • m a t ™ . . . Notei The numbers correspond to the objective numbers as given above. "Yes" indicates the treaty supports the objective in a good to excellent manner, "No" indicates no support, and "Some" indicates some support but only partial or in generalities mainly with specific support weak or lacking. V I I I S t r u c t u r a l O r g a n iz a t io n Table 3* which appears immediately following this brief introduction, is designed to give a comparative presenta tion of various features of the structural organization of each of the four selected treaties. TABLE 3 Organizational Item COMPARATIVE TABLE OF STRUCTURAL ORGANIZATION Draft Treaty 1. Parent Organiza tion None (see Sec. VB. Chan. VII) None (see Sec. V B. Chan. VII) None (see Sec. V c. Chan. VII U.N.(see Treaty Art. XIII) 2. Type Organiza tion New Institu tion Agency New Institu tion Corporation 3. Organsi (a) Legislative Maritime Assem bly of 4 Cham bers (Art.IX) None Assembly of all contrac ting parties (Art. 34) Shareholders Meeting® (Art. XIII B) (b) Executive Maritime Commis sion, 17 members (Art. VIII) Licensing Author ity, number of members not speci fied (Art. 13) Council, Zk members (Art. - 36) 4 3 com missions. (Art. 42) Board of Direc tors with a chairman, presi dent, 4 vice- presidents (to tal of 24 mem bers (Art. XIII B) (c) Judicial Maritime Court with right of access of States to I.C.J.c (Art. XIII) Licensing Author ity with appeal to judicial panel and further ap peal to I.C.J.c (Arts. 12 & 22-24 Tribunal with access to I.C.J.c for advisory opin ions (Art. 46) Ocean Tribunal with appeal to I.C.J.c (Art. XIV) (d) Adminis trative Secretary-Gener al and various Secretariats (Art. XI) None provided for Secretariat headed by a secretary- general (Art. 61) , None provided for but pre sumably the Board of Direc- ' tors would pro vide. no i - * ■ p - TABLE 3— Continued Organizational Item Draft Treaty (e) Regional Regional Commit tee & Regional Office (Art.XII) Not provided for Not included as an organ but establishment of provided for (Art. 40 l.&m.)' Not provided for l (f)Planning Maritime Plan ning Agency (Art. X) Not provided for No specific or gan provided for. Presum ably the 3 Com missions & the Secretariat each plan in its own sphere (arts. 40e»42 (5) »62d & 64) No specific or gan provided but by-laws could provide for (Art. XIIIB(iii) (g) Enforce ment Not provided for Sea Guard - a per manent U.N. force available to the Licensing Agency (Arts. 31-33) •No specific or gan provided but enforcement delegate to each contract ing Party (Art. 11) Not provided for 4. Membersi (a) Title Member, Associ ate Member, and Individual (Art. VII) State Party to the Treaty** Contracting Partye State Party to the Treaty (Arts IV,VII,IX, etc.) also "sharehold er- (Art. XIII B (l)(i)* £ Kj TABLE 3 Continued Organizational Item B o r g e s e P e l l Draft Treaty u-s. ( b ) E n t i t i e s t h a t c a n g a i n mem b e r s h i p D a n z ig MEMBER* A ny S t a t e . ASSOC. MEMBER* I n t e r - g o v e m m e n t a l o r n o n - g o v e m m e n t a l o r g a n i z a t i o n s and c o r p o r a t i o n s h o l d i n g r e g im e i s s u e d l i c e n s e s . INDIVIDUALS* Ap p o i n t e d o r e l e c t e d . Any S ta te* * A ny S t a t e Any S t a t e a The draft statute "will have the features of a corporation, a business, a co operative, a government", (see fn. 29, Chap. VII) ^All organs provided for in the treaty except the Ocean Tribunal are included in the Ocean Agency. cI.C.J. is the abbreviation for the International Court of Justice. dAn International Organization could apply for a license for seabed exploitation and exploration. "A license may be issued to such an organization as if it were a state" (Art. 15). However, the treaty provides solely for States to be signators and thus "Parties to the Treaty". eThe term "Contracting Party" is not defined, although from the tenor of the Convention it appears to denote a State that is party to the Convention. Article 75 de fines "Sponsoring Party", "Authorizing Party", "Operating Party" and "Licensee". The last named term "refers to a State, group of States, or natural or juridical person holding a license for exploration or exploitation of the natural resources of the Inter national Seabed Area." TABLE 3 — Footnotes Continued A r t i c l e X I I I A ( i i i ) m ak es p r o v i s i o n "To g r a n t l i c e n s e s o r o t h e r fo r m s o f a u t h o r i t y . . . t o b o t h S t a t e s an d n o n - g o v e r n m e n t a l e n t i t i e s t o e x p l o r e o r e x p l o i t t h e O cean B e d ." H o w e v e r , o n l y S t a t e s c a n b ecom e " s h a r e h o ld e r s " u n d e r t h e O cean A g e n c y C h a r t e r . N o t e i R e f e r e n c e d a r t i c l e n u m b ers r e f e r t o t h e p a r t i c u l a r a r t i c l e i n t h e t r e a t y l i s t e d i n t h e c o lu m n b o x h e a d in g . 217 218 I X . M i s c e l l a n e o u s F e a t u r e s T h is p a r t i c u l a r s e c t i o n i s d e v o t e d t o a c o m p a r a t i v e l o o k a t s e v e r a l g e n e r a l b u t n o n - r e l a t e d f e a t u r e s o f t h e d r a f t t r e a t i e s u n d e r e x a m in a t io n a s f o l l o w s i A . L i c e n s i n g v e r s u s R e g i s t r a t i o n A l l f o u r o f t h e d r a f t s t a t u t e s p r o v i d e f o r l i c e n s i n g t o e x p l o i t an d e x p l o r e i n t e r n a t i o n a l s e a b e d n a t u r a l r e s o u r c e s r a t h e r t h a n a m ere r e g i s t r a t i o n o f s e a b e d c l a i m s . H o w e v e r , t h e l i c e n s i n g p r o c e s s i n c l u d e s t h e r e g i s t r a t i o n p r o c e s s w i t h i n i t s p r o c e d u r e i n e a c h c a s e . B . D i s s e m i n a t i o n o f I n f o r m a t io n I t i s n o t i n t e n d e d t h a t t h i s t o p i c i n c l u d e t h e i n t e r n a l d i s s e m i n a t i o n o f i n f o r m a t i o n w i t h i n t h e p a r t i c u l a r i n t e r n a t i o n a l e s t a b l i s h m e n t s r e q u i r e d b y e a c h o f t h e v a r i o u s d r a f t t r e a t i e s , t h e i s s u a n c e o f r e g u l a t o r y , s t a n d a r d i z a t i o n an d s u p e r v i s o r y m e a s u r e s , n o r s t i p u l a t e d p e r i o d i c an d o c c a s i o n a l r e p o r t s . R a t h e r , i t i s i n t e n d e d t o i n d i c a t e w h e t h e r o r n o t p r o v i s i o n h a s b e e n m ade f o r an d t h e e x t e n t t o w h ic h t h e v a r i o u s t r e a t i e s c a l l f o r t h e d i s s e m i n a t i o n o f i n f o r m a t i o n o u t w ard t o o r fro m t h e l i c e n s e e s , t h e S t a t e s , t h e t r e a t y e s t a b l i s h e d a g e n c y , o t h e r m em bers an d t h e i n t e r n a t i o n a l c o m m u n ity . 219 1. Borgese.- 2. Pell.— 3. U.S.— 4. Danzig.— C . Required Reports Table immediately following, gives a comparative view of reports required by the provisions of the four draft statutes. D. Withdrawals This feature is included to indicate whether or not the process of withdrawal by signatories from the treaty agreements is provided for. 1. Borgese.— Provision is made for any Member or Associate Member to withdraw one year after the Regime's entry into force, by notification addressed to the Sec retary-General. Withdrawal is to S a t i s f a c t o r y p r o v i s i o n m a d e. S a t i s f a c t o r y p r o v i s i o n m a d e. See Art. I I Bll» IV 2| V A 4&5i V B 2,3.5&6i V I I I G&Hi IX D| X C -I» X II G 3.2 *.5l XIV ki XV C. See Arts. 9i 17(*0» 18i 27. S a t i s f a c t o r y p r o v i s i o n m a d e . See Arts. 19i21|24»27 (2)f| 43(2)b» 44(2)fj 60j 62 ci 67 d&fi and various provi sions concerning tech nical data and informa tion in Appendices A through D. Only one very general but all encom passing article covers this facet. However, it is deemed that adequate (albeit non-specific) provision is made* See Art. XI. TABLE k REQUIRED REPORTS T r e a t y R e p o r t e r R e c i p i e n t T yp e o f R e p o r t A r t i c l e B o r g e s e a M em bers & A s s . Mem. R egim e D a n g e r o u s o r p o t e n t i a l l y d a n g e r o u s o c e a n s o a c e o h en om en a I I 1 1 b R egim e U.N. G e n e r a l A s s e m b ly A n n u a l r e p o r t o f r e g im e a c t i v i t i e s VB 5 c N U.N. S e c u r i t y C o u n c il O c c a s io n t y p e r e p o r t on m a t t e r s deem ed a o o r o o r i a t e VB 5 d n O th e r U.N. Or scans O c c a s io n t y p e r e p o r t on m a t t e r s w i t h i n o r g a n ' s o u r v ie w VB 6 e M a r itim e C o m m issio n M a r itim e A s s e m b ly A n n u a l r e p o r t on R egim e a f f a i r s and o t h e r o c c a s i o n t v o e r e o o r t s V I I I G f M a r itim e C o m m issio n M em bers 4 A s s o c i a t e Mem. A n n u a l r e p o r t on R egim e a f f a i r s and o t h e r o c c a s i o n t v o e r e o o r t s VIII G g M em b ers, A s s o c i a t e Member 4 R e g io n a l C o m m itte e s M a r itim e P la n n in g A g e n c y A n n u a l p r o g r e s s r e p o r t an d d e v e l o p m en t p la n X D h M em bers M a r itim e Com m i s s i o n 4 U.N S e c u r i t y C o u n c il R e p o r t on a c t i v i t i e s 4 f i n d i n g s o f t h e i r m i l i t a r y p e r s o n n e l e n g a g e d i n o c e a n s p a c e a c t i v i t y XV C 1 M em bers 4 A s s o c i a t e M em bers W o rld w id e n o t i c e Re c o n s t r u c t i o n o f i n s t a l l a t i o n s i n o c e a n s p a c e XIV k P e l l a T r e a t y S t a t e s U.N. S e c r e - t a r v - G e n e r a l D a n g e r o u s o r p o t e n t i a l l y d a n g e r o u s o c e a n s o a c e o h en om en a 9 b T r e a t y S t a t e s W o r ld w id e N o t i c e Re c o n s t r u c t i o n o f i n s t a l l a t i o n s i n o c e a n s o a c e 17(1+) 220 TABLE 4 — Continued REQUIRED REPORTS T r e a t y R e p o r t e r R e c i p i e n t T yp e o f R e p o r t A r t i c l e U.S. a Contracting Parties Seabed Authority Periodic report of activities of spon sored licensees 19 b Contracting Parties Worldwide Notice Construction of installations in ocean soace 21 c Council Assembly Various Dertinent reports 35d d Council Contracting Parties Annual Reports 40a e Secretary- General Assembly & Council Work of the International Seabed Re source Authority 62b f All parties involved Unspecified Report of accidents 68h g Licensee Authority or Sponsoring Partv Exploitation work plans & data App. A.7.2 h Licensee Authority Production plans & other data App. A.8.4 1 Sponsoring Partv Authority Report of certification of sponsored operators? financial competence App. B. 3.1 J Trustee Partv Authority Copies of licenses issued App. B. 3.2 k Council Assembly Proposed budgets App. D.2.1 1 Council Assembly Prior each regular Assembly session report the 6 advanced contracting parties App.E* 3 Danzig a Treaty States Ocean Agency Nature, conduct, locations, and re sults of exploratory & use activity XI b Depository Governments All signators Date of each new treaty signature and date of each new ratification deposit and "other notices" XV 5 221 222 take effect one year from the date of receipt of such notification. (See Art. XIX) 2. Pell.-- The same provision as above is made except that the notification is ad dressed to the Depository Governments. (See Art. 38) 3. U.S.— The same provision as for the Borgese draft treaty is made except that noti fication may be made at any time after the Convention's entry into force. (See Art. 77[2]) 4. Danzig.— No provision is made for withdrawal. Summary In summarizing the foregoing comparisons it goes without saying that the four treaties are all different from one another. While in general the primary objective of each draft treaty is the same, i.e., international con trol over the development of high seas seabed resources and the revenues derived therefrom, certainly they vary in such features as degree of detail, scope, autonomy, form, structural organization, and in the purposes for which the various drafts were written. 2 2 3 C o n c e r n in g t h e p u r p o s e s f o r w h ic h t h e t r e a t i e s w e r e d r a f t e d i t i s n o t e d t h a t a l l w e r e p r e s e n t e d a s d r a f t m o d e ls t o s u g g e s t , recom m end an d i n f l u e n c e . The B o r g e s e m o d e l w a s a d v a n c e d f o r m ore v a r i e d and g r a n d i o s e p u r p o s e s t h a n t h e o t h e r s i n c l u d i n g t h e p u r p o s e o f " p r o v id in g a fra m e w o r k f o r t h e f u t u r e p a t t e r n o f i n t e r n a t i o n a l o r g a n i z a t i o n " ( s e e A r t . l i e ) . T h e r e a p p e a r s t o b e som e e v i d e n c e t o s u p p o r t t h e v ie w t h a t i n p u r p o s e and i n t e n t t h e B o r g e s e , P e l l and D a n z ig m o d e ls w e r e d e s i g n e d t o p r o m o te a l i b e r a l v iew and o n e d e s ig n e d t o s u p p o r t a m ove t o w a r d s t h e i n t e r n a t i o n a l i z a t i o n o f w o r ld o r d e r . C r e d e n c e f o r s u c h a p u r p o s e w o u ld a p p e a r a l s o t o d e r i v e a t l e a s t i n p a r t fro m t h e v ie w s h e l d b y t h e d r a f t e r s . T h is i s n o t p o i n t e d u p w it h a n y i n t e n t t o d e r o g a t e b u t r a t h e r a s a p o i n t o f c o m p a r is o n w it h t h e p u r p o s e o f t h e U.S. m o d e l — t h e o n l y o n e o f t h e f o u r d raw n up a s a r e s u l t o f g o v e r n m e n t a l p r o c e s s e s and iih, i n p u t s . The U.S. d r a f t t r e a t y i s p r a g m a t ic and p o l i t i c a l i n i t s p u r p o s e . I t s i n t e n t i s t o p r e s e n t a w o r k in g a g r e e m en t t o w h ic h h o p e f u l l y o t h e r n a t i o n s c a n an d w i l l a g r e e an d w it h w h ic h t h e U.S. c a n l i v e an d a b i d e b y w i t h o u t d e t r im e n t t o i t s v a r i o u s i n t e r e s t s an d i t s t e c h n o l o g i c a l and i4.A I t i s t r u e t h a t t h e P e l l d r a f t w as o r i g i n a t e d b y a S e n a t o r an d had e x p o s u r e t o S e n a t e h e a r i n g s . H o w e v e r , i t w a s , an d i s , a o n e man e f f o r t an d i t h a s n e v e r b e e n a c t e d u p o n b y t h e S e n a t e . 224 world leadership. It represents many views and compromises. Of passing interest is the fact that none of the model treaties is very old. Only about a two year span of time separates the oldest and newest. The Borgese draft, the oldest, was published in October, 1968, and the newest, the Danzig revised draft, in January, 1971. Also of note is the fact that while both the Pell and Danzig drafts have undergone considerable analysis and revision, the U.S. and Borgese have undergone no revisions. The treaties vary considerably in scope. All rec ognize a band of water and seabed adjacent to the coast line of littoral states and islands as coming under na tional sovereignty, although the exact extent of these bands varies reflecting the lack of international agree ment on the width of territorial seas and continental shelves. The major item of comparison concerning geo graphical scope is that the Borgese and Pell treaties include provisions for the high seas water column as well as for the international seabed. The U.S. and Danzig drafts limit themselves to the international seabed.^ 4 * 5 •'For a minor exception in the Danzig Treaty see Item III D in the Geographical, Temporal and Resource Scopes ... section above. 225 The latter two appear more amenable to international agree ment in this respect since the complex questions of free dom of the seas, navigation, transportation and above all fishing rights, grounds, and conservation are avoided. Of note is the fact that none of the treaties deal with the 46 air column over international waters. There appears to be little or no comparative sig nificance in the temporal scope of the treaties. All seem to imply that there will be no termination date for the particular treaty or convention and this is as it should be, unless a trial period is ultimately decided 47 upon. Of significance, timewise, is the fact that the U.S. draft is the only one that contains a transition section which would protect existing seabed developments and projects. This would appear to be a deficiency in the other three treaties. In the area of the resources and their scope in cluded under the four treaties, all of the treaties seem to be defective in that they lack precision of definition 46 Although Borgese includes the air column in the definition of Ocean Space. See fn. 26 above. ^The Final Clauses Section (Art. 78) of the U.S. treaty is yet to be written. 226 as to the inclusion (or exclusion) of certain types of resources. The Borgese draft omits mention of in-solution and in-suspension minerals and chemicals. The Pell draft is vague regarding vegetal resources and omits chemicals. The U.S. Convention, although it is perhaps the most pre cise of the four, does not explicitly define living re sources of the seabed nor are vegetal and certain in solution and in-suspension mineral and chemical sea re sources clearly defined as being included. It fails to clearly define seabed resources. The Danzig draft is very general in its definition of resources covered by its pro visions, using such terms as "the resources of the Ocean Bed" and the "non-living resources of the high seas." Since the prime purpose of these draft treaties is aimed at control over the exploration for and exploitation of ocean resources, it is believed that the resources inten ded to be governed by their provisions should be precisely defined. Of note in this connection is the fact that some ocean resources, even exclusive of high seas living re sources, which should be covered by the provisions of such a treaty are not located on or in the seabed and its sub soil. Thus, the capability to neatly package all ocean resources which should be covered by international treaty in an exclusively seabed and subsoil treaty becomes dubious. 227 48 Perhaps the Danzig approach in this matter has merit. As mentioned in item IV above, the form of such a treaty as is being treated herein is of relatively minor importance. However, Table I is of comparative interest in this matter and the organization of the text into natural and easily digested divisions is important for clarity. In this respect the Pell treaty appears to be deficient in that the powers and functions given to the Licensing Agency are scattered throughout the treaty's text. This makes it time consuming and distractive for the reader to ferret out these various functions and pow ers. The legitimacy (as defined in item V above) of the various draft treaties appears in each case to stem from the United Nations, at least to some degree. The Borgese treaty emanates from, but is supposed not to be, a part of the U.N. The Pell draft is offered as a treaty outside the framework of the U.N. but in operation it would be a "creature" of the U.N. The U.S. Convention is offered as a "Draft United Nations Convention ..." but it would be in reality independent of the U.N. in its functioning and UR See Danzig Art. XIII A (vii) and Item III D. (Resources) above. 228 authority. The Danzig treaty, though an international treaty among sovereign states, would set up a "creature" of the United Nations. The autonomy (as defined in item V above) of the several treaties varies greatly. Of the four drafts only the U.S. draft appears to set up an organization and oper ation that is autonomous. The other three would in fact be subjected to U.N. influence and direction. Next to the U.S. draft the Borgese treaty is perhaps the most autono mous. The Pell and Danzig treaties will, it is apparent, be enmeshed with U.N. affairs to the extent the U.N. de sires to so enmesh itself. Since the approach of all four treaties is the same (i.e. the international regime approach) there exists practically no basis for comparison in this respect. Of the four treaties it might be said that the U.S. draft champions and protects the rights of sovereign nations and of entrepreneurial efforts to a greater extent than the others, and that the Borgese draft champions the interna tionalist view with the other two falling in between these two stances. Table 2 comparatively summarizes the four draft statutes relative to desired treaty objectives. This shows that only the U.S. draft adequately satisfies all 229 objectives and that the Danzig draft least satisfies them, with the Pell and Borgese drafts showing some weaknesses. It can be argued with merit that the list of objectives was drawn up by U.S. government officials in support of the U.S. draft and presented to the U.N. Seabed Committee in conjunction with the submission of the U.S. Convention to that committee, and that therefore the list favors the U.S. draft. However, the list of objectives was adopted by the U.N. Seabed Economic and Technical Committee for evaluation purposes so it must be credited as having merit for evaluation. The structural organization called for by the vari ous draft statutes varies quite widely, both in the organ izational set up prescribed and in the degree of detail with which each treaty describes and prescribes it. Table 3 gives a side by side comparison of various fea tures of each treaty's structural organization obviating the necessity of repeating it here. It is of interest to note that all but the Pell draft call for some sort of representational legislative organ» all call for executive and judicial organs and only the Borgese and U.S. prescribe an administrative organ and provide for regional arrange ments. Only the Borgese draft specifically provides for a planning organ as such and only the Pell treaty pre 230 scribes means for enforcing treaty provisions other than through judicial and administrative means. In general, membership entitlement in all treaties is about the same, although the Borgese treaty has an Individual (i.e., a person) Membership. The Pell and Danzig drafts appear to be weaker than the Borgese and U.S. drafts in prescribing a structural organization. The matter of actual enforce ment seems to be a weakness in all of the treaties. Pell's Sea Guard notwithstanding. This subject will be addressed in a later chapter. There appears to be little of comparative value re garding the issuance of licenses. All four treaties re quire licensing for exploration and exploitation and, as a consequence, also registration of claims, although pro cedures and boundaries within which licensing is required varies. Likewise all four treaties provide for the dis semination of information, although the Danzig draft is not specific on this point. Required reports (see Table k) are revealing in that they give an insight into autonomy (or lack thereof) and as to what external organization(s) the machinery of each draft treaty may be beholden or influenced by. In this respect the Borgese and Pell organizations report to the United Nations, the U.S. organization reports to no 231 outside organization, and the Danzig provides for only two reports, both of which are internal. In the case of the Danzig treaty, in view of its organization being for all practical purposes a United Nations agency, it is felt that reports to the U.N. will be required and that the treaty as written is non-explicit regarding reports. Concerning the provision for parties to the trea ties being able to withdraw from the treaty of which it is a signator, only the Danzig draft contains no such provision. The Borgese, Pell and U.S. drafts contain with drawal clauses that are very much the same except in minor detail. Let us now turn to an examination of some of the other aspects and considerations by which such treaties should be measured, compared and judged. CHAPTER VIII POLITICAL AND LEGAL ASPECTS Politics is the science of exigencies. — Theodore Parker Laws which are in advance of public sentiment are generally but a dead letter. — Tryon Edwards Some thirteen years have passed since the 195& Geneva Conventions concerning the sea were hammered out. and it has been four years since Ambassador Pardo intro duced his now famed resolution suggesting future prin ciples for the governance of the seabeds. Recorded in the background chapters of this paper are the highlights of the evolution of the law of the sea and of the more recent developments regarding the seabed and its resources. We are now in "the articulation state" of the debate concern ing the latter.1 This articulation has served to surface and focus Robert L. Priedheim, "Understanding the Debate on Ocean Resources," Occasional Paper No. 1 of The Law of the Sea Institute, February 1969, p. 2. Friedheim borrowed the term "articulation" from Michael Haas' article, "A Functional Approach to International Organization," The Journal of Politics. Vol. XXVII, No. 3 (1965), p. 502 wherein Haas defines it as "... the stating of a demand on a political system." 2 3 2 233 on many issues and problems involving sovereign states, long accepted sovereign rights and prohibitions embodied in the existing political-legal regime governing ocean space and its resources, and the national interests and foreign policies of the various governments of the world's states. It has likewise served as an opportunity to pre sent the views and proposals of those who advocate ven turing beyond the nation-state into the comparatively unknown realms of such theories and activities as world government, political functionalism, supranational powers, and international moral and social obligations. Further it has revealed that all aspects of the law of the sea and of current developments in ocean space are close to the central nerve of the world's power structure. At the root of the fundamental problem is the gen eral recognition that the existing political-legal regime for the governance of ocean space and its resources is not adequate satisfactorily to cope with new developments and the urgency to keep pace with the rapia and multiple ad vances in ocean science and technology. This urgency is exacerbated by the political polarization of the positions and fears of the "have-not nations" on the one hand and of the "have nations" on the other, as described in Chapter Of over-riding world concern is the desire to have a political and legal ocean regime which will prevent, or at least tend to avoid, conflict among nations. Diffi culty in this worthy endeavor arises from the fact that the ocean is global while sovereign governments are not. Rules, principles and procedures enforced by governments are essential for the exploitation of any resources whe ther on the land or in the sea. It is governmental acti vity of various kinds and degrees that provides the secu rity of title and of operation which permits resources to be located, harvested, developed and used. However, gov ernments have difficulty in guaranteeing property rights over ocean and seabed resources located beyond the areas of their national jurisdiction. Hence, claims to sea and seabed areas by governments are inclined to grow. This runs counter to the aspirations and desires of other gov ernments and inspires other governments to make similar, and usually greater, claims. This in turn leads to fric tions between national interests and may well provoke actual conflict, or, as a minimum, international irritants. 2 See also Friedheim, Ibid.. pp. 2-7. 235 Thus, international cooperation and supranational regula tion in ocean space are indicated to avoid conflict between governments. However, nationalism as embodied in the nation-state system generally rebels against supranational- ism. The rapid post World War II developments in deep ocean science, technology, and exploration which have ren dered the recovery of gas and oil from beneath the seabed profitable and whetted the hopes and expectations of many nations for great wealth to be had from the seabed, has added a third dimension to the sea which is not yet ade quately covered by this framework. The future march of ocean science and technology can be clearly seen, but the future development of the political-legal framework to provide for the orderly development and regulation of this march is as yet not clear. The 1958 Geneva Conventions helped some but the failure to delineate precisely the seaward limit of coastal state jurisdiction and to settle the fishery jurisdiction issue, the extension of the width of territorial waters and seabed jurisdiction by many coastal states, the lack of sufficient knowledge upon which to base sound long term decisions, the previously mentioned "have"/"have not" nations split, and other such unsettling conditions have served to make the legal and 236 political framework of the ocean unstable. This insta bility and the various reasons which are contributing to it have placed in jeopardy and uncertainty such time hon ored rights as the right of peaceful commerce to pass through and over straits and marginal seas between parts of the high seas, the rights of warships and military planes to transit international straits and the air space above them in innocent passage, and the right of bona fide - a research vessels to do research on the high seas. Thus the instability has increased the potential for conflicts and the risks for ocean ventures. One of the basic international politico-legal is sues involves the question of the unclear or "rubber" boundary which the 1958 Geneva Convention on the Conti nental Shelf set up to delineate the seaward limit of national jurisdiction over the seabed versus the kind and type of principles and international machinery which will be set forth to govern the international seabed beyond this limit. Any agreement on this issue is bound to af fect most of the other outstanding oceanic issues, and •^See U.S. Congress, Senate, Committee on Foreign Relations, Subcommittee on Ocean Space, Activities of Nations in Ocean Space. Hearings, 91st Cong., 1st Sess. July 2k, 25, 28 & 30, 1969, pp. 269-70. 237 there are great differences of opinions and different effects on the national policies and interests of the various nations. For example, coastal states having ex tensive continental margins are loath to jeopardize their claims to seabed resources contained therein or their na tional security by agreeing to a narrow continental shelf, unless these interests are reasonably protected by the incorporation of complex rules into the text of any ocean regime they become a party to. They are distrustful of "leaving such responsibilities to the whims of an adminis trative organization such as may be established by an i i ocean regime." Landlocked countries would generally favor a more authoritarian international seabed control and narrow continental shelves, both of which would be of the most benefit to such states. Coastal states with little or no continental shelves might hold views similar to landlocked nations or might perhaps make compensatory type claims to water areas and living resources such as various South American nations have made.^ l i U.S. Congress, Senate, Committee on Commerce, Spe cial Study on United Nations Suboceanic Lands Policy. Hear ings, 91st Cong., 1st Sess., Sept. 23, 2k, Oct. 3 and Nov. 21, 1969, P. 111. ^For further and more detailed presentation of such 238 It is not the intent in this brief introduction to the world’s complex and multi-faceted political and legal oceanic issues and problems to attempt to present and dis cuss them in detail or even to present all of them. Rather it is intended, as a prelude to this chapter, to give the reader some insight into the depth, scope, multiplicity and intertwining of them. As mentioned in Chapter V, the primary focus of this analysis is on the United States governmental and non-governmental points of view in ob taining an international agreement for controlling the seabed and subsoil beyond the limits of national jurisdic tion and their resources. Therefore many related and im portant issues such as those involving international straits, marginal seas, navigation and fisheries are not given coverage. The primary purpose of this chapter is to briefly set forth various selected political and legal issues, and in each case to examine the four draft treaties under views and interest see ibid.. pp. 102-124» Congressional Hearing, Activities of Nations in Ocean Space. &q. cil., passim (particularly pp. 85-97)1 and E.D. Brown, "Our Nation and the Seai A Comment on the Proposed Legal-Poli tical Framework for the Development of Submarine Mineral Resources.** a paper read at the 4th Annual Conference of the Law of the Sea Institute, June 23, 1969. See Confer ence Proceedings, Lewis M. Alexander, ed., pp. 20-35. 239 study to determine Dy comparison if and how each treaty taxes the issue into consideration and provides for it. Although the chapter is divided into a political and a legal section, issues are overlapping and hence there are facets of each category which are given coverage in the other. In the case of international principles designed to guide ocean space regulation and regime, such prin ciples are designed to give guidance to all phases of an ocean regime — legal, political, military, economic, sci entific, pollution, and conservation. However, in order to keep coverage of these principles together as a unit the entire list of them as given in U.N. Resolution A/27^9 (XXV) is treated in the political aspects section which immediately follows. Political. Aspects In addition to the general principles this section will give comparative coverage to such items as assump tion by the United Nations of title to and control over the seabed and its resources which lie beyond the limits of national jurisdiction, the international seabed bound ary, existing treaties, the problem of islands, and poli tical and professional representation and procedures called for by the different draft treaties. As in the 2 if0 previous chapter much of the data is presented in a tabu lar or semi-tabular form under numbered and titled topics or issues. Also as in the previous chapter the article numbers refer to the pertinent article numbers of the particular treaty under discussion unless otherwise noted. I. Principles for the Governance of the Seabed and the Ocean Floor, and the Subsoil thereof. Bevond the Lim its of National., JnEisfllc.tlon* From the very inception of the concept of a seabed regime it was recognized that one of the first steps in building such a regime would have to be a general agree ment within the international community on a set of prin ciples under which such a regime would operate. Interna tional conferences, governments, legislatures, the U.N., nongovernmental organizations and individuals all contri buted ideas and recommendations for such principles. On December 17* 1970, by a vote of 108 in favor, none against, and Ik abstentions (including the Soviet Union Bloc) a rather comprehensive General Assembly resolution declaring such principles was passed.^ 6U.N. Doc. A/Res/27^9 (XXV), December 17, 1970. See Appendix XXI. This Resolution incorporates the four principles set forth in Ambassador Pardo's draft resolu tion of August 1967. 241 Although only the Danzig Treaty post dates this resolution (and It just barely does so), it is deemed fitting to use the principles set forth in the resolution as a "yardstick" against which to comparatively measure each selected draft treaty. This is done immediately be low by listing verbatim each principle in order by number and showing thereunder each treaty's coverage or lack 7 thereof. "1. The sea-bed and ocean floor, and the subsoil there of, beyond the limits of national jurisdiction (here inafter referred to as the area), as well as the re sources of the area, are the common heritage of man kind." A. Borgese. — Supports. (See Art. II A.2 & 3.) B. Pell. — Supports. (See Preamble, 2nd & 9th paras. A Art. 1.) C. U.S. — Supports. (See Art. I 1 & Art. 2.) D. Danzig. — Supports by general intent but the term "heritage of mankind" is not used and ownership of ocean bed resources and of high seas non-living resources and jurisdiction thereover is given to the U.N. (See Preamble, 2nd & 3rd paras., Arts. I, II and III.) 7 'Wolfgang Friedmann, The Future of the Oceans (1971). pp. ©2-77 gives an interesting account of the development of the principles incorporated in the Resolu tion noted in fn. 6 supra. 2k2 "2. The area shall not be subject to appropriation by any means by States or persons, natural or juridical, and no State shall claim or exercise sovereignty or sovereign rights over any part thereof." A. Borgese. — Supports. (See Art. IIA.2) B. Pell. — Supports. (See Art. 3.) C. U.S. ~ Supports. (See Art. 2.) D. Danzig. — Supports. (See Art. III.) *3. No State or person, natural or judicial, shall claim, exercise or acquire rights with respect to the area or its resources incompatible with the interna tional regime to be established and the principles of this Declaration," Since U.N. General Assembly Resolution 27^9(XXV) post dates the draft treaties (with the possible exception of the Danzig Treaty) and since "the international regime to be established," mentioned in this principle (above), has yet to be established this facet of the principle does not lend itself to use by this paper as a "comparative yardstick". However, the portion that pertains to claims which run counter to the Declaration's principles does furnish ground for comparison. The comparison as to support for these principles is as followsi 243 A. Borgese. — Supports (See Arts. I and II) B. Pell. — Supports (See Preamble particularly and Arts. 1-10| 13» 19» 22| 25» 26» 30» 31» and 35) C. U.S. -- Supports (See Arts. 1-13 and 22-25) D. Danzig. — Supports (See Preamble. Arts. I-XII) In this comparison it is of interest to note that the U.S. treaty is the only one calling for a trusteeship by the adjacent coastal nation over portions of the seabed beyond national jurisdiction. Although given legality by virtue of inclusion in the treaty it none- the-less does give the coastal state a special claim in a portion of this otherwise international seabed area. "4. All activities regarding the exploration and ex ploitation of the resources of the area and other re lated activities shall be governed by the international regime to be established." This principle is also not applicable to this paper for the same reason concerning the international regime as given under Principle No. 3 immediately above. "5* The area shall be open to use exclusively for peaceful purposes by all States whether coastal or land-locked, without discrimination, in accordance with the international regime to be established*" 244 NOTEi The following comparisons cannot specifically con sider the last phrase of principle No. 5 above, since the specified regime is not yet established. However it is assumed that it will be based on previously agreed to U.N. principles. A. Borgese. — Supports. (See Arts. IIA 3*4, B.6*7» V B.li VII ?i and XV.) B. Pell. — Supports. (See Preamble 2nd para.» Arts. 5.6,13.25.26 and 27.) C. U.S. — Supports. (See Arts. 3 and 4.) D. Danzig. — Supports. (See Preamble 2nd para., Arts. II, IV and V.) "6. States shall act in the area in accordance with the applicable principles and rules of international law including the Charter of the United Nations and the Declaration on Principles of International Law con cerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970, in the interests of maintaining international peace and security and promoting international co-operation and mutual understanding," NOTE1 Since the "Declaration on Principles of Interna tional Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United 245 Nations" was not adopted by the U.N. General Assembly until after the Borgese, Pell, and U.S. draft treaties were published, this feature of Principle No. 6 is not applicable for the comparative purposes of this paper. A. Borgese. — Supports. (See Arts. II A. 3.4 and B.5t IV 2| V B.li and XV.) B. Pell. — Supports. (See Preamble 4th para.t Arts. 2,5,7 and 25.) C. U.S. — Supports "maintaining international peace and security and promoting inter national cooperation and mutual under standing." Gives but meager support to acting "in accordance with princi ples and rules of international law ....* Gives no support to acting in accordance with the Charter of the United Nations. (See Arts. 3*4,6,7» 8,11(3),21,23.24,46.) D. Danzig. — Supports. (See Preamble 4th, 5th and 10th paras.i Arts. I, II and IV.) "7* The exploration of the area and the exploitation of its resources shall be carried out for the benefit of mankind as a whole, irrespective of the geographic location of States, whether land-locked or coastal, and taking into particular consideration the interests and needs of the developing countries," A. Borgese. — Supports. (See Arts. II A.2,3, B.5,6, 7.8,9» IV» V B.lt VII* XII A.) B. Pell. — Supports. (See Preamble 3rd, 4th, 9th and 10th paras.i Arts. 1,2,3*4,5.) 246 C. U.S. — Supports. (See Arts. 1,3*5*24.27(2) g and Appendix D, para. 3») D. Danzig. --Supports. (See Preamble 2nd-5th and 10th paras.i Arts. I, II, IV and XIII.) "8. The area shall be reserved exclusively for peace ful purposes, without prejudice to any measures which have been or may be agreed upon in the context of inter national negotiations undertaken in the field of dis armament and which may be applicable to a broader area. One or more international agreements shall be con cluded as soon as possible in order to implement effec tively this principle and to constitute a step towards the exclusion of the sea-bed, the ocean floor and the subsoil thereof from the arms race." A. Borgese. — Supports. (See Arts. I, II A.4 and B.13i V A.13 and B.li and XV.) B. Pell. — Supports the "peaceful purposes” aspect. Does not support that por tion referring to disarmament meas ures. (See Preamble 4th para.i Arts. 5.13.25-27.) C. U.S. — Supports the "peaceful purposes" aspect. Does not support that por tion referring to disarmament meas ures. (See Art. 4.) D. Danzig. — Supports the "peaceful purposes" aspect. Does not support that por tion referring to disarmament meas ures. (See Preamble 2nd para.1 Arts. IV and V.) 247 "9. On the basis of the principles of this declaration, an international regime applying to the area and its sources and including appropriate international machin ery to give effect to its provisions shall be estab lished by an international treaty of a universal char acter, generally agreed upon. The regime shall, inter alia, provide for the orderly and safe development and rational management of the area and its resources and for expanding opportunities in the use thereof and insure the equitable sharing by States in the benefits derived therefrom, taking into particular consideration the interests and needs of the developing countries, whether land-locked or coastal,” The above is more a statement of intent rather than a principle. Although the international regime called for by it has not been established the following compar isons are made relative to the various items which the principle states that the regime will include« A. Borgese. — Supports (See Arts. I, II, IV, VIII- XIII, A XVIII.) B. Pell. — Supports (See Preamble and Arts. 13, 16a, 16b, 35-39.) C. U.S. — Supports (See Arts. 1,2,5.7-11,13.20, 22,24 and 31-65.) D. Danzig. — Supports (See Preamble and Arts. II-IV, VII, IX, and XIII-XV.) 248 Of note in these comparisons is that the Pell treaty is vague and lacks definitiveness as concerns the interna tional machinery it prescribes, whereas the other three treaties are definitive and detailed in this respect. ”10. States shall promote international co-operation in scientific research exclusively for peaceful pur poses i (a) By participation in international programmes and by encouraging cooperation in scientific research by personnel of different countriesi (b) Through effective publication of research pro grammes and dissemination of the results of research through international channelst (c) By co-operation in measures to strengthen re search capabilities of developing countries, including the participation of their nationals in research pro grammes. No such activity shall form the legal basis for any claims with respect to any part of the area or its re sources,” A. Borgese. — Gives general support but is lacking in specific support for all portions of Principle No. 10. (See Arts. II B.5, 9-11» IV 1-2i V A.5-7 and B 4-5j IX B.4 and D.i X C.,0.,E.&G.i XII 1—5I and XV B.l.) 249 B. Pell. — Give8 support to the first and last phases of Principle No. 10 but no spe cific support to the (a), (b) and (c) portions. (See Preamble 4th para.i Arts. 4( 16(d) and (e), 25(2)(A), and 26. ) C. U.S. — Supports in full. (See Arts. 2,3,4, 5(2),24,25,401 and m, 62c, 68j and 1.) D. Danzig. — Supports all portions of Principle 10 except (b) and (c) for which portions support is lacking. (See Preamble 3rd and 4th paras.i Arts. II. Ill, V, X, XI, XIII A.(v) and (viii). "11. With respect to activities in the area and acting in conformity with the international regime to be es tablished, States shall take appropriate measures for and shall co-operate in the adoption and implementation of international rules, standards and procedures for, inter aliai (a) Prevention of pollution and contamination, and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment! (b) Protection and conservation of the natural resources of the area and prevention of damage to the flora and fauna of the marine environment*” A. Borgese. — Supports. (See Arts. IIA., B.6-13* IV 6» V A. and D.t IX E.3 and 5i XC.t XII G.li XIVi XV.) 250 B. Pell. -- Supports. (See Preamble, 3rd, 8th, 9th and 10th paras.t Arts. 5.6,9,11,12, 15,l6(a)(v), 16(c),(d),(e), and (f)l 19,21,28,29,31.3**.) C. U.S. — Supports. (See Arts. 5(2),11,19,20, 23,25,27, 1*0 d,i,i,k,l,m and m 1*1 a and bf lf2,l*3,1 *l*(2)b,c and d» 52,58,59, 68(l)d,e,g,i and m 73(2)b| Appendix A, Sections 2.1, 3.2, 12.1» Appendix C, Sections 10.1 and 11.1.) D. Danzig. — Supports. (See Arts. VI, VII, IX, X, XIII A(ii), (vi), (vii) and (viii).) ”12. In their activities in the area, including those relating to its resources, States shall pay due regard to the rights and legitimate interests of coastal States in the region of such activities, as well as of all other States, which may be affected by such activities. Consultations shall be maintained with the coastal States concerned with respect to activities relating to the exploration of the area and the exploitation of its resources with a view to avoiding infringement of such rights and interests#" NOTE1 Since Principle No. 12 concerns the actions of individual States or groups of States vis a vis one another it is only implicit in its application to re gime requirements. Thus the draft regimes are compared below on the manner in which their provisions demand or encourage states to take the actions specified in this principle. 251 A. Borgese. — Supports. (See Arts. IIB, IV 8, V A and D, VII 7, XII, XIV 4 and 5. XV B and D.) B. Pell. — Supports the "due regard" phrase, but the "consultation" phrase is not clear ly supported. (See Arts, lit 16(c), (d) and (e)t 18I 19i 20t and 27.) C. U.S. — Specific support is generally lacking although support for the "due regard" phrase is implicit in Chapter III of the Treaty. (See Arts. 1(5), 8, 11, 19, 21, 24, 27, 28, 30, 40j, 43(2)b, 53(1), 69i Appendix A para. 9t Appen dix C subpara. 2.1, paras. 7 and 8.) D. Danzig. — Specific support is lacking. Some general and implicit support is given to the "due regard" phrase but none is f iven the "consultation" phrase. See Arts. IV, VII, IX, XI, XIII A. (iii)•) "13* Nothing herein shall affecti (a) The legal status of the waters superjacent to the area or that of the air space above those waters» (b) The rights of coastal States with respect to measures to prevent, mitigate or eliminate grave and im minent danger to their coastline or related interests from pollution or threat thereof resulting from, or from other hazardous occurrences caused by, any activi ties in the area, subject to the international regime to be established," Since this principle applies to the resolution of which it is a part, it will not be used for comparisons. 252 In connection therewith, however, the following are of interest to notei A. Borgese. — This treaty defines "ocean space" as including "the high seas, the terri torial waters, and contiguous zonesi the atmosphere above iti the continen tal shelft the seabed and what is be low it." (Art. Ill 1.) It stipulates that the Regime "shall provide a frame work for the future pattern of inter national organization" (Art. II C.). Its objectives in "ocean space" call for, inter alia, acceleration and en largement of research and exploration of "ocean space" and of the contribu tion to the world's economy of ocean resourcest coordination of the activi ties and plans of U.N. and other spe cial agencies and organizations in "ocean space"i and promoting the de velopment and harmonization of maritime law and international law relating to "ocean space" (Art. IV L,2 and 8). Further the Regime is authorized to regulate, supervise and control all activities on the high seas and on or under the seabed (Art. V A.l), to regulate fisheries (Art. V A.4), issue regulations re pollution in "ocean space" (Art. V A.6), and impose fines (Art. V A.10). In view of the above and similar type provisions, and al though exploitation and exploration are to conform to international law (Art. II A.4), it appears obvious to this writer that this Regime would affect both (a) and (b) of Principle No. 13* since it calls for various actions on the part of the Regime in the all incite sive "ocean space" area. B. Pell. — Although the Pell treaty includes "the waters of the high seas, including the superjacent waters above the continen tal shelf" and outside of territorial waters as well as the seabed beyond national jurisdiction (see Preamble, 253 1st para.)* and could therefore affect the legal status of the high seas, it is believed that the provisions of the treaty as written uphold the legal status of the waters above the seabed and the rights of coastal states. (See for example Arts. 2, 4-7, 9*11* 16(c) and (d), 17(5) and (18), 28 A 29.) C. U.S. — The U.S. treaty applies only to the international seabed and its subsoil. Article 6 of this treaty is almost identical to the "(a)" portion of Principle No. 13* Articles 4, 7-11. 1% 21, 23 and 26-2.8 give ample protection to the rights of coastal states as called for in the "(b)" portion of the principle. D. Danzig. — The Danzig treaty, although designed to apply almost wholely to the inter national seabed and its subsoil, none- the-less has provisions that apply to the high seas. However, it is believed that there is ample provision made to safeguard the items mentioned in Prin ciple No. 13. (See Arts. I, II, IV, V, IX, X, XIII, and XIII (iii).) "14. [a] Every State shall have the responsibility to ensure that activities in the area, including those relating to its resources whether undertaken by govern mental agencies, or non-governmental entities or per sons under its jurisdiction, or acting on its behalf, shall be carried out in conformity with the interna tional regime to be established. £b] The same responsibility applies to interna tional organizations and their members for activities undertaken by such organizations or on their behalf. 2 5 4 [c] Damage caused by such activities shall entail liability.- NOTEi The below comparisons are based on the premise that "the international regime to be established" called for by Principle No. 14 above is the particular treaty under discussion — viz., Pell, U.S. etc. The bracketed lettering has been inserted by the author for ready ref erence . A. Borgese. — B. Pell. — Supports. Supports. Supports. and VI.) Supports. Supports. (See Art. II B.6 and 7.) (See Art. II B.8.) (See Arts. V A.10 k 12» (See Art. 6.) (See Art. 6.) C. U.S. — D. Danzig. ~ Specific support is lacking. Ar ticles 21-24, and 34 give indica tions that some liability might be expected. [a] Supports. (See Art. 11(1), (2) and n <3).) [b] Does not support. According to Art. 10 only states, groups of states or nationals of states may explore and exploit the Interna tional Seabed Area. [cl Supports. (See Art. 11(4) and (5). and 55(2).) Ta] Supports. (See Arts. VII and XII.) [bj Implicit support only. (See Art. XII.) [c] Supports. (See Art. VI.) "15* The parties to any dispute relating to activities in the area and its resources shall resolve such dispute by the measures mentioned in Article 33 of the Charter 255 of the United Nations and such procedures for settling disputes as may be agreed upon in the international regime to be established." NOTEi Article 33 of the U.N. Charter calls upon par ties to a dispute which may endanger international peace and security to settle their dispute by any of the several peaceful means available to them, or, when deemed necessary, by a call for settlement by the Secu rity Council. A. Borgese. — Supports. (See Arts. V A.12, VI 2, VII 6 and 7, and Art. XIII.) B. Pell. — Supports. (See Arts. 5.6,12,22-24 and 31.) C. U.S. — Supports. (See Arts. 1,12,26,30 and 46-60.) D. Danzig. — Supports. (See Arts. IV, VI, XIII A(vi) and XIV.) In order to present a clearer (although over sim plified) comparison the treaties and their support, or lack thereof, for the above listed principles are presen ted on the following page in tabular form. II Intemational/ftational Seabed Boundary In the introduction to this chapter the basic issue of international seabed boundary versus type of interna tional ocean regime was discussed. Topic III of Chapter VII gives the geographic scope of each draft statute. At first glance it might appear that the four model treaties 256 TABLE 5 SUMMARY OF DRAFT TREATIES’ SUPPORT FOR VARIOUS U.N. RESOLUTION A/2?if9(XXV) PRINCIPLES PRINCIPLE NUMBER PRAfI TREATY ________________Bgr&ggfi____ ggll. , Danzig 1 2 3(“) k 5(-) 6(-) 7 8(-) 9(~) 10 11 12 13 r „ I 4 f > c' 15" yes yes yes some yes yes yes yes yes yes yes yea yes yes yes yea yes yes some yea yes yes yes yea yes some some some yes yes yes yes some some yes some yes yes yes yes yes some some some mmm yes yes yes ye 8 yes yes no some yes some yes yes yes yes yes yes NOTESi 1. The numbers in the left column correspond to the principle numbers as given above and in the U.N. Resolution. A minus sign, (-), by a prin ciple number indicates that a portion of the prin ciple so designated was not considered in the comparisons for reasons given in the text above. 2. In the Draft Treaty columns "yes" indicates the treaty supports the principle "no" indicates no support, and "some" indicates some but only partial support or a degree of support exhibited through generalities but with specific support weak or lacking. 3. Blanks indicate that principle was not used for comparative purposes due to reasons given in text above. 257 should be compared as to the manner in which they satisfy this basic issue. However, since this would entail get ting into the realm of what regime would be acceptable to the many countries of the world and hence invoke pure spec ulation on the part of the writer, he deems it proper to avoid this type of comparison and to leave the matter to the realm of opinion. Therefore he has presented below in tabular form a simple side by side comparison of the inter national seabed boundaries called for by each treaty. h i . The Island Er<?ftlsa It will be recalled from the Chapter III background that the 1958 Geneva Continental Shelf Convention left the world with an unclear definition of the limit of national jurisdiction over the continental shelf in which the limi tations of adjacency and depth (i.e., the 200 meter iso bath) were rendered ineffective by the inclusion of the exploitability criterion. This criterion has proved to be the starting point for an expansion of claims outward and downward which have endangered the concept of the conti nental shelf as a legally meaningful limitation on national sovereignty and rights under the sea. Compounding the confusion was another clause in the Convention which gives separate continental shelves "to the seabed and subsoil of similar submarine areas adjacent to 258 TABLE 6 Outer Limits of National Jurisdiction over the Seabed As Prescribed in Draft Treaties Treaty Outer Limit Depth* Distance Intermediate Zone Provided For Applicabli Treaty Articles Borgese 200 m. or 50 mi.2 No 111(3) Pell 550 m. or 50 mi.-^ No 30 U.S. 200 m. - — k Yes^ 1,26 Dftnslg ?Q9 nu. - 6 No7 -..LX2II NOTESi 1. Denotes first depth in waters adjacent to coast (in meters). 2. Whichever is farther. Miles (type not specified) are to be measured to seaward from territorial sea measurement base lines. 3. Whichever results in the greater area of conti nental shelf. Miles (type not specified) are to be measured as in Note 2 above. However, no state or island may have a seabed greater than its area (exclusive of its territorial sea). 4. Provision for straight line boundaries and trenches could cause minor deviations. Miles are specified in nautical miles. 5. Zone specified is between the outer limit of national jurisdiction and points beyond the base of the continental slope to where an as yet to be agreed upon gradient exists. 6. Beyond the first depth of 200 meters but outside the territorial sea. 7. However, adjacent coastal states are to receive 50£ of excess income derived from the area be tween the edge of the continental shelf and 50 miles (type not specified) from the coast as measured from the territorial sea measurement base line. 259 the coasts of islands*" This leads to the possibility of many tiny islands having sovereign rights over large shelf areas often many times their size. Further, quite a few of these islands belong to such nations as Britain and France which in effect gives these countries sovereign rights over many and large shelf areas remote from these coun- Q tries themselves. To demonstrate this incongruity, Fran cis T. Christy, Jr. and Henry Herfindahl in 196? prepared for the Law of the Sea Institute a map of the seabed of the world as it would look if the national boundaries of all seabed areas were extended out to the median point of the adjacent coastal states and islands. The result, of course, was to turn the seabed areas into a series of un related national plots of seabed territory with tiny is lands being one of the bases for vast claims. Thus, since under the current Geneva Convention islands do present a problem, it will be well to see if g PP* 35“39* See also Congressional Hear ings Special Study on United Nations Suboceanic Lands Policy. ££. , p. 131* (See fn.4 supra/) Q This map is included as an insert in the Proceed ings of the Second Annual Conference of the Law of the Sea Institute. June 26-June 29. 1967. Lewis M. Alexander, ed.Also printed in small form in Friedmann, cit., pp. 4-5. (See fn. 7 supra.) 260 and how each model treaty handles it. A comparison is given belowt A. Borgese. B. Pell. — C. U.S. — Provides for islands to have continental shelves10 just the same as for littoral states (see Table 6 above and Art. Ill [3]) Provides for islands to have continental shelves just the same as for littoral states except "In no case, however, shall the continental shelf be considered for such purpose to encompass an area great er than the area (exclusive of territo rial sea) of the State or island to which it is adjacent*" (See Table 6 above and Art. 30) Provides for islands to have continental shelves just the same as for littoral states. (See Table 6 and Arts. 1 and 26.) D. Danzig. — Provides for islands to have continental shelves just the same as for littoral states. (See Table 6 and Art. I.) IV. The Issue of United Nations Control of the Intema- ■ttflnal ..Sgftbgfl wrt Ug RgfigMgsag Ygrews tton-United Nations Control The debate on this issue tends to polarize between those who advocate U.N. seabed control and those fearing U.N. takeover. The former stress the need for an indepen dent U.N. income, peaceful use of the seas, and applying its bounty to the benefit of all mankind. The latter 10The term "continental shelves" as applied to islands is to be interpreted as "island slopes or shelves". 261 point to the weakness of the U.N. and its inability to deal with difficult issues of practical import.^1 Ambas sador Pardo in giving Malta's position in 1967 before a U.S. Congressional Subcommittee hearing went on record as sayingi We do not believe that it would be wise to make the United Nations itself responsible for administer ing an international [ocean] regime. We say this not because we have any objections of principle, but for practical reasons.12 In a 1968 speech he elucidated on these practical reasons as follows1 Serious objections have been made to the United Nations itself assuming responsibility for the ocean floort the United Nations does not have the power to give credible assurance that the ocean floor will in fact be used for peaceful purposes, since action in the Security Council can be blocked by a vetoi a viable regime for the ocean floor must be acceptable to all significant coastal states, but mainland China1’ and other states are not members of the United Nations and could be expected to object to a regime administered by an organization in which they do not participate 1 ^Testimony of Francis T. Christy, Jr., U.S. Con gress, Senate, Committee on Foreign Relations, Hearings, Governing the Use of Ocean Space. 90th Cong., 1st Sees., Nov. 29, 1967, p. 51. 12 U.S. Congress, House, Committee on Foreign Af fairs, Subcommittee on International Organizations and Movements, Hearings, 90th Cong., 1st Sees., Sept. 22f Oct. 10, 19, 25. and 31, 1967. p. 285. 13 ^The Peoples Republic of China became a member of the U.N. in November, 1971. 262 powerful, technologically advanced countries, such as the United States and the Soviet Union, whose acqui escence is essential for the viability of any legal regime established for the ocean floor, would be un likely to give their consent to vast areas in which they have vital interests being administered by an or ganization in which they possess a voting power no greater than that of very small countries, such as mine. Finally the United Nations does not possess the required expertise for management nor is its decision making process such as to give reasonable assurance that the ocean floor, the last frontier of mankind on earth, will be administered in an orderly and efficient manner. On the other hand, in recent years such organiza tions and persons as the Commission to Study the Organi zation of Peace, U.S. Senator Frank Church, the World As sociation of Parliamentarians for World Government, Gren ville Clark and Louis B. Sohn and the World Peace Through Law conferees have gone on record as favoring United Na tions ownership and control of the seabed under the high seas.1^ The relationships and connections with the U.N., or lack thereof, of the organizations to be established by the model treaties under consideration were discussed in some detail in Chapter VII under Topic V — Legitimacy Hi Arvid Pardo, "Whose Is the Bed of the Sea," an address. See the Proceedings of the American Society of International Law (April 1968), p. 225. ■^Friedheim, be. cit.. pp. ^6-^9. (See fn. 1 supra) 2 6 3 an d A u tonom y so such material will not be repeated here. However* since the issue of U.N. control versus no U.N. control over the seabeds is a basic political issue* a tabular comparison which attempts to indicate the degree to which United Nations' control or influence may be exer ted over the seabed beyond the limits of national juris diction under each treaty is given on the following page. V. The Honoring of Existing Treaties and Conventions Treaties* conventions and international law have evolved to regulate the varied uses of the oceans. Many observers now believe that advancing technology* which is bringing seabed resources within man's grasp and whetting his expectations, as well as the needs of the modem world and the advent of weapons of mass destruction, all dictate the necessity for international regulation. Further, many feel that this should take the form of a new rather all encompassing worldwide treaty providing for the establish ment of international regulatory machinery to prevent anarchy in and under the ocean. The draft statutes under analysis are four such treaty models. Obviously such a model will* or may, run counter to existing treaties and conventions. This possibility brings up the question of whether or not provision is made within these draft trea ties to cope with this problem. A brief comparative in- TABLE 7 DEGREE OF UNITED NATIONS CONTROL/INFLUENCE THAT MAY BE EXERTED UNDER THE PROVISIONS OF U.N. Factor Treatyi Boraese Pell U.S. Danila Grants U.N. title to sea bed and/or seabed resources No Actually-No In effect-Yes No Yes Grants or accedes to U.N. control over seabed and/ or resources A little (Through 1st Chamber) Yes No Yes (Through the ocean aaencv) Permits or designates U.N. to administer seabeds and/ o r r e s o u r c e s A little (Through 1st Chamber) Yes No Yes (Through the ocean aaencv) Remits portions of seabed revenues to U.N. No No (No external re cipient speci fied) No Yes Calls for U.N. involvement in enforcement A little (Through I.C.J. Appeal and Lltieation) Yes No 3 Yes Permits U.N. election or appointment of some or all realms nersonnel Yes (Some) Yes No No Regime is or acts as a U.N. agency or entity Yes (Acts to limited dearee) Yes No Yes Reauires r e s o r t s t o U.N. Yes No NOTESi 1. Since Chapter V][I material includes treaty article numbers for the various facets included in this table* they are omitted from the table. 2. I.C.J. is the abbreviation for the International Court of Justice. 3* However* Art. ^6(2) does permit the Tribunal to seek an advisory opinion on international law from the I.C.J. 26k 265 sight into the problem is given belowi A. Borgese. — Article II B13 states in part that "The rights [of Member States engaging in ocean activities] ... shall be subject to the treaty obligations of each Member ...." Thus while the Borgese treaty does not specifically assert that existing treaties and conventions ~ such as the 1958 Geneva Conventions — will be hon ored or will override any conflicting provisions of the draft statute, it does point out to Member States that they should honor their treaty obligations. While this is rather weak support for honoring existing treaties it must be borne in mind that of the Member States there will most likely be some which are not parties to various existing oceanic treaties and conventions. The Borgese statute contains no provisions for a period of transition for Member States to re-arrange or re-negotiate their obligations. B. Pell. — The preamble recalls "the four (1958 Geneva) conventions on the Law of the Sea and an optional protocol of signa ture concerning the compulsory settle ment of disputes ...." Article 10 (which excepts the "seabed and subsoil") is the same as the Borgese statute as concerns Member States' treaty obligations.16 Articles 11, 12, 24, 32 and 36 use cer tain provisions of existing conventions as bases for actions or as authority. However, the comments made above concern ing the Borgese statute's "weak support for honoring existing treaties" and lack Mrs. Borgese states that the entire Section B of Article II of her treaty is essentially an adaptation of Senator Pell's treaty. See Elisabeth Mann Borgese, "The Ocean Regime,- A Center Occasional Paper. Center for the Study of Democratic Institutions, October 1968, p. 25. 266 C. U.S. D. Danzig. of provision for a transition period apply equally to the Pell model. Article 6 provides that "Neither this Convention nor any rights granted or ex ercised pursuant thereto shall affect the legal status of the superjacent wa ters as high seas, or that of the air space above those waters." This article therefore protects from conflict with the U.S. draft convention all but the seabed and subsoil under the high seas. Since the great bulk of treaties and con ventions applies only to the water and air columns of and over the high seas, the U.S. Convention does provide for hon oring such existing agreements. A note to Article 2 (which prohibits national sov ereignty or title in the International Seabed Area) statesi "The preceding Ar ticle is not intended to imply that States do not currently have rights under, or consistent with the 1958 Geneva Conven tion on the Continental Shelf." Article 70 states in part, "Annexes and amend ments thereto shall take into account existing international agreements ... . In particular, existing international agreements and regulations relating to safety of life at sea shall be respec ted." Thus the honoring of existing trea ties appears to have been well provided for. Articles 73 and 7k provide for a transition period, but only as concerns investments and the Tribunal. It will be recalled that unlike the Borgese and Pell treaties the U.S. treaty applies only to the international seabed area. - Article I provides that in event of any inconsistency between this treaty and the 1958 Geneva Convention on the Continental Shelf the Danzig treaty shall govern, but if inconsistency occurs vis a vis the Geneva Convention on the Territorial Sea and the Contiguous Zone the provisions of that Convention shall govern. Article 26? XIII in setting forth the authority of the Ocean Agency re seabed exploration and exploitation statesi Any such exploration and exploita tion rights [granted by the Agency], however, shall be granted in conformity with the purposes and objectives of this Treaty and shall not, except to the extent that this Treaty is incon sistent therewith, interfere with any of the rights of the States Parties to this Treaty derived from the Convention on the High Seas, the Convention on Fishing and Conservation of the Living Resources of the High Seas, and the Convention on the Continental Shelf, adopted ... April 29, 1958* The Danzig treaty concerns itself almost (but not quite) entirely with the seabed under the high seas. In view of this and of the above it appears that this treaty affords good protection for the rights granted under the bulk of oceanic trea ties and conventions, although it does provide for over-riding some of the 1958 Geneva Conventions provisions and it says nothing re bi- and multi-lateral treaties that may exist. No provision is made for a transition period. VI. Ocean Regime Internal Political Factors The polarization of the attitudes, interests, and views of the under developed nations on the one hand and of the technologically advanced nations on the other hand and the reasons therefor were discussed in Chapter IV and briefly in the introduction to this chapter. Obviously no ocean regime treaty is going to be acceptable to all or even a majority of the nations of the world if it does 268 not, through accommodation, compromise, appropriate repre sentation, and fair and specific procedures, mollify the major fears and differences of the various nations. Pre vious comparative analysis has shed light on much of this matter and subsequent analysis will shed more. This topic will therefore limit itself to some of those internal draft treaty features (or lack thereof) which are strictly political in nature and involve representation and voting 17 procedures. Since each model is quite different from the others in these respects, direct comparison is diffi cult to make, but such legislative and executive organs as each model may have are used as the basis for analy- 18 sis. The matter of representation will be examined immediately following, and subsequent to this the subject of voting will be addressed. A. Representation 1. Legislative Organ a. Borgese. — The Maritime Assembly (see Art. IX) is a multicameral assembly system consisting of a political chamber (the First Chamber) and 17 'Some political insights and comments on various proposed ocean treaties are included in Pacem In Marlbu«-2. Proceedings (1971). pp. <H9-W, passim. ^Refer to Table 3, Chapter VII. 269 three functional chambers (the Second, Third and Fourth Chambers). Each chamber is to con sist of 81 delegates whose terms are to be three years with one-third being renewed each year as followsI (1) The First Chamber delegates are to be elec ted by the U.N. General Assembly with the proviso thati (a) Nine members are to be elected from each of nine stipulated world regions. (b) Every U.N. General Assembly representa tive is automatically to be a candidate for First Chamber election (unless his country is not a member of the Ocean Regime). Additionally, up to 27 candi dates for each region sure to be nomi nated by national parliaments, or gov ernments, or regional parliaments, or intergovernmental organizations, pro vided these organizations and govern ments are Members of the Regime. (c) Any Member State, none of whose nation als was included in a regional slate for a three year period, shall have manda- 270 tory precedence in the next election. (2) The Second Chamber delegates, to be elected in a manner yet to be determined, are to represent all segments connected with min ing interests including unions and consum ers. (3) The Third Chamber delegates, to be elected in a manner yet to be determined, are to represent all segments connected with fish ing and fisheries. (4) The Fourth Chamber delegates, to be elected in a manner yet to be determined, are to represent all segments connected with ocean sciences and presumably ocean technology. The Assembly is to meet annually and, when required, in special session. Mrs. Borgese explains that this system is not as complicated as it might seem since. Basically, it proposes a rotating bicameral system, the fulcrum of which is the political (first) chamber. This chamber, however, must act in concurrence with one other chamber, which provides expert knowledge on which deci sions in each case must be based. She goes on to explain that this system does not reduce expertness to a consultative status.1^ 19Borgese, ja*. , PP» 33-3^ (see fn. 16 supra). 271 b. Pell.-- The Pell treaty model does not provide for any legislative organ. c. U.S.— According to Article 34 "The Assembly shall be composed of all Contracting Parties*" Although the term "Contracting Parties" is not defined, it is apparent that these Parties are States. Further, since States must act through representatives, it is assumed that each State will be represented by a delegate and his staff. Thus all member states are afforded representa tion. The Assembly is to meet at least once every three years and in extraordinary sessions as may be required. d. Danzig.— Article XIII B provides that, "Each State Party to this Treaty shall be entitled to one share and one vote as such shareholder *" and that, "The shareholders shall meet once ev ery three years, or sooner upon call of one- fifth of the shareholders•“ 2. Executive Organ a. Borgese.— Article VIII provides for a Maritime Commission of seventeen members who serve for three years and are eligible for re-election. These members are to be selected as followst 272 (1) The outgoing Commission is to designate representatives of the five Member States most advanced in ocean space technology. (2) The Maritime Assembly is to elect twelve representatives of Member States "with due regard to equitable representation ... of developed and developing nations, maritime and landlocked nations and nations opera ting under free-enterprise and socialistic systems ." (3) Any Member State not represented on the Commission may appoint an &£ hoc member when its own vital interests are directly concerned (although no more than four ad hoc members can be seated at any one time). b. Pell.— The executive organ of the Pell treaty is described as "a technically competent licensing authority to be designated by the United Nations and to be independent of any State." (See Art. 13) If any particular system of representa tion is envisioned it is not apparent from the treaty’s provisions. c. U.S.— Article 36 provides that “the Council shall be composed of twenty-four Contracting Parties .. .." and that the members "shall be designated or 273 elected In the following categories." (1) The six most industrially advanced Contract ing Parties so judged (according to Appen dix E) by the Assembly as those six developed states having the highest gross national products. (2) Eighteen additional Contracting Parties, of which at least twelve shall be developing countries. These parties are to be elected by the Assembly, taking into account the need for equitable geographical distribution. Their normal term is three years. At least two of the twenty-four members of the Council shall be shelf-locked or land-locked countries. Article 39 permits any Contracting Party not represented on the Council to parti cipate, without vote, when the Council or any subsidiary organs consider a question of partic ular interest to it. Article hZ provides for three Commissions (Rules and Recommended Prac tices, Operations and International Seabed Bound ary Review). Each Commission is to have from five to nine members appointed by the Council from among persons nominated by Contracting Par ties. No two members of a Commission may be na- 2?4 tionals of the same State, d. Danzig.— Article XIII B provides for a corporate structure with a Board of Directors holding exec utive power. This Board is to consist of twenty- four members elected by the shareholders (i.e.. the States Parties to the Treaty) and composed as followsi (1) One each from the six states having the high est gross national products. (2) One each from eighteen other States Parties to the Treaty "of which at least twelve shall be developing States and at least one of which shall be a land-locked State." No term is specified for the directors nor is there any provision for rotating director ships among the various member countries, although the shareholders have the power to remove any Director at any time. B. Voting a. Borgese.~ (1) Legislative Organ — Voting in the Maritime Assembly is governed by Article IX C as f0II0W81 (a) The adoption of any decision or recom- 275 mendation requires a majority vote of two Chambers — the political (1st) Chamber plus the technically or profes sionally competent functional Chamber. In case the two Chambers cannot agree, they vote in common as one Chamber and a simple majority vote is required to adopt a decision or recommendation. (b) Commission adopted decisions to become effective require the two Chamber vote of approval as in (a) above, except for matters affecting security and pollution which require no Chamber approval. (c) In any dispute as to which Chamber is competent in a matter, the decision of the first Chamber is to be final. (2) Executive Organ — By Article VIII D each member of the Commission is to have one vote. Adoption of decisions on the Regime's development plan and budget require a two- thirds majority of those present and voting. By a three-fourths majority the Commission may return decisions and recommendations to the Assembly (see Art. IX C*0. In other 276 matters a simple majority of those present and voting is required. Two-thirds of all the Commission Members are to constitute a quorum. b. Pell.— (1) Legislative Organ — There is none provided for by the Treaty. (2) Executive Organ — No voting procedures are provided for. c. U.S.—— (1) Legislative Organ — Article 34 provides that in the Assembly each Contracting Party shall exercise one vote, that decisions shall, unless otherwise provided for, be taken by a majority vote of the members present and voting, and that a majority of the Contracting Parties is required to con stitute a quorum. (2) Executive Organ — By Article 38 "Decisions by the Council shall require approval by a majority of all its members, including a majority in each of the two categories ..." mentioned above in the Representation sec tion. 277 d. Danzig.~ (1) Legislative Organ — Article XIII B(l)(i) provides that "each State Party to this Treaty shall be entitled to one share and one vote as such shareholder." (2) Executive Organ — Article XIII B(l)(iii) states that "Action on all matters by the Board of Directors shall be by affirmative vote of a majority of all Directors including an affirmative vote of a majority of the Board Members ..." in each of the two groups mentioned above in the Representation section. Summary of Political Aspects In summarizing the political aspects considered in the foregoing section, it is deemed pertinent again to point out that some political aspects of ocean space do not particularly relate to the seabeds and that only a few selected political aspects have been considered. With regard to the fifteen U.N. General Assembly Resolution principles for the governance of the interna tional seabed, numbers k and 13 were not considered for the reasons given. Of the remaining 13» Table 5 gives a cryptic tabular summary. It is noted that none of the draft treaties was considered to have given no support 278 whatsoever to any of the 13 principles, but that also none was considered to have given full and clearcut support in upholding all of then. The Borgese Treaty, with only one case of partial support, appears to be the most con sistent supporter of the principles. The U.S. and Pell treaties each give only partial support to four of the principles and the Danzig treaty gives only partial sup port to five of them. The U.S. treaty gives no support for one of the three parts of Principle l*t, namely that relating to the responsibilities of international organi zations. It is realized, of course, that the degree of support does not lend itself to such a mathematical type of scoring. Furthermore the principles are of such a general nature that whether and how much support is given and in what treaty articles support is believed to exist are all factors for evaluation by the analyst and there fore depend to a degree on his judgment. However, since, with the possible exception of the Danzig treaty, the treaties were drafted and published prior to the passage of U.N. Resolution A/27^9 XXV, it is believed to be a trib ute to their authors that each of the treaties gives so much support to these U.N. expressed principles. Concerning the seabed boundary line between na tional and international jurisdiction. Table 6 offers 279 some interesting comparisons and observations. It is noted that all four model treaties call for outer limits in terms of a first depth from the shoreline figure with all but the Pell treaty specifying the 200 meter isobath. Pell's treaty calls for the 550 meter isobath limit. Senator Pell* in discussing his reason for choosing the 550 meter depth* statedi I realize that the precise location of the conti nental shelf boundary may be open to discussion* but I want the record to show that the reason I chose 550 meters is that nowhere in the world is the outer edge of the continental shelf known to occur at a depth greater than 550 meters.20 The other treaties opt for a narrower legal continental shelf. However* the Borgese and Pell treaties* mainly out of consideration for those coastal nations with little or no geological continental shelf, give an option of a ver tical (depth) or horizontal limit, whichever is the great er. In each case the horizontal limit is set at 5° miles. It is strange indeed that* although all four treaties in one place or another use miles as a distance measurement* only the U.S. treaty specifies the kind of mile intended. Since the nautical mile is 6,076.1 feet and the statute mile is 5*280 feet, fifty nautical miles would be a 20 Congressional Hearing, Activities of Nations in Ocean Space. ££. £il., p. 2k 6 , (See fn. 3 supra.) 280 21 39,805 feet greater distance than fifty statute miles. Furthermore, since depths are expressed in meters and the metric system is more universally used than the English system, perhaps distances would be better expressed in kilometers. Although the U.S. treaty limits national jurisdic tion over the seabed to the 200 meter isobath, it does provide for an intermediate zone between the 200 meter mark and points beyond the base of the continental slope — quite an extensive area in many places of the world. While the idea of an intermediate zone in which the adja cent coastal state would have certain rights and privi leges has much merit, the other three treaties do not pro vide for such a zone. Many have accused President Nixon of striking a compromise between those advocates of a wide national continental shelf, such as the U.S. Department of Interior and the National Petroleum Council, and those ad vocates of a narrow continental shelf, such as the U.S. 22 Department of Defense. 21 Mileage values are taken from the Navigation Dic tionary. H.O. Publication No. 220 (1956), pp. 1*4-5 A 206. 22 Friedmann, cit.. pp. 63-64 and 70-73. (See fn. 7 gMPrft*) 281 In the case of the islands problem (see Topic III above) all four treaties provide that islands shall have "continental shelves" with exactly the same boundaries as each treaty stipulates for continental littoral states (see Table 6). The Pell treaty* however* places a proviso limiting the size of an island's "continental shelf" area to that no greater than the area of the island itself (exclusive of its territorial waters). Since this seems to be a sensible restriction* one wonders why the other treaties omit some such limitation as this. While there may be cases that have merit to the contrary* certainly it would prevent such oddities as giving Great Britain about half of the extensive Argentine continental shelf because her Falkland Islands happen to be located on the same shelf but on the opposite side of it from the Argen tine* thus calling into play the median line boundary rule. Although not properly considered as islands* it might be appropriate to point out here that none of the treaty models provide for, or even mention, seamounts or submerged reefs which are beyond national jurisdiction. It may be rightly argued that there is no need to provide for such submerged features since they are obviously part of the international seabed. This is true enough. How ever* suppose one is made into an island — not through 282 the erection of a platform or tower on it that projects above the sea, but an island such as was attempted in the case of the planned island of Abalonia off the U.S. west coast on Cortes Bank, 110 miles to seaward of San Diego and is currently being pursued as Project Taluga, the re cently formed Cortez Development Corporation?2- ^ Who will have jurisdiction over it? Is it entitled to claim a legal "continental shelf"? It best can be settled in the text of an international seabed convention or treaty. Topic IV, and in particular Table 7, attempts to indicate the degree of United Nations control and influence that may be exerted under the provisions of each model treaty. It is obvious that the U.S. treaty provides for no United Nations influence or control and that the Danzig treaty is the treaty which is most closely connected with the United Nations. The latter not only gives title to the international seabed to the U.N. but its Ocean Agency is corporation chartered by the U.N. The other two treaties 23 -'See Richard B. Bilder, "Emerging Legal Problems of the Deep Seas and Polar Regions," Naval War College Review. Vol. XX, No. 5(Dec. 1967), p. k6 and Anthony T. Ressa, "A Plan for an Island State," Ocean Enterprises — A Center Occasional Paper. Center for the Study of Demo cratic Institutions, June 1970, pp. 50-57I see also Stewart Riley, "The Legal Implications of the Sea Use Program." Marine Technology Society Journal. Vol. *t-No. 1 (1970). pp. 31~**6regarding both Cobb Seamount and Cortes Bank. 283 are in between these two extremes as the table indicates. Although as mentioned in Chapter VII, Mrs. Borgese states that her Ocean Regime emanates from, but is not a part of, the U.N., analysis indicates that in actuality the regime's organization is closely tied to the U.N. The Pell treaty's machinery is tied even more closely to the U.N. In the matter of providing for the honoring of existing treaties (Topic V) only the U.S. model gives clear-cut and complete protection for existing treaties. None of the treaties provide for an adequate transition period to enable nations to re-negotiate or legally termi nate any existing treaty obligations they may have that are in conflict with the draft statutes. The Danzig and U.S. models, being limited mainly to the international seabed (i.e., that which is beyond the limits of national jurisdiction), would probably involve the least amount of conflict with existing treaties and conventions since most such agreements and obligations apply to the water and air columns over this seabed. However, all of the models share a common weakness in setting forth provisions which conflict with existing treaty obligations and which make no concrete provision for a legal transition from old treaty obligations to the newer ones. Concerning representation and voting in the organi 284 zations called for by international seabed regimes (as well as other types of international organizations) Mrs. Borgese statedi We all know that an international organization in which every nation has one vote, cannot be charged with managerial functionsi nor can it even be entrusted with sweeping enforcement powers, because the voting power does not correspond in any way to the real power of the members. To solve this dilemma, either one of two approaches can be takeni changing the status of nations and mak ing voting power correspond to real poweri or, chang ing the format of the international organization, leav ing States the way they are, but associating them, in decision-making, with the new, transnational forces and organizations that have been developing during the last half century.24 She goes on to state that her Ocean Regime takes the lat ter approach. The U.S. and Danzig regimes take the for mer approach. Unfortunately the Pell model includes no description of the nature of its prescribed licensing agency so it cannot be determined what approach it takes. Certainly of the four models the Borgese draft is the most radical or advanced (depending on one's point of view) and offers by far the greatest and most diverse rep resentation and voting spectrum of the four treaties. Its blending of the political and functional elements, its giving the Assembly somewhat less than legislative power Pacea.Jn Proceedings, ae- s l l -, P- 424. 285 9< and making the Commission a "political-executive" body, J its bicameral Assembly voting procedures, and its giving professional and expert segments voting power are all nov el procedures — untried and complex for the most part but worthy of strong consideration. The U.S. treaty is on the pragmatic and compromise solution end of the con tinuum. Insofar as legislative and executive organ makeup, representation and voting procedures are concerned, the U.S. and Danzig treaties are quite similar in nature, each providing for the following general featuresi Legislative organ — Each State Member is represented and has one vote. Executive organ — Twenty-four members, six from ad vanced nations, eighteen from developing nations or other nations and with land-locked countries having some representation. Voting is by a weighted voting system. In the areas of representation and voting the U.S. and Danzig treaties present quite a contrast to the Bor gese model. The Pell treaty sheds no light on these sub jects. 25See Borgese, The Ocean Regime. ££. £i£.. P. 33. (See fn. 16 supra.) 286 Legal Aspects Edmund Gullion in his introduction to the book, Uses of the Seas, writesi The prospects of sea science and technology and the transfer of new hopes and national aspirations to the ocean realms are forcing the pace in evolution of the law of the sea. Major legal, regulatory and policy issues are now posed with respect to provision for the settlement of disputes and for the ownership, control or regulation of ocean resources. There are differences of opinion with respect to the extent to which these could and should be resolved by giving more authority to inter national organisations. There is no single law of the sea but a body of codes, international agreements, unilateral declara tions, precedents, and traditional practices that af fect activities on or under the surface of the high seas. Some of these have been rendered obsolete by new capabilities) most important, many major operations which are already possible, or soon will be, contain the seeds of dispute or may result in a raisallocation of resources. Yet these activities are not now ade quately covered by existing international law. As Professor Henkin points out ..., there is need for more adequate law to govern such issues asi the reach of national sovereignty) ownership of the resources in the sea or under the seabed) liability for pollution) and conflicting uses of the sea.26 The raison d'etre for each of the four model trea ties is, of course, to furnish the necessary legal instru ments and the machinery to cope with the various issues (at least those pertaining to the international seabed) 26 Edmund A. Gullion (ed.), Uses of the Seas (1968), p. 5* Also for a brief but excellent discussion on ocea nic legal problems see U.S. Congressional Hearing, Activi ties of Nations in Ocean Space. ££. £il*, P- 278-79. (See fn. 3 supra.) 28? which Gullion has raised. As mentioned in the introduc tion to this chapter, most of such issues are complex and intertwine with one another such that often the legal, political, economic, military and scientific aspects and problems merge. Thus some legal aspects have been dis cussed already in another chapter or section — for ex ample, liability, the seabed boundary issue, treaties, islands, the legal status of the draft treaties, U.N. principles (particularly numbers l*t and 15) and some U.N. objectives. Others will be included in subsequent chap ters. Hence this section will briefly discuss and analyse only a few selected issues or problems which pertain to or are closely related to legal aspects as concern the four model treaties such as the legal status of ocean bed structures, the absence of criminal law, and dispute settling. Let us commence with the first named topic. I. The Legal Status of Seabed Devices and Installations Article 5 of the 1958 Convention on the Continental Shelf provides that on a basis of non-interference with other ocean uses the coastal state may construct, maintain and operate on the continental shelf installations and other devices for the exploration and exploitation of shelf resources and may establish 500 meter safety zones around such objects. There are other stipulations, such as that 288 the installations shall not have the status of islands, shall have no territorial sea of their own, must be re moved when no longer needed, and must be fitted with warning devices. A coastal state, by exercising the ex- ploitability clause of the Convention, could plant such installations well beyond the 200 meter isobath. Thus a viable international seabed regime should make provision for these facilities. Table 8 below shows the treatment of this subject by the draft statutes. II The Criminal Law. Problem About 1968 a murder was committed on one of the towers attached to the seabed off shore from Great Brit ain and beyond Great Britain's territorial sea limit. The murdered man's body was found and the murderer was known, yet the prosecution suffered because no national law ap plies in such cases. Piracy on the high seas is a viola tion of international law. States have not legislated on the destruction or damage to seabed installations beyond territorial sea limits, nor have they prescribed the steal ing of gathered but not yet shipbome seabed natural re sources beyond these same limits. A reasonable question that should be asked, therefore, is whether or not the model treaties under consideration deal with these sub- 289 TABLE 8 Does the Treaty Tr«>aty Provide for Boraese^ Pell2 U.S.3 Danzia^ 1. The emplacement and use of seabed installa tions and devices yes yes yes 5 yes (qualified) 2. Installation safety zone yes yes no yes (qualified) 3. Legal status 6 yes 6 yes 6 yes 6 yes (qualified) 4. Notification of installing yes yes yes yes (qualified) 5. Permanent means of warning yes yes yes yes (qualified) 6. Removal when no longer needed yes yes yes yes (qualified) NOTESi 1. See Art. XIV. 2. See Art. 17. 3. See Arts. 11(3). 21. if. The affirmatives listed are based on Article I which states in part, "In the event of any in consistency between this Treaty and the Conven tion on the Continental Shelf ..., the provi sions of this Treaty shall govern”. Since there seems to be no inconsistency in this re gard, and since the Convention provides for Items 1-6, at least by adjacent coastal nations on their continental shelves, a qualified, but not clear cut, yes can be assumed. 5. However a more explicit provision would furnish a more positive and authoritative basis. 6. Stipulates that installations and devices do not have the status of islands and have no territorial sea of their own. 290 27 jects and, if so, to what extent. Responsive informa tion is given belowt A. Borgese.— The Borgese draft does not address the criminal law void in a positive and clear cut manner. B. Pell.— Article 3^ of the Pell treaty clearly states that national laws and jurisdiction will apply to criminal activities in ocean space pending the es tablishment of and agreement to an international code of law governing such criminal activities and the institution of an appropriate international tribunal to handle such cases. C. U.S.— The U.S. treaty is clear and positive inso far as criminal activity in the International Trust eeship Area is concerned, since Article 2?(2)e as signs each coastal state trustee inter alia the responsibility for "Exercising civil and criminal jurisdiction over its licensees, and persons acting on their behalf, while engaged in exploration or exploitation" in its assigned trustee area. Arti cles 10 and 11 further underpin this responsibility. 27 'For discussions regarding this matter see Con gressional Hearing, Activities of Nations in Ocean Space. op. cit. at fn 3 supra, pp. 32-33t and Congressional Hear ing, Special Study on United Nations Suboceanic Lands Policy, op. cit. at fn. 4 sm>ES, p. 128. 291 Although the phrases "criminal law", "criminal jurisdiction", or "criminal activities" are not to be found in those portions of the statute which pertain solely to the International Seabed Area, it is quite apparent that the various Contracting Par ties (i.e., member coastal states) are responsible for criminal activities in any seabed area or on an installation authorised or sponsored by them. Arti cle 11(3) states that "Each Contracting Party shall be responsible for maintaining public order on manned installations and equipment operated by those authorized or sponsored by it ." The remaining sub sections of Article II, and Article 10 give ancil lary support to such responsibility. D. Danzig.— The Danzig treaty mentions criminal law only once and this is not in the form of the assign ment of responsibility in this area. Article XIII A(vi) requires the Ocean Agency "to recommend for adoption by the General Assembly of the United Na tions codes of civil and criminal liability having applicability within the jurisdiction described in Article I." Articles VII, VIII, XIII A(vli) con cerning enforcement personnel), and XIV A(i) appear to have ancillary application in this area. 292 III The Law of "Conflicting Uses" Louis Henkin in commenting upon the above subject wrote» Freedom of the seas for all has meant of course that no state was free to exclude others. From the beginning, too, freedom had to give way to "conflic ting uses" — if only between two vessels seeking to ply the same waters, or nations competing to fish in the same area. As uses of the sea grew, the possibili ties of conflict grew. Even navigation and fishing had to accommodate each other. Later, ships had to watch out for cables, and recently for oil derricks, sea mounts, scientific buoyst submarines might run afoul of diving gear, installations on the seabed or military detection equipment. Nuclear tests prevented all other uses in large areas of seas for short periods. Other military uses, operations and pollutions might bar other uses for long times. Early, as freedom led to conflict, conflict led to some regulation. ... Some law grew also to regulate conflicts between different uses. ... Conflicting uses are also the subject of agreement. Modem day competing (and hence potentially con flicting) uses of the sea could conceivably include na tional security, navigation on or in the high seas, com munications (including cable and sonic), fishing and fisheries, hard mineral exploration and exploitation, pet roleum and natural gas exploration and exploitation, sci- 28 Gullion (ed), ije. cit.. pp. 7^-75. (See fn. 26 supra.) 293 29 entific research activities, recreation and aesthetics. Since ample evidence has been presented that all four model treaties make sufficient provision to reduce, if not eliminate, the ill effects which conflicting uses of the seas might generate, and since, indeed, this is one of the main reasons for striving for an international sea bed regime, it would be redundant to pursue this matter further.-*0 IV The Problem of Creeping Jurisdiction Creeping jurisdiction, which is historically dis cussed in Chapter II, is well described by Professor Brownliei A significant aspect of the development of the law is the intimate relation between claims to jurisdic tion for particular purposes over the high seas, and extension of sovereignty to a maritime belt. Some claims, such as those of Denmark and Sweden, though commencing as pronouncements for neutrality purposes, fairly soon developed into assertions of sovereignty, especially when associated with exclusive fishery limits. In other cases it remained for long uncertain whether a claim was only to certain types of jurisdic tion or was a general limit of sovereignty. What is certain is that claims to jurisdiction have always tended to harden into claims to sovereignty. (Foot- 29 See Congressional Hearing, Special Study Nations Suboceanic Lands Policy. ££. fill., p. 84. k supra.) .flP.VDlW (See fn. 10 For example see the coverage of U.N. Objective 8 under Topic VII of Chapter VII and of U.N. Principles 5,6, 10,11,12 and Ik under Topic I of the Political Aspects section of this chapter. 29*t note8 omitted.)31 Professor Louis Henkin expands on this by stating that, "The nation that controls the seabed, even if nomi nally only for the purpose of extracting its resources, will control that seabed for all purposes and eventually the sea above as well."32 G. Warren Nutter, Assistant Secretary of Defense for International Security Affairs, recently expressed concern about the whole question of the freedom of the seas because of the tendency of nations to expand their rights from the continental shelf to the su perjacent waters and then to the air space above them. He stated that there is a tendency for nations to make uni lateral claims in these areas and called attention to their ... attempts, with a variety of justifications, to close large bodies of water in order to monopolise for themselves the living resources in those areasi and the great variety of claims to the Continental Shelf, sev eral of which ignore the fine distinction in the Geneva Convention between sovereign rights and sovereignty. These are all observable examples of the growing chaos in the law of the sea.33 31Ian Brownlie, Principles of Public International I4 SW (1967). pp. 169-70. ^^Congressional Hearing, Special Study on United Nations Suboceanic Lands Policy, p. 65. { S e e f n 7 t T ^ B E&,) 33Ibid.. p. 22-2**. por further views see ibid.. pp. 22-28, 101, 107, 121* and 183. 295 Since creeping jurisdiction is recognized by most authorities and governments as a "law" of international life^* it is appropriate to examine the model statutes to 15 see if they provide for the prevention of it. ^ A. Borgese.— Provides for Key provision is prevention Art. II A2. B. Pell.— Provides for Key provision is Art. 3. prevention C. U.S.— Provides for Key provisions are Arts. prevention 2,6 and 27. D. Danzig.— Provides for Key provision is Art. III. prevention V Res Communis versus Res Wullius Chapters II, III and IV discussed from a historical viewpoint the tug of war between the application to the seas of the legal theories of Res Communis and Res Nul ling* This, however, was mostly concerned with the high seas and, for the most part, the surface and near surface thereof as they pertained to the uses of fishing, naval warfare, sea commerce and communications. Richard Eells sets forth the legal dilemma presen- ->L « Ac See Louis Henkin'8 statement re this, ibid.. P* 05# 35 -'-'See also Topic I, U.N. Principle 2 coverage in the Political Aspects of this chapter. 2 9 6 ted by these theories as concerns the international sea- beds this wayi When international law confronts the problem of creating an ocean society, it finds little to go on. Lawyers and statesmen continue to differ on the legal status of the seabed. To be sure, the Geneva Conven tion of 1958 g*ve some legal definition to the conti nental shelf, but the status of the remaining seabed areas is subject to debate. While some have called the seabed res communis, that is to say, the joint property of all nations and peoples, others hold it to be res nullius. land belonging to no one. Neither of these views settles the important question of whether a na tion, a corporation, or an individual may assert title or claim property rights in any area of the ocean floor not now clearly subject to some form of national juris diction. No one, in fact, knows what the law is, and this uncertainty generates a suspicion that there is presently no law at all governing these questions.3® Victor Basiuk narrows the focus of this problem for the purposes of this paper by writingi In general, the several alternative proposals for a regime governing the sea bed beyond the continental shelf start from either a national or an international point of view. The former assumes that resources of the ocean bottom are res nullius and therefore subject to national appropriation, while the latter assumes that they are res communis, which would exclude perma nent national appropriation of the sea bed outside the continental shelf.-57 ^ Richard Eells, "The Emergence of a Corporate Sovereignty for the Ocean Seas," A Center Occasional Paper. Ocean Enterprises. Center for the Study of Demo cratic Institutions (1970), p. 69. •^Victor Basiuk, "Marine Resources Development, Foreign Policy, and the Spectrum of Choice," Orbis. Vol. XII, No. 1 (Spring 1968), p. 52. 297 Mr. Malcolm Wilkey, then General Counsel for Kenne- cott Copper Corporation, in a prepared statement for a Congressional Hearing on Senator Pell's proposed treaty stated the national point of view as followsi ... In a nutshell, the use of the ocean surface and the water column beneath belong to everyone, and can therefore be appropriated by no onei the fish and other living organisms, the mineral resources of the deep ocean seabed and subsoil, belong to no one, and can therefore be appropriated by anyone» anyone engaged in the use of the seas and utilization of its resources in accordance with these rules is entitled under inter national law to be undisturbed in his exercise of such rights.38 It will be recalled that in Chapter VII under Topic VI it is stated that all of the four model treaties subscribed to the international or Res Communis approach. This is further substantiated in the coverage given to other topics in Chapter VII and in this chapter.^ The main purpose for including this topic in this section at the risk of being repetitious is to present in clear focus this important legal problem which is at the heart of any international seabed regime. ^Congressional Hearing, Activities of Nations in Ocean Space. cit., p. 102. (See fn. 3 supra.) ^See for example Chapter VII, Topic VII, U.N. Objective No. 2| and Topic I of the Political Aspects section of this chapter, U.N. Principles No. 1,3*^.5.7 and 9. 2 9 8 VI Dispute Settling As technology continues to open up the resources of the international seabed it becomes obvious that indi viduals, free enterprise groups, socialist enterprise groups, international corporations, intergovernmental groups, democratic governments, socialist governments and regional groups will all participate in or have an inter est in oceanic development, particularly as it concerns ocean resources. Disputes are bound to arise and there fore a viable ocean or seabed regime must have adequate dispute settling machinery and procedures. Generally speaking such machinery and procedures should include pro vision for settling disputes administratively as well as legally, and the latter should include an appellate pro cedure. Below the four models are compared as to their provisions for such machinery and proceduresi A. Dispute Settling at the Administrative Level. 1. Borgese. — The treaty is not clearly written in regard to the administrative settling of disputes. Articles VIII E and P, IX E k and 6 and XIII 7. all indicate the Maritime Commission has certain supervisory, regulatory, revocation, enforcement and punitive powers, particularly as concerns licenses and licensees, and, further, that the 299 Maritime Assembly has certain review and approval powers over the Commission's actions. Articles V A10 and 12 and V B2 authorize "The Regime” to impose fines* cancel licenses, make awards, settle disputes between and among Member States and Associate Members, and to render decisions in certain areas. Unfortunately which organ or organs in the Regime have this power is not speci fied. The wording of Article XIII seems to in dicate that the Maritime Court is separate and apart from the ”Regime". If this is so, then the subsections of Article V given above probably apply to the Commission. This lack of clarity appears to be a weakness in the Borgese treaty. 2. Pell. — The Pell treaty requires the handling of all high seas disputes (i.e., those concerning fishing, aquaculture, in-solution mining, con servation, transportation, and telecommunication) as called for under existing international con ventions (see Art. 12) and all international sea bed disputes in the initial instance administra tively by the international licensing agency which is to be empowered to make awards (see Arts. 22 and 23). 300 3* U.S. — In the International Trusteeship Area the Trustee Party (i.e., adjacent coastal state) is, by Articles 27, 28 and 30, assigned certain pow ers of decision regarding the issuance, suspen sion and revocation of licenses, standards, super vision, regulation, control and boundaries. How ever, no mention is made of the Trustee Party's authority to settle disputes per se. In fact. Article 12 states that "All disputes arising out of the interpretation or application of this Con vention shall be settled in accordance with pro visions of Section E of Chapter IV*" This sec tion deals with the Tribunal which is the legal organ of the Convention, and with the related duties of the Operations Commission. Within the International Seabed Resource Author ity itself the Assembly and Council are not as signed any dispute settling authority or powers except, that by Article 58, if a Contracting Party fails to abide by a Tribunal judgment, the Council is to decide upon measures to be taken to give effect to that judgment. Of the three commissions, two have some very limited authority in the field of disputes. By 301 Articles 1( 26, 30 and if5 the International Sea bed Boundary Review Commission is to take the lead, through negotiations, in the settlement of boundary disagreements, but the Tribunal remains the final authority in such settlements. By Articles ifif(2) c and d, 50(2) and (3) and 51 the Operations Commission is required to render a reasoned written opinion on any accusation by one Contracting Party that another such Party has failed to fulfill Convention obligations before such a case can be brought before the Tribunal. If the accused Contracting Party does not comply with the terms of such an opinion within a rea sonable stipulated time, the matter is referred to the Tribunal. In essence the only real administrative dis pute settling power authorized by the Treaty is that of the Operations Commission discussed im mediately above. k , Danzig. — By Article XIII A(vi) the Ocean Agency is empowered "To make provision for administra tive hearings of all or any part of disputes des cribed in Article XIV - Article XIV con cerns the Ocean Tribunal and its sub-section 3 0 2 A(i) states, "It [the Tribunal] shall adjudicate any and all disputes of any nature whatsoever arising out of the Treaty or any activity under taken in connection therewith " This would appear to limit the Agency solely to hearings and opinions and recommendations connected there with and to rule out administrative dispute set tling powers. However, Article XIV A(ii) states in part, "Resort shall be had to said Tribunal only after the exhaustion of such administrative remedies as the Ocean Agency shall prescribe, but the Tribunal shall have original jurisdiction in disputes between or among States." In view of the above the administrative powers assigned to the Ocean Agency by the treaty seem to be vague and unclear to the extent that this would appear to be a weakness in the treaty. B, Dispute Settling at the Lower Legal Levels. 1. Borgese. — Article VI assigns the Regime a "juri dical personality" and in its international re lationships "the juridical capacity necessary to the exercise of its functions and the attainment of its ends." Article XIII 1 establishes a Mari time Court"... to ensure the rule of law in the 303 interpretation and application of the law of the seas, of the present Statute, and of its imple menting regulations." Other subsections of this article empower the Court to adjudicate appeals against Regime actions, decisions, and rulings, damage and liability cases, and membership dis putes, Litigation relating to the application of Statute provisions and implementing regula tions (except where the validity of Regime acts and contracts are involved) are to be contested in national courts* Litigation between Member States may by mutual agreement be brought before the International Court of Justice. 2. Pell. — Since the licensing authority has ini tial authority to settle all disputes concerned with the international seabed the first legal step in dispute proceedings is a review or appeal procedure. This is accomplished by a standing review panel appointed by the International Court of Justice. Review of any dispute decision can be had by request made within 30 days of receipt of the licensing agency's decision. (See Art. 2*0 3* U.S. — Article 46, in expansion of Article 12 mentioned in sub-paragraph A3 above, statesi 304 1. The Tribunal shall decide all disputes and advise on all questions relating to the interpretation and application of this Conven tion which have been submitted to it in accord ance with the provisions of this Convention. In its decisions and advisory opinions the Tribunal shall also apply relevant principles of international law. 2. Subject to an authorization under Ar ticle 96 of the Charter of the United Nations, the Tribunal may request the International Court of Justice to give an advisory opinion on any question of international law. This article pretty well sets forth dispute set tling under the U.S. treaty. With the minor ex ceptions mentioned in sub-paragraph A3 above, the Tribunal settles all disputes arising under the Convention. No appeal from or higher review of Tribunal adjudications is provided for nor are there any lower courts. Settlement in national courts is also not provided for. Articles 50-60 for the most part deal with the types of cases the Tribunal anticipates handling. Generally speaking, these are similar in nature to those mentioned in sub-paragraph B1 above. 4. Danzig. — Article XIV establishes an Ocean Tri bunal which is tasked to adjudicate "any and all disputes" (see sub-paragraph B4 above). Settle ment of disputes involving the international sea bed among States Parties to the Treaty is manda- 305 tory if "administrative remedies" fail. The Tri bunal is to adjudicate disputes "between or among persons, governmental or non-governmental enti ties, or the Ocean Agency." Article VI assigns Tribunal jurisdiction to all damage liability cases except those involving "the harvesting of living resources, such as fish." Settlement of disputes in national courts is not provided for. Article XIV B provides for the possible estab lishment by the U.N. General Assembly of inferior courts in addition to the Tribunal. C. Dispute Settling at the Appellate Levels 1. Borgese. — Article XIII 16 states, 16. Litigant parties shall have the right of appeal from the determinations of the Mari time Court to the International Court of Justice. Such appeals may be taken by means of a request by the Regime for an advisory opinion, with the litigants stipulating in advance, as a condition of such appear, to be bound by such advisory opinion.^0 2. Pell. — Article 2^(5) provides in part thati ... The decision of the (standing review) panel ... shall be final and binding ... 1 except that if any party to the proceeding Article XIII 16 is so worded since some litigants will not be States, and by Article 3k of its Statute the International Court of Justice may have only States as parties in cases before it. 306 desires review of the decision, or if the panel has failed to render its decision with in the period prescribed ..., the case shall be within the compulsory jurisdiction of the International Court of Justice as contempla ted by paragraph 1 of Article 36 of the Stat ute of the International Court of Justice, and may accordingly be brought before the ^, Court by an application made by such party. 3* U.S. — No provision is made for appeal from or review of the Tribunal's adjudications, although the requesting of an advisory opinion on inter national law from the International Court of Justice is provided for. k, Danzig. — Article XIV a states in parti ... Appeal from decisions of the Tribunal shall lie to the International Court of Jus tice upon certification by said Court that a substantial international question is invol ved. The said Court shall issue advisory opinions upon such appeals, but parties to any litigation from the determination of which such appeal is taken shall be bound by such advisory opinion. VII Structure of Judiciary Organs There are more similarities than differences in the structures of the judiciary organs provided for in the model treaties. In each case the judiciary's primary purpose is to ensure the rule of law in oceanic matters Itl Since some litigants will not be States this seems to be in contradiction to Article 3k of the Court's Statute. See fn. supra. 307 through the rendering of decisions and advisory opinions in the settlement of disputes and in the interpretation and application of the particular treaty's provisions and implementing regulations and of applicable international law. In each case the members of the judicial organ are selected for professional competence in legal matters. In all but the Pell Treaty the judicial organ has initial legal authority. In all treaties there is but one legal level below the appellate level, although the Danzig trea ty makes provision for the possible addition of courts inferior to the Ocean Tribunal and the Borgese model pro vides for the use of national courts. Table 3 (Chapter VII) gives some basic comparative judiciary organizational information. Table 9 on the fol lowing pages gives further comparative structural informa tion. Summary of Legal Aspects It is reiterated that the few legal problems and issues set forth above as being pertinent to the seabed of the deep oceans by no means include all such issues and problems. This summary therefore embraces only the topics discussed in the foregoing section. Regarding the legal status of seabed devices and installations in the international seabed, it is obvious TABLE 9 STRUCTURE OF JUDICIARY ORGANS Structural Draft Treaty Item Borgese Pell U.S. Dansi* 1. Title Maritime Court Standing Review Panel Tribunal Ocean Tribunal 2. Pertinent Treaty Articles XIII 24 46-49 XIV B 3. Number Judges 11 Not more than 3 5.7. or 9 15 4. Can the Num ber be varied? yes yes yes Over-all number— No number on any case— yes 5* How Chosen By agreement among Member States Appointed by the I.C.J. Contracting Par ties nominate candidates. Coun cil elects judges from nominee list Designated by U.N. 6. Term of Office 6 years Indefinite, serve during pleasure of I.C.J 9 years 9 years 7. Partial change or turn over Partial change every 3 years. No specified turnover provided for. Re-election of judges possible but Council may establish proce dures for stag gered terms. 5 judges to be replaced every 3 years V. c a TABLE 9 (continued) STRUCTURE OP JUDICIARY ORGANS Structural Draft ''reatv Item Borgese Pell U.S. Danzig 8. Judge repre sentation! (a) By nations (b) By legal system 9* Appellate Organ No more than 1 from any nation or 2 from any region None specified I.C.J. No more than 1 from any nation None specified I.C.J. None specified World*8 principal systems to be represented None None specified None specified I.C.J. NOTE* I.C.J. is the abbreviation for the International Court of Justice. o 'O 3 1 0 from Table 8 that all four of the draft statutes make pro visions for such facilities which are generally in accord with the pertinent provisions of the 1958 Geneva Conven tion on the Continental Shelf. The Danzig treaty, however, does not clearly and positively set forth authority cover- |lO ing the six items of Table 8. This is deemed to be a weakness in the treaty's provisions. Also, curiously enough, the U.S. treaty lacks a positive statement author izing the emplacement of seabed installations and devices, although from the wording of provisions relating to such facilities there is no doubt that they are authorized and anticipated. It is also worthy of note that the U.S. treaty makes no provision in its text authorizing the establishment of safety zones around these facilities. This omission, unless made for a purpose which is not readily apparent to the reader, appears to be a minor weakness in the treaty.^ The four treaties differ in their manner of pro- li.9 See Note 4 of Table 8. ^^However some authority for safety zones can be derived from the footnote under Article 2 which acknow ledges that States currently have rights under or consis tent with the 1958 Geneva Convention on the Continental Shelf. This Convention's exploitability clause could ex tend authority into the deep ocean seabed. 311 viding for jurisdiction over and prosecution of certain criminal acts that may take place in the deep oceans or on installations or devices located on or attached to the international seabed. The Pell treaty's text is the most clear cut, concise and positive, stating that, pending the establishment of, and agreement to, an international code of law governing such criminal acts and an international tribunal to handle such cases, national law and jurisdic tion will apply. The U.S. treaty is also quite clear in that it makes jurisdiction and prosecution of criminal acts the responsibility of the individual nations where their nationals or sponsored activities are concerned. Neither the Borgese nor the Danzig treaties address the subject of criminal jurisdiction and prosecution per se. However, their texts contain enough authority to cover criminal acts. In this respect the Danzig treaty is the more strongly worded and it does require its Ocean Agency to recommend to the U.N. for adoption codes of civil and criminal liability for international use. The law of "conflicting uses" of the seas and sea bed is discussed in Topic III. It is apparent from this discussion and previous coverage elsewhere in this paper that all four treaties amply provide for such conflicting uses. 312 The four treaties are quite similar in their ap proach to the prevention of creeping jurisdiction. In each case the international area is definitely prescribed in one or more of the treaties' articles, then a separate article states that this prescribed international area is not subject to national appropriation by any claim or meana There are, however, minor differences in application. As pointed out in Chapter VII, the Borgese and Pell treaties apply to ocean space which includes the high seas as well as the international seabed. The U.S. treaty and for the most part the Danzig treaty apply only to the international seabed. Therefore creeping jurisdiction into the high seas does not fall within the purview nor the provisions of the latter two treaties. Further, the U.S. treaty does give the adjacent coastal nations certain limited trustee rights in the International Trusteeship Area. Also, all of the treaties acknowledge the existence of certain ocea nic sovereign rights which for the most part are those codified in the 1958 Geneva Law of the Sea Conventions modified to a greater or lesser degree in some cases. All of the treaties subscribe to and support the res communis or international approach to the legal status of the international seabed and the natural resources thereof. Although the communis and nullius issue 313 was covered under Topic VI of Chapter VII, discussion of this legal issue was included in the Legal Aspects section of this chapter because of its importance from the legal point of view. Topic VI, Dispute Settling, was covered at three basic levels — administrative, lower legal and appellate. At the administrative level the models are quite dissimi lar. The Pell treaty provides for the settlement of all international seabed disputes in the initial instances at the administrative level by the licensing agency. The U.S. treaty provides for practically no settlement of dis putes at the administrative level. The Borgese treaty gives "The Regime" punitive, awards, and dispute settling powers, but its text is vague with regard to just what organs exercise what powers and as to whether the Maritime Court is separate from "The Regime". The Danzig treaty in Article XIII A(vi) gives the Ocean Agency the power "To make provision for administrative hearings of all or any part of disputes ••*," and in Article XIV A(i) gives the Ocean Tribunal the power to "adjudicate any and all dis putes of any nature whatsoever ...." Thus, dispute set tlement powers and procedures at the administrative level in this treaty lack clarity and are confusing. In sum, while the Pell and U.S. treaties are clear enough on this 31k matter the Borgese and Danzig treaties appear to suffer from lack of clarity and in the Danzig text there appears to be a definite conflict of powers. At the lower legal or judicial level all but the Pell treaty have much in common in that they call for a court or tribunal of a stipulated number of judges to ad judicate disputes falling within its purview. Generally these involve applicable international law, the interpreta tion and application of the provisions of the treaties and their implementing regulations, and actions and decisions of the other organs of the treaties' machinery. There are differences however. For example, the Borgese treaty pro vides for settlement of many issues in national courts with the Regime being a party in the litigation. Also, where Member States are involved they may elect to have the International Court of Justice hear their case, thus by-passing the Maritime Court. Neither the U.S. nor Dan zig treaties provide for litigation in national courts or for the use of the International Court of Justice in the first instance. Another difference is that only the Dan zig treaty provides for the establishment of inferior in ternational courts — although it does not establish any. The Pell treaty differs from the other models in that its first legal step is a review or appeal of admin- 315 Istratlve decisions in settlement of disputes. Also its legal instrument is an International Court of Justice ap pointed "standing review panel" of not more than three members which is much smaller than the legal organs of the other models. This, plus the limited nature of its juris diction and powers, could well prove to be a weakness in the Pell treaty dispute settling structure. Like the U.S. and Borgese treaties the Pell model does not provide for inferior courts and like the U.S. and Danzig treaties it does not provide for the use of or association with na tional courts. At the appellate level the Borgese, Pell and Danzig models all provide for appeal before the International Court of Justice. The U.S. model provides for no appeal and its only provision involving the International Court of Justice is that which permits the seeking of an advi sory opinion on international law. Of interest as concerns appeals to the International Court of Justice (the clients of which are limited to states only) are the different ap proaches of the treaties. Under the Danzig and Borgese models if litigants seek an advisory opinion from the Court the litigants must agree in advance that such opinion will be binding upon them. The Pell model provides that appeal cases per se may be brought before the Court. Since all 316 clients under the Pell treaty will not be states, such a procedure nay violate the Court's statute. Topic VII concerns the structure of the judiciary organs of the four models and. since the text and Table 9 are themselves on the order of a summary, inclusion here would only be repetitious. Worthy of note, however, are the comparisons regarding the number of judges, how they are selected, their terms of office, turnover required, and how representation is (or is not) obtained. CHAPTER IX ECONOMIC, NATIONAL SECURITY AND SCIENTIFIC ASPECTS Technology can unite and it can divide. It can elevate and it can degrade. It can create a new civilization of abundance, it may destroy all civi lization and life on this globe. The speed of tech nological innovation is accelerating. Its scale and cost is increasing ... — Arvid Pardo Chapter IV and in particular the final few pages thereof sketch the developments and activities taking place in ocean space and some of the problems that are being created thereby, or that can be foreseen. All of these activities are interrelated and interact with and upon each other. Future developments will increase this interaction. It is the purpose of this chapter to examine cer tain economic, national security and scientific aspects of the various current and future oceanic activities closely related to the seabed, present pertinent questions and issues that have or may arise therefrom, and apply these to the draft treaties under analysis to see if the latter make adequate provision for them. Each of the three topics is treated in a separate section. In order to present and to appreciate the various aspects a concise discussion of each topic precedes the comparative analysis. 317 3 1 8 These discussions are by no means In depth presentations, nor do they repeat that which has been previously covered in this paper.1 Further, only those activities that per tain to or are closely related to the seabed are included. However, the author believes that enough material has been presented to acquaint the reader with the issues and to justify the questions used in the analysis. The sub jects of technology, conservation and pollution cut across all three of the topics presented in this chapter and are, of course, of great and immediate importance. For con venience, however, they are included in the scientific section, although mention is made of them elsewhere. Since the economic aspects of the seabed in reality lie at the very heart of the raison d •'fetre for an ocean re gime, they are given a greater coverage than are the scientific and national security aspects. For more in depth coverage of these and related topics the following works are suggestedi Robert L. Fried- heim, "Understanding the Debate on Ocean Resources", Occa sional Paper No. 1, The Law of the Sea Institute (1969)I U.S. Congress, House Committee on Foreign Affairs, Sub committee on National Security Policy and Scientific De velopments, Library of Congress Study Monograph, Exploit ing the Resources of the Seabed. July 1971» and Wolfgang Friedmann, Ihfi fvrtw?.fll ttlS-.gfi.9ang (1971), passim. 319 Economic Aspects The hope and expectations of the world are that new scientific knowledge and technical capability will open the way for the various nations of the world to gain new and increased economic wealth from the sea. A close relationship thus exists between science and technology on the one hand and eoonomics on the other, in which the recovery of resources is a business venture depending on technology. The economic factors, however, interact in a complex manner which sometimes reflects the immediate 2 impact of technological and scientific developments. The future course of ocean science and technology is now relatively easy to foretell. But the economic — as well as the social and political — implications of projected - a oceanic developments are infinitely complex.^ An inkling of such complexity can be found in the following questions which were raised by Ceylon's ambas sador to the United Nations, Hamilton S. Amerasighne, to start a general discussion on marine economics during one of the 1971 Pacem In Maribus-2 sessions in Malta. The ^Exploiting the Resources of the Seabed. ££. c£i., p. 28. 3Edmund A. Gullion (ed.), Uses of the Seas (1968), p. xiv. 320 questions werei 1. What Is the economic potential of the oceans? 2. What are the prospects for economic exploitation of this potential? 3. What is the foreseeable timetable in this regard? 4. What will be the implication of such exploitation so far as world markets are concerned? 5. What are the prospects of international coopera* tion for the orderly exploitation of ocean resour ces in a manner which would benefit the world as a whole, that is avoiding disruption of markets and insuring sound investment? 6. Can the exploitation of the seabed be regulated apart from the regulation of activities in the ma rine environment as a whole? And connected there with i 7. Where and how are we to define boundaries between the areas of national and international jurisdic tion, and how do these boundaries affect the manage ment of the economic potential of the oceans? An eighth question was added by Lord Ritchie-Calderi What is the cost of pollution and of pollution pre vention?^" Just what are the current economic uses of the sea and what is the magnitude of these marine economic uses vis a vis the world's total economic product? Roger Re- velle recently addressed himself to these questions in a panel statement delivered at the Pacem In Maribus-2 Con vocation.^ He listed the economic uses of the sea in order of value as transportation and transport! produc- k The Center for the Study of Democratic Institu tions, Proceedings - Pacem In Maribus-2. Malta, June 29 July 5, 1971 (Draft), pp. 204-205. 5Ibid.. pp. 235-39. 321 tlon and the harvest of living creatures of the seast pro duction of f08811 fuelsi recreation) mineralsi water from the sea water itselft waste disposali and the possibility of modification of weather and climate. The admittedly non-economic use as a medium for warfare and conflict was omitted. He estimated that at the present time (i.e.* 1971) "the total use of all resources of the sea is around one or two percent of the world economic product." The latter he estimated to be on the order of twenty-five hundred billion dollars a year, which would make the eco nomic resources of the sea something like thirty to fifty billion dollars a year -- a not insignificant but currently a relatively small segment of the world's economic product. He admits it is difficult to put a precise value on such uses as marine recreation and the use of the sea as a sink for waste disposal. Further he pointed out that pollution and conflicting uses of the sea, unless managed, could prove counter productive and cancel out some economic value. While the economic uses of the sea at the present time appear relatively small in value, it is the economic potential of the oceans and the seabed and the hopes and expectations which have sprung from recent technological developments making greater exploitation of the sea's 322 wealth a possibility that have kindled worldwide interest, debate and controversy. Further, it is the sea's economic potential that has engendered suspicion and distrust be tween the developing and developed nations, as previously discussed, and has created an impetus for establishing exclusive property rights in the seas and seabed.^ It has revived the old debate as to whether the seas are to be considered res communis or res nullius and inspired the alternative concept of the sea's wealth being "the common heritage of mankind" with its host of juridical-philoso phical and economic-social problems. It remains one of the primary differences between the problems of outer-space law and those of ocean space law. Also, in the final analysis, the sea's potential wealth is the bedrock reason for the many draft treaties and proposals for the govern ance of the sea and the seabed that have been generated and for many of the additions to and changes in the law of the sea that have been promoted in recent years. ^See U.S. Congress, Senate, Committee on Foreign Relations, Subcommittee on Ocean Space, Activities of Nations in Ocean Space. Hearings, 91st Cong., 1st Sess., July 24,25,28 and 30,1969, p. 279. n See Elisabeth Mann Borgese, "A Center Report/The Republic of the Deep Seas," The Center Magazine. Vol. I, No. k (May 1968), p. 23. 323 Since the proposed treaties under analysis deal in whole, or at least primarily with the seabed beyond the limits of national jurisdiction, let us seek out and ex amine those economic uses or resources which are relevant to these treaties. Of the uses given above, transport and transportation is essentially irrelevant for consideration in this paper since it is confined to the sea's surface and the air column over the sea and is regulated by exist ing international law. Water from the sea itself presents no large international complications since it is, and will undoubtedly continue to be, primarily drawn from terri torial and inland waters. It therefore will receive no further consideration. Recreation is almost solely con fined to areas of national jurisdiction. Where it does extend to international waters, such as with ocean yacht racing, it is similar to surface transportation. The possibility of modifying weather and climate, being pri marily of benefit to national interests and hardly of any consequences to the deep sea bed, can be eliminated for the purposes of this paper. Although waste disposal is a valid consideration, and will be treated under the subject of pollution, it is, as Roger Revelle stated, difficult to consider all of its economic implications at this time. No attempt to do so will be made. Thus the relevant eco- 324 nomic uses for the purposes of this analysis are narrowed down to the production and the harvest of living creatures of the seas and production of fossil fuels and minerals (including non-metallic elements such as sulphur and g chemical compounds). The relevant items involved break down into two broad categories of what are generally termed ocean re sources. namely living resources and non-living resources. The living resources of the sea are given the general classification of pelagic organisms, demersal organisms, and benthonic or sedentary organisms. The last mentioned, as the term implies, are sea organisms which remain in one place usually attached to a fixed object. It will be re called that the 1958 Geneva Continental Shelf Convention stated that the "natural resources" over which the coastal state exercises sovereignty include "organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil." Since sedentary organisms are for the most part located in relatively g It is to be noted that Roger Revelle's list of uses of the sea did not mention aquaculture by name but presumably he included it under production of living crea tures of the sea. Since aquaculture is conducted within national jurisdiction, the subject will not be pursued herein. For information on this subject see Exploiting tha Resources of the Seabed, op. cit.. p. 26. (See fn. 1 supra) 325 shallow territorial and inland waters and, in any event, by the above definition they come under national sovereign rights on the "rubber bounlaried" continental shelf, they may be disregarded as an internationally owned living sea resource of any economic consequence. Demersal organisms are living organisms of the superjacent waters that are associated with the seabed because they either live on benthonic organisms or use the seabed for shelter, such as flatfish and shrimp. Some of these fall under national sovereignty rights under the above mentioned treaty. Most are found in territorial and inland waters but there are exceptions. The Newfoundland Grand Banks demersals are examples of such exceptions, depending, of course, on how one defines the continental shelf. Pelagic organisms are those, generally finny fish and sea mammals which are freely moving swimmers that in habit open seas at or near the surface and frequently far from sea coasts. These creatures, quite often migratory in nature, inhabit both territorial waters and high seas, respect no flag or boundary, and on the high seas are con sidered common property — subject on occasion to disputed national claims. Next to transport and transportation the fishery 326 g industry is the most economically valuable.7 The world harvest is estimated at 60 million tons of fish annually from conventional species. Species currently not used could provide an additional amount close to 200 million tons.10 This annual catch represents an income of approx imately 8 billion dollars a year. About ninety percent of it consists of fin fish, the rest being whales, crusta ceans, mollusks as well as other invertabrates.11 Of great significance is the fact that since World War II total output within the industry has been growing at the rate of more than six percent per year with the sharpest 12 growth occurring in recent years. The total annual har vest provides three percent of man's direct protein con sumption, but because fish meal is fed to land animals, fish are the basis of about ten percent of all animal- 9Proceedings - Pacem In Maribus-2. &E. . P- 236. (See fn. 4 supra.) 10Exploiting the Resources of the Seabed. ££. £il., p. 25* (See fn. 1 supra.) ^Friedmann, ££. cit.. p. 18. (See fn. 1 supra.) 12U.S. President, Report of.the Commission on Marine Science. Engineering and Resources. "Our Nation and the Sea — A Plan for National Action" (1969), p. 89. 327 protein food production.1^ Further, great quantities of fish are processed into fertilizers and fish protein con centrate, the latter being an important element in the attack on the worldwide problem of animal and human protein Ik deficiency. Having outlined the composition of the sea's living resources and delineated the quantity and value of its har vest, let us examine the economics of the fishery industry which includes not just the catch but the supply, demand, holding, transporting, processing and marketing. A suffi cient grasp of the problems and mechanisms involved can be gained from the below quoted excerpts from an article by Charles Stewart and Guilio Pontecorvo who paint a rather grim but realistic picture of problems in need of interna tional solution!1^ ...The fisheries on the average make little contribu tion to economic development, and they tend to chronic instability and the misuse of resources in both devel oped and underdeveloped countries. This trend will con tinue in the absence of a major change in the legal and institutional framework in which they operate. The crucial institutional problem is, of course, the common property status of fish stocks. Even in the best of 13Ibid., p. 88. lifIbid.. p. 102. 15See ibid., pp. 90-9^ for another interesting treatment of this subject. 328 circumstances (assuming sufficient biological knowledge on which to base regulation aimed at preventing over fishing and also assuming the much less likely proposi tion that biological protection of stocks can be sus tained in the face of economic pressure from a troubled industry), the economic problems associated with exploi ting resources no one owns — or controls the rate of use of — tend always to escalate. One of the problems in convincing fishermen and the administrators of fisheries of the pervasive and pernicious character of the common-property status of the resource lies in the difficulty of making a prac tical rather than a theoretical distinction between the long and the short run. At any point in time it is possible for a fishery to be profitable. This short- run profit may occur despite a long prior period of low earnings. An increase in natural abundance or a rise in price or both will serve to transform a mori bund fishery into a bonanza. (A technological change that reduces costs and increases gear effectiveness is similar in effect to a price increase.) In time, natu ral abundance will be reduced or excessive entry will divide the rents created by the price rise among the increased number of fishermen until the individual share of the benefits again approaches zero and the fishery is back in its initial equilibrium. As an example, let us examine the history of the Alaskan salmon fishery to see if it is consistent with these hypotheses. Today in Alaska we find twice as many fishermen catching forty per cent as many fish as in the nineteen-thirties — the fish are no harder to catch — while the ratcheting effect of intermingled good and bad years serves to perpetuate the process. As a crude first approximation, we may focus these remarks by saying that fishing and processing enterprises are, and have been oriented to the short run. Profits can be made in the early stages of a fish ery's development or in the intermediate periods in its life when product prices, costs, and supply conditions are in favorable conjunction. Let us emphasize, however, that if the condition of common property could be alleviated, the possibili ties for adequate earnings are very good. . . . . . . The common-property status of the resource is, however, only one of the constraints on the ra tional exploitation of the world's fisheries. As is true of all industries, fisheries must adjust continu- # 329 ously to changes in demand as well as to variations in supply conditions. While analysis of demand is obvi ously a central consideration in any particular situa tion, certain long-run considerations make it possible to concentrate on the problems of supply. . . . . . . In general, however, all the fisheries of the world suffer from the same malaise. As we have argued, as long as fish stocks remain common property and no limitation on entry is imposed the aggregate net eco nomic yield from these stocks will in the long run tend toward zero. Rational exploitation of these re sources depends therefore on settlement of the common- property and entry problems. Clearly this is a primary task for an ocean regime, for unless the long-run value of fish stocks can be protected by an institutional framework, we cannot expect the industry to spend money on research, exploratory fishing, or conservation meas- In recognition of these fishery problems and to point up necessary international action in the field of international fisheries management the Stratton Report statesi Any international legal-political framework for exploiting the living resources of the oceans must be judged by the extent to which it achieves the follow ing objectivesi It must encourage the development of the vast food reserves of the sea at the lowest possible cost in order to combat world hunger and malnutrition. It must promote the orderly and economically effi cient exploitation of these living resources, with adequate regard for their conservation. It must not provoke international conflict but rather contribute positively to international order, Elaine H. Burnell and Piers von Simeon (eds.), "Pacem In Maribus, Ocean Enterprises," A Center Occasional Paper, The Center for the Study of Democratic Institutions (1970), pp. 11, 12, and 14. 330 17 welfare, and equity. At this point it might properly be asked why this paper which is devoted primarily to certain proposals for the governance of the seabed of the seas beyond the limits of national jurisdiction should go into so much detail about fisheries whose problems and issues are almost en tirely confined to the superjacent waters and to territo rial and inland waters. The reason lies partly in the necessity for international regulatory action as discussed above, partly because the Pell and Borgese treaties in particular deal with issues of the superjacent waters, partly because the problems of fisheries jurisdiction, including the fixing of the limits of the territorial seas, have not been solved, and partly because of other inter linkages connecting the issues of the seabed with those of the superjacent waters. In this connection Wilbert Chapman wrotei A practical problem, then is to get a sufficient number of sovereign nations to agree to a definition of the boundary between the edge of the continental shelf and the deep-sea bed so that the boundary will be accepted into international law and be considered by sovereign nations generally to represent constraints against them appropriating the use of the whole sea bed and its sub-soil to their exclusive and several jurisdictions. It is only at this point that fishery jurisdiction 170ur Nation and the Sea. ££. fijLfc.. p. 104. 331 becomes of much Importance In establishing a suitable regime for the deep-sea bed. There is little fishing done anywhere on the sea bed at depths as great as 1000 meters, and about 88% of the ocean bed is covered by water deeper than that. Enough is known about the distribution of living resources in the ocean that one can predict with considerable confidence that none will be discovered at depths much greater than that which will be of sufficient value for nations to dispute about very vigorously. Accordingly, if the sea bed issue can be separated from the superjacent water issue, and living resources pertaining to the sea bed and sub-soil be restricted "to sedentary species...", then the regime of the sea bed can be settled on its own merits, and fishery ju risdiction issues would not need to be considered. History gives no shred of advice that this separa tion of issues can be obtained, it Sixes, to the con trary, much evidence that it cannot.18 In view of the above it is deemed appropriate to test the four draft treaties against certain relevant questions suggested by the above discussion. However, the U.S. and Danzig treaties should not be faulted because of any lack of response to these questions as concerns the superjacent waters since they deal wholly (or in the case of the Danzig draft, almost wholly) with the bed of the sea beyond national jurisdiction. Pertinent questions that should be asked together with the treaties' responses thereto are given belowi 18 Wilbert McLeod Chapman, "Concerning Fishery Ju risdiction and the Regime of the Deep Sea Bed," a paper read at the Swedish International Institute for Peace and Conflict Research as part of the symposium, "Towards a Better Use of the Ocean, a Study and Prognosis" (1969), pp. 238-39. 332 1. Do the model treaties contain specific regulatory or control provisions, from the economic point of view, regarding the harvesting of living (sedentary) resources of the seabed beyond national jurisdiction? A. Borgese. — Yes. (See Arts. II A3. V Al-7, IX E3-5. & X C.) B. Pell. — Some, but specificity lacking. (See Note 1) C. U.S. — Yes. (See Arts. 3.7.21B, 27(2) h & i, 28f, 40i, 68(1) k.) D. Danzig. ~ No. (See Note 2) NOTEi 1. Sedentary organisms are lumped with non-living resources as "natural resources" and treated the same as non-living resources. 2. There are no specific provisions pertaining eco nomically to sedentary seabed organisms. Such organisms appear to be included in general sea bed resource coverage but much of these appear to apply only to non-living resources. 2. Do the model treaties contain any provisions that pertain to the living resources of the high seas? A. Borgese. — Yes B. Pell. — Yes C. U.S. — Not specifically. (See Note 1) D. Danzig. — Not specifically. (See Note 2) NOTEi 1. The U.S. Treaty deals only remotely and peri pherally with the living resources of the super jacent waters (i.e., Art. 8 deals with conflict of uses of the sea environment and Art. 68e. deals with protection of "living marine orga nism") . 2. The Danzig Treaty's provisions in this connec tion are very peripheral, having to do with ex 333 emption from liability (Art. VI) and the rights under the Geneva 1958 Law of the Sea Conventions (Art. XIII). 3. Do the treaties provide for the promotion of eco nomic efficiency among fisheries through the elimination or subordination of the common property status of living sea resources of high seas and international seabed areas in favor of an overall ownership or regulatory control by some international or regional groups? Treaty Hiflh Sgftg SgftteSfl Borgese Yes (See Note 1) Yes (See Note 1) Pell No (See Note 2) Yes, but specifi- NOTEi 1. See Arts. II A3. II B12 & 13. V A^ and IX E 3*5. 2. Arts. 10-12 bear on this subject but are not specific provisions. if. Do the treaties provide for the conservation of living sea resources stocks in the high seas? On the sea- U.S. Danzig No No city lacking (See Note 3) Yes (See Note *0 No 3. See Arts. 13-21* k . See Arts. 22, 27 28f and 68e 19 bed beyond national jurisdiction? Treaty Borgese Pell iUfih Sfrftg Yes (See Note 1) Yes (See Note 2) Yes (See Note 1) Yes (See Note 3) 19 ^Concerning this question refer also to Chapter VIII, Political Aspects section, U.N. Resolution principle No. 11 coverage. 334 Treatv(cont.) High Seas(cont.) U.S. Danzig Yes, but lacks speci ficity (See Note 4) Not specifically (See Note 6) Seabed(cont.) Yes (See Note 5) Not specifically (See Note 6) NOTEi 1. See Arts. II A3. II B12 A 13. V A4, IX £5* 2. Merely calls for compliance with 1958 Geneva Conventions (See Art. 11). 3. See Arts. 16(a) (v), c,d, and f. k . See Arts. 9 and 68e, both of which are very general. 5. See Arts. 9.22,2?(2)h, and 68e. 6. Merely calls for non-interference with the 1958 Geneva Conventions (See Art. XIII). Art. XIII Section A(ii) makes a general statement re "ac tivities harmful to the ecology" of the ocean bed and high seas. 5. Do the treaties make any provision for gaining revenue from royalties, taxes and fees from high seas fisheries? From sea bed living resources? Treaty Borgese Pell U.S. Danzig Not specifically (See Note 1) No No No Seabed Not specifically (See Note 1) Yes (See Note 2) No Yes (See Note 3) NOTEi 1. Mention is made of distributing revenue, re ceiving loans and grants, budgets, etc., but no specific mention is made of levying and collect ing royalties, taxes, fees or other revenues or the authority to do so. See Arts. Xc, X £3, V A10 and 11 and VIII F for examples. 2. See Art. 16(a) (iii). By definition (Art. 14) the Pell treaty lumps living sedentary organisms with seabed non-living organisms and proceeds 335 to treat them as one and the same. 3. See Art. XIII. Like the Pell treaty, the Danzig draft appears to lump living and non-living sea bed resources together and treat them as one and the same. Having briefly examined living sea resources and compared the treaties with some aspects of the issues and questions which such resources generate, let us discuss some of the aspects of and issues concerning the non-liv ing resources of the sea. Broadly speaking these are the fossil fuels — coal, petroleum and natural gas — which have their origin in decayed organic matter entrapped in the subsoil of the seabed, and minerals, namely any chemi cal element or compound occurring naturally as a product of inorganic processes, and the water itself. Marine min erals occur in various forms — dissolved, placer, nodule 20 and lode. Table 10 below lists and classifies a number of marine minerals known to be in the seas, the seabed and the subsoil thereof. The sea has served as a source of minerals dating back at least to 2100 B.C. when the Chinese learned to re- 21 cover salt from seawater. However, it was not until 20 Our Nation and the Sea, op. cit.. p. 121. (See fn. 12 supra.) 21 National Security Industrial Association Report on Ocean Engineering 37(1965) as noted in the Gerald TABLE 10 TABULATION OF MARINE MINERAL RESOURCES-OFFSHORE MINERAL DEPOSITS DISSOLVED UNCONSOLIDATED Surficial In Situ Metals and salts of Shallow beach or offshore Buried beach and river placers Magnesium placers Diamonds Sodium Heavy mineral sands Gold Calcium Iron sands Platinum Bromine Silica sands Tin Potassium Lime sands Sulfur Sand and gravel Heavy minerals may include Strontium Magnetite Boron Authigenic deposit Ilmenite Uranium Manganese nodules (Co, Ni, Rutile And 30 other Cu, Mn) Zircon elements Phosphorite nodules Leucoxene Phosphorite sands Monazite Fresh water Glauconite sands Chromite Deep ocean floor deposits Red clays Calcareous ooze Siliceous ooze Metalliferous ooze Scheelite Wolframite Burficial' CONSOLIDATED Exposed stratified deposits Coal Ironstone Limestone In Si-S-Vl Disseminated massive, vein, or tabular deposits Coal Iron u w o\ NOTE i TABLR IQ. continued Authigenic coatings Tin Manganese oxide Gold Associated Co.Ni.Cu Sulfur Phosphorite Metallic sulfides Metallic salts This table was reprinted in the Stanford Journal of International Studies. Vol. IV (June 1969). p. 125. from Cruickshank, Mining and Mineral Recovery. Undersea Technology Handbook Directory 1968. by permission of the author and of copyright owners. Compass Publications. Inc. 337 338 recent years that man has developed the technology and general Impetus to tap many of these resources and convert them to his use. Even now, however, many of his efforts to recover valuable marine resources are limited essenti ally to the shallow waters of the world's continental shelves for various reasons, such as lack of knowledge, hostile environment, lack of know-how, laws of economics, lack of a proper legal framework, and conflicting uses. As was pointed out earlier in this chapter, the total use of all resources of the sea — transport, com merce, recreation, living and non-living sea resources, et ai — is on the order of 30 to 50 billion dollars a year, only one or two percent of the world economic prod uct. Of the non-living sea resources the fossil fuel group is the most valuable with an estimated value of 5 or 22 6 billion dollars a year. Of this value coal accounts for only about three tenths (0.3) of a billion dollars. In quantity this amounts to about 10# of the world's pro duction. It is produced in several places in the world, Askevold article, "Ocean Mining in Perspective," Stanford Journal of International Studies. Vol. IV (June 1969), P. 115. p. 236. Maribus-2. g£. cit., 339 i.e., Japan, England and Nova Scotia, from mines developed on the land and extended by tunneling from the land under the sea,^ Since coal is not, and is not likely to be, mined from the international seabed it will be dropped from consideration herein. In fact for various reasons "It would be safe to say, ..., that underground mining in deep international waters is such a remote possibility 2k that it need not concern us at present." Natural gas is found under the seabed on the con tinental shelves of the world. It is generally found in the same geological traps as petroleum, and such traps are most frequently extensions of similar traps under the land. Hence, unlike marine seabed minerals, prospectors generally have a clue as to where they should start explor ing. Also this is one of the reasons why gas and oil are currently produced entirely from the subsoil under the shallow inshore waters. Petroleum companies normally explore for and produce natural gas in conjunction with their oil operations. Six percent of the world's natural ^Edmund A. Gullion, aj>. cit., p. k6. (See fn. 3 suora.) 2k Prank L. La Que, "Deep-Ocean Minings Prospects and Anticipated Short Term Benefits," Ocean Enterprises. a Center Occasional Paper. Center for the Study of Demo- cratic Institutions (June 1970), p. 18. 3^0 gas currently comes from the seabed and it is estimated that this will double or perhaps quadruple by 1980. In 1967 in the U.S. alone petroleum companies were paid about 300 million dollars for natural gas produced off-shore. Proved off-shore reserves in the "free world" are estima ted to be nearly 1.5 million billion cubic feet of gas. Sales are expected to increase about k percent per year. Since natural gas and oil offshore operations share many of the same technical, economic, and regulatory problems and techniques those relative to gas will be included in 2< the ensuing paragraphs concerning petroleum. J With regard to petroleum, the most economically important and valuable of the non-living marine resources, the geological traps in which it is found have been dis cussed above. Currently more than 85 countries are en gaged in off-shore oil explorations and 32 of them are already producing petroleum from their continental shelves. This offshore oil accounts for 16 percent of current world oil production. It is expected that this will double, or possibly quadruple, by 1980. Although offshore oil reserves cannot be fully determined, proved "free 25See Exploiting the Resources of the Seabed. Si£. at fn. 1, p. 211 and Our Nation and the Sea. o£. cit. at fn. 12, p. 127* 341 world" reserves are estimated to exceed 500 billion bar rels. Since data and specific knowledge are largely lack ing it is believed that out to a depth of 1000 feet nearly two million square miles of shelf areas are geologically favorable for petroleum occurrence. While oil and gas probably exist in the deep seabed, it is deemed unlikely 26 to exist in commercially extractable quantities. The rapid expansion of offshore oil production in recent years, currently valued at about 4 to 5 billion dollars per year, is attributable to the rapidly expanding consumption of oil and gas coupled with the growing feasi bility of off-shore drilling. The rate of progress of this expansion "will depend on a number of variables and constantly shifting equations between the relative merits of urgency, economic efficiency, political stability, 27 legal security, and other relevant factors, ...." The ever expanding need for oil and gas on into the foresee- 26 See Exploiting the Resources of the Seabed. ££. £i&. at fn. 1, p. 21-24i Our Nation and the Sea. cit. at fn. 12, pp. 122-231 and Friedmann, ££. cit. at fn. 1, pp. 20-21. It is of interest to note that in exploratory drilling in the Gulf of Mexico gas and oil were discovered in nearly 12,000 feet of water. Deep sea exploratory dril ling has just barely begun. 27 'Friedmann, ibid.. p. 20. 342 able future will ensure continued expansion of offshore extraction. However, commercially productive wells in seabed areas lying outside of national jurisdiction has not even commenced, nor is it likely to, even though cur rent and projected technological developments permit an ever increasing feasibility to do so, for various poli tical, legal and most of all economic reasons. Further, as the National Petroleum Council (of the U.S.) points out, "The present status of off-shore technology reflects substantially greater water depth capability for explora- 28 tion than for exploitation." Currently commercial oil production is from fixed off-shore platforms and conduc ted in water no greater than 3^0 feet — well within the present 200 meter (656 feet) outer territorial sea limit without even applying the "rubber boundary" feature that extends this limit to deeper depths under the present 1958 29 Geneva Convention on the Law of the Sea. However, in view of the value of off-shore gas and oil, the inevitable march of its production into deeper 28 "Summary and Recommendations of the National Petroleum Council" (1969) as quoted in Cong. Hearing, Activities of Nations In Ocean Space. ££• si£., p. 139. (See fn. 6 supra.) 343 water, its international impact -- economically, socially, politically, legally, technically and militarily, and the uncertainty of the future territorial sea boundary, it is imperative that off-shore oil and gas be considered in analysing any ocean regime treaty or convention, even though its production does not now occur outside of na tional jurisdiction. This being the case let us take a look at the economics of offshore petroleum and natural gas exploration and development. Such a look is well presented in the below quoted extract from the National Petroleum Council's reporti ECONOMICS OF OFFSHORE PETROLEUM EXPLORATION AND DEVELOPMENT 10. Progress of industry into ever deeper waters is limited primarily by economic attractiveness rather than by technological capability. About 80 percent of the total domestic offshore oil supply is currently being produced from water depths of less than 100 feet (30 meters). Thus the advancement of petroleum production into deeper waters has been relatively slow. The reasons have been primarily eco nomic. Economic attractiveness of deeper water ventures will depend on many factorsi the overall demand for petroleums competition from land and shallow water areas; the relative cost and effectiveness of deep- marine production operationsi the relative productivity of deep-marine petroleum deposits! and competition ^°For information re future developments and pre dictions see jbjfl., pp. 139-40i Our Nation and the Sea. ££. cit. at fn. 12, p. 123i and Exploiting the Resources of the Seabed, op. cit. at fn. 1, pp. 37-40 and 133-140. 344 from oil shale, tar sands, coal and other energy sour ces. An attractive investment climate, including secu rity of investment, is always a prerequisite. 11. Costs of petroleum operations increase rapidly with increasing water depth and distance from shore. Analysis of offshore operations indicate that costs rise rapidly with increasing water depths and distances from shorei and in the deeper water of the continental shelf, costs on the average are already approaching marginal limits. Thus, as operations progress toward the edge of the continental shelf, only the very large, highly productive accumulations of petroleum will be economical to produce. It is estimated, for example, that the capital cost to develop and produce from a 50-million barrel model offshore field under existing conditions in the Gulf of Mexico will increase by more than 100 percent when moving from 100 to 600 feet (30 to 183 meters) of water. Future technological innovations could improve the economics of deeper offshore operations, just as ad vancing technology could also decrease the cost of al ternate nonconventional sources of petroleum supply, making them stronger competitors. Notwithstanding the probable long-range impact of competition from other sources of energy, it is probable that production from offshore petroleum accumulations, at least those at moderate depths and distances from shore, and having productivity characteristics comparable to the better fields onshore, will be competitive with other domestic sources for the foreseeable future. Indeed, such off shore petroleum accumulations will probably have to carry the burden of maintaining, for this Nation, a desirable balance between domestic and imported petro leum. Moreover, indications are that future U.S. energy requirements will be so heavy as to compel us to draw on all viable domestic energy sources.^1 3 Activities, of Nations in Ocean Space. 2£. s l l * at fn. 6, p. 140.Also see Exploiting the Resources of the Seabed, op. cit. at fn. 1, pp. 36-37. 40-43, 128-32 and 138-411 and Wilbert McL. Chapman, "The Ocean Regime of the Real World*" paper read at the Law of the Sea Institute 4th Annual Conference (1969), pp. 9-10, and 13-15 for further details and different views on this subject. 3^5 Of further interest in the matter of oil economics are such features asi 1. The self-imposed high price of oil in the U.S. (nearly twice the world market price) maintained by the government'8 oil financial infrastructure incorporates such features as the foreign oil import quota, depletion allowances, tax write-offs, credit for foreign imposed taxes, corporate taxes, depreciation allowances ££ al. This framework enables the U.S. oil companies to pay the U.S. government phenomenal amounts for the right to drill for and produce oil from the U.S. outer continental shelf. Dr. Chapman observed that "These screw-ball economics do not obtain for other petroleum production outside the U.S. custom area, and are not necessarily a permanent condition here". To a great extent it was these lucrative oil leases that inspired the expectancy in recent years of quickly reaping great wealth from the seas and seabed. 2. The exploration for and exploitation of gas and petroleum from the seabed requires vast outlays of risk capital. 3* Large fees, taxes, and royalties must be paid to foreign governments by oil producers to obtain the right ^Chapman, ibid.. p. Ik. 346 to explore for and exploit oil from the various oil pro ducing nations. 4. Many more "dry wells" are drilled than producing wells. With this brief overview of the fossil fuels let us move on to consider other economically important non living sea resources. Table 10 gives the various marine minerals grouped by their deposit classifications. The dissolved metals and salts comprise, on the average, 3$ percent of each unit volume of sea water. Of this common salt (sodium chloride) is the most abundant, its two main elements, sodium and chlorine, comprising 85 percent of all solids dissolved in sea water. Thus the percentages of the remaining minerals and salts are minuscule and so far, in addition to common salt, only magnesium, sulphur bromine, potassium and boron have proven commercially extractable.^ However, like the production of fresh water from the sea, none of these extractions of dissolved minerals and salts has bearing on any treaty for the gov ernance of the international seabeds, since such processes would take place in territorial and inland waters. ^Exploiting the Resources of the Seabed. 2E- , pp. 27-28. (See fn. 1 supra.) 347 Again referring to Table 10, of the unconsolidated and consolidated groups all but several of the minerals listed occur in beaches and in the relatively shallow territorial and inland waters which are subject to na tional jurisdiction or require underground seabed mining in deep water, previously discussed and dismissed as not feasible. These are therefore not relevant to this anal ysis. Worthy of mention among them, however, are the suc cessful commercial recovery operations of tin and diamonds from shallow inshore placer deposits, the recovery of sulphur by the Frasch methods close to the Louisiana coast,and the mundane but lucrative recovery of sand, gravel and oyster shells from shallow offshore sites. ^ Of the minerals located on the seabed beyond na tional jurisdiction which appear to have commercial poten tial in the foreseeable future, or that have at least excited some to such prospects, are the deep sea muds or oozes, the phosphorite nodules, and the manganese nodules. ^Askevold, ££. cit.. pp. 126-27 and 129. (See fn. 21 aaacs.) •^Exploiting the Resources of the Seabed. £Q. ci£.. pp. 24-25* (See fn. 1 supra.) ^Gullion, cit.. pp. 38-39. (See fn. 3 supra.) 348 The first named are metal enriched muds and brines associ ated with hydrothermal activities such as occur in the Red Sea at depths of about 7000 feet. Their discovery in 1959 evoked much interest and several claims, including national median line claims in the Red Sea by Saudi Arabia and Sudan, since it was believed they were rich in concen trations of copper, zinc, silver, gold, iron and manganese. Subsequent evaluations have revised the mineral concentra tions downward, and indications are that mining and pro cessing would be extremely complex with about 95£ of the material processed being waste. One mining company expert group concluded that the oozes and muds are of more aca demic than economic value.^ Frank La Que dismisses their importance as not being rich enough or wide spread enough to warrant their being of immediate significance in the total exploitation of deep ocean minerals.-^® In view of the above the Red Sea oozes, as they are now known, are not considered relevant to this paper.^ ^Askevold, ££. cit.. p. 134. (See fn. 21 supra.) ^®La Que, Ocean Enterprises, op. cit. at fn. 24, p. 18. •^For further information on the subject see Gul- lion, 2E* cit. at fft. 3. p. 49i Activities of Nations in Ocean Space, ££• cit. at fn. 6, pp. 71-76i and Exploiting the Resources of the Seabed, op. cit. at fn. 1, p. 19. 3*9 Phosphorite deposits are known to exist in depths as great as 3,800 meters but are more commonly found on shallow shelves and along the seaward edges of the conti nental shelves in depths of 30 to 370 meters. The miner al, normally found in the form of nodules of various sizes up to about 80 centimeters in diameter, is generally a complex tri-calcium fluorcarbonate phosphate containing up to 29 percent phosphorus pentoxide (P2°5) w^th most samples containing much less and usually less than 20 percent. More than 90 percent of this phosphate which is produced is used as agricultural fertilizer and the re maining is used in the chemical industry. Marine phosphorite material has been hailed as a mineral resource of commercial potential and there have been several efforts to mine offshore sources, but without commercial success. This lack of success was not due to lack of nodules, but rather to the economics of mining, processing, and marketing it in competition with land sources. Except perhaps in 100 feet or less depth of water, marine mining of the mineral costs more than land mining, and there are vast land sources located mostly in eight countries of the world. The marine mineral contains less than the 31 percent of P20^ stipulated as the mini mum for commercial fertilizers and therefore must be bene- 350 ficiated or enriched. This makes it less competitive with the richer land sources which assay at about 35 per cent. Due to higher calcium oxide content the marine ore costs still more to convert to ?20 5* Pr^ces for phosphate rock in constant dollars have been quite stable and will probably remain so. The more competitive land ore re serves are estimated to be able to meet demands for the next several hundred years. Therefore, the only foresee able economic factor that might permit the marine mineral to compete with land ores is transportation costs. Pos sibly sea mining will occur first near phosphate-poor countries where the cost of transportation from other source areas may cover the extra cost of mining from the sea floor. This has not occurred yet, and when and if it does it is unlikely that it will be mined in the deeper waters that lie outside national jurisdiction. Therefore marine phosphorite is not considered to be relevant for |l,Q the purposes of this paper. 40 Information on phosphorites was taken from the followingi John D. Lewis, MThe Deep Sea Resources." Naval War College Review. Vol. XXI, No. 10 (June 1969). PP. 137 to 138» Gullion, ££. at fn. 3. PP. 3^-36» Exploiting the Resources of the Seabed. ££. ci£. at fn. 1, pp. 30-32i Askevold, J 2fi. £i£. at fn. 21, pp. 130-31» and U.N. General Assembly, 23rd Session, "Report of the A& Hoc Committee to Study the Peaceful UseB of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction," U.N. Doc. A/7230, (1968), pp. 28 and 31. 351 Thus of all the offshore marine mineral resources that are to be found in the seabed beyond national juris diction only the manganese nodule is currently and at least for the near term future considered to have commer cially exploitable potential and thus have relevancy to this paper. Deposits of these nodules have been reported in great quantities in the Pacific, Atlantic and Indian Oceans at depths of from 800 to 6,800 meters. They have also been found in as little as 300 meters on Blake Pla teau off of the Georgia and Florida coastline and in some fresh water lakes in northern Europe and North America. The material comprising these nodules occurs in a wide range of forms, shapes, sizes, content and textures. A "typical" nodule might be described as about two inches in diameter, rounded, fairly soft and porous, and dark brown to black in color. The nodules are unique in that they continue to grow by chemical reaction and they con tain about 15 industrially useful metals, most of which would be produced in any operation to recover elements from the nodules. Of these metals the most likely to be recovered in quantity are manganese, nickel, iron, copper and cobalt. Table 11 on the following page gives the percentages by weight of these metals which are likely to 352 be found in the Pacific Ocean**^ — nodules which so far as 42 is known are the most richly endowed. TABLE 11 ELEMENTS IN MANGANESE NODULES, PACIFIC OCEAN1 *3 Percentage by Weight Element___________Maximum Minimum---------AVSEMS Manganese 41.1 8.2 24.2 Iron 26.6 2.4 14.0 Copper 1.6 0.028 0.53 Cobalt 2.3 0.014 0.35 Nickel 2.0 0.16 0.99 "Manganese nodules, more than any other marine mineral material. hold out the greatest promise of reward 41 The Atlantic Ocean nodules have so far proved to have a much less favorable metal content. Also the nodule deposits found at great depths in all oceans have proven both more abundant and richer in metal content than those found at lesser depths. 42 Information on manganese nodules was taken from the followings Lewis, o£. cit.. pp. 136-381 Gullion, ££. £i±. at fn. 3. PP. 36-381 Exploiting the Resources of the Seabed, ££• cit. at fn. 21, pp. 33“34j Askevold, ££• cit. at fn. 21, pp. 131-331 U.N. Doc A/7230 (1968), S£. • pp. 24 & 28| La Que, Ocean Enterprises. ££. £i£. at fn 24, pp. 18-201 and John L. Mero, "A Legal Regime for Deep Sea Mining," San Diego Law Review. Vol. VS,No. 3 (1970), pp. 496-99. ^Figures are from a table in John L. Mero, The Mineral Resources of the Sea (1965). p. 180. 353 kk but pose the most formidable obstacles... ." While Gerald Askevold in this particular statement was referring to the exploitation and processing phases, it is equally applicable to all other phases and in particular as con cerns the economic problems, possibilities, and long and short term consequences. To begin with there is a lack of detailed knowledge of ocean nodules and technology has not yet solved many of the exploitation and processing prob lems. Therefore firm cost estimates cannot be made, al though it is known that millions, perhaps billions, of initial venture capital will be required. This will limit exploiters to a few very large corporations, consortia and government ventures — hence only wealthy developed na tions will benefit for some time to come. Currently, and for the near term at least, ocean mining of the nodules will be more costly than, and non competitive with, land mining for all of the metals invol ved. Also there are known reserves of each metal of over 50 years at 1967 consumption rates.There is a disparity between the ratio of metals in nodules and the ratio of liA Askevold, ££. cit.. p. 132. (See fn. 21 supra.) I lk La Que, Ocean Table VII. (See fn. 24 35* world demand for them. As Frank La Que points outi We can appreciate the dramatic Implications of this disparity by noting that if the world's current need for copper were to be supplied completely from the exploitation of nodules, there would be made avail able at the same time nearly twenty-five times as much manganese, fifteen times as much nickel, and a hundred and thirteen times as much cobalt as the market could absorb. Probably the most important conclusion to be drawn ... is that expected revenue from the exploita tion of nodules cannot be calculated simply by adding up the value of the individual metals per ton of nod ules. The assumption that there will be a market at current prices for all the metals in the nodules is unwarranted From the above it is obvious that if such quanti ties of metals were dumped on the world markets their prices would be reduced, the ocean mining of nodules might become economically unsustainable, and land mining might suffer by becoming economically non-competitive. In the latter case developing nations dependent upon revenues and foreign exchange derived from land mining, such as are Chile and Zambia in the case of copper, would be dealt crippling blows and thus the very type of nation we are trying to develop would suffer. In the case of the for mer, entrepreneurial enterprises would suffer financial adversity and the further development of sea minerals would suffer. These would be some of the possible near term repercussions. In the long term, if large quantities 46Ibid., p. 20. 355 of metals are mined and world prices fall, nations which previously could not afford to use much of such metals would then be able to afford to, and a larger world market would thereby be established. This would benefit mankind. Other variables that might influence the economics of ocean mining are technological developments favoring ocean or land miningi depth, remoteness, hazards and ex tent of high metal content deposits) discovery of new land sources of the minerals) the desire of some nations to be independent of foreign sources of the metals for strategic reasons regardless of costs) competition for discovered rich sources leading to claim jumping, piracy, conflict and legal problems) conflict of uses of the seas) and such social and physical problems as pollution and conservation. While some foresee little or no commercial development of ocean mining for many years and predict upheavals in the world's economy when nodules do become commercially exploitable, the U.N. Seabed Committee's Economic Subcommittee, while concurring that exploitation is many years away, expressed agreement that "In the be ginning most [manganese nodule]) production would probably serve to meet new demand ..." and might displace high cost production from other sources, but that the nodule metals ... will probably enter the market gradually just as petro- 356 ItO leum has done. Practically all knowledgeable people agree that ocean mining, such as for manganese nodules, will require some sort of regulation to permit its orderly development. Before examining the draft treaties with respect to non-living ocean resources, brief mention should be made of a few more considerations and facts related to their economic aspects. Among these is the fact that the ocean mining of minerals, exclusive of sand, gravel, oys ter shells and sulfur (all shallow water products), con tributes but 50 million dollars per year to the worldwide economy. If the value of tin, diamonds and other miner als which are mined in shallow national waters is subtrac ted from this amount, the total value of deep sea mined minerals is indeed minuscule and for practical purposes | l q non-existent. Thus since we are starting from near 47U.N. D oc A/7230 (1968), ££• c ^ t . , p. 31. (See fn. 40 supra.) 48 Information on the economics of the exploration and exploitation of manganese nodules was taken from the following1 ibil-t PP. 30-331 La Que, Ocean Enterprises. op. cit. at fn. 24, pp. 17-27» Mero, "A Legal Regime... ." op. cit. at fn. 42, pp. 489-97» Chapman, "The Ocean Re gime...," ££• cit. at fn. 31, pp. 8-9t & Alvin Kaufman, "A Survey of the Economics of Ocean Mining," Marine Tech nology Society Journal. Vol. IV, No. 4 (1970), pp. 6l-o2. 49 70ur Nation and the Sea, op. cit. at fn. 12, p.132. The figure quoted for 1967. 357 zero and deep sea mining is in an experimental stage with slow and cautious development, no nation or international body should expect to reap much, if any, wealth from the seabed beyond national jurisdiction from this source in the near future. The same is most probably to prove true with petroleum and natural gas in view of the currently known land and shallow water sources and of the much greater expense of exploring and exploiting in deeper water. Another consideration is the radical differences between the economic and managerial characteristics of the major ocean industries. The ore for the hard minerals of the seabed is widely scattered in thin layers over large lateral areas on the surface of the ocean floor. The mining of it is more of a harvesting than mining operation and it need cause little or no disturbance to the sur rounding ecology. It shares many of the characteristics of the fishing industry, and, like fishing, its operations are likely to be relatively small in size and transient in nature. Therefore it, like fishing and aquaculture, could operate well under a licensing system. However, the ex ploration for and exploitation of petroleum and natural gas is at the other end of the spectrum of ocean indus tries and uses since they involve sophisticated technolo- 358 gy, heavy capital investment, long term risks, fixed em placements, drilling, and risks to ecology. Therefore closer regulation and control over this industry’s opera tions in international waters is indicated. ^ Growing and new conflicts among the various uses of the sea must be considered. Since this subject has already been treated (see Legal Aspects. Topic III of Chapter VIII including the footnotes thereto), it will not be discussed here.*^ Suffice to say that deep trawl ing and dredging can cut cables and damage seabed instal lations* oil, chemical and radioactive wastes can damage the ecology of the seat drilling rigs are menaces to navi gation* and exploitation of marine sediments can cause harmful effects to organisms through the generation of excessive turbidity. However, such "...considerations should not discourage the development of marine mineral resources, but rather bring about efforts to reconcile the conflicting interests in the regulatory framework to 50 ' ' Proceedings. Pacem In Maribus Convocation. Malta 1970, pp. 128-29. ^See also Pacem In Maribus-2 at fn. **, ££. cj£., p. 239* U.N. Doc A/7230, pp. cit. at fn. ^0, pp. 32—331 and Friedmann, cit. at fn. 1, pp. 26-28. 359 „ C O be set up for the purpose of mineral development* No consideration of the economic aspects of the commercial recovery of sea resources would be complete if the make up and organization of the ocean resource entre preneurial entities were omitted. Much has been written on this subject but space will permit only brief discus sion of it here. As has been mentioned before, vast amounts of long term risk capital will be required to ex plore and develop exploitation of ocean resources. Such capital exists now in the case of gas and oil, and could be forthcoming in the case of deep sea mineral recovery development from risk sharing joint ventures or enter prises. Since corporations are task oriented and cur rently are used to conduct large developments and business operations by socialist, capitalist, and mixed economies alike, it is obvious that most of the marine development effort will come from this type of managerial operation in the form of joint ventures, consortia, multinational corporations and cartels. Partners or holdings in such business organizations may be, and usually will be, na tional governments as well as private corporations. The pattern for such arrangments has been set 5 2U.N. Doc A/7230 (1968), p. 3 3. 360 and the framework, as well as on-going business conducted under this framework, exists today, usually to the benefit of all parties concerned. However, such corporate enter prises are economically and usually short term oriented and therefore are inclined to be insensitive to political and sociological factors and problems. Thus, political and legal regulatory control is indicated. Further, since massive amounts of capital with very little initial return is required to exploit deep sea resources, inducements and assistance must be offered such enterprises to initiate and develop sea resource ventures. High royalties, taxes (including the proposed ocean development tax) and fees can, initially at least, only serve to discourage and retard such development. Wolfgang Friedmann ably statest The task is to devise forms of ocean enterprise that will provide sufficient incentive for the corpor ate entrepreneurs of the various states — governmental or private — to undertake these expensive and complex operations while safeguarding the international com- ^For further detail and views on this subject the following references are suggestedi Friedmann, ££* cit. at fn. 1, pp. 94-113» Pacem In Maribus-1. ££. c U ., pp. 88 94, 127-30i Pacem In Maribus-2. op. cit. at fn. 4, pp. 204 41, 261-73, and 321-311 Ocean Enterprises. a&. at fn. 16, Chapters 3*4,& 7-lli and Jonathan F. Galloway, "Multi national Enterprises as Worldwide Interest Groups*" paper prepared for delivery at the 66th annual meeting of the American Political Science Ass'n at Los Angeles, 8-12 Sept., 1970. 361 munity and enabling the great majority of countries that cannot be entrepreneurs because of their geograph ical situation, lack of financial resources and tech nological know-how, to be actively associated with the exploitation of oceanbed resources.54 If this be the task then what constitutes the com mon interests of nations that might prompt them to promote such a goal and what, from the point of view of ocean enterprise entrepreneurs, would constitute the prerequi sites necessary to give them encouragement in undertaking ocean mining ventures and to create an atmosphere conducive to the acceptance of business risks and the setting up of complex and costly marine industrial operations? As for the common interests of nations with regard to ocean min ing in particular and marine developments in general, there are several worthy of mention here. Certainly all nations are interested in the exploitation of the wealth of the seabed — some for the benefit of all mankind but all, in the final analysis, for their own benefit. There fore production is of common interest to all nations. The need for energy (which oil and gas supply), food, and minerals are other common interests. All countries would hope to avoid having conflicts with other countries over marine claims and thus they have an interest in some means C|i -^Friedmann, ££. cit.. pp. 95-96. (See fn. 1 supra) 362 of settling such disputes and of adjudicating liability. No nation would benefit from endangering living organisms or exhausting certain marine food stocks and other marine resources. Therefore there is common inter est in halting pollution and promoting conservation. In the same vein there is common interest in eliminating or providing for various conflicting uses of the sea. Since most nations have seaborne commerce and many hope to par ticipate in underseas resource recovery, there is general interest in safety on and under the sea and in free navi gation thereon and thereunder. Also since our knowledge of the sea and seabed is very sketchy and in view of the fact that successful marine ventures depend heavily on such knowledge, the promotion of basic scientific explora tion is of common interest. Hampering the freedom to con duct such exploration, however, is the fear, real or ima gined, of many nations for their national security and the threat they feel such scientific exploration offers there to. Thus, as presented above, there are interests common to all, or at least most, nations which would appear to indicate that proper conduct of marine affairs would bene fit all. The promotion of such conduct points to the ne cessity for some kind of international control over and regulation of marine uses and certainly as pertains to the 363 recovery of non-living aea resources beyond national ju risdiction.^ The testimony of Cecil Olmstead of Texaco, Inc. before a 1969 congressional hearing set forth in a very excellent and complete manner the point of view of the ocean mining entrepreneur as to desired policy objectives and the prerequisites he needs if he is to put his capital and know-how to work in this field. Mr. Olmstead statedi Many years of experience have shown that economic ally successful mineral development laws or systems, whether applicable to resources on land or under the sea share certain common policy objectives! 1. The encouragement, on a basis of equality of ac cess, of exploration for and production of resour ces at reasonable cost to the consumer consistent with a fair return to the investor. 2. The encouragement of maximum efficient recovery by conservation of minerals, and in the case of petroleum, of the natural forces, such as reservoir energy, required for production, while always res pecting the needs of future generations as well as the present. 3. The reconciliation of competing uses of the en vironment and minimization of adverse effects of mineral development on that environment. Although these policy objectives are requirements for successful mineral regulation and development, ^For further information on common national in terests seei Ocean Enterprises. ££• £it. at fn. 16, pp. 63-6**, ?0-?li Pacem In Maribus-l. op. cit. at fn. 50, pp. 88-89i Activities of Nations in Ocean Space. ££. at fn. 6, p. 42t and U.S. Congress, Senate, Committee on Commerce, Special Study on United Nations Suboceanic Lands Policy. Hearings, 91st Cong., 1st Sess., Sept. 23, 21*, Oct. 3 and Nov. 21, 1969, pp. 112-13. 364 there are certain minimal conditions that must exist if an entrepreneur is to be induced to risk capital to the costly mineral search. And as regards offshore areas, as the ocean depth increases the search becomes increasingly costly, risky, and hazardous. Vast amounts of capital are required and must be found in intense competition with other demands including mineral search onshore and in shallower waters. Accordingly, the following four types of prerequi sites should be operative if capital and know-how are to be dedicated to the areai 1. The regulatory system should offer encouragement for mineral exploration with the promise of obtain ing areas of adequate size to justify later expen ditures on concentrated exploration and develop ment. 2. Secure tenure is an absolute requirement. Thus, the investor must have the exclusive right to oc cupy a defined area for exploration and the exclu sive right to produce minerals discovered in that area for an assured period of time. 3. In the event of the success, the financial exac tions of the granting authority including royalties and taxes must not be so burdensome as to discour age the enterprise or make its continuance uneco nomic. 4. There must be assurance to the investor that tho mineral regulatory system, including payments to the authorities, will not be altered so as to be less favorable to it after investments have been made — in other words, the rules of the game should not be changed after play has begun. So what any policy or lawmaker should seek are those arrangments which will, on the one hand, provide genuine encouragement for mineral exploitation in sea bed areas while fairly balancing governmental financial exactions with the risks of the enterprise, also being mindful of optimum consumer benefit.5o ^Special Study.... ibid.. pp. 77-78. For further views on economic objectives and prerequisites see Our Nation and the Sea. ££. ci£. at fn. 12, pp. 135-36j Pacem In MftTjbqg-2, ££' ci£. at fn. 4, p. 305b» Activities of Nations in Ocean Space. ££. ci£. at fn. 6, pp. 63-71 and 169-71i Specials Study on United Nations Suboceanic Lands 365 The above coverage of organic and inorganic non living sea resources has been rather lengthy, although the writer is quick to point out that it just barely covers this important subject which lies at the heart of the sea bed issues. However, between the material in this chapter and the more general information given in the latter part of Chapter IV, the reader who is not well informed on these matters should be able to gain sufficient insights to fairly judge the four selected draft treaties as to eco nomic aspects. With this background in mind let us exam ine the responses of the four model treaties to some of the questions and issues arising from present and antici pated exploration and exploitation of marine fossil fuels and minerals. As explained earlier, many of the ques tions and issues have been covered in previous chapters so they will not be repeated here. However, where a brief summary appears to be appropriate, such summary will be presented. Questions that appear relevant to the economic aspects of the seabed are given below. 1. Do the four draft treaties call for international regulation and control over seabed activities? Policy. £E. £ii. at fn. 55. PP. 53-55 and 110-113» Exploit ing the Resources of the Seabed. ££. c££. at fn. 1, pp. k j - and Ocean Enterprises, op. cit. at fn. 16, pp. 69-72. 366 The answer is yes in each case, although obviously there are some functions left to national governments to perform. This issue is well covered in Chapter VII, Topic VI, Approach, and Chapter VIII, Political Aspects section, Topic I, U.N. Principles 11 and 14, and Topic IV, The Issue of Control. 2. Who is responsible to ensure that activities in and about the seabed beyond national jurisdiction, in cluding those relating to resources, are carried out in conformance with prescribed regulatory and control meas ures? Each treaty prescribes that national governments have this responsibility for governmental agencies and non-governmental entities or persons under their particu lar jurisdiction or acting on their behalf. In the case of the activities of international organizations or their members only the Borgese and Pell treaties clearly assign responsibilities for such actions to the international organization concerned. The Danzig treaty is not specific on this matter and the U.S. treaty does not recognize the right of international organiza tions or members thereof to engage in such activities. (See Chapter VIII, Political Aspects section, Topic I, U.N. Principle 14.) 36? 3. Do the treaties make provision for the protection and well being of property belonging to ocean enterprises and ventures and the personnel assigned thereto? The answer in each case is yes, although in some respects certain of the treaties are more specific than others. This subject has been well covered previously in the text, a summary of which followsi A. Chapter VII, Topic VII, Objectives. U.N. Seabed Subcommittee Objective 8. This concerns protection of human life, avoidance of interference, etc. All treaties provide for this, but the Danzig treaty lacks specificity. B. Chapter VII, Political Aspects section, Topic I, U.N. principle 11, re obeying regime rules, standards and procedures, is supported by all treaties. C. Chapter VIII, Political Aspects section, Topic V, The Honoring of Existing Treaties... . The Borgese and Pell and Danzig treaties are weak in their specific sup port for honoring existing treaties. The U.S. treaty is positive in its support. D. Chapter VIII, Legal Aspects section, Topic I, shows that all four models give legal status to seabed devices and installations, although the Danzig treaty lacks speci ficity. E. Chapter VIII, Legal Aspects section, Topic II con- 368 cerns the application of criminal law in protection of people and seabed installations, ores, claims, etc. The Pell and U.S. treaties are clear and positive on the ap plication of criminal law. The Borgese and Danzig trea ties are less clear and positive. Is provision made to minimize and regulate con flicts in the uses of the sea and seabed? All four model treaties make provision for this, although the Danzig treaty is inclined to be less specific. (See Chapter VII, Topic VII, U.N. subcommittee objective 8» Chapter VIII, Political Aspects section, Topic I, U.N. principle 121 and Chapter VIII, Legal Aspects section, Topic III, The Law of Conflicting Uses. 5* Is encouragement provided for seabed enterprise? All of the models do provide such encouragement. (See Chapter VII, Topic VII, U.N. subcommittee objectives 1.2,3,^,5 and 6. There is occasional lack of support on individual items among the various treaties.) 6. Is provision made for the settlement of disputes and for governing liability for damage? All treaties amply provide for dispute settlement. (See Chapter VII, Topic VII, U.N. subcommittee objective 111 Chapter VIII, Political Aspects section. Topic I, U.N. principle 15I and Chapter VIII, Legal Aspects sec 369 tion, Topic VI, Dispute Settling.) All treaties provide for damage liability, although the Borgese and Pell drafts are less specific than the other two. (See Chapter VII, Topic VII, U.N. subcommittee objective 9 and Chapter VIII, Political Aspects section, U.N. principle l^[c]) 7. Is a "grandfather clause" provided for to protect investments made prior to the coming into force of the model treaties? Only the U.S. draft provides for such transition protection. (See Chapter VIII, Political Aspects section, Topic V, The Honoring of Existing Treaties... .) 8. Do the draft models make provision for the protec tion of world market prices and economies based mostly on one product? A. Borgese Yes (See Arts. IV 3-6, IX E 3“5 and X C, D & E.) B. Pell Yes (See Art. 16.) C. U.S. No (No specific mention of this facet is made.) D. Danzig Yes (Art. XIII A[iii] 9. Do the treaties provide for the licensing of all exploration for and exploitation of seabed mineral depos its beyond national jurisdiction? 370 At Borgese Yes (See Arts. V A3. VIII F, & IX E3>) B. Pell Yes (See Art. 13.) C. U.S. Yes (See Arts. 13. 27(2)a, & kk(2)& and Art. 1 of App. A.) D. Danzig Yes (See Art. XIII.) 10. Concerning entrepreneurial exploration and exploi tation activities on and under the seabed beyond national jurisdiction, do the treaties make specific provision or specification for the below listed Table 12 items? (See following page.) Since many of the questions and answers above were summaries of material covered in previous chapters, and since other responses to both the set of questions earlier in this chapter on living sea resources and the remainder of those above are given in tabular — hence summary ~ form, it would be redundant to cover this material again in a separate summary section as was done in Chapters VII and VIII. However, it is deemed of interest, as a final summation, to note how the treaties responded to all of the questions (including each portion thereof counted as one unit) which were set forth in this section. The nu merical tabulation on page 373 giving the treaties' res ponses to the total of 35 queries or parts (32 in the case of the U.S. and Danzig treaties) can, of course, be but a crude evaluation tool due to the many factors that must be TABLE 12 TREATY ECONOMIC SPECIFICATIONS FOR ENTREPRENEURIAL EXPLORATION AND EXPLOITATION OF NON-LIVING SEABED RESOURCES Specification/Reauirement Treatyl Borgese Pell U.S. Danzig Dimensions of Licensed Area No Yes 16 Yes 15. 16 1 5 App. A No Secure Tenure No Yes 16,17. 21, 31-34 Yes 16,73. ■ 1&5, App. A 4 App. B Yes II, III, VIII XIII Duration of License No Yes 16 Yes 20, 1 App. A, 4 App. B Yes XIII A(iii) Option of Renewal No Yes 16 Yes 1&11.3 4 App. 3 No Required Work or Output No Yes 16 Yes 17.27, 68,5 App.B Yes XIII A(iii) Limitation on Number of Licenses per Nation No No No No Protection of Non-parti cipating Nations Yes IV6, XC, XIII 11 Yes 16, 19 Yes 3,5.77 Yes II, XIII A(iii) Supervision over Licen ses Yes IIB7, V, VIII E Yes 15*20 Yes 18,19 27.44.50.52 2.3 App. A Yes IX, X TABLE 12 (continued) TREATY ECONOMIC SPECIFICATIONS FOR ENTREPRENEURIAL EXPLORATION ________AND EXPLOITATION OF NON-LIVING SEABED RESOURCES..... Treatyl Soecification/Reauirement Borgese Pell U.S. Danzig Fair Method of Granting Licenses Yes IV7, XIII 10 & 12 Yes 13 & 16 Yes 53. 2.2 App. A, 3 App. B Yes XIII A(iii) Specification of Resour ces Licensed No No Yes 15. 5 App. A No Levying of Fees No2 Yes 16 Yes 14,27, *44,68, App. A Yes XIII Levying of Royalties No2 Yes 16 Yes 28,44, 68, App. A Yes XIII A(iii) Fees and Royalties to be Reasonable No Yes 16 Yes 14,28,5 No NOTEi 1. Numbers in columns are the pertinent treaty article numbers. 2. Art. XC mentions that the Planning Agency shall "... redistribute revenue accruing to the Regime from fees, royalties, ..." but no mention is made re the levying of them nor the manner nor formula by which they are to be calculated and collected. Vji) > 3 I N J 373 considered. m m . Borgese Pell U.S. P q n a A g . . , Satisfactory Weak or Non-specific 17 2k 28 JLZ. ^£S£QUS£ 57 Bg, 5 0 6 JJngailafflfctgry 12 6 4 2____ National Security Aspects The nation state is currently and certainly will remain during the near term the basic and accepted unit of government in the world. It is not surprising then that national security is a fundamental consideration of each state. The defense and security of each nation's sea fron tier is no less important than that of their land frontiers. In the case of some, like the United States, sea frontiers assume an even greater importance. New technology has opened up heretofore denied ocean space and has provided new techniques and systems which can be employed strategically and tactically both offensively and defensively as may be dictated by the self-interest, will, and national policies of those na- ^Since the U.S. and Danzig treaties are limited to seabed matters only, the four high seas related queries were omitted in their cases as being not applicable. Each of the 5 parts to question 3 response above is counted as a separate unit, as are the 13 Table 12 items. 37* tions having the wealth and capability to employ modem seapower. Today such nations number but a few and they are limited to the technologically advanced nations with the two superpowers, the United States and the Soviet Union, far in the lead in capability and "hardware**. This poses issues, considerations and problems for international or ganizations and states seeking to establish an ocean regime committed to such concepts as using the seabed for peace ful purposes only, internationalizing the resources of the seas and seabed to use them for the benefit of all mankind, and governing and regulating the seabed beyond national jurisdiction. What are some of these issues, considera tions and problems which stem from real or imagined nation al security interests and from the military implementation thereof? Fundamentally military or naval use of the seas entails the capability to project power from the seas, to maintain strategic and, in limited areas, tactical control of the oceans, and under war conditions to deny the enemy the use of the seas. Thus potential or actual naked force at the national or allied level is involved. This runs counter to the spirit and concept of an international re gime, inspires fears on the part of weaker nations, and evokes visions of "colonial grabs" of seabed areas by the 375 wealthy and powerful nations to secure for themselves the wealth of the seas and seabed. Further it inspires ever greater claims to seaward by many nations — rich and poor — , and evokes demands for denial of the use of the inter national seabed for any military purposes and for complete disarmament of the seabed and even of the seas themselves. More specifically there are issues and considera tions involving many facets of the seas and seabed. Most of these are related to the water and air space over the seabed such as rights of military aircraft overflights, passage of warships and submarines through international straits, innocent passage of naval vessels and submarines through territorial waters, firing and bombing ranges, setting aside nuclear test areas, submerged submarines, visit and search, intelligence gathering off foreign shores and the like. Since these issues for the most part do not relate to the seabed they will not be pursued further here in. This is not to dismiss them as unimportant in world < , * v . .. . oceanic matters for they are most important. As an indica tion and example thereof Ambassador Emilio N. Oribe of Uruguay in 1968 articulated the feelings of many of the smaller nations in this regard when he listed nine naval activities as some of the activities coastal states want 376 C Q to keep as far as possible from their shorelines* Oribe went on to say thati One must not forget that the line separating the territorial waters from the high seas ist for all prac tical purposes, the maritime frontier between the do main of the coastal States and the area where the main naval powers and the main seafaring nations exercise their "sea power". If the coastal States find, ... that they can push that maritime frontier as far away from the shoreline as they wish, they will not refrain from doing so unlesB there is a general agreement regu lating all of the above mentioned operations and they are convinced that the agreement is good for their interests.59 This statement highlights another issue to which the main naval powers, but in particular the U.S. and the U.S.S.R., apply the reverse logic. For the very reason given above their national security policies dictate a narrow territorial sea belt and seabed belt, so that their naval forces can be free to conduct their activities over the largest ocean and seabed area possible. To make mat ters in this problem more complex, it is most doubtful if either the U.S. or the U.S.S.R. could muster enough votes for an international agreement opting for a narrow belt, ^®Lewis M. Alexander (ed.), The Law of the Sea. International Rules and Organization for the Sea. Proceed ings of the Third Annual Conference of the Law of the Sea Institute, June 2*1—27, 1968, pp. 86-87. 59Ibid.. p. 87. 377 while it is equally dubious that these two superpowers will accept any major limitation on their naval power. Further complications arise from the fears of "creeping jurisdiction" and the inter-relationship of seabed regime and boundary limits, both of which interlock with this issue and both of which were discussed earlier in this paper. Let us examine another issue involving national security, i.e., demilitarization of the oceans and seabed — the "peaceful use only" issue. This has been a favor ite topic among many who seek peace through disarmament, including some who draft model treaties for the sea and seabed. The issue has much public appeal and there are those who point to the treaties on the demilitarization of outer space and of the Antarctic area for precedents. Further, there are those who hold the view that the deep ocean and international seabed should be demilitarized before the great powers commence using them militarily, since it is always easier to gain agreement to prohibit something that is not being done anyway and that has never 6°See Ocean Enterprises. A Center Occasional Paper. s l l * at fn. 16, pp. 88-89» Cong. Hearing, Special Study on United Nations Suboceanic Lands Policy. £it. at fn. 56, PP. 2^7 65-70, 157-58, 161-62, 178 and I85-B61 and Exploiting the Resources of the Seabed, op. cit. at fn. 1, pp. 70-71. 378 been done than it is to undo a fait ft999BPlj. In addressing the last mentioned view it is unfor tunately too late at this point in time to apply this logic since the military is already using the deep sea and seabed. Lord Ritchie-Calder expressed this well in a 1970 paper in which he wrote 1 By the time that "we, the peoples" woke up to the fact that there was an extensive and useful property at the bottom of the sea, the military were already there. The Maltese proposal at the United Nations in 1967 calling for the "reservation exclusively for peace ful purposes of the seabed ..." had been forestalled by the deep ocean strategies of the major powers. This had become something more than the old fashioned deployment of submarines as a threat to surface navies and to military lines of communicationt it involved the strategic nuclear missile system."61 Before pursuing this issue further let us take a brief look at the kinds of uses to which the military is now putting, or could in the future possibly put, the deep oceans and seabeds. To a great extent this is not well known since much of it is highly classified and the U.S.S.R. is a closed society. However, enough has been made public in the West to permit some facts to be known. Current uses include both offensive and defensive weapon Lord Ritchie-Calder, "Arms and the Ocean Bed — •In Quiet Enjoyment'.*' a Pacem In Maribus-1 Convocation preparatory conference paper delivered at the Un. of Rhode Island, Kingston, January 31, 1970, p. 1. 379 systems. The oceans down to considerable depths are now used by deployed U.S., British and Soviet nuclear sub marines armed with long range nuclear strategic missiles. The French will soon deploy their first such submarine. In many parts of the ocean these submersibles can cruise close to the seabed and even come to rest thereon to mini mize detection. Many of their missiles are fitted with multiple warheads and such missiles can reach land targets hundreds of miles inland. Advances in technology are per mitting second and third generation systems to be designed with quieter running, deeper diving, and bigger submarines and longer range and more powerful and accurate missiles. These strategic missile submarines supplement and comple ment similar land based missile and bomber systems and, as will be discussed below, they probably constitute the "balance of terror" stand-off between the U.S. and the U.S.S.R. since land based missiles and bombers are subject to detection, location, targeting and first strike destruc tion. To see the reason for this one must first examine the characteristics of the ocean and seabed. The waters of the ocean form an opaque, dark, cold, hostile environment which absorbs light, high energy par ticles, electromagnetic radiation, heat and other known sources of energy except acoustical radiation. This eli 380 minate8 all known means of detection used above the ocean's surface, such as satellite and aircraft surveillance, and magnetic anomaly (with minor exceptions), infra-red, radio wave and radar detection, except for sonic means. Even in the case of acoustical detection, except for passive means in the 3,000 to 12,000 foot deep ocean sound channel, such detection is short ranged and subject to variable perform ance by such physical properties of the sea as density, salinity, temperature layers and inversions, bottom echoes and background noises. Active acoustical detectors are 62 usually much shorter ranged than passive ones. However, in the deep ocean sound channel the phy sical character!sties of the ocean permit sound to travel immense distances.^ This characteristic has permitted the U.S., and probably the U.S.S.R., to install on the ocean floor in this sound channel various passive acous tical listening devices in the attempt to detect and lo cate submarines and thereby enhance national defense. 62 Active detectors transmit an acoustical impulse and when on a target obtain range and bearing from the timed return of the echo from the target. Passive detec tors listen only and can obtain bearing and sound charac teristics but not range unless used in groups of 2 or more. Neither system can determine target depth accurately. £0 •'As an example, sonic tests conducted off of Aus tralia were heard near Bermuda. 381 These systems are purely defensive and passive systems and are therefore not weapons systems in the normal sense of the word* In fact they can well be considered among the peaceful uses of the seabed since their purpose is to in hibit war through surveillance and warning. However, the oceans are vast and deep and only relatively small areas can be covered and even such coverage is not complete nor 100JC effective. Further, detecting and locating are only half of the anti-submarine warfare problem. The acoustic systems, elements of which must be located on the seabed beyond national jurisdiction, do not provide for target identification, tracking, and, if warranted, destruction. Thus the missile submarine is still and, for the near term at least, will continue to remain almost impossible to de tect, much less destroy. Its mobility, of course, further contributes to this capability. It is obvious therefore that the missile submarine, of all the strategic weapons systems, possesses assured second strike capability and thus furnishes the actual balance in the balance of power equation which keeps the fragile peace of our times. It is equally obvious in view of this, that, as long as the missile submarine is the balancer, neither of the superpowers is going to negotiate it out of existence or permit its freedom of action 382 to be diminished. Another consideration that lends impetus to reten tion of nuclear missile submarines and their freedom of action is the growing theory, at least in the U.S., that the location of land based strategic missiles and bombers in the U.S. among our population and industrial centers subjects the latter to some first strike damage and fall out and, in any event, makes them hostages for, or subject to, first or second strike targeting and attack. Whereas if strategic nuclear weapons systems were moved to sea or the seabed far from the U.S., not only would it be less vulnerable to first strike damage but the efforts to elim inate it or retaliate against it would fall largely harm less in the sea away from our cities. Further, there is the advantage of locating anti-ballistic missile systems at sea or on the seabed for the same reasons as given above, as well as to give more warning, to permit two or more attempts to destroy incoming missiles, and to give a chance of destroying multiple warhead missiles before the various warheads separate. The above background indicates why the U.S. and the U.S.S.R. have not and probably, unless conditions change, will not opt for disarmament in or a demilitarization of the oceans and why they desire to keep many oceanic and 383 seabed options open to them. Further, while it is easy to see why the superpowers would conclude nuclear ban and demilitarization treaties in the empty outer space and the equally empty and non-strategic Antarctic, it is, in retrospect, considered quite a diplomatic accomplishment that they, along with many other countries, signed the Seabed Arms Control Treaty banning nuclear weapons and weapons of mass destruction from the seabed beyond the 12 mile limit.^ Although many feel that this treaty did not go nearly far enough towards guaranteeing the "peaceful use only" of the seabed, in view of the above nuclear mis sile discussion the U.S. and U.S.S.R. extended themselves quite a bit to accommodate U.N. majority opinion regarding the seabed. On the other hand, one could rightfully con clude that the seabed with a nuclear missile submarine close above or even on it is hardly peace oriented and that perhaps the advantages of mobility over fixed emplace ments permitted the superpowers to gracefully ban some thing they neither needed nor wanted. Further, in evalu ating the model treaties vis a vis the "peaceful uses" 6k This Seabed Treaty is discussed in some detail in Chapter IV and, hence will not be covered in this Chap ter. Chapter VIII under U.N. Principles (Topic I - Poli tical Aspects Section) gives further disarmament/peaceful use coverage. 384 and demilitarization of the seabed it must be borne in mind that they were all four drafted before the Seabed Arms Control Treaty was concluded. With the exception of experimental research and development and some military "hardware" used for peace ful purposes, such as man in the sea, submarine rescue and salvage, and seabed object recovery programs, it is believed that there are no existing or soon to be in stalled seabed or deep ocean weapons systems other than those discussed above. However, other military weapons and uses have been discussed and speculated upon and many are within current or near future technological capability. One of the most probable developments that could be installed using present techniques and technology is the installation of barrier lines or "fences" around ports of egress and across straits which unfriendly submersibles must transit to gain access to the open ocean. These lines would consist of coordinated active and passive acoustical detectors and other short range high frequency energy radi ators which could detect, identify, track and relay target information to nearby submarines and perhaps surface ships and aircraft, or which could activate acoustical homing torpedoes or mines. Another possibility, although currently banned by 385 treaty beyond the 12 mile coastline, is the fixed emplace ment of nuclear ballistic or anti-ballistic missiles which are briefly mentioned above. Such missiles would possess all of the advantages of the missile carrying submarine except mobility. A possible variation of the fixed em placement is the bottom crawler, a missile emplacement mounted on a slowly moving platform that could traverse the seabed or perhaps maneuver a few feet above it and thereby avoid the fixed location disadvantages and mini mize acoustical detection. The so-called non-nuclear "weapons of mass destruc tion" banned by the present Seabed Arms Control Treaty could be a submarine borne, seabed moored, or seabed em- placed dispenser for launching chemical, bacteriological, or radiological materials which could adversely affect humans, wildlife or plant life. Such weapons could be re leased from the sea or seabed and utilize prevailing winds or missiles to carry the deadly materials inshore.^ - ’ Material for the military issues, considerations, problems and uses discussed above was drawn from the writ er's extensive experience in this field and from the fol lowing! Cong. Hearing, Activities of Nations in Ocean Space. aB. c l t . at fn o. p p . 20-21» Friedmann, op. cit. at fn. 1, pp. 50-58| Seymour M. Hersh, "An Arms Race on the Seabed?”, War and Peace Report. Vol. 8, No. 7 (1968)1 Wesley Marx. The Frail Ocean (1968). pp. 223-45i Denis A. Clift, Defense Interests and the National Oceanographic 386 In looking into the future regarding naval uses of the seabed, writers and "experts" are inclined to veer towards the exotic and gloss over the human element and the obstacles presented by the hostile underseas environ ment, although no doubt some of the things they envision are or can become technologically feasible. In the main they foresee underwater navies complete with undersea fuel caches, supply depots, refueling stations, submarine re pair facilities, nuclear weapons shelters, utility sys tems, power generators and the like located in seamount or mid-ocean ridge bases or perhaps hidden in the deep ocean floor trenches. These seafloor bases, in addition to servicing submarines, might operate surveillance sys tems, man missile stations, and even conduct defensive and offensive "land" operations on the ocean floor. Further, they might operate devices to disrupt another state's com munications, neutralize his defensive instruments, and dis rupt air and sea navigation.^ Program. U.S. Dept, of Commerce/National Bureau of Stand ards Clearinghouse paper PB 182 604 (1969), pp. 1-71 and John P. Craven, "International Security on the Seabed," a presentation given at the 3rd Annual Conference of the Law of the Sea Institute, Un. of Rhode Island, June 2?, 1968 (See Conference Proceeding, pp. 414-19). 66See Cong. Hearing, Activities of Nations in Ocean Space, o p. cit. at fn. 6, p. 18t Hersh. op. cit.. p p . 8-9 and 21i and Wesley Marx, ££. cit.. p. 2387 387 Mention may also be made of other military uses of the seabed. One of these, the dumping of explosives and deadly gases in the ocean, will be addressed in a later section. Others warranting some mention are verification of compliance with arms control measures, military oceanic research efforts, self-defense rights and enforcement. It will be recalled that one of the stumbling blocks to arriving at nuclear arms control agreements between the superpowers on land has been verification of compliance. The U.S. insisted on on-site inspections while the Soviets flatly rejected any inspections by foreigners on Soviet soil. True, instrumentation verification has had some ap plication, particularly to nuclear testing. It is also true that satellite surveillance is practiced and tacitly accepted. However, testing is not now conducted under the sea and the ocean's opaqueness shuts out any effective aerial surveillance, so how can treaty compliance be veri fied on the seabeds? There is to be no verification with in the 12 mile coastal belt and nations may emplace any nuclear and other types of weapons and military facilities they desire in this area. To seaward of this belt such weapons and associated facilities (excepting tracking and detection devices) are forbidden and verification by on site inspection may be conducted by any state or group of 388 states that may have reason to suspect that a breach of the seabed treaty is being committed. Also such matters 67 may be referred to the U.N. Security Council. While such a verification system sounds good on paper, actual seabed onsite inspections will be difficult and costly to carry out. There is, however, the feeling that the con struction and servicing of such illegal seabed facilities 68 will be most difficult to carry out clandestinely. In the area of military oceanic research and sci entific work, which, along with other military activities, some would ban from the deep seas and international sea bed, a problem is presented by the difficulty of distin guishing between purely scientific research and military scientific research. The problem comes down to one of intent and purpose and the difficulty of determining the "evil" or aggressive military purpose from the "good and peaceful" purpose. Peaceful purpose, in reality, means nonaggressive rather than nonmilitary purpose. This is in contradistinction to aggressive military purpose which 67 See Article III of the Seabed Arms Control Treaty included with this paper as Appendix XXIII. 68 Stephen Gorove, "Towards Denuclearization of the Ocean Floor," San Diego Law Review. Vol.VtI.No. 3 (1970), pp. 512-16. 389 infers unlawful assault or threat of assault against the territorial integrity and independence of another state. Much scientific research performed by the military contri butes to pure science and leads to advancing technology and civilian spinoffs of great value. Also, much of such work is so costly that only a government could finance it, yet the civilian sector reaps great benefits therefrom. Further, even the purely military developments may well contribute to peace and stability or at least to a stand off in the balance of power. How can such scientific work be categorized as "good" and "evil" with the latter only being banned? It is only through intent that the distinc tion can be made. The real test of intent is what is legal? If aggressive, it is illegal. If peaceful, it is legal.^ Brief mention only will be made of the facet of 69 7This problem is the same as that encountered when the international law of outer space was being debated and developed. For an informative reference on this matter see Carl Q. Christol, The International Law of Outer Space. International Law Studies 1962, U.S. Naval War College, NAVPERS 15031, Vol. LV, pp. 33-44, 53. 114-16, 193-95, 249, 265-68, 283, 291-95. 305-306, and 320-36 passim. Also see Friedmann, ££. sit. at fn. 1, pp. 60-61i Cong. Hearing, Activities of Nations in Ocean Space. ££. sXl» at fn. 6, pp. 33. 108-1091 Cong. Hearing. Special Study on United Nations Suboceanic Lands Policy. ££. s i ± . at fn. 55. pp. 32-34» and David P. Stang, "The Walls Beneath the Sea," ynl^|d States Naval Institute Proceedings. Vol.XCH f, No. 3 390 self-defense. Article 51 of the Charter of the United Na- ions states in part that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of 70 the United Nations . . . Such self-defense measures are not defined. What rights does this Article give for ac tions in the ocean and on the ocean floor? In view of this article can the seas and seabed be limited to "peace ful use only" as some advocate? Although the seabed beyond the limits of national sovereignty is unique, located as it is beneath the seas and thus almost impossible to invade or occupy, partial response to these questions can be given. It is becoming generally acceptable that customary interna tional law recognizes the inherent right of nations to take self-defense measures in provocative circumstances, partic ularly where national existence is imperiled by another nation'8 aggressive conduct. Conceivably such provocations and countering self-defense measures could involve the international seabed. Further, there is international sup port for the acceptance of nonaggressive military activities and purely defensive measures and facilities in both outer 70 U.S. State Department, Charter of the United Nations Together with the Statute of ihe international Court of Justice. Publication 21^. (1961). p. 26. 391 and Inner space as falling within the category of "peaceful uses". Also, the United Nations General Assembly Resolu tion 2749 (XXV) sets forth principles for governing the seabed beyond national jurisdiction and, more recently, the Seabed Arms Control Treaty has been ratified by many states 71 including the more powerful ones. Finally, what about enforcement measures to ensure compliance with the provisions of a seabed regime? Admit tedly such measures probably would be only quasi-military at most, but the subject is included in this section as a related matter. Although Articles 39-51 of the U.N. Char ter provide for certain Security Council and individual state military actions, organization and forces, the cold war has inhibited the effectiveness of U.N. military ac tion. Besides, the provisions of these articles were de signed to combat aggression and peace disturbing nations — not to enforce compliance with the provisions of a sea- 72 bed regime. Further, only national governments have and 7 See Christol, qp. qip., pp. 116 and 168-69} U.N. Doc. a/2749 (XXV) (1970), particularly principles 2,3,5,6, 8,12 and 15 thereof} and this study's Appendix XXIII, Vol. II, pp. 230-33. 72Charter of the United Nations, pp. pip., pp. 21- 271 for a discussion on such matters see Myres S. McDougal, "Authority to Use Force on the High Seas," Naval War Col lege Review. Vol. XX, No. 5, 1967, particularly pp7 28-29. Also see Gullion, pp. cit. at fn. 3. pp. 103-104. 3 9 2 control military and police forces. Thus, it is rather obvious that any enforcing of seabed regime measures, in the near term at least, is going to be done by the nation state, although fines, revocations of licenses, inspec tions, court actions and the like will no doubt be admin istered by the regime. Such measures by the regime may, however, prove long on law but short on enforcement capa bility.73 One compromise measure espoused by Senator Pell calls for an international Sea Guard. As he describes it, "The Sea Guard would be modeled along the lines of our own excellent Coast Guard, and it would be placed under the general purview of the Security Council of the United Nations.Many feel this means of enforcement is imprac 73This statement is not meant to imply that inter national law per se has no means of enforcement except that of national police action. As Dr. Christol rightly points out "... there is general agreement that, whatever the law is, it is subject to enforcement — by sanctions, physical or otherwise". He further points out that there are highly interrelated and complex forces, including the rule of rea son, moral standards, and conscience, which interact to sup port international law. (See Christol, g£. cit-- PP* 2, 3^1"^9* and ^32). However, the view has been held by some that nations may not take kindly to obeying the regulations and edicts of an international administrative organization such as that which would be necessary to manage an ocean regime. 74Cong. Hearings, Special Study on United Nations Suboceanic Lands Policy. ££. £i£. at fn. 50, p. 127. Also 393 tical.^ After all, the oceans cover more than 70# of the earth's surface (some 139 million square miles)t ships, aircraft, men, and equipment cost moneyr ships move slow ly i and there are always the imponderables of interna tional politics and power. Perhaps the best solution to enforcement is to design the regime so that it is to everyone's advantage to abide by its provisions, and it is therefore self-enforcing. In the final analysis what can be said of the mili tary versus a seabed regime? Victor Basiuk writes that "The tie between an international [seabed] regime and de militarization [of the seabed] is conceptionally unsound ...” and that Reservation of the ocean floor to nonmili tary pursuits only is a problem of arms control and dis see p. 7 and Pell's 1945 Memorandum on p. 29. Senator Pell describes some of his thoughts on this subject in his co authored book, Challenge of the Seven Seas (1966), pp. 238- 241, and, of course, Sea Guard is included as Part VII of his Senate Resolution 92 draft treaty, a copy of which is included in the Appendix. nc '■'See for example Elisabeth Mann Borgese, The Ocean (1968), p. 3i Cong. Hearings, ACilvl.tlgg Qt HflUgng in Ocean Space. ££. cit. at f n , 6, p. 123 & p. 128 (Auer bach), 101 (Wilkey)t U.S. Congress, Senate, Committee on Foreign Relations, Hearing, Governing the Use of Ocean Space. 90th Cong., 1st Sess., 29 Nov. 1967, pp. 47-48 (Stephan)i and Pacem In Maribus-1. pp. cit. at fn. 50, p. 97 (Pardo). 394 armament and is separate from, although not necessarily un related to, the establishment of a future regime of the 76 oceans for marine resource exploitation.He goes on to state that the two facets should be dealt with separately with the problem of demilitarization divorced completely 77 from the development of an ocean regime. Lewis Alexander echoes this same view and indicates that Professor Myres 78 McDougal does also. As a reality and practicality there appears to be no valid reason for preventing the military from using the deep sea and seabed, however desirable it 70 may be to keep strategic weapons from the areas/7 It would appear therefore to be a weakness for an ocean regime gov erning marine resources exploitation to provide for a com- 76 Victor Basiuk, "Marine Resources Development, Foreign Policy, and the Spectrum of Choice," Orbis. Vol. XII, No. 1 (1968). p. 55. 77Ibid*.. p. 58. 78 Lewis M. Alexander (ed.), The Law of the Seai Offshore Boundaries and Zones (1967), pp. 223-2**. Of re lated interest are Arvid Pardo's five realities which he set forth in commenting on one of the drafts of the Soviet- American Seabed Arms Control Treaty. See Pacem In Maribus- 1, £2. cit. at fn. 50, pp. 96 A 97. 79 r7Lewis M. Alexander (ed.)t 22. cit. at fn. ?8# p. 2241 and Chapman, "The Ocean Regime of the Real World* op. cit. at fn. 31. PP. 20-21. 395 plete elimination of peaceful military uses from these areas or even to involve itself in considerations of a military weapon and operational nature. Let us examine the four model treaties in the light of some of the above aspects. As in the previous section, where certain aspects have been treated in foregoing sec tions they will either not be mentioned below, or, if war ranted, a brief summary will be given. Relevant questions and the model treaties' responses thereto are given belowi 1. Is provision made in the draft treaties to inhibit a “colonial grab" of seabed territory beyond the limits of national jurisdiction? The answer is yes in the case of each treaty. (See Chapter VIII, Political Aspects Section, Topic I, U.N. Principles 1 and 2.) 2. Do the model treaties provide that the area gov erned by each treaty shall be open to use exclusively for peaceful purposes by all states? The answer is yes in the case of each treaty. (See Chapter VIII, Political Aspects Section, Topic I, U.N. Principles 5.6,7 and 8.) 3* Do the draft treaties include the disarmament issue within their provisions? A. Borgese. — Yes (See Arts. V A13 and Bl» and XV) 396 B. Pell. — Yes (See Arts. 25-27) C. U.S No D. Dax’ sig Yes (See Art. 5) 4. Are provisions Included for the disarmament of the high seas? Of the seabed beyond national jurisdiction? High Seas Seabed NOTEi Only the Borgese draft calls for complete dis armament of all ocean space. 5. Do the treaties specifically permit the follow ing military uses of the seabedi A. The use of military personnel or equipment for sci entific research or for any other peaceful purpose? B. The temporary stationing of any military submarines on the seabed if such submarines are not primarily designed or intended for use or stationing on or in the seabed? C. The use or stationing of any device on or below the seabed that is designed and intended for purposes of submarine or weapons detection, identification or A. Borgese — Yes C. U.S. — No D. Danzig — No B. Pell No Yes (See Art. V B1 & XV E) Yes (See Art. 26) No Yes (See Art. V) tracking? 397 Borgese -- A Yes £ Yes C Yes (See Art. XV B) Pell — Yes Yes Yes (See Art. 25[2]) U.S. — --- --- --- Danzig — --- --- Yes (See Art. V) NOTEi The responses of the U.S. and Danzig signify only that their texts do not mention specifically these items. 6. Are the following specifically prohibited from the seabed by provisions of the treatyi A. Military bases, installations, fortifications? B. Nuclear weapons or weapons of mass destruction? Borgese — No Yes (See Art. XV D) Pell — - Yes (See Art. 26[l]) U.S. — Danzig — Yes Yes (See Art. V) NOTEi The note under question 5 above also applies to the above responses with the exception of the Borgese draft. 7. Are onsite verification inspections of military seabed activities and installations provided for? Borgese — Yes (See Arts. V A8 and Bl) Pell — Yes (See Art. 27) U.S. — No Danzig ~ Yes (See Art. V) NOTEi The U.S. draft, by Article 19, authorizes the inspecion of any "licensed activity" but it is doubtful if military activities will be "li- 398 censed activities.** 8. Other than onsite verification inspections do the treaties provide for other controls over the military in their use of the seabed? A. Borgese.**** Yes. Article V A13 assigns the regime the function **to control the armed forces operating on the seabed ....N Article XV C requires any military personnel using the seabed to wear the insignia of the U.N. Forces and to report their activities and findings to the Maritime Commission and to the U.N. Security Council. Further, Article XV E commits the Regime to proceed toward "The complete demilitari zation of ocean space." B. Pell.— Yes. Articles 31*33 provide for a quasi military enforcement sea force "to promote the ob jectives and ensure the observance of the provisions set forth in this Treaty." It is doubtful, however, that such a force would confront a major or even medium power to carry out its mission. C. U.S.— No. D. Danzig.— No. Although Article XIII A(vii) makes vague mention of "enforcement personnel as it [the Ocean Agency] deems necessary." 9. Are self-defense measures as authorized by 3 9 9 U.N. Charter Article 51 provided for? The answer is no in the case of each of the treaties. 10. Is any kind of a regime police force provided for? In the case of the Borgese, U.S. and Danzig treaties the response is no. Enforcement is delegated to regime administrative and legal means to be overseen and car ried out by national governments. The Pell treaty (Articles 31“33) provides for a U.N. Sea Guard force fashioned after the U.S. Coast Guard as mentioned in 8 above. In summary, all of the treaties provide for peace ful use of the seabed and for inhibiting any "colonial grab". However, it is obvious that the Borgese treaty is at one end of the spectrum regarding provisions concerning military issues and that the U.S. treaty is at the other end, with the Pell and Danzig treaties in between but fa voring the Borgese treaty end of it. The Borgese draft places U.N. and regime controls and supervision over mili tary activity in all of ocean space and provides for the regime to proceed towards "the complete demilitarization of ocean space." While the Pell and Danzig drafts do not go quite this far, their seabed provisions are very similar to the Borgese draft, although neither provides for complete 400 demilitarization. Note that all three provide for limited, specified, and almost similar military "peaceful" seabed uses and prohibitions, and all three provide for onsite verification inspections. Enforcement appears to be a weakness, at least from the pragmatic near term viewpoint, of all four trea ties. However, perhaps it will work out well to have each nation police its own nationals' activities under U.N., international law and regime guidelines. The writer feels that the idea of a U.N. Sea Guard as the Pell draft pro vides for will prove to be impractical of execution and support. The fact that none of the drafts provide for self-defense measures is not believed to be of any partic ular consequence and is probably better omitted since this subject is already covered by general international law with all of its existing problems. The U.S. draft stands alone as the only one of the treaties which does not tie the disarmament issue to the seabed regime. In this it appears that it is more practi cal and susceptible of acceptance for leaving this issue in the realm of disarmament and arms control treaties. It would appear that the other three treaties are flawed, or at least weakened, by their inclusion of this issue. As Professor Myres McDougal is reputed to have said in com- 401 meriting on this disarmament/ocean regime tlei to snap at do a gnat it isn't necessary to swallow an elephant. Spisnttflp „Agpe<rtg The world's burgeoning population coupled with mod em man's quest for knowledge, greater sophistication, and desire for constantly improving standards have created de mands for natural resources at an ever increasing rate. This has resulted in a turning to the sea to satisfy an in creasing share of the requirements of many nations to meet these demands. There can be scarcely a shadow of doubt but that a wholly new era in the use of the seas is rapidly unfolding. New materials, techniques, instruments, tools, vehicles and means of communication are permitting man to explore and exploit ever deeper and further into the oceans and to discover nature's secrets and forces and their rela tionships. These thrusts into the ocean world are paced by an advancing technology derived from scientific research. While our rapidly accelerating advances seaward are result ing in social, economic and military changes of great im port it is essential to realize and reckon with the fact that as man moves further and deeper into the ocean he is Lewis M. Alexander (ed.), The Law of the Seai Offshore Boundaries and Zones. £i£., p. 2 2 4 . (See fn. 78 sunra.) k02 bound to bring with him the full measure of his talent to 81 create, destroy, conserve, pollute, extract and develop. The purpose of this section is to examine various issues, problems and considerations that revolve around ocean science in its broadest sense and to compare the coverage and responses of the four model treaties thereto. For such purpose the subjects of ocean science, technology, pollution and conservation are addressed. In so doing considerations in these fields as they relate to the water and air columns as well as the seabed, both within and beyond national jurisdiction, will be presented. This is necessary since in dealing with these subjects it is im possible to treat but one part of an ecological whole in isolation. The focus of the paper, however, remains on the seabed beyond the limits of national jurisdiction which, for the near term, will probably be the area least affected by technological change, pollution and conserva tion measures, although it will be an important objective of scientific research and survey. One other facet to bear in mind is that the subjects which are addressed sep- 81 See Gullion ££. cit. at fn. 3. P* xiv, and Lewis M. Alexander (ed.). The Law of the Sea» The Future of the Seas Resources. Proceedings of the 2nd Annual Conference of the Law of the Sea Institute, 26-29 June 1967, p. 113. 403 arately below are in fact all intertwined and interrelated with one another, although generally speaking conservation and pollution are end results of, or at least are aided and abetted by, science and technology whereas the latter two complement each other. Thus, science points the way to technology and in turn technology expands the capabilities and horizons of science by supplying the required tools, techniques, instruments and vehicles which permit scientists to learn more, refine accuracy, handle data, probe deeper and in general progress further more effectively. Both hold the key to curbing pollution and enhancing conserva tion. Therefore let us commence by examining some of the issues and problems surrounding ocean science. Oceanography, the science of the ocean, is a some times closely and other times loosely related grouping of scientific disciplines such as geology, sedimentology, chem istry, hydrography, biology, fishery science, physical 82 oceanography and environmental science. When such a group of disciplines is brought to bear on the ecological whole of seabed, air column, and ocean, it is little wonder 82 See Lewis M. Alexander (ed.). The Law of the Seat The United Nations and Ocean Management. Proceedings of the 5th Annual Conference of the Law of the Sea Institute. June 15-19. 1970. p. 19&. 404 that confusion, obscurities, limitations, ignorance of political leaders, and bureaucratic delays confront the ocean scientific researcher. The importance and urgency of scientific ocean re search is underscored by the Stratton Commission report which pointed out the truisms that "... a strong, solid base of science and technology is the common denominator for accomplishment in every area of marine interest," and that "A full realization of the potential of the sea is presently limited by lack of scientific knowledge ...."8^ Dr. Pardo in a March 1971 speech stressed the importance of ocean research in these words• Scientific research is in modern times not under taken merely to satisfy the curiosity of a few scien tists about the world in which we live. It is an es sential prerequisite to technological advance! draft ing of rational regulations to control ocean pollution is impossible without continuing research! only through research are we able to locate seabed areas likely to contain mineral deposits! management of living resour ces of the seas is inconceivable without intense and continuing scientific research. Scientific research in short is the condition sine quo non for the develop ment of the oceans for the benefit of mankind. It must consequently enjoy maximum freedom.8^ 8^Our Nation and the Sea. ££. cit.. p. 4. (See fn. 12 supra.) Qh Pacem In Maribus-2. op. cit.. p. 381. (See fn. 4 supra.) 405 Given the importance to humanity of ocean research and scientists, one might expect that the researcher would be given a free rein and be welcome everywhere. Unfortu nately such is not now the case, although only a score or ge so years ago it was. 0 Three factors, each of which has developed rapidly since World War II, have contributed to the growing competition for the use of the sea and to the conflict between the regulation of such use and the freedom of scientific endeavors. These factors aret 1. Improvements in military and industrial technology which have permitted a more extensive and intensive use of the sea and its resources. 2. The need to use the sea to satisfy the world’s growing requirements for resources, transportation, and military security. (It should be noted that factors 1 and 2 have led to claims and extensions of claims of national jurisdiction over sea and seabed areas and to suggestions for the establishment of international ju risdictions. ) 3* The greatly increased capability for conducting ^See John A. Knauss, "Factors Influencing a U.S. Position in a Future Law of the Sea Conference," Law of the Sea Institute, Un. of Rhode Island Occasional Paper No. 10, April 1971, p. 18. 406 scientific research and exploration in all parts of the seas of the world, not only in such things as new ships, instruments, techniques and devices, but also in the 86 increased number of capable ocean scientists. What are the changes, conflicts and limitations that the above listed factors have brought to the commu nity of ocean science and its modus operand! and that have resulted in confusion, frustration, and sometimes denial of certain sea and seabed areas to scientific researchers? In essence the work of the ocean researcher is beset with le gal uncertainties! interpretative uncertainties! geograph ical jurisdictional uncertainties! uncertainties as to what kinds of research are subject to control by the coas tal state! bureaucratic delays and Nred tape"i a change in the attitude of governments, particularly of the less de veloped nations, towards extending welcome and the free exercise of scientific effort in their national waters! and the lack of, or sometimes the lack of appreciation of, the scientist's views and needs in the decision-making pro cesses of national and international bodies. Further, the "innocence** of ocean research has been besmirched by govem- 86 See Milner B. Shaeffer, "Freedom of Scientific Research and Exploration in the Sea," Stanford Journal of International Studies. Vol. IV (June 19o9), pp. 48-60. 407 mental Intelligence gathering and surveillance being car ried out using oceanographic research as an operational cover or deception* such as In the case of the U.S.S. problems and considerations is warranted, let us start with legal uncertainties. There are, for example, no exis ting laws covering the legal status of unmanned equipment used by scientists when deployed on the high seas. This equipment includes such items as an ever growing variety of unmanned "hardware" from monster buoys to lesser buoys and small electronic instruments. These objects may be bottom moored to float on the surface or beneath it, or they may be free floating — drifting with current, wind and tide. They fit into no neat legal category. They may be used for military or purely scientific purposes. How can their ownership be protected? How can responsibility for damage and liability be placed? Similarly what is the legal status of such manned and unmanned objects as seabed habitats, bottom crawlers and structures projecting from the ocean floor? What about research submarines which must by law PUEBLO.87 Since at least a brief look into some of these Space, op. cit., pp 87 'Cong. Hearing, Activities £. cit., pp. 109-13*(See f: . f Nations in Ocean : . 6 supra.) *4-08 sail on the surface and show their flags in territorial waters?®^ Interpretative uncertainties revolve around such things as the definitions of "fundamental", "pure", or "basic" science, applied science, fundamental technology, advanced technology, the meaning and interest of scientific research versus scientific exploration, and the omissions and wording of certain of the 1958 Geneva Conventions. Generally speaking "fundamental", "pure", and "basic" sci ence and scientific research all refer to science or sci entific inquiry in its academic role wherein research is made for scientific truths and its results are open to the international scientific community. Applied science is in many circles equated to technology which in turn is associ ated with exploitation for commercial profit or military uses. Exploration, although it may be for pure scientific research purposes, is often associated with prospecting for resources in advance of exploitation. Thus the line be tween pure scientific research and scientific research which is applied to national security or resource exploi- 88 The Law of the Sea« National Policy Recommenda- li^ns. Proceedings of the *4-th Annual Conference of the Law of the Sea Institute. June 1969. pp. 172-1 and Pacem In Maribus-2. op. cit. at fn. *». pp. 351-5. * * • 0 9 tation has become blurred and at times judgment must be made as to the intent or purpose of a group doing research. Where a regulation must be enforced based on an interpre tation of intent it is difficult to be objective in the enforcement. Frequently freedom of research suffers there by.^ However, one way to distinguish is to say (as many do) that scientific research requires an early and broadly distributed open publication of the findings. and some hindrance to this freedom since freedom of sci entific research, even on the high seas, is not provided for and, in the case of the Continental Shelf Convention, the consent of the coastal state is required to be obtained prior to undertaking any research on the continental shelf, although it stipulates that this consent should not nor mally be withheld for "pure scientific research". Further the researcher must permit the coastal state to participate 90 or be represented. Again the point of what is "pure sci entific research" is brought up. Also the point is raised The Geneva Conventions of 1958 afford little help 89 op. cit., „ _ _ John A. Knauss 90 "Convention on the Continental Shelf, Adopted by the United Nations Conference on the Law of the Sea, Geneva, April 28, 1958 ," Article 5 Section 8. 410 as to whether shelf research requires physical contact with the shelf or seabed to be so classified, as the U.S. posi tion states. Or, is no physical contact required as other states hold. Again the matters of interpretation and in tent are raised. A similar situation obtains as between fisheries research and scientific research. Thus a lack of certainty among scientists is generated as to just what kinds of research are subject to control by a coastal state. Geographical jurisdictional uncertainties stem for the most part from the "rubber boundary" assigned to the seaward edge of the continental shelf by the 1958 Geneva Convention on the Continental Shelf as discussed earlier. The scientist is many times "faced with the dilemma of choosing between going ahead and doing his work or request ing permission of the coastal state, which may be denied, or, at least, may take a considerable length of time to 02 obtain...... [This]) represents a real handicap." 91 7 For more about the Geneva Conventions of 1958 as they apply to research and about fisheries research see Proceedings of the 4th Annual Conference of the Law of the Sea Institute...1969. o». cit.. pp. 368-72» Cong. Hearing, Activities of Nations in Ocean Space (Knauss), ££. c£t. at fn. 6. p p . 105-9. 114-15i and ...Proceedings of the 2nd An nual Conference of the Law of the Sea Institute...1967. op. cit. at fn. 81. p. 115. 92Ibid.. ...Proceedings...1967. pp. 115-116. kll Since the early 1950s there has taken place a change in the attitude on the part of many governments, particularly among the less developed nations, towards freedom of scientific research within their claimed sea and continental shelf areas. This has manifested itself to the community of ocean scientists in several forms, such as requiring detailed and long lead time notice when requesting permission to conduct research in coastal areasi forbidding such researchi delays in granting permissioni inflexibility regarding changes in research plans and bu reaucratic "red tape" and delays in approving such changest lack of welcome and enthusiasm in receiving research re quests, receiving research ships in port, and giving lo gistic support to research projects, vessels and personnel» and a lack of interest in research projects even when ten dered offers to participate and to make available all sur vey and research data obtained. Furthermore, many of these nations have extended their claims to ocean, shelf, and seabed areas. To the researcher these kinds of actions and responses all mean restrictions and controls which in turn mean less freedom to conduct research. The reasons for the change in attitude toward ocean science are many, but in general they are included among the following* 1. Intense nationalism and anti-colonialism among new 14-12 nations. 2. Real or Imagined national security fears. 3. The equating of scientific research to technology for exploitation. i*. The increasing economic importance of the oceans and seabeds, coupled with an inherent suspicion on the part of the poor and non-technically developed nations that the rich advanced nations will capture all of their (the poor nations') sea resources. 5* A lack of interest in research and surveys due to ignorance as to their value and interest in more pres sing issues such as hunger. 6. A lack of appreciation or knowledge of the impor tance of ocean science to mankind.^ Concerning the inclusion of the scientist in the decision-making processes the point that must be borne in mind is that science and technology cannot be divorced from the political and diplomatic issues to which they give 93 7^For further views on the subject of attitude see Gullion, ££• £iAt fn. 3» P« 88j Pacem In Maribus-1. op. £i£. at fn. 50, pp. 65-9i and Pacem In Maribus-2. ££. £i£. at fn. 4, pp. 351-9, 363. Also see Cong. Hearing, Activi ties of Nations in Ocean Space, gp. s X l. at fn. 6. pp. 115 8 for a copy of "Brazil's Regulations on the Continental Shelf" which is often cited by scientists as an extreme example of the type of hindrance and "road block" some nations are confronting them with in their pursuance of ocean research. rise.9* * All too frequently it is the politician, the dip lomat and the international lawyer who run the conferences and negotiations on oceanic matters and make the important decisions. While the scientist has in recent years entered government and taken part in conferences it is usually in the role of an advisor — not a decision-maker. Further, becoming a bureaucrat, politician or diplomat detracts from his scientific effort and is usually not to his liking. Thus the problem of injecting the scientific input into the decision-making process remains a problem. Professor War ren Wooster summed it up as followsi It is quite clear that ocean policy is not derived from ocean science. Ocean policy reflects national political interests which in turn are based on econo mic security, social and philosophical grounds, and science plays only a relatively small part in policy. [This may have been all right in the past, when ocean use was not dependent on scientific knowledge.] but we are reaching a point when scientific knowledge of the ocean is going to be increasingly important in the use of the ocean and its resources, because we are moving from a phase of exploitation to a phase of rational use. So science must become a major element in deci sion-making in the oceans.95 94See Cong. Hearing, Activities of Nations in Ocean Space, o p. cit. at fn. 6, p. 2. 9^A8 quoted from Pacem In Maribus-1. o p. cit. at fn. 50, pp. 73~7i t* John L. Mero makes the same type of plea on behalf of the users to technology — the fishermen, ocean miners, operators of marine enterprises, etc. See his "A Legal Regime for Deep Sea Mining," San Diego Law Review. Vol. VII,No. 3. 1970, p. ^88. 414 Although Wooster was referring to United States ocean policy his words are applicable on a worldwide basis. It is apparent, therefore, that the ocean science researcher must be heeded and set free from the numerous restrictions, uncertainties, limitations, and harassments to which he is now subjected and that, as Dale C. Krause has written, Any adopted regimes [for the oceanic areas] will under go great strain and would prove inadequate unless this freedom [of ocean research] is maintained, because al most certainly the kind of progress that we have made in the last ten or twenty years will be made in the future. Having taken a brief look at marine science and its problems and considerations, let us turn to its handmaiden, ocean technology. It is not the intent of the next few paragraphs to delve into all of the new marine developments modern technology has brought forth in recent years. Much of this has been presented or touched upon in the latter part of Chapter IV and in the two previous sections of this chapter. Further, much of that which was presented above regarding the oceanic scientific effort included or applies to ocean technology. These next several paragraphs there fore will be devoted for the most part to general comments 9 ...Proceedings of the 4th Annual Conference of the Law of the Sea Institute...1969. op. cit. at fn. 88. p. 394. ^15 and observations on the subject. First it night be well to define just what ocean technology is. Edward Wenk, Jr., defines it as meaning "to convey the complex process by which a technique is successfully applied to achieve a selected purpose," and that its "techniques are based more on scientific and en gineering research than on empirical experience or crafts manship."^ The Stratton Commission defines marine tech nology as f0II0W81 While science provides the key to understanding, technology is the key to expanded utilization of the oceans. The commission uses the term [marine technol ogy] to embrace the totality of knowledge, equipment, techniques, and facilities necessary to develop more effective ways to make use of the sea.9° Just as science has its fundamental (i.e., basic or pure) science and applied science, so technology has its funda mental technology and applied or specialized technology. The former provides a base or foundation for many uses, such as in the development of materials, power supplies and instruments suitable for use in the ocean environment 9 7 7'Edward Wenk, Jr., "Towards Enhanced Management of Maritime Technology," Pacem In Maribusi Ocean Enter prises. A Center Occasional Paper. The Center for the Study of Democratic Institutions (June 1970), p. 99. 980ur Nation and the Sea. ££. si£. at fn. 12, pp. 30-31. kl6 and the ability of man to work deeper and longer under water. The latter is the engineering and applied science development of means of applying techniques to specific endeavors, drawing upon the common reservoir of fundamental oq technology to assist in its development. 7 Since it is the application of technology to the development of the ocean resources and ocean environment that is at the heart of all of the changes or need for changes in international relations as they concern oceanic affairs, it is well to look at some of the things of a technological nature or possibility which makes this so. Some hint of such changes and influences can be gleaned from the above discussion of marine science — i.e., the uncertainties, changes in attitudes of governments, exten sions of national jurisdictions, etc. What are some of the other factors to consider and ponder? A primary consideration is the realization that the world is in the midst of a scientific and technological explosion. Technology is not at a static plateau — its development is accelerating at a pace that is leaving the necessary development of legal systems and institutions behind and outdated. Another factor to consider is that "ibid., pp. J*.5,31.32.35.36. 417 the new technologies, or at least many of them are requir ing or soon will require the participation or cooperation of many countries to realize the full benefits of such technologies. Some of the technologies require for their development and operation investment in excess of the capa bility of most countries and entrepreneurs. Then too, some new technologies have effects beyond national borders. In Speaking to this last point Edmund A. Gullion statesi These technologies, which can be thought of as global technologies, are represented, for example, in aspects of outer space applications, in nuclear energy, in the possibilities of weather modifications, in con cern over air pollution, and, of course, in many ele ments of exploitation and use of the marine environ ment. These global technologies, which are likely to become more prevalent as man's ability to control and influence his environment continues to advance in scale and degree, have the general effect of reducing a na tion's freedom of action to apply science and technol ogy as it alone sees fit, even at times within its own borders. .•• When it becomes technologically possible for one or a few nations to alter the entire earth's en vironment, perhaps irreversibly, or to destroy resour ces known to be needed by others, freedom of unilateral action may simply become unacceptable. And limitations upon unilateral action will be particularly relevant as technology becomes simpler and less costly, and spreads from a few advanced nations into the hands of many.*00 Thus it would appear that the steady advances of technology are forcing an internationalization of the world beyond anything previously encountered. Unilateral manage 100Gullion, cit.. p. 99. (See fn. 3 supra.) 4 1 8 ment of ocean technology Is In many Instances proving in effective and damaging to the environment. Because of the latter factor in particular we are shifting our outlook and priorities towards controlling and eliminating technology's damage to the environment. This will mean adopting the concept of managing technology on some sort of interna tional basis. Further, it should mean managing technology with a purpose and with planning towards worthy goals. Such goals might well include "preserving world orderi maintaining the quality of the environment! and accelera ting nutritional and economic health among less developed nations in order to reduce the continuing disparity between them and the technologically advanced nations."101 Cer tainly we should not "yield to the seduction of what is 102 technically feasible," particularly if it is solely profit oriented. Rather we should seek for the development of marine technology in an international framework which promotes a harmonious relationship among national govern ments, international organizations, corporate enterprises and academic institutions.10- ^ 101Wenk, , 2J 2. cit.. p. 101. (See fn. 97 supra.) 102Ibid. 103See ibid.. p. 100. 419 While science and technology do much good and hold great promise of a better life for the people of the world in the future, they are none-the-less culprits in the cre ation of one of the world's most urgent problems of today ~ pollution. As the direct and indirect creators (under man's direction) of most pollution they also hold the key to the diminuation or elimination of this objectionable blight. Of course, in placing the blame for pollution one cannot exonerate man himself nor mother nature, both of whom make their contributions. Since pollution of the "spaceship earth" is currently a much discussed and debated issue of great concern in the United States and quite a few other countries, it is assumed that all informed per sons will have at least a fair knowledge of it. Therefore only a few pertinent facts and considerations regarding it will be presented as background for evaluating the four draft treaties under consideration. It would appear desirable to identify just what pollution is, as it pertains to the marine environment, and what its sources are. Lord Richie-Calder suggests that it is "... a matter of exaggerated natural effects.^01* H. Gary Knight defines environmental pollution as "... the 104 Pacem In Marlbus-2. op. cit.. p. l6l. (See fn. 4 supraT) 420 physical contamination of the air or water with elements which are harmful to life or property,"10^ but he states that this definition when applied to the marine environ ment should be interpreted much more broadly. The sources of pollution are many and varied. Most, but not all, originate on the land and are carried seaward by winds and rivers. The land sources include fertilizers, pesticides, smoke, gases, industrial wastes including chemical laden effluents, sewage, garbage and other dumped discards including munitions and war gases, heated effluents, dredging spoil, radioactive wastes and fall out, heavy minerals, oily wastes and volcanic materi als. Sea sources include, or could include, ocean bed strip mining, at sea ore processing wastes, turbidity due to bottom trawling and ocean mining, oil from tanker ac cidents, ship spills, tank cleaning and bottom blows (i.e., seabed leaks), red tide, and lack of oxygen in the water?* There is also acoustical pollution in the oceans, although its effects are more bothersome than lethal. 10h i . Gary Knight, The Law of the Sea. Documents and Notes (1969), p. 480. lo6An Ocean Questi The International Decade of Ocean Exploration. National Academy of Sciences Publication 1709 (1969), p. 12» and Pacem In Maribus-2. jjrp. clt. at fn. 4, pp. 195-98. 1*21 The marine environment is particularly susceptible to pollution because most avenues of disposal terminate in the oceans. Until recent years very little concern regard ing it had been shown because the oceans were so large, our knowledge of them so limited, and our waste products rela tively small and harmless. The use of the ocean as a waste sink was taken for granted and the thought that it could be seriously polluted was scarcely entertained. However, both deliberate disposal and inadvertent discharge into the air over the seas and the seas themselves are steadily in creasing, and the old assumption that the capacity of the ocean to absorb such wastes is infinite has proven wrong in many instances. While not all waste discharges are necessarily harmful, most probably are, and "their deleterious effects include harm to living resources, hazards to human health, hindrance to maritime activities including fishing, and reduction of amenities."10^ It is not certain that harm ful wastes have not already caused irreversible changes in the marine environment and biota and it behooves us to pro ceed with care and greater concern for the ocean's health. It is certain that, "Mankind cannot assume the risk of pre- 107 An Ocean Quest. ££. c±±., p. 12. 422 1 _ Oft cipitating irreversible changes*” although man has the capability to do so now and this capability will increase in future years* As mentioned earlier, the seabed beyond the limits of national jurisdiction — the area of focus of this paper ~ is perhaps the area that is least disturbed by the problem of pollution at this point in time. It is the coastal areas, the estuaries, and the marsh lands — those areas that sustain or spawn most of the living resources of the sea including sea birds ~ which take the brunt of the ill effects of pollution. However, as mam continues to pollute he will leave his mark on the deep seabeds. Oil will continue to settle, forming a deadly layer over the ocean floor. The great circulatory oceam currents amd winds, the tides, and the upwellings will continue to spread pollutants oceamwide, hard mineral oceam mining may well leave scarred sterile areas of slag as does its lemd coun terpart.10^ The effects of turbidity, which oceam mining, at sea processing, bottom trawling, volcanic eruptions, 108 Pacem In Maribus-2. ££. £i£., p. 148. (See fn. 50 £U££&.) 10^See L.F.E. Goldie's Memorandum, Cong. Hearing, Activities of Nations in Ocean Space. ££. c££.. p. 301. (See fn. 6 supra.) 423 man-made explosions* and seabed oil seepage may well cause are not fully known but are probably of a deleterious na ture.110 What are some of the international considerations that arise over pollution or potential pollution? For one thing, marine pollution is not confined to national bound aries. Pollution generated by one country is transmitted by wind and water to other countries. Then too, living sea resources, particularly fish and sea mammals, respect no national boundaries. Unfortunately they have a great capacity for accumulating pollutants within their bodies with no harm to themselves but of great, even lethal harm to humans, sea fowl, and land animals who eat them. Thus what is or is not done in one country with regard to pol lution is of great concern to others and the solution to such problems points towards international regulation and management. Some believe that the present international legal framework does not provide for this in any kind of For interesting information on the effects of ocean pollution see Wesley Marx, The Frail Ocean (1969), passim, but particularly pp. 59-109. Also see Thor Heyer dahl's panel statement, Pacem In Maribus-2. ££> £il* at fn. 4, pp. 125-28t and Dr. Jacques Piccard's testimony, U.S. Congress, House, Committee on the Judiciary, Special Subcommittee on Submerged Lands, Marine Resources Conser vation, and Development Act. Hearings, 90th Cong., 2nd Sess., July 2^,25,30 and 31, 1968, p. 7. 424 positive way.^*^ However, arbitration decisions and recent 112 treaties provide basic legal rights and duties. Due to lack of education in matters of pollution and the urgent need to take care of more pressing needs such as food and health problems, the lesser developed na tions have shown little interest in matters of pollution. This, together with local and self-interest considerations, is causing some states to take unilateral anti-pollution action, for example the "Arctic Waters Pollution Act" passed by the Canadian Parliament in 1 9 7 0 . Thus, here again there appears to be a need for international regulation and management to prevent pollution chaos and to nurture the well being of the ocean environment. It further appears For further information on this subject see Robert B. Krueger, “International and National Regulation of Pollution from Off-Shore Oil Production," San Diego Law Review. Vol. VII, No. 3 (1970), pp. 542-48. 112 See for example Carl Q. Christol, "International Law and Oil Pollution of the Marine Environment," Journal of the State Bar of California. Vol. XLVI, No. 4 (July-Au gust 1971). pp. **59-o5i and the Trail Smelter Arbitration Decision which is extensively reported on and discussed in The American Journal of International Law. Vol. XXXII (1938), pp. 785-88» Vol. XXXIII (1939). pp. 182-212» and Vol. XXXV (1941). pp. 665-66, 684-736. in -'See Knauss, "Factors Influencing a U.S. Position ...," ££. cit.. pp. 21-22. (See fn. 85 supra.) that there is a need on a worldwide basis for greater edu cation in pollution matters, greater technical and scientif ic knowledge concerning it, a change in public attitudes and values towards it, and an effective system for the en- llii forcement of anti-pollution measures. Perhaps a world wide environmental monitoring system as proposed by Robert M. White would be a good starting point in the interna tional arena.His truism that "We have always been con cerned with protecting man from his environmenti now we are becoming concerned, and vitally so, with the overriding problems of protecting the environment against nan, portends response from any international ocean regime — even one for the seabed beneath the deep sea. As technology is the handmaiden of science, so, to a great degree, is conservation the handmaiden of pollution for as pollution maims, poisons, kills and destroys much of the marine biota, conservation seeks to prevent this. 114 See Pacem In Maribus-1. ££. cil., pp. 142-159. (See fn. 50 supra.) •^-’ Robert M. White, "Global Environmental Monitor ing — A Time to Take Stock," ...Proceedings of the 5th Annual Conference of the Law of the Sea Institute...1970. op. clt.. p p . 188-194.(See fn. 82 supra.) ll6Ibid.. p. 189. if26 However, the marine biota, especially those members of it that are sought for food, sport, or other human uses are subjected to another killer — man himself. The sport and commercial fishermen, the seal and polar bear hunter, the whaler, and the builder of dams which close off spawning waters ~ all contribute to the demise of a sizable portion of sea life. However the seas resources include more than just sea life. These resources are generally divided into two main categories — the living resources including plant life and the non-living resources. While the seabed beyond national jurisdiction, as mentioned above, will include few living resources, and although the above discussion regarding pollution presented some salient points concerning them, it would be well to take a brief look into some other facets concerning the conservation of such resources. The term conservation of living resources of the high seas' means the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum sup ply of food and other marine products."11^ Conservation programs for the sea's living resources..." should be for- 117 "Convention on Pishing and Conservation of the Living Resources of the High Seas, Adopted by the United Nations Conference on the Law of the Sea, Geneva, April 28, 1958," Article 2. **27 mulated with a view to securing in the first place a supply 118 of food for human consumption." The problem of fishery conservation has been dealt with over a period of many years and there has been devel oped quite a sizeable international legal framework in this field. Currently there are some twenty-three international fishery bodies and commissions dealing with this problem?*'^ In addition there are various other regional and bi-lateral agreements. All of these are "capped" by the 1958 Geneva 120 Convention on Fishing and Conservation. and to a lesser degree by its companion convention on the continental shelf. It would appear then that the conservation of living re sources is well covered by international agreements — and so it is. However, the sad fact of the matter is that many of the signators of such agreements or the nationals there of do not honor their commitments and there are no effec tive international controls nor enforcement agencies. ^See Wesley Marx, Sii* at fn. 65, pp. 272-7** and Wilbert McLeod Chapman, "The Ocean Regime of the Real World," paper read at the Law of the Sea Institute, **th Annual Conference, Un. of Rhode Island, Kingston, June 1969, P. 23. 120 See fn. 117 supra. 1*28 Many of the culprits persist in overfishing certain stocks even in the face of obvious extinction of them. The blue whale's plight is an example of this pursuit of greed and profit. Such actions and lack of effective enforcement measures have led some coastal states to take unilateral measures to preserve fisheries and breeding grounds within their adjacent waters. Other states have sought to extend their exclusive jurisdiction from the bottom of the conti- 121 nental shelves to the surface. The obvious internation al requirement is for a system of regulation and management that can enforce the rational conservation of sea life. The obvious hope is for more systematic methods of breeding, feeding and "farming" of sea life to enhance production and conservation. The non-living resources of the oceans are varied. They include such diverse things as tidal energy sources, cooling water and fresh water sources, recreation, sand, gravel, shells, oil, natural gas, sulphur, pharmaceuticals, coral, chemicals and hard minerals. While the interest in the sea's living resources goes back to antiquity and its legal web has been developed over the years, the interest 121 See Wolfgang Friedmann, The Future of the Oceans (1971). pp. 107-10. k29 in the non-living resources, at least to any great degree, is a relatively new phenomenon on the international scene which has been and continues to be, sparked by modern tech nology. A legal framework to govern the seabed beyond na tional jurisdiction and its resources is developing but so 122 far it is incomplete. The lack of a total oceans' re gime constitutes the primary raison d'^tre for the inter national clamor for an improvement in existing conditions. While conservation of living sea resources deals with the preservation and enhancement of self-sustaining and self-replenishing species and of links in the ecolo gical chain of life, the conservation of non-living re sources deals primarily with prevention of the depletion of resources which when once used up are gone forever. Thus conservation of non-living resources for the most part demands regulation, control and management of exploitation, re-cycling and reclamation programs, frugality and reason ableness in consumption, and exploration, survey and in- 122 The 1958 Geneva Conventions on the Law of the Sea as concern the territorial sea and the continental shelf give the adjacent coastal state sovereign rights over the sea's natural resources in and on these designated sea areas. To be noted in this connection is the fact that there is no explicit seaward boundary to the continental shelf due to the so-called “rubber boundary" definition of it. Of note also with regard to the current international seabed legal framework are the many regional or stock con servation agreements. 430 ventorying of sources* Conservation management should probably urge the use of land sources first while at the same time developing the technical and source knowledge to enable us to shift to sea and seabed sources of supply when land sources are exhausted. Along this same line of thought but from purely a national security point of view, it would behoove coastal nations to develop sources of strategic resources required as a backup supply against withdrawal of overseas supply. Based on the above review of some of the pertinent scientific, technological, pollution and conservation is sues and considerations which are believed relevant to a regime of the seabed beyond the limits of national juris diction, the writer has drafted certain selected questions and considerations which he feels would be pertinent in comparing the various model treaties' responses thereto. As mentioned in previous sections, where an issue has al ready been covered, it will not be repeated in this section. However, if deemed advisable for clarity or continuity, a summary of such coverage will be included below. Let us proceed, therefore, with the comparative examination of the ^Don Walsh briefly mentions this in a 1965 lec ture of the Edwin A. Link Lecture Series, published in pamphlet form as "The United States and the World Ocean" (1965). p. 6. 431 four selected draft treaties. 1. In dealing with marine science, technology, pollution and conservation do the model treaties deal with them in the context of the marine environment as an ecolo gical whole or only with the seabed thereof? This question is covered in the Chapter VIII, Poli tical Aspects section under Item 13 of Topic I thereof. Essentially the treaties treat the question as followsi A. Borgese.— “Ocean space- which includes “the high seas, the territorial waters and contiguous zones» the atmosphere above its the continental shelfj the sea-bed and what is below it" (see Art. Ill 1) is the area in which the Borgese Treaty deals with the four factors mentioned (See Arts. II B5, IV 3. and V a6 and 7). B. Pell.— The Pell treaty deals with the factors in question in the area of the high seas and the seabed beyond national jurisdiction which it defines as comprising “ocean space". Freedom of scientific investigation in ocean space is guaranteed (Art. 4)t conservation of high seas fisheries is prescribed (Art. 11)i coastal state interests in sea resource conservation measures in adjacent sea/seabed areas is prescribed [Art. 16 (c), (d) and (e)]» contami- 432 nation in and near licensed areas are prohibited [Art. 16(f)]i and safety regulations concerning the disposal of radioactive wastes are called for (Arts. 28 and 29). However, treatment of the four factors is piecemeal and overall specificity is lacking. C. U.S.— This treaty applies only to the international seabed although provisions are made for such things as the protection "of the marine environment" (Art. 9)i "to encourage, and to obviate interference with, scientific research" (Art. 24)» the "protection of the marine environment against pollution arising from exploration and exploitation activities such as ..." from marine exploitation activities (Art. 23)1 and the conservation of living resources of the seabed (Art. 2?h). Articles 40j,l and m and 68d,e and i are also pertinent. Conservation and pollution coverage is limited. D. Danzig.— The Danzig Treaty applies almost wholly to the seabed beyond national jurisdiction (Art. I). Freedom of scientific investigation "in, on or under the ocean bed" is guaranteed (Arts. II, X and XI)1 pollution of the seabed or high seas is prohibited [Art. IX and XIII A(ii)]i and technology improvement is encouraged [Art. XIII A(iii)]. Conservation per ^33 se is not mentioned. 2. Do the regimes provide for the promotion of international cooperation in scientific research for peace ful purposes? This is covered in Chapter VIII, Political Aspects section. Item 10, Topic I thereof and in Chapter VII, Com parisons section, Item 3t Topic VII thereof, which is briefly summarized belowi A. Borgese.— Generally provides for this but lacks in specific provisions. B. Pell.— Makes some provisions but lacks in specifics. C. U.S.— Provides for in full. D. Danzig.— Makes partial provisions for. 3. Do the treaties prohibit military intelligence gathering aircraft and vessels from using oceanographic research as a deceptive cover? All of the treaties stress that marine exploration and exploitation be carried out for peaceful purposes. In the context of the above question the term peaceful pur poses is not defined. None of the treaties specifically forbid the use of this deceptive cover and it is probably unreasonable to expect that an international regime could enforce such a prohibition even if it were included in its text. It is to be noted that the U.S. and Danzig drafts kjk deal almost wholly with the seabed and thus the operation of surface ships and aircraft would not be included within their purview. The most likely place for such a prohibi tion to be enacted would be in a revision of the 1958 Gen eva Conventions on the Law of the Sea. 4. In view of the restrictions, limitations and uncertainties that have been placed upon marine scientific research efforts in recent years do the model treaties call for the guarantee of freedom of scientific research in the areas with which these treaties deal? The answer to questions 1 and 2 above partially respond to this question. Promotion of ocean science and international cooperation in pursuance of ocean science are generally supported by all of the treaties. The stip ulation that there shall be freedom to conduct fundamental basic or pure marine science in the areas covered by the treaties is as followsi A. Borgese.— Includes as a fundamental principle that "there shall be freedom of scientific investigation in ocean space ..." (Art. II B5), and as an objec tive that "The Regime shall seek to accelerate and enlarge research and exploration of ocean space ..." (Art. IV 1). Further "The Regime is authorizedi 1. to regulate, supervise, and control all activi- *35 ties on the high seas and on or under the sea-bedt ..." (Art. V Al). B. Pell.-- Article 2 provides in part that "Ocean space ... shall be free for exploration ... by all nations ... and [that] there shall be free access to all areas of ocean space*" Article 3 provides in part that "There shall be freedom of scientific investi gation in ocean space ...•" C. U.S.— Article 2*f under the treaty's "General Rules" deals specifically with scientific research and states in part that "Each Contracting Party agrees to encourage, and to obviate interference with, scientific research." The area to which this pro vision applies is not specified but presumably the "General Rules" apply to both the "International Seabed Area" and the "International Trusteeship Area." D. Danzig.— As mentioned under Question 1 above, Ar ticle II provides that "There shall be freedom of scientific investigation in, on or under the Ocean Bed.." Thus all provide for freedom of scientific research but the area to which the provisions apply vary in extent. 5. Do the treaty models attempt to make a distinc- kj6 tion between fundamental scientific research and explora tion as a prelude to exploitation? A. Borgese.— There appears to be no attempt to define any differences between the two terms as they may relate to separate intents or purposes. However, the terms are generally used separately rather than interchangeably and there does seem to be an implied difference between the two terms since by Article IX E3 exploration is subject to licensing along with exploitation, whereas research is not. B. Pell.— The same as above for the Borgese treaty applies. (See Arts. 4 and 15) C. U.S.— This treaty by Article 75(7) makes the pre cise distinction between research and exploration as given in the above question. D. Danzig.— The same as above for the Borgese treaty applies. Although Articles II and III very clearly imply the distinction between the two terms. Article XIII A(v) beclouds the distinction. 6. Is provision made in the treaties for represen tation from the ranks of ocean scientists and ocean tech nologists in the regime's decision-making processes? A. Borgese.— Affirmative — in the 2nd, 3rd and 4th Chambers of the Maritime Assembly (Art. IX B2, 3 and *37 *), in the Maritime Planning Agency (Art. X A), and in the Maritime Secretariats (Art. XI *). B. Pell.— Negative — the only executive and legis lative organ mentioned is a "licensing authority" whose membership make up is not specified. Article 13# however, does state that this authority shall be "technically competent", so it could include ocean scientists and technologists as members. C. U.S.— Affirmative — although the qualifications of the members of the Assembly and the Council are not specified, the three commissions, i.e., Rules and Recommended Practices, Operations, and International Seabed Boundary Review, each require scientific and technological representatives in its membership (Arts. *3* ** and *5)* This, of course, does not en sure that scientific and technical personnel are in cluded in the higher levels of the decision-making processes, i.e., that of the Assembly and the Council. D. Danzig.— Negative — the membership qualifications of the Ocean Agency and its Board of Directors are not specified, but it appears that their members would probably be political and business management types. Provision is made for various committees such as on Boundaries, Licensing Standards and Pro- 438 cedures, and Legal. Their membership qualifications are not specified and it would appear their role would be advisory only (Art. XIII B). 7. Is provision made in the treaties to authorize scientific and technological installations on the seabed beyond national jurisdiction and to give them legal sta tus? The answer is yes in each case on both counts, al though the Danzig treaty's text is rather weak on these points (See Table 8, Chapter VIII). 8. Is provision made in the treaties to authorize scientific free floating non-tethered instruments on the ocean's surface and to give them legal status? The treaties make no mention of such instruments. These instruments do not lie within the purview of the U.S. and Danzig treaties. 9. Do the treaties provide for ameliorating the distrust and suspicion of the advanced nations held by many of the lesser developed nations concerning scientific research and sea resource exploration and exploitation? The answer is yes in each case. See Chapter VIII, Political Aspects section, Topic I, Items 1,2,5,6,7,8,10, 11,12,13,14 and 15. 10. Do the treaty models provide for a flexible 439 type of management for the application and growth of ocean technology? The answer is yes in each case. Examination of the machinery and organs of the four treaties as set forth in Chapter VII will reveal that this is so. 11. Do the model treaties make satisfactory provi sions for the prevention of pollution and for the enhance ment of the conservation of living and non-living sea re sources? Is responsibility for carrying out the regimes' provisions clearly placed? Is damage caused subject to liability? The response is yes in each case on each subject. These subjects were covered in Chapter VIII, Political As pects section, Topic I, Items 11, 13 and 14, and Chapter VII, Comparisons section, Topic VII, Item 8, and, to some extent, under Question 1 above. 12. Are programs for worldwide education in pollu tion and conservation matters provided for? Are environ mental pollution and conservation monitoring and surveil lance systems provided for? The response is no in each case for each of the above subjects. Since these are operational and program matters they properly should not be included in the regimes' texts. CHAPTER X CONCLUSIONS ... no challenge [Is] more urgent than that of bringing Twentieth Century man and his environment to terms with one another — of making the world fit for man and helping man to learn how to remain in harmony with the rapidly changing world. — President Richard M. Nixon It will be recalled that the purpose of this re search project is to comparatively examine in relation to one another four proposals for regimes designed primarily for the international governance of the seabed and ocean floor beyond the limits of national jurisdiction including the resources to be found thereon and therein. The scope of the study was narrowed so as to focus primarily on this portion of the seabed and its resources in the time frame of 1967 to circa 1978 and essentially as viewed through United States' eyes and against the matrix of the "real world".1 The study's assumptions as set forth in Chapter V will, it is believed, remain reasonable and valid during this period. The extensive background given in Chapters II, III and IV and the additional information set forth in later ■^See fn. 1, Chapter V supra. l+i+O 441 chapters concerning various pertinent issues and problems will have, it is believed, given the reader sufficient in sights and knowledge both for understanding the raison d'etre for the many and varying provisions of the four pro posed seabed regimes covered by this study and for arriving at his own personal judgments and evaluations concerning them. The study's approach is set forth in Chapter V and the actual comparative analyses are contained in Chapters VI through IX. The findings of this research should be quite obvious to those who have examined the various com parisons, tables and summaries set forth in the last men tioned group of chapters. There still remains the need to identify overall findings and conclusions relating to the four objectives of the analysis given in Chapter V and the offering of a few of the author's personal opinions and ob servations relevant thereto. This, then is the purpose of this chapter. The four above mentioned objectives are set forth and addressed in the succeeding paragraphs immediately belowi Objective No. 1. Determine the extent to which each draft treaty addresses itself to the principles for the governance of the area and resources set forth in the United Nations General Assembly Resolution 2749 (XXV). khz Comparisons of the responses of the four model re gimes to various of the fifteen principles are given in the Political Aspects section of Chapter VIII under Topic I thereof. For reasons given therein it was not considered useful or valid to compare the regimes as to their respon- ses to certain of the principles or portions of them. Table 5 summarizes the support the various regimes give to the principles. The findings (not considering principles k and 13) are that all four of the treaties give some sup port for the various principles but none gives full and clearcut support to all of them. The Borgese model is the most consistent supporter of the principles, being weak only in its support of principle 10. The U.S. and Pell treaties give only partial support in the case of four and the Danzig in the case of five of the principles. In the case of principle 13, although not applicable for true com parisons, it is obvious that the Borgese regime would modi fy the present legal status of the high seas and the pres ent territorial sea, shelf and contiguous zone rights of coastal states whereas'the other three regimes would not. The various principles are general and broad in nature and much of each regime is likewise general and 2 Viz. principles k and 13 and portions of 3,5,6,8 and 9. broad. Therefore it is difficult to arrive at a meaningful comparison as to the degree of support given by the regimes to the principles. However, the Borgese and U.S. models are more detailed in their provisions than are the Pell and Danzig models and, generally speaking, they render more de tailed support to the principles. It is noted that all of the model regimes, except the Danzig model, pre-date the U.N. resolution on principles.3 The Danzig model in draft form appeared almost at the same time as the resolution. Based on the comparisons and the findings regarding the first study objective the writer feels amply justified in concluding that in general each of the draft treaties gives a high degree of support to the above mentioned Uni ted Nations resolution principles for the governance of the seabed beyond national jurisdiction. There are some weak spots in this support in all of the treaties, but consider ing they (with one exception) pre-date the resolution the conclusion can be made that much thinking in informed U.S. circles on such matters is favorably disposed to the U.N. General Assembly resolution principles. From this I be lieve the further conclusion can be drawn that much U.S. governmental and non-governmental support will be given 3U.N. Doc A/R 27^9 XXV. for the adoption of a reasonable and practical internation al regime for the area and resources beyond national limits which embraces these principles. Objective No. 2. Explore the extent to which each draft treaty copes with selected issues and problems gener ated by the advances and changes taking place in the deep oceans and elsewhere in the world. In Chapters VII, VIII and IX various problems and issues are discussed and the four model treaties are com pared as to their coverage of and support for them. As the analyses in these chapters plainly show, the general find ing under objective No. 2 is that each of the draft trea ties copes quite well and generally in sufficient detail with most of the issues and problems discussed. The writer hastens to add that each model copes with them after the fashion of the philosophy in the image of which the partic ular treaty is fashioned and that he makes no finding as to a correct or a right or wrong solution. There are several issues or problems to which one or more of the treaties do not respond. However, in any evaluation of such omissions one must judge each on the basis of its merit and the under lying draft treaty philosophy, purposes and objectives. An outstanding example of this is the poor showing the U.S. model appears to make in the National Security Aspects sec 445 tion of Chapter IX. This is not due to any oversight, ra ther it is due to the fact that the U.S. model is based on the philosophy that disarmament and military issues proper ly belong in disarmament and military forums and agreements — not in a regime for the governance of an international seabed. Perhaps in this respect the U.S. model is right and the other three models have erred. The reader must make his own judgment and evaluation as to this and similar type facets. In an effort to present a visible summary of the results of a comparison of the four models in the light of objective No. 2, the author, with full knowledge of the weaknesses inherent in such a presentation (such as that set forth immediately above), has selected forty-four of the various items covered in Chapters VII, VIII and IX as relevant issues and problems and has presented them in Table 13 below. The table sets forth three categories of the degree of response of the treaties to these items based on coverage in previous chapters. The number under each category represents the number of the forty-four items in each case that fall within the particular category. While this display gives some information regarding the ex tent of coverage or support given to various categories of such items the reader is again cautioned not to make blind 446 and unevaluated assumptions on the basis of the tabulated figures. With regard to the study's objective No. 2 and based on the findings concerning it, the author feels it fair to conclude that all of the draft treaties, regard less of their underlying philosophies, objectives, and purposes, were drafted with careful consideration for most of the many issues and problems which have surfaced in the multitude of studies, debates, discussions, seminars, pa pers, hearings, and reports on the seas and their seabed that have been generated during the past several years. Further, based on the study's analyses, including the Table 13 figures, it seems fair to conclude that of the four treaties the U.S. draft in its treatment of various issues and problems covers them to a greater extent in precision and detail than the other models — allowances being made, of course, for the fact that there are some items which the U.S. proposal's parameters exclude from consideration. Objective No. 3« Probe the extent to which each treaty calls for international regulation and control of the sea bed beyond the limits of national jurisdiction. Topic VI, Chapter VII, gives possible approaches for a seabed regime. These vary from a narrow nationalis- TABLE 13 SUMMARY OF COMPARISONS ON PROBLEMS AND ISSUESt THE NUMBER OF TIMES BY CATEGORIES EACH TREATY SUPPORTS OR 'AILS TO SUPPOFIT SELECTED ITEMS Topic/Question Supports/ Covers or supports Neither Covers Numbers Covers Well in Part Nor Supports CHAPTER VII Comparisons Borgese IX A, IX B 2 0 0 Pell 2 0 0 U.S. 2 0 0 Danzig 2 0 0 CHAPTER VIII Political Aspects Borgese II through VI k 1 0 Pell 3 1 1 U.S. 5 0 0 Danzig k l 0 Leeal Aspects Borgese I through VIA 5 3 0 Pell 7 1 0 U.S. 6 1 1 Danzig 5 3 0 CHAPTER IX Economic Aspects Borgese 2 10 Questions 8 2 0 Pell 8 2 0 U.S. 8 0 2 Danzig • » 6 2 2 National Security Borgese 1 through 9 9 0 1 Pell 9 0 1 U.S. 2 0 8 Danzig 6 1 3 TABLE 13 — Continued 5sifintlfi£Jkass£la Borgese 2 through 11 6 1 2 Pell 5 1 3 U.S. 8 0 1 Danzig k 2 3 TOTALS Borgese All kk Items 3^ 7 3 Pell y* 5 5 U.S. 31 1 12 Danzig 27 9 8 TOTALS EXCLUDING MILITARY QUESTIONS Borgese 8 Items k Excluded 27 7 2 Pell 27 5 4 U.S. 31 1 4 Danzig 23 8 5 NOTESi 1. Topics VI A, VI B, and VI C are counted as 3 topics. 2. Includes Living Resources Questions I.3.1 * and 5 and Non-Living Resources Questions 1.2,5*8,9 and 10. 3> Questions 6 A and 6 B are counted as 2 questions. Questions excluded are National Security questions 3 through 9. Question 6a and 6B is counted as 2 questions. A few questions in previous chapters have a seabed part and a high seas or water column part. This table considers only the seabed portion of such questions. tic approach to an international regime approach. All four of the draft treaties embrace the latter, although the U.S. draft does incorporate a nationalistic compromise in its International Trusteeship Area arrangement. All of the model treaties with minor exceptions are in harmony with the U.N. General Assembly Resolution 27^9 (XXV) which concerns principles for the governance of the international seabed. (See Topic I, Chapter VIII, Political Aspects section, and Table 5*) Since these principles are inter national regulation and control oriented, this gives fur ther indication of the extent to which the treaties call for such regulation and control. Topic II — Internation al/National Seabed Boundary and Topic III — The Island Problem of this same section, give more indication that all the treaties are international control and regulation oriented. Thus the general finding under objective No. 3 is that all of the draft treaties are oriented towards and committed to extensive international control over and regu lation of resources and activities on and under the seabed beyond the limits of national jurisdiction. There is, however, another facet to objective No. 3 This facet is the extent to which the various treaties are oriented towards and committed to United Nations control and regulation of the international seabed. Here the find- 450 ings are different as the coverage tinder Topic V, Chapter VII, and Topic IV of the Political Aspects section of Chap ter VIII give ample evidence. The findings as concern U.N. orientation are that the U.S. draft avoids completely any ties to or controls by the U.N. At the other end of the spectrum the Danzig draft, which gives title to the inter national seabed to the U.N. and proclaims its Ocean Agency is a corporation chartered by it, is indeed a "creature" of the U.N. The Borgese and Pell drafts lie in between these two extremes with the Pell draft being more beholden to the U.N. than the Borgese draft. In view of the above it is believed reasonable to conclude that all four of the model regimes reject the na tionalistic approach and are deeply committed to interna tional control over and regulation of the international seabed to a more or less similar degree with the one ex ception of the U.S. compromise with nationalism as pertains to the International Trusteeship Area. It can be further concluded that all of the models except the U.S. model are biased in favor of U.N. influence and control and that one of the reasons for this is to seek worldwide legiti macy through U.N. sponsorship even at the risk of loss of autonomy. Objective No. 4. Obtain a measurement, or at least an appraisal, for the weaknesses and strengths of each *51 treaty, in order to give an indication of the order of mer it of these proposed treaties relative to each other as weighed against information generated by this study and l against the matrix of the "real world". In responding to objective No. k the author finds himself in the dilemma of being possessed of a profusion of relevant opinions and observations but of being faced at the same time with a lack of hard facts upon which to base unbiased findings and conclusions. As pointed out in the Approach section of Chapter V this project deals with a new fast moving subject which is likely to incur comparatively rapid change. It was further pointed out that the project does not lend itself to the use of the more modern analyti cal methods and tools, and that the debate on the subject has generated many and varied views, judgments and biases. It is therefore deemed valid to state at the outset that there is no meaningful way to obtain a measurement in a statistical sense of the strengths and weaknesses of each of the draft treaties that would validate a factual rela tive order of merit among them. Further, since the draft treaties were drawn up with different purposes and objec tives in mind and with different parameters as guidelines. I I See fn. 1, Chapter V supra. 452 it is questionable whether they lend themselves to a true and common ground comparison which would support an order ing of merit. Consequently the author has elected to point out such findings, based on Chapters VII, VIII and IX, as he feels are pertinent and to state such conclusions as may logically be based thereon. Thereafter he will offer such opinions and observations concerning the model treaties as he believes to be pertinent and relevant. In this vein then it is appropriate first to men tion the relationship between the draft treaties and the U.N. principles as discussed under objective No. 1 above and under Topic I of the Political Aspects section of Chap ter VIII. It will be recalled that the Borgese draft was the most consistent in its support of these principles while the U.S. and Pell drafts were about equal in their support with the Danzig draft giving slightly less support than the others. On the whole, however, all drafts gener ally supported the principles with their weaknesses being for the most part due to vagueness and lack of specificity in some areas rather than non-support. Next to be mentioned are the strengths and weak nesses exhibited by the draft models as they relate to vari ous issues and problems as set forth under objective No. 2 above, although the caution mentioned therein should be kept 453 firmly in mind when drawing conclusions therefrom. It would appear, however, that if the military items ~ which the U.S. treaty purposely avoids ~ are disregarded, the U.S. draft is the best and the Danzig draft the poorest in providing satisfactory and precise coverage for various selected issues and problems. The Borgese and Pell drafts fall between these two with the Borgese draft having a slight edge over the Pell draft. More meaningful, perhaps, as a yardstick is the de gree to which the four regimes measure up to the objectives to be served by an international seabed regime as adopted for use by the U.N. Seabed Committee in 1970.^ As Topic VII shows and Table 2 summarizes, the U.S. draft adequately satisfies all of the objectives, the Danzig draft least satisfies them and the Borgese and Pell treaties fall be tween these two extremes and are about equal in their sup port . ^ Concerning these U.N. adopted objectives the Bor gese and Pell models give no specific support to the en couragement of the development of services (objective 4) ^See Topic VII, Chapter VII supra. ^Objective 12, because of its nature, is not inclu ded for comparative purposes. 454 and the Danzig draft does not include even vague refer ences or generalities in this matter. In the area of the assignment of seabed mineral rights (objective 5) four facets were set forth as followst (1) Protection of the integrity of investments. (2) Encouragement of economic efficiency in exploration and exploitation. (3) Prevention of a race for claims. (4) Discouragement of speculative holdings. The Borgese draft gives meager to no support to any of the above items. The Pell draft supports (1), (2) and (4) but gives only vague generalities in support of (3). The Dan zig draft supports (1) and (2) but gives no support to (3) and (4). With regard to objective 6 which provides for a reasonable return on risk investment the Borgese draft's support is general and imprecise while the Danzig draft gives it no support at all. The seventh objective calls for the providing of revenue to benefit international com munity purposes, both to meet needs of developing nations and the expenses of operating the regime. The text of the Pell and Danzig models provide for the latter but not the former. Objective 8 has to do with protecting human life, preventing conflicts, environmental protection, and the ob- ^55 servation of sound practices. The Danzig treaty does not provide for the protection of human life and is very gen eral and non-specific in its support of the other facets. The ninth objective deals with liability proce dures and damage claims. While some general support is given in this area by the Borgese and Pell models, specifi city is lacking. Objective 10 provides that rules should be stable but flexible. Neither the Pell nor the ’ Danzig drafts support this objective except in broad generalities. Thus it can be seen that certain specific weaknesses and strengths in the draft regimes are revealed when measured 7 against this United Nations yardstick. A perusal of Topic VIII, Structural Organization, and Table 3 of Chapter VII reveals a weakness in the Pell draft in that it provides for neither a legislative nor an administrative branch to run the regime and in the Danzig draft in that it fails to provide for an administrative branch. Neither of these drafts provides for an adminis trative branch. Further, neither of these drafts provides for planning nor for regional arrangements. Although the ^Where a treaty is not mentioned vis a vis an ob jective it signifies that the treaty satisfies the objec tive. Where objectives are not mentioned — there are 11 of them used — it signifies that all of the draft treaties satisfy these objectives. 1*56 Pell regime provides for an elaborate enforcement agency in its Sea Guard, its practicality and effectiveness have been seriously questioned. Enforcement of regime policies, pro cedures and legal determinations constitutes a weakness in all of the models. The Danzig regime makes no provision O for members to withdraw from the regime agreement. All of the regimes lack precision in their definition of the sea resources they include in and exclude from their jurisdic tions. The Pell draft has weaknesses in that representa tion and voting procedures within the regime are not pro- o vided for. In providing for the legal status of seabed devices and installations the Danzig model is vague and general and the U.S. draft has one minor omission.10 The Borgese and Danzig models are not clear in their provisions and procedures for dispute settling at the administrative level.11 8See Topic IX D, Chapter VII. ^See Topic VI, Chapter VIII, Political Aspects section. (This item is also included under Objective No. 2 supra.) 10See Topic I and Table 8, Chapter VIII, Legal Aspects. 11See Topic VII, Chapter VIII, Legal Aspects. **57 It is apparent that the findings under objective No. ** are based more on such things as coverage, specifi city, omissions, and generalities than on such attributes as quality, practicality and acceptability. Further inter pretation of the facts determined tends to veer off into the realm of personal opinions, judgments and evaluations. The author therefore can reach no meaningful conclusion con cerning the relative order of merit of the four treaties. However, based on the findings as concern the four models there does appear to be a pattern which indicates that the U.S. model is more precisely written and gives better cover age to the many objectives and desirable features of an in ternational seabed regime while the Danzig model seems to be the least precise and the most riven with vagueness, generalities and omissions. In this pattern the Borgese and Pell models appear to lie between the other two with the Pell model seemingly being the more possessed of gen eralities and non-specifics. The author hastens to assure that such a pattern does not indicate any order of merit as to the quality, practicality or acceptability of the draft treaties. At this point the writer will depart from facts and conclusions drawn therefrom and indulge in the heady but challengeable realm of opinion and observation. Such 458 personal views, however, are well grounded in the experi ence of many seagoing and ocean oriented years, some post graduate work in oceanography, and a number of years as a student of international relations and foreign affairs. In reflecting upon the spectra into which the four treaties might fit during the near term it appears that the Borgese model is at the idealistic end of a spectrum while the U.S. model is at the realistic (in a real world sense) end. The other two treaties fall in between, both being nearer to the Borgese regime in this respect, with the Danzig model being the more idealistic of the two. In another spectrum the Borgese draft favors the bold, radi- 12 cal and unorthodox approach while the U.S. treaty veers towards the pragmatic, diplomatically acceptable, and com promise approach. Again the other two models lie in be tween and favor the Borgese draft end of the spectrum about equally so. When the national versus international spectrum is viewed it is obvious that all drafts are clus tered at the international end. However, the U.S. draft does compromise with nationalism in specifying national 12 Mrs. Borgese admits she has taken this approach. See Elisabeth Mann Borgese, "The Ocean Regime," A Center Occasional Paper. Center for the Study of Democratic Insti- tutions.(1968), pp. 6-8 passim. **59 control over the International Trusteeship Area and there fore appears to be more favorably inclined toward the na tional end of the spectrum than the others. Also the Bor gese draft seems to veer more than the others towards in ternationalism. Indeed its Article IIC specifies that the Ocean Regime "shall provide a framework for the future pattern of international organization." Again the Pell and Danzig drafts appear to lie in between the other two and about equally so. A logical question to ask and one which this paper has not yet addressed isi Have the draft treaties accomp li lished the purposes which they were designed to fulfill? J In this writer's opinion all of them have at least made progress towards their goals. It seems fair to state that the Danzig and U.S. treaties have accomplished the purposes for which they were drafted. While the end which the Pell draft sought to bring about (i.e., to induce the executive branch to propose a U.S. draft ocean regime treaty) has been accomplished, it is not clear what part the Pell draft played nor how much influence it exerted. One surely can not say that the Borgese draft has accomplished all of its purposes. However, certainly it has made its contribu- ^See Topic I of Chapter VII. 46o tions and its impact has been felt in U.S. and internation al circles. Then, too, one must consider that its six pur poses embraced grandiose objectives and entailed sweeping changes in several fields of international endeavor. The accomplishment of such changes as the Borgese draft treaty intends is not brought about quickly. However, regardless of the progress, or lack there of, of the treaty models in accomplishing their various purposes, they have all served as useful models in the con tinuing great debate concerning the issues of the sea and seabed. Of such models, Robert Friedheim writesi Models are useful to stretch men’s imaginations, to show what might be if there were no environment to con sider. As exercises, they demonstrate to men (depend ing upon certain "givens'*) what would be the "best" and "worst" solutions to the problems studied. But in the real world, we simply cannot hold constant those fac tors which would impinge upon the working of the model if it were applied. Models to be useful as social, economic, and political tools must be able to confront the problems that exist or either work within or elim inate the constraints of the real world.^ In the author's view none of the four models fully "confront the problems that exist* nor can any of them "eliminate the constraints of the real world" so they must therefore "work within ... the constraints of the real 14 Robert L. Friedheim, "Understanding the Debate on Ocean Resources , “ Occasional Paper No. 1. The Law of the Sea Institute (February 1969), p. 62. 461 world." It will be recalled that the writer's view of the "real world" was "... the world of real politiK. harsh economics, intense nationalism, conflicting ideologies, rising expectations, tenuous national security, rapidly advancing ocean science and technology, diminishing natural resources and the rising spectre of pollution. On the presumption that this is so, the author offers the following general observations concerning the four model treaties vis a vis the real world as he sees it to be now and continuing on into at least the next few years» A. Borgese.— This model is believed to be too ambi tious, unorthodox, idealistic and internationally oriented to gain the general near term acceptance of a majority of the 146 nationstates. Further, were it to be implemented it is felt that its large complex machinery would prove too cumbersome and expensive for efficient and effective opera tion. Also, by making its provisions applicable to the area and resources beyond national jurisdiction including its subsoil, the high seas water column and even the air space thereover and in addition including the military and disarmament issues and problems, it has, in the author's ^See fn. 1, Chapter V supra. k62 opinion, included too big an arena and too many and diverse issues to be able effectively to cope with them all. How ever, it is and has been of great value as a progenitor of bold new ideas and as a framework within which to hold the very useful convocations in the Pacem In Maribus series. It may well prove to be a framework upon which to build future international organization if and when the world is ready to accept international government. B. Pell.— The Pell treaty is a pioneer document and as such it has served well as a vehicle for the sponsoring of meaningful congressional hearings and general public and private debate, and it has contributed good ideas and some well thought out procedures. However, in the opinion of this writer it contains flaws which would prevent its being adopted in the near term by a majority of the world's na tion states as an ocean regime. Among these are that it accepts too much international authority! it gives great power to its Licensing Agency but fails to describe and de fine its makeup and organization! it assigns all legisla tive, executive, judicial and administrative powers and functions to the Licensing Agency or, perhaps, fails to provide for some of them! and it is tied in too closely with the United Nations organization. Further, although the idea of a Sea Guard is laudable and the Pell model is ^63 the only one of the four models that attempts to solve the enforcement problem through coercive means on the regime level, It Is none-the-less deemed to be Impracticable and unworkable In the conditions of the near term real world. The close tie in of the Sea Guard to the U.N. Security Council is felt to be a further flaw. The inclusion of the military and disarmament issues is believed likely to prove a fatal fault. The Pell treaty lacks "fleshing out" and as such it is believed to be pretty much as described by Mrs. Borgese — "... a code governing the activities of States — nothing more."^ C. U.S.— The U.S. treaty is the only one of the four draft treaties that was forged in the crucible of govern mental debate and compromise and that has been labeled as a "working paper" and submitted to the United Nations Sea Beds Committee with the expressed idea to the effect thati "Here is our (the U.S.) best thinking on these matters. Please accept it as a basic working paper to be considered, debated, modified, revised and perhaps even discarded as the majority wills, but it is believed to have sufficient J.7 merit to be acceptable to many divergent views . For ^Borgese, 2E* cit.. p. 2. 17 'Not a quote per se. Quotation marks are a matter of writing style only. k6k these reasons the writer believes the model has a good chance to emerge at least as the basis for a future accept* able international seabed regime, although there are bound to be many revisions, additions and deletions. It is felt, however, that the model has features which could well be detrimental to its acceptance. For example, it is believed to be too long and too detailed and for this reason it may well become submerged and lost in a welter of debate over detail. Here, however, the author is at a loss to know which is the best course of action to pursue to gain gen eral acceptance of any seabed regime. Is it better to try to obtain majority agreement on a detailed regime whose provisions are debated and understood at the risk of ob taining no agreement at all? Or, is it better to obtain agreement on a non-specific and generalized regime only to find out later that it is riddled with loopholes and mis understandings and therefore unworkable? The International Trusteeship Area arrangement, obviously a compromise of divergent U.S. views, intro duces an additional set of boundary lines on the seabed and a new type of quasi-national/quasi-international zone which complicates matters and arouses the suspicion and distrust of the developing nations. The very word "Trus teeship" is suspect to the ex-colonial countries as is 465 reference to the growth of "license* to exploit resources# These could well prove stumbling blocks, and yet national security and other considerations dictate some such ar rangements. Moreover, if the Trusteeship Area is too wide the International Seabed Resource Authority may hold sway over a desert seabed devoid of practically any economically obtainable seabed resources and therefore be an expensive but useless organ. Two other features which may well prove detrimental are the narrow scope of the proposed regime and a lack of an internationally accepted basis of legitimacy. Both of these features are debatable. Concerning the former, there is no doubt that ocean space, as the Borgese regime de fines it, is an ecological whole. Further there is no doubt that it would be desirable, if possible and practi cal, to treat ocean space as an ecological whole. In this respect the narrow international seabed scope of the U.S. model does indeed seem too restricted. However, an ocean regime, if it is to be viable, must be kept within the bounds of manageability and in this respect attempting to govern ocean space as an ecological whole would appear to introduce, initially at least, unmanageable complexities. Also, one of the regime's primary objectives, if not the primary one, is aimed at the safeguarding of, the equitable 466 sharing of, and the encouragement of, the recovery of the seabed's wealth. Perhaps, because of its balance the limited scope of the U.S. draft is the better approach, even though it has its faults. Concerning the possible lack of an internationally accepted basis of legitimacy for the U.S. regime, it seems to this writer that its importance will depend a lot on the international reaction to the regime. If practically all of the nations subscribe to the regime there would appear to be no problem. Even if quite a few of the minor and more unimportant nations do not subscribe to the agreement but most maritime and larger coastal nations do, there would likely be little problem. Otherwise it is felt that it would probably be better if the United Nations sanc tioned the regime's legitimacy, provided the ties to the U.N. are minimal and such as not to inhibit the regime's autonomy. D. Danzig.— The Danzig draft used in this paper was indeed the draft of its recent revision and it may be that debate on it will produce modifications. However, basing observations on this draft it is felt that there is too much vagueness and generality in its provisionsi that the tie-in to the United Nations is too close and renders it too subservient to this world organizationi and that, like the Borgese and Pell regimest it is flawed by the inclusion of military and disarmament problems and issues. It ap pears to this writer that too much that should be included in the text of the treaty is left for the "Comment" notes to explain and clarify. As would be expected it is written in a legalistic style, but it appears to lack some of the tightness and preciseness of a legal document. Further, the writer has the impression that the Danzig draft treaty favors the internationalist position too much to permit its near term acceptance by most nations and that the treaty overly favors the idealistic approach when examined from the viewpoint of the near term real world. None-the-less, the Danzig model makes a valuable contribution to the debate on an ocean regime and to the stockpile of new and innovative ideas and procedures. It is the only draft which provides for the corporate type of ocean agency organizational struc ture, and this could well prove to be the main feature of the finally adopted ocean regime. The writer being somewhat of a moderate and a prag matic realist perhaps does injustice in his above expressed opinions and observations. However, he has expressed his views as he sees them and as based on his close study of the four model treaties over a period of some months. No unfairness or injustice is intended. k68 To predict what the future may hold concerning an ocean regime in the near term is a risky and hazardous undertaking. It does appear to this author, however, that the world is not likely to see within the next several years the general acceptance of an autonomous or semi- autonomous ocean regime of the nature, complexity, size, and power envisioned in the four draft treaties. Rather it would seem logical to believe that under real world conditions we will probably see a confusion of national claims, regional agreements such as the North Sea agree ments, disputed claims, bilateral and informal understand ings and agreement, contracts, possibly several deep sea exploitative ventures with or without international sanc tion, possibly a claims registry of some sort, perhaps even a modest step towards an international seabed agency. The existing specialized ocean related U.N. and inter-govem- mental organizations will no doubt continue to make some contributions and will jealously guard their domains, pre rogatives and authority. Economic development will take place in territorial waters and on nationally claimed con tinental shelves. Such development will be predominately fairly close inshore for very logical and practical rea sons. Corporate ventures, governmental ventures, and mixed partner ventures will continue to expand mainly in 469 oil and natural gas recovery. The debates and studies on an acceptable ocean regime will no doubt continue and some progress will prob ably be made. However, it is believed that the resistance from some major powers and technologically advanced nations, the general suspicion and distrust on the part of many of the developing nations, and the lack of visible evidence of urgency, will all combine to delay the general acceptance of any type of ocean or seabed regime as provided for in the Borgese, Pell, U.S. and Danzig draft regimes. Of course, circumstances could change such as to render the above outlook false, and a true and autonomous ocean or seabed regime could be effectuated in the near future. If this be the case, the writer will welcome being proven a false prophet and a poor predictor. In closing the author can think of a no more appro priate expression than that of U.S. Ambassador James R. Wiggins in a statement before U.N. General Assembly Com mittee I, when he saidi We stand upon the threshold of an undiscovered country, at the very frontier of a new world, a virgin region untouched by man, shrouded in the mystery of the vast deep. If, in the 15th century, at such a pause in unfolding human destiny, Europe had embraced a like chance to give order to the development of the New World that Columbus discovered, how differently would it have proceeded? It is sobering to reflect on the lives that were lost in the long competition for the control of the continent, of the treasures of civili zation that might have been preserved. Let us profit by melancholy precedent as we ad venture into that new vast world that lies beneath the seas. Let us not disfigure this new world with the wasteful exploitation that springs from uncontrolled avarice or the dreadful debris that rises from the field of battle. Let us go forth into our last new world, committed to the purposes of 20th-century man and all his posterity down through the ages.18 18 Department of State Bulletin, Vol. LIX, No. 1535* November 25, 1968, p. 558. BIBLIOGRAPHY k71 472 BIBLIOGRAPHY TABLE OP CONTENTS Page BOOKS............................................. 473 DOCUMENTS AND GOVERNMENT PUBLICATIONS............. 4?5 International Agreements....................... 475 International Organization Documents and Reports................................ 476 U.S. Presidential and Executive Department Reports......................... 479 U.S. Presidential and Executive Department Statements................................. 480 U.S. Congressional Hearings, Studies, Reports and Resolutions............................ 480 U.S. Department of State Bulletins............. 482 Government Publications........................ 484 ARTICLES.......................................... 486 NEWSPAPERS........................................ 495 ENCYCLOPEDIAS..................................... 496 SPEECHES AND LECTURES............................. 497 ^73 SOURCES CONSULTED BOOKS Alexander, Lewis M., ed. The Law of The Seat Offshore Boundaries and Zones, Columbus, Ohioi The Ohio State Un. Press, 196?. Bishop, William W., Jr. International Law. Cases and Mate- rials. 2nd ed. Boston and Toronto» Little, Brown and Co., 1962. Brierly, James L. The Law of Nations. 6th ed. New York and Oxfordi Oxford Un. Press, 1963* Brownlie, Ian, ed. Basic Documents in International Law. Londoni Oxford University Press, 1967. ________• Principles of Public^rnteraatlonal Law. New York Cityi Oxford Un. Press, 1966. Burke, William T. Ocean Sciences. Technology, and the Future International Law of the Sea. Columbusi Ohio State Un. Press, 1966. Bynkershoek, Cornelius van. De Dominlo Maris Dissertatis. [Probably] The Haguei Original publisher not known, 1702 (revised 17^*0 • (See Magoffin trans lation of. New Yorki Oxford Un. Press, 1923)* Camden, William. The History of the Most Renowned_and Victorious Princess Elizabeth. Late Queen of Eng land. [Probably] Londoni Publisher Unknown, 1688. Carson, Rachel L. The Sea Around Us. New Yorki Oxford Un. Press, 1951* Christy, Francis T., Jr. and Scott, Anthony. The Common Wealth in Ocean Fisheries. Baltimore! John Hop- kins Press, 1965* Clarke, Arthur C. The Challenge of the Sea. New Yorki Dell Publishing Co., 1966. Friedmann, Wolfgang. The Future of the Oceans. New Yorki George Braziller, Inc., 1971. Fulton, Thomas W. The Sovereignty of the Seas. Londoni Wm. Blackwood & Sons, 1911. Groot (or Grotius), Hugo de. Mare Liberum. [Probably] The Haguei Publisher Unknown, 1609. (See Grotius, Hugo. Mare Liberum. New Yorki Oxford Un. Press, 1916) Gullion, Edmund A. Uses of the Seas. Englewood Cliffs, N.J.i Prentice Hall, 1968. Hoffman, Stanley H., ed. Contemporary Theory in Interna tional Relations. Englewood Cliffsi Prentice- Hall, I960. Kaplan, Morton. System and Process in International Poli tics. New Yorki John Wiley & Son, 1957* Knight, H. Gary. The Law of the Sea. Documents and Notes. Material prepared for an interdisciplinary course. Louisiana State Un. Law School, 1969. (Mimeo graphed .) Liska, M. International Equilibrium. Cambridgei Cam bridge Un. Press, 1957. Long, E. John, ed. Ocean Sciences. Annapolis, Md.i U.S. Naval Institute, 1964. McClelland, Charles A. Theory and the International Sys tem. New Yorki MacMillan, 1966. McDougal, Myres S. and Burke, William T. The Public Order of the Oceansi A Contemporary International Law_of the Sea. New Haveni Yale Un. Press, 1962. Marx, Wesley. The Frail Ocean. New Yorki Ballantine Books, 1969. Mero, John L. The Mineral Resources of the Sea. New Yorki Elsevier Publishing Co., 1965. Mouton, Martinus W. The Continental Shelf. The Haguei Nijhoff, 1952. Pell, Claiborne and Goodwin, Harold L. Challenge of the Seven Seas. New Yorki Wm. Morrow & Co., 1966. Potter, Pitman B. The Freedom of the Sea In History. Law and Politics. New Yorki Longmans, Green & Co., 1924. ^75 Selden, John. Mare Clausum. [Probably] Londoni Publisher Unknown, Completed about 1617 but not published until 1635. Snyder, Richard C., Bruck, H.W., and Sapin, Burton. Deci sion Making as an Approach tothe Study of Interna- tional Politics.Princeton1 Monograph No. 3 of the Foreign Policy Analysis Series, Princeton Un., Copyright 195^. Sverdrup, Harald Ulrik, et. al. The Oceans» Their Phy sics. Chemistry and General Biology. New Yorki Prentice-Hall, 19^2. Welwood, William. An Abridgement of All Sea Lawes. [Prob ably] Londoni Publisher Unknown, 1612. ________. De Dominio Maris. [Probably] Londoni Publisher Unknown, 1615. DOCUMENTS AND GOVERNMENT PUBLICATIONS a) International Agreements 1 Charter of the United Nations Together with The Statute of the International Court of Justice. (For text see U.S. Department of State Publication 2353. Washington, D.C.i Government Printing Office, 1961) Conventions Adopted by the United Nations Conference on the Law of the Sea. Geneva, April 29, 1958, vizi I. The Territorial Sea and the Contiguous Zone II. The High Seas III. Fishing and Conservation of the Living Resources of the High Seas IV. The Continental Shelf Note1 These four conventions appear in United Nations Documents A/Conf. 13/L. 52-1 and Misc. No. 15 (1958), Cmnd. 58^. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof. Registered with and published by the United Nations Secretariat. Opened for signature k?6 in Washington, London and Moscow on February 17, 1971. b) International Organization Documents and Reportsi Conference of the Committee on Disarmament. Draft Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and Ocean Floor and the Subsoil There- S i- Genevai Conference of the Committee on Dis armament, 1969. C.C.D. Docs. CCD/269 (Oct. 7, 1969), CCD/269/Rev. 1 (Oct. 30, 1969), CCD/269/Rev. 2 (April 23, 1970), and CCD/269/Rev. 3 (Sept. 1, 1970). International Court of Justice. I.C.J. Reports (1969). "North Sea Continental Shelf Cases (Federal Re public of Germany/Denmark/Netherlands)." Vol. Ill, Court Decisions, 1969. The Hague 1 International Court of Justice, 1969. Pan American Union. Department of International Law. Background Material on the Activities, in. The Or ganization of American States Relating, to the Law of the Sea. Background pamphlet prepared for the 1958 U.N. Geneva Conference on the Seas. Washing ton, D.C., December, 1957* (Mimeographed.) United Nations. General Assembly, 18th Session, December 2k, 1963. Declaration of Legal Principles Govern ing the Activities of States in the Exploration and use of Outer Space. Resolution A/1962. ________. General Assembly, 21st Session, January 25, 1967. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space. Including the Moon and Other Celestial Bodies. Resolution A/2222. ________. General Assembly, 21st Session, December 6, 1966 Resources of the Sea. Resolution A/2172. ________. General Assembly, 22nd Session, August 18, 1967. Request for the Inclusion of a Supplementary Item in the Agenda of the Twenty-Second Session. "Dec laration and Treaty Concerning the Reservation Exclusively for Peaceful Purposes of the Sea-bed 47? and of the Ocean Floor, Underlying the Seas Beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Man kind,- A/6695* .. General Assembly, 22nd Session, December 18, 1967. Question of the Reservation Exclusively for Peaceful Purposes of the Sea-bed_ and. _th_e_-QseaE Floor, and the Subsoil Thereof. Underlying the High Seas Beyond the Limits of Present National Jurisdiction, and the Use of Their Resources In the Interests of Mankind. (A/7834). Resolution a/23^0 .. Secretariat Working Paper, 23rd Session, August 1968. The Military Uses of the Sea-bed and the Ocean Floor Beyond the Limits of Present National Jurisdiction. A/AC. 135/28. General Assembly, 23rd Session, September, 1968. Report of the Ad Hoc Committee to Study the Peace ful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction. A/7230. . . General Assembly, 23rd Session, December 17. 1968. Exploitation and Conservation of Living Marine Resources. Resolution A/2413. .. General Assembly, 23rd Session, December 17, 1968. International Cooperation Problems Re lated to the Oceans. Resolution A/2414. . . General Assembly, 23rd Session, December 21, 1968. Examination of the Question of the Reserva tion Exclusively for Peaceful Purposes of the Sea- Bed and the Ocean Floor, and the Subsoil thereof. Underlying the High Seas Beyond the Limits of Pres ent National Jurisdiction and the Use of Their in the Interests of Mankind. Resolution . . General Assembly, 24th Session, October, 1969. Report of the Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction. Supplement No. 22 (A/7622). . . General Assembly, 24th Session, October, 1969. Report of the Committee on the Peaceful Uses of the 1*78 Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction. Supplement No. 22 (A/7622). Secretary-General Report, 24th Session, September ~16-December 17, 1969. Study on the Question of Establishing in Due Time Appropriate International Machinery for the Promotion of the Explora_tion_and Exploitation of the Resources of the Searbed and the Ocean Floor Beyond the Limits of NationalJu- risdiction. and the Use of These Resources in the Interests of Mankind. A/AC. 138/12 and Corr. 1 and Add. 1 and Add. 1/Corr. 1. _. General Assembly, 24th Session, November, 1969. “Addendum to the Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction. Supple ment No. 22A(A/7622/Add. 1). _. General Assembly, 24th Session, 16 September- "17 December 1969. Resolutions Adopted by the Gen eral AgffMftls P wring .Its Twgnty.-rQurm.-Ssgal.9n. Supplement No. 30 (A/7630). . General Assembly, 24th Session, December 15, 1969. ~flMgfiU.on,..gf .the Reservation Exclusively. Igr. E w g - ful Purposes of the Sea-bed and the Ocean Floor, and the Subsoil Thereof. Underlying the High Seas Beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Mankind (a/7834^. Resolution A/2574. „. General Assembly, 24th Session, December 16, 1969. Question of General and Complete Disarmament. Res- olution A/2602. General Assembly, 25th Session, August 3. 1970. raft United Nation Seabed Area — Work Draft United Nations Convention on the International ing Paper, A/AC. 138/25. _. General Assembly, 25th Session, September, 1970. Report of the Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction. Supplement No. 21 I A/8021). General Assembly, 25th Session, December 7, 1970. Question of the Treaty on the Prohibition of Em- * 7 9 placement of Nuclear and Other Weapons of Mass Des truction on the Sea-Bed and the Ocean Floor and in the Subsoil thereof. Resolution A/2660. . General Assembly, 25th Session, December 17, 1970. Declaration of Principles Governing the Sea-Bed and ihs Qg9ftfLJl99ri.,ftDfl Bgygnfl the Limits of National Jurisdiction. Resolution A/27^9. . General Assembly, 25th Session, December 17, 1970. Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil thereof. 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TheSecond Report of the President to the Congress on Marine Resources and Engineering Development. "Marine Science Affairs — A Year of Plans and Progress." Washington, D.C.i Government Printing Office, March 1968. -------. A Report by,the. Rational Council on Marine Rq- 480 sources and Engineering Development. Executive Of fice of the President. May 196?.-International Decade of Ocean Exploration*- Washington, D.C.i Government Printing Office, 1968. .. The Third Report of the President to the Congress on Marine Resources and Engineering Development. -Marine Science Affairs -- A Year of Broadened Participation*- Washington, D.C.i Government Printing Office, January 1969. . . Report of the Commission on Marine Science. En gineering and Resources. -Our Nation and the Sea — A Plan for National Action*- Washington, D.C.i Government Printing Office, January 1969. . . Annual Report of the President to the Congress on Marine Resources and Engineering Development. -Marine Science Affairs," Washington, D.C.i Gov ernment Printing Office, April 1971. d) U.S. Presidential and Executive Department Statementsi Johnson, Lyndon B. President's State of the Union Address. Washington, D.C.iBefore a Joint House/Senate session March 8, 1968. Nixon, Richard M. Statement by the President on U.S. Oceans Policy. Washington, D.C.i The White House, May 23, 1970. (Mimeographed.) U.S. Department of State. "Statement of John R. Stevenson, the Legal Advisor, Department of State, regarding draft United Nations Convention on the Internation al Seabed Area." Washington, D.C.i Department of State, August 3» 1970. p. 5 (Mimeographed). . -Summary of Provisions of Draft 'United Nations Convention on the International Seabed Area' . - prepared by John R. Stevenson, Legal Advisor, De partment of State. Washington, D.C.i Dept, of State, August 3. 1970. (Mimeographed.) e) U.S. Congressional Hearings, Studies, Reports and Resolutionsi U.S. Congress. Senate. Committee on Foreign Relations. 481 Conventions on The Law of The Sea. Hearing, 86th Cong., 2nd Sess., January 20, I960. Washington, D.C.i Government Printing Office, i960. , . House. Committee on Science and Astronautics, Report No. 2078 to the House submitted by Rep. Brooks (D. La.). Ocean Sciences and National Se curity. 86th Cong., 2nd Sess., July 1, I960. Washington, D.C.i Government Printing Office, I960 , . Senate. Committee on Foreign Relations. Gov erning The Use of Ocean Space. Hearing, 90th Cong. 1st Sess., November 29, 1967. Washington1 Gov ernment Printing Office, 1967. . . House. Committee on Foreign Affairs. Sub-com mittee on International Organizations and Movementa Interim Report on The United Nations and the Issue of Deep Ocean Resources Together With Hearings. House Report No. 999, 90th Cong., 1st Sess., Decem ber 7, 1967. 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Proposed “Treaty on Principles Governing the Activities of States in the Exploration and Exploitation of Ocean Space" submitted by Senator Claiborne Pell, referred to 482 the Committee on Foreign Relations, 91st Cong., 1st Sess. February 4, 1969* . Senate. Committee on Foreign Relations. Subcom mittee on Ocean Space. Activity of Nations in Ocean Space. Hearing, 91st Cong., 1st Sess., July 24,25,28 and 30, 1969. Washington, D.C.i Govern ment Printing Office, 1969. _______. Senate. Committee on Commerce. Special Study on United Nations Suboceanic Lands Policy. Hearings, 91st Cong., 1st Sess., September 23 and 24, October 3, and November 21, 1969* Washington, D.C.i Gov ernment Printing Office, 1970. _______. Senate. Committee on Interior and Insular Affairs Special Sub-committee on the Outer Continental Shelf. Hearings, 91st Cong., 1st Sess., March 4, 1970. Washington, D.C.i Government Printing Of fice, 1970. _______. House. Committee on Foreign Affairs. 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International Law Studies 1962, U.S. Naval War 485 College, Newport, R.I., NAVPERS 15031. Vol. LV. Washington, D.C.i U.S. Government Printing Office, 1966. Clift, A. Denis. Defense Interests and the National Ocean ographic Program. U.S. Department of Commerce/ National Bureau of Standards Clearinghouse paper PB 182 604. Washington, D.C.i Government Printing Office, 1969. (Mimeographed.) National Academy of Sciences. An Oceanic Quest1 The In ternational Decade of Ocean Exploration.Washing ton, D.C.i National Academy of Sciences Printing and Publishing Office, 1969. _______• Public Papers of the Presidents 1 L.YTlflpn t Johnson 1966. Vol. II (July 1-December 31. 1966). Washington, D.C.i Government Printing Office, 1967. The National Council on Marine Resources and Engineering Development. United States Activities in Space craft Oceanography. An October 1, 1967 government booklet. Washington, D.C.i Government Printing Office, 1967. U.S. Department of State. Sovereignty of The Sea. Geo graphic Bulletin No. 3. April 1965*Dept, of State Publication 7849. Washington1 Government Printing Office, 1965. U.S. Interagency Committee on Oceanography. U.S. Oceanic Research in Foreign Waters. ICO Pamphlet 25. Janu ary i 960. Washington, D.C.i Government Printing Office, 1966. U.S. Navy Hydrographic Office. Navigation Dictionary. H.O. Publication No. 220. Washington, D.C.i Gov ernment Printing Office, 1956. U.S. Naval Oceanographic Office. Science and the Sea. A 1967 booklet of 10 pertinent articles. Washington D.C.i Government Printing Office, 1967. Whiteman, Marjorie M. Digest of International Law. Vol. 4, Department of State Publication 7825* Washington, D.C.i U.S. Government Printing Office, April 1965. 486 ARTICLES Alexander, Lewis M. Ed. The Law of the Seai Offshore Boundaries and Zones. Columbus, Ohloi The Ohio State Un. Press, 1967* (Notei Although printed and published as a book, this work is actually the proceedings of the first annual conference of the Law of the Sea Institute, 27 June-1 July, 1966, at the University of Rhode Island.) (Also listed in the BOOK section) _______• The Law of the Sea. The Future of the Sea’s Re sources. Proceedings of the Second Annual Confer ence of the Law of the Sea Institute, June 26-29* 1967* Kingston, Rhode Islandi Un. of Rhode Island, 1968. (Mimeographed.) _______• The Law of the Sea. International Rules and Organ ization for the Sea. Proceedings of the Third Annu al Conference of the Law of the Sea Institute, June 24-27, 1968. Kingston, Rhode Islandt Un. of Rhode Island., 1969. (Mimeographed) _______• The Law of the Sea. National Policy Recommenda tions. Proceedings of the Fourth Annual Conference of the Law of the Sea Institute, June 23-26, 1969, Kingston, Rhode Islandi Un. of Rhode Island, 1970. (Mimeographed.) _________ • T he L a y o f . t t w . S f a . Ih s - I ? n lM .M .ftU g n B -a n d - O g S R n Management. Proceedings of the Fifth Annual Con ference of the Law of the Sea Institute, June 15-19, 1970. Kingston, Rhode Islandi Un. of Rhode Island, 1971• (Mimeographed.) . "The Nation State and the Law of the Sea." Marine Technology Society Journal. Vol. V, No. 6 (1971), pp. 6-8. Alvarez, Jose A. "Strategic Implications of Continental Shelves." pgav$ gg** College Review. Vol. XXII, No. The American Assembly, Columbia University. "Uses of the Seas." Report of the Thirty-third American Assembly May 2-5, 1968, Arden House, Harriman, N.Y., New York City1 Columbia Un., 1968. 1*87 Askevold, Gerald. "Ocean Mining in Perspective.- Stanford Journal of International Studies. Vol. IV (June 1969)7 PP. 115-42. Basiuk, Victor. "Marine Resources Development, Foreign Policy, and the Spectrum of Choice." Orbis. Vol. XII, No. 1 (1968), pp. 39-72. Bilder, Richard B. "Emerging Legal Problems of the Deep Seas and Polar Regions." Naval War College Review. Vol. XX, No. 5 (1967), pp. 34-49. Borgese, Elisabeth M. "A Center Report/The Republic of the Deep Seas." The Center Magazine. Vol. I, No. i f (May 1968), pp. 18-27. . "The Ocean Regime, A Suggested Statute for the Peaceful Uses of the High Seas and the Sea-Bed Beyond the Limits of National Jurisdiction." A Center Occasional Paper. Santa Barbara, Calif.t The Center for the Study of Democratic Institutions, October 1968. Brooks, Eugene. "The Malta Plan and The United Nations." A paper contributed to the Law of the Sea Institute 4th Annual Conference, University of Rhode Island, June 22-26, 1969, Kingston, R.I. (Conference Pro ceedings. pp. 495-516) (Mimeographed.) Brown, E.D. "Our Nation and The Seat A Comment on the Proposed Legal-Political Framework for the Develop ment of Submarine Mineral Resources." A paper read at the Law of the Sea Institute 4th Annual Confer ence, University of Rhode Island, June 22-26, 1969, Kingston, R.I. (Conference Proceedings, pp. 2-49) (Mimeographed.) Burnell, Elaine H. and Simson, Piers von, eds. "Pacem in Maribus, Ocean Enterprises." A Center Occasional Paper, Santa Barbara, Calif1 The Center for the Study of Democratic Institutions, June 1970. Busch, Donald D. and Mears, Edward I. "Ocean Pollutioni An Examination of the Problem and an Appeal for International Cooperation." San Diego Law Review. Vol. VII, No. 3 (1970), pp. 574-6W. 488 Carlisle, Geoffrey E. "Three Mile Limit ~ Obsolete Con cept ." United States Naval Institute Proceedings. Vol. XII11,No. 2 (1967). pp. 24-33* Carter, Jared G. "The Seabed Beyond the Limits of National Jurisdiction." Stanford Journal of International Studies. Vol. IV (June 1969), pp. 1-31. The Center for the Study of Democratic Institutions. Proceedings Pacem in Maribus Convocation. Malta. June 28-July 3. 1970. Santa Barbara, Calif.i The Center, 1970.(Mimeographed.) Chapman, Wilbert McL. "Concerning Fishery Jurisdiction and the Regime of the Deep-Sea Bed ." A paper read at the Swedish International Institute for Peace and Conflict Research as part of the Symposium "Towards A Better Use Of The Ocean, A Study And Prognosis." Spring 1969. Stockholm, Sweden. (Mimeographed.) . "The Ocean Regime of the Real World ." A paper read at the Law of the Sea Institute, Fourth Annual Conference, University of Rhode Island, June 23-26, Kingston, R.I. (Conference Proceedings. pp. 446-69) (Mimeographed.) . "Outer Boundaries of The Continental Shelf •H Marine Technology Society Journal. Vol. IV, No. 3 (1970), pp. 7-18. . "The Theory and Practice of International Fishery Development-Management." gffl Plggg LaW.,RgYlgw, Vol. VII, No. 3 (1970), pp. 408-54. Christol, Carl Q. "International Law and Oil Pollution of the Marine Environmenti A Global Problem." Journal o£ J^S|ate Bar of California. VolJCLVI, No. 40971). Christy, Francis T., Jr. "Fisheries and The New Conven tions on the Law of the Sea." San Diego Law Review. Vol. VII, No. 3 (1970), pp. 455-68. Clift, A. Denis. "... of Diplonauts and Ocean Politics." United States Naval Institute Proceedings. Vol.XCVI, No. 7 (1970), pp. 31-39. . "U.S. Oceanic Programs and Policy." N a v a l War 489 College Review. Vol. XXIII, No. 5 (1971), PP. 24-30. Clingan, Thomas a., Jr. "Oil Pollution, No Solution?" United States Naval Institute Proceedings. Vol. XCV, No. 5 (1969), pp. 63-75. Commission to Study the Organization of Peace. Seven teenth Report of the Commission to Study the Organ ization of Peace (19o6). "New Dimensions for the United Nations." New York Cityi Commission to Study the Organization of Peace, 866 UN Plaza, May 1966. ______. Nineteenth Report of the Commission to Study the Organization of Peace 0.969). "The United Nations and the Bed of the Sea." New York Cityi Commission to Study the Organization of Peace, 866 UN Plaza, March 1969* Craven, John P. "International Security on the Seabed," A paper given at the 3rd Annual Conference of the Law of the Sea Institute, University of Rhode Is land, June 27, 1968. (C<?Qfgr?Qgg Pr9gggfllng9» pp. 414-419) (Mimeographed.) ______. "Seapower and the Seabed." United States Naval Institute Proceedings. Vol. XCII, No. 4 (1966). Dean, Arthur H. "The Second Geneva Conference on the Law of the Seat The Fight for Freedom of the Seas." The American Journal of International Law. Vol. LIV, No. 4 (I960), pp. 751-789. "Deep Ocean Drilling for Science." The Texaco Star. Vol. LVII, No. 2 (1970), pp. 16-18. Eells, Richard. "The Emergence of a Corporate Sovereignty for the Ocean Seas." A paper prepared for the 4th f acea In Marlbus preparatory conference. Published nPacem In Marlbus — Ocean Enterprises. An Occa sional Paper. E.H. Burnell and Piers von Simon (eds.) Santa Barbara, Calif.i Center for the Study of Democratic Institutions, June 1970, pp. 64-74. Emery, K.O. "The Continental Shelves.” The Scientific American. Vol. CCXXI (September 1969), pp. 106-14 and bibliography, p. 285. k90 Fenn, Percy T. "Justinian and the Freedom of the Sea." The American Journal of International Law. Vol.XIX, No. 3 (1925). PP. 716-727. Finlay, Luke W. "The National Interest and The Limits of The Continental Shelf." Marine Technology Society Journal. Vol. IV, No. 1 (1970>, pp. 71-7^. Friedheim, Robert L. "Understanding the Debate on Ocean Resources." Occasional Paper No. 1, Kingston, Rhode Island: The Law of the Sea Institute, Feb ruary 1969. (Mimeographed.) Galloway, Jonathan F. "Multinational Enterprises As Worldwide Interest Groups." A paper prepared for delivery at the 66th Annual Meeting of The American Political Science Ass'n. Los Angeles, Calif. Lake Forest College, Illinois: September 8-12, 1970. (Mimeographed.) Goldie, Louis F.E. "International Law and the World Com munity — The Meaning of Words, the Nature of Things, and the Face of International Order.N Naval War College Review. Vol. XXIII, No. 6 (1970), pp. 8-20. . "International Law of the Sea — A Review of States' Offshore Claims and Competences." Naval War College Review. Vol. XXIV, No. 6/sequence No. 23& (1972), pp. ^3-66. Gorove, Steuben. "Towards Denuclearization of the Ocean Floor*" San Diego Law Review. Vol. VII, No. 3 (1970), pp7 5W-l8. Graham, John R., McLerran, Archie R. and Peterson, Melvin N.A. "Deep Sea Drilling Project — Prelude to a Decade of Ocean Exploration .” Marine Technology Society Journal. Vol. IV„ No. 5 (1970), pp. 5-13. Green, Jack. "Concept for a Self-Contained Oceanic Resour ces Base .." Marine Technology Society Journal. Vol. IV, No. 5 (1970), pp. 88-102. Griffin, William L., Chapman, Wilbert McL. and Finley, Luke W. "Comments on 'The National Interest and the Limits of the Continental Shelf'." Marine Tech- 1*91 nology Society Journal. Vol. lv,No. 2 (1970), pp. 66-69. Haas, Michael. "A Functional Approach to International Organization." The Journal of Politics. Vol. XXVII, No. 3 (1965). pp. 498-517. Hanks, Robert J. "The Paper Torpedo." United States Naval Institute Proceedings. Vol.XCV, No. 5 (1969). pp. 27-3**. Henkln, Louis. "The General Assembly and the Sea." A paper given at the 5th Annual Conference of the Law of the Sea Institute, University of Rhode Is land, June 15, 1970. (Conference Proceedings, pp. 2-22.) (Mimeographed.) Hersh, Seymour M. "An Arms Race on the Sea Bed?" War- Peace Report. Vol. VIII, No. 7 (1968), pp. 8-9 and 21-22. Heselton, Leslie R., Jr. "A Framework Towards a Seabed Regime." A paper contributed to the Law of the Sea Institute, 4th Annual Conference, University of Rhode Island, June 23-26, 1969, Kingston, R.I. (Conference Proceedings, pp. 488-91.) (Mimeographed) International Conciliation. Issues Before the 24th Gen eral Assembly. New Yorki Carnegie Endowment for International Peace, September 1969/No. 574. Johnson, L.J. "Offshore Drilling for Oil in India," Indian & Foreign Review. Vol. VII, No. 12 (1970), pp. 16, 19 and 20. Kaufman, Alvin. "A Survey of the Economics of Ocean Min ing." Marine Technology Society Journal. Vol. IV, No. 4 (1970), pp. 58-65. Knauss, John A. "Factors Influencing a U.S. Position in a Future Law of the Sea Conference." Occasional Paper No. 10 of the Law of the Sea Institute. Kingston, Rhode Islands Un. of R.I., 1971. (Mimeographed.) Krueger, Robert B. "International and National Regula tion of Pollution from Offshore Oil Production." San Diego Law Review. Vol. VII, No. 3 (1970), pp. 54i-73* 492 Laque, Frank L. "Deep Ocean Minings Prospects and Anti cipated Short Term Benefits." A paper prepared for the 4th Pacem In Maribus preparatory conference. Published in Pacem In Maribus — Ocean Enterprises. An Occasional Paper. E.H. Burnell and Piers von Simon feds.).Santa Barbara, Calif.i Center for the Study of Democratic Institutions, June 1970, pp. 17-27. Lewis, John D. "Deep Sea Resources." Naval War College Review. Vol. XXI, No. 10 (1969), pp. 130-151. McDevitt, Joseph B. "Current International Law Problems of the Navy." Naval War College Review. Vol. XXII, No. 9 (1970), pp. k l-k 9 . McDougal, Myres S. "Authority to Use Force On The High Seas." Naval War College Review. Vol. XX, No. 5 (1967), pp. 19-31. Marine Technology Society Law Committee and the George Washington University. Proceedings of a Seminar entitled, A Critical Review of the Marine Science CflmmiHRlnn Pftpnrvt:. Washington, D.C.t The George Washington Un., January 31, 1969. Meade, James F. "The Great Territorial Sea Squabble." United States Naval Institute Proceedings. Vol. XCV, No. f t (1969). PP. 45-53. Mero, John L. "A Legal Regime for Deep Sea Mining." San piggo Law Review. Vol. VII, No. 3 (1970), pp. 488-503. Miles, Edward. "A Research Design for Analyzing Structure and Process in the Emerging International Decision- System for Ocean Exploration and Exploitation." A paper prepared for the Section on Maritime Sociolo gy, Annual Convention of the Eastern Sociological Association, New York, April 17, 1970. Denver, Coloradoi Graduate School of International Studies, Un. of Denver, 1970. (Mimeographed.) Miron, George. "The Management of The Mineral Resources of The Ocean Floor — A Critique of Certain Aspects of the Proposal of the Commission on Marine Science, Engineering and Resources ." Stanford Journal of International Studies. Vol. IV (June 1969), pp. 32- W - 493 Moore, J. Jamison. "The Ocean — An Economic Perspective? Marine Technology Society Journal. Vol. IV,No. 6 (19705, pp.33-37. . "Proposal to Resolve the Controversy Within the Santa Barbara Channel ." Marine Technology Society Journal. Vol. V, No. 3 (1971).PP. *5-57. "An Oceans Interview with Senator Claiborne Pell ." Oceans Maeaiine. Vol. I, No. 3 (1969), pp. 17-18. Pardo, Arvid. "Whose Is The Bed of The Sea?" Address given at the Washington-Hilton Hotel as printed in The Proceedings of The American Society of Inter national Law. April 1968. pp. 215-229. .and Gauci, Victor J. "The Sea Bedi Common Heri tage of Mankind." War/Peace Report. Vol. VIII, No. 7 (1968), pp. 3-6. Pavicevic, Vladimir. "The Ocean Floor — The Common Heri tage of Mankind ." Indian & Foreign Review, Vol. VII, No. 14 (1970), pp. 13 and 20. Proceedings — Pacem in Marlbus-2. June 29-July 5. 1971. Malta. Santa Barbara, Califi The Center, 1971. (Draft — Mimeographed.) Reilly, Pat. "The Politics of the Ocean Bottom." War/ Peace Report. Vol. VIII, No. 7 (1968), pp. 6-7. Riley, Stewart. "The Legal Implications of The Sea Use Program ." Marine Technology Society Journal. Vol. IV, No. 1 (1970)V PP. 31-46. Ritchie-Calder of Balmashannar, Lord. "Arms and The Ocean Bed — ’In Quiet Enjoyment* ." A Pacem In Maribus Convocation preparatory conference paper of the Center for the Study of Democratic Institutions, Santa Barbara, Calif.i The Center, 1970. (Mimeo graphed .) Rutter, Richard. "Oil from the Deep Sea." The Lamn (Standard Oil Co. of New Jersey), Vol.LIILNo. 3 (1971), pp. 26-29. Shaeffer, Milner B. "Freedom of Scientific Research and Exploration in the Sea." Stanford Journal of Inter 494 national Studies. Vol. IV (June 1969), pp. 46-70. _______. "Some Recent Developments Concerning Fishing and the Conservation of Living Resources of the High Seas." San Diego Law Review. Vol. VII, No. 3 (1970), pp. 371-4071 Speare, Richard A. "The North Sea Continental Shelf Case." ?l97of y ^ O . 5001^ Journal- Vo1* IV’ No* 2 Stang, David P. "The Walls Beneath the Sea." United States Naval Institute Proceedings. Vol. XCIV, No. 3 U968), pp. 33-43. Stevenson, John R. "International Law and the Oceans." Vital Speeches of the Dav. Vol. XXXVI, No. 12 (1970), PP. 367-69. Stover, Lloyd V. "Law of the Sea.” (An unpublished paper on the titled subject.) Washington, D.C., December 30, 1966. (Mimeographed.) Ihfi_SymPQBium on the International Regime of the Seabed. Rome 1 Accademia Nazionale dei Lincei, 1970. Taney, Norman E. "Comments on Incentives for Ocean Mining — A Case Study of Sand and Gravel." Marine Tech nology Society Journal. Vol. V, No. 4 (1971), pp. k l - h j . "The Trail Smelter Arbitration — United States and Canada" (Editorial Comments). The American Journal of Inter- national Law. Vol. XXXII, No. k (1938), pp7 785-88. "The Trail Smelter Arbitral Tribunal" (Decisions). The American Journal of International Law. Vol. XXXIII, No. 1 (1939), pp. 182-212. "The Trail Smelter Arbitration — United States and Canada" (Editorial Comment). Ihe_American Journal of Inter- aa.ti9Dftl Law, vol. xxxv, no. 4 (1941), pp . 665-66. "The Trail Smelter Arbitral Tribunal" (Decisions). The Aaer^cyn^o^mal o^nternationai Law, vol. xxxv, Wenk, Jr., Edward, "Towards Enhanced Management of Mari- 495 time Technology." A paper prepared for the 4th Pacem In Maribus preparatory conference. Published in a Center Occasional Paper. Santa Barbara, Califa The Center for the Study of Democratic Institutions, June 1970, pp. 98-104. White, Robert M. "Global Environmental Monitoring — A Time to Take Stock." A paper given at the 5th Annual Conference of the Law of the Sea Institute, University of Rhode Island, June 15*19. 1970. (Conference Proceedings, pp. 188-194.) (Mimeo graphed World Peace Through Law Center. Committee of World Peace Through Law Center Pamphlet Series No. 10. Treaty Governing the Exploration and Use of the Ocean Bed. Geneva, World Peace Through Law Center, 1968. . Committee of World Peace Through Law. "Revised Draft Treaty Covering the Exploration and Exploita tion of the Ocean Bed (1971)*" New Yorki World Peace Through Law Center Headquarters (Aaron L. Danzig, Chairman), 1971. (Mimeographed.) NEWSPAPERS Article. "Malta Envoy Urges Curbs on Sea Use." The San Diego Union. February 26, 1971. Associated Press Dispatch. "Deep Sea Mining Tests Encour aging." The San Diego Union. August 27, 1970. Echeverria fPresident of Mexico] Supports 200- iaa. Mile Sea Limit." The San Diego Union. April 20, 1972. . "Mineral Wealth in Oceans Awaits Early Develop ment." The San Diego Union. October 17, 1971. . "Oceans to Become Deserts?" The San Diego Union. August 22, 1971. Betts, Robert. A series of four articles detailing scien tific views on exploration and exploitation of the oceans and the problems associated with these vital tasks. The San Diego Union. September 13,14,15 and 16, 1970. 496 Connolley, Greg. "U.S. Disputes Canada's Claim to Arctic Waters." The San Diego Union. June 14, 1970. Editorial. "Ocean Front." Barron's National Business and Financial Weekly. July 20, 1970, P. 1. . "Sea Bed Pact Aids Peace Quest." The San Diego Union. February 21, 1971. ______. "Seabed Pact Giveaway." News and Courier [Charl eston, S.C.], June 4, 1970. Favre, George H. "Nixon Sea Proposal." The Christian Science Monitor. June 3, 1970. Flores, Ernesto. "Global Body Urged For Sea Control." The San Diego Union. February 1972. Hartman, Carl. "Giant Firms Dwarf Nations." The San Diego Union. October 3, 1971. Hutchinson, Robert. "The Seabed Laws Are At Sea Again." The San Diego Union. April 25. 1970. Lemoux, Penny. "Columbia May Join 200-Mile-Club Against U.S." The San Diego Union. December 20, 1970. Loehwing, David A. "Wealth of the Sea." Barron's National Business and Financial Weekly. December 30, 1968, December 30, 1968, pp. 3,12,14, and 15. Pinkerman, John. "Four Nations Argue 'Senkakus [islands] Are Ours'." The San Diego Union. April 25. 1971. Rostarchuk, M. "A Call to Speed Development of Underwater Mining." Izvestia. September 6, 1969. p. 5 (as translated in The Current Digest of the Soviet Press. Vol. XXI, No. 36, October 1, 1969, pp. 10-11. Smirnov, S. "The Ocean and the Law." Izvestia. January 8, 1970, p. 6 (as translated in The Current Digest of the Soviet Press. Vol. XXII, No. 1, February 3, 1970, p. 21). ENCYCLOPEDIAS Eisenstat, Shmuel N. "Social Institutions." Encyclopedia of the Social Sciences. New Yorki MacMillan Co. and The Free Press, 1968, Vol.JKIV.pp. 421-28. Nixon, Elliot B. "Maritime Law." The Encyclopedia Ameri cana. 1959. Vol. XVIII. Riley, Matilda W. and Stoll, Clarice S. "Content Analy sis." Encyclopedia of the Social Sciences. New York* MacMillan Co. and The Free Press, 1968, Vol.m pp. 371-7?. SPEECHES AND LECTURES* Bird, Daniel C. "Oceanography". An oral presentation given on February 7 during the Industrial College of the Armed Forces' National Security Seminar at San Diego, Calif., February 3-14, 1969. Christol, Carl Q. "Can There Be 'Pacem in Maribus’?" An oral presentation before the San Diego State College Annual World Affairs Council, San Diego, August 14, 1970. ______. "International Restraints on the Unfettered Use of the Oceans Guided by Concerns for the Maintenance of a Suitable Environment." An oral presentation before the San Diego Chapter of The Marine Tech nology Society, San Diego, April 21, 1972. Johnson, Lyndon B. Remarks delivered at the Commissioning of the U.S. Research Ship Oceanographer at the Washington Navy Yard on July 13, 1966. Washington, D.C. Pardo, Arvid. Statement delivered to the Economic and Technical Sub-Committee of the United Nations Com mittee on The Peaceful Uses of the Sea-Bed and Ocean Floor, March 16, 1970. (Mimeographed.) ______. "Present Day Assumptions and Principles Concerning Ocean Space." An oral presentation given before the World Affairs Council of San Diego at San Diego, February 25, 1971. Walsh, Don. "The United States and the World Ocean." An Edwin A. Link Lecture, Smithsonian Publication 4650. Washington, D.C.* Smithsonian Institution, 1965. TOWARDS THE DEVELOPMENT OF AN INTERNATIONAL REGIME FOR THE SEABED BEYOND THE LIMITS OF NATIONAL JURISDICTION! A COMPARATIVE STUDY OF FOUR PROPOSALS APPENDICES by Otis Robert Cole, Jr. A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (International Relations) January 1973 2 LIST OF APPENDICES Appendix Page I. The Borgese (Center for the Study of Democratic Institutions) Proposal...... 5 II. The Pell Proposal (U.S. Senate Resolu tion 92, February 1969)............... 28 III. The U.S. Proposal (U.S. Working Paper of August 3, 1970 submitted to the United Nations)....................... 45 IV. The Danzig Proposal (1971 Revised Draft Treaty issued by the U.N. Committee of World Peace Through Law Center........... 105 V. Unilateral Declarations and Legislation of the American Countries. (Excerpt).... 117 VI. Presidential Proclamation 266? (Septem ber 28, 1945). Re Natural Resources on the U.S. Continental Shelf............ 120 VII. Presidential Proclamation 2668 (Septem ber 28, 1945). Re Coastal Fisheries in Certain Areas of the High Seas........ 122 VIII. Conventions Adopted by the United Nations Conference on the Law of the Sea, April 29. 1958.......................... 124 VIII A. The Territorial Sea and the Contiguous Zone............ 125 VIII B. The High Seas................ 137 VIII C. Fishing and Conservation of the Living Resources of the High Seas••••••••••••••••••••••••# VIII D. The Continental*Shelf 158 IX. U.N. Document A/2172 (XXI). Resources of the Sea............................... 164 3 Appendix Page X. U.N. Document A/6695 (XXII). Request for the Inclusion of a Supplementary Item [i.e. Malta's Note Verbale of August 17, 1967] on the Agenda of the 22nd Session........................... 166 XI. The United Nations and the Issue of Deep Ocean Resources. (Excerpt from U.S. House of Representatives, Report 999 [1967].................... 169 XII. U.N. Document A/2340 (XXII). Resolution on the Examination of the Question of the Reservation Exclusively for Peace ful Purposes of the Seabed.............. 176 XIII. The Oceanst A Challenging New Frontier — Looking Back. (Excerpt from U.S. House of Representatives Report No. 1957 [1968]...................... 179 XIV. Report of the Ad Hoc Committee to Study the Peaceful Uses of the Seabed. (Ex cerpt from U.N. Document A/7230 [XXIII] Re "Rio A" and*Rio B“ Principles.) 192 XV. U.N. Document A/2413 (XXIII). Resolu tion on the Exploitation and Conser vation of Living Marine Resources 197 XVI. U.N. Document A/2414 (XXIII). Resolu tion on International Co-operation in Problems Related to the Oceans 199 XVII. U.N. Document A/2467 (XXIII). Resolu tion on the Examination of the Ques tion of the Reservation Exclusively for Peaceful Purposes of the Seabed.... 203 XVIII. U.N. Document a/2602 (XXIV). Resolu tion on the Question of General and Complete Disarmament .......... 212 4 Appendix Page XIX. U.N. Document A/2660 (XXV). Resolu tion Requesting Governments to Sign and Ratify the Seabed Disarmament Treaty. ...... 214 XX. U.N. Document A/2574 (XXIV). Resolu tion Requesting Reports and Studies and that Nations Refrain from Seabed Exploitation Activities and from Making Certain Seabed Claims......... 215 XXI. U.N. Document A/2749 (XXV). Resolu tion Declaring Certain Principles for Governing the Seabed............ 220 XXII. U.N. Document A/2750 (XXV). Resolu tion on the Reservation Exclusively for Peaceful Purposes of the Seabed ... and Convening a Conference on the Law of the Sea.................. 224 XXIII. The Seabed Arms Control Treaty (1971)... 230 APPENDIX I DRAFT STATUTE OF THE INTERNATIONAL REGIME FOR THE PEACEFUL USES OF THE HIGH SEAS AND OF THE SEA-BED BEYOND THE LIMITS OF NATIONAL JURISDICTION! ARTICLE I Establishment of the Regime The Parties hereto establish an International Regime for the Peaceful Uses of the High Seas and of the Sea Bed Beyond the Limits of National Jurisdiction (hereinafter referred to as "the Regime") upon the terms and conditions hereinafter set forth. ARTICLE II Fundamental Principles A 1. Ocean space is an indivisible ecological whole. 2. The high seas beyond the limits of territorial waters as defined in this Statute, and the sea-bed beyond the limits of the continental shelf as defined in this Statute, are the common heritage of mankind. They are not subject to national appropriation by claim of sover eignty, by means of use or occupation, or by any other means. 3. The natural resources in the high seas and on or below the sea-bed as defined by this Statute are the com mon property of the peoples of the world. They must be developed, administered, conserved, and distributed on the basis of international cooperation and for the benefit of all mankind. k. The use, exploration, and exploitation of the sea bed shall be for peaceful purposes onlyj it shall conform to the principles of the Charter of the United Nations and to international law, and shall be conducted in a manner not causing unnecessary obstruction of the high Elisabeth Mann Borgese, "The Ocean Regime", A Center Occasional Paper (Santa Barbara, Cali Center for the Study of Democratic Institutions, October 1968), pp. 9-22. 5 6 seas or serious impairment of the marine environment. B. 5. There shall be freedom of scientific investigation in ocean space, and Member States shall facilitate and encourage international cooperation in such investigation. 6. Member States shall bear international responsi bility for national activities in ocean space, whether carried out by governmental agencies or nongovernmental entities, and for assuring that national activities are carried out in conformity with the procedures set forth in this Statute. 7. The activities of nongovernmental entities in ocean space shall require authorization and continuing super vision by the appropriate Member State. 8. When activities are carried out in ocean space by an intergovernmental organization or by an international or multinational nongovernmental organization or corpora tion ("Associate Member"), responsibility for compliance with the provisions of this Statute shall be borne by such organizations themselves. 9. In the exploration of ocean space and the exploita tion of its resources, Member States and Associate Members shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in ocean space with due regard for the corresponding interests of all other Member States and Associate Members. 10. Member States and Associate Members shall render all possible assistance to any person, vessel, vehicle, or facility found in ocean space in danger of being lost or otherwise in distress. 11. Member States and Associate Members engaged in activities of exploration or exploitation in ocean space shall immediately inform the Maritime Secretariat of any phenomena they discover in ocean space that could consti tute a danger to the life or health of persons exploring or working in ocean space. 12. All States shall have the right for their nationals to engage in fishing, aquaculture, in-solution mining, transportation, and telecommunication on and under the high seas. 13. The rights declared in paragraph 12 shall be subject to the treaty obligations of each Member and to the inter ests and rights of coastal States and shall be conditioned upon compliance with the rules established under Articles V,A,4 and IX,E,3 of this Statute. 7 C. 1 * 4 - . The International Regime for the Peaceful Uses of the High Seas and of the Sea-Bed Beyond the Limits of National Jurisdiction shall provide a framework for the future pattern of international organization. ARTICLE III Definitions 1. Ocean space shall include the high seas, the terri torial waters, and contiguous zonest the atmosphere above itj the continental shelfj the sea-bed and what is below it. 2. The high seas shall include international waters beyond the limits of territorial seasj that is, beyond twelve miles from the shore line. 3. The sea-bed and what is below it shall extend to the outer limit of the continental shelf. The continental shelf shall not extend beyond a depth of two hundred meters of the superjacent waters or a distance of fifty miles from the base line from which the territorial sea is meas ured, whichever is farther. This shall apply both to littoral States and to island States. 4. Common Property shall be both res nullius (owned by no one) and res communis or res oublica (owned by all), i.e., property the right to the use of which shall be assigned to nations, organizations, or persons subject to the interest of the common good. 5. The natural resources referred to in this Statute shall include minerals, metals, and other nonliving re sources of the sea-bed and below the sea-bed as well as living resources of ocean space, both animal and vegetal. ARTICLE IV Objectives 1. The Regime shall seek to accelerate and enlarge research and exploration of ocean space, and the contri bution of ocean resources to the world economy. 2. It shall coordinate the activities and plans of 8 all United Nations special agencies and other inter-govem- mental and nongovernmental international organizations engaged in the exploration and exploitation of ocean space and resources. 3. It shall see that conditions are maintained that will encourage enterprises to expand and increase their ability to produce and to promote a policy of rational development of ocean resources avoiding inconsiderate ex haustion of such resources or pollution of ocean space. 4. It shall promote the improvement of the living and working conditions of the labor force in each of the in dustries under its jurisdiction. 5. It shall further the development of international trade. 6. It shall take appropriate measures to protect de veloping nations against the danger that might arise from a sudden drop of prices of minerals and metals consequent on progress in ocean-space technology. 7. It shall promote the regular expansion and modern ization of production as well as the improvement of quality under conditions that preclude any protection against com peting industries except where justified by illegitimate activities on the part of such industries in their favor. 8. It shall promote the development and harmonization of maritime law and international law relating to ocean space. ARTICLE V FMnqUpns A. The Regime is authorized 1 1. to regulate, supervise, and control all activities on the high seas and on or under the sea-bed1 2. to regulate effectively the commercial exploitation of the sea-bedj 3. to issue licenses to Member States and to inter governmental or nongovernmental international organiza tions and corporations for the peaceful and orderly ex ploration and exploitation of the sea-bed and below the sea-bed, according to rules to be promulgated by the Re gime 1 4. to regulate fishery, fish farming, and aquaculture and, to this end, to identify permissible fishing areas, establish fishing seasons, identify methods of capture, fix quotas, and specify types of resources that may be 9 captured i 5. to disseminate immediately and effectively informa tion and data received from license owners regarding their activities in ocean space 1 6. to issue regulations concerning pollution and the disposal of radioactive waste material in ocean space 1 7. to promulgate safety standards for the exploration and exploitation of ocean resources, such as the equipment of vessels with radar, echo-sounder, and sonar, where seis mic surveys are concerned! special care in the use of explosives and the prohibition of detonating explosives in the vicinity of vessels engaged in fishing or in the vicinity of drifting or stationary gear or if schools of fish are discovered under or near the shot-pointj 8. to inspect all stations, installations, equipment, and sea vehicles, machines, and capsules on or under the sea-bed1 9. to order license holders to suspend, modify, or prohibit activities or experiments if they might cause potentially harmful interference with the peaceful explora tion and exploitation of ocean space; 10. to impose fines and cancel licenses if a Party vio lates the provisions of this Statute! 11. to propose development plans and make its own bud get, providing for its own administrative and all other legitimate expenses, to accept loans, and to make grants; 12. to settle disputes between Member States, or between Member States and Associate Members, or between Associate Members! and to make awards; 13. to control armed forces operating on the sea-bed in accordance with Article XV, in order to promote the objec tives and ensure the observation of the provisions set forth in this Statute. B. In carrying out its functions, the Regime shall1 1. conduct its activities in accordance with the pur poses and principles of the United Nations to promote peace and international cooperation and in conformity with policies of the United Nations furthering the establishment of safeguarded world-wide disarmament and in conformity with any international agreements entered into pursuant to such policies! 2. render decisions, recommendations, and opinions affecting the area directly subject to the jurisdiction of the Regimei- 10 3. render recommendations and opinions affecting areas under the jurisdiction of coastal States or island Statesj k. allocate its financial resources in such a manner as to secure efficient utilization and the greatest pos sible general benefit in all areas of the world, bearing in mind the special needs of the under-developed areas of the worldj 5. submit reports on its activities annually to the General Assembly of the United Nations and, when appropri ate, to the Security Council. If, in connection with the activities of the Regime, there should arise questions that are within the competence of the Security Council, the Regime shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security, and it may also take the measures open to it under this Statute* 6. submit reports to the Economic and Social Council and other organs of the United Nations on matters within the competence of these organs. C. In carrying out its functions, the Regime shall not make assistance to Members or Associate Members subject to any political, economic, military, or other condition incom patible with the provisions of this Statute. D. Subject to the provisions of this Statute and to the terms of agreement concluded between a State or a group of States and the Regime which shall be in accordance with the pro visions of the Statute, the activities of the Regime shall be carried out with the observance of the sovereign rights of States. ARTICLE VI Legal Status 1. The Regime shall have juridical personality. 2. In its international relationships, the Regime shall enjoy the juridical capacity necessary to the exercise of its functions and the attainment of its ends. 3. In each of the Member States, the Regime shall en joy the most extensive juridical capacity that is recog- 11 nized for legal persons of the nationality of the country in question. Specifically, it may acquire and transfer property, and may sue and be sued in its own name. 4. The Regime shall be represented by its institutions each of them acting within the framework of its own powers and responsibilities. ARTICLE VII Membership 1. The activities of the Regime shall be conducted by Members, Associate Members, and Individuals. 2. Members shall be States that deposit an instrument of acceptance of this Statute. Members shall be entitled to representation in the Maritime Commission, the Mari time Assembly, and the Maritime Court. 3. Associate Members shall be intergovernmental organ izations or nongovernmental international organizations and corporations holding licenses issued by the Regime. Associate Members shall be entitled to representation in the Maritime Assembly and its committees and in the Mari time Planning Agency. k. Individuals shall be experts and civil servants, appointed or elected in a personal capacity to serve in the Maritime Secretariat or any of its organs or in the Planning Agency. 5. The initial members of the Regime shall be those Member States of the United Nations or any of the special ized agencies which shall have signed this Statute within ninety days after it is opened for signature and shall have deposited an instrument of ratification. 6. Other Members of the Regime shall be those States, whether or not Members of the United Nations or any of the specialized agencies, which deposit an instrument of ac ceptance of this Statute after application for registration at the Maritime Secretariat. Any dispute over the quali fications of a State shall be referred to the Maritime Court. 7. The Regime is based on the principle of the sover eign equality of all its Members and the full autonomy of all its Associate Membersj and all Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obliga tions assumed by them in accordance with this Statute. 12 ARTICLE VIII The Maritime Commission A. The Maritime Commission shall consist of seventeen mem bers and shall be composed as followsi 1. The outgoing Commission (or, in the case of the first Commission, the Ad Hoc Committee of the General Assembly of the United Nations) shall designate for mem bership on the Commission representatives of the five Member States most advanced in ocean-space technology. 2. The Maritime Assembly shall elect twelve represen tatives of Member States to membership in the Maritime Commission, with due regard to equitable representation on the Commission as a whole of developed and developing nations, maritime and landlocked nations, and nations operating under free-enterprise and socialistic economic systems. 3. Any Member State not represented on the Commission may appoint an ad hoc member whenever its own vital in terests are directly concerned! but the number of ad hoc members at any time shall be limited to four. k. The members of the Maritime Commission shall serve for three years! they shall be eligible for reelection for the following term of office. 3 . The Maritime Commission shall meet at such times as it may determine. The meetings shall take place at the head quarters of the Regime, unless otherwise determined by the Commission. C. The Maritime Commission shall elect its own Chairman and make its own rules of procedure. D. 1. Each member of the Maritime Commission shall have one vote. 2. Decisions on the Regime’s development plan and budget shall be made by a two-thirds majority of those present and voting. Decisions on other questions, includ ing the determination of additional questions or catego ries of questions to be decided by a two-thirds majority, 13 shall be made by a majority of those oresent and voting. 3. Two-thirds of all members of the Commission shall constitute a auorum. E. The Maritime Commission shall have the authority to carry out the functions of the Regime in accordance with this Statute, subject to its responsibilities to the Maritime Assembly as provided in this Statute, except that deci sions concerning security and pollution shall be self executing, without the need of approval by the Maritime Assembly. F. Subject to the rules enacted by the Maritime Assembly, the Maritime Commission is authorized to issue, regulate, suoervise, amend, revoke, and enforce licenses to Member States and to intergovernmental or nongovernmental inter national organizations and corporations, for the peaceful and orderly exploration and exploitation of ocean space. G. The Maritime Commission shall prepare an annual report to the Maritime Assembly concerning the affairs of the Regime. The Commission shall also prepare for submission to the Maritime Assembly such reports as the Regime is or may be required to make to the United Nations or to any other organization the work of which is related to that of the Regime. These reports, along with the annual reports, shall be submitted to Members and Associate Members of the Regime at least one month before the regular annual ses sion of the Maritime Assembly. H. The Maritime Commission may establish such committees as it may deem useful. It may apooint persons to represent it in its relations with other organizations. ARTICLE IX The Maritime Assembly A. The Maritime Assembly shall meet in regular annual session 14 and in such special sessions as shall be convened at the request of the Maritime Commission or a majority of Mem bers and Associate Members. The sessions shall take place at the headquarters of the Regime unless otherwise deter mined by the Maritime Assembly. B. The Maritime Assembly shall consist of four chambers, of eighty-one delegates each. Delegates shall serve for three years, except that one third shall be renewed each year. 1. The first chamber shall be elected by the General Assembly of the United Nations with the proviso that a) nine members be elected for each of the nine regions of the world (North America* Latin America* Eastern Europe* Western Europe* the Far East* the Middle East and North Africa* India and Pakistan* South East Asia* Africa South of the Sahara)* and b) that every representative in the U.N. General Assembly be automatically a candidate for election to the Maritime Assembly, except those represent ing States not Members of the Regime, and that additional candidates up to a total of twenty-seven for each of the nine regions be nominated by national parliaments or gov ernments or regional parliaments or intergovernmental organizations, including any that may be Members of the Regime but not Member States of the United Nations* c) that any Member State none of whose nationals was included in the regional slate for a three-year period shall have mandatory precedence in the elections for the next follow ing Assembly. 2 . The s e c o n d ch am b er, r e p r e s e n t i n g i n t e r n a t i o n a l m in in g c o r p o r a t i o n s , o r g a n i z a t i o n s , u n i o n s , p r o d u c e r s , and co n su m er s d i r e c t l y i n t e r e s t e d i n t h e e x t r a c t i o n o f o i l , m e t a l s , m i n e r a l s , and o t h e r n o n - l i v i n g r e s o u r c e s from t h e s e a - b e d and b e lo w t h e s e a - b e d , s h a l l be e l e c t e d i n a m anner t o be d e t e r m in e d . 3. The third chamber, representing fishing organiza tions, fish processors and merchants, unions of seamen serving on fishing vessels, as well as representatives of organizations such as the International Commission for the Northwest Atlantic Fisheries, North East Atlantic Fisher ies Commission, Inter-American Tropical Tuna Commission, International Whaling Commission, International North Pacific Fisheries Commission, International Pacific Hali but Commission, International Pacific Salmon Fisheries 15 Commission, Black Sea Fisheries Commission, etc., shall be elected in a manner to be determined. k. The fourth chamber, representing scientists in oceanography, marine biology, meteorology, and various other sectors related to the exploration of the seas and the sea-bed, such as the International Association of Physical Oceanography, the International Council for the Exploration of the Sea, the International Commission for the Scientific Exploration of the Mediterranean Sea, the Scientific Committee on Oceanic Research, the Union of International Engineering Organizations, etc., shall be elected in a manner to be determined. C. 1. Each chamber shall elect its own president. The Assembly as a whole shall elect its president and make its own rules of procedure. 2. A majority vote of two chambers — i.e., of the first chamber and the chamber competent in the matter voted upon — shall be required for the adoption of any decision or recommendation. If the two competent chambers fail to agree, they shall discuss the matter in a joint session and vote in common. A simple majority vote of the two joint chambers shall suffice for the adoption of a decision of recommendation. 3* The initiative in making recommendations and ex pressing opinions shall be shared equally by all four chambers of the Assembly and by the Commission. 4. Decisions adopted by the Commission shall become effective when approved by two chambers of the Assembly including the first chamber* except that in matters affect ing security and pollution no such approval shall be ne cessary. Decisions adopted by the Assembly shall become effective when passed by the Commission. By a three- fourths majority vote the Commission may return decisions and recommendations to the Assembly where they may not be taken up again before the lapse of a two-year period. 5. In any dispute as to which chamber is competent in a matter, the decision of the first chamber of the Assem bly shall be final. D. The Maritime Assembly may discuss any questions or any matters within the scope of this Statute, issue decisions and recommendations for consideration by the Commission, 16 and give opinions to the membership of the Regime on any such questions or matters. E. The Maritime Assembly shalli 1. elect members of the Maritime Commission in accord ance with Article VIII,A,2? 2. elect the Heads of the Secretariats in accordance with Article XI,k? 3. determine the rules for the issuing of licenses for the exploration and exploitation of the sea-bed? review action taken by the Maritime Commission con cerning licenses? 5. issue rules and regulations for the conservation, development, and exploitation of the living resources of the oceansi 6. approve suspension of a Member or Associate Member from the privileges and rights of membership or associate membership? 7. consider the annual report of the Commission? 8. approve the development plan and the budget recom mended by the Commission or return it with recommendations as to its entirety or parts to the Commission, for resub mission to the Maritime Assembly? 9. approve reports to be submitted to the United Nations as required by the relationship agreement between the Regime and the United Nations, or return them to the Com mission with its recommendations? 10. approve any agreement or agreements between the Regime and the United Nations and other organizations or return such agreements to the Commission for resubmission to the Maritime Assembly? 11. approve rules and limitations regarding the exer cise of borrowing powers by the Commission? approve rules regarding the acceptance of grants to the Regime? and approve the manner in which general funds may be used? 12. approve amendments to this Statute in accordance with Article XVI. ARTICLE X The Maritime Planning Agency A. The Maritime Plsinning Agency shall be composed of econo mists, scientists, administrators, and other experts, 17 selected as followsi 1. one-half of its members shall be appointed by the Maritime Commission; 2. one-half of its members shall be elected by the Maritime Assembly; 3. the members of the Inter-Agency Consultative Board of the U.N. Development Program and the President of the World Bank shall be members ex officio. B. The Maritime Planning Agency shall elect its own chairman, and adopt its own rules and regulations. C. It shall be the responsibility of the Planning Agency to coordinate all efforts and projects presently undertaken by all organizations, within the U.N. system and outside, in the sphere of its competence} to prepare plans to maxi mize development and exoloitation of living and nonliving ocean resources and to ensure their conservation; to pre pare a budget for the Regime; to redistribute revenue accruing to the Regime from fees, royalties, or grants, and to take appropriate measures to protect developing nations against the fluctuation of prices of minerals and metals and, in general, maximize the creation of wealth from the oceans while minimizing harmful interference with the interests of land-based industries and economies. D. Each Member State and each Associate Member and each re gional Committee referred to under Article XII shall sub mit each year to the Planning Agency a progress report and development plan to be stored in the Agency's computer and included in the world plan. In integrating such plans, the Planning Agency shall give due consideration toi 1. the usefulness of the plan, including its scientific and technical feasibility; 2. the adequacy of funds and ttchnical personnel to assure its effective execution; 3. the adequacy of proposed health and safety standards; k. the equitable distribution of financial grants; 5* the special needs of the underdeveloped areas of the world; 6. and such other matters as may be relevant. 18 E. There shall be ten-year plans and annual programs. The ten-year plan shall be a general estimate of probable developmentsi the first ten-year plan shall give form and substance to the International Decade of Ocean Explor ation. The annual program shall provide readjustments to developing conditions and fix the annual budget. F. The ten-year plan shall be submitted by the Chairman of the Planning Agency to the Maritime Council and, with the Council's recommendations, to the Maritime Assembly, one year prior to its going into effect. The annual pro gram shall be submitted to the Council, to Members and Associate Members, one month prior to the opening of the Regular Annual Session of the Maritime Assembly. G. Plans shall be published in every Member State and shall be fully discussed by all chambers of the Assembly and by all interested scientific, economic, and social organi zations . H. To go into effect, plans must be adopted by the Commission and by the first chamber while the remaining three cham bers must adopt only the sections of the plan that concern their respective activities. The first chamber of the Assembly shall determine whether the adoption of a given section by a given chamber is required. I. The Chairman of the Planning Agency shall give to the Assembly an annual progress report. ARTICLE XI The Maritime Secretariats 1. The Maritime Commission, with the approval of the Maritime Assembly, shall appoint a Secretary General who shall be the chief administrative officer of the Regime. 19 2. The Secretary General shall act in that capacity in all meetings of the Maritime Assembly, the Maritime Com mission, and the Maritime Planning Agency, and shall per form such other functions as are entrusted to him by these organs. 3. The Secretary General may bring to the attention of the Commission, the Assembly, or the Planning Agency any matter within each organ's competence! he shall bring to the attention of the Commission any matters that in his opinion may threaten the maintenance of international peace and security. 4. The Secretary General shall establish a Secretariat for Ocean Mining, a Secretariat for Deep-Sea Oil Extrac tion, a Secretariat for Fisheries and Aquaculture, and others as they may become necessary. The heads of the Secretariats shall be elected by the Maritime Assembly. 5. The Secretary General shall prepare the slates of candidates for the elections to the Maritime Assembly and the Maritime Planning Agency. 6. In the performance of their duties the Secretary General and the staff shall not seek or receive instruc tions from any government or from any other authority external to the Regime. They shall refrain from any action that might reflect on their position as international officials responsible only to the Regime. 7. Each Member and each Associate Member of the Regime undertakes to respect the exclusively international char acter of the responsibilities of the Secretary General and the staff and not to seek to influence them in the discharge of their responsibilities. ARTICLE XII Regional Arrangements A. Coastal States adjacent to land-locked seas may establish regional organizations to meet the special needs of such areas. There shall not be more than one regional organi zation in each area. B. Each regional organization shall be an integral part of the Regime in accordance with this Statute. 20 C. Each regional organization shall consist of a regional committee and a regional office. D. Regional committees shall be composed of representatives of Member States and Associate Members, including scien tific institutions and organizations. E. Regional committees shall meet as often as necessary and shall determine the place of each meeting. F. Regional committees shall adopt their own rules of pro cedure. G. The functions of regional committees shall bet 1. to formulate policies governing matters of an ex clusively regional character! 2. to supervise the activities of the regional officei 3. to suggest to the regional office the calling of technical conferences and such additional work or investi gation and research as in the opinion of the regional com mittee would promote the objectives of the Regime within the regioni k. to cooperate with the respective regional committees of the United Nations and with those of other specialized agencies and with other regional international organiza tions having interests in common with the Regime! 5. to advise the Maritime Assembly, the Council, and the Planning Agency on matters which have wider than re gional significance! 6. to recommend additional regional appropriations by the governments of the respective regions if the propor tion of the world budget of the Regime allotted to that region is insufficient for the carrying out of the regional functions! 7. to perform such other functions as may be delegated to the regional committee by the Assembly, the Commission, or the Planning Agency. 21 H. Subject to the general authority of the Maritime Commis sion. the regional office shall be the administrative or gan of the regional committee. It shall, in addition, carry out within the region the decisions of the Maritime Assembly and the Commission. I. The head of the regional office shall be the regional secretary appointed by the regional committee. J. The staff of the regional office shall be appointed by the regional secretary in agreement with the regional commit tee. ARTICLE XIII The Maritime Court 1. The function of the Court is to ensure the rule of law in the interpretation and application of the law of the seas, of the present Statute, and of its implemen ting regulations. 2. The Court shall be composed of eleven Judges, ap pointed for six years, by agreement among the governments of Member States, from among persons of recognized inde pendence and competence. A partial change in membership of the Court shail occur every three years. No more than two Judges from any region and no more than one Judge from any nation shall sit on the Court at any given time. 3. The number of Judges may be increased by unanimous vote of the Commission on proposal by the Court. The Judges shall designate one of their number as president for a three-year term. k. The Court shall have jurisdiction over appeals by a Member State or by an Associate Member for the annul ment of decisions and recommendations of the Regime on the grounds of lack of legal competence, substantial pro cedural violations, violation of the Statute or of any rule of law relating to its application, or abuse of power. Associate Members of the Regime shall have the right of appeal on the same grounds against individual decisions and recommendations concerning them, or against general decisions and recommendations that they deem to involve an abuse of power affecting them. The appeals provided 22 for in this Article must be taken within one month from the date of the notification or the publication, as the case may be, of the decision or recommendation. 5* If the Court should annul a decision or recommen dation of the Regime, the matter shall be remanded to the competent organ. The latter must take the necessary mea sures in order to give effect to the judgment of annulment. In case a decision or recommendation is adjudged by the Court to involve a fault for which the Regime is liable, and causes a direct and particular injury to an enterprise or a group of enterprises, the Commission must take such measures, within the powers granted to it by the present Statute, as will assure an equitable redress for the injury resulting directly from the decision or recommendation that has been annulled, and, to the extent necessary must grant reasonable indemnity. If the Commission fails to take within a reasonable period the measures required to give effect to a judgment of annulment, an appeal for damages may be brought before the Court. 6. In cases where the Commission is required by a pro vision of the present Statute or of implementing regula tions to issue a decision or recommendation, and fails to fulfil this obligation, such omission may be brought to its attention by the Member States, the Associate Members, or the Maritime Assembly, as the case may be. The same shall be true if the Commission refrains from issuing a decision or recommendation which it is empowered to issue by the provisions of the present Statute or implementing regulations, where such failure to act constitutes an abuse of power. If at the end of a period of two months the Commission has not issued any decision or recommenda tion, an appeal may be brought before the Court, within a period of one month, against the implicit negative deci sion which is presumed to result from such failure to act. 7. Prior to imposing a pecuniary sanction or fixing a daily penalty payment, the Commission shall give the interested enterprise an opportunity to present its views. An appeal to the general jurisdiction of the Court may be taken from the pecuniary sanctions and daily penalty pay ments imposed under the provisions of the present Statute or implementing regulations. In support of such an appeal, and under the terms of paragraph k of the present Article, the petitioners may contest the regularity of the decisions and recommendations which they are charged with violating. 8. If a Member State shall deem that in a given case an action of the Regime or a failure by it to act is of such a nature as to provide fundamental and persistent 23 disturbances in the economy of such State, it may bring the matter to the attention of the Commission. The latter, after having obtained the opinion of the Assembly, will recognize the existence of such situation if any, and decide on the measures to be taken, under the terms of the present Statute, to correct such situation while at the same time safeguarding the essential interests of the Regime. When an appeal is taken to the Court under the provisions of the present Article against such decision or against the explicit or implicit decision refusing to recognize the existence of the situation mentioned above, the Court shall review the sufficiency of the grounds of such decision. In case of annulment, the Commission shall decide, within the framework of the Court's judgment, the measures to be taken to fulfil the objectives set forth in this paragraph. 9. Appeals to the Court shall not have the effect of suspending the execution of a decision or recommendation. However, if in the Court’s judgment circumstances so de mand, the Court may order the suspension of the execution of the decision or recommendation in question. It may prescribe any other necessary provisional measures. 10. Subject to the provisions of paragraph 3, the Court shall have jurisdiction to assess damages against the Regime, at the request of the injured party, in cases where an injury results from a fault involved in an offi cial act of the Regime in the execution of the present Statute law. It shall also have jurisdiction to assess damages against any official or employee of the Regime, in cases where injury results from a personal fault of such official or employee in the performance of his duties. If the injured party is unable to recover such damages from such official or employee, the Court may assess an equitable indemnity against the Regime. 11. Litigation between two or more Member States may be brought before the International Court of Justice by agreement between the Member States. 12. All other litigation between the Regime and third parties, other than that relating to the application of the provisions of the present Statute and implementing regulations, shall be brought before the national tribu nals. 13. When the validity of acts of the Regime is con tested in litigation before a national tribunal, such issue shall be certified to the Court, which shall have exclusive jurisdiction to rule thereon. Ik. The Court shall have such jurisdiction as may be 24 provided by any clause to such effect in a public or pri vate contract to which the Regime is a party or which is undertaken on its account. 15. The Court shall have jurisdiction in any other case provided for in any supplementary provision of the Statute. It may also exercise jurisdiction in any case relating to the objects of the present Statute, where the laws of a Member State grant such jurisdiction to it. 16. Litigant parties shall have the right of appeal from the determinations of the Maritime Court to the In ternational Court of Justice. Such appeals may be taken by means of a request by the Regime for an advisory opin ion, with the litigants stipulating in advance, as a con dition of such appeal, to be bound by such advisory opin ion. 17. The Court shall have jurisdiction to decide any dispute or controversy as to membership in the Regime or any of its organs. 18. The Code of the Court shall be contained in a Protocol annexed to the present Statute. ARTICLE XIV Devices and Installations 1. Subject to appropriate regulations prescribed by the Regime, a Member State or Associate Member shall be entitled to construct and maintain or operate on the sea bed and below the sea-bed installations and other devices necessary for the exploration and exploitation of its natural resources and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection. 2. The safety zones referred to in this Article may extend to a distance of a 500-meter radius around the installations and other devices which have been erected, measured from each point of their outer edge. Ships of all nationalities must respect these safety zones. 3« Such installations and devices do not possess the status of islands and have no territorial sea of their own. 4. Due notice must be given of the construction of any such installations, and permanent means for giving warning of their presence must be maintained. Any installations which are abandoned or disused must be entirely removed by the Member State or Associate Member responsible for its construction. 5. Neither the installations and devices nor the safety zones around them may be established where interference 25 may be caused to the use of recognized sea lanes essential to international commerce and navigation. 6. All stations, installations, equipment, and sea vehicles, machines, and capsules used on the sea-bed or below the sea-bed, whether manned or unmanned, shall be open to representatives of the Regime. ARTICLE XV The Peaceful Use of the Sea-Bed and of Ocean Space A. The sea-bed and what is below the sea-bed shall be used for peaceful purposes only. B. The prohibitions of this Article shall not be construed to preventi 1. the use of military personnel or equipment for sci entific research or any other peaceful purposei 2. the temporary use or stationing of any military submarines on the sea-bed if such submarines are not pri marily designed or intended for use or stationing on the sea-bed or below the sea-bedj 3. the use or stationing of any device on the sea-bed or below the sea-bed that is designed and intended for purposes of submarine or weapons detection, identification, or tracking. C. Any military personnel used for the above purposes must wear insignia of the United Nations Forces and must report on its activities and findings to the Maritime Commission and to the Security Council of the United Nations. D. Each Member State or Associate Member shall refrain from the implacement or installation on the sea-bed or below the sea-bed of any objects containing nuclear weapons of mass destruction, or the stationing of such weapons on the sea-bed or the sea-bed in any other manner. Each Member State and Associate Member shall undertake, furthermore, to refrain from causing, encouraging, or in any way parti cipating in the conduct of the activities described in this paragraph. 26 E. The complete demilitarization of ocean space shall proceed in consultation between the Disarmament Committee, the Regime, and the Member States, ARTICLE XVI Amendments Any Member State or Associate Member may propose amend ments to this Statute. Amendments shall enter into force when approved by a majority of the Assembly and the Com mission and ratified by a majority of Member States. ARTICLE XVII Headquarters of the Regime The Headquarters of the Regime shall be established at Valletta on the Island of Malta. ARTICLE XVIII Signature. Acceptance, and Entry Into Force 1. This Statute shall be open for signature on ______, 19?0, by all Member States of the United Nations or any of the specialized agencies, and shall remain open for signature by those States for a period of ninety days. 2. The signatory States shall become parties to this Statute by deposit of an instrument of ratification. 3. Instruments of ratification by signatory States and instruments of acceptance by States whose membership has been established under Article VII of this Statute shall be deposited with the governments of the United Kingdom, the U.S.A., and the U.S.S.R., hereby designated as Depositary Governments. 4. Ratification or acceptance of this Statute shall be affected in accordance with the respective constitu tional processes of the States concerned. 5. This Statute shall come into force when eighteen States have deposited instruments of ratification in ac cordance with paragraph 2 of this Article, provided that such eighteen States include the following! Prance, Japan, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics, and the United States of America. 6. The Depositary Governments shall promptly inform all States signatory to this Statute of the date of each 27 deposit of ratification and the date of entry into force of the Statute. The Depositary Governments shall prompt ly inform all signatories and members of the dates on which States subsequently become parties thereto. ARTICLE XIX Withdrawals Any Member State or Associate Member may give notice of its withdrawal from the Regime one year after its entry into force, by written notification to the Secretary Gen eral. Such withdrawal shall take effect one year from the date of receipt of this notification. ARTICLE XX Registration with the United Nations 1. This Statute shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations. 2. Agreements between the Regime and any Member or Members, agreements between the Regime and any other or ganization or organizations, and agreements between Mem bers subject to approval of the Regime shall be registered with the Regime. Such agreements shall be registered by the Regime with the United Nations if registration is required under Article 102 of the Charter of the United Nations. ARTICLE XXI Authentic Texts and Certified Copies This Statute, done in the Chinese, English, French, Russian, and Spanish languages, each being equally authen tic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Statute shall be transmitted by the Depositary Governments to the govern ments of the other signatory States, to the governments of States admitted to membership under Article VII, and to the executive organs of Associate Members. In witness whereof the undersigned, duly authorized, have signed this Statute. Done at the Headquarters of the United Nations, this tenth day of March, nineteen hundred and seventy-one. APPENDIX II 91st CONGRESS 1st Session S. RES. 92 IN THE SENATE OP THE UNITED STATES February 4, 1969 Mr. Pell submitted the following resolutioni which was referred to the Committee on Foreign Relations RESOLUTION Whereas the threat of anarchy is imminent in the field of scientific exploration and commercial exploitation of the deep sea and its resources» and Whereas international agreement on a rule of law governing the activities of nations in the exploration and exploi tation of the deep sea and its resources is in the common interest of all mankindi Now, therefore, be it RESOLVED, That it is the sense of the Senate that the President should take all necessary steps, through the Secretary of State, the United States delegation to the United Nations, or any other appropriate agency or officer of the United States, to enter into negotiations with representatives of the governments of the major coastal and maritime nations and all other interested nations of the world to the end that there shall be con cluded, with as widespread acceptance as is possible, a treaty on the peaceful exploration and exploitation of ocean space as followst "TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE EXPLORATION AND EXPLOITATION OF OCEAN SPACE -Preamble "The States Parties to this Treaty, INSPIRED by the great prospects opening up before mankind as a result of man's ever-deepening probe of 28 29 ocean space — the waters of the high seas, including the superjacent waters above the continental shelf and outside the territorial sea of each nation, and the seabed and subsoil of the submarine areas of the high seas outside the area of the territorial sea and conti nental shelf of each nation, "RECOGNIZING the common heritage of mankind in ocean space and the common interest of all mankind in the exploration of ocean space and the exploitation of its resources for peaceful purposes, "BELIEVING that the threat of anarchy exists in the exploration and exploitation of ocean space and its resources, "DESIRING to contribute to broad international cooper ation in the scientific as well as the legal aspects of the exploration and exploitation of ocean space and its resources for peaceful purposes, "RECALLING the four conventions on the Law of the Sea and an optional protocol of signature concerning the compulsory settlement of disputes, which agreements were formulated at the United Nations Conference on the Law of the Sea, held at Geneva from 24 February to 27 April 1958, and were adopted by the Conference at Geneva on 29 April 1958, "RECALLING the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, which was unanimously endorsed by United Na tions General Assembly resolution 2222 (XXI) of 19 December 1966 and signed by sixty nations at Washington, London and Moscow on 27 January 1967, and considering that progress towards international cooperation in the exploration and exploitation of ocean space and its resources and the development of the rule of law in this area of human endeavor is of comparable importance to that achieved in the field of outer space, "RECALLING United Nations General Assembly resolu tion 2467A of 21 December 1968, which provided for the establishment of a Committee on the Peaceful Uses of the Seabed and Ocean Floor Beyond the Limits of National Jurisdiction, and the uses of their resources in the interests of mankind, 30 "RECOGNIZING that the problems resulting from the com mercial exploitation of ocean space are imminent, "BELIEVING that the living and mineral resources in suspension in the high seas, and in the seabed and subsoil of ocean space, are free for the use of all nations, sub ject to international treaty obligations and the conserva tion provisions of the four conventions on the Law of the Sea, "CONVINCED that a Treaty on Principles Governing the Activities of States in the Exploration and Exploitation of Ocean Space will further the welfare and prosperity of mankind and benefit their national States, "HAVE AGREED as followsi "PART I "GENERAL PRINCIPLES APPLICABLE TO OCEAN SPACE "ARTICLE 1 "The exploration and use of ocean space and the resour ces in ocean space shall be carried out for the benefit and in the interests of all mankind, and shall be the province of all mankind. "ARTICLE 2 "Ocean space and the resources in ocean space shall be free for exploration and exploitation by all nations with out discrimination of any kind, on a basis of equality of opportunity, and in accordance with international law, and there shall be free access to all areas of ocean space. "ARTICLE 3 "Ocean space is not subject to national appropriation by claim of sovereignty, by means of use of occupation, or by any other means. "ARTICLE 4 "There shall be freedom of scientific investigation in ocean space and States Parties to the Treaty shall facili tate and encourage international cooperation in such inves 31 tigation, but no acts or activities taking place pursuant to such investigation shall constitute a basis for assert ing or creating any right to exploration or exploitation of ocean space and its resources. "ARTICLE 5 "States Parties to the Treaty shall carry on activities in the exploration and exploitation of ocean space and its resources in accordance with international law, including the Charter of the United Nations, and the provisions con tained in these articles, in the interest of maintaining international peace and security and promoting interna tional cooperation and understanding. "ARTICLE 6 "States Parties to the Treaty shall bear international responsibility for national activities on ocean space, whether carried on by governmental agencies or non-govern mental entities or nationals of such States, and for assur ing that national activities are carried on in conformity with the provisions set forth in this Treaty. The activi ties of non-governmental entities and nationals of States in ocean space shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in ocean space by an inter national organization, responsibility for compliance with this Treaty shall be borne by the international organiza tion itself. "ARTICLE 7 "In the exploration of ocean space and the exploitation of its resources, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assis tance and shall conduct all their activities in ocean space with due regard for the corresponding interests of all other States Parties. "ARTICLE 8 "States Parties to the Treaty shall render all possible assistance to any person, vessel, vehicle, or facility found in ocean space in danger of being lost or otherwise in distress. 32 "ARTICLE 9 "States Parties to the Treaty engaged in activities of exploration or exploitation in ocean space shall immedi ately inform the other States Parties or the Secretary General of the United Nations of any phenomena they dis cover in ocean space which could constitute a danger to the life or health of persons exploring or working in ocean space. "PART II "USE OF OCEAN SPACE EXCEPT SEABED AND SUBSOIL "ARTICLE 10 "All States Parties to the Treaty shall have the right for their nationals to engage in fishing, aquaculture, insolution mining, transportation, and telecommunication in the waters of ocean space beyond the territorial seas of any State. "ARTICLE 11 "The right declared in Article 10 shall be subject to the treaty obligations of each State Party to the Treaty and to the interests and rights of coastal States and shall be conditioned upon fulfillment of the conservation mea sures required in the agreement entitled 'Convention on Fishing and Conservation of the Living Resources of the High Seas', adopted by the United Nations Conference on the Law of the Sea at Geneva on 29 April 1958. "ARTICLE 12 "Any disputes which may arise between States Parties to the Treaty with respect to fishing, aquaculture, in-solu tion mining, conservation, and transportation activities in the high seas shall be settled in accordance with all the provisions of the convention referred to in Article 11 setting forth a compulsory method for the settlement of such questions. The provisions of Article 27 and Annex k of the International Telecommunication Convention, signed at Geneva on December 21, 1959* shall be applicable to any disputes which may arise between States Parties with res pect to telecommunication activities in the high seas. 33 "PART III *»USE OF SEABED AND SUBSOIL OF OCEAN SPACE "ARTICLE 13 "In order to promote and maintain international coopera tion in the peaceful and orderly exploration, and exploita tion of the natural resources, of the seabed and subsoil of submarine areas of ocean space, each State Party to the Treaty undertakes to engage in such exploration or exploi tation only under licenses issued by a technically compe tent licensing authority to be designated by the United Nations and to be independent of any State. "ARTICLE 14 "The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms 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 con tact with the seabed or the subsoil. "ARTICLE 15 "The activities of nationals and non-governmental enti ties in the exploration of submarine areas of ocean space and the exploitation of the natural resources of such areas shall require authorization and continuing supervision by the appropriate State Party to the Treaty, and shall be conducted under licenses issued to States Parties to the Treaty making application on behalf of their nationals and non-governmental entities. When such activities are to be carried on by an international organization, a license may be issued to such organization as if it were a State. "ARTICLE 16 "It shall be the duty of the licensing authority re ferred to in Article 13 to act as promptly as possible on each application for a license made to it. In issuing licenses and prescribing regulations, the licensing au thority shall apply all relevant provisions set forth in this Treaty, shall give due consideration to the potential impact on the world market for each resource to be extrac- 34 ted or produced under such license, and shall apply the following criteriai "(a) The license issued by the licensing authority shall (i) cover an area of such size and dimensions as the licensing authority may determine, with due regard given to oroviding for a satisfactory return of investment, (ii) be for a period of not more than fifty years, with the option of renewal, provided that operations are con ducted with the approval of the licensing authority, (iii) require the payment to the licensing authority of such fee or royalty as may be specified in the lease, (iv) require that such lease will terminate within a period of not more than ten years in the absence of operations thereunder unless the licensing authority approves an ex- tention of the period of such license, and (v) contain such other reasonable requirements as the licensing au thority may deem necessary to implement the provisions of this Treaty and to provide for the most efficient exploi tation of resources possible, consistent with the conser vation of and prevention of the waste of the natural re sources of the seabed and subsoil of ocean space. "(b) If two or more States Parties to the Treaty apply for licenses to engage in the exploration of the seabed and subsoil of ocean space or the exploitation of its natural resources in the same area or areas of ocean space, the licensing authority shall, to the greatest extent feasible and practicable, encourage cooperative or joint working relations between such States, and be guided by the principle that ocean space shall be free for use by all States, without discrimination of any kind, on a basis of equality of opportunity. But, if it proves impractical for the license to be shared, the licensing authority shall determine which State Party to the Treaty shall receive the license with due regard given to the encouragement of the development of the technologically developing States. "(c) A coastal State has a special interest in the conservation of the natural resources of the seabed and subsoil of ocean space adjacent to its territorial sea and continental shelf and this interest shall be taken into account by the licensing authority. "(d) A coastal State is entitled to take part on an equal footing in any system of research and regulation for purposes of conservation of the natural resources of the 35 seabed and subsoil of ocean space in that area, even though its agencies or nationals do not engage in exploration there or exploitation of its natural resources. M(e) The exploration of the seabed and subsoil of ocean space and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing, or the conservation of the living re sources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication. N(f) A State or international organization holding a license is obliged to undertake, in the area covered by such license, all appropriate measures for the protection of the living resources of the sea from harmful agents and shall pursue its activities so as to avoid the harmful contamination of the environment of such area. "ARTICLE 17 "1. Subject to appropriate regulations prescribed by the licensing authority referred to in Article 13 and to the following provisions, a State or international organi zation holding a license shall be entitled to construct and maintain or operate on the seabed and subsoil of ocean space installations and other devices necessary for its exploration and the exploitation of its natural resources, and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection. "2. The safety zones referred to in this Article may extend to a distance of 500 metres radius around the in stallations and other devices which have been erected, measured from each point of their outer edge. Ships of all nationalities must respect these safety zones. "3. Such installations and devices do not possess the status of islands and have no territorial sea of their own. Mi< - . Due notice must be given of the construction of any such installations, and permanent means for giving warning of their presence must be maintained. Any instal lations which are abandoned or disused must be entirely 36 removed by the State or international organization res ponsible for its construction. "5. Neither the installations or devices, nor the safety zones around them, may be established where inter ference may be caused to the use of recognized sea lanes essential to international commerce and navigation. "ARTICLE 1R "To the greatest extent feasible and practicable, the licensing authority referred to in Article 13 shall dis seminate immediately and effectively information and data received by it from license owners regarding their acti vities in ocean space. "ARTICLE 19 "If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its na tionals or non-governmental entities under a license is sued pursuant to this Part would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and exploitation of ocean space, it shall undertake appropriate international consultations and obtain the consent of the licensing authority referred to in Article 13 before proceeding with such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by ano ther State Party would cause potentially harmful inter ference with activities in the peaceful exploration and exploitation of submarine areas of ocean space may request consultation concerning the activity or experiment and submit a request for consideration of its complaint to the licensing authority, which may order that the activity or experiment shall be suspended, modified, or prohibited. Review of any such order shall be allowed in accordance with the provisions of Article 24. "ARTICLE 20 "All stations, installations, equipment, and sea vehi cles, machines, and capsules used on the seabed or in the subsoil of ocean space, whether manned or unmanned, shall be open to representatives of the licensing authority referred to in Article 13* except that if there is objec tion to this procedure by the licensee, such facilities 37 shall be open only to the Sea Guard of the United Nations as set forth in Article 27 of this Treaty. "ARTICLE 21 "Whenever a State Party to the Treaty or an interna tional organization fails to comply with any of the pro visions of a license issued to it under this Part, such license may be canceled by the licensing authority referred to in Article 13. upon thirty days notice to the State or international organization concerned, but subject to the right of the license owner to correct any failure of com pliance within a reasonable period of time to be specified by the licensing authority, and, in any event, to request review of the decision of the licensing authority as set for.th in Article 24. "ARTICLE 22 "Any dispute which may arise under this Part between States or international organizations holding licenses, or between license owners and the licensing authority referred to in Article 13. shall first be submitted for settlement by the licensing authority which shall determine its own procedure, assuring each party a full opportunity to be heard and to present its case. "ARTICLE 23 "In all cases of disputes under this Part, whether among license owners or between license owners and the licensing authority referred to in Article 13, the licensing authori ty shall be empowered to make awards. "ARTICLE 24 "1. In the case of any dispute under this Part, if the licensing authority shall not have rendered its decision within a reasonable period of time or if any party to a dispute under this part desires review of the decision of the licensing authority, such dispute shall, at the re quest of any of the parties, be submitted to a standing review panel which shall consist of not more than three members to be appointed by the International Court of Justice. The decision of the licensing authority shall be final and binding upon all parties to a proceeding before it unless a request for a review of such decision is made 38 under this Article within a period of thirty days from receipt by such parties of notice of such decision. "2. No two members of the panel may be nationals of the same State. No member may participate in the decision of any case if he has previously taken part in such case in any capacity or if he is a national of any party invol ved in the case. "3. Members of the panel shall serve at the pleasure of the International Court of Justice. The Court shall fix the salaries, allowances, and compensation of members of the panel. The expenses of the panel shall be borne by each party to proceedings before the panel in such a man ner as shall be decided by the Court. "4. The panel shall determine its own procedure, assur ing each party to the proceeding a full opportunity to be heard and to present its case. "5» The panel shall hear and determine each case within a period of ninety days from receipt of a request for re view of such case, unless it decides, in case of necessity, to extend the time limit for a period not exceeding thirty additional days. The decision of the panel shall be by majority vote and shall be final and binding upon the par ties to the proceeding! except that if any party to the proceeding desires review of the decision, or if the panel has failed to render its decision within the period pre scribed in the preceding sentence, the case shall be within the compulsory jurisdiction of the International Court of Justice as contemplated by paragraph 1 of Article 36 of the Statute of the International Court of Justice, and may accordingly be brought before the Court by an application made by such party. "PART IV "USE OF SEABED AND SUBSOIL OF OCEAN SPACE FOR PEACEFUL PURPOSES ONLY "ARTICLE 25 "1. The seabed and subsoil of submarine areas of ocean space shall be used for peaceful purposes only. 39 "2. The prohibitions of this Part shall not be cons trued to prevent ~ "(A) the use of military personnel or equipment for scientific research or for any other peaceful purposei "(B) the temporary use or stationing of any mili tary submarines on the seabed or subsoil of ocean space if such submarines are not primarily designed or in tended for use or stationing on the seabed or subsoil of ocean spacei or "(C) the use or stationing of any device on or in the seabed or subsoil of ocean space which is designed and intended for purposes of submarine or weapons de tection, identification, or tracking. "ARTICLE 26 "1. Each of the States Parties to this Treaty under takes to refrain from the implacement or installation on or in the seabed or subsoil of ocean space of any objects containing nuclear weapons or any kinds of weapons of mass destruction, or the stationing of such weapons on or in the seabed or subsoil of ocean space in any other manner. "2. Each of the States Parties to this Treaty under takes furthermore to refrain from causing, encouraging, or in any way participating in the conduct of the activi ties described in paragraph 1 of this Article. "ARTICLE 27 "All stations, installations, equipment, and sea ve hicles, machines, and capsules, whether manned or unmanned, on the seabed or in the subsoil of ocean space shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity, but only with the consent of the State concerned. Such representatives shall give reasonable advance notice of a projected visit in order that appropriate consultations may be held and that maxi mum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited. All such facilities shall be open at any time to the Sea Guard of the United Nations referred to in Part VII of this Treaty, subject to the control of the Security Council as set forth in such Part. 40 "PART V "REGULATIONS ON THE DISPOSAL OP RADIOACTIVE WASTE MATERIAL IN OCEAN SPACE "ARTICLE 28 "The disposal of radioactive waste material in ocean space shall be subject to safety regulations to be pre scribed by the International Atomic Energy Agency, in con sultation with the licensing authority referred to in Article 13 of this Treaty. "ARTICLE 29 "In the event of the conclusion of any other interna tional agreements concerning the use of nuclear energy, including the disposal of radioactive waste material, to which all of the States Parties to the Treaty are parties, the rules established under such agreements shall apply in ocean space. "PART VI "LIMITS OP CONTINENTAL SHELF "ARTICLE 30 "In order to assure freedom of the exploration and ex ploitation of ocean space and its resources as provided in this Treaty, there is a clear necessity that fixed limits must be set for defining the outer boundaries of the con tinental shelf of coastal States. For the purpose of the provisions of this Treaty, the term 'continental shelf' is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea to a depth of 550 metres, or to a distance of 50 miles from the baselines from which the breadth of the territorial sea is measured, whichever re sults in the greatest area of continental shelf, and (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands. In no case, however, shall the continental shelf be considered for such purpose to encom pass an area greater than the area (exclusive of territori al sea) of the State or island to which it is adjacent. Recognizing the desirability of achieving agreement on un settled questions relating to defining the boundaries of the continental shelf, States Parties to the Treaty under- 41 take to accept any agreements which may be reached in the event a conference is convened to consider such questions as provided for in Article 13 of the Convention on the Continental Shelf, adopted at Geneva on 29 April 19581 and any agreement so reached shall become effective for pur poses of this Treaty when approved by the conference. "PART VII "SEA GUARD "ARTICLE 31 "In order to promote the objectives and ensure the ob servance of the provisions set forth in this Treaty, States Parties to the Treaty agree that there shall be established as a permanent force a Sea Guard of the United Nations which may take such action as may be necessary to maintain and enforce international compliance with these principles. "ARTICLE 32 "The Sea Guard shall be under the control of the Se curity Council of the United Nations, in consultation with the licensing authority referred to in Article 13 of this Treaty. Paragraph 3 of Article 27 of the Charter of the United Nations shall be applicable to decisions of the Security Council made with respect to the Sea Guard. The licensing authority shall be responsible under the Security Council for the supervision of the Sea Guard in connection with the performance by the Sea Guard of such duties as the licensing authority may deem appropriate to assign or delegate to the Sea Guard for purposes of the implementa tion of Part III of this Treaty. "ARTICLE 33 "States Parties to the Treaty are encouraged to provide to the Sea Guard such personnel and suitable scientific and sea patrol vessels as are necessary for the establish ment and maintenance of the Sea Guard. "PART VIII "NATIONAL LAWS TO APPLY TO CRIMES IN OCEAN SPACE PENDING INTERNATIONAL AGREEMENT ON CODE OF CRIMINAL LAW "ARTICLE 34 42 "Pending agreement upon an international code of law governing criminal activities in ocean space and the insti tution of an appropirate tribunal with jurisdiction over violations of such code of law, personnel of States Parties to the Treaty and non-governmental entities of State Par ties and international organisations engaged in activities of exploration or exploitation in ocean space shall be subject only to the jurisdiction of the State of which they are nationals or the State which bears responsibility for their activities in respect of all acts or omissions occurring while they are in ocean space, unless otherwise provided for by international law or in this Treaty. “PART IX "FINAL ARTICLES "ARTICLE 35 "1. The provisions of this Treaty shall apply to the activities of States Parties to the Treaty in the explora tion and exploitation of ocean space, whether such acti vities are carried on by a single State Party to the Trea ty or jointly with other States, including cases where they are carried on within the framework of international intergovernmental organizations. "2. Any practical questions arising in connection with activities carried on by international intergovernmental organizations in the exploration and exploitation of ocean space, shall be resolved by the States Parties to the Treaty either with the appropriate international organi zation or with one or more States members of that interna tional organization, which are Parties to this Treaty. "ARTICLE 36 "1. This Treaty shall be open to all States for signa ture. Any State which does not sign this Treaty before its entry into force in accordance with paragraph 3 of this Article may accede to it at any time. "2. This Treaty shall be subject to ratification by signatory States. Instruments of ratification and instru ments of accession shall be deposited with the Governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics, which are hereby designated the De 43 positary Governments. ”3. This Treaty shall enter into force upon the deposit of instruments of ratification by ten Governments including the Governments designated as Depositary Governments under this Treaty. "4. For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or acces sion. "5. The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of rati fication of and accession to this Treaty, the date of its entry into force and other notices. "6. This Treaty shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations. "ARTICLE 37 "Any State Party to the Treaty may propose amendments to this Treaty. Amendments shall enter into force for each State Party to the Treaty accepting the amendments upon their acceptance by a majority of the States Parties to the Treaty and thereafter for each remaining State Party to the Treaty on the date of acceptance by it. "ARTICLE 38 "Any State Party to the Treaty may give notice of its withdrawal from the Treaty one year after its entry into force by written notification to the Depositary Govern ments. Such withdrawal shall take effect one year from the date of receipt of this notification. "ARTICLE 39 "This Treaty, of which the English, Russian, French, Spanish, Chinese, and Arabic texts are equally authentic, shall be deposited in the archives of the Depositary Gov ernments. Duly certified oopies of this Treaty shall be transmitted by the Depositary Governments to the Govern- ments of the signatory and acceding States. "IN WITNESS WHEREOF the undersigned, duly authorized, have signed this Treaty. "DONE in triplicate, at the capital cities of the De positary Governments at Washington, Moscow, and London, this _______day of one thousand nine hundred and _________ . "For the United States of Americai "For the Union of Soviet Socialist Republicsi "For the United Kingdom of Great Britain and Northern Irelandi" APPENDIX III August 3, 1970 DRAFT UNITED NATIONS CONVENTION ON THE INTERNATIONAL SEABED AREA Working Paper The attached draft of a United Nations Convention on the International Seabed Area is submitted by the Uni ted States Government as a working paper for discussion purposes. The draft Convention and its Appendices raise a number of questions with respect to which further detailed study is clearly necessary and do not necessarily repre sent the definitive views of the United States Government. The Appendices in particular are included solely by way of example. 45 46 TABLE OF CONTENTS PAGE Chapter I - Basic Principles 1 Chapter II - General Rules 7 Chapter III - The International Trusteeship Area 13 Chapter IV - The International Seabed Resource Authority 18 Chapter V - Rules and Recommended Practices J6 Chapter VI - Transition 40 Chapter VII - Definitions 43 Chapter VIII - Amendment and Withdrawal 45 Chapter IX - Final Clauses 46 Appendix A - Terms and Procedures Applying to All Licenses in the International Seabed Area Appendix B - Terms and Procedures Applying to Licenses in the International Seabed Area Beyond the International Trusteeship Area Appendix C - Terms and Procedures for Licenses in the International Trusteeship Area Appendix D - Division of Revenue Appendix E - Designated Members of the Council 47 UNITED NATIONS CONVENTION ON THE INTERNATIONAL SEABED AREA CHAPTER, 1 BASIC PRINCIPLES ARTICLE 1 1. The International Seabed Area shall be the common heritage of all mankind. 2. The International Seabed Area shall comprise all areas of the seabed and subsoil of the high seas* seaward of the 200 meter isobath adjacent to the coast of conti nents and islands. 3. Each Contracting Party shall permanently delineate the precise boundary of the International Seabed Area off its coast by straight lines not exceeding 60 nautical miles in length, following the general direction of the limit specified in paragraph 2. Such lines shall connect fixed points at the limit specified in paragraph 2, de fined permanently by coordinates of latitude and longi tude. Areas between or landward of such points may be deeper than 200 meters. Where a trench or trough deeper than 200 meters transects an area less than 200 meters in depth, a straight boundary line more than 60 nautical miles in length, but not exceeding the lesser of one fourth of the length of that part of the trench or trough trans ecting the area 200 meters in depth or 120 nautical miles, may be drawn across the trench or trough. 4. Each Contracting Party shall submit the description of the boundary to the International Seabed Boundary Re view Commission within five years of the entry into force of this Convention for such Contracting Party. Boundaries not accepted by the Commission and not resolved by negoti ation between the Commission and the Contracting Party within one year shall be submitted by the Commission to the ♦NOTEi The United States has simultaneously proposed an international Convention which would, inter alia, fix the boundary between the territorial sea and the high seas at a maximum distance 12 nautical miles from the coast. 48 Tribunal in accordance with Section E of Chapter IV. 5. Nothing in this Article shall affect any agreement or prejudice the position of any Contracting Party with respect to the delimitation of boundaries between opposite or adjacent States in seabed areas landward of the Inter national Seabed Area, or with respect to any delimitation pursuant to Article 30. ARTICLE 2 1. No State may claim or exercise sovereignty or sov ereign rights over any part of the International Seabed Area or its resources. Each Contracting Party agrees not to recognize any such claim or exercise of sovereignty or sovereign rights. 2. No State has, nor may it acquire, any right, title, or interest in the International Seabed Area or its re sources except as provided in this Convention. ARTICLE 3 The International Seabed Area shall be open to use by all States, without discrimination, except as otherwise provided in this Convention. ARTICLE 4 The International Seabed Area shall be reserved exclu sively for peaceful purposes. ARTICLE 5 1. The International Seabed Resource Authority shall use revenues it derives from the exploration and exploi tation of the mineral resources of the International Sea bed Area for the benefit of all mankind, particularly to promote the economic advancement of developing States Parties to this Convention, irrespective of their geo graphic location. Payments to the Authority shall be es tablished at levals designed to ensure that they make a (NOTEiThe preceding Article 2 is not intended to imply that States do not currently have rights under, or consistent with, the 1958 Geneva Convention on the Conti nental Shelf.) *9 continuing and substantial contribution to such economic advancement, bearing in mind the need to encourage invest ment in exploration and exploitation and to foster effi cient development of mineral resources. 2. A portion of these revenues shall be used, through or in cooperation with other international or regional organizations, to promote efficient, safe and economic exploitation of mineral resources of the seabedj to pro mote research on means to protect the marine environment! to advance other international efforts designed to pro mote safe and efficient use of the marine environment! to promote development of knowledge of the International Seabed Areai and to provide technical assistance to Con tracting Parties or their nationals for these purposes, without discrimination. ARTICLE 6 Neither this Convention nor any rights granted or exer cised pursuant thereto shall affect the legal status of the superjacent waters as high seas, or that of the air space above those waters. ARTICLE 7 All activities in the marine environment shall be con ducted with reasonable regard for exploration and exploi tation of the natural resources of the International Sea bed area. ARTICLE 8 Exploration and exploitation of the natural resources of the International Seabed Area must not result in any unjustifiable interference with other activities in the marine environment. ARTICLE 9 All activities in the International Seabed Area shall be conducted with strict and adequate safeguards for the protection of human life and safety and of the marine environment. 50 ARTICLE 10 All exploration and exploitation activities in the International Seabed Area shall be conducted by a Contrac ting Party or group of Contracting Parties or natural or juridical persons under its or their authority or sponsor ship. ARTICLE 11 1. Each Contracting Party shall take appropriate mea sures to ensure that those conducting activities under its authority or sponsorship comply with this Convention. 2. Each Contracting Party shall make it an offense for those conducting activities under its authority or sponsor ship in the International Seabed Area to violate the pro visions of this Convention. Such offenses shall be pun ishable in accordance with administrative or judicial procedures established by the Authorizing or Sponsoring Party. 3. Each Contracting Party shall be responsible for maintaining public order on manned installations and equip ment operated by those authorized or sponsored by it. k. Each Contracting Party shall be responsible for damages caused by activities which it authorizes or spon sors to any other Contracting Party or its nationals. 5. A group of States acting together, pursuant to agreement among them or through an international organi zation, shall be jointly and severally responsible under this Convention. ARTICLE 12 All disputes arising out of the interpretation or ap plication of this Convention shall be settled in accor dance with provisions of Section E of Chapter IV. 51 CHAPTER.il GENERAL RULES a. M ineral.Rftsomseg ARTICLE 13 1. All exploration and exploitation of the mineral deposits of the International Seabed Area shall be licen sed by the International Seabed Resource Authority or the appropriate Trustee Party. All licenses shall be subject to the provisions of this Convention. 2. Detailed rules to implement this Chapter are con tained in Appendices A, B and C. ARTICLE 14 1. There shall be fees for licenses for mineral explor ation and exploitation. 2. The fees referred to in paragraph 1 shall be reason able and be designed to defray the administrative expenses of the International Seabed Resource Authority and of the Contracting Parties in discharging their responsibilities in the International Seabed Area. ARTICLE 15 1. An exploitation license shall specify the minerals or categories of minerals and the precise area to which it applies. The categories established shall be those which will best promote simultaneous and efficient exploi tation of different minerals. 2. Two or more licensees to whom licenses have been issued for different materials in the same or overlapping areas shall not unjustifiably interfere with each other's activities. ARTICLE 16 The size of the area to which an exploitation license shall apply and the duration of the license shall not exceed the limits provided for in this Convention. 52 ARTICLE 17 Licensees must meet work requirements specified in this Convention as a condition of retaining an exploita tion license prior to and after commercial production is achieved. ARTICLE 18 Licensees shall submit work plans and production plans, as well as reports and technical data acquired under an exploitation license, to the Trustee Party or the Spon soring Party, as appropriate, and, to the extent speci fied by this Convention, to the International Seabed Re source Authority. ARTICLE 19 1. Each Contracting Party shall be responsible for inspecting, at regular intervals, the activities of licensees authorized or sponsored by it. Inspection re ports shall be submitted to the International Seabed Re source Authority. 2. The International Seabed Resource Authority, on its own initiative or at the request of any interested Contracting Party, may inspect any licensed activity in cooperation with the Trustee Party or Sponsoring Party, as appropriate, in order to ascertain that the licensed operation is being conducted in accordance with this Con vention. In the event the International Seabed Resource Authority believes that a violation of this Convention has occurred, it shall inform the Trustee Party or Spon soring Party, as appropriate, and request that suitable action be taken. If, after a reasonable period of time, the alleged violation continues, the International Seabed Resource Authority may bring the matter before the Tribunal in accordance with Section E of Chapter IV. ARTICLE 20 1. Licenses issued pursuant to this Convention may be revoked only for cause in accordance with the provi sions of this Convention. 2. Expropriation of investments made, or unjustifiable interference with operations conducted, pursuant to a 53 license is prohibited. ARTICLE 21 1. Due notice must be given, by Notices to Mariners or other recognized means of notification, of the construc tion or deployment of any installations or devices for the exploration or exploitation of mineral deposits, and permanent means for giving warning of their presence must be maintained. Any installations or devices extending into the superjacent waters which are abandoned or dis used must be entirely removed. 2. Such installations and devices shall not possess the status of islands and shall have no territorial sea of their own. 3. Installations or devices may not be established where interference with the use of recognized sea lanes or airways is likely to occur. B. Living Resources of the Seabed ARTICLE 22 Subject to the provisions of Chapter III, each Contrac ting Party may explore and exploit the seabed living re sources of the International Seabed Area in accordance with such conservation measures as are necessary to pro tect the living resources of the International Seabed Area and to maximize their growth and utilization. C. Protection of the Marine Environment. Life and Property ARTICLE 23 1. In the International Seabed Area, the International Seabed Resource Authority shall prescribe Rules and Rec ommended Practices, in accordance with Chapter V of this Convention, to ensure« a. The protection of the marine environment against pollution arising from exploration and exploi tation activities such as drilling, dredging, excava 54 tion, disposal of waste, construction and operation or maintenance of installations and pipelines and other devicesi b. The prevention of injury to persons, property and marine resources arising from the aforementioned activities) c. The prevention of any unjustifiable interference with other activities in the marine environment aris ing from the aforementioned activities. 2. Deep drilling in the International Seabed Area shall be undertaken only in accordance with the provisions of this Convention. D. Scientific Research ARTICLE 24 1. Each Contracting Party agrees to encourage, and to obviate interference with, scientific research. 2. The Contracting Parties shall promote interna tional cooperation in scientific research concerning the International Seabed Areai a. By participating in international programs and by encouraging cooperation in scientific research by personnel of different countries; b. Through effective publication of research pro grams and the results of research through international channels; c. By cooperation in measures to strengthen the research capabilities of developing countries, includ ing the participation of their nationals in research programs. International Marine Parks and Preserves ARTICLE 25 In consultation with the appropriate international 55 organizations or agencies, the International Seabed Re source Authority may designate as international marine parks and preserves specific portions of the International Seabed Area that have unusual educational, scientific or recreational value. The establishment of such a park or preserve in the International Trusteeship Area shall re quire the approval of the appropriate Trustee Party. 56 CHAPTER III THE INTERNATIONAL TRUSTEESHIP ARTICLE 26 1. The International Trusteeship Area is that part of the International Seabed Area comprising the continental or island margin between the boundary described in Ar ticle I and a line, beyond the base of the continental slope, or beyond the base of the slope of an island situ ated beyond the continental slope, where the downward inclination of the surface of the seabed declines to a gradient of li .* 2. Each Trustee Party shall permanently delineate the precise seaward boundary of the International Trusteeship Area off its coast by straight lines not exceeding 60 nautical miles in length, following the general direction of the limits specified in paragraph 1. Such lines shall connect fixed points at the limit specified in paragraph 1, defined permanently by coordinates of latitude and longitude. Areas between or landward of such points may have a surface gradient of less than li . Where an elongate basin or plain having a surface gradient of less than li transects an area having a gradient of more than 1» a straight boundary line more than 60 nauti cal miles in length, but not exceeding the lesser of one- fourth of the length of that part of the basin or plain transecting the area having a gradient of more than li____ or 120 nautical miles, may be drawn across the basin or plain. 3. Each Trustee Party shall submit the description of its boundary to the International Seabed Boundary Review Com mission within five years of the entry into force of this Convention for the Party. Boundaries not accepted by that Commission and not resolved by negotiation between the Commission and the Trustee Party within one year shall be submitted by the Commission to the Tribunal for adjudi cation in accordance with Section E of Chapter IV. * The precise gradient should be determined by technical experts, taking into account, among other factors, ease of determination, the need to avoid dual administration of single mineral deposits, and the avoidance of including excessively large areas in the International Trusteeship Area. 57 (NOTEi Additional consideration will be given to prob lems raised by enclosed and semi-enclosed seas.) ARTICLE 27 1. Except as specifically provided for in this Chapter, the coastal State shall have no greater rights in the International Trusteeship Area off its coast than any other Contracting Party. 2. With respect to exploration and exploitation of the natural resources of that part of the International Trus teeship Area in which it acts as trustee for the interna tional community, each coastal State, subject to the pro visions of this Convention, shall be responsible fori a. Issuing, suspending and revoking mineral explora tion and exploitation licensesi b. Establishing work requirements, provided that such requirements shall not be less than those specified in Appendix At c. Ensuring that its licenses comply with this Con vention, and, if it deems it necessary, applying stand ards to its licensees higher than or in addition to those required under this Convention, provided such standards are promptly communicated to the International Seabed Resource Authority» d. Supervising its licensees and their activities) e. Exercising civil and criminal jurisdiction over its licensees, and persons acting on their behalf, while engaged in exploration or exploitation) f. Filing reports with the International Seabed Re source Authority) g. Collecting and transferring to the International Seabed Resource Authority all payments required by this Convention) h. Determining the allowable catch of the living re sources of the seabed and prescribing other conservation measures regarding them) i. Enacting such laws and regulations as are necessary 58 to perform the above functions. 3. Detailed rules to implement this Chapter are contained in Appendix C. ARTICLE 28 In performing the functions referred to in Article 27, the Trustee Party may, in its discretioni a. Establish the procedures for issuing licensest b. Decide whether a license shall be issued % c. Decide to whom a license shall be issued, without regard to the provisions of Article 3i d. Retain [a figure between 33“l/3# and 50# will be inserted here]] of all fees and payments required by this Convention! e. Collect and retain additional license and rental fees to defray its administrative expenses, and collect, and retain [a figure between 33”l/3# and 50# will be in serted here] of, other additional fees and payments re lated to the issuance or retention of a license, with annual notification to the International Seabed Resource Authority of the total amount collected! f. Decide whether and by whom the living resources of the seabed shall be exploited, without regard to the pro visions of Article 3. ARTICLE 29 The Trustee Party may enter into an agreement with the International Seabed Resource Authority under which the International Seabed Resource Authority will perform some or all of the trusteeship supervisory and administrative functions provided for in this Chapter in return for an appropriate part of the Trustee Party's share of interna tional fees and royalties. ARTICLE 30 Where a part of the International Trusteeship Area is 59 off the coast of two or. more Contracting Parties, such Parties shall, by agreement, precisely delimit the bound ary separating the areas in which they shall respectviely perform their trusteeship functions and inform the Inter national Seabed Boundary Review Commission of such deli mitation. If agreement is not reached within three years after negotiations have commenced, the International Sea bed Boundary Review Commission shall be requested to make recommendations to the Contracting Parties concerned re garding such delimitation. If agreement is not reached within one year after such recommendations are made, the delimitation recommended by the Commission shall take effect unless either Party, within 90 days thereafter, brings the matter before the Tribunal in accordance with Section E of Chapter IV. 6 0 QHAETEfi I.Y THE INTERNATIONAL SEABED RESOURCE AUTHORITY A. General ARTICLE 31 1. The International Seabed Resource Authority is hereby established. 2. The principal organs of the Authority shall be the Assembly, the Council, and the Tribunal. ARTICLE 32 The permanent seat of the Authority shall be at ______. ARTICLE 33 Each Contracting Party shall recognize the juridical personality of the Authority. The legal capacity, privi leges and immunities of the Authority shall be the same as those defined in the Convention on the Privileges and Immunities of the Specialized Agencies of the United Na tions. 8. The Assembly ARTICLE y* 1. The Assembly shall be composed of all Contracting Parties. 2. The first session of the Assembly shall be convened ___________. The Assembly shall thereafter be convened by the Council at least once every three years at a suitable time and place. Extraordinary sessions of the Assembly shall be convened at any time on the call of the Council, or the Secretary-General of the Authority at the request of one-fifth of the Contracting Parties. 3. At meetings of the Assembly a majority of the Con tracting Parties is required to constitute a quorum. 4. In the Assembly each Contracting Party shall exer cise one vote. 61 5* Decisions of the Assembly shall be taken by a ma jority of the members present and voting, except as other wise provided in this Convention. ARTICLE 35 The powers and duties of the Assembly shall be toi a. Elect its President and other officersi b. Elect members of the Council in accordance with Article 361 c. Determine its rules of procedure and constitute such subsidiary organs as it considers necessary or de sirable 1 d. Require the submission of reports from the Coun- cilj e. Take action on any matter referred to it by the Councilt f. Approve proposed budgets for the Authority, or return them to the Council for reconsideration and resub mission 1 g. Approve proposals by the Council for changes in the allocation of the net income of the Authority within the limits prescribed in Appendix D, or return them to the Council for reconsideration and resubmissiont h. Consider any matter within the scope of this Convention and make recommendations to the Council or Contracting Parties as appropriate» i. Delegate such of its powers as it deems neces sary or desirable to the Council and revoke or modify such delegation at any timet j. Consider proposals for amendments of this Con vention in accordance with Article 76. C. The Council 62 ARTICLE 36 1. The Council shall be composed of twenty-four Con tracting Parties and shall meet as often as necessary. 2. Members of the Council shall be designated or elec ted in the following categories1 a. The six most industrially advanced Contracting Parties shall be designated in accordance with Appendix Ei b. Eighteen additional Contracting Parties, of which at least twelve shall be developing countries, shall be elected by the Assembly, taking into account the need for equitable geographical distribution. 3. At least two of the twenty-four members of the Council shall be landlocked or shelf-locked countries. k. Elected members of the Council shall hold office for three years following the last day of the Assembly at which they are elected and thereafter until their succes sors are elected. Designated members of the Council shall hold office until replaced in accordance with Appendix E. 5> Representatives on the Council shall not be employ ees of the Authority. ARTICLE 37 1. The Council shall elect its President for a term of three years. 2. The President of the Council may be a national of any Contracting Party, but may not serve during his term of office as its representative in the Assembly or on the Council. 3. The President shall have no vote. Jf. The President shall 1 a. Convene and conduct meetings of the Councilt b. Carry out the functions assigned to him by the Council. 63 ARTICLE 38 Decisions by the Council shall require approval by a majority of all its members, including a majority of mem bers in each of the two categories referred to in paragraph 2 of Article 36. ARTICLE 39 Any Contracting Party not represented on the Council may participate, without a vote, in the consideration by the Council or any of the subsidiary organs, of any ques tion which is of particular interest to it. ARTICLE The powers and duties of the Council shall be toi a. Submit annual reports to the Contracting Parties) b. Carry out the duties specified in this Convention and any duties delegated to it by the Assembly) c. Determine its rules of procedure) d. Appoint and supervise the Commissions provided for in this Chapter, establish procedures for the coordination of their activities, and determine the terms of office of their members) e. Establish other subsidiary organs, as may be neces sary or desirable, and define their duties) f. Appoint the Secretary-General of the Authority and establish general guidelines for the appointment of such other personnel as may be necessary) g. Submit proposed budgets to the Assembly for its approval, and supervise their execution) h. Submit proposals to the Assembly for changes in the allocation of the net income of the Authority within the limits prescribed in Appendix D) i. Adopt and amend Rules and Recommended Practices in accordance with Chapter V, upon the recommendation of the 64 Rules and Recommended Practices Commission» j. Issue emergency orders, at the request of any Contracting Party, to prevent serious harm to the marine environment arising out of any exploration or exploitation activity and communicate them immediately to licensees, and Authorizing or Sponsoring Parties, as appropriatei k. Establish a fund to provide emergency relief and assistance in the event of a disaster to the marine en vironment resulting from exploration or exploitation acti vities i 1. Establish procedures for coordination between the International Seabed Resource Authority, and the United Nations, its specialized agencies and other international or regional organizations concerned with the marine en vironment! m. Establish or support such international or regional centers, through or in cooperation with other international and regional organizations, as may be ap propriate to promote study and research of the natural resources of the seabed and to train nationals of any Contracting Party in related science and the technology of seabed exploration and exploitation, taking into ac count the special needs of developing States Parties to this Convention! n. Authorize and approve agreements with a Trustee Party, pursuant to Article 29, under which the Internation al Seabed Resource Authority will perform some or all of the Trustee Party's functions. ARTICLE 41 In furtherance of Article 5, paragraph 2, of this Con vention, the Council may, at the request of any Contrac ting Party and taking into account the special needs of developing States Parties to this Convention! a. Provide technical assistance to any Contracting Party to further the objectives of this Convention! b. Provide technical assistance to any Contracting Party to help it to meet its responsibilities and obliga tions under this Convention! 65 c. Assist any Contracting Party to augment its capa bility to derive maximum benefit from the efficient ad ministration of the International Trusteeship Area. D. The Commissions ARTICLE 42 1. There shall be a Rules and Recommended Practices Commission, an Operations Commission, and an International Seabed Boundary Review Commission. 2. Each Commission shall be composed of five to nine members appointed by the Council from among persons nomi nated by Contracting Parties. The Council shall invite all Contracting Parties to submit nominations. 3« No two members of a Commission may be nationals of the same State. 4. A member of each Commission shall be elected its President by a majority of the members of the Commission. 5. Each Commission shall perform the functions speci fied in this Convention and such other functions as the Council may specify from time to time. ARTICLE 43 1. Members of the Rules and Recommended Practices Commission shall have suitable qualifications and experi ence in seabed resources management, ocean sciences, mari time safety, ocean and marine engineering, and mining and mineral technology and practices. They shall not be full time employees of the Authority. 2. The Rules and Recommended Practices Commission shalli a. Consider, and recommend to the Council for adop tion, Annexes to this Convention in accordance with Chap ter V i b. Collect from and communicate to Contracting Parties information which the Commission considers neces sary and useful in carrying out its functions. 66 ARTICLE 44 1. Members of the Operations Commission shall have suitable qualifications and experience in the management of seabed resources, and operation of marine installations, equipment and devices. 2. The Operations Commission shalli a. Issue licenses for seabed mineral exploration and exploitation, except in the International Trusteeship Area! b. Supervise the operations of licensees in cooper ation with the Trustee or Sponsoring Party, as appropriate, but shall not itself engage in exploration or exploitationi c. Perform such functions with respect to disputes between Contracting Parties as are specified in Section E of this Chaptert d. Initiate proceedings pursuant to Section E of this Chapter for alleged violations of this Convention, including but not limited to proceedings for revocation or suspension of licenses! e. Arrange for and review the collection of inter national fees and other forms of payment! f. Arrange for the collection and dissemination of information relating to licensed operations! g. Supervise the performance of the functions of the Authority pursuant to any agreement between a Trustee Party and the Authority under Article 29! h. Issue deep drilling permits. ARTICLE 45 1. Members of the International Seabed Boundary Review Commission shall have suitable qualifications and experi ence in marine hydrography, bathymetry, geodesy and geology. They shall not be full-time employees of the Authority. 2. The International Seabed Boundary Review Commission 67 shallt a. Review the delineation of boundaries submitted by Contracting Parties in accordance with Articles 1 and 26 to see that they conform to the provisions of this Con vention, negotiate any differences with Contracting Parties and if these differences are not resolved initiate pro ceedings before the Tribunal in accordance with Section E of this Chapteri b. Make recommendations to the Contracting Parties in accordance with Article 30i c. At the request of any Contracting Party, render advice on any boundary question arising under this Con vention. E. The Tribunal ARTICLE 46 1. The Tribunal shall decide all disputes and advise on all questions relating to the interpretation and appli cation of this Convention which have been submitted to it in accordance with the provisions of this Convention. In its decisions and advisory opinions the Tribunal shall also apply relevant principles to international law. 2. Subject to an authorization under Article 96 of the Charter of the United Nations, the Tribunal may request the International Court of Justice to give an advisory opinion on any question of international law. ARTICLE 47 1. The Tribunal shall be composed of five, seven, or nine independent judges, who shall possess the qualifica tions required in their respective countries for appoint ment to the highest judicial offices, or shall be lawyers expecially competent in matters within the scope of this Convention. In the Tribunal as a whole the representation of the principal legal systems of the world shall be as sured . 2. No two of the members of the Tribunal may be na tionals of the same State. 68 ARTICLE 48 1. Each Contracting Party shall be entitled to nomi- nate candidates for membership on the Tribunal. The Coun cil shall elect the Tribunal from a list of these nomina tions . 2. The members of the Tribunal shall be elected for nine years and may be re-elected, provided, however, that the Council may establish procedures for staggered terms. Should such procedures be established, the judges whose terms are to expire in less than nine years shall be chosen by lots drawn by the Secretary-General. 3. The members of the Tribunal shall continue to dis charge their duties until their places have been filled. Though replaced, they shall finish any cases which they may have begun. 4. A member of the Tribunal unable to perform his duties may be dismissed by the Council on the unanimous recommendation of the other members of the Tribunal. 5« In case of a vacancy, the Council shall elect a successor who shall hold office for the remainder of his predecessor's term. ARTICLE 49 The Tribunal shall establish its rules of procedure! elect its Presidenti appoint its Registrar and determine his duties and terms of service) and adopt regulations for the appointment of the remainder of its staff. ARTICLE 50 1. Any Contracting Party which considers that another Contracting Party has failed to fulfill any of its obliga tions under this Convention may bring its complaint before the Tribunal. 2. Before a Contracting Party institutes such proceed ings before the Tribunal it shall bring the matter before the Operations Commission. 3. The Operations Commission shall deliver a reasoned opinion in writing after the Contracting Parties concerned 69 have been given the opportunity both to submit their own cases and to reply to each other's case. If the Contracting Party accused of a violation does not comply with the terms of such opinion within the period laid down by the Commission, the other Party con cerned may bring the matter before the Tribunal. 5. If the Commission has not given an opinion within a period of three months from the date when the matter was brought before it, either Party concerned may bring the matter before the Tribunal without waiting further for the opinion of the Commission. ARTICLE 51 1. Whenever the Operations Commission, acting on its own initiative or at the request of any licensee, considers that a Contracting Party or a licensee has failed to ful fill any of its obligations under this Convention, it shall issue a reasoned opinion in writing on the matter after giving such party the opportunity to submit its comments. 2. If the party concerned does not comply with the terms of such opinion within the period laid down by the Commission, the latter may bring a complaint before the Tribunal. ARTICLE 52 1. If the Tribunal finds that a Contracting Party or a licensee has failed to fulfill any of its obligations under this Convention, such party shall take the measures required for the implementation of the judgment of the Tribunal. 2. When appropriate, the Tribunal may decide that the Contracting Party or the licensee sho has failed to fulfill its obligations under this Convention shall pay to the Authority a fine of not more than $1,000 for each day of the offense, or shall pay damages to the other party con cerned, or both. 3. In the event the Tribunal determines that a licensee has committed a gross and persistent violation of the pro visions of this Convention and has not within a reasonable 70 time brought his operations into compliance with them, the Council may, as appropriate, either revoke his license or request that the Trustee Party revoke it. The licensee shall not, however, be deprived of his license if his ac tions were directed by a Trustee or Sponsoring Party. ARTICLE 53 If disputes under Articles 1, 26 and 30 have not been resolved by the time and methods specified in those Ar ticles, the International Seabed Boundary Review Commission shall bring the matter before the Tribunal. ARTICLE 5^ 1. Any Contracting Party, which questions the legality of measures taken by the Council, the Rules and Recommended Practices Commission, the Operations Commission, or the International Seabed Boundary Review Commission on the grounds of a violation of this Convention, lack of juris diction, infringement of important procedural rules, un reasonableness, or misuse of powers, may bring the matter before the Tribunal. 2. Any person may, subject to the same conditions, bring a complaint to the Tribunal with regard to a deci sion directed to that person, or a decision which, although in the form of a rule or a decision directed to another person, is of direct concern to the complainant. 3. The proceedings provided for in this Article shall be instituted within a period of two months, dating, as the case may be, either from the publication of the measure concerned or from its notification to the complainant, or, in default thereof, from the day on which the latter learned of it. k. If the Tribunal considers the appeal well-founded, it should declare the measure concerned to be null and void, and shall decide to what extent the annulment shall have retroactive application. ARTICLE 55 1. The organ responsible for a measure declared null and void by the Tribunal shall be required to take the necessary steps to comply with the Tribunal's judgment. 71 2. When appropriate, the Tribunal may require that the Authority repair or pay for any damage caused by its organs or by its officials in the performance of their duties. ARTICLE 56 When a case pending before a court or tribunal of one of the Contracting Parties raises a question of the inter pretation of this Convention or of the validity or inter pretation of measures taken by an organ of the Authority, the court or tribunal concerned may request the Tribunal to give its advice thereon. ARTICLE 57 The Tribunal shall also be competent to decide any dispute connected with the subject matter of this Conven tion submitted to it pursuant to an agreement, license, or contract. ARTICLE 58 If a Contracting Party fails to perform the obligations incumbent upon it under a judgment rendered by the Tri bunal, the other Party to the case may have recourse to the Council, which shall decide upon measures to be taken to give effect to the judgment. When appropriate, the Council may decide to suspend temporarily, in whole or in part, the rights under this Convention of the Party fail ing to perform its obligations, without impairing the rights of licensees who have not contributed to the fail ure to perform such obligations. The extent of such a suspension should be related to the extent and seriousness of the violation. ARTICLE 59 In any case in which the Council issues an order in emergency circumstances to prevent serious harm to the marine environment, any directly affected Contracting Party may request immediate review by the Tribunal, which shall promptly either confirm or suspend the application of the emergency order pending the decision of the case. 72 ARTICLE 60 Any organ of the International Seabed Resource Authority may request the Tribunal to give an advisory opinion on any legal question connected with the subject matter of this Convention. P. The Secretariat ARTICLE 6l The Secretariat shall comprise a Secretary-General and such staff as the International Seabed Resource Authority may require. The Secretary-General shall be appointed by the Council from among persons nominated by Contracting Parties. He shall serve for a term of six years, and may be reappointed. ARTICLE 62 The Secretary-General Shallt a. Be the chief administrative officer of the Interna tional Seabed Resource Authority, and act in that capacity in all meetings of the Assembly and the Councili b. Report to the Assembly and the Council on the work of the International Seabed Resource Authorityi c. Collect, publish and disseminate information which will contribute to mankind's knowledge of the seabed and its resources! d. Perform such other functions as are entrusted to him by the Assembly or the Council. ARTICLE 63 1. In the performance of their duties the Secretary- General and the staff shall not seek or receive instruc tions from any government or from any other external au thority. They shall refrain from any action which might reflect on their position as international officials res ponsible only to the International Seabed Resource Authori ty. 2. Each Contracting Party shall respect the exclusively ? 3 international character of the responsibilities of the Secretary-General and the staff and shall not seek to in fluence them in the discharge of their responsibilities. ARTICLE 6k 1. The staff of the International Seabed Resource Authority shall be appointed by the Secretary-General under the general guidelines established by the Council. 2. Appropriate staffs shall be assigned to the various organs of the Authority as required. 3. The permanent consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible. G. Conflicts of Interest ARTICLE 65 No representative to the Assembly or the Council nor any member of the Tribunal, Commissions, subsidiary organs (other than advisory bodies or consultants), or the Secre tariat, shall, while serving as such a representative or member, be actively associated with or financially inter ested in any of the operations of any enterprise concerned with exploration or exploitation of the natural resources of the International Seabed Area. 7^ CHAPIBB v RULES AND RECOMMENDED PRACTICES ARTICLE 66 1. Rules and Recommended Practices are contained In Annexes to this Convention. 2. Annexes shall be consistent with this Convention, its Appendices, and any amendments thereto. Any Contrac ting Party may challenge an Annex, an amendment to an Annex, or any of their provisions, on the grounds that it is unnecessary, unreasonable or constitutes a misuse of powers, by bringing the matter before the Tribunal in accordance with Article 3. Annexes shall be adopted and amended in accordance with Article 67. Those Annexes adopted along with this Convention, if any, may be amended in accordance with Article 67. ARTICLE 67 The Annexes to this Convention and amendments to such Annexes shall be adopted in accordance with the following procedure1 a. They shall be prepared by the Rules and Recommended Practices Commission and submitted to the Contracting Parties for comments 1 b. After receiving the comments, the Commission shall prepare a revised text of the Annex or amendments thereto 1 c. The text shall then be submitted to the Council which shall adopt it or return it to the Commission for further study1 d. If the Council adopts the text, it shall submit it to the Contracting Partiest e. The Annex or an amendment thereto shall become effective within three months after its submission to the Contracting Parties, or at the end of such longer period of time as the Council may prescribe, unless in the mean time more than one-third of the Contracting Parties regis ter their disapproval with the Authority! 75 f. The Secretary-General shall Immediately notify all Contracting States of the coming into force of any Annex or amendment thereto. ARTICLE 68 1. Annexes shall be limited to the Rules and Recom mended Practices necessary tot a. Fix the level, basis, and accounting procedures for determining international fees and other forms of pay ment, within the ranges specified in Appendix Ai b. Establish work requirements within the ranges specified in Appendices A and Bt c. Establish criteria for defining the technical and financial competence of applicants for licensesi d. Assure that all exploration and exploitation activities, and all deep drilling, are conducted with strict and adequate safeguards for the protection of human life and safety and of the marine environment! e. Protect living marine organisms from damage arising from exploration and exploitation activities! f. Prevent or reduce to acceptable limits inter ference arising from exploration and exploitation activi ties with other uses and users of the marine environment! g. Assure safe design and construction of fixed exploration and exploitation installations and equipment! h. Facilitate search and rescue services, includ ing assistance to aquanauts, and the reporting of accidents! i. Prevent unnecessary waste in the extraction of minerals from the seabed! j. Standardize the measurement of water depth and the definition of other natural features pertinent to the determination of the precise location of International Seabed Area boundaries! k. Prescribe the form in which Contracting Parties shall describe their boundaries and the kinds of informa- 76 tion to be submitted in support of themi 1. Encourage uniformity in seabed mapping and chartingi m. Facilitate the management of a part of the international trusteeship area pursuant to any agreement between a Trustee Party and the Authority under Article 29t n. Establish and prescribe conditions for the use of international marine parks and preserves! 2. Application of any Rule or Recommended Practice may be limited as to duration or geographic area, but without discrimination against any Contracting Party or licensee. ARTICLE 69 The Contracting Parties agree to collaborate with each other and the appropriate Commission in securing the high est practicable degree of uniformity in regulations, stan dards, procedures and organizations in relation to the matters covered by Article 68 in order to facilitate and improve seabed resources exploration and exploitation. ARTICLE 70 Annexes and amendments thereto shall take into account existing international agreements and, where appropriate, shall be prepared in collaboration with other competent international organizations. In particular, existing in ternational agreements and regulations relating to safety of life at sea shall be respected. ARTICLE 71 1. Except as otherwise provided in this Convention, the Annexes and amendments thereto adopted by the Council shall be binding on all Contracting Parties. 2. Recommended Practices shall have no binding effect. ARTICLE 72 Any Contracting Party believing that a provision of an Annex or an amendment thereto cannot be reasonably applied 77 because of special circumstances may seek a waiver from the Operations Commission and if such waiver is not granted within three months, it may appeal to the Tribunal within an additional period of two months. 78 CHAPTER VI TRANSITION ARTICLE 73 1. There shall be due protection for the integrity of Investments made in the International Seabed Area prior to the coming into force of this Convention. 2. All authorizations by a Contracting Party to exploit the mineral resources of the International Seabed Area granted prior to July 1, 1970, shall be continued without change after the coming into force of this Convention provided thati a. Activities pursuant to such authorizations shall to the extent possible, be conducted in accordance with the provisions of this Convention! b. New activities under such previous authoriza tions which are begun after the coming into force of this Convention shall be subject to the regulatory provisions of this Convention regarding the protection of human life and safety and of the marine environment and the avoidance of unjustifiable interference with other uses of the marine environment! c. Upon the expiration or relinquishment of such authorizations, or upon their revocation by the authori zing Party, the provisions of this Convention shall become fully applicable to any exploration or exploitation of resources remaining in the areas included in such authori zations ! d. Contracting Parties shall pay to the Interna tional Seabed Resource Authority, with respect to such authorizations, the production payments provided for under this Convention. 3. A Contracting Party which has authorized exploita tion of the mineral resources of the International Seabed Area on or after July 1, 1970, shall be bound, at the re quest of the person so authorized, either to issue new licenses under this Convention in its capacity as a Trustee Party, or to sponsor the application of the person so authorized to receive new licenses from the International 79 Seabed Resource Authority. Such new license issued by a Trustee Party shall include the same terms and conditions as its previous authorization, provided that such license shall not be inconsistent with this Convention, and pro vided further that the Trustee Party shall itself be res ponsible for complying with increased obligations result ing from the application of this Convention, including fees and other payments required by this Convention. 4. The provisions of paragraph 3 shall apply within one year after this Convention enters into force for the Contracting Party concerned, but in no event more than five years after the entry into force of this Convention. 5. Until converted into new licenses under paragraph 3. all authorizations issued on or after July 1, 1970, to exploit the mineral resources of the International Seabed Area shall have the same status as authorizations under paragraph 2. Five years after the entry into force of this Convention all such authorizations not converted into new licenses under paragraph 3 shall be null and void. 6. Any Contracting Party that has authorized activi ties within the International Seabed Area after July 1, 1970, but before this Convention has entered into force for such Party, shall compensate its licensees for any in vestment losses resulting from the application of this Convention. ARTICLE 7^ 1. The membership of the Tribunal, the Commissions, and the Secretariat shall be maintained at a level com mensurate with the tasks being performed. 2. In the period before the International Seabed Re source Authority acquires income sufficient for the pay ment of its administrative expenses, the Authority may borrow funds for the payment of those expenses. The Con tracting Parties agree to give sympathetic consideration to requests by the Authority for such loans. 80 QHAPIfiR VII pfimiims ARTICLE 75 Unless another meaning results from the context of a particular provision, the following definitions shall applyi 1. "Convention" refers to all provisions of and amendments to this Convention, its Appendices, and its Annexes. 2. "Trustee Party" refers to the Contracting Party exercising trusteeship functions in that part of the International Trusteeship Area off its coast in accordance with Chapter III. 3. "Sponsoring Party" refers to a Contracting Party which sponsors an application for a li cense or oermit before the International Seabed Resource Authority. The term "sponsor" is used in this context. k. "Authorizing Party" refers to a Contracting Party authorizing any activity in the Interna tional Seabed Area, including a Trustee Party issuing exploration or exploitation licenses. The term "authorize" is used in this context. In the case of a vessel, the term "Authorizing Party" shall be deemed to refer to the State of its nationality. 5. "Operating Party" refers to a Contracting Party which itself explores or exploits the natural resources of the International Seabed Area. 6. "Licensee" refers to a State, group of States, or natural or juridical person holding a license for exploration or exploitation of the natural resources of the International Seabed Area. 7. "Exploration" refers to any operation in the International Seabed Area which has as its principal or ultimate purpose the discovery and appraisal, or exploitation, of mineral de- 81 posits, and does not refer to similar activities when undertaken pursuant to an exploitation license. 8. "Deep drilling" refers to any form of drilling or excavation in the International Seabed Area deeper than 300 meters below the surface of the seabed. 9. "Landlocked or shelf-locked country" refers to a Contracting Party which is not a Trustee Party. 82 CHAPTER VIII AMENDMENT. MV,. WITttB&AWAL ARTICLE 76 Any proposed amendment to this Convention or the appen dices thereto which has been approved by the Council and a two-thirds vote of the Assembly shall be submitted by the Secretary-General to the Contracting Parties for ratifica tion in accordance with their respective constitutional processes. It shall come into force when ratified by two- thirds of the Contracting Parties, including each of the six States designated pursuant to subparagraph 2(a) of Article 36 at the time the Council approved the amendments. Amendments shall not apply retroactively. ARTICLE 77 1. Any Contracting Party may withdraw from this Con vention by a written notification addressed to the Secre tary-General. The Secretary-General shall promptly inform the other Contracting Parties of any such withdrawal. 2. The withdrawal shall take effect one year from the date of the receipt by the Secretary-General of the noti fication. 83 CHAPTER IX FINAL CLAUSES ARTICLE 78 (To be written in accordance with future international agreements.) 84 APPENDIX A TERMS AND PROCEDURES APPLYING TO ALL LICENSES IN THE INTERNATIONAL SEABED AREA 1. Activities Requiring a License or a Permit 1.1. Pursuant to Article 13 of this Convention, all exploration and exploitation operations in the Interna- tional Seabed Area which have as their principal or ulti mate purpose the discovery or appraisal, and exploitation, of mineral deposits shall be licensed. 1.2. There shall be two categories of licensesi (a) A non-exclusive exploration license shall authorize geophysical and geochemical measurements, and bottom sampling, for the purposes of exploration. This license shall not be restricted as to area and shall grant no exclusive right to exploration nor any preferential right in applying for an exploitation license. It shall be valid for two years following the date of its issuance and shall be renewable for successive two-year periods. (b) An exploitation license shall authorize ex ploration and exploitation of one of the groups of minerals described in Section 5 of this Appendix in a specified area. The exploitation license shall include the exclusive right to undertake deep drilling and other forms of subsurface entry for the purpose of ex ploration and exploitation of minerals described in paragraphs 5>1(&) and 5«l(c). The license shall be for a limited period and shall expire at the end of fifteen years if no commercial production is achieved. 1.3. The right to undertake deep drilling for explora tion or exploitation shall be granted only under an ex ploitation license. 1.4. Deep drilling for purposes other than exploration or exploitation of seabed minerals shall be authorized under a deep-drilling permit issued at no charge by the International Seabed Resource Authority, provided thati 8 5 (a) The application is accompanied by a statement from the Sponsoring Party certifying as to the appli cant's technical competence and accepting liability for any damages that may result from such drilling! (b) The application for such a permit is accom panied by a description of the location proposed for such holes, by seismograms and other pertinent infor mation on the geology in the vicinity of the proposed drilling sites, and by a description of the equipment and procedures to be utilized! (c) The proposed drilling, including the methods and equipment to be utilized, complies with the require ments of this Convention and is judged by the Authority not to pose an uncontrollable hazard to human safety, property, and the environment! (d) The proposed drilling is either not within an area already under an exploitation license or is not objected to by the holder of such a licensei (e) The applicant agrees to make available prompt ly the geologic information obtained from such drilling to the Authority and the public. 2. General License Procedures 2.1. An Authorizing or Sponsoring Party shall certify the operator's financial and technical competence and shall require the operator to conform to the rules, pro visions and procedures specified under the terms of the license. 2.2. Each Authorizing or Sponsoring Party shall for mulate procedures to ensure that applications for licen ses are handled expeditiously and fairly. 2.3. Any Authorizing or Sponsoring Party which con siders that it is unable to exercise appropriate super vision over operators authorized or sponsored by it in accordance with this Convention shall be permitted to authorize or sponsor operators only if their operations are supervised by the International Seabed Resource Au thority pursuant to an agreement between the Authorizing or Sponsoring Party and the International Seabed Resource Authority. In such event fees and rentals normally pay able to the International Seabed Resource Authority will 86 be increased appropriately to offset its supervisory costs. 3. Exploration Licenses — Procedures 3.1. All applications for exploration licenses and for their renewal shall be accompanied by a fee of from $500 to $1,500 as specified in an Annex and a description of the location of the general area to be investigated and the kinds of activities to be undertaken. A portion [a figure between 50# and 66-2/3# will be inserted here] of the fee shall be forwarded by the Authorizing or Sponsoring Party to the Authority together with a copy of the application. 3.2. The Authorizing or Sponsoring Party shall trans mit to the Authority the description referred to in para graph 3.1 and its assurance that the activities will not be harmful to the marine environment. 4, 3. The Authorizing or Sponsoring Party may require the operator to pay, and may retain, an additional license fee not to exceed $3,000, to help cover the administrative expenses of that Party. 3.4. Exploration licenses shall not be renewed in the event the operator has failed to conform his activities under the prior license to the provisions of this Conven tion or to the conditions of the license. 4. Exploitation Licenses — Procedures 4.1. All applications for exploitation licenses shall be accompanied by a fee of from $5,000 to $15,000, per block, as specified in an Annex. A portion [a figure between 50# and 66-2/3# will be inserted here] of the fee shall be forwarded by the Authorizing or Sponsoring Party to the Authority together with a copy of the application. 4.2. Pursuant to Section 5 of this Appendix, applica tions shall identify the category of minerals in the spe cific area for which a license is sought. 4.3. When a license is granted to an applicant for more than one block at the same time, only a single certi ficate need be issued. 4.4. The Authorizing or Sponsoring Party may require 87 the operator to pay, and may retain, an additional license fee not to exceed $30,000, to help cover the administrative expense8 of that Party. 4. 5. The license fee described in paragraph 4.1 shall satisfy the first two years' rental fee. 5. Exploitation Rights — Categories and Size of Blocks 5.1. Licenses to exploit shall be limited to one of the following categories of mineralsi (a) Fluids or minerals extracted in a fluid state, such as oil, gas, helium, nitrogen, carbon dioxide, water, geothermal energy, sulfur and saline minerals. (b) Manganese-oxide nodules and other minerals at the surface of the seabed. (c) Other minerals, including category (b) min erals that occur beneath the surface of the seabed and metalliferous muds. 5.2. An exploitation license shall be issued for a specific area of the seabed and subsoil vertically below it, hereinafter referred to as a "block". The methods for defining the boundaries of blocks, and of portions thereof, shall be specified in an Annex. 5.3. In the category described in paragraph 5*1(a) the block shall be approximately 500 square kilometers, which shall be reduced to a quarter of a block when production begins. Each exploitation license shall apply to not more than one block, but exploitation licenses to a rectangle containing as many as 16 contiguous blocks may be taken out under a single certificate and reduced by three quar ters to a number of blocks, a single block, or a portion of a single block when production begins. The relinquish ment requirement shall not apply to licenses issued for areas of one quarter of a block or less. 5.4. In the category described in paragraph 5.1(b) the block shall be approximately 40,000 square kilometers, which shall be reduced to a quarter of a block when pro duction begins. Each exploitation license shall apply to not more than one block, but exploitation licenses to a rectangle containing as many as four contiguous blocks may 88 be taken out under a single certificate and reduced to a 8ingle block, or to a portion of a single block, compri sing one-fourth their total area, when production begins. The relinquishment requirement shall not apply to licenses issued for areas of one quarter of a block or less. 5.5. In the category described in paragraph $ .1(c) the block shall be approximately 500 kilometers, which shall be reduced to one eighth of a block when production begins. Each license shall apply to not more than one block, but exploitation licenses to as many as 8 contiguous blocks may be taken out under a single certificate and reduced to a single block, or to a portion of a single block, com prising one eighth their total area, when production be gins. The relinquishment shall not apply to licenses issued for one eighth of a block or less. 5.6. Applications for exploitation licenses may be for areas smaller than the maximum stated above. 5.7. Operators may at any time relinquish rights to all or part of the licensed area. 5.8. Commercial production shall be deemed to have commenced or to be maintained when the value at the site of minerals exploited is not less than $100,000 per annum. The required minimum and the method of ascertaining this value shall be determined by the Authority. If the commercial production is not maintained, the exploitation license shall expire within five years of its cessation, but when production is interrupted or sus pended for reasons beyond the operator's control, the du ration of the license shall be extended by a time equal to the period in which production has been suspended for reasons beyond the operator's control. 6. Rental Fees and Work Requirements Rental Fees 6.1. Prior to attaining commercial production the fol lowing annual rental fees shall be paid beginning in the third year after the license has been issuedi (a) $2 - $10 per square Kilometer, as specified in an appropriate Annex, for the category of minerals described in paragraph 5.1(a) abovei (b) $2 - $10 per 100 square kilometers for the category of minerals described in paragraph 5.1(b) above, 89 and (c) $2 - $10 per square kilometer for the category of minerals described in paragraph 5*1(c) above. 6.2. The rates in paragraph 6.1 shall increase at the rate of 10# per annum, calculated on the original base rental fee, for the first ten years after the third year, and shall increase 20# per annum, calculated on the ori ginal base rental fee, for the following two years. 6.3. After commercial production begins, the annual rental fee shall be $5,000-$25,000 per block, regardless of block size. 6.^. The rental fee shall be payable annually in ad vance to the Authorizing or Sponsoring Party which shall forward a portion [a figure between 50# and 66-2/3# will be inserted here] of the fees to the Authority. The Au thorizing or Sponsoring Party may require the operator to pay, and may retain, an additional rental fee, not to ex ceed an amount equal to the amount paid pursuant to para graphs 6.1 through 6.3, to help cover the administration expenses of that Party. Work Requirements 6.5. Prior to attaining commercial production, the operator shall deposit a work requirement fee, or post a sufficient bond for that amount, for each license at the beginning of each year. 6.6. The minimum annual work requirement fee for each block shall increase in accordance with the following schedulet Para. 5.1(a) and (c) minerals Year? Amount per annum 1-5 6-10 11-15 $ 20,000 180,000 200.000 $ 2, 000,000 Para. 5.1(b) minerals Years - Amounts per annum 1-2 $ 20,000 3-10 120,000 11-15 200.000 $ 2,000,000 The minimum annual work requirement fee for a portion of a block- shall be an appropriate fraction of the above to be specified in an Annex. The work requirement fee shall be refunded to the 90 operator upon receipt of proof by the Authorizing Party or Sponsoring Party that the amount equivalent to the fee has been expended in actual operations. Expenditures for on-land design or process research and equipment purchase or off-site construction cost directly related to the licensed block or group of blocks shall be considered to apply toward work requirements up to 75% of the amount required. 6.8. Expenditures in excess of the required amount for any given year shall be credited to the requirement for the subsequent year or years. 6.9. In the absence of satisfactory proof that the required expenditure has been made in accordance with the foregoing provisions of this section, the deposit will be forfeited. 6.10. If cumulative work requirement expenditures are not met at the end of the initial five-year period, the exploitation license shall be forfeited. 6.11. After commercial production begins the operator shall make an annual deposit of at least $100,000 at the beginning of each yeari or shall post a sufficient bond for that amount, which shall be refunded in an amount equivalent to expenditures on or related to the block and the value of production at the site. 6.12. If production is suspended or delayed for rea sons beyond the operator's control, the operator shall not be required to make the deposit or post the bond required in paragraph 6.11. 7. Submission of Work Plans and Data Under Exploitation Licenses Prior to Commencement of Commercial Production 7.1. Exploitation license applications shall be ac companied by a general description of the work to be done and the equipment and methods to be used. The licensee shall submit subsequent changes in his work plan to the Sponsoring or Authorizing Party for review. 7.2. The licensee shall furnish reports at specified intervals to the Authorizing or Sponsoring Party supply ing proof thfrt he has fulfilled the specified work require ments. Copies of such reports shall be forwarded to the 91 Authority. 7.3. The licensee shall maintain records of drill logs, geophysical data and other data acquired in the area to which his license refers, and shall provide access to them to the Authorizing or Sponsoring Party on request. 7.4. At intervals of five years, or when he relin quishes his rights to all or part of the area or when he submits a production plan as described in Section 8 of this Appendix, the operator shall transmit to the Authori zing or Sponsoring Party such maps, seismic sections, logs, assays, or reports, as are specified in an Annex to this Convention. The Authorizing or Sponsoring Party shall hold such data in confidence for ten years after receipt, but shall make the data available on request to the Author ity for its confidential use in the inspection of opera tions . ZlI jl The data referred to in paragraph 7.4 shall be transmitted to the Authority ten years after receipt by the Authorizing or Sponsoring Party, and made available by the Authority for public inspection. Such data shall be transmitted to the Authority immediately upon revoca tion of a license. 8. Production Plan and Producing Operations 8.1. Prior to beginning commercial production the licensee shall submit a production plan to the Authorizing or Sponsoring Party and through such Party to the Authority. 8.2. The Authorizing or Sponsoring Party and the Au thority shall require such modifications in the plan as may be necessary for it to meet the requirements of this Convention. 8.1. Any change in the licensee's production plan shall be submitted to the Authorizing or Sponsoring Party and through such Party to the Authority for their review and approval. 8.4. Not later than three months after the end of each year from the issuance of the license the licensee shall transmit to the Authorizing or Sponsoring Party for for warding to the Authority production reports and such other data as may be specified in an Annex to this Convention. 92 8.5. The operator shall maintain geologic, geophysical and engineering records and shall provide access to them to the Authorizing or Sponsoring Party on its request. In addition, the operator shall submit annually such maps, sections, and summary reports, as are specified in Annexes to this Convention. 8.6. The Sponsoring or Authorizing Party shall hold such maps and reports in confidence for ten years from the time received but shall make them available on request to the Authority for its confidential use in the inspection of operations. 8.7. Such maps and reports shall be transmitted to the Authority and shall be made available by it for public in spection not later than ten years after receipt by the Sponsoring or Authorizing Party. 9. Unit Operations 9.1. Accumulations of fluids and other minerals that can be made to migrate from one block to another and that would be most rationally mined by an operation under the control of a single operator but that lie astride the boundary of adjacent blocks licensed to different opera tors shall be brought into unit management and production. 9.2. With respect to deposits lying astride the sea ward boundary of the International Trusteeship Area, the Operations Commission shall assure unit management and production, giving the Trustee and Sponsoring Parties and their licensees a reasonable time to reach agreement on an operation plan. 10. Payments on Production 10.1. When commercial production begins under an ex ploitation license, the operator shall pay a cash produc tion bonus of $500,000 to $2,000,000 per block, as speci fied in an Annex to this Convention, to the Authorizing or Sponsoring Party. 10.2. Thereafter, the operator shall make payments to the Authorizing or Sponsoring Party which are proportional to production, in the nature of total payments ordinarily made to governments under similar conditions. Such pay ments shall be equivalent to 5 to 4-0 percent of the gross 93 value at the site of oil and gas, and 2 to 20 percent of the gross value at the site of other minerals, as specified in an Annex to this Convention. The total annual payment shall not be less than the annual rental fee under para graph 6.3. 10.3. The Sponsoring Party shall forward all payments under this section to the Authority. The Authorizing Party shall forward a portion [a figure between 50% and 66-2/3' % will be inserted here] of such payments to the Authority. 11. Graduation of Payments According to Environment and Other Factors 11.1. The levels of payments and work requirements, as well as the rates at which such payments and work require ments escalate over time, may be graduated to take account of probable risk and cost to the investor, including such factors as water depth, climate, volume of production, proximity to existing production, or other factors affect ing the economic rent that can reasonably be anticipated from mineral production in a given area. 11.2. Any graduated levels and rates shall be described and categorized in an Annex in such a way as to affect all licensees in each category equally and not to discriminate against or favor individual Parties or groups of Parties, or their nationals. 11.3. Any increases in such levels or payments or requirements shall apply only to new licenses or renewals and not to those already in force. 12. LlftbUAJfr 12.1. The operator and his Authorizing or Sponsoring Party, as appropriate, shall be liable for damage to other users of the marine environment and for clean-up and res toration costs of damage to the land environment. 12.2. The Authorizing or Sponsoring Party, as approp riate, shall require operators to subscribe to an insurance plan or provide other means of guaranteeing responsibility, adequate to cover the liability described in paragraph (Notet More detailed provisions on liability should be included.) 13. Revocation 13.1. In the event of revocation pursuant to Article 52 of this Convention, there shall be no reimbursement for any expense incurred by the licensee prior to the revoca tion. The licensee shall, however, have the right to recover installations or equipment within six months of the date of the revocation of his license. Any installa tions or devices not removed by that time shall be removed and disposed of by the Authority, or the Authorizing or Sponsoring Party, at the expense of the licensee. 14. International Fees and Payments 14.1. The Authority shall specify the intervals at which fees and other payments collected by an Authorizing or Sponsoring Party shall be transmitted. 14.2. No Contracting Party shall impose or collect any tax, direct or indirect, on fees and other payments to the Authority. 14.3. All fees and payments required under this Con vention shall be those in force at the time a license was issued or renewed. 14.4. All fees and payments to the Authority shall be transmitted in convertible currency. 95 APPENDIX B TERMS AND PROCEDURES APPLYING.ID LICENSES IN THE INTERNATIONAL SEABED AREA BEYOND THE INTERNATIONAL TRUSTEESHIP_AREA 1. Entities Entitled to Obtain Licenses 1.1. Contracting Parties or a group of Contracting Parties, one of which shall act as the operating or spon soring Party for purposes of fixing operational or super visory responsibility, are authorized to apply for and obtain exploration and exploitation licenses. Any Con tracting Party or group of Contracting Parties, which applies for a license to engage directly in exploration or exploitation, shall designate a specific agency to act as operator on its behalf for the purposes of this Conven tion. 1.2. Natural or juridical persons are authorized to apply for and obtain exploration and exploitation licenses from the International Seabed Resource Authority if they are sponsored by a Contracting Party. 2. Exploration Licenses— Procedures 2.1. Licenses shall be issued promptly by the Authori ty through the Sponsoring Party to applicants meeting the requirements specified in Appendix A. 3. Exploitation Licenses— Procedures The Sponsoring Party shall certify as to the tech nical and financial competence of the operator, and shall transmit the operator's work plan. 3.2. An application for an exploitation license shall be preceded by a notice of intent to apply for a license submitted by the operator to the Authority and the pro spective Sponsoring Party. Such a notice of intent, when accompanied by evidence of the deposit of the license fee referred to in paragraph k.l of Appendix A, shall reserve the block for one hundred and eighty days. Notices of intent may not be renewed. 3.3. Notices of intent shall be submitted sealed to 96 the Authority and opened at monthly intervals at previ ously announced times. 3.4. Subject to compliance with these procedures, if only one notice of intent has been received for a particu lar block, the applicant shall be granted a license, except as provided in paragraphs 3.6 through 3*8. 3.5. If more than one notice of intent to apply for a license for the same block or portion thereof is received at the same opening, the Authority shall notify the appli cants and their Sponsoring Parties that the exploitation license to the block or portion thereof will be sold to the highest bidder at a sale to be held one hundred and eighty days later, under the following terms 1 (a) The bidding shall be on a cash bonus basis and the minimum bid shall be twice the license feet (b) Bids shall be sealedt (c) The bidding shall be limited to such of the original applicants whose applications have been received in the interim from their spon soring Parties 1 (d) Bids shall be announced publicly by the Au thority when they are opened. In the event of a tie, the tie bidders shall submit a second sealed bid to be opened 28 days later1 (e) The final award shall be announced publicly by the Authority within seven days after the bids have been opened. 3.6. In the event of the termination, forfeiture, or revocation of an exploitation license to a block, or re linquishment of a part of a block, the block or portion thereof will be offered for sale by sealed competitive bidding on a cash bonus basis in addition to the current license fee* The following provisions shall apply to such a sale 1 (a) The availability of such a block, or portion thereof, for bidding shall be publicly announced by the Authority as soon as possible after it becomes available, 97 and a sale following the above procedures shall be held within one hundred and eighty days after a request for an exploitation license on the block has been receivedi (b) The bidding shall be open to all sponsored operators, including, except in the case of revocation, the operator who previously held the exploitation license to the block or to the available portion thereofj (c) If the winning bid is submitted by an opera tor who previously held the exploitation right to the same block, or to the same portion thereof, the work re quirement will begin at the level that would have applied if the operator had continuously held the block. 3.7. Blocks, or portions thereof, contiguous to a block on which production has begun shall also be sold by sealed competitive bidding under the terms specified in paragraph 3. 6. 3.8. Blocks, or separate portions thereof, from which hydrocarbons or other fluids are being drained, or are be lieved to be drained, by production from another block shall be offered for sale by sealed competitive bidding under the terms specified in paragraph 3.6. at the initi ative of the Authority. 3.9. Geologic and other data concerning blocks, or portions thereof, open for bidding pursuant to paragraphs 3.6. through 3*8.. which are no longer confidential, shall be made available to the public prior to the bidding date. Data on blocks, or separate portions thereof, for which the license has been revoked for violations shall be made available to the public within 30 days after revocation. 3.10. Exploitation licenses shall only be transferable with the approval of the Sponsoring Party and the Authori ty, provided that the transferee meets the requirements of this Convention, is sponsored by a Contracting Party, and a transfer fee is payed to the Authority in the amount of $250,000. This fee shall not apply in transfers between parts of the same operating enterprise. k. Duration of Exploitation Licenses k.l. If the commercial production has been achieved within fifteen years after the license has been issued, 98 the exploitation license shall be extended automatically for twenty additional years from the date commercial pro duction has commenced. 4.2. At the completion of the twenty-year production period referred to in paragraph 4.1., the operator with the approval of the Sponsoring Party shall have the option to renew his license for another twenty years at the ren tal fees and payment rates in effect at the time of renew al. 4.3. At the end of the forty-year term, or earlier if the license is voluntarily relinquished or expires pursu ant to paragraph 5*9. of Appendix A, the block or blocks, or separate portions of blocks, to which the license ap plied shall be offered for sale by competitive bidding on a cash bonus basis. The previous licensee shall have no preferential right to such block, or separate portion thereof. 5. Work Requirements The annual work requirement fee per block shall be specified in an Annex in accordance with the following schedules Paragraph 5.1(a) and ic) minerals Xaaca Amount per annum 1-5 6-10 11-15 $ 20,000 - 60,000 180,000 5^0,000 200.000 600.000 $2,000,000 6,000,000 Total Years 1-2 3-10 11-15 $ 20,000 120,000 200.000 Amount per annum 60,000 360,000 600.000 2,000,000 6,000,000 Total The minimum annual work requirement fee for a portion of a block shall be an appropriate fraction of the above, to be specified in an Annex. 99 5.2. Work expenditures with respect to one or more blocks may be considered as meeting the aggregate work requirements on a group of blocks originally licensed in the same year* to the same operator, in the same category, provided that the number of such blocks shall not exceed sixteen in the case of the category of minerals described in paragraph 5*1(a) of Appendix A, four in the case of the category of minerals described in paragraph 5*1(b) of Appendix A and eight in the case of the category of miner als described in paragraph 5*1(c) of Appendix A. 5.3. Should the aggregate work requirement fee of $2,000,000 to $6,000,000 be spent prior to the end of the thirteenth year, an additional work requirement fee of $25,000 - $50,000, as specified in an Annex, shall be met until commercial production begins or until expiration of the fifteen-year period. UL l After commercial production begins, the operator shall at the beginning of each year deposit $100,000 to $200,000 as specified in an Annex, or with the Sponsoring Party post a bond for that amount. Such deposit or bond shall be returned in cm amount equivalent to expenditures on or related to the block and the value of production at the site. A portion [a figure between 50# and 66-2/3# will be inserted here] of any funds not returned shall be transmitted to the Authority. 6. Unit Management The Operations Commission shall assure unit management and production pursuant to Section 9 of Appendix A, giving the licensees and their Sponsoring Parties a reasonable time to reach agreement on a plan for unit operation. 100 APPENDIX C TERMS AND PROCEDURES FOR LICENSEES IN THE INTERNATIONAL TRUSTEESHIP AREA 1. Q a n & r . a j i 1.1. Unless other wise specified in this Convention, all provisions of this Convention except those in Appendix B shall apply to the International Trusteeship Area. 2. Entities Entitled to Obtain Licenses 2.1. The Trustee Party, pursuant to Chapter III, shall have the exclusive right, in its discretion, to approve or disapprove applications for exploration and exploitation licenses. 3. Exploration and Exploitation Licenses 3.1. The Trustee Party may use any system for issuing and allocating exploration and exploitation licenses. 3.2. Copies of licenses issued shall be forwarded to the Authority. 4. POlPcfrs 4.1. The Trustee Party may license separately one or more related minerals of the categories listed in paragraph 5.1 of Appendix A. 4.2. The Trustee Party may establish the size of the block for which exploitation licenses are issued within the maximum limits specified in Appendix A. 5. Duration of Exploitation Licenses The Trustee Party may establish the term of the exploitation license and the conditions, if any, under which it may be renewed, provided that its continuance after the first 15 years is contingent upon the achieve ment of commercial production. 6. wprfr. Requirement? 6.1. The Trustee Party may set the work requirements 101 at or above those specified in Appendix A and put these in terms of work to be done rather than funds to be expended. 7 . Unit Management 7.1. When a deposit most rationally extracted under unit management lies wholly within the International Trus teeship Area, or astride its landward boundary, the Trus tee Party concerned shall assure unit management and pro duction pursuant to Section 9<1 of Appendix A, and shall submit the plan for unit operation to the Operations Com mission. 7.2. With respect to deposits lying astride a boundary between two Trustee Parties in the International Trustee ship Area, such Parties shall agree on a plan to assure unit management and production, and shall submit the opera tion plan to the Operations Commission. 8. Proration 8.1. The Trustee Party may establish proration, to the extent permitted by its domestic law. 9. £ayroqn3g 9.1. Pursuant to Subparagraph (e) of Article 28, the Trustee Party may collect fees and payments related to the issuance or retention of a license in addition to those specified in this Convention, including but not limited to payments on production higher than those required by this Convention. The Trustee Party shall transfer to the Authority a portion [a figure between 50# and 66-2/3# will be inser ted here] of the fees and payments referred to in paragraph 9.1 except as otherwise provided in paragraphs 3*3* 4.4 and 6.4 of Appendix A. [NOTEi Further study is required on the means to assure equitable application of the principle contained in paragraph 9*2 to socialist and non-socialist parties and their operations.] 10. Standards 10.1. The Trustee Party may impose higher operating, 102 conservation, pollution, and safety standards than those established by the Authority, and may Impose additional sanctions In case of violations of applicable standards. 11. Revocation 11 . . I . - . The Trustee Party may suspend or revoke licenses for violation of this Convention, or of the rules it has established pursuant thereto, or in accordance with the terms of the license. 103 APPENDIX D PmSIfiH , Q g.fifiMVE 1. Disbursements 1.1. All disbursements shall be made out of the net income of the Authority, except as otherwise provided in paragraph 2 of Article 74. 2. Administrative Expenses of the International Seabed Bgamrgg.. A v rth < ? r 1 t.Y 2.1. The Council, in submitting the proposed bud get to the Assembly, shall specify what proportion of the revenues of the Authority shall be used for the payment of the administrative expenses of the Authority. 2.2. Upon approval of the budget by the Assembly, the Secretary-General is authorized to use the sums al lotted in the budget for the expenses specified therein. 3* Distribution of the Net Income of the Authority liu The net income, after administrative expenses, of the Authority shall be used to promote the economic advancement of developing States Parties to this Conven tion and for the purposes specified in paragraph 2 of Article 5 and in other Articles of this Convention. 3.2. The portion to be devoted to economic advance ment of developing States Parties to this Convention shall be divided among the following international development organizations as followsi (NOTEi A list of international and regional development organizations should be included here, indicating percent ages assigned to each organization.) 3.3. The Council shall submit to the Assembly pro posals for the allocation of the income of the Authority within the limits prescribed by this Appendix. 3.fr. Upon approval of the allocation by the Assem bly, the Secretary-General is authorized to distribute the funds. 104 APPfiflBJHUg DESIGNATED MEMBERS OF THE COUNCIL 1. Those six Contracting Parties which are both developed States and have the highest gross national product shall be considered as the six most industrially advanced Con tracting Parties. 2. The six most industrially advanced Contracting Parties at the time of the entry into force of this Convention shall be deemed to bei They shall hold office until replaced in accordance with this Appendix. 3. The Council, prior to every regular session of the Assembly, shall decide which are the six most industrially advanced Contracting Parties. It shall make rules to ensure that all questions relating to the determination of such Contracting Parties are considered by an impar tial committee before being decided upon by the Council. 4. The Council shall report its decision to the Assembly, together with the recommendations of the impartial com mittee. 5. Any replacements of the designated members of the Council shall take effect on the day following the last day of the Assembly to which such a report is made. APPENDIX IV TREATY GOVERNING THE EXPLORATION AND EXPLOITATION OF THE OCEAN BED* The States Parties to this Treaty. Inspired by the great prospects opening up before mankind as a result of man's discovery of the resources of the ocean bed, Recognizing the common interest of all mankind in the progress of the exploration and use of the ocean bed and the utilization of its resources for peaceful purposes, Believing that the exploration and use of the ocean bed should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development, Desiring to contribute to broad international co operation in the scientific, economic, legal and other aspects of the exploration and use of the ocean bed for peaceful purposes, Believing that such cooperation will contribute to the development of mutual understanding and to the streng thening of friendly relations between States and people, Recalling resolution 1112 (XL) of the United Na tions Economic and Social Council pertaining to a survey of the non-agricultural resources of the sea adopted 7 March 1966, Recalling resolution 2172 (XXI) adopted by the United Nations General Assembly pertaining to a survey of activities in marine science and technology and the for- Revised Draft Treaty Covering the Exploration and Exploitation of the Ocean Bed (1971), as issued by the United Nations Committee of the World Peace Through Law Center, Aaron L. Danzig, Chairman. 105 106 mulation of proposals for international cooperation in the exploration and development of marine resources and proposals for the initiating and strengthening of marine education and training programs, Recalling United Nations General Assembly resolu tion 23^0 (XXII) pertaining to the examination of the question of the reservation exclusively for peaceful pur poses of the seabed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their re sources in the interest of mankind, Recalling United Nations General Assembly resolu tions 2476 (XXIII), 257^ C and D (XXIV), 27^9 (XXV) and 2750 (XXV) setting forth general principles pertaining to the exploration and exploitation of the seabed, per taining to international machinery having jurisdiction over the peaceful uses of the seabed and ocean floor and the subsoil thereof, beyond the limits of national juris diction, pertaining to the convening of a conference on the law of the sea, and requesting States to refrain from exploitation beyond the limits of national jurisdiction pending establishment of such international regime, Convinced that a Treaty on the Exploration and Ex ploitation of the Ocean bed will further the purposes and principles of the Charter of the United Nations, Have agreed on the following1 ARTICLE I The resources of the Ocean Bed and non-living re sources of the high seas shall appertain to the United Nations which shall have jurisdiction thereover. For the purposes of these articles 1 The term "Ocean Bed" is used as referring a) to the seabed and subsoil of the submarine areas adjacent to the coast beyond the first depth of 200 meters but outside the area of the territorial seai b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands. In the event of any inconsistency 107 between this Treaty and the Convention on the Continental Shelf, adopted by the United Nations Conference on the Law of the Sea, April 29, 1958. the provisions of this Treaty shall govern. In the event of any inconsistency between this Treaty and the Convention on the Territorial Sea and the Contiguous Zone adopted by the same Conference on the same date, the provisions of the latter Convention shall govern. The term "high seas" is used as defined in the Convention on the High Seas adopted by the United Nations Conference on the Law of the Sea, April 29, 1968. ARTICLE II The exploration and use of the Ocean Bed shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development. The Ocean Bed shall be open for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of the Ocean Bed, subject only to exclusive exploration and ex ploitation rights granted by the Ocean Agency. There shall be freedom of scientific investigation in, on or under the Ocean Bed, and States shall facilitate and encourage international co-operation in such investi gations. Notwithstanding any provision of Article XIII no license shall be required for such activities in any area of the Ocean Bed. ARTICLE III Except as provided for herein, no portion of the Ocean Bed or any resources thereof are subject to national or private appropriation or any exclusive use, by claim of sovereignty, title, use, occupation, or any other means. The Ocean Agency shall have sole authority to grant rights for exclusive exploration or exploitation of the Ocean Bed. 108 ARTICLE IV States Parties to the Treaty shall carry on acti vities in the exploration and exploitation of the Ocean Bed, in accordance with international law, including the Charter of the United Nations, in the interest of maintain ing international peace and security and promoting inter national cooperation and understanding. ARTICLE V The Ocean Bed shall be used exclusively for peace ful purposes. The establishment of military bases, in stallations and fortifications, the testing placement or installation of any type of weapons and the conduct of military maneuvers in, on or under the Ocean Bed shall be forbidden, except that devices for interception of, detection, identification and tracking of military activi ty, vehicles or weaoonry of any State shall be permitted provided that advance notice of placement or installation of any such devices shall be given to the Ocean Agency and provided such devices are open for inspection at all times by the Ocean Agency. ARTICLE VI Each State and all persons shall have absolute liability, jointly and severally, to any other State, to persons, and to the Ocean Agency, as the case may be, for damages to the resources of the Ocean Bed, and of the high seas, and to the person or property of persons, caused within the jurisdiction described in Article I by activi ties of such State or person or activities within its control. The term "person" as used in this Article refers to a natural or juridical person. The term "damage" shall not include the harvesting of living resources, such as fish. The jurisdiction of the Ocean Tribunal provided for in Article XIV shall extend to disputes pertaining to such damage. ARTICLE VII Each State Party to the Treaty shall carry on its own activities in, on or under the Ocean Bed and on the 109 high seas and exert its best efforts to assure that such activities by its nationals and its juridical persons are carried on in conformity with the provisions and objec tives of this Treaty. ARTICLE VIII Ownership of objects placed in, on or under the Ocean Bed is not affected by their presence in or on the Ocean Bed, and shall remain with the State or entity hav ing title thereto. ARTICLE IX In the exploration and use of the Ocean Bed States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in or on the Ocean Bed and the high seas with due regard to the corresponding interests of all other State Parties to the Treaty. States Parties to the Treaty shall conduct such activities so as to avoid harm ful contamination or adverse changes in the environment of the Ocean Bed and high seas resulting from the intro duction of a foreign matter, and, where necessary, shall adopt appropriate measures for this purpose. The disposal of harmful material in or on the Ocean Bed or high seas shall be subject to the control and regulation of the Ocean Agency. ARTICLE X In order to promote international cooperation in the scientific research of the Ocean Bed in conformity with the purposes of this Treaty, the State Parties to the Treaty shall, on a basis of reciprocity grant any requests by other States Parties to the Treaty to be afforded an opportunity to observe activities of such nature conducted in or on the Ocean Bed. Notwithstanding the provisions of this Article, the activities of all States in or on the Ocean Bed shall at all times be subject to inspection by the Ocean Agency, as provided in Article V. ARTICLE XI In order to promote international cooperation in 110 the peaceful exploration and use of the Ocean Bed, States Parties to the Treaty conducting activities in or on the Ocean Bed agree to inform the Ocean Agency as well as the public and international scientific community, of the nature, conduct, locations and results of such activities. On receiving the said information, the Ocean Agency should be prepared to disseminate the same immediately and effec tively. ARTICLE XII The provisions of this Treaty shall apply to the activities of States Parties to the Treaty in the explora tion and use of the Ocean Bed, whether such activities are carried on by a single State Party to the Treaty or jointly with other States, including activities carried on within the framework of international inter-govemmental organi zations. ARTICLE XIII There is established an Ocean Agency. Said Agency shall be a corporation chartered by the United Nations. The said Agency shall have the sole and exclusive authority to grant and administer exclusive exploration and exploitation rights pertaining to the Ocean Bed, and to fix charges therefor to be paid to said Agency. Any such exploration and exploitation rights, however, shall be granted in conformity with the purposes and objectives of this Treaty and shall not, except to the extent that this Treaty is inconsistent therewith, interfere with any of the rights of the States Parties to this Treaty derived from the Convention on the High Seas, the Convention on Fishing and Conservation of the Living Resources of the High Seas, and the Convention on the Continental Shelf, adopted by the United Nations Conference on the Law of the Sea, April 29. 1958* The income derived by the Agency, from the grant of such exploration and exploitation rights, shall be utilized to defray the expenses of the Agency, any excess to accrue and be paid to the United Nations, earmarked, however, for the purposes specified in Article 55. suboaragraphs a. and b. of the United Nations Charter, except that 50 percent of all such excess derived from the area laying between the edge of the Continental Shelf and 50 miles from the coast shall accrue and be paid to the coastal State to which such area is adjacent. Coast, as Ill used herein, refers to the baseline from which the breadth of the territorial sea is measured. A. The Agency shall have the following powersi (i) To provide assistance to States, persons, and governmental and non-governmental entities for the purpose of enabling their participation in the scientific and commercial exploration and exploitation of the resources of the Ocean Bed. (ii) To promulgate appropriate rules, regula tions and standards pertaining to the explora tion and exploitation of the Ocean Bed, consis tent with the provisions of the Treaty, per taining to the disposition of harmful materials, including but not limited to radioactive materi als, in or on the Ocean Bed or high seas, and to protect the Ocean Bed and high seas against pollution or activities harmful to the ecology thereof. (iii) To grant licenses or other forms of au thority ("licenses") to both States and non governmental entities to explore or exploit the Ocean Bed. All such licenses shall be awarded on the basis of highest bid for license fees, having due regard, however, to the competency of the bidder. The Agency shall also establish a set, or system, of royalties, which shall be uniform and non-discriminatory, except that due regard may be had for local conditions. The Agency in its discretion may disregard unrea sonably low bids and bids not substantially in consonance with the purposes and objectives of this Treaty. Notwithstanding that a bid for a specific license may not be the highest, the Agency may in its discretion disregard such requirement if the granting of a license will assist a developing State to improve the tech nological capability of such State or its na tionals to explore or exploit Ocean Bed resour ces. Within the area between the edge of the Continental Shelf and 50 miles from the coast, only nationals of the adjacent coastal State, the adjacent coastal State, or licensees ap proved by the adjacent coastal State shall be 112 granted exploration or exploitation rights. In all other respects, the terms and conditions of each of such licenses and authorizations, in cluding but not limited to the duration and per formance requirements thereof, shall be fixed by the Ocean Agency to the effect of the grant ing of any license upon the market for any pro duct affected by such license. (iv) The Ocean Agency shall not itself engage in exploitation activities. (v) To independently engage in the exploration of the ocean resources for scientific purposes or for purposes incidental to the carrying out of its other functions. (vi) To make provision for administrative hear ings of all or any part of disputes described in Article XIV, and to recommend for adoption by the General Assembly of the United Nations Codes of civil and criminal liability having applicability within the jurisdiction described in Article I. (vii) To exercise such additional powers as shall be required to carry out its responsi bilities under this Treaty, including all meas ures necessary to satisfy its capital and opera tional requirements and the employment of such administrative and enforcement personnel as it deems appropriate. In its discretion, if it shall determine that the purposes and objec tives of this Treaty shall require the same, the Agency may enlarge its jurisdiction to cover all or any part of the non-living resour ces of the high seas in which event the rights, powers and privileges ascribed to the Agency under this Article XIII shall also apply to such resources. (viii) In implementing this Article, every en couragement shall be given to the establishment of cooperative working relations with Special ized Agencies of the United Nations and other international organizations having a scientific or technical interest in the Ocean Bed and 113 superjacent waters. B. The -Agency shall have the following corporate struc ture i (1) The Charter shall be recommended by the Secre tary General of the United Nations and approved by the Economic and Social Council of the United Nations, and shall include the following provisional (i) Each State Party to this Treaty shall be entitled to one share and one vote as such shareholder. The shareholders shall meet once every three years, or sooner upon call of one- fifth of the shareholders. The shareholders shall have the sole power to amend the corpor ate charter, subject to the approval of the Economic and Social Council of the United Na tions, and to vote on all issues involving material changes in the powers or duties of the Agency, but no such amendment or changes may enlarge the scope of this Treaty. Action on all matters upon which the shareholders shall be entitled to vote shall be by affirmative vote of a majority of the shareholders. (ii) The shareholders shall elect a Board of Directors, and have the power to remove any Director at any time. The Board of Directors shall be composed of twenty-four members, (a) Six of which shall be from each of the six States having the highest Gross National Product, plus, (b) Eighteen from eighteen other States Par ties to the Treaty of which at least twelve shall be developing States and at least one of which shall be a land-locked State. (iii) Action on all matters by the Board of Directors shall be by affirmative vote of a majority of all Directors including an affirma tive vote of a majority of Board members in group (a) and an affirmative vote of a majority of Board members in group (b). The Board of Directors at its first meet ing, shall adopt such By-Laws as it deems ap propriate and shall elect a President, a Chair- 114 man of the Board, such number of Vice-Presidents as it deems appropriate, a Secretary, a Treas urer and such Committees as it deems appropri ate, including but not limited to a Committee on Boundaries, a Committee on Licensing Stand ards and Procedures, and a Legal Committee. The President shall be the chief executive of ficer of the Corporation! he shall see that all determinations by the Board of Directors are carried into effect and shall preside at all meetings of shareholders. The duties of all other officers shall be specified in the By-Laws. (iv) The duration of the Corporation shall be perpetual. (v) The business of the Corporation shall be managed by its Board of Directors who shall have all the powers of the Corporation not re quired to be exercised or done by the share holders. ARTICLE XIV There is hereby established an Ocean Tribunal. A. The Tribunal shall have the following powersi (i) It shall adjudicate any and all disputes of any nature whatsoever arising out of the Treaty or any activity undertaken in connection therewith, whether or not between or among persons, governmental or non governmental entities or the Ocean Agency. These procedures shall be simple in nature, shall de-em- phasize form, and shall be designed to bring about speedy informal trial and resolution of issues. (ii) By its signature to the Treaty, each of the States Parties hereto agrees to submit to the juris diction of the Ocean Tribunal for such purpose and give full faith and credit to judicial proceedings of the Tribunal and any inferior courts established under this Treaty and to take all necessary steps, within its power, to effectuate the same. All licenses issued by the Ocean Agency shall provide 115 for compulsory submission of all disputes arising out of such licenses or the breach thereof to ad judication by the Ocean Tribunal. Resort shall be had to said Tribunal only after the exhaustion of such administrative remedies as the Ocean Agency shall prescribe, but the Tribunal shall have ori ginal jurisdiction in disputes between or among States. Appeal from decisions of the Tribunal shall lie to the International Court of Justice upon certification by said Court that a substan tial international question is involved. The said Court shall issue advisory opinions upon such ap peals, but parties to any litigation from the de termination of which such appeal is taken shall be bound by such advisory ooinion. B. The structure of the Tribunal shall be as followsi It shall consist of fifteen judges, who shall be designated by the General Assembly of the United Nations and who shall serve for nine year terms. Of the first fifteen judges elected, five shall serve for three years, five for six years and five for nine years. It shall not be necessary for the entire Tribunal to sit in any case and the Tribunal may designate one or more of its members to hear and determine any case subject to such review by the Tribunal as it deems appropriate. The Tribunal shall, consistent with the foregoing standards, promulgate its own rules of procedure. The process of the Tribunal shall extend to persons, natural or juridical, wherever found. The expenses of the Tribunal shall be borne by the United Nations as part of its General Budget. The General Assem bly may establish such inferior courts as it deems appro priate, in addition to the Tribunal, to exercise the ju dicial powers described in this Article. ARTICLE XV 1. This Treaty shall be open to all States for signa ture. Any State which does not sign this Treaty before its entry into force in accordance with Paragraph 3, of this Article, may accede to it at any time. 2. This Treaty shall be subject to ratification by signatory States. Instruments of ratification and instru ments of accession shall be deposited with the Governments 116 of which are hereby designated the "Depositary Governments". 3. This Treaty shall enter into force upon the deposit of instruments of ratification by twenty Governments in cluding the Governments designated as Depositary Govern ments under this Treaty. b. For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or acces sion. 5. The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of rati fication of and accession to this Treaty, the date of its entry into force and other notices. 6. This Treaty shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations. ARTICLE XVI Any State Party to the Treaty may propose amend ments to this Treaty. Amendments shall enter into force for each State Party to the Treaty accepting the amend ments upon their acceptance by a majority of the States Parties to the Treaty and thereafter for each remaining State Party to the Treaty on the date of acceptance by it. ARTICLE XVII This Treaty, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the Depositary Governments to the Governments of the signatory and acceding States. IN WITNESS WHEREOF, THE UNDERSIGNED, DULY AUTHOR IZED, HAVE SIGNED THIS TREATY. APPENDIX V UNILATERAL DECLARATIONS AND LEGISLATION OF THE AMERICAN COUNTRIES A list of the unilateral declarations issued on the subject by the American countries and their legislation thereon is presented in chronological order belowi (a) United Kingdom-Venezuela Treaty and Its Supple mentary Legislation. On February 26, 19^2, the Represen tatives of Great Britain and Venezuela signed in Caracas a treaty recognizing the "rights of sovereignty or of con trol" over the submarine areas of the shelf adjacent to the Gulf of Paria, 70 miles long and 35 miles wide. Each party recognized any rights of sovereignty or control that had been or might hereafter be acquired by the other con tracting party. Both parties pledged themselves to res pect free navigation through the waters of the 6 to 10- mile corridor allowing passage in and out of the Gulf of Paria. Although the treaty does not specifically refer to the "submarine shelf", since this term is not mentioned in any of its 10 articles, the definition of the term "submarine area" given in the first article of the treaty seems to indicate that this agreement was based and founded on the theory of the continental shelf. Under this treaty Great Britain reserved an important submarine area, as is recognized in the supplementary Order in Council (London, August 6, 1942) and in the Regulations of May 22, 1945* Venezuela, on its part, also reserved an important submarine area in the part of the said gulf ad jacent to its coasts, and in a law of July 12, 1942, rati fied and confirmed the treaty of February 22 signed ear lier that year with Great Britain. (b) The Proclamations of President Truman. On Septem ber 28, 19^5, the President of the United States issued two Proclamations (Nos. 2667 and 2668), with their respec tive Executive Orders (Nos. 9633 and 963*0. concerning the national exploitation of the resources of the continental shelf and the national regulation of coastal fisheries in certain areas of the high seas. 117 118 The proclamation dealing with the resources of the soil and subsoil is based primarily on the concept of the conti nental shelf. As a matter of fact, that proclamation es tablishes that "the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control". Neither the proclamation nor the respective executive order defines the term continental shelf, but in a press release accompanying both documents it is described as the area "which is contiguous to the continent and which is covered by no more than 100 fathoms (600 feet) of water". The proclamation relative to coastal fisheries in cer tain areas of the high seas stresses the importance of these resources to the coastal communities and to the na tion in general as a food and industrial resource} it points out the technical progress that contributes to intensified fishing, and the urgent need to protect those resources from destructive exploitation, having due regard to condi tions peculiar to each region and to the rights of the coastal state and of any other state which may have estab lished a legitimate interest therein. (c) Declaration of Mexico. On October 29. 1945, the President of Mexico issued a Declaration wherein the Gov ernment "lays claim to the whole of the continental plat form or shelf adjoining its coast line and to each and all of the natural resources existing there, whether known or unknown, and is taking steps to supervise, utilize and con trol the closed fishing zones necessary for the conserva tion of this source of well-being". In accordance with that declaration and pursuant to its final paragraph, the Executive Power sent to the two houses of the Mexican Congress bills for the amendment of Articles 27, 42, and 48 of the Constitution of Mexico. In accor dance with those amendments, the continental shelf and the submarine bed, and also the waters covering these areas to the extent fixed by international law, were declared to be national property. The continental and insular shelves of Mexico were also considered included within the national territory and the amendments submitted them to the juris diction of the Federal Government. A later decree, issued on February 25. 1949. completed 119 the Declaration by the Government of Mexico. Under that decree, the continental and insular shelves of Mexico were included within the national territory. (d) Legislation of the Argentine Republic. Under Decree No. 14,708 of October 11, 19^o. the Government of the Argen tine Republic declared that "the Argentine epicontinental sea and continental shelf are subject to the sovereign power of the nation". This decree also stated that "for purposes of free navigation, the character of the waters situated in the Argentine epicontinental sea and above the Argentine continental shelf, remain unaffected by the pres- Declaration". This declaration concerning the "Argentine epicontinen tal sea and continental shelf" was baod on Article 2 of the decree of January 2k, 19^, in which sovereignty was pro claimed over such maritime and submarine zones, which were referred to as "temporary zones of mineral reserves". The text of Article 2 of the 19^4 decree readsi "Pending the enactment of special legislation, the zones at the inter national frontiers of the national territories and the zones on the ocean coasts, as well as the zones of the epi continental sea of Argentina, shall be deemed to be tempo rary zones of mineral reserves...". Notei This appendix was included as Appendix IV of a background pamphlet prepared for the 1958 U.N. Geneva Conference on the Seas by the Pan American Union, Depart ment of International Law, entitled Background Material on the Activities of American States Relating to the Law of the Sea (Washington. D.C.. December 1957). p p . 19-40 APPENDIX VI PRESIDENTIAL PROCLAMATION 2667, SEPTEMBER 28, 19^5. WITH RESPECT TO NATURAL RESOURCES OF THE SUBSOIL AND SEA BED OF THE CONTINENTAL SHELF 10 Federal Register 12303 (19^5) WHEREAS the Government of the United States of America, aware of the long range world-wide need for new sources of petroleum and other minerals, holds the view that efforts to discover and make available new supplies of these re sources should be encouraged 1 and WHEREAS its competent experts are of the opinion that such resources underlie many parts of the continental shelf off the coasts of the United States of America, and that with modern technological progress their utilization is al ready practicable or will become so at an early datej and WHEREAS recognized jurisdiction over these resources is required in the interest of their conservation and prudent utilization when and as development is undertaken» and WHEREAS it is the view of the Government of the United States that the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just, since the effectiveness of measures to utilize or conserve these resources would be contingent upon cooperation and protection from the shore, since the continental shelf may be regarded as an extension of the land mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a seaward extension of a pool or deposit lying within the territory, and since self-protec tion compels the coastal nation to keep close watch over activities off its shores which are of the nature necess ary for utilization of these resources 1 Now THEREFORE, I, HARRY S. TRUMAN, President of the United States of America, do hereby proclaim the following policy of the United States of America with respect to the natural resources of the subsoil and sea bed of the conti nental shelf. Having concern for the urgency of conserving and pru dently utilizing its natural resources, the Government of 1?0 121 the United States regards the natural resources of the sub soil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its juris diction and control. In cases where the continental shelf extends to the shores of another state, or is shared with an adjacent state, the boundary shall be determined by the United States and the state concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected. Notei As quoted in William W. Bishop, Jr., Inter national Law. Cases and Materials. 2nd Ed. (Bostont Little Brown and Co., 1962;, pp. 535^3o APPENDIX VII PRESIDENTIAL PROCLAMATION 2668, SEPTEMBER 28, 1945, WITH RESPECT TO COASTAL FISHERIES IN CERTAIN AREAS OF THE HIGH SEAS 10 Federal Register 12304 (1945) WHEREAS for some years the Government of the United States of America has viewed with concern the inadequacy of present arrangements for the protection and perpetua tion of the fishery resources contiguous to its coasts, and in view of the potentially disturbing effect of this situation, has carefully studied the possibility of improv ing the jurisdictional basis for conservation measures and international cooperation in this field; and WHEREAS such fishery resources have a special impor tance to coastal communities as a source of livelihood and to the nation as a food and industrial resourcej and WHEREAS the progressive development of new methods and techniques contributes to intensified fishing over wide sea areas and in certain cases seriously threatens fisher ies with depletion* and WHEREAS there is an urgent need to protect coastal fishery resources from destructive exploitation, having due regard to conditions peculiar to each region and situation and to the special rights and equities of the coastal state and of any other state which may have established a legiti mate interest therein; Now, THEREFORE, I, HARRY S. TRUMAN, President of the United States of America, do hereby proclaim the following policy of the United States of America with respect to coastal fisheries in certain areas of the high seast In view of the pressing need for conservation and pro tection of fishery resources, the Government of the United States regards it as proper to establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and maintained on a substan tial scale. Where such activities have been or shall here after be legitimately developed and maintained jointly by 122 123 nationals of the United States and nationals of other states explicitly hounded conservation zones may be established under agreements between the United States and such other states* and all fishing activities in such zones shall be subject to regulation and control as provided in such agree ments. The right of any state to establish conservation zones off its shores in accordance with the above principles is conceded, provided that corresponding recognition is given to any fishing interests of nationals of the United States which may exist in such areas. The character as high seas of the areas in which such conservation zones are established and the right to their free and unimpeded navi gation are in no way thus affected. Note* As quoted in William W. Bishop, Jr., Inter national Law. Cases and Materials. 2nd Ed. (Boston* Little Brown and Co., 19o2), pp. 537-38* APPENDIX VIII CONVENTIONS ADOPTED BY THE UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA, 29 APRIL 19581 ^Document sourcei Ian Brownlie (ed.)t Basic Documents In International Law. (Oxford* Clarendon Press, 1967). pp. 68-102. The editor's notes on p. 68 are quoted in part belowi The four conventions appear in U. N. Doc. A/CONF. 13/ L. 52-1. 55* «nd Misc. No. 15(1958). Cand. 584. Only the Convention on the High Seas is 'generally declara tory of established principles of international law* (see the preamble)* but the other three provide evi dence of the generally accepted rules bearing on their subject matter, the cogency of this depending in part on the number of ratifications. 124 125 I. THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE [APPENDIX VIII A] The States Parties of this Convention Have agreed as followsi PART I TERRITORIAL SEA SECTION I. GENERAL Article 1 1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adja cent to its coast, described as the territorial sea. 2. This sovereignty is exercised subject to the provi sions of these Articles and to other rules of interna tional law. Article 2 The sovereignty of a coastal State extends to the air spaoe over the territorial sea as well as to its bed and subsoil. SECTION II. LIMITS OP THE TERRITORIAL SEA Article 3 Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the terri torial sea is the low-water line along the coast as marked on large-scale charts officially recognised by the coastal State. Article k 1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight 126 baselines joining appropriate points nay be employed in drawing the baseline from whioh the breadth of the terri torial sea is measured. 2. The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficien tly closely linked to the land domain to be subject to the regime of internal waters. 3. Baselines shall not be drawn to and from low-tide ele vations, unless lighthouses or similar installations whioh are permanently above sea level have been built on them. k. Where the method of straight baselines is applicable under the provisions of paragraph 1, acoount nay be taken, in determining partioular baselines, of eeonomic interests peculiar to the region concerned, the reality and the im portance of whioh are clearly evidenced by a long usage. 5. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State. 6. The coastal State must clearly indicate straight base lines on charts, to which due publicity must be given. Article 5 1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. 2. Where the establishment of a straight baseline in accordance with Article k has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage, as provided in Articles Ik to 23, shall exist in those waters. Article 6 The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. 127 Article 7 1. This Article relates only to bays the coasts of which belong to a single State. 2. Por the purposes of these Articles, a bay is a well- marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. 3. Por the purpose of measurement, the area of an inden tation is that lying between the low-water nark around the shore of the indentation and a line joining the low-water mark of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the dif ferent mouths. Islands within an indentation shall be in cluded as if they were part of the water area of the in dentation. Jt. If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty- four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. 5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. 6. The foregoing provisions shall not apply to so-called 'historic* bays, or in any case where the straight base line system provided for in Article is applied. Article 8 Por the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming 128 part of tha coast. Articls 9 Roadsteads which are normally used for the loading, un loading, and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea. The coastal State must clearly demarcate such roadsteads and indicate them on charts together with their boundaries, to which due publicity must be given. Article 10 1. An island is a naturally formed area of land, surroun ded by water, which is above water at high tide. 2. The territorial sea of an island is measured in ac cordance with the provisions of these Articles. Article 11 1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low-tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the terri torial sea. 2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. Article 12 1. Where the coasts of two States are opposite or adja cent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the base lines from which the breadth of the territorial seas of each of the two States is measured. The provisions of 129 this paragraph shall not apply, however, where it is neces sary by reason of historic title or other special circum- stances to delimit the territorial seas of the two States in a way which is at rariance with this provision. 2. The line of delimitation between the territorial seas of two States lying opposite to each other or adjacent to eaoh other shall be marked on large-scale charts officially recognised by the coastal States. Article 13 If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-tide line of its banks. SECTION III. RIGHT OF INNOCENT PASSAGE Sub-section A. Rules applicable to all ships Article Ik 1. Subject to the provisions of these Articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea. 2. Passage means navigation through the territorial sea for the purpose either of traversing that sea without en tering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters. 3. Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force or by distress. k. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity frith these Articles and with other rules of international law. 5. Passage of foreign fishing vessels shall not be con sidered innocent if they do not observe such laws and regulations as the ooastal State may make and publish in order to prevent these vessels from fishing in the terri torial sea. 130 6. Submarines are required to navigate on the surface and to show their flag. Article 15 1. The coastal State must not hamper innocent passage through the territorial sea. 2. The coastal State is required to give appropriate publicity to any dangers to navigation, of which it has knowledge, within its territorial sea. Article 16 1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent. 2. In the case of ships proceeding to internal waters, the coastal State shall also have the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to those waters is sub ject. 3. Subject to the provisions of paragraph 4, the coastal State may, without discrimination amongst foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspen sion is essential for the protection of its security. Such suspension shall take effect only after having been duly published. 4. There shall be no suspension of the innocent passage of foreign ships through straits which are 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. Article 17 Foreign ships exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal State in conformity with these articles and other rules of international law and, in particular, with such laws and regulations relating to transport and navigation. 131 Sub-section B. Rules applicable to merchant ships Article 18 1. No charge nay be levied upon foreign ships by reason only of their passage through the territorial sea. 2. Charges may be levied upon a foreign ship passing through the territorial sea as payment only for specific services rendered to the ship. These charges shall be levied without discrimination. Article 19 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connexion with any crime committed on board the ship during its passage, save only in the follow ing casesi (a) If the consequences of the crime extend to the coastal State» or (b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial seat or (c) If the assistance of the local authorities has been requested by the captain of the ship or by the con sul of the country whose flag the ship fliesi or (d) If it is necessary for the suppression of illicit traffic in narcotic drugs. 2. The above provisions do not affect the right of the coastal State to take any steps authorised by its laws for the purpose of an arrest or investigation on board a for eign ship passing through the territorial sea after leav ing internal waters. 3. In the cases provided for in paragraphs 1 and 2 of this Article, the coastal State shall, if the captain so requests, advise the consular authority of the flag State before taking any steps, and shall facilitate contact be tween such authority and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken. 132 ! * • . In considering whether or how an arrest should be made, the local authorities shall pay due regard to the interests of navigation. 5. The coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connexion with any crime committed before the ship entered the ter ritorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without enter ing internal waters. Article 20 1. The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. 2. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. 3. The provisions of the previous paragraph are without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters. Sub-section C. Rules applicable to government ships other than warships Article 21 The rules contained in sub-sections A and B shall also apply to government ships operated for commercial purposes. Article 22 1. The rules contained in sub-section A and in Article 18 shall apply to government ships operated for non-commercial 133 purposes. 2. With such exceptions as are contained in the provisions referred to in the preceding paragraph, nothing in these Articles affects the immunities which such ships enjoy under these Articles or other rules of international law. Sub-section D. Rules applicable to warships Article 23 If any warship does not comply with the regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance which is made to it. the coastal State may require the warship to leave the territorial sea. PART II CONTIGUOUS ZONE Article Zk 1. In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to I (a) Prevent infringement of its customs, fiscal, immi gration or sanitary regulations within its terri tory or territorial seat (b) Punish infringement of the above regulations com mitted within its territory or territorial sea. 2. The contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured. 3. Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, fail ing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which 134 is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured. PART III PINAL ARTICLES Article 25 The provisions of this Convention shall not affect con ventions or other international agreements already in force, as between States Parties to them. Article 26 This Convention shall, until 31 October 1958, be open for signature by all States Members of the United Nations or of any of the specialized agencies, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention. Article 27 This Convention is subject to ratification. The instru ments of ratification shall be deposited with the Secre tary-General of the United Nations. Article 28 This Convention shall be open for accession by any States belonging to any of the categories mentioned in Article 26. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 29 1. This Convention shall come into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary- General of the United Nations. 135 2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of rati fication or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. Article 30 1. After the expiration of a period of five years from the date on which this Convention shall enter into force, a request for the revision of this Convention may be made at any time by any Contracting Party by means of a noti fication in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such request. Article 31 The Secretary-General of the United Nations shall inform all States Members of the United Nations and the other States referred to in Article 261 (a) Of signatures to this Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 26, 27* and 28t (b) Of the date on which this Convention will cone into force, in accordance with Article 291 (0) Of requests for revision in accordance with Article 30. Article 32 The original of this Convention, of which the Chinese, English, French, Russian, and Spanish textB are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States referred to in Article 26. IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorised thereto by their respective govern- 136 nents, have signed this Convention. DONE AT GENEVA, this twenty-ninth day of April one thousand nine hundred and fifty-eight. 137 II. THE HIGH SEAS [APPENDIX VIII B] The States Parties to this Convention. Desiring to codify the rules of international law re lating to the high seas. Recognising that the United Nations Conference on the Law of the Sea, held at Geneva from Zk February to 27 April 1958, adopted the following provisions as generally declar atory of established principles of international law, Have agreed as followsi Article 1 The term 'high seas' means all parts of the sea that are not included in the territorial sea or in the internal waters of a State. Article 2 The high seas being open to all nations, no State may vglidly purport to subject any part of them to its sov ereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal Statest (1) Freedom of navigation! (2) Freedom of fishingi (3) Freedom to lay submarine cables and pipelines! (k) Freedom to fly over the high seas. These freedoms, and others which are recognised by the general principles of international law, shall be ex ercised by all States with reasonable regard to the inter ests of other States in their exercise of the freedom of the high seas. Article 3 1. In order to enjoy the freedom of the seas on equal terms with coastal States, States having no sea-coast should have free access to the sea. To this end States 138 situated between the sea and a State having no sea-coast shall by common agreement with the latter and in conform ity with existing international conventions accordi (a) To the State having no sea-coast, on a basis of reciprocity, free transit through their territory! and (b) To ships flying the flag of that State treatment equal to that accorded to their own ships, or to the ships of any other States, as regards access to seaports and the use of such ports. 2. States situated between the sea and a State having no sea-ooast shall settle, by mutual agreement with the latter, and taking into account the rights of the coastal State or State of transit and the special conditions of the State having no sea-coast, all matters relating to freedom of transit and equal treatment in ports, in case such States are not already parties to existing international conven tions. Article U Every State, whether coastal or not, has the right to sail ships under its flag on the high seas. Article 5 1. Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link be tween the State and the shipt in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2. Each State shall issue to ships to which it has granted the right to fly its flag documents to that effect. Article 6 1. Ships shall sail under the flag of one State only, 139 and, save in exceptional cases expressly provided for in international treaties or in these Articles, shall be sub ject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of owner ship or change of registry. 2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. Article 7 The provisions of the preceding Articles do not prejudice the question of ships employed on the official service of an intergovernmental organisation flying the flag of the organisation. Article 8 1. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. 2. Por the purposes of these Articles, the term 'warship* means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly com missioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline. Article 9 Ships owned or operated by a State and used only on govern ment non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State. Article 10 1. Every State shall take such measures for ships under its flag as are necessary to ensure safety at sea with re- 140 gard Inter alia toi (a) The use of signals, the maintenance of communica tions and the prevention of collisionsi (b) The manning of ships and labour conditions for crews taking into account the applicable inter national labour instrumentst (c) The construction, equipment, and seaworthiness of ships. 2. In taking such measures each State is required to con form to generally accepted international standards and to take any steps which may be necessary to ensure their ob servance . Article 11 1. In the event of a collision or of any other incident of navigation concerning a ship on the high seas, invol ving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative au thorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. Article 12 1. Every State shall require the master of a ship sailing under its flag, in so far as he can do so without serious danger to the ship, the crew, or the passengersi (a) To render assistance to any person found at sea in danger of being losti 11+1 (b) To proceed with all possible speed to the rescue of persons in distress if informed of their need of assistance, in so far as such action may reason ably be expected of hint (c) After a collision, to render assistance to the other ship, her crew and her passengers and, where possible, to inform the other ship of the name of his own ship, her port of registry and the nearest port at which she will call. 2. Every coastal State shall promote the establishment and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and— where circumstances so require— by way of mutual regional arrangements co-operate with neighbouring States for this purpose. Article 13 Every State shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag, and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall I pso facto, be free. Article 14 All States shall co-operate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. Article 15 Piracy consists of any of the following actsi (1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed! (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft) (b) Against a ship, aircraft, persons, or property in a place outside the jurisdiction of any State) Ik2 (2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (3) Any act of inciting or of intentionally facilita ting an act described in sub-paragraph 1 or sub-paragraph 2 of this article. Article 16 T he a c t s o f p i r a c y , a s d e f i n e d i n A r t i c l e 15» c o m m itte d b y a w a r s h ip , g o v e r n m e n t s h i p o r g o v e r n m e n t a i r c r a f t w h o se c r e w h a s m u t in ie d an d t a k e n c o n t r o l o f t h e s h i p o r a i r c r a f t a r e a s s i m i l a t e d t o a c t s c o m m itte d b y a p r i v a t e s h i p . Article 17 A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 15* The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act. Article 18 A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived. Article 19 On the high seas, or in any other place outside the juris diction of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the con trol of pirates, and arrest the persons and seize the prop erty on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. Article 20 Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft, for any loss or damage caused by the seizure. Article 21 A seizure on account of piracy may only be carried out by warships or military aircraft, or other ships or aircraft on government service authorized to that effect. Article 22 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in board ing her unless there is reasonable ground for suspectingi (a) That the ship is engaged in piracy; or (b) That the ship is engaged in the slave trade; or (c) That, though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2. In the cases provided for in sub-paragraphs (a), (b) and (c) above, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration. 3* I f t h e s u s p i c i o n s p r o v e t o b e u n fo u n d e d , an d p r o v id e d t h a t t h e s h i p b o a r d e d h a s n o t c o m m itte d a n y a c t j u s t i f y i n g th e m , i t s h a l l b e c o m p e n s a te d f o r a n y l o s s o r dam age t h a t may h a v e b e e n s u s t a i n e d . Article 23 1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws 144 and regulations of that State. Such pursuit must be com menced when the foreign ship or one of its boats is within the internal waters or the territorial sea or the contig uous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the terri torial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in Article 24 of the Convention on the Territorial Sea and the Contiguous Zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. 2. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own country or of a third State. 3. Hot pursuit is not deemed to have begun unless the pur suing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship are within the limits of the ter ritorial sea, or as the case may be within the contiguous zone. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship. 4. The right of hot pursuit may be exercised only by war ships or military aircraft, or other ships or aircraft on government service specially authorized to that effect. 5. Where hot pursuit is effected by an aircrafti (a) The provisions of paragraphs 1 to 3 of this article shall apply mutatis mutandisi (b) The aircraft giving the order to stop must itself actively pursue the ship until a ship or aircraft of the coastal State summoned by the aircraft, arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest on the high seas that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit with 145 out interruption. 6. The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an inquiry before the competent authorities may not be claimed solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the high seas, if the circumstances rendered this necessary. 7. Where a ship has been stopped or arrested on the high seas in circumstances which do not justify the exercise of the rights of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained. Article 24 Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject. Article 25 1. Every State shall take measures to prevent pollution of the seas from the dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organizations. 2. All States shall co-operate with the competent inter national organizations in taking measures for the preven tion of pollution of the seas or air space above, result ing from any activities with radioactive materials or other harmful agents. Article 26 1. All States shall be entitled to lay submarine cables and pipelines on the bed of the high seas. 2. Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploita tion of its natural resources, the coastal State may not impede the laying or maintenance of such cables or pipe- 146 lines. 3. When laying such cables or pipelines the State in ques tion shall pay due regard to cables or pipelines already in position on the sea-bed. In particular, possibilities of repairing existing cables or pipelines shall not be pre judiced. Article 27 Every State shall take the necessary legislative measures to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable shall be a punishable offence. This provision shall not apply to any break or injury caused by persons who acted merely with the legitimate object of saving their lives or their ships, after having taken all necessary precautions to avoid such break or injury. Article 28 Every State shall take the necessary legislative measures to provide that, if persons subject to its jurisdiction who are the owners of a cable or pipeline beneath the high seas, in laying or repairing that cable or pipeline, cause a break in or injury to another cable or pipeline, they shall bear the cost of the repairs. Article 29 Every State shall take the necessary legislative measures to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reason able precautionary measures beforehand. 147 Article JO The provisions of this Convention shall not affect conven tions or other international agreements already in force, as between States parties to them. Article 31 This Convention shall, until 31 October 1958, be open for signature by all States Members of the United Nations or of any of the specialized agencies, and by any other State in vited by the General Assembly of the United Nations to be come a Party to the Convention. Article 32 This Convention is subject to ratification. The instru ments of ratification shall be deposited with the Secretary General of the United Nations. Article 33 This Convention shall be open for accession by any States belonging to any of the categories mentioned in Article 31. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Article Jk 1. This Convention shall come into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary General of the United Nations. 2. For each ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. Article 35 1. After the expiration of a period of five years from the Ik8 date on which this Convention shall enter into force, a request for the revision of this Convention may be made at any time by any Contracting Party by means of a notifica tion in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such request. Article 36 The Secretary-General of the United Nations shall inform all States Members of the United Nations and the other States referred to in Article 31* (a) Of signatures to this Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 31» 32, and 331 (b) Of the date on which this Convention will come into force, in accordance with Article Jk; (c) Of requests for revision in accordance with Article 35* Article 37 The original of this Convention, of which the Chinese, Eng lish, French, Russian, and Spanish texts are equally authen tic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States referred to in Article 31* IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective govern ments, have signed this Convention. DONE AT GENEVA, This twenty-ninth day of April one thousand nine hundred and fifty-eight. 149 III. FISHING AND CONSERVATION OF THE LIVING RESOURCES OF THE HIGH SEAS [APPENDIX VIII C] The States Parties to this Convention, Considering that the development of modern techniques for the exploitation of the living resources of the sea, increasing man's ability to meet the need of the world's expanding population for food, has exposed some of these resources to the danger of being over-exploited, Considering also that the nature of the problems in volved in the conservation of the living resources of the high seas is such that there is a clear necessity that they be solved, whenever possible, on the basis of international co-operation through the concerted action of all the States concerned, Have agreed as followsi Article 1 1. All States have the right for their nationals to en gage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal States as provided for in this Convention, (c) to the provisions contained in the following Articles concern ing conservation of the living resources of the high seas. 2. All States have the duty to adopt, or to co-operate with other States in adopting, such measures for their respective nationals as may be necessary for the conser vation of the living resources of the high seas. Article 2 As employed in this Convention, the expression 'conserva tion of the living resources of the high seas' means the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products. Conser vation programmes should be formulated with a view to se curing in the first place a supply of food for human con sumption. 150 Article 3 A State whose nationals are engaged in fishing any stock or stocks of fish or other living marine resources in any area of the high seas where the nationals of other States are not thus engaged shall adopt, for its own nationals, meas ures in that area when necessary for the purpose of the conservation of the living resources affected. Article 4 1. If the nationals of two or more States are engaged in fishing the same stock or stocks of fish or other living marine resources in any area or areas of the high seas, these States shall, at the request of any of them, enter into negotiations with a view to prescribing by agreement for their nationals the necessary measures for the conser vation of the living resources affected. 2. If the States concerned do not reach agreement within twelve months, any of the parties may initiate the proce dure contemplated by Article 9* Article 5 1. If, subsequent to the adoption of the measures referred to in Articles 3 and k, nationals of other States engage in fishing the same stock or stocks of fish or other liv ing marine resources in any area or areas of the high seas, the other States shall apply the measures, which shall not be discriminatory in form or in fact, to their own nation als not later than seven months after the date on which the measures shall have been notified to the Director-General of the Food and Agriculture Organization of the United Nations. The Director-General shall notify such measures to any State which so requests and, in any case, to any State specified by the State initiating the measure. 2. If these other States do not accept the measures so adopted and if no agreement can be reached within twelve months, any of the interested parties may initiate the procedure contemplated by Article 9. Subject to paragraph 2 of Article 10, the measures adopted shall remain obliga tory pending the decision of the special commission. 151 Article 6 1. A coastal State has a special interest in the mainte nance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea. 2. A coastal State is entitled to take part on an equal footing in any system of research and regulation for pur poses of conservation of the living resources of the high seas in that area, even though its nationals do not carry on fishing there. 3. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a State shall, at the request of that coastal State, enter into negotiations with a view to prescribing by agreement the measures necessary for the conservation of the living resources of the high seas in that area. b. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a coastal State shall not enforce conservation measures in that area which are opposed to those which have been adop ted by the coastal State, but may enter into negotiations with the coastal State with a view to prescribing by agree ment the measures necessary for the conservation of the living resources of the high seas in that area. 5. If the States concerned do not reach agreement with respect to conservation measures within twelve months, any of the parties may initiate the procedure contemplated by Article 9* Article 7 1. Having regard to the provisions of paragraph 1 of Arti cle 6, any coastal State may, with a view to the maintenance of the productivity of the living resources of the sea, adopt unilateral measures of conservation appropriate to any stock of fish or other marine resources in any area of the high seas adjacent to its territorial sea, provided that negotiations to that effect with the other States concerned have not led to an agreement within six months. 2. The measures which the coastal State adopts under the previous paragraph shall be valid as to other States only 152 if the following requirements are fulfilledi (a) That there is a need for urgent application of con servation measures in the light of the existing knowledge of the fishery» (b) That the measures adopted are based on appropriate scientific findingsj (c) That such measures do not discriminate in form or in fact against foreign fishermen. 3. These measures ahall remain in force pending the settle ment, in accordance with the relevant provisions of this Convention, of any disagreement as to their validity. 4. If the measures are not accepted by the other States concerned, any of the parties may initiate the procedure contemplated by Article 9. Subject to paragraph 2 of Ar ticle 10, the measures adopted shall remain obligatory pending the decision of the special commission. 5* The principles of geographical demarcation as defined in Article 12 of the Convention on the Territorial Sea and the Contiguous Zone shall be adopted when coasts of dif ferent States are involved. Article 8 1. Any State which, even if its nationals are not engaged in fishing in an area of the high seas not adjacent to its coast, has a special interest in the conservation of the living resources of the high seas in that area, may request the State or States whose nationals are engaged in fishing there to take the necessary measures of conservation under Articles 3 and ^ respectively, at the same time mentioning the scientific reasons which in its opinion make such meas ures necessary, and indicating its special interest. 2. If no agreement is reached within twelve months, such State may initiate the procedure contemplated by Article 9. Article 9 1. Any dispute which may arise between States under Ar ticles 4, 5. 6, 7, and 8 shall, at the request of any of 153 the parties, be submitted for settlement to a special com mission of five members, unless the parties agree to seek a solution by another method of peaceful settlement, as provided for in Article 33 of the Charter of the United Nations. 2. The members of the commission, one of whom shall be designated as chairman, shall be named by agreement between the States in dispute within three months of the request for settlement in accordance with the provisions of this Article. Failing agreement they shall, upon the request of any State party, be named by the Secretary-General of the United Nations, within a further three-month period, in consultation with the States in dispute and with the President of the International Court of Justice and the Director-General of the Food and Agriculture Organization of the United Nations, from amongst well-qualified persons being nationals of States not involved in the dispute and specializing in legal, administrative or scientific ques tions relating to fisheries, depending upon the nature of the dispute to be settled. Any vacancy arising after the original appointment shall be filled in the same manner as provided for the initial selection. 3. Any State party to proceedings under these Articles shall have the right to name one of its nationals to the special commission, with the right to participate fully in the proceedings on the same footing as a member of the commission, but without the right to vote or to take part in the writing of the commission's decision. * 4 - . The commission shall determine its own procedure, as suring each party to the proceedings a full opportunity to be heard and to present its case. It shall also deter mine how the costs and expenses shall be divided between the parties to the dispute, failing agreement by the par ties on this matter. 5. The special commission shall render its decision with in a period of five months from the time it is appointed unless it decides, in case of necessity, to extend the time limit for a period not exceeding three months. 6. The special commission shall, in reaching its deci sions, adhere to these Articles and to any special agree ments between the disputing parties regarding settlement of the dispute. 154 ?. Decisions of the commission shall be by majority vote. Article 10 1. The special commission shall, in disputes arising under Article 7. apply the criteria listed in paragraph 2 of that Article. In disputes under Articles 4, 5. 6 and 8, the commission shall apply the following criteria, accor ding to the issues involved in the disputei (a) Common to the determination of disputes arising under Articles 4, 5 and 6 are the requirementsi (i) That scientific findings demonstrate the ne cessity of conservation measures; (ii) That the specific measures are based on sci entific findings and are practicable; and (iii) That the measures do not discriminate, in form or in fact, against fishermen of other States; (b) Applicable to the determination of disputes aris ing under Article 8 is the requirement that sci entific findings demonstrate the necessity for conservation measures, or that the conservation programme is adequate, as the case may be. 2. The special commission may decide that pending its award the measures in dispute thall not be applied, pro vided that, in the case of disputes under Article 7, the measures shall only be suspended when it is apparent to the commission on the basis of orima facie evidence that the need for the urgent application of such measures does not exist. Article 11 The decisions of the special commission shall be binding on the States concerned and the provisions of paragraph 2 of Article 94 of the Charter of the United Nations shall be applicable to those decisions. If the decisions are accompanied by any recommendations, they shall receive the greatest possible consideration. Article 12 1. If the factual basis of the award of the special com- 155 mission is altered by substantial changes in the conditions of the stock or stocks of fish or other living marine re sources or in methods of fishing, any of the States con cerned may request the other States to enter into negoti ations with a view to prescribing by agreement the neces sary modifications in the measures of conservation. 2. If no agreement is reached within a reasonable period of time, any of the States concerned may again resort to the procedure contemplated by Article 9 provided that at least two years have elapsed from the original award. Article 13 1. The regulation of fisheries conducted by means of equipment embedded in the floor of the sea in areas of the high seas adjacent to the territorial sea of a State may be undertaken by that State where such fisheries have long been maintained and conducted by its nationals, pro vided that non-nationals are permitted to participate in such activities on an equal footing with nationals except in areas where such fisheries have by long usage been ex clusively enjoyed by such nationals. Such regulations will not, however, affect the general status of the areas as high seas. 2. In this Article, the expression 'fisheries conducted by means of equipment embedded in the floor of the sea' means those fisheries using gear with supporting members embedded in the sea floor, constructed on a site and left there to operate permanently or, if removed, restored each season on the same site. Article 14- In Articles 1, 3» 4-, 5, 6 and 8, the terms 'nationals' means fishing boats or craft of any size having the na tionality of the State concerned, according to the law of that State, irrespective of the nationality of the members of their crews. Article 15 This Convention shall, until 31 October 1958, be open for 156 signature by all States Members of the United Nations or of any of the specialized agencies, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention. Article 16 This Convention is subject to ratification. The instru ments of ratification shall be deposited with the Secre tary-General of the United Nations. Article 17 This Convention shall be open for accession by any States belonging to any of the categories mentioned in Article 15. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 18 1. This Convention shall come into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secre tary-General of the United Nations. 2. For each State ratifying or acceding to the Conven tion after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. Article 19 1. At the time of signature, ratification or accession, any State may make reservations to articles of the Con vention other than to Articles 6, 7, 9, 10, 11 and 12. 2. Any contracting State making a reservation in accord ance with the preceding paragraph may at any time with draw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations. 157 Article 20 1. After the expiration of a period of five years from the date on which this Convention shall enter into force, a re quest for the revision of this Convention may be made at any time by any contracting party by means of a notifica tion in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such re quest. Article 21 The Secretary-General of the United Nations shall inform all States Members of the United Nations and the other States referred to in Article 15» (a) Of signatures to this Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 15, 16 and 17» (b) Of the date on which this Convention will come into force, in accordance with Article 18j (c) Of requests for revision in accordance with Article 20; (d) Of reservations to this Convention, in accordance with Article 19. Article 22 The original of this Convention, of which the Chinese, Eng lish, French, Russian, and Spanish texts are equally authen tic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States referred to in Article 15- IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective govern ments, have signed this Convention. DONE AT GENEVA, this twenty-ninth day of April one thousand nine hundred and fifty-eight. 158 IV. THE CONTINENTAL SHELF [APPENDIX VIII D] The States Parties to this Convention Have agreed as followsi Article 1 For the purpose of these Articles, the term 'continental shelf' is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superja cent waters admits of the exploitation of the natural re sources of the said areasj (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands. Article 2 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and ex ploiting its natural resources. 2. The rights referred to in paragraph 1 of this Article are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express con sent of the coastal State. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 4. The natural resources referred to in these Articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms be longing to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or £.re unable to move except in constant physical contact with the seabed or the subsoil. 159 Article 3 The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters as high seas, or that of the air space above those waters. Article 4 Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf. Article 5 1. The exploration of the continental shelf and the ex ploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor the result in any interference with fundamental oceanographic or other scientific research carried out with the inten tion of open publication. 2. Subject to the provisions of paragraphs 1 and 6 of this Article, the coastal State is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the ex ploitation of its natural resources, and to establish safe ty zones around such installations and devices and to take in those zones measures necessary for their protection. 3. The safety zones referred to in paragraph 2 of this Article may extend to a distance of 500 metres around the installations and other devices which have been erected, measures from each point of their outer edge. Ships of all nationalities must respect these safety zones. 4. Such installations and devices, though under the juris diction of the coastal State, do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea of the coastal State. 5. Due notice must be given of the construction of any 1 6 0 such installations, and permanent means for giving warning of their presence must be maintained. Any installations which are abandoned or disused must be entirely removed. 6. Neither the installations or devices, nor the safety zones around them, may be established where interference may be caused to the use of recognized sea lanes essential to international navigation. 7. The coastal State is obliged to undertake, in the safe ty zones, all appropriate measures for the protection of the living resources of the sea from harmful agents. 8. The consent of the coastal State shall be obtained in respect of any research concerning the continental shelf and undertaken there. Nevertheless, the coastal State shall not normally withhold its consent if the request is submitted by a qualified institution with a view to purely scientific research into the physical or biological char acteristics of the continental shelf, subject to the pro viso that the coastal State shall have the right, if it so desires, to participate or to be represented in the re search, and that in any event the results shall be pub lished. Article 6 1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf apper taining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State l6l is measured. 3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this Article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land. Article 7 The provisions of these Articles shall not prejudice the right of the coastal State to exploit the subsoil by means of tunnelling irrespective of the depth of water above the subsoil. Article 8 This Convention shall, until 30 October 1958. be open for signature by all States Members of the United Nations or of any of the specialized agencies, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention. Article 9 This Convention is subject to ratification. The instru ments of ratification shall be deposited with the Secre tary-General of the United Nations. Article 10 This Convention shall be open for accession by any States belonging to any of the categories mentioned in Article 8. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 11 1. This Convention shall come into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary- General of the United Nations. 2. For each State ratifying or acceding to the Convention 162 after the deposit of the twenty-second instrument of rati fication or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. Article 12 1. At the time of signature, ratification or accession, any State may make reservations to Articles of the Conven tion other than to Articles 1 to 3 inclusive. 2. Any contracting State making a reservation in accord ance with the preceding paragraph may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations. Article 13 1. After the expiration of a period of five years from the date on which this Convention shall enter into force, a request for the revision of this Convention may be made at any time by any contracting party by means of a notifi cation in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such re quest. Article 14 The Secretary-General of the United Nations shall inform all States Members of the United Nations and the other States referred to in Article 8i (a) Of signatures to this Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 8, 9 and 10 j (b) Of the date on which this Convention will come into force, in accordance with Article 11j (c) Of requests for revision in accordance with Article 13* (d) Of reservations to this Convention, in accordance with Article 12. 163 Article 15 The original of this Convention, of which the Chinese, Eng lish, French, Russian and Spanish texts are equally authen tic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States referred to in Article 8. IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective govern ments, have signed this Convention. DONE AT GENEVA, this twenty-ninth day of April one thousand nine hundred and fifty-eight. APPENDIX IX 2172 (XXI). Resources of the sea THE GENERAL ASSEMBLY. RECOGNIZING the need for a greater knowledge of the oceans and of the opportunities available for the utiliza tion of their resources, living and mineral, REALIZING that the effective exploitation and develop ment of these resources can raise the economic level of peoples throughout the world, and in particular of the de veloping countries, TAKING INTO ACCOUNT WITH APPRECIATION the activities in the field of resources of the sea at present being undertak en by the United Nations, the United Nations Educational, Scientific and Cultural Organization and, in particular, its Inter-governmental Oceanographic Commission, the Food and Agriculture Organization of the United Nations and, in par ticular, its Committee on Fisheries, the World Meteorologi cal Organization, the Advisory Committee on the Application of Science and Technology to Development, other intergovern mental organizations concerned, various Governments, uni versities, scientific and technological institutions and other interested organizations. CONSIDERING the need to maximize international cooper ative efforts for the further development of marine science and technology and to avoid duplication or overlapping of efforts in this field, 1. ENDORSES Economic and Social Council resolution 1112 (XI) of 7 March 1966 requesting the Secretary-General to make a survey of the present state of knowledge of the resources of the sea beyond the continental shelf, excluding fish, and of the techniques for exploiting these resources 1 2. REQUESTS the Secretary-General — in co-operation with the United Nations Educational, Scientific and Cultural Organization and, in particular, its Intergovernmental Oceanographic Commission, the Food and Agriculture Organi zation of the United Nations and, in particular, its Com mittee on Fisheries, the World Meteorological Organization, other intergovernmental organizations concerned, and the Governments of interested Member States, and utilizing, 164 165 inter alia, such voluntary services as may be offered — to undertake, in addition to the survey requested by the Economic and Social Council, a comprehensive survey of activities in marine science and technology, including that relating to mineral resources development, undertaken by members of the United Nations family of organizations, various Member States and intergovernmental organizations concerned, and by universities, scientific and technologi cal institutions and other interested organizations; 3. REQUESTS the Secretary-General, in co-operation with the United Nations Educational, Scientific and Cultural Organization and, in particular, its Intergovernmental Oceanographic Commission and the Food and Agriculture Or ganization of the United Nations and, in particular, its Committee on Fisheries and in the light of the above-men tioned comprehensive survey, to formulate proposals fori (a) Ensuring the most effective arrangements for an expanded^ programme of international co-operation to assist in a better understanding of the marine environment through science and in the exploitation and development of marine resources, with due regard to the conservation of fish stocks 1 (b) Initiating and strengthening marine education and training programmes, bearing in mind the close interrela tionship between marine and other sciences; 4. REQUESTS the Secretary-General to set up a small group of experts to be selected, as far as possible, from the specialized agencies and intergovernmental organiza tions concerned, to assist him in the preparation of the comprehensive survey called for in paragraph 2 above and in the formulation of the proposals referred to in para graph 3 above; 5. REQUESTS that the survey and proposals prepared by the Secretary-General be submitted to the Advisory Commit tee on the Application of Science and Technology to Devel opment for its comments; 6. REQUESTS the Secretary-General to submit his survey and proposals, together with the comments of the Advisory Committee, to the General Assembly at its twenty-third session, through the Economic and Social Council. 1485th plenary meeting. 6 December i960. APPENDIX X GENERAL Distr. ASSEMBLY GENERAL A/6695 18 August 1967 ORIGINAL1 ENGLISH Twenty-second session REQUEST FOR THE INCLUSION OF A SUPPLEMENTARY ITEM IN THE AGENDA OF THE TWENTY-SECOND SESSION DECLARATION AND TREATY CONCERNING THE RESERVATION EXCLU SIVELY FOR PEACEFUL PURPOSES OF THE SEA-BED AND OF THE OCEAN FLOOR, UNDERLYING THE SEAS BEYOND THE LIMITS OF PRESENT NATIONAL JURISDICTION, AND THE USE OF THEIR RE SOURCES IN THE INTERESTS OF MANKIND Note verbale dated 17 August. 196? frsro Jthe germanent-jyiis- sion of Malta to the United Nations addressed to the Secretary-General The Permanent Mission of Malta to the United Nations presents its compliments to the Secretary-General of the United Nations and has the honour to propose under rule 14 of the rules of procedure of the General Assembly the in clusion of the following item in the agenda of the twenty- second session of the General Assemblyi "Declaration and treaty concerning the reservation exclusively for peace ful purposes of the sea-bed and of the ocean floor, under lying the seas beyond the limits of present national ju risdiction, and the use of their resources in the inter ests of mankind". An explanatory memorandum is attached in accordance with rule 20 of the rules of procedure. 166 A/6695 16? English Page 2 MEMORANDUM 1. The sea-bed and the ocean floor are estimated to con stitute approximately five-sevenths of the world's area. The sea-bed and ocean floor, underlying the seas outside present territorial waters and/or the continental shelves, are the only areas of our planet which have not yet been appropriated for national use, because they have been re latively inaccessible and their use for defence purposes or the economic exploitation of their resources was not technologically feasible. 2. In view of rapid progress in the development of new techniques by technologically advanced countries, it is feared that the situation will change and that the sea bed and the ocean floor, underlying the seas beyond pres ent national jurisdiction, will become progressively and competitively subject to national appropriation and use. This is likely to result in the militarization of the ac cessible ocean floor through the establishment of fixed military installations and in the exploitation and deple tion of resources of immense potential benefit to the world, for the national advantage of technologically developed countries. 3. It is, therefore, considered that the time has come to declare the sea-bed and the ocean floor a common heri tage of mankind and that immediate steps should be taken to draft a treaty embodying, inter alia, the following principles 1 (a) The sea-bed and the ocean floor, underlying the seas beyond the limits of present national jurisdiction, are not subject to national appropriation in any manner whatsoever; (b) The exploration of the sea-bed and of the ocean floor, underlying the seas beyond the limits of present national jurisdiction, shall be undertaken in a manner consistent with the Principles and Purposes of the Charter of the United Nations; (c) The use of the sea-bed and of the ocean floor, underlying the seas beyond the limits of present national jurisdiction, and their economic exploitation shall be undertaken with the aim of safeguarding the interests of mankind. The net financial benefits derived from the use and exploitation of the sea-bed and of the ocean floor shall be used primarily to promote the development of poor countries; A/6695 168 English Page 3 (d) The sea-bed and the ocean floor, -underlying the seas beyond the limits of present national jurisdiction, shall be reserved exclusively for peaceful purposes in perpetuity. 4. It is believed that the proposed treaty should envis age the creation of an international agency (a) to assume jurisdiction, as a trustee for all countries, over the sea-bed and the ocean floor, underlying the seas beyond the limits of present national jurisdictionj (b) to regu late, supervise and control all activities thereonj and (c) to ensure that the activities undertaken conform to the principles and provisions of the proposed treaty. APPENDIX XI THE UNITED NATIONS AND THE ISSUE OF DEEP OCEAN RESOURCES1 I. INTERIM REPORT A. Introduction On August 17, 1967, the Permanent Mission of Malta to the United Nations proposed that the agenda of the 22d U.N. General Assembly, scheduled to convene in New York on September 19, include the following itemi Declaration and treaty concerning the reservation ex clusively for peaceful purposes of the seabed and of the ocean floor, underlying the seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind. An exploratory memorandum accompanying this propo sal expressed concern that the rapid progress in marine technology could lead to the extension of national claims to the ocean floor, the appropriation of resources "of immense potential benefit to the world" by the technolo gically developed countries, and the use of the seabed and the ocean floor for military purposes. In order to forestall such developments, the memo randum proposed that the seabed and the ocean floor be declared "a common heritage of mankind" and reserved ex clusively for peaceful purposes. It was further proposed that an international framework be created for the use and economic exploitation of the seabed and the ocean floor. The net financial benefits derived from such acti vities were proposed to be used "primarily to promote the development of poor countries". The full texts of the note verbale of Malta, of the accompanying explanatory memorandum, and of the revised item which was subsequently placed on the agenda of the Sourcei Interim Report on the United Nations and the Issue of Deep Ocean Resources together with Hearings bv the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs. House of Representatives. Pursuant to H. Res. 179. 90th Congress, 1st Session, House Report No. 999, 19^7, pp. 1R-6R. 169 170 22d General Assembly, appear in the appendix. The prospects of imminent action in the United Nations on the Maltese proposal provoked considerable con cern. During August and September 1967, nearly two dozen resolutions were introduced in the U.S. Congress, expres sing opposition to the vesting of control over deep ocean resources in an international body. Although the language of these resolutions differed in some respects, most of them expressed the view that, for the present, the vesting of such control would be premature. One resolution, in troduced on October 25, endorsed the approach suggested by Malta. Most of the resolutions relating to this issue were referred to the Committee on Foreign Affairs and assigned to the Subcommittee on International Organizations and Movements for such action as the subcommittee deemed appropriate. B. Subcommittee Action On September 18, 196?, Representative Dante B. Fascell, chairman of the Subcommittee on International Organizations and Movements, announced that hearings on the resolutions would begin immediately before his sub committee. Sponsors of the resolutions and the U.S. De partment of State were invited to present testimony during the opening session. The hearings commenced on September 22 and contin ued intermittently through October 31- Testimony was received from Members of Congress, executive branch offi cials, and public witnesses. In both open and executive session, the subcommittee addressed itself to the wording of the resolutions before its to the procedures used in arriving at, and the substance of, the U.S. Government agencies, including those of the Department of the Interi or, the Department of Commerce, and the Defense Establish ments to the activities of the National Council on Marine Resources and Engineering Development, and of the Commis sion on Marine Science, Engineering, and Resources? and to the complex legal, political, and economic considera tions involved in the legislation before it. On November 2, the subcommittee met in an execu tive session, reviewed its work to date, and agreed to issue an interim report of its findings and recommenda tions . C. Issues at Stake The oceans cover nearly two-thirds of the area of 171 the world and represent the last great frontier for na tural resources on our planet. They are — and have been for thousands of years -- essential to communications, security, and the well-being of a very substantial portion of the human population. With modern-day advances in ma rine technology, both for peaceful and for military pur poses, and with the rising pressure on the available na tural resources caused by the phenomenal growth of the world's population, the oceans' importance to the future of mankind has been increasing each year. The orospect of using the wealth of the seas for the benefit of all mankind has tremendous appeal. The promise of reducing the area of international conflicts, with their present-day potential for mass destruction, is equally compelling. The basic question before the United States, and all other nations, is how these objectives can be attained in the most effective manner without jeopardizing the legitimate interests and the security of any nation. It is when we honestly face this question that the complexity of the issues which need to be resolved begins to reveal itself. In our view, these issues must be faced squarely. Based on our hearings and investigations to date, the un resolved questions include the followingi a. What Is a "Sea”? The resolutions referred to this subcommittee, and the proposal of the Permanent Mission of Malta to the United Nations, use terms whose meaning is neither legally nor otherwise clear. They refer to the "deep sea" and the "deep ocean" in the first instance, and to the "sea bed" and the "ocean floor" in the other. What do these terms mean? International law, and national claims, define "territorial waters" as extending variously 3. or 12, or 200 miles offshore. In a somewhat similar manner, the "Continental Shelf", over which limited national sovereignty has been established by the Convention on the Continental Shelf, is defined to include offshore areas up to the depth of 200 meters — or as much farther as modem technology can take us for purposes of economic exploitation. With natural resources being collected, and extrac ted, from the ocean floor lying thousands of feet beneath the ocean's surface, where is the outside perimeter of the Continental Shelf? 172 And where does the "deep sea", or the "deep ocean", begin? Testimony presented before our subcommittee indi cates that as yet we do not have definitive answers to these questions. b. What Are the "Resources" of the Deep Seas? Both the resolutions and the Maltese proposal con cern themselves with the resources of the seas. What are these "resources"? Do they include the use of the oceans' surface for transportation, communi cations, or other purposes? Do they refer to the fish and the vegetable matter which can multiply in the ocean waters? Are they restricted to the minerals which can be collected off the ocean floors? Or do they also in clude materials which can be mined below those floors? Again, the precise meaning of the terms which are central to the decisions that the United Nations is being asked to make is not clear. Even if we should be able, through some fortuitous meeting of the minds on a global scale, to arrive at the physical and geographic limits of the "resources" in ques tion, how much is really known about them? Experts who have devoted many years to the study of this subject tes tified before our subcommittee to the effect that, at present, we can only guess regarding the exact nature, and the extent, of ocean resources. c. What Is "Jurisdiction"? Another issue raised in the proposal under study pertains to the definition of such words as "control", "jurisdiction", and "sovereignty". Within the context of the proposal advanced by Malta, what do these terms mean? For example, to what extent would international jurisdiction over the "seabed and the ocean floor", pro posed by Malta, impair the sovereignty of the coastal states affirmed by the Convention on the Continental Shelf? Our witnesses have been unable to answer this ques tion. d. What About the Ongoing National and International Marine Activities? In December of 1966, the General Assembly of the 173 United Nations ordered a comprehensive survey of activities in marine science and technology undertaken in the United Nations or by member states and private bodies. A report of this survey may not be ready until the convening of the 23d General Assembly, in the fall of 1968. In 1966, the Congress of the United States created the National Council on Marine Resources and Engineering Development and the Commission on Marine Science, Engin eering and Resources to review the marine activities of the United States, to coordinate Federal programs in this field, and to recommend the framework of a national marine policy. Neither of these organizations will be ready to submit a report of its findings and recommendations for some time. Testimony presented before our subcommittee further indicates that numerous specialized agencies of the United Nations and other intergovernmental bodies are currently conducting a variety of marine research and exploration programs. Still other international organizations are promulgating and attempting to police various rules re garding the use of the seas for navigation, fishing, ex ploitation of economic resources, and other activities. No one seems to know how the new international agency, envisioned in the Maltese proposals, would affect these activities. Neither have we been able to ascertain thus far the possible ultimate impact of these proposals on national security undertakings conducted within the marine environ ment . D. Findings and Recommendations On the basis of the hearings conducted between September 22 and October 31* 1967, the subcommittee finds-- 1. That at the present time, the oceans and their potential for sustaining and enriching human life are still largely unknown; 2. That numerous private, national, and international undertakings are currently in progress, aimed at en larging our knowledge of the oceans and of their re sources 5 3. That many uncertainties, unresolved questions, and possible conflicts exist in the field of international law and usage relating to the use of the seas and ex ploitation of ocean resources; and 4. That the proposal to internationalize the seabed 174 and the ocean floor cuts across a broad spectrum of scientific, economic, political, and security consider ations, and could profoundly affect the entire struc ture of private, national, and international marine undertakings. In view of these facts, the subcommittee believes that it would be precipitate, unwise, and possibly injuri ous to the objectives which both the United States and the United Nations have in common, to reach a decision at this time regarding a matter which so vitally affects the wel fare of future generations. The subcommittee recommends — 1. That studies referred to in this report, particu larly those undertaken pursuant to the United Nations General Assembly resolution of December 1966 and the Marine Resources and Engineering Act of 1966, be pur sued to a conclusionj 2. That the U.S'. Government actively discourage any action to reach a decision at this time with respect to the vesting of title to the seabed, the ocean floor, or ocean resources, in any existing or new international organization? and 3. That the U.S. Government, while continuing to en courage and support constructive international coopera tion in the exploration of the oceans, proceed in this field with the greatest caution so as not to limit or prejudice our national interests in the exploration, use and economic exploitation of ocean resources. The United States should urge further study of all the issues and problems relating to this entire subject. We are strongly of the opinion that hasty action in this field can create more problems than it will solve or avert. E. Separate Views of Hon. Donald M. Fraser and Hon. Ben.iamin S. Rosenthal We recognize the validity of many of the concerns of the subcommittee. However, we disagree with the nega tive tone, perhaps inadvertent, with respect to the poten tial of the United Nations to consider and resolve the issues posed by the preservation, development, and use of the ocean's resources. Specifically, we believe that the United Nations is the proper assembly for a careful and lengthy considera tion of the various national and international issues. The alternative is a continuing haphazard exploitation of the resources of the ocean and its floor to the ultimate detri- 175 ment of both international cooperation and to an equitable share of what is, by every conceivable standard, a resource common to the nations of the world. - We believe further that legitimate economic develop ment would greatly benefit from a system of international franchises or licenses which could result from interna tional agreement. This would avoid possible future com plication arising out of conflicting national claims and uncertain economic investment. There is no reason to believe that the only alter native to a narrow, national approach is precipitous action by the United Nations. The success demonstrated in negoti ating the space treaty is impressive precedent for effec tive United Nations action. In this earlier treaty, and on numerous other occasions, the United Nations has given adequate and extended consideration to both the complexi ties of the issues and to national interests. Finally, we believe the United Nations should be encouraged to consider the possibility of financing its own activities, particularly those involving assistance to the less wealthy countries, from a planned development of the ocean's resources. Whether this possibility could one day solve the United Nations financial problems is not yet known but, once again, the world assembly is the proper forum for exploring the benefits which could flow from such an international approach. APPENDIX XII RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY [on the report of the First Committee (A/696^)] 2340 (XXII). Examination of the question of the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor, and the subsoil thereof, under lying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the in terests of mankind The General Assembly. Having considered the item entitled "Examination of the question of the reservation exclusively for peaceful pur poses of the sea-bed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of pre sent national jurisdiction, and the use of their resources in the interests of mankind", Noting that developing technology is making the sea-bed and the ocean floor, and the subsoil thereof, accessible and exploitable for scientific, economic, military and other purposes, Recognizing the common interest of mankind in the sea bed and the ocean floor, which constitute the major por tion of the area of this planet, Recognizing further that the exploration and use of the sea-bed and the ocean floor, and the subsoil thereof, as contemplated in the title of the item, should be conducted in accordance with the principles and purposes of the Char ter of the United Nations, in the interest of maintaining international peace and security and for the benefit of all mankind, Mindful of the provisions and practice of the law of the sea relating to this question, Mindful also of the importance of preserving the sea bed and the ocean floor, and the subsoil thereof, as con- 176 177 templated in the title of the item, from actions and uses which might be detrimental to the common interests of man kind, Desiring to foster greater international co-operation and co-ordination in the further peaceful exploration and use of the sea-bed and the ocean floor, and the subsoil thereof, as contemplated in the title of the item, Recalling the past and continuing valuable work on ques tions relating to this matter carried out by the competent organs of the United Nations, the specialized agencies, the International Atomic Energy Agency and other intergovern mental organizations, Recalling further that surveys are being prepared by the Secretary-General in response to General Assembly resolu tion 2172 (XXI) of 6 December 1966 and Economic and Social Council resolution 1112 (XL) of 7 March 1966, 1. Decides to establish an Ad Hoc Committee to study the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction, composed of Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Cey lon, Chile, Czechoslovakia, Ecuador, El Salvador, France, Iceland, India, Italy, Japan, Kenya, Liberia, Libya, Malta, Norway, Pakistan, Peru, Poland, Romania, Senegal, Somalia, Thailand, the Union of Soviet Socialist Republics, the United Arab Republic, the United Kingdom of Great Britain and Northern Ireland, the United Republic of Tanzania, the United States of America and Yugoslavia, to study the scope and various aspects of this itemj 2. Requests the Ad Hoc Committee, in co-operation with the Secretary-General, to prepare, for consideration by the General Assembly at its twenty-third session, a study which would include 1 (a) A survey of the past and present activities of the United Nations, the specialized agencies, the International Atomic Energy Agency and other intergovernmental bodies with regard to the sea-bed and the ocean floor, and of existing international agreements concerning these areasj (b) An account of the scientific, technical, economic, legal and other aspects of this itemj (c) An indication regarding practical means to promote international co-operation in the exploration, conservation and use of the sea-bed and the ocean floor, and the subsoil thereof, as contemplated in the title of the item, and of their resources, having regard to the views expressed and 178 the suggestions put forward by Member States during the consideration of this item at the twenty-second session of the General Assembly; 3. Requests the Secretary-General1 (a) To transmit the text of the present resolution to the Governments of all Member States in order to seek their views on the subject; (b) To transmit to the Ad Hoc Committee the records of the First Committee relating to the discussion of this item; (c) To render all appropriate assistance to the Ad Hoc Committee, including the submission thereto of the re sults of the studies being undertaken in pursuance of Gen eral Assembly resolution 2172 (XXI) and Economic and Social Council resolution 1112 (XL), and such documentation per tinent to this item as may be provided by the United Na tions Educational, Scientific and Cultural Organization and its Inter-govemmental Oceanographic Commission, the Inter-Governmental Maritime Consultative Organization, the Food and Agriculture Organization of the United Nations, the World Meteorological Organization, the World Health Organization, the International Atomic Energy Agency and other intergovernmental bodies; k. Invites the specialized agencies, the International Atomic Energy Agency and other intergovernmental bodies to co-operate fully with the Ad Hoc Committee in the imple mentation of the present resolution. 1639th plenary meeting, 18 December 1967. APPENDIX XIII THE OCEANSi A CHALLENGING NEW FRONTIER1 LOOKING BACK Over the past 12 months, the Subcommittee on Inter national Organizations and Movements gave close attention to the fast-breaking developments in the United Nations, relating to the question of internationalizing the seabed and the deep ocean floor. This subject gained considerable prominence when, on August 17, 1967, Malta proposed that the United Nations reserve the ocean floor, underlying the seas beyond the limits of present national jurisdiction, exclusively for peaceful purposes and entrust an international agency with the responsibility for exploiting its resources primarily for the benefit of the developing nations. Responding to congressional concern, reflected in a number of resolutions introduced in the House of Repre sentatives and referred to the Committee on Foreign Af fairs, this subcommittee held extensive hearings last fall, probing the ramifications of this entire question. At the conclusion of the hearings, the subcommittee issued an interim report, cautioning against any precipitate vesting of title to the seabed and its resources. The subcommittee also suggested that, as the first step, full study ought to be given to the complex legal, economic, political, and military considerations involved in the disposition of the seabeds and their resources. During the 22d IJ.N. General Assembly, which met in New York in the fall of 19&7* this subject received leng thy consideration. Prior to adjournment, the General Assembly decided to establish an Ad Hoc Committee to Study the Peaceful Uses of the Sea-bed and the Ocean Floor be yond the Limits of National Jurisdiction, instructing the Committee to report its findings to the 23d General Assem bly. Through periodic consultations with the appropriate officials of the executive branch and staff studies, this Source: Report by the Subcommittee on Interna tional Organizations and Movements of the Committee on Foreign Affairs. House of Representatives Together with Hearings and Additional Documents and Materials Pursuant to H. Res. 179. 90th Congress, 2d Session, House Report No. 1957. 1968, extracts from pp. 1R-14R. 179 180 subcommittee remained apprised of the work of the Ad Hoc Committee. The results of the Ad Hoc Committee's delib erations are embodied in a series of documents appended to this report. The report which follows reviews the Ad Hoc Com mittee's activities and reflects this subcommittee's ap praisal of its recommendations to the 23d General Assembly. This report also outlines our subcommittee's views on the course which the U.S. Government ought to pursue in the United Nations and in other international forums with respect to the disposition of the seabeds and the use of their resources in a manner consistent with the best interests of the international community. Findings The subcommittee finds that — 1. The oceans represent the last great frontier for natural resources on our planet. They are, and will con tinue to be essential to communications, security, and the well-being of a very substantial portion of the world’s population. 2. Our knowledge of the oceans, and the seabeds, is still in its infancy. The same can be said about the technology of exploiting the wealth they contain. Years of intensive effort will be required to fathom the mys teries of the marine environment and to develop the tech nology required to place its resources at mankind's dis posal . 3. The desire to reserve the seabed and the deep ocean floor for peaceful purposes, and to apply their resources to the betterment of the human condition, merits univer sal support. In the pursuit of these objectives, however, extreme care must be exercised not to jeopardize each nation's legitimate right to self-defense, the preserva tion of international peace, or effective progress in the development of industrial technology required for the ex ploitation of the resources in question. 4. The establishment of a fixed regime for the seabed and the ocean floor beyond the limits of present national jurisdiction involves many complex issues. These deserve the most thorough study and discussion in the appropriate national councils and international forums before the boundaries and the legal status of this area are defined. 5. The deliberations of the Ad Hoc Committee drew at tention to the above outlined findings. The Committee's discussions served a valuable educational purpose and 181 produced a wealth of information about many aspects of the issue under study. 6. By striving for consensus and rejecting the temp tation to reach decisions prematurely, the Ad Hoc Committee employed a sensible, reasoned approach. Adherence to this approach can do much to insure further international co operation in resolving many complex and at times contro versial issues relating to the seabeds and ocean floor. 7. The recommendations of the Ad Hoc Committee on topics which received general support will further promote the cause of productive international effort aimed at the exploration of the marine environment. The Ad Hoc Com mittee's emphasis on cooperative undertakings, on exchange of information and on the coordination of national and international research projects, provide sensible guide lines for the future. 8. The United States participated actively and effec tively in the work of the Ad Hoc Committee. U.S. proposals regarding an International Decade of Ocean Exploration, the establishment of International Marine Preserves, the adoption of legal principles and the referral of the mili tary aspects of the seabeds to the 18-Nation Disarmament Committee, were generally well received. They warrant further careful consideration by the General Assembly of the United Nations. Recommendations The subcommittee recommends that — 1. The United States give active support to the recom mendation of the Ad Hoc Committee regarding the establish ment of a standing committee on the seabeds, whose member ship would allow for appropriate participation of the maritime states in the work of such a permanent U.N. organ. 2. The United States should likewise urge the General Assembly to approve the U.S. proposal for an International Decade of Ocean Exploration for the 1970's. The subcom mittee is of the opinion that a carefully worked out plan of international collaboration in the exploration of the oceans, and the sharing of information developed through national and international research projects, will be of benefit to all nations. In particular such collaboration should afford the developing countries unique opportunity to expand their own experience and expertise in this field. 3* The U.S. delegation should make no commitment re garding the sharing of the cost of international marine research, or the undertaking of specific projects or pro- 182 grams, without prior authorization from the Congress. k. During the coming months, serious effort should be exerted by the concerned agencies of the U.S. Government to work out their differences and to arrive at unified interagency positions on issues relating to the seabeds. Such reconciliation should take into account not only the views of the various executive departments but also the recommendations of the National Council on Marine Resour ces and Engineering Development, the Commission on Marine Science, Engineering, and Resources, the American scien tific community, and the industries involved in the explor ation and exploitation of ocean resources. 5. Questions relating to the military aspects of the seabeds and proposals for the working out of appropriate international arrangements for the denuclearization of the ocean floor demand prompt and expert attention. The 18- Nation Disarmament Committee should study these questions and furnish advice and counsel thereon to the U.N. General Assembly and to the interested national governments. 6. Prompt action should be initiated to establish suitable arrangements for clarifying the limits of the territorial waters and to define the area of the ocean floor which lies beyond the limits of present national jurisdictions. Questions of this nature ought to be re solved through treaties, conventions, or other interna tional agreements which may only be ratified by the United States upon the advice and consent of the U.S. Senate. REPORT ON THE WORK OF THE U.N. AD HOC COMMITTEE ON THE SEABEDS 1. Establishment of the Ad Hoc Committee During August and September of 196?, nearly two dozen resolutions were introduced in the U.S. Congress, expres sing opposition to the vesting of control over deep ocean resources in an international body. These resolutions were stimulated by a proposal advanced on August 17, 1967, by the Permanent Representative of Malta to the United Nations, suggesting that the agenda of the 22d U.N. General Assembly include the following itemt Declaration and treaty concerning the reservation exclusively for peaceful purposes of the seabed and of the ocean floor, underlying the seas beyond the limits of present national jurisdiction, and the use of their 183 resources in the interest of mankind. An explanatory memorandum accompanying the proposal expressed the view that the suggested course of action was necessary to prevent the extension of national claims to the ocean floor; the appropriation of seabed resources by the technologically developed nations; and the use of the seabeds for military purposes. Hearings on the congressional resolutions were conduc ted during September and October 196? before the Subcom mittee on International Organizations and Movements. At their conclusion, the subcommittee issued a report ("In terim Report on the United Nations and the Issue of Deep Ocean Resources", House Report 999. 90th Cong., first sess., 1967) cautioning against any precipitate action by the U.N. General Assembly and urging that the issues involved in Malta's proposal be given full and careful study. Following extensive debates in the First (Political) Committee, the 22d General Assembly adopted a resolution creating an Ad Hoc Committee to Study the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction. In paragraph 2 of the resolution (General Assembly Resolution 23^0 (XXII), adopted Dec. 18, 1967), the General Assembly requested the Ad Hoc Committee to prepare for its consideration at the 23d session a study which would include; (a) A survey of the past and present activities of the United Nations, the specialized agencies, the Inter national Atomic Energy Agency and other intergovernmental bodies with regard to the s'eabed and the ocean floor; (b) A survey of existing international agreements con cerning the seabeds; (c) An account of the scientific, technical, economic, legal and other aspects of the seabeds; and (d) An indication regarding practical means to promote international cooperation in the exploration, conservation and use of the seabed and the ocean floor, and the subsoil thereof. The membership of the Ad Hoc Committee comprised the following countries; Argentina Iceland > Senegal Australia India Somalia Austria Italy Thailand Belgium Japan Union of Soviet Soci- Brazil Kenya alist Republics I8if Bulgaria Canada Ceylon Chile Czechoslovakia Ecuador El Salvador France Liberia Libya Malta Norway Pakistan Peru Poland Rumania United Arab Republic United Kingdom United Republic of Tanzania United States of America Yugoslavia The Ad Hoc Committee held three working sessionsi from March 18 to 27, in New York City; from June 1? to July 9. in New York City; and from August 19 to 30, in Rio de Janeiro, Brazil. During the first session, the Ad Hoc Committee organized its work program, elected officers and established two working groups of the whole, one to deal with legal and the other with economic and technical matters. The officers of the Ad Hoc Committee were as follows» Chairmam Mr. Hamilton Shirley Amerasinghe (Ceylon). Vice-Chairmeni Mr. Bohdan Tomorowicz (Poland); Mr. Wal do E. Waldron-Ramsey (Tanzania); Mr. Jose Pinera (Chile); and Mr. Jens Evensen (Norway). Rapporteuri Mr. Victor J. Gauci (Malta). The second session of the Ad Hoc Committee was devoted primarily to a detailed examination by the two working groups of the legal, economic, and technical aspects of the question at hand. At the third session, the two working groups and the Ad Hoc Committee finalized their respective reports and reached agreement on a number of specific recommendations to the 23d General Assembly. 2. Work of the Economic and Technical Group The Economic and Technical Group met frequently during the second and third sessions of the Ad Hoc Committee, discussing five major topicsi (a) Assessment of the extent of the mineral re sources of the ocean floor and their geographical distri bution; (b) Present state and foreseeable development of technology in the field of the exploration, evaluation, and exploitation of such resources; (c) Possibility of exploiting such resources from the standpoint of technological progress and the profita bility and soundness of investments; (d) Possible consequences of the exploitation 185 of such resourcesi (i) Economic implications on the world mar kets ; (ii) Possible repercussions on other uses of the sea; and (iii) Possibility of exploiting such resources for the benefit of mankind as a whole. (e) Prosoects for international cooperation in the development and exploitation of the resources of the ocean floor. The transcript of the meetings of the Economic and Technical Group contains a wealth of information on the above-mentioned subjects. Many distinguished scientists and experts served on the various national delegations and contributed greatly to the deliberations of this group. The report of the Economic and Technical Group, approved at the Rio meeting, summarizes its lengthy discussions and highlights the substantial measure of agreement arrived at within the Group regarding the importance of furthering international cooperation in scientific research; the value "in principle" of the U.S. proposal calling for an International Decade of Ocean Exploration; and the advisa bility of entrusting the Intergovernmental Oceanographic Commission (TOC) of UNESCO with the task of coordinating long-term cooperative research and investigation of the marine environment. Six delegations from Latin America, serving on the Ad Hoc Committee and the Economic and Technical Group, re served their position with respect to the content of the report and its legal implications. 3. Work of the Legal Group The Legal Group met only during the second session of the Ad Hoc Committee and discussed the following major subjects t (a) Legal status of the seabed and the ocean floor; (b) Reservation of the seabed "exclusively for peace ful purposed'; (c) Use of the resources of the seabed "for the bene fit and in the interests of mankind"; (d) Freedom of scientific research and exploration; (e) Exercise of the freedom of the high seas; (f) The question of pollution and other hazards; (g) The question of defining the boundaries of the seabed and the ocean floor; (h) A moratorium on national claims to the seabed 186 beyond the limits of present national jurisdic tion! and (i) A declaration of legal principles concerning the peaceful use of the seabed and the ocean floor. Owing to the limited time at its disposal and the com plexity of the problems before it, the Legal Group was not in a position to complete its program of work. The Group did, however, prepare a report of its discussions, indicating where and to what extent a particular viewpoint appeared to have support. It should be noted in this re gard, that there was no consensus within the Legal Group on any of the major issues listed above. 4. Proposals Advanced by the United States Since the fall of 1967, the United States advanced four major proposals relating to the issue of the seabeds. All of them received attention in the Ad Hoc Committee. They included! (a) Declaration of Principles. — A 7-point draft dec laration of suggested legal principles to guide the ex ploration and use of the seabeds and their resources. The text of a draft resolution containing these principles appears on page 109 of part III and was discussed in the course of the Executive briefing of June 12, 1968. (b) Peaceful Purposes. — A draft resolution requesting the 18-Nation Disarmament Committee operating under U.N. auspices in Geneva "to take up the questions of arms limi tation on the seabed and the ocean floor with a view to defining those factors vital to a workable, verifiable and effective international agreement which would prevent the utilization of this new environment for the emplacement of weapons of mass destruction”. (c) International Decade for Ocean Exploration. — A proposal to designate the 1970's as the International Decade of Ocean Exploration. The United States envisaged the Decade as an important means of stimulating investiga tion of seabed resources, of fostering the cooperation that is required to explore and develop them, and of mak ing available for the people of all nations the knowledge that is a prerequisite to resource exploitation and use. (d) International Marine Preserves. — A proposal cal ling for the development of international agreements desig nating and reserving specific areas of the oceans and the seabeds as international marine preserves for scientific exploration, research or study. All of the above proposals are described in detail in 18? the documents appended to this report. They evoked a generally favorable response and helped to focus the Ad Hoc Committee's attention on the interrelationship between, and the complexity of, the different parts of the marine environment. In so doing, these U.S. initiatives contrib uted to the Ad Hoc Committee's forward looking and res ponsible approach to the tasks entrusted to it by the U.N. General Assembly. 5. Problems and Challenges From the standpoint of the U.S. position on issues before the Ad Hoc Committee, the attitudes of some of the other delegations presented a challenge. In particular, the U.S. delegation had to take note of the followingi The desire, almost unanimous in the Ad Hoc Commit tee, to reserve the seabeds "exclusively for peaceful purposes" without necessarily defining the meaning of that phrase. In the view of some delegations, any type of military activity was incompatible with "peaceful purposes"i The wish of a number of the developing countries to set aside the seabeds primarily for the benefit of the poor countries and to place a moratorium on any further exploitation until either the Continental Shelf is more specifically defined or a regime for the ocean floor determined! and Issues arising from certain special interests, such as Iceland's desire to regulate fishing beyond that country's national jurisdiction as a conservation meas ure! the interests of a number of Latin American States in preserving their 200-mile territorial waters claim! and the Italian suggestion that internal seas, such as the Mediterranean, differ from the oceans, and that rules pertaining to their floor should be prepared only by the coastal states of those seas. 6. Outcome of the Ad Hoc Committee's Final Session The final and crucial session of the Ad Hoc Committee took place in Rio de Janeiro, Brazil during August 1968. There the lengthy and at times heated discussions culmin ated in the reports of the two working groups and of the parent committee. In light of the proposals and other statements of the U.S. delegation, the outcome of that session with respect to the key issues was as followsi (a) International Decade of Ocean Exploration. — The reports of the Economic and Technical Group and of the 188 Ad Hoc Committee refer in several instances to this pro posal. In the words of both documents, the United States initiative and the concepts underlying the Decade proposal were "welcome" and met with "general support". The re ports suggest that both the Decade and the U.N. Secretary General's recommendations regarding expanded international cooperation in marine research should be commended to the 23d General Assembly. (b) Declaration of Legal Principles. — The most com plex and controversial issues debated by the Ad Hoc Com mittee were aired in the course of its attempts to prepare a set of suggested legal principles to guide the explora tion and the use of the seabeds. The limits of the ter ritorial waters and of the Continental Shelf, the bound aries of the seabeds and their relation to the waters above, and many other subjects became involved in this discussion. In the end, the Ad Hoc Committee failed to arrive at a consensus regarding any principles and took the somewhat ambiguous course of including in its report two considerably different formulations 1 a "draft declara tion of general principles" reflecting the views of dele gations representing six Latin American and nine Afro- Asian countriesj and a "draft declaration of agreed princi ples", based in large part on the suggestions advanced by the United States and supported by many members of the Western group. The title of the latter collection is mis leading because the Ad Hoc Committee did not really agree to the so-called agreed principles. At best, this formu lation may provide a starting point for future discussion, possibly during the 23d General Assembly. (c) Peaceful Purposes of the Seabeds. — The Ad Hoc Committee's assignment included the "examination of the question of the reservation exclusively for peaceful pur poses of the seabed and the ocean floor....". This par ticular task proved rather troublesome. Some delegations favored the adoption of a declaration simply reserving the seabeds "exclusively for peaceful purposes". Others wanted to qualify that phrase by indicating that it ex cluded all military uses of the ocean floor. The United States suggested a different approach1 name ly, that the Ad Hoc Committee concern itself first with preventing the spread of the armaments race to the seabeds, and urge the 18-Nation Disarmament Committee to explore the possibility of working out a verifiable international agreement to prevent the emplacement of nuclear weapons on the ocean floor. 189 At Its final session a measure of consensus emerged within the Ad Hoc Committee that the seabeds should be reserved "exclusively for peaceful purposes". Prior to that, however, the United States and several other coun tries had the opportunity to enter a number of reserva tions into the record. The U.S. Delegate explained that in the U.S. view, the term "peaceful purposes" did not imply that all military activities should be barred in the area under discussion. Specifically, he asserted that the term did not exclude military activities in pursuit of peaceful aims or in fulfillment of peaceful intents, con sistent with the U.N. Charter and the obligations of in ternational law. He then reiterated the suggestion that the military aspects of the seabeds be referred to the 18-Nation Disarmament Committee for prompt and careful study. Several other delegations supported this approach, adding their own explanations and reservations. The report of the Ad Hoc Committee takes no sides on the question of urging the 18-Nation Disarmament Committee to concern itself with the military aspects of the seabeds. The report merely indicates that some delegations favored this course while others opposed it. However, since the 18-Nation Disarmament Committee already has the question of preventing an arms race on the seabeds upon its agenda, it appears likely that future discussions of this subject may be largely concentrated in that forum. (d) International Marine Preserves. — This proposal received some consideration but did not seem to attract significant support in the Ad Hoc Committee. (e) Standing Committee on the Seabeds. — There was overwhelming sentiment in the Ad Hoc Committee for a rec ommendation that the 23d General Assembly create a standing committee on the seabeds. The question which was not re solved was what type of a mandate should be given to such a committee. Some delegations felt that the frame of reference of the Ad Hoc Committee was appropriate. Others wanted it broadened to include other parts of the marine environment. Still others worried that a standing com mittee, with or without a broad mandate, would eventually begin to infringe on the jurisdictions of the various specialized agencies and other organizations active in marine research and other ocean-related activities. The 23d General Assembly will have to resolve these issues before the standing committee is established. (f) Moratorium on Seabed Activities.t- Mentioned by a number of delegates, the proposal for at least a temporary moratorium on the exploitation of the seabeds beyond the 190 limits of narrowly defined continental shelves did not receive support either of the maritime powers or of a majority of the membership of the Ad Hoc Committee. (g) Pollution. — The Ad Hoc Committee's report draws attention to the dangers of pollution and other hazards arising from the discharge of oil, other chemical and radioactive waste products, and from activities connected with the exploration and exploitation of the seabeds. (h) Internal Seas. — The Ad Hoc Committee's endorse ment of the proposal that internal seas be placed in a special category when rules concerning the legal status and use of their beds will be formulated, was neither sought nor granted. 7. Assessment The products of the Ad Hoc Committee — namely, the studies prepared at its request, the record of its dis cussion, and the reports finalized at the Rio meeting — are notable for their moderation and constructive aim. Several of these documents contain an impressive store of information about the seabeds and the technology of exploiting them. Others address themselves to complex legal and jurisdictional questions. Still others attempt to come to grips with issues involving sensitive political and military considerations. Only rarely does the dis cussion in these documents turn to speculation, conjec ture, or emotional appeals. Bearing in mind the circum stances attendant upon the creation of the Ad Hoc Commit tee, this formal record of its labors is impressive and encouraging. The most significant achievement of the Ad Hoc Commit tee may well derive from its educational function. Judg ing from the written record and informed reports, the Com mittee's deliberations had a

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Creator Cole, Otis Robert, Jr. (author)

Core Title Towards The Development Of An International Regime For The Seabed Beyond The Limits Of National Jurisdiction: A Comparative Study Of Four Proposals. (Volumes I And Ii)

Degree Doctor of Philosophy

Degree Program International Relations

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest,political science, international law and relations

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Christol, Carl Q. (committee chair), Fertig, Norman R. (committee member), Swearingen, Rodger (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c18-791773

Unique identifier UC11364106

Identifier 7314393.pdf (filename),usctheses-c18-791773 (legacy record id)

Legacy Identifier 7314393

Dmrecord 791773

Document Type Dissertation

Rights Cole, Otis Robert, Jr.

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus, Los Angeles, California 90089, USA