McGILL LAW JOURNAL
Number 4
Volume 17
Montreal
1971
An Evaluation of United States Oceans Policy *
Robert B. Krueger **
1. Introduction ………………………………………………………………………………………………..
II. An Evaluation of U.S. Oceans Policy ………………………………………………….
A. Policy Considerations ………………………………………………………………………….
1. G en eral …………………………………………………………………………………………….
2. Nationalism – A Major Determinant
3. International Organization ……………………………………………………………
4. International v. National Regulation
5. National and International Objectives
………………………………………
……………………………………..
……………………………………..
B. The Nixon Proposal – The U.S. Draft Convention
…………………..
…………………………………………………………………………………..
1. Introduction
2. Trusteeship Zone Concept ……………………………………………………………
………………………………………………………………………….
3. N on-M ineral U ses
4. The International Seabed Resources Authority
5. Reappraisal and Adjustment
……………………………………………………..
……………………..
C. Future Developments
…………………………………………………………………………
1. Conference on the Law of the Sea ………………………………………………
………………………………………………………………….
2. Convention Provisions
III. Conclusion
………………………………………………………………………………………………….
IV . E pilogue
……………………………………………………………………………………………………..
604
635
635
635
640
649
650
653
659
659
663
668
671
674
675
675
676
680
682
* An expanded version of this article and other materials will be published
in 1972 by Praeger Publishers of New York under the title Marine Resources
Policy: An International Analysis.
* A. B. Univ. Kansas, 1949; J. D. Univ. Michigan, 1952, Member of the Bar of
the State of California; Chairman, California Advisory Commission on Marine
and Coastal Resources; Member, U.S. Advisory Committee on the Law of
the Sea.
McGILL LAW JOURNAL
[Vol. 17
I. Introduction
In historical perspective the United States clearly appears as a
leader, albeit a somethat inconsistent one, of recent world oceans
policy. The 1945 Truman Proclamation on the Continental Shelf 1
was a landmark proclamation in asserting and establishing a right
of appropriation to seabed resources beyond a nation’s territorial
1 The Proclamation expressed the view 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” and proclaimed
“… 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 [and] subject to its jurisdiction and control.”
Proclamation No. 2667, 3 C.F.R. 67, at p. 68 (1943-1948 Comp.).
At the same time President Truman issued the Continental Shelf Procla-
mation he also issued the proclamation entitled Policy of the United States
with Respect to Coastal Fisheries and Certain Areas of the High Seas of which
the principal premises were:
“Fishery resources have a special importance to coastal communities as
a source of livelihood and to the nation as a food and industrial resource;
“The progressive development of new methods and techniques contributes
to intensified fishing over wide sea areas and in certain cases seriously
threatens fisheries with depletion; [and]
“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 legitimate
interest therein”
Proclamation No. 2668, 10 Fed. Reg. 12,304, 3 C.F.R., 1943-1948 Comp., pp. 67, 68
(1945)
The Proclamation then asserted that:
“[T]he 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 substantial scale.
“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 navigation are in no way
thus affected.”
Ibid. See contemporaneous Executive Order providing for the Establishment
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EVALUATION OF UNITED STATES OCEANS POLICY
605
sea 2 and served as the precedent for the many subsequent national
assertions of jurisdiction, as well as the concept of the 1958 Geneva
Convention on the Continental Shelf.3 The lasting impact of this
imaginative, and then unilateral, national act was reflected in the
1969 decision in the North Sea Continental Shelf case 4 before the
International Court of Justice in which it was noted that the Pro-
clamation served as “the starting point of the positive law on the
subject.” r So, too, the United States by its enactment of the 1953
Outer Continental Shelf Lands Act” authorizing the development
in minerals underlying “all submerged lands … of which the sub-
soil and seabed appertain to the United States and are subject to
its jurisdiction and control” and its willingness to apply the Act
to remote sections of the continental shelf, even slope, provided
an example of exploitive quest that was followed with alacrity else-
where.” It then appears that its own introspection of the conse-
of Fishery Conservation Zones No. 9634, Sept. 28, 1945, 10 Fed. Reg. 12,305;
3 C.F.R., 1943-1948 Comp., p. 437.
While the proposed conservation zones have never been created, the
proclamation nonetheless stands as clear evidence of a strong history of
U.S. interest in the protection of domestic coastal fisheries from foreign
fleets. For a current and excellent examination of the development of U.S.
policy in this area see Allen, Law, Fish and Policy, (1971), 5 Int’l Lawyer, at
p. 621, 630. See also J. Bingham, Report on the International Law of the
Pacific Coastal Fisheries, p. 5 (1938); Loring, infra, n. 91, at pp. 397 et seq.
The Truman Fisheries Proclamation provided clear precedent for the concept
of the succeeding claims of Latin American nations. Id., at p. 399. See Lecture
by Ambassador Alfonso Arias-Schreiber of Peru to National Defense College
of Canada on “Foundations of the Marine Sovereignty of Peru,” pp. 4
et seq. (Lima, April 9, 1970); supra, n. 91.
2 See Krueger, The Background of the Doctrine of the Continental Shelf
and the Outer Continental Shelf Lands Act, (1970), 10 Nat. Res. 1. 442, at p. 464.
3Id., at p. 471.
4 [19691 I.CJ. 3.
G [1969] I.CJ. 3, at p. 33. See Krueger, supra, n. 2, at pp. 481, et seq.
643 U.S.C. 1331-43 (1964).
7 43 U.S.C. 1332(a)
(1964). See Krueger, supra, note 2, at pp. 466, et seq.
8 Commencing in 1961 the Department of the Interior has issued leases
under the Outer Continental Shelf Lands Act covering areas 40 miles offshore
and in waters as deep as 4,000 feet and 26 miles offshore and in waters
from 1,200 to 1,800 feet in depth. In addition the Secretaries of the Interior
and the Army asserted jurisdiction under the Act over an area approximately
120 miles off Southern California which is separated from the coastline by
waters as deep as 6,000 feet. Lastly, the Secretary of the Interior has issued
exploratory permits under the Act to conduct core drilling in the Gulf of
Mexico in waters as deep as 3,500 feet and on the Atlantic seaboard for
waters as deep as 5,000 feet and lying as far as 250-300 miles from the coast.
Krueger, supra, n. 2, at pp. 478-479.
McGILL LAW JOURNAL
[Vol. 17
quences of this type of global activity led to a reconsideration of
its own and world oceans policy.
President Johnson in 1966 made his much quoted statement
that:
under no circumstances must we ever allow the prospects of rich harvest
and mineral wealth to create a new form of colonial competition afnong
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.9
The same year the Marine Resources and Engineering Develop-
ment Act was adopted which required the President with the
advice and assistance of the newly created Council on Marine
Resources and Engineering Development to undertake a broad
scale review of the marine science activities of the United States,
including the duty to:
undertake a comprehensive study.., of the legal problems arising out
of the management, use, development, recovery, and control of the
resources of the marine environment … o
The Act also created a Commission on Marine Science, Engineering
and Resources (“Marine Sciences Commission”) which was required
to:
make a comprehensive investigation and study of all aspects of marine
science in order to recommend an overall plan for an adequate national
oceanographic program that will meet the present and future national
needs.”1
It was not, however, the United States but the smaller and
developing nations led by Malta that provided the impetus for
the current reexamination of global policy regarding the oceans,
indeed the entire marine environment. In 1967 the Mission of Malta
to the United Nations proposed a resolution which would call
for a conference for the drafting of a treaty which would reserve
the seabed and ocean floor “beyond limits of present national
jurisdiction” as a “common heritage of mankind” and provide for
their “economic exploitation.., with the aim of safeguarding the
interests of mankind [and using] the net financial benefits derived
to promote the development of poor countries”. 2
[therefrom]
This highly controversial proposal found strong support from a
number of the smaller and lesser developed countries in the United
9 Comments made by the President at the commissioning of the new research
ship, The Oceanographer, on July 13, 1966.
10 33 U.S.C. 1103 (1966).
1133 U.S.C. 1104(b) (1966).
12 U.N. Doc. A/6695, dated August 18, 1967.
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EVALUATION OF UNITED STATES OCEANS POLICY
607
Nations 13 and led to a resolution of the 1967 United Nations
General Assembly creating an Ad Hoc Committee to Study Peaceful
Uses of the Sea-Bed and Ocean Floor Beyond Limits of National
Jurisdiction. 4 This Committee, on which both the Soviet Union and
the United States were represented, was given a broad mandate
to study the entire international organization with respect to the
seas.” During the course of its work in 1968, the United States
expressed the view that there should be “an internationally agreed
precise boundary for the deep ocean floor” and that no nation
should “claim or exercise sovereignty” over it. 16
13 It also found a substantial amount of support in the United States,
notable in resolution proposed by Senator Pell that included its basic
principles. S. Res. 172, 186, 90th Cong. Ist Sess. (1967). See Senate Comm. on
For. Rel. Report on Governing the Use of Ocean Space, 90th Cong., Ist Sess.
(1967) pp. 1-7.
1422 U.N. GAOR at U.N. Doc. A/2340 (1967).
15The Ad Hoc Committee was requested to cooperate with the Secretary-
General in the preparation of a study with the twenty-third (1968) session of
the U.N. General Assembly which would include:
“(1) a survey of the past and present activities of the United Nations,
the specialized agencies, the IAEA [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
areas;
(2) an account of the scientific, technical, economic, legal and other
aspects of this item;
(3) 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 the suggestions put forward by Member States …. ” Id.
10 U.N. Doc. A/AC.135/25 (June 28, 1968); U.N. Doc. A/AC.135/L.1, Annex
III, at p. 4 (July 16, 1968). The proposal also stated that there should be
established “as soon as practicable, internationally agreed arrangements
governing the exploitation of resources of the deep ocean floor” which shall
included provision for:
(a) the orderly development of resources of the deep ocean floor in
a manner reflecting the interest of the international community in the
development of these resources;
(b) conditions conducive to the making of investments necessary for
the exploration and exploitation of resources of the deep ocean floor;
(c) dedication as feasible and practicable of a portion of the value
of the resources recovered from the deep ocean floor to international
community purposes; and
(d) accommodation among the commercial and other uses of the deep
ocean floor and marine environment.”
Id., at para. 2.
McGILL LAW JOURNAL
[Vol. 17
In December of 1968
the United Nations General Assembly
created a permanent 42 member Committee with essentially the
same framework of responsibility.”7 During 1969 the Committee
considered a number of broad economic, technical and legal issues
regarding the exploration, exploitation and use of the seabeds,
including the type of administrative machinery that should be
established for the development of natural resources in areas
beyond limits of national jurisdiction and the extent of those
limits.”‘ The United States indicated that it was in favor of an
international rdgime providing for the administered development
of deep ocean resources and international emphasis on a number
of goals directed toward greater and more beneficial uses of the
marine environment. 9
In 1969 the Marine Sciences Commission reported to the Presi-
dent and Congress in a report entitled Our Nation and the Sea 20
17The Committee on the Peaceful Uses of the Sea-Bed and the Ocean
Floor Beyond the Limits of National Jurisdiction was instructed:
“(a) To study the elaboration of the legal principles and norms which
would promote international co-operation in the exploration and use
of the sea-bed and the ocean floor and the subsoil thereof beyond the
limits of national jurisdiction and to ensure the exploitation of their
resources for the benefit of mankind, and the economic and other
requirements which such a regime should satisfy in order to meet the
interests of humanity as a whole;
(b) To study the ways and means of promoting the exploitation and
use of the resources of this area, and of international co-operation to
that end, taking into account the foreseeable development of technology
and the economic implications of such exploitation and bearing in mind
the fact that such exploitation should benefit mankind as a whole;
(c) To review the studies carried out in the field of exploration and
research in this area and aimed at intensifying international co-operation
and stimulating the exchange and the widest possible dissemination
of scientific knowledge on the subject; [and]
(d) To examine proposed measures of co-operation to be adopted by
the international community in order to prevent the marine pollution
which may result from the exploration and exploitation of the resources
of this area.” 23 U.N. GAOR at U.N. Doc. A/2467 (1968).
Is See U.N. Doc. A/AC.138/1 (Feb. 5, 1969), through U.N. Doc. A/AC.138/20
(Oct. 23, 1969), passim.
19Ambassador Phillips, U.S. Ambassador to the United Nations, stated on
October 31, 1969, that “[b]ecause mere registry of claim would probably
only contribute to a confused race, it is our view that an international regime
should include an international registry of claims governed by appropriate
procedures.” See Press Release USUN-141(69).
20Commission on Marine Science, Engineering and Resources, Our Nation
(hereinafter cited as “Our
and The Sea: A Plan for National Action (1969)
Nation and The Sea”).
No. 4]
EVALUATION OF UNITED STATES OCEANS POLICY
609
in which it was recommended that the United States “take the
initiative to secure international agreement on a redefinition of
the ‘continental shelf’ for purposes of the Convention on the Con-
tinental Shelf” and that the redefined continental shelf be fixed
at a depth of 200 meters or 50 miles from the coastline, whichever
is further.2 ‘ Beyond that distance the Commission recommended
an “intermediate zone” extending from the redefined continental
shelf to the 2500 meter isobath or 100 miles from the coastline,
whichever is further. In this zone the coastal states would admin-
ister the resources, but proceeds from it would be paid to the
“International Fund” to be used for the benefit of the poor and
developing nations of the world. The governing board of the Inter-
national Fund would be determined by the U.N. General Assembly.
To administer areas beyond this buffer zone there would be the
“International Registry Authority”, similar to the World Bank in
organization, which would register the claims of various nations
for mineral resources and pay the proceeds to the International
Fund.22
This proposal did not meet with immediate acceptance domes-
tically,23 however, and the United States’ position in international
discussions continued to be quite conservative, as was that of the
Soviet Union. As a result neither was able to effectively guide
deliberations in the United Nations on this and related subjects.
In December of 1969, following extensive and heated debates in
the Sea-Bed Committee and the U.N. First Committee, the United
Nations General Assembly adopted a very important resolution over
the active opposition of the United States and the Soviet Union and
their usual supporting blocs. By a 65-12 vote with 30 abstentions the
General Assembly passed a resolution requesting the Secretary
General to determine “the desirability of convening at an early date
a conference on the law of the sea to review the regimes of the high
seas, the continental shelf, the territorial sea and contiguous zone,
fishing and conservation of the living resources of the high seas,
particularly in order to arrive at a clear, precise and internationally
accepted definition of the sea-bed and ocean floor which lies beyond
national jurisdiction, in the light of the international regime to be
21 Our Nation and The Sea, at p. 145.
22 Id., at p. 147.
23 See Report of National Petroleum Council, Petroleum Resources under
the Ocean Floor 72 (1969); Joint Report of Sects. of Nat. Res. Law, Int’l and
Comp. Law and Standing Comm. on Peace and Law Through U.N., app. ABA
at p. 4 (Aug. 7, 1968).
McGILL LAW JOURNAL
[Vol. 17
established for that area”. 24 This resolution is quite significant in
that there had been a considerable effort by the United States and
others of the developed powers to avoid a broad scale conference of
this type and to endeavor to reach international consensus by uni-
form unilateral declarations of policy25 By a vote of 62-28 with 28
abstentions the General Assembly also passed a resolution providing
that nations “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”.2
This
resolution, which was of little legal effect,2 nevertheless was quite
revealing of the political antipathy of the developing nations to-
ward the great powers on the subject of marine resources. This
was also vividly illustrated by the passage of a further resolution
adopted by acclamation in the General Assembly referring a “Draft
Treaty on the Prohibition of the Emplacement of Nuclear Weapons
and Other Weapons of Mass Destruction on the Sea-Bed and the
Ocean Floor and the Sub-soil Thereof”,2 7 which had been prepared
and supported by the Soviet Union and the United States, back to
the Geneva Conference of the Committee on Disarmament because
of objections voiced by a number of the smaller nations during
debate.28 The General Assembly also passed without objection by
the United States or the Soviet Union resolutions requesting the
Sea-Bed Committee to expedite its work and prepare a draft re-
solution stating the principles which it believes should govern the
peaceful uses of the seabed2 9 and a resolution requesting the
Secretary General to prepare a study on various types of interna-
24U.N. GAOR at U.N. Doc. A/2574A
(1969). The original version of the
resolution was introduced by Malta and called for the Secretary-General
to determine the views of member states on the desirability of a conference
“for the purpose of arriving at a clear, precise and internationally acceptable
definition” of the area beyond limits of national jurisdiction (the “continental
shelf”) and the “prospective establishment of an equitable international
regime” for such area. U.N. Doc. A/C, L 473 (Oct. 31, 1969), Rev. 2 (Dec. 2,
1969). See Krueger supra, n. 2 at p. 446.
25 See Sea-Bed Committee Press Release USUN-36(69)
(March 28, 1969) to
USUN-183(69)
(Dec. 2, 1969).
25a24 U.N. GAOR at U.N. Doc. A2574D (1969).
26 Resolutions of the- U.N. General Assembly do not have a formal binding
effect upon member states. Articles 10 through 17 of the United Nations’
Charter which sets forth powers of the General Assembly provides merely that
that body may “discuss”, “consider” and “recommend”.
27 Press Release USUN-142(69)
2824 U.N. GAOR at U.N. Doc. A/7902 (1969) adopted by acclamation.
2924 U.N. GAOR at U.N. Doc. A/2574B (1969).
(Nov. 3, 1969).
No. 4]
EVALUATION OF UNITED STATES OCEANS POLICY
tional machinery for the exploration and exploitation of sea-bed
resources. 0
In 1970 there were a number of significant developments in
this area, most of which reflected a recognition by the developed
countries that future international deliberations on basic oceans
issues were unavoidable and even desirable. Many, too, evidenced
the desire of the United States to assume leadership and establish
the initiative in future discussions.
The U.N. Seabeds Committee met in New York in March where
the United States proposed a relatively comprehensive set of prin-
ciples31 and indicated a willingness to attend a future law of the
sea conference or conferences if the issues were “treated in manage-
3024 U.N. GAOR at U.N. Doc. A/2574C (1969).
31 Press Release USUN-27(70) (Rev. 1). The objectives stated were as follows:
“1. To encourage exploration and exploitation of seabed resources.
2. To assure that all interested States will have access, without discrimi-
nation, to the seabed for the purpose of exploring and exploiting
mineral resources.
3. To encourage scientific research and the dissemination of scientific
and technologic information related to seabed resources.
4. To encourage the development of services, such as aids to navigation,
maps and charts, weather information, and rescue capability.
5. To provide procedures for the assignment of rights to minerals or
groups of minerals in specific areas under terms that protect the
integrity of investments in seabed resource development, that en-
courage economic efficiency in the exploration and exploitation of
seabed resources, that prevent a race for claims, and that discourage
operators from seeking to hold large areas for purely speculative
purposes.
6. To provide for a reasonable return on risk investment.
7. To provide revenue to benefit international community purposes,
taking special account of the needs of the developing countries, and
to meet the operating expenses of the international body established
to administer its provisions.
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 seabed, safeguard other
uses of the ocean environment against undue interference, avoid
irreparable damage
the environment and its resources, and
promote the use of sound conservation practices.
to
9. To provide terms and procedures governing liability for damage
resulting from exploration and exploitation of seabed minerals so
that damage will be adequately repaired or compensated.
10. To provide for the stability of rules, and yet for the flexibility to
McGILL LAW JOURNAL
(Vol. 17
able packages”3 2 The following month Canada introduced in its
House of Commons the Arctic Waters Pollution Prevention Act
(creating a Pollution Control Zone extending 100 nautical miles
from the coastline and to all adjacent waters located above its
continental shelf)33 and a companion bill extending Canada’s terri-
torial sea to 12 miles.34 Within such a zone, Canada asserted the
right to regulate this discharge of substances and to control ship-
ping.3 5
The Canadian proposal was immediately challenged by the U.S.
Department of State as constituting “unilateral extensions of juris-
dictions on the high seas [which] the United States can [not]
accept”.30 Notwithstanding, the Canadian Parliament promptly en-
introduce modifications over time responsive to new knowledge and
new developments.
11. To provide effective procedures for the settlement of disputes.
12. In the overall, to establish an international regime so plainly viable
that States will in fact ratify the treaties establishing it.” Id., at
pp. 3-5.
32 U.S. Dept. of State Press Release No. 49 (Feb. 18, 1970); U.S. Dept. of
State Press Release USUN-81(70) (June 12, 1970) (“procedures for the reso-
lution of these issues should be structured so as to insure that each issue
receives appropriate attention”).
33 Arctic Waters Pollution Prevention Act Bill C-202 Sect. 3, (1) and (2).
It was passed by the House of Commons on April 22, 1970. House Commons
Debates, Apr. 22, 1970, 6170-6172. Id., at Sect. 4. The Act has been printed in
(1970), 9 Int’l L. Materials 543.
34Bill C-203, an Act to Amend the Territorial Sea and Fishing Zones Act,
ibid., at p. 553 (1970).
35 Arctic Waters Pollution Prevention Act, n. 33 supra, at Sect. 4.
36U.S. Dept. State Release No. 121 (Apr. 15, 1970), which gave as a reason
for the objection the following:
“We are concerned that this action by Canada, if not opposed by us,
would be taken as precedent in other parts of the world for other
unilateral infringements of the freedom of the seas. If Canada had the
right to claim and exercise exclusive pollution and resources jurisdiction
on the high seas, other countries could assert the right to exercise
jurisdiction for other purposes, some reasonable and some not, but all
equally invalid according to international lax*. Merchant shipping would
be severely restricted, and naval mobility would be seriously jeopardized.
The potential for serious international dispute and conflict is obvious.”
Actually, as was pointed out in the Canadian reply to the U.S. Government,
its position is not inconsistent with the development of international solutions
in this area:
“It is well known that Canada takes second place to no nation in
pressing for multilateral solutions to problems of international law, and
No. 4]
EVALUATION OF UNITED STATES OCEANS POLICY
613
acted these measures into law. The very imaginative Canadian action
proved to have a large impact on subsequent international delibera-
tions by focusing attention on, first, the critical interest of the
coastal state in controlling offshore pollution, second, the con-
tinuing utility of the specialized contiguous zone as a means of
that Canada has repeatedly and consistently shown its good faith by its
continuous efforts to produce agreed rules of law. The Canadian Govern-
ment is, however, determined to fulfil its fundamental responsibilities
to the Canadian people and to the international community for the
protection of Canada’s offshore marine environment and its
living
resources, and the proposed legislation is directed to these ends.
The Canadian Government has long been concerned about the inade-
quacies of international law in failing to give the necessary protection
to the marine environment and to ensure the conservation of fisheries
resources. The proposed anti-pollution legislation is based on the overriding
right of self-defence of coastal states to protect
themselves against
grave threats to their environment. Traditional principles of international
law concerning pollution of the sea are based in the main on ensuring
freedom of navigation to shipping states, which are now engaged in
the large scale carriage of oil and other potential pollutants. Such
traditional concepts are of little or no relevance anywhere in the world
if they can be cited as precluding action by a coastal state to protect
this environment. Such concepts are particularly irrelevant, however,
to an area having the unique characteristics of the Arctic, where there
is an intimate relationship between the sea, the ice and the land,
and where the permanent defilement of the environment could occur
and result in the destruction of whole species. It is idle, more-ower,
to talk of freedom of the high seas with respect to an area, large parts
of which are covered with ice throughout the year, other parts of which
are covered with ice most of each year, and where the local inhabitants
use the frozen sea as an extension of the land to travel over it by dogsled
and snowmobile far more than they can use it as water. While the
Canadian Government is determined to open up the Northwest Passage
to safe navigation, it cannot accept the suggestion that the Northwest
Passage constitutes high seas.
In these circumstances the Canadian Government is not prepared to
await the gradual development of international law, either by other
states through their practice nor through the possible development of
rules of law through multilateral treaties. The Canadian Government has
repeatedly made clear that it is fully prepared to participate actively
in multilateral action aimed at producing agreed safety and anti-pollution
standards and protection of the living resources of the sea but is not
prepared to abdicate in the meantime its own primary responsibilities
concerning these questions.”
Summary of Canadian note of April 16, tabled by the Secretary of State
for External Affairs in the House, April 17, (1970), 9 Int’l L. Materials 607,
at pp. 610-611; see also Prime Minister Trudeau’s remarks following the
introduction of the legislation on April 8, 1970, id., at pp. 610-613.
McGILL LAW JOURNAL
[Vol. 17
fulfilling and serving both national and international purposes,
third, the potential inhibition that expanded territorial seas and
contiguous zones could create on free transit through areas now
regarded as high seas or international straits and, fourth, the im-
portance of nationalism as a determinant of international policy.8 7
The reason for the very strong reaction on the part of the
United States to the Canadian offshore proposals became clear
when, on May 23, 1970, President Nixon announced a new United
States oceans policy, in which he proposed a treaty to limit
existing rights of coastal states in their continental shelves to
areas lying under depths of 200 meters and establish international
rdgimes for the areas beyond. The Nixon proposal stated in part:
The issue arises now –
because nations have
grown increasingly conscious of the wealth to be exploited from the
seabeds and throughout the waters above, and because they are also
becoming apprehensive about
the ecological hazards of unregulated
use of the oceans and seabeds. The stark fact is that the law of the
sea is inadequate to meet the needs of modem technology and the
concerns of the international community. If it
is not modernised
multilaterally, unilateral action and international conflict are inevitable.
This is the time, then, for all nations to set about resolving the
basic issue of the future regime for the oceans –
and to resolve it in
a way that redounds to the general benefit in the era of intensive
exploitation that lies ahead. The United States as a major maritime
power and a leader in ocean technology has a special responsibility to
move this effort forward.
and with urgency –
Therefore, I am today proposing that all nations adopt as soon as
possible a treaty under which they would renounce all national claims
over the natural resources of the seabed beyond the point where the
high seas reach a depth of 200 meters (218.8 yards), and would agree
to regard these resources as $he common heritage of mankind.
The treaty should establish an international regime for the exploitation
of seabed resources beyond this limit. The regime should provide for
37See infra, at n. 105 et seq. Some have not viewed the Canadian position
in as favorable a light. In Ratiner, United States Oceans Policy: An Analysis,
(1971), 2 Jour. of Maritime Law and Commerce 225, at p. 2 34 the Canadian action
was characterized as the “staking out [of] bargaining positions.” In Bilder,
The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the
Law of the Sea, (1970), 69 Mich. L. Rev. 1, at p. 30, Canada’s justification of
its action under principles of “self defense” was characterized as “particularly
troublesome and capable of introducing new uncertainties into this already
muddy area of international law.” This is another way of saying, “better an
uncertain and unworkable rule of international law than a workable national
solution.” The merit of the Canadian position has been increasingly evidenced
by the type of criticism that it has drawn. See J. Beesley, Rights and Respon-
sibilities of Arctic Coastal States: The Canadian View, (1971) 3 Journ. Maritime
Law and Commerce 1.
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EVALUATION OF UNITED STATES OCEANS POLICY
615
to be used for inter-
the collection of substantial mineral royalties
national community purposes, particularly economic assistance
to
developing countries. It should also establish general rules to prevent
unreasonable interference with other uses of the ocean, to protect the
ocean from pollution, to assure the integrity of the investment necessary
for such exploitation and to provide for peaceful and compulsory settle-
ment of disputes.
I propose two types of machinery for authorizing exploitation of
seabed resources beyond a depth of 200 meters.
First, I propose that coastal nations act as trustees for the inter-
national community in an international trusteeship zone consisting of
the continental margins beyond a depth of 200 meters off their coasts.
In return, each coastal state would receive a share of the international
revenues from the zone in which it acts as trustee and shall impose
additional taxes if these were deemed desirable.
As a second step, agreed international machinery would authorize
and regulate exploration and use of seabed resources beyond the
continental margins.
The United States will
introduce specific proposals at the next
meeting of the United Nations Seabeds Committee to carry out these
objectives.
It is equally important to assure unfettered and harmonious use of
the oceans as an avenue of commerce and transportation, and as a source
of food. For this reason the United States is currently engaged with other
states in an effort to obtain a new treaty for these purposes. This treaty
would establish a 12-mile limit for territorial seas and provide for free
transit through international straits. It would also accommodate the
problems of developing countries and other nations regarding the con-
servation and use of the living resources of the high seas.38
The means selected by the U.S. Department of State to “introduce
specific proposals”, as announced, were to prepare and present
to the U.N. Seabeds Committee a Draft United Nations Convention
on the International Seabed Area, dated August 3, 1970.38a The
Draft Convention is an imaginative, comprehensive and detailed
document with many novel features. It would reserve to the coastal
state its existing rights only to the 200 meter isobath and would
the adjacent area beyond, designated
give it only such rights in
the “International Seabed Area”, as were expressly authorized. 9
3sWkly. Comp. Presidential Docs., May 25; 1970, at pp. 677-678.
8a U.S. Dept. of State Press Release, No. 229, Aug. 3, 1970; (1970), 9 Int’l
L. Materials 1046; U.N. Doc. A/AC. 138/25, Aug. 3, 1970 (hereinafter referred
to as “Draft Convention”).
39 Draft Convention, arts. 2, 27(1). These provisions would effect an enormous
renunciation of rights which a coastal state could presently claim under the
Convention on the Continental Shelf and under the doctrine of the continental
McGILL LAW JOURNAL
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It calls for the creation of an International Seabed Resource Au-
thority with seabed resource jurisdiction over the entirety of the
International Seabed Area 40 and with the authority to use revenues
therefrom “for the benefit of all mankind, particularly to promote
the economic advancement of developing States, Parties to this
Convention, irrespective of their geographic location”. 41
Administratively,
the Authority would have an International
Seabed Boundary Review Commission
to review and approve
boundaries proposed by each coastal state,42 an Operations Com-
mission to issue licenses for seabed mineral exploration and
shelf. See Krueger, supra, n. 2 at pp. 452, 478 and 481 et seq.; Supplemental
Report National Petroleum Council, Petroleum Resources Under the Ocean
Floor, p. 15 et seq., March, 1971. It appears to have been for this reason that
the drafters of the Draft Convention added the following caveat to Article 2:
(NOTE: The preceding Article is not intended to imply that States do
not currently have rights under, or consistent with, the 1958 Geneva
Convention on the Continental Shelf.)
40 Draft Convention, 19(2) and 23, arts. 13(1). The Draft Convention author-
izes the Authority to license only “mineral deposits” for “exploration and
exploitation” (Art. 13[1]). The fact that it has this power and general
regulatory power for the protection of the marine environment (Art. 23),
however, would clearly seem to give it preemptive authority over the entirety
of the international seabed area and, to a substantial extent, the waters
and resources above. While this element does not appear to have been
stressed by U.S. Department of State representatives in domestic discussions,
U.S. Ambassador Christopher H. Phillips in speaking to the U.N. Seabeds Com-
mittee stated as follows:
“A fourth point raised by some other delegations is, why is the machinery
called “International Seabed Resources Authority” rather than “Inter-
national Seabed Authority”. It is true that the Authority’s function is
broader than resources management but since its functions are primarily
concerned with resources this name seemed more appropriate to us.”
(Emphasis added).
United States Mission Press Release, Geneva, August 28, 1970. See also State-
ment by John R. Stevenson to the U.N. Seabeds Committee, United States
Mission Press Release, Geneva, August 20, 1970. Cf. Auburn, infra, n. 246 at p.
179; Jennings, infra, n. 246 at p. 448.
41Draft Convention, art. 5(1). The Draft Convention also requires that a
portion of the revenues be used
“… to promote efficient, safe and economic exploitation of mineral
resources of the seabed; to promote research on means to protect the
marine environment;
to advance other international efforts designed
to promote safe and efficient use of the marine environment; and to
provide technical assistance to Contracting Parties or their nationals”
(Art. 5(2)).
42 Id., arts. 1(4), 45.
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EVALUATION OF UNITED STATES OCEANS POLICY
617
exploitation 43 and supervise operations, a Rules and Recommended
Practices Commission 44 to propose annexes to the Convention and a
Secretariat comprised of a Secretary-General and staff.45 Politically,
the Authority would be directed by an Assembly consisting of all
contracting parties and a Council consisting of “the six most
industrially advanced Contracting Parties” and 18 others elected
by the Assembly, of which at least 12 would be required to represent
developing countries.4 6 Except for its elective powers and its au-
thority to suggest and recommend, the Assembly would have no
real responsibilities and the Council itself would not be empowered
to act without a majority of both the industrially advanced parties
and the 18 others. The structure proposed in the Draft Convention
also included a Tribunal to determine disputes and advise on legal
matters.48
The Draft Convention would give to the coastal state adminis-
trative control over the issuance of licenses and operations in the
“continental margins” which were indicated as extending probably
to the foot of continental rise and thus encompassing all lands over
which a coastal state could assert jurisdiction and control under the
doctrine of the continental shelf or the Convention on the Continental
Shelf.49 Within this “International Trusteeship Area”, the coastal
state would be authorized to issue “mineral exploration and exploi-
tation licenses” (and keep 331/% to 50% of revenues received
therefrom), determine “the allowable catch of the living resources
of the seabed”, and prescribe operating and conservation measures
with respect thereto so long as the same would be “higher than or in
addition to those required under this Convention”5
43Id., art. 44.
44 Id., art. 43.
451d., arts. 62-64.
46Id., arts. 35, 36.
471d., art. 38. This provision drew fire from a number of the developing
countries and was the subject of a great deal of defensive explanation at
Geneva in August of 1970. See Ambassador Phillips, supra, n. 40.
48Id., arts. 46-60.
49Id., art. 26(1). The seaward boundary is stated as extending “beyond
the base of the continental slope” down to a fixed but yet unspecified gradient.
See Krueger, supra, n. 2 at pp. 471, 478.
oId., art. 27. The ambiguous character of the “trusteeship” zone concept
led to criticism within the U.N. Seabeds Committee, largely by representatives
of developing countries, and to some rather protracted explanations of its
reason for being (Statement by John R. Stevenson, United States Mission
Press Release, Geneva, August 27, 1950). See infra, n. 55.
McGILL LAW JOURNAL
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The Convention specifically noted that:
The United States has simultaneously proposed an international Con-
vention which would, inter alia, fix the boundary between the territorial
sea and the high seas at a maximum distance of 12 nautical miles from
the coast.51
There was a great deal of domestic controversy regarding the
Draft Convention both before and after its presentation to the U.N.
Seabeds Committee.52 It appears for this reason to have been ex-
51 Footnote, art. 1, para. 2.
5 2 In a letter from the chairman and ranking minority member of the
U.S. Senate Committee on Interior and Insular Affairs to Secretary of State,
William P. Rogers, dated July 21, 1970, doubt was expressed that Congress
would ever agree to the financial arrangements contemplated for the coastal
state in the international trusteeship area and concern was expressed over
the “elaborate labyrinth of legal rules and procedures” and “an international
organization potentially so vast as to make the size of the United Nations
pale by comparison.” The Senators concluded that it was “highly unlikely
that other coastal states would be willing to agree to the terms of such
a treaty” and stated their opinion that
“to table such a complicated and unwieldy document.., at Geneva would
seem certain to invite bitter criticism of and embarrassment
to the
United States Government.”
After extensive hearings the Special Subcommittee on Outer Continental
Shelf of the U.S. Senate Committee on Interior and Insular Affairs reported
on December 21, 1970, that it generally supported the Nixon proposal and
then stated:
“Our only areas of initial difference with the President are his suggestions
that the United States should renounce its sovereign rights to its conti-
nental margin in return for similar, but limited rights in an area
designated as a trusteeship zone, and his suggestion that leases applying
to areas of the Continental Shelf beyond the 200-meter isobath be issued
subject to an international regime to be agreed upon.
Regarding the proposal suggesting renunciation of the heart of our
sovereign rights, we have three objections:
(1) The offer to renounce our sovereign rights beyond the 200-meter
isobath could cast a cloud on our present title to the resources of our
continental margin;
(2) The renunciation of our sovereign rights to the resources of our
continental margin beyond the 200-meter isobath in no way guarantees
the willingness of the international community to re-delegate functionally
to us the same rights we would renounce, and
(3) Our sovereign rights to explore and exploit our continental margin,
although reaffirmed by the 1958 Geneva Shelf Convention, are nevertheless
inherent rights which have vested by virtue of the natural extension
beneath the sea of our sovereign land territory. Our sovereign rights
to the resources of this area are not dependent upon the acquiescence
and approval of the international community. To renounce these inherent
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EVALUATION OF UNITED STATES OCEANS POLICY
619
pressly designated as “a working paper for discussion purposes
[which does] not necessarily represent the definitive views of the
United States Government”. 3 While the United States received some
encouragement for its voluminous product, 4 most of the expressed
reaction ranged from the mistrust of some of the developing coun-
to the somewhat studied indifference of the developed
tries r5
rights and to ask that they be returned in part to us merely requests the
international community to give us that which, ipso facto and ab initio,
is rightfully ours to begin with.”
Report on Outer Continental Shelf, at pp. 29-30.
Regarding the Draft Convention it stated:
“The President did not provide any detailed suggestions as to the
type of machinery which could best facilitate such a result. The draft
working paper, on the other hand, proposed the creation of an immense
international agency and very complicated rules related to deep seabed
resource exploration and exploitation. Such an arrangement would seem
to encourage such bureaucratic and pseudo-legalistic obstructions that
rational and equitable use of the wealth of the deep ocean floor would
be deterred rather than encouraged. None of the six alternative proposals
printed as appendices to this report contain such elaborate proposals.
We do not suggest, however, that the U.S. draft working paper is
without merit. It contains some articles worthy of serious consideration.
It also contains unacceptable provisions. It is a document which will
require further study by the Committee on Interior and Insular Affairs,
by the executive departments, and by the concerned public. The Com-
mittee on Interior and Insular Affairs shall resume study of the draft
working paper during the next session of Congress.” Id., at pp. 32-33. See
also Hearings of such Special Subcommittee on Outer Continental Shelf
dated December, 1966, January 22, 1970 and March 4, 1970, regarding
“Issues Related to the Establishment of Seaward Boundary of the United
States Outer Continental Shelf.”
53 The caveat was on the face of the Draft Convention; it also stated that
the Draft Convention and its appendices “raise a number of questions with
respect to which further detailed study is clearly necessary.”
54 India “agreed with many of the basic principles contained in the draft
Convention,” but objected to the concept of a “trusteeship” area. Prov. Sum.
Rec. 34 mtg. A/AC.138/SR.34, at p. 14, (Aug. 13, 1970).
5 E.g.: Malaysia: “The United States draft convention, for all its nine
chapters, 78 articles and 5 appendices, in the final analysis was over-elaborate
and misconceived; one could not see the wood for the trees.” Prov. Sum.
Rec. 33 mtg. A/AC.138/SR.33, at pp. 2-3 (Aug. 11, 1970). Cameroon: “[T]he
International Seabed Resource Authority proposed by the United States
delegation would only be acceptable if it formed an integral part of the
organization and, as such, was responsible for the supervision, regulation,
co-ordination and control of all exploration and exploitation activities …
The United States’ proposals concentrated too much on materialistic aspects
and too little on the ocean floor’s potentiality for peace.” Id., at p. 8.
Kenya: “[Tlhe 200 metres limit suggested by the United States would
McGILL LAW JOURNAL
[Vol. 17
countries.56 The Draft Convention and the issues which it raised
were discussed at length by the Seabeds Committee, but it ad-
journed in late August of 1970 without reaching agreement even
on the principles which should obtain with respect to ocean areas
beyond limits of national jurisdiction.
discriminate against countries, such as Kenya, which had a narrow continental
shelf. The United States proposal to set up a trusteeship area beyond the
200 metres limit, to include the continental slope, was also unacceptable
to his delegation, as that, rather than the deep sea-bed, was precisely the
area rich in petroleum, natural gas, manganese nodules, and so on.” Prov.
Sum. Rec. 35 mtg. A/AC138/SR.35 at p. 3. (Aug. 13, 1970).
Liberia: “…had doubts about the depth of 200 metres proposed for
the limit of sea-bed area under the international regime. His Government
might have objections to make on the granting of trusteeship of coastal States
over any area of the sea-bed or ocean floor beyond the limits of national
jurisriction, whatever limits might eventually be set to that jurisdiction.”
Id., at p. 10.
Chile: “The draft, however, did not fit in with the concept of the
common heritage of mankind as defined by the developing countries …
Furthermore, in its provisions on limits, the draft discriminated against
those countries which did not have a geographical or physical continental
shelf, thereby departing from the criteria laid down by international law
during the past twenty years.” Prov. Sum. Rec. 30 mtg. A/AC.138/SR. 30
at p. 2 (Aug. 5, 1970).
56 E.g.: United Kingdom: “While it was not at present prepared to suggest
any precise formula or figure, his Government had been inclined to favour
a simpler division of the sea-bed between national areas and areas subject
to the international regime, and a reasonably deep limit to national juris-
diction or a combination of depth and width, to give a broad deep limit.
It would also be prepared, however, to consider the United States proposal
for a shallow limit to national jurisdiction and a trusteeship zone beyond
that limit, if that idea appealed generally to members of the Committee.”
Prov. Sum. Rec. 30 mtg. A/AC.138/SR.30 at pp. 8-9 (Aug. 5, 1970).
U.S.S.R.:
“Another important question was that of defining the limits of
national jurisdiction of coastal states. Some delegations had stated that the
problem could only be solved by revising existing regimes applying to the
open sea, territorial waters, the continental shelf and so forth. However,
the proposal that the 1958 Geneva Conventions should be revised had been
opposed by a number of delegations, including the Soviet delegation, which
believed that the foundations on which international co-operation in the
matter now rested should be strengthened rather than undermined … The
establishment of international machinery, which required very careful study,
must be related to the conclusion of an international agreement on a
regime for the exploitation of marine resources. It would be a serious mistake
if such machinery were to be set up in the interests of an international
capitalist consortium rather than of all States.” Id., at pp. 4-5.
Australia:
“A novel feature of the United States paper was the concept
of an intermediate trusteeship zone together with renunciation of national
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EVALUATION OF UNITED STATES OCEANS POLICY
621
Predictably, when the Secretary-General
in 1970 polled the
U.N. Member states to determine their views as to the desirability
of convening at an early date a conference regarding the law of
the sea in accordance with the December, 1969 General Assembly
resolution on the subject,67 the clear majority or the replies appeared
to be in the affirmative, although many, including the United States,
used cautionary language regarding the scope of a future con-
ference or conferences and the preparatory work appropriate
therefor. s The Soviet Union, in particular, took a cautious stand
stating that the answer as to whether a conference is desirable
“… depends first and foremost on the aims and tasks which would
claims beyond the 200-metre isobath, which seemed to offer to the developing
countries the prospect of an early and substantial share of the proceeds of
any mineral exploitation of the outer areas of the continental shelf. The
proposal might perhaps be even more appealing if the suggested depth
limit of 200 metres were to be combined in some way with a distance limit…
For the present, the Australian Government continued to favour a simple
division of the sea-bed, with the area of national jurisdiction extending rather
further than the 200-metre bathymetric contour, and areas beyond being
directly subject to an international regime; it would, however, take note
of the extent to which other ideas such as the proposed trusteeship zone
gained support.” Prov. Sum. Rec. 34 mtg. A/AC.138/SR.34, at p. 17 (Aug. 13,
1970).
57 See supra, n. 24.
5 8 The United States response stated in part:
“The United States Government believes that the outstanding issues
regarding the law of the sea could appropriately be addressed and
resolved at a future Law of the Sea conference or conferences. In this
connexion, it should be noted that the considerations and questions
bearing upon the breadth of the territorial sea are in many respects
different from those bearing upon a sea-bed regime and boundary.
All the outstanding issues are important and require appropriate concen-
tration of effort and attention. The United States Government believes
that the procedures for the resolution of these issues should be structured
so as to assure that each issue receives appropriate attention in a manner
which will facilitate its examination and enhance the opportunity for
agreement.” U.N. Doc. A/7925, July 17, 1970, at pp. 40, 41.
The Canadian response stated in pertinent part:
“The 1958 Geneva Conference on the Law of the Sea resulted in a wide
measure of agreement on many important questions, and the four
conventions adopted at that Conference represent, in the view of the
Canadian Government, a very substantial achievement. The Canadian
Government believes that it would be inadvisable to prejudice this
in those
achievement by reopening all the rules of law embodied
conventions. Rather, the Canadian Government considers that it would
be preferable to attempt to resolve such questions as were not settled
McGILL LAW JOURNAL
[Vol. 17
be given to such a conference and also on the extent of its prepared-
ness for the successful disposal of the items on its agenda” 0 It
then stated that “[t]he Geneva Conventions on the law of the
sea have stood the test of time and shown themselves to offer
a sound basis for the development of international cooperation
[and] the Soviet Union feels that it would not be desirable to
convene a conference to review the regimes established in the…
Conventions”. 0
When the United Nations General Assembly convened for its
25th session late in 1970 there were a number of important de-
velopments regarding oceans policy. With the strong endorsement
of the U.N. First (Political) Committee 0 ‘ the General Assembly
by the conventions or which have emerged since 1958. These include,
in particular, the need to develop agreed rules of law on:
(a) the breadth of the territorial sea;
(b) the nature and extent of jurisdiction of the coastal State over
coastal fisheries;
(c) the rights and duties of States with regard to the conservation
and management of the living resources of the sea;
(d) the rights and duties of States with regard to the* preservation of
the marine environment and the prevention of its pollution and degra.
dation;
(e) the demarcation of the outer limit of the continental shelf; and
(f) the exploration and exploitation of the natural resources of the
sea-bed beyond the limits of national jurisdiction.
In view of the Canadian Government, particular urgency attaches to
resolving those questions relating to the breadth of the territorial sea,
jurisdiction over coastal fisheries, the conservation and management of
the living resources of the sea, and the preservation of the marine environ-
ment. The Canadian Government would favour the convening of an
international conference on these matters as soon as practicable. The
Canadian Government would not object to having such a conference
address itself as well to the question of the delimitation of the outer
limit of the continental shelf if other members of the United Nations
considered this desirable.” U.N. Doc. A/7925/Add.2, at pp. 2-3 (Sept. 10,
1970).
59 U.N. Doc. A/7925, supra, n. 58, at pp. 36, 37.
0 Id., at pp. 36, 38. Similar statements were made by others of the Soviet
Bloc. For further responses, see U.N. Doc. A/7925/Add. 1 (Aug. 27, 1970);
U.N. Doc. A/7925/Add. 2 (Sept. 10, 1970); U.N. Doc. A/7925/Add. 3 (Oct. 1, 1970).
the Report of the
U.N. Seabeds Committee, a report of the Secretary-General on marine pollution
(U.N. Doc. A/7924, June 11, 1970), the report of the Secretary-General on
the desirability of convening a Law of the Sea Conference and the question
of the breadth of the territorial sea (U.N. Doc. A/C.1/998, Sept. 18, 1970).
G’The items allocated to the First Committee were:
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EVALUATION OF UNITED STATES OCEANS POLICY
623
adopted a resolution commending the Treaty on the Prohibition
of the Emplacement of Nuclear and Other Weapons of Mass De-
struction on the Sea-Bed and the Ocean Floor and in the Subsoil
Thereof as drafted and reported by the Conference of the Com-
mittee on Disarmament dated September 11, 1970, and requested
that it be opened for signature and ratification at the earliest
possible date. 2 The proposed treaty would ban the implanting
or emplacement on or in the ocean floor (beyond a 12-mile
coastal belt) of “any nuclear weapons or any other types of
weapons of mass destruction as well as structures, launching
installations or any other facilities specifically designed for storing,
testing or using such weapons”. 63 It would also require parties to
“continue negotiations in good faith concerning further measures
in the field of disarmament for the prevention of an arms race
on the sea-bed, the ocean floor, and, the subsoil thereof”.64
In accordance with the resolution the Treaty was opened for
ratification “at the earliest possible date” 65 and the same has been
ratified by Japan and nineteen other nations; it will enter into
force when ratified by twenty-two governments.66
A second very significant development was that Chairman H.
S. Amerasinghe of the U.N. Seabeds Comnitte had been able to
obtain committee consensus on a Declaration of Principles Govern-
ing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof,
beyond the Limits of National Jurisdiction, and the same was un-
animously approved by the General Assembly.67 The approved prin-
ciples are as follows:
62 U.N. Doe. A/RES/2660 (XXV) (Feb. 9, 1971).
63 Id., Annex para. 1, art. 1, art. 2. It is noteworthy that the proposed Treaty
expressly disclaims any effect with respect to “rights or claims which such
State Party may assert, or with respect to recognition or non-recognition of
rights or claims asserted by any other State, related to waters off its coasts,
including inter alia, territorial seas and contiguous zones, or to the sea-bed
and the ocean floor, including continental shelves.” Id., Annex art. 4.
64 Id., Annex art. 5.
65Id., para. 2.
66 See LXV Dept. of State Bull. No. 1653 (March 1, 1971) – LXV Dept. of
State Bull. No. 1700 (January 24, 1972), passim. The Treaty has also been
signed by 76 countries including the United States and the Soviet Union. Ibid.
The Treaty was approved unanimously in the United States Senate on February
15, 1972. Los Angeles Herald-Examiner, February 16, 1972.
67U.N. Doc. A/RES/2749 (XXV) (Jan. 28, 1971). See Provis. Verbat. Rec.
1933 mtg. (XXV Sess.) U.N. Doc. A/PV.1933, at p. 96 (Dec. 18, 1970); U.N. Doc.
A/AC.1/L.542 (Nov. 25, 1970).
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[Vol. 17
1. The sea-bed and ocean floor, and the subsoil thereof, beyond the
limits of national jurisdiction (hereinafter referred to as the area), as
well as the resources of the area, are the common heritage of mankind;
2. The area shall not be subject to appropriation by any means
by States or persons, natural or juridical, and no State shall claim or
exercise sovereignty or sovereign rights over any part thereof;
3. No State or person, natural or juridical, shall claim, exercise or
acquire rights with respect to the area or its resources incompatible with
the international regime to be established and the principles of this
Declaration;
4. All activities regarding the exploration and exploitation of the
resources of the area and other related activities shall be governed by the
international regime to be established;
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;
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
concerning Friendly Relations and Co-operation among States in accord-
ance 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;
7. The exploration of the area and the exploitation of its resources
shall be carried out for the benefit of mankind as a whole, irrespective
of the geographical location of States, whether land-locked or coastal,
and taking into particular consideration the interests and needs of the
developing countries;
8. The area shall be reserved exclusively for peaceful purposes,
without prejudice to any measures which have been or may be agreed
upon in the context of international negotiations undertaken in the field
of disarmament and which may be applicable to a broader area. One
or more international agreements shall be concluded as soon as possible
in order to implement effectively 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;
9. On the basis of the principles of this Declaration, an international
r6gime applying to the area and its resources and including appropriate
international machinery to give effect to its provisions shall be established
by an international treaty of a universal character, generally agreed upon.
The r6gime 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 ensure the equitable sharing by
States in the benefits derived therefrom, taking into particular consider-
ation the interests and needs of the developing countries, whether land-
locked or coastal;
10. States shall promote international co-operation in scientific research
exclusively for peaceful purposes:
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EVALUATION OF UNITED STATES OCEANS POLICY
625
(a) By participation in international programmes and by encourag-
ing co-operation in scientific research by personnel of different
countries;
(b) Through effective publication of research programmes and
dissemination of the results of research through international
channels;
(c) By co-operation in measures to strengthen research capabilities
of developing countries, including the participation of their
nationals in research programmes.
No such activity shall form the legal basis for any claims with
respect to any part of the area or its resources:
11. With respect to activities in the area and acting in conformity
with the international r6gime to be established, States shall take appro-
priate measures for and shall co-operate in the adoption and imple-
mentation of international rules, standards and procedures for, inter alia:
(a) The 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) The protection and conservation of the natural resources of the
area and the prevention of damage to the flora and fauna of the
marine environment.
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;
13. Nothing herein shall affect:
(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 imminent danger to
their coastline or related interests from pollution or threat
thereof or from other hazardous occurrences resulting from or
caused by any activities in the area, subject to the inter-
national regime to be established;
14. Every State shall have the responsibility to ensure that activities
in the area, including those relating to its resources, whether undertaken
by governmental agencies, or non-governmental entities or persons under
its jurisdiction, or acting on its behalf, shall be carried out in conformity
with the international regime to be established. The same responsibility
applies to international organizations and their members for activities
undertaken by such organizations or on their behalf. Damage caused by
such activities shall entail liability;
15. The parties to any dispute relating to activities in the area and
its resources shall resolve such dispute by the measures mentioned in
McGILL LAW JOURNAL
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Article 33 of the Charter of the United Nations and such procedures
for settling disputes as may be agreed upon in the international rdgime
to be established.68
The adoption of the principles proved to have a significant
effect in putting aside in international discussions the nettlesome
issue of what the controlling principles should be (particularly
whether the ocean should be the “common heritage of mankind”) 09
and raising the level of discussion in the U.N. Seabeds Committee
to the substantive issues of the form and content of the institutions
in which they are to be evidenced. 70
Perhaps the most significant achievement of the twenty-fifth
session of the U.N. General Assembly regarding -the oceans was.
however, the adoption of a resolution calling for a broad scale
conference on the law of the sea. The United States proposed 7 ‘
and the U.N. First Committee strongly endorsed 72 a resolution in-
60 U.N. Doc. A/RES/2479, supra, n. 66.
69 The Soviet Union particularly considered the “common heritage” concept
to be unacceptable. See U.N. Seabeds Com. Rep. (XXIV Sess.) U.N. Doc.
Supp. No. 22 (A/7622) (1969), at pp. 33-34.
70 Following the adoption of the principles by the General Assembly Mr.
Amerasinghe, Chairman of the U.N. Seabeds Committee, stated to the General
Assembly
“With the caution that is customarily reserved for official pronounce-
ments by sovereign States on anything that rises above the level of the
mundane, we may assign varying degrees of significance and validity
to the Declaration, but we can all agree that its conspicuous merit is
its daring originality and that its real virtue is its moral force.
Special attention must be drawn to the concept of the common heritage
of mankind which has, for the first time to my knowledge, been enunciated
in an international document.
The Declaration cannot claim the binding force of a treaty internationally
negociated and accepted, but it is a definite step in that direction and,
no less than the other two Declarations that have been adopted at this
session, it has –
that fervent
element of model authority that is more binding than treaties.” Provis.
if I may adapt the words of Walt Whitman –
Sum. 1933 mtg., supra n. 67 at pp. 99-100.
71 U.N. Doc. A/CI/L. 536, Nov. 18, 1970. The version of the resolution finally
adopted was that submitted by Canada and 24 others, including the United
States. U.N. Doc. A/CI/L. 563 introduced Dec. 15, 1970. See statement by Senator
Clairborne Pell, United States representative in Committee I (Press Release
USUN-177(70), Nov. 26, 1970).
72 The vote on the resolution was 100 to 8 with 6 abstentions. U.N. Doc.
A/RES/8097 (XXV) (Dec. 16, 1970).
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EVALUATION OF UNITED STATES OCEANS POLICY
627
plementing the Secretary-General’s poll regarding the conference,
notwithstanding the active opposition of the Soviet Union and its
bloc.73 Subsequently the same was adopted by the U.N. General
Assembly by vote of 109 to 7 with 6 abstentions. 4 In its final
form the resolution noted “the political and economic realities,
scientific development and rapid technological advances of the last
decade have accentuated the need for early and progressive de-
velopment of the law of the sea, in a framework of close inter-
national co-operation” 6 and “that a new conference on the law
of the sea would have to be carefully prepared to ensure its
success and that the preparatory work ought to start as soon as
possible after the conclusion of the twenty-fifth session of the
General Assembly, drawing on the experience already accumulated
in the Committee on the Peaceful Uses of the Sea-Bed and the
Ocean Floor beyond the Limits of National Jurisdiction and using
fully the opportunity provided by the United Nations Conference
on the Human Environment, to be held in 1972, to further its
work”.7 6 It then stated the decision of the General Assembly to
convene in 1973 “a conference on the law of the sea which would
deal with the establishment of an equitable international regime –
including an international machinery –
for the area and the re-
sources of the sea-bed and the ocean floor, and the subsoil thereof,
beyond the limits of national jurisdiction, a precise definition of
the area, and a broad range of related issues including those con-
cerning the regimes of the high seas, the continental shelf, the
territorial sea (including the question of its breadth and the ques-.
tion of international straits) and contiguous zone, fishing and con-
servation of the living resources of the high seas (including the
question of the preferential rights of coastal States), the preser-
vation of the marine environment (including, inter alia, the preven-
tion of pollution) and scientific research”.7 7 It further stated its
decision to review the reports of the U.N. Seabed Committee (which
was designated the Preparatory Committee for the proposed con-
73 Ist Com. Provis. Verbat. Rec. 1800 rtg. (XXV Sess.) U.N. Doc. A/C.1/PV.
1800 (Dec. 16, 1971) at pp. 85-86.
74Those voting against the measure were Bulgaria, Byelorussian Soviet
Socialist Republic, Czechoslovakia, Hungary, Poland, Ukrainian Soviet Socialist
Republic, Union of Soviet Socialist Republics. Abstaining: Burma, Cuba, Mon-
golia, Romania, Saudi Arabia, Venezuela. Provis. Verbat. Rec., supra n. 67
at p. 98.
75 U.N. Doc. A/RES/2750 (XXV) C. (Jan. 14, 1971) at p. 4.
76 Id., at p. 5.
77 Id., at pp. 5 and 6, para 2.
McGILL LAW JOURNAL
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ference) “with a view to determining the precise agenda of the
conference on the law of the sea, its definitive date, location and
duration, and related arrangements”. 7 The Seabeds Committee was
enlarged by 44 members to be appointed by the Chairman of the
First Committee “in consultation with regional groups and taking
into account equitable geographical representation thereon”,79 mak-
ing the Committee an 86 member group. It was instructed to
prepare in 1971 “draft treaty articles embodying the international
regime –
for the area
including an international machinery –
78Id., at p. 6, para. 3. Paragraph 3 also provides that if the General Assembly
at its 1972 (XXVII) session “determines that the progress of the preparatory
work of the Committee to be insufficient” it may decide to postpone the
conference.
79 Id., at p. 6, para. 5. As of September 28, 1971 only 42 of the new seats
had been filled. These were divided as follows:
Africa …………………………………………………………..
Latin-Am erica …………………………………………….
A sia ………………………………………………………………
Eastern Europe …………………………………………
Western European and Other States ……..
13 m em bers
9 m embers
11 m em bers
3 m embers
6 members
Interview with U.N. Information Service representative Sept. 28, 1971.
In its twenty-sixth (1971) session the United Nations General Assembly noted
“the encouraging progress of the preparatory work of the Committee on the
Peaceful Uses of the Sea-Bed and the Ocean Floor… towards a comprehensive
conference on the law of the sea, in conformity with its mandate contained
in General Assembly resolution 2750 C (XXV)” and decided to add to the
membership of the Committee “China and four other members to be appointed
by the Chairman of the First Committee in consultation with regional groups
with due regard to the interests of under-represented groups”. U.N. Doc.
A/RES/2881 (XXVI) (Jan. 13, 1972). The chairman of the First Committee
subsequently announced the four additional appointments and the Committee
is presently composed of the following 90 Member States:
Afghanistan, Algeria, Argentina, Australia, Austria, Belgium, Bolivia, Brazil,
Bulgaria, Byelorussian Soviet Socialist Republic, Cameroon, Canada, Ceylon,
Chile, China, Colombia, Congo, Cyprus, Czechoslovakia, Denmark, Ecuador,
Egypt, El Salvador, Ethiopia, Fiji, Finland, France, Gabon, Ghana, Greece,
Guatemala, Guinea, Guyana, Hungary, Iceland, India, Indonesia, Iran, Iraq,
Italy, Ivory Coast, Jamaica, Japan, Kenya, Kuwait, Lebanon, Liberia, Libyan
Arab Republic, Madagascar, Malaysia, Mali, Malta, Mauritania, Mauritius,
Mexico, Morocco, Nepal, Netherlands, New Zealand, Nicaragua, Nigeria, Nor-
way, Pakistan, Panama, Peru, Philippines, Poland, Romania, Senegal, Sierra
Leone, Singapore, Somalia, Spain, Sudan, Sweden, Thailand, Trinidad and
Tobago, Tunisia, Turkey, Ukrainian Soviet, Socialist Republic, Union of Soviet
Socialist Republics, United Kingdom of Great Britain and Northern Ireland,
United Republic of Tanzania, United States of America, Uruguay, Venezuela,
Yemen, Yugoslavia, Zaire and Zambia.
Ibid.
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EVALUATION OF UNITED STATES OCEANS POLICY
629
and the resources of the sea-bed and the ocean floor, and the
subsoil thereof, beyond the limits of national jurisdiction, taking
into account the equitable sharing by all States in the benefits to
be derived therefrom, bearing in mind the special interests and
needs of developing countries, whether coastal or land-locked, on
the basis of the Declaration of Principles Governing the Sea-Bed
and the Ocean Floor, and the Subsoil Thereof, beyond the Limits
of National Jurisdiction, and a comprehensive list of subjects and
issues relating to the law of the sea referred to … above, which
should be dealt with by the conference, and draft articles on such
subjects and issues”. 0 Two companion measures calling for re-
ports by the U.N. Secretary-General on the economic effect of sea-
bed development upon onshore resources and the special problems
of land-locked countries passed unanimously.81
The concern of the developing countries over the economic
impact of international development and action was also reflected
in a resolution adopted by the General Assembly with respect to
the proposed 1972 Conference on the Human Environment. The
resolution reaffirmed that the Conference should take into account
“the special needs of development in developing countries” and
recommended the inclusion in the agenda “of one or more specific
items relating to economic and social aspects in order to safeguard
and promote the interest of developing countries with a view to
reconciling the national environmental policies with their national
development plans and priorities”.8 2 Despite the active objection
80 Id., at p. 6, para. 6.
8 1 Prov. Verbat. Rec. 1933 mtg., supra n. 67, at p. 96. A/RES/2750 (XXV) A
(Jan. 14, 1970) noted that seabed resources should “be undertaken in such a
manner as to foster the healthy development of the world economy and
balanced growth of international trade, and to minimize any adverse economic
effects caused by the fluctuation of prices of raw materials resulting from
such activities”, and requested a Secretary-General report to the U.N. Seabeds
Committee for use in “making its recommendations as appropriate to foster
the healthy development of the world economy and balanced growth of inter-
national trade, and to minimize any adverse economic effects caused by the
fluctuation of prices of raw materials resulting from such activities”. A/RES/
2750 (XXV) B noted an earlier report of the United Nations Conference on
Trade and Development dated Jan. 14, 1958 and instructed the Secretary-
General to “supplement that document, in the light of the events which have
occured in the meantime, with a report on the special problems of land-locked
countries relating to the exploration and exploitation of the resources of
the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of
national jurisdiction”.
82 A/RES/2657 (XXV) (Dec. 14, 1970) p. 2, para. 2.
McGILL LAW JOURNAL
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of the United States, Canada and a large number of the developed
countries, the resolution also contains a provision requiring that
preparatory work for the Conference consider “the financing of
possible action in this field with a view to ensuring that additional
resources are provided to developing countries in the context of
the protection of the environment”, s3 The resolution provides an
83Id., para 3. The vote in the General Assembly was 58 to 10 with 28
abstentions with respect to such paragraph. The amended resolution, however,
was adopted unanimously. Provis. Verbat. Rec. 1918th mtg., Gen. Assembly
(XXV) A/PV 1918, at p. 16.
This same trend was very much evident during the twenty-sixth
(1971)
session of the United Nations General Assembly at which it passed a
resolution regarding development and environment upon recommendation
of the Second Committee which recognizes that “aside from environmental
disturbances provoked by human settlements and ecological problems related
to nature itself, pollution of world-wide impact is being caused primarily
by some highly developed countries, as a consequence of their own high
level of improperly planned and inadequately co-ordinated industrial activities,
and that, therefore, the main responsibility for the financing of corrective
measures falls upon those countries” [; and] “that the quality of human
life in the developing countries also depends, in large measure, on the
solution of environmental problems which have their origin in nature and
which are the product of under-development
the general
framework of development planning and the rational management of natural
resources.” U.N. Doc. A/RES/2849 (XXVI), at p. 2. The resolution then recom-
mended that the action plan and action proposals submitted to the U.N.
Conference on the Human Environment “must, inter alia:
itself, within
(a) Respect fully the exercise of permanent sovereignty over natural
resources, as well as the right of each country to exploit its own
resources in accordance with its own priorities and needs and in such
a manner as to avoid producing harmful effects on other countries;
(b), Recognize that no environmental policy should adversely affect the
present or future development possibilities of the developing countries;
(c) Recognize further that the burden of the environmental policies of
the developed countries cannot be transferred, directly or indirectly, to
the developing countries…” Id., at p. 4.
It also contained other extensive provisions providing for the protection
of and assistance to developing countries including a request that the
Secretary-General submit a report “on a scheme of voluntary contributions
which would provide additional financing by the developed countries to the
developing countries for environmental purposes, beyond the resources
already contemplated in the International Development Strategy.” Id., at p. 5.
The resolution was adopted by the Second Committee by a vote of 62 to 4
(the 4 consisting of the United States and some of its usual voting associates)
with 31 abstentions (the Soviet with its bloc and other developed countries).
Rep. 2nd Com., U.N. Doc. A/8577 (Dec. 13, 1971), p. 12. Subsequently President
Nixon proposed the creation of a Voluntary United Nations Fund for the
No. 4]
EVALUATION OF UNITED STATES OCEANS POLICY
631
interesting example of the strength and independence of the de-
veloping countries in the United Nations which today cannot be
blocked, but can be guided and shaped, as it was quite adeptly
shown by the United States and Canada in the case of the law
of the sea conference resolution. 4
For the last few years it has been quite foreseeable that there
would be an international conference or conferences on the entire
spectrum of oceans issues of the type decided upon by the General
Assembly and it has resulted in a spate of national claims for
various forms of contiguous zones being quite obviously made with
future negotiations in mind. Since 1968 the Convention on the
Continental Shelf has been acceded to by ten nations, including
Canada, China, Norway, Spain and Thailand, with a total of 49
nations now having agreed to be bound by it. 5 The clear intent
of nations recently acceding appears to be to strengthen their case
for a broad continental shelf of the type that can be claimed under
this existing Convention. 86 Canada seems to have had a very simi-
lar attitude in promulgating fishery closing lines over areas tra-
ditionally regarded as high seas in the Gulf of St. Lawrence and
the Bay of Fundy on the Atlantic Coast and Queen Charlotte Sound
and Dixon Entrance-Hecate Straight on the Pacific 8 7 on the day
following the adoption of the resolution calling for the 1973 Con-
ference on the law of the sea. As with the Arctic Waters Pollution
Prevention Act,8 however, the purpose of the new closing lines
Environment, with an initial funding goal of $100 million over the first
five years, to provide funding for “environmental functions that are most
likely to be centered in the international community following the U.N.
Conference on the Human Environment (Stockholm) and the question of
organizational and
these
functions.” Press Release USUN-10(72) (Feb. 11, 1972).
financial arrangements
84 Compare the 1969 and 1970 General Assembly action supra, at nn. 24 et
for
the discharge of
seq. and supra, at nn. 61 et seq.
s5 See U.N. Publication, Multilateral Treaties in Respect of Which the
Secretary-General Performs Depository Functions- List of Signatures, Rati-
fications, Accessions, etc. as of December 31, 1968; U.N. Press Release L/T/756
dated Sept. 10, 1971.
86 Ratiner, n. 37, supra. See also Krueger, n. 2, supra, at pp. 471, et seq.
87 See News Release Department of Fisheries and Forestry of Canada,
December 18, 1970.
88 See Canadian Commons Debates, Dec. 18, 1970, p. 2189. At p. 2244 it is said
in the statement of the Canadian Departments of Fisheries and Forestry and
External Affairs as follows:
“The possibility of covening such a conference has been under discussion
in the current session of the United Nations General Assembly and the
McGILL LAW JOURNAL
[Vol. 17
appeared to be one of benign self-regulation pending the establish-
ment of an international regime of fisheries conservation.89
Similarly in the summer of 1971 Iceland announced its intention
to redefine its continental shelf claims so as to extend at least
50 miles from baselines and to establish exclusive fishery rights
in superjacent waters on or before September 1, 1972.00 So, too,
have unilateral territorial sea claims grown. In 1970 Brazil claimed
a territorial sea of 200 miles, thus establishing this r6gime for a
majority of the Latin-American coastal statesY’ The concept of a
Assembly has now resolved-that a conference should be held in 1973. It
is Canada’s hope that there will emerge from that conference a rational
system of fisheries conservation, management and exploitation in the
common interest of all countries, including a clear recognition of the
special rights and responsabilities of coastal states with respect to the
living resources of the sea, and particularly the protection of the Atlantic
and Pacific salmon stocks which are being maintained at considerable
cost by the efforts of coastal states such as Canada and the USA.”
so See supra nn. 36 et seq.
90 Aug. 6 statement by Iceland to U.N. Seabeds Committee, Prov. Sum. Rec.
A/AC.138/SC.II/SR.9 at 3, (Aug. 6, 1971); Report of Iceland to U.N. Seabeds
Committee, Fisheries Jurisdiction in Iceland, 17 (July, 1971). A number of
statements were made during debate in the U.N. Seabeds Committee urging
that Iceland reconsider the decision to establish an exclusive fisheries zone,
notably by the Soviet Union and the United Kingdom. See, e.g., statement
of United Kingdom to U.N. Seabeds Sub-Committee II, Aug. 6, 1971, Prov.
Sum. Rec. A/AC.138/SC.II/SR.9 at p. 45, (Aug. 12, 1971); statement of U.S.S.R.
to U.N. Seabeds Sub-Committee II, Aug. 13, 1971 Prov. Sum. Rec. A/AC.138/SR.
12 at pp. 9-10, (Aug. 17, 1971). The United Kingdom is a particularly large har-
vester of demersal species (Report of Iceland to U.N. Seabeds Committee,
Fisheries Jurisdiction in Iceland, p. 19 [July, 1971] and the United Kingdom
Ministry of Agricultural Fisheries and Foods indicated that it would create a
considerable rise in the prices of cod and haddock. See London Times, Aug. 8,
1971 (“Fish prices threatened by Iceland”).
91 U.N. Food and Agricultural Organization Report, Limits and Status of
the Territorial Sea, Exclusive Fishing Zones, Fishing Conservation Zones and
the Continental Shelf, FAQ Fisheries Circular No. 127 at p. 3 (1971); Los Angeles
Times, Mar. 26, 1970. See Loring, The United States- Peruvian “Fisheries”
Dispute, (1971), 23 Stanford L. Rev. 391, at p. 452. The nations with some type of
200 mile limit include Argentina (200 mile territorial sea declared in 1966),
Brazil (200 mile territorial sea, 1970), Chile (200 mile exclusive zone for living
and non-living resources, 1952), Costa Rica (200 mile fishery conservation zone,
1949), Ecuador (200 mile territorial sea, 1966), El Salvador (200 mile territorial
sea, 1950), Nicaragua (200 mile exclusive fishery zone, 1965), Panama (200
mile territorial sea, 1967), Peru (200 mile exclusive zone for living and non-
living resources, 1947) and Uruguay (200 mile territorial sea, 1969). Limits
and Status, supra at pp. 3-15.
It is also noteworthy that a number of non-Latin-American countries claimed
a contiguous zone for living resource purposes of broad dimensions, including
No. 4J
EVALUATION OF UNITED STATES OCEANS POLICY
633
200 mile territorial sea or a contiguous zone of that breadth for
the purpose of resource conservation and development also began
to find strong support elsewhere. Spain, Yugoslavia and the Peo-
ples’ Republic of China formally stated their support for the 200
mile r6gime in joint statements made with Peru. 2 In the 1971
meetings of the U.N. Seabeds Committee a substantial number of
coastal developing nations, including Algeria, Ceylon, Gabon, Ghana,
Ceylon (fishery conservation zone of 100 miles from the territorial sea, 1957)
Ghana (fishery conservation zone of 100 miles, 1963), India (fishery conserva-
tion zone 100 miles from the territorial sea, 1956), Korea (20-200 miles
exclusive fishery zone, 1952-1954), Pakistan (100 miles from the territorial sea,
1956). Id. Further, at the June 15-19, 1971 meeting of the Organization of African
Unity to the United Nations the Council of Ministers adopted a resolution
stating in pertinent part as follows:
“1. CONFIRMS the inalienable rights of the African countries over the
fishery resources of the continental shelf surrounding Africa, in conformity
with the spirit and principle of the Charter of the United Nations and the
Charter of the Organization of African Unity;
2. URGES the governments of the African countries to take all necessary
steps to proceed rapidly to extend their sovereignty over the resources
of the high seas adjacent to their territorial water and up to the limits
of their continental shelf;
3. CONFIRMS that the exploitation of fishery resources in the fishing
areas thus defined for each country shall always be conducted in accord-
ance with its national laws and regulations;
4. URGES the governments of the African countries to promote among
themselves a policy of co-operation as regards the development of fisheries,
in order to increase the participation of African States in the exploitation
of maritime resources surrounding Africa.”
Resolutions and Declarations of Seventeenth Ordinary Session of Council
of Ministers, CM/Res. 250 (XVII).
A similar recommendation was made by the Sub-Committee on the Law
of the Sea of the Asian-African Legal Consultative Committee meeting at
its Twelfth Session, January 18-27, 1971. The report of the Sub-Committee
there stated:
“The majority of Delegations indicated that State had the right to claim
certain exclusive rights to economic exploitation of the resources in the
waters adjacent to the territorial sea in a zone the maximum breadth
of which should be subject to negotiation. Most Delegations felt able to
accept twelve miles as the breadth of the territorial sea, while supporting,
in principle, the right of a coastal State to claim exclusive jurisdiction
over an adjacent zone for economic purposes.”
Doc. No. 2 (XXII) Prov. at p. 2; U.N. Doc. A/AC 138/34 (April 30, 1971), at
p. 7; Accord: Latin-American meeting, infra n. 104.
92 Statement of Peru to U.N. Seabeds Committee, Aug. 18, 1971, Prov. Sum.
Rec. A/AC.138/SR.65 at p. 4 (Aug. 20, 1970).
McGILL LAW JOURNAL
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Indonesia, Kenya, Mauritania, Nigeria and Yemen, supported the
concept of a 200 mile contiguous zone for controlling resources
of either or both the seabed and superjacent waters, the same
being termed variously “intermediate zone”, “patrimonial sea” and
“economic zone”. 93
This contemporary history shows quite graphically and dra-
matically the sense of urgency that exists in the United States and
the world community for the review and reappraisal of established
rules of order for the oceans in the context of the needs and goals
of today and the foreseeable future. The stage has thus been set
and the mechanisms established for multilateral negotiations on
all major oceans issues. An examination of factors influencing
policy decisions in this area should, then, suggest some areas of
predictable agreement and disagreement.
93 Algeria, Prov. Sum. Rec. A/AC.138/SR.65 at p. 11 (Aug. 18, 1971) (territorial
sea); Ceylon, Prov. Sum. Rec. A/AC.138/SC.I/SR.11 at p. 25 (Aug. 4, 1971) (non-
living resources); Gabon, Prov. Sum. Rec. A/AC.138/SC.I/SR.11 at p. 13, (Aug. 4,
1971) (continental shelf); Ghana, Prov. Sum. Rec. A/AC.138/SC.I/SR22 at p. 3,
(Aug. 18, 1971) (living and non-living resources); Indonesia, Prov. Sum. Rec.
A/AC.138/SC.I/SR.16 at p. 4, (Aug. 9, 1971) (non-living resources); Kenya, Prov.
Sum. Rec. A/AC.138/SC.II/SR.8 at p. 11 (Aug. 5, 1971) (living and non-living re-
sources); Mauritania, Prov. Sum. Rec. A/AC.138/SC.II/SR.11 at p. 5 (Aug. 13,
1971) (non-living resources); Nigeria, Prov. Sum. Rec. A/AC.138/SC.II/SR.7 at
p. 2, (Aug. 3, 1971) (non-living resources); Venezuela, Prov. Sum. Rec. A/AC.138/
SR.64 at p. 3, (Aug. 13, 1971) (living and non-living resources); Yemen Arab
Republic, Prov. Sum. Rec. A/AC.138/SR.65 at p. 14, (Aug. 20, 1971).
Other nations also supported the concept of some type of contiguous zone,
although not necessarily of 200 miles: Australia, Prov. Sum. Rec. A/AC.138/SC.
II/SR.6 (July 30, 1971) (fishing and pollution controls); Ivory Coast, Prov. Sum.
Rec. A/AC.138/SC.II/SR.12 at p. 3 (Aug. 17, 1971) (conservation of biological re-
sources); Tanzania, Prov. Sum. Rec. A/AC.138/SC.II/SR.13 at p. 10 (Aug. 17,
1971) (fishing controls).
Malta in a Draft Ocean Space Treaty submitted as a working paper at the
U. N. Seabeds Committee recommended a contiguous zone for coastal state
jurisdiction of 200 nautical miles, termed “national ocean space”, in which the
coastal state would have authority to manage all natural resources. See U.N.
Doc A/AC.138/53, August 23, 1971, arts. 36, 57-61. The 200 mile figure appears
to have been arrived at by a compromise based purely on considerations of
national interest. In a March 23, 1971, statement to the U. N. Seabeds Com-
mittee Dr. Arvid Pardo of Malta noted that a total of 65 states could, if they
desired, extend their jurisdiction to 150 miles from the coast, while a total
of 38 states could extend their jurisdiction to 300 miles. He then concludes:
“On the other hand we note that the majority of coastal States cannot
extend their jurisdiction beyond 230 to 270 miles from the coast and that
claims of coastal State jurisdiction much beyond 200 miles from the coast
are rare and usually of an indirect nature. Thus the maximum limit of
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EVALUATION OF UNITED STATES OCEANS POLICY
635
II. An Evaluation of U.S. Oceans Policy
A. Policy Considerations
1. General
Man has long regarded the seas as he has the rest of the
environment, a thing to dominate and subdue.9 4 This drive or
instinct has manifested
itself variously, but consistently, on a
national level in claims for closed seas, territorial seas and more
recently in contiguous zones for specialized purposes, such as the
development of natural resources in the continental shelf.95 Tra-
ditionally these claims of national interest were made and chal-
lenged only by the few great powers of the world. With the massive
growth of nationalism, the world’s population, and ocean resource
coastal State jurisdiction which need be suggested is somewhere between
200 and 270 miles from the coast. Taking into account the general interest
of the international community to keep the widest possible area of ocean
space open to the non-discriminatory access of all, and the fact that some
coastal States have already proclaimed that their jurisdiction extends to
200 miles from their coasts, my delegation has come to the reluctant
conclusion that, to avoid prolonged debate and haggling, it has become
necessary to establish a distance of 200 miles from the nearest coast as
the outer limit of coastal State jurisdiction in ocean space.” Statement
pp. 41-43.
A current head count for the U.S. Senate Committee on Interior and Insular
Affairs indicates that twenty-nine countries have expressed support for a
200-mile national jurisdictional limit over either mineral resources, fishery
resources or both and that an additional thirteen countries seem inclined
toward a broad limit. See The Law of the Sea Crisis, A Staff Report on the
United Nations Seabeds Committee, the Outer Continental Shelf and Marine
Mineral Development, 92nd Cong., Ist Sess. (December 1971), at p. 5.
94 It
is said in Genesis 1:28:
“And God said unto them, Be fruitful, and multiply, and replenish the earth
and subdue it; and have dominion over the fish of the sea, and over the
fowl of the air, and over every living thing that moveth upon the earth.”
George Washington noted in a 1783 letter to Chevalier de Castellux:
“I could not help taking a more extensive view of the vast inland navigation
of these United States and could not but be struck by the immense extent
and importance of it, and with the goodness of that Providence, which
has dealt its favors to us with so profuse a hand. Would to God we had
wisdom enough to improve them.” Payne, The Canal Builders, (MacMillan:
1970), at p. 140.
President James K. Polk in 1847 advocated a waterway uniting the Pacific
and the Atlantic with the comment: “Rend America asunder and unite the
binding sea!” Payne, The Canal Builders, at p. 161.
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technology with its concomitant exploitation of ocean resources
and impingement upon the quality of the oceans, the oceans are
at last brought into focus as a global interest of enormous and
oxymoronic dimensions and challenges. The oceans are our cesspools,
our larder, the reservoir of the earth’s water, a nature preserve,
our junkyard, the storage bin of minerals and chemicals, a future
habitat, the creator and conditioner of atmosphere and environ-
ment, a source of air and water transportation, a place of recreation
and environmental quality, and finally, an ambient, invaluable and
unique common meeting ground for the nations of the world. Man
will probably never have a last frontier as long as he permits
himself to remain alive to seek another. In the sense of global
life, however, the oceans are that.
If the world community acts intelligently and imaginatively
regarding the oceans, this and future generations can use, enjoy
and profit from their resources and qualities, perhaps even to an
enhanced degree. If we do not act in this fashion, if we continue
to regard the oceans and their resources as assets, as things,
to be taken or exploited as we have in the past, the various nations
can in their separate ways diminish, even cripple, the resource and
environmental dynamics of the oceans and leave future generations
not a cornucopia, but a wasted and polluted vessel. It would take
95 See Fulton, The Sovereignty of the Sea, (1911), pp. 5 et seq., pp. 338 et seq.,
and passim; Auguste, Continental Shelf, (1960), pp. 38 et seq., Report Special
Subcommittee on Outer Continental Shelf, supra n. 52; Cf. McDougal, The
Hydrogen Bomb Tests and the International Law of the Sea, (1955), 49 AJ.I.L.
356; Background Material on the Juridical Aspects of the Continental Shelf
and Marine Waters, Pan Am. Union Doc. 2, SG-2, March 3, 1956, at p. 8, and
passim. See also, Ardrey, The Territorial Imperative, (Atheneum: 1968),
in
which it is said at pp. 334-335:
“Identity, stimulation, security: if again you will think of them in terms of
their opposites their images will be sharpened. Identity is the opposite of
anonymity. Stimulation is the opposite of boredom. Security is the oppo-
site of anxiety. We shun anonymity, dread boredom, seek to dispel anxiety.
We grasp at identification, yearn for stimulation, conserve or gain security.
(at pp. 336-337).
As we may understand the popularity of human war, we may understand
the popularity of territory. There are few institutions, animal or human,
that satisfy all three needs at once. Besides the security and the stimulation
of border quarrels which it provides with equivalent largesse among spe-
cies, it provides identity. ‘This place is mine; I am of this place’, says the
albatross, the patas monkey, the green sunfish, the Spaniard, the great
horned owl, the wolf, the Venetian, the prairie dog, the three-spined
stickleback, the Scotsman, the skua, the man from La Crosse, Wisconsin,
the Alsatian, the little-ringed plover, the Argentine, the lungfish, the lion,
the Chinook salmon, the Parisian.”
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EVALUATION OF UNITED STATES OCEANS POLICY
637
work, but as we have seen in the case of Lake Erie and the Blue
Whale, it can be done. 0
It is, therefore, entirely appropriate and necessary that the
world community work toward establishing a management system
for the oceans that will permit this and future generations to make
a beneficial multiple use of them. It should be emphasized that
it is essentially a resource management system for the oceans
toward which the world community has been working, in a true
sense groping. Any analysis of oceans policy, therefore, must be
considered in this perspective and in view of the ultimate goal of
effecting a system that will give appropriate recognition to national
(and in U.S. federal context, state) and international interests in
environmental quality generally and in particular, beneficial uses,
amenities and resources of the oceans. The essentials are simple:
1. Existing resources, uses and amenities and the various ele-
ments impinging upon them should be identified and inventoried.
2. Criteria should be developed to evaluate and identify bene-
ficial and detrimental aspects of resources, uses and amenities.
3. Decision-making machinery should be created to weigh and
determine priorities among and conditions upon resources, uses
and amenities on the basis of the established criteria. In this re-
gard it should be emphasized that the “mix” of priorities will vary
in the context of a particular area, a particular resource, use or
amenity, the particular conditions and the particular time. An oil
and gas lease that may be appropriate for offshore Tanzania or
Louisiana might be inappropriate for the Riveria or the Santa
Barbara Channel.
4. A plan should be prepared incorporating such criteria.
5. A system should be established which will effectively imple-
ment the plan.
While the essentials of an oceans management system are simple,
however, the creation of one is an incredibly complex and difficult
task. The major obstacle and a major determinent in deliberations
on the subject is that of self-interest, in some respects unenlightened
self-interest.
The United States, particularly those individuals within the
Department of State that have been responsible for developing
oceans policy, deserves a great deal of credit for initiating and
pursuing international negotiations to explore the parameters of
00 See Marx, The Frail Ocean, (Coward-McCann: 1966), at pp. 8, 54, 64, 74.
et seq.
McGILL LAW JOURNAL
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agreement and disagreement of the various nations of the world,
a necessary prelude to the formulation of new rules and regimes.
Those who would seek to delay the commencement of international
deliberation “until we know more about the oceans” ignore the
course of human conduct regarding the environment.7 Man has
destroyed many things that he knew nothing or little about. In-
deed, it has been his ignorance that has perhaps made his destruc-
tion so facile. We must protect the oceans while we learn about
them.
Further, it is quite clear that the management system for the
world’s oceans must encompass all resource and user aspects of
them and a reevaluation of all existing laws and conventions. Since
this broad issue surfaced several years ago a number of rather
disparate institutions, such as the American Bar Association and
the Soviet Union, have gone on record as supporting the status quo
established by the 1958 Geneva Conventions. s As attractive as the
U.S.S.R. – A.B.A. backing may be, however, the Conventions and
concepts of customary international law have shown that they are
not capable of providing the requisite international management
system for the oceans. 9
It was, therefore, entirely appropriate that the United Nations
General Assembly adopted its resolution calling for a 1973 con-
ference on virtually every policy issue affecting the oceans, 100 their
resources and their management.
It would at first blush appear to be desirable to separate the
broad issues involved into “manageable packages” and deal with
97This concept has at times received support from a number of sources.
See, Report of the National Petroleum Council, Petroleum Resources Under
the Ocean Floor, (1969) at p. 77. See also Joint Report of Sects. of Nat. Res.
Law, Int’l and Comp. Law and Standing Comm. on Peace and Law Through
U.N., A.B.A., (Aug. 7, 1968) infra n. 98.
98 U.N. Doc. A/7925, supra n. 60. An A.B.A. Resolution adopted August 7, 1968
((1969), 2 Nat. Res. Lawyer at pp. 96-97) urged that “the interests of the United
States… be protected to the full extent permitted by the 1958 Convention
Shelf”. Recently, however, there has been a growing recognition that existing
regimes do not comprise a practicable plan of management for the oceans.
See Report of the Deep-Sea Mining Committee of the International Law Asso-
ciation (1970) at pp. 14-15.
99 See statement by Senator Claiborne Pell in U.N. Committee I, Press
Release USUN-177(70), Nov. 26, 1970, at pp. 4-5; Int’l Law Ass’n Report, op. cit.,
n. 97.
100 See supra n. 77.
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EVALUATION OF UNITED STATES OCEANS POLICY
639
them sequentially.’0′ So many of the issues are interconnected,
however, and in such varying and different degrees that it may
prove quite difficult to remove the major ones from the critical
mass of issues and trade-offs that provide the incentive for in-
ternational agreement. It is difficult to divorce the issue of the
limits of national jurisdiction from the issue of the regime be-
yond.10 2 It is, similarly, difficult to consider the issue of the limits
of national jurisdiction separate from the issue of the question
of the breadth of the territorial sea and the use of international
straits. 0 3 This is particularly true of the Latin American states,
to whom the issues of the territorial sea, the continental shelf, and
the contiguous zone for the conservation of living resources are
interrelated in varying degrees.’
1o0 Statement of John Stevenson, The Legal Adviser to U.S. Dept. of State,
Dept. of State Press Release No. 49, Feb. 18, 1970.
102 Statement by W. D. Jamieson, U.K. Representative to the U.N. First
Committee on Dec. 15, 1970, U.K. Mission to the U.N. Press Release No. 107,
Dec. 15, 1970.
103 Ibid.
04 In the Latin-American meeting on “Aspects of the Law of the Sea” held
1
in Lima, Peru on August 4-8, 1970, 20 Latin-American nations adopted the
following declaration and resolutions, inter alia:
“Considering:
That there is a geographical, economic and social link between the sea,
the land, and man who inhabits it, which confers on coastal populations
a legitimate priority right to utilize the natural resources of their maritime
environment;
That, in consequence of that priority relationship, the right has been
recognized of coastal States to establish the extent of their maritime
sovereignty or jurisdiction in accordance with reasonable criteria, having
regard to their geographical, geological and biological situation and their
socio-economic needs and responsibilities;
DECLARES as common principles of the law of the sea:
1. The inherent right of the coastal State to explore, conserve and exploit
the natural resources of the sea adjacent to its coasts and the soil and
subsoil thereof, as well as of the continental shelf and its subsoil, in order
to promote the maximum development of its economy and raise the level
of living of its people;
2. The right of the coastal State to establish the limits of its maritime
sovereignty or jurisdiction in accordance with reasonable criteria, having
regard to its geographical, geological and biological characteristics and
the need to make rational use of its resources;
3. The right of the coastal State to adopt regulatory measures for the
aforementioned purposes, applicable in the areas of its maritime sover-
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2. Nationalism – A Major Determinant
One element in international deliberations must be emphasized:
that of nationalism. Despite the logic of establishing global insti-
tutions to cope with global problems, it is a hard fact that they
can be established only in the political context of nationalism
which remains a strong and viable force among both developed
and developing countries, many of the latter of which have only
recently received their much coveted independence and “vote”. To
be feasible, therefore, any proposed global institution should be
structured so as to give recognition to national interests and
afford fair representation by all nations in the decision-making
process. Such interests can be tempered to the extent necessary
eignty or jurisdiction, without prejudice to freedom of navigation and
flight in transit of ships and aircraft, irrespective of flag.”
U.N. Doc. REDEMAR/35, August 8, 1970; U.N. Press Release NV!198, October
20, 1970.
In December of 1970 Peru (Mr. Schreiber) stated to the U.N. First Com-
mittee:
“[Tlhere is a growing awareness of three very important conclusions.
First, that the concept of the territorial sea limited by the range of weapons
(a fairly arbitrary concept based on force as a justification of the law) has
been enriched by more reasonable criteria: that of the preservation of the
marine environment and the utilization on a priority basis of its resources
for the benefit and well-being of the coastal populations. In other words,
instead of the requirements of military defence we have added the concepts
of ecological and economic defence, in addition to considerations relating to
the necessary customs, police, sanitary, fiscal, immigration control and so on.
Secondly, that the narrow limits of the territorial sea, set in the eighteenth
century at the range of a cannon, fall short of meeting the responsibilities of
the coastal States derived from the foregoing factors.
Thirdly, that these limits should be broadened, taking account of the geo-
graphical characteristics, the geological, ecological and other conditions and
the social and economic needs and responsibilities of the respective coastal
States.
Those who do not wish to accept these conclusions and cling to old rules –
which were never universal –
and who responded to the interests of their
commercial enterprises in an area of colonial domination, act as if the realities
of yesteryear were the same as those of today, and the changes that have
occurred both in the political and economic fieds, as well as in the scientific
and technological fields, do not matter to them a bit, and they pretend to
ignore the fact that nations, which were formerly subjugated, have emerged
to independent life and are determined to defend their rights because they
know that otherwise they would not be able to ensure the well-being of their
peoples.” Provis. Verbat. Rec. 1738 mtg. U.N. First Com., U.N. Doc. A/C.1/PV.
1788 (Dec 8, 1970) at pp. 12-13.
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EVALUATION OF UNITED STATES OCEANS POLICY
641
to achieve a uniform international policy and the representation
can be by classes or regions, but only to the extent that it is politically
acceptable.
10 5
Among the national interests that should (indeed must, it
uniform solutions are to be provided) be given recognition are
those of coastal nations in offshore resources and uses with respect
to which they have a functional interrelationship, whether it be
economic, geographic, geologic, biologic or ecologic.10 6 Many of the
Latin American states make a valid point in asserting rights to
offshore resources beyond the accepted territorial sea and conti-
nental shelf.10 7 One may question the dimension of their claims,
the extent of the rights asserted and the propriety of the claims
viewed in light of existing customary international law, but it is
difficult to deny the nexus between many of these states and certain
of the offshore resources involved, which gives rise to and evidences
the intrinsic validity of the national interest shown by them.0 8
The geographical proximity of the Humboldt Current to Peru
and the economic dependence which it has on its living resources
is functionally little different than that of Norway to its fjords
which was first nationally asserted, then judicially recognized, then
into international convention. 0 9 Nor is Canada’s
incorporated
geographic proximity to the Arctic and the ecological commonality
which gave rise to its recent Arctic Waters Pollution Prevention Act
greatly different from the geographic and resource considerations
105 See infra n. 241 et seq.
I’M See supra, nn. 91 and 104.
107 Franklin, The Law of the Sea: Some Recent Developments (With Particu-
lar Reference to the United Nations Conference in 1958), (1961), 53 Nay. War
Coll. Bi. Bk. Ser. 16, at pp. 51 et seq.; Auguste, op. cit., n. 95.
10S Ibid. Cf. Kunz, Continental Shelf and International Law: Confusion and
Abuse, (1956), 50 Amer. 1. of Int’l L. 828, at p. 849.
09 In United Kingdom v. Norway, [1951] I.CJ. 116, it was held that Norway
could properly draw a straight baseline along its “skjaergaard”, the islands,
rocks and ramparts along the Norwegian coastline which extend as far as
45 miles apart. The Court commented that the solution was “dictated by
geographic realities” and stated that
“[t]he real question raised in the choice of base-lines is in effect whether
certain sea areas lying within these lines are sufficiently closely linked
to the land domain to be subject to the regime of internal waters” (At
p. 133).
The Court emphasized the long and historical economic nexus between off-
shore fisheries and the Norwegian people and concluded that with due regard
to the peculiar situation presented
“…. it may be that several lines can be envisaged. In such cases the coastal
McGILL LAW JOURNAL
[Vol. 17
State would seem to be in the best position to appraise the local conditions
dictating the selection” (At p. 131).
Later the principles of the case were incorporated in Article 4 of the 1957
Convention on the Territorial Sea and Contiguous Zone.
Compare the physical and economic situation of Peru as described by its
representative to the Sixth Committee of the United Nations General Assem-
bly, Eleventh (1956) Session:
“The sea off the coast of Peru has certain peculiar and unique character-
istics which are determined by the Peruvian Humboldt current. This
current flows along the coast of Peru, Chile and Ecuador; it is the largest
cold-water current and as it wells up from the depths of the sea it brings
with it the detritus carried down by the rivers.
is Peru’s underlying motivation:
Owing to the occurrence of these circumstances, Peru depends for its
food supply mainly on the sea, that is to say directly on fish and indi-
rectly from guano which is essential to the farmers in the small coastal
valleys. This
the close relationship
between man, the mainland and the sea in a particular country where
the ecology is such that the biological balance must not be upset …. The
protection and utilization of these resources, which are essential to the
nation’s livelihood, were the fundamental reasons for the action by Peru
and for similar action by many other countries.” U.N. Doc. A/Conf. 13/9
(1956).
The purpose of Peru in proclaiming a 200 mile maritime zone (see Auguste,
op. cit., n. 95, at p. 130) were stated as follows:
“Had we merely proclaimed sovereignty over the submarine platform
and, the epicontinental superjacent sea, we should have failed to protect
our fisheries, which were at that time-in jeopardy. Nor would they have
been adequately protected by the mere assertion of a right to establish
at a later date conservation zones on the high seas later, as the United
States proclamation did. Peru, perhaps more than the States who proceded
it with their proclamations, had reasons for wishing to find a speedy
and clear-cut solution for its problem without awaiting the slow and
perhaps unobtainable consent of the international community, and a
solution so expressed that it could take immediate action against the
intrusion of the foreign fishing fleets which were threatening the economic
interests of our country.” E. Garcia Sayan, Notes on the Maritime Sover-
eignty of Peru (Geneva, 1958), at p. 3.
Compare the position of the Canadian Government, supra, nn.36-37. It is
clear that at the time of the Peruvian declaration enormous fishery takings
were occuring in the areas covered by the declaration which detrimentally
affected some fish stocks. See Loring, supra n. 91, at pp. 414 et seq., statement
of W. M. Chapman, (Director of Research, American Tunaboat Association),
Hrgs. before Comm. on Interior and Insular Affairs, U.S. Sen. 83rd Cong.,
1st Sess. on S. 1901, Washington 1953, pp. 373-382; Auguste, op. cit., n. 41, at
pp. 264 et seq. See also McDougall & Burke, The Public Order of The Oceans,
(1962), at pp. 305419.
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EVALUATION OF UNITED STATES OCEANS POLICY
643
which gave rise to the 1945 Truman Proclamation and, again, the
institutionalization of the national claim made therein’ 10 The
Canadian claim would appear to be an a fortiori situation for
propriety with due regard to the fact that it is an interim measure
to protect natural resources, rather than a claim to permit their
exploitation, as was the Truman Proclamation.”‘ Even within the
context of our own country’s federal-state relationship, examples
exist. The natural nexus between California and offshore areas
located between the mainland and the Channel Islands, such as
the San Pedro and Santa Barbara Channels, is direct and observable,
notwithstanding the fact that they are in international waters
overlying lands under federal jurisdiction.”2
The established rdgimes of the ocean, the territorial sea, the
“freedom of the seas” to navigate, fish and fly and the more recent
110 The analogy to the 1945 Truman Proclamation has not been overlooked
by Canada, see L. H. J. Legault (Legal Division, Canadian Department of
External Affairs), The Freedom of the Seas: A License to Pollute, Int’l L. Ass’n.
[Canada] Symposium, September 8-11, 1970 (inadequacy of existing laws dis-
cussed); 114 Canadian House of Commons Debates, April 16, 1970, No. 103, at
pp. 5944, 5945; n. 1 supra, Canadian note of April 16, 1970, op. cit., n. 36. Cf.
Bilder, supra, n. 37 at p. 26.
111 See Krueger, supra, n. 2 at pp. 464 et seq.; n. 36, supra.
112 At its December 4-5, 1970 meeting, the California Advisory Commission on
Marine and Coastal Resources referred to proposed federal coastal zone man-
agement legislation, and noted that:
“the [California] Marine Resources Conservation and Development Act of
1967 requires that the Comprehensive Ocean Area Plan (“COAP”) encom-
pass areas between the Channel Islands and the mainland which have a
functional interrelationship to them, such as the Santa Barbara Channel
and San Pedro …. ”
The California Commission then recommended that:
“federal coastal zone management legislation should authorise the inclusion
in the defined coastal zone of any lands under federal jurisdiction and
control where the administering federal agency determines them to have
a functional interrelationship from an economic, social or geographic
standpoint with lands within the territorial sea. Any such inclusion, how-
ever, should not convey, release or diminish any rights reserved or pos-
sessed by the Federal Government under the Submerged Lands Act or the
Outer Continental Shelf Lands Act and should be subject to reasonable
conditions imposed to protect the national interest in defense and national
interest in defense and national security.” Proceedings, Dec. 4-5, 1970 Mtg.
See House Committee on Merchant Marine and Fisheries, Subcom. on
Oceanog., Hrgs., “Coastal Zone Management Conference”, H.R. Rep. No. 91-14
(Oct. 28-29, 1969), at pp. 195 et seq.; Senate Committee on Commerce, Subcom.
on Oceanog., Hrgs., “Federal Oceanic and Atmospheric Organization”, 91st
Cong. (Mar., Apr. and May, 1970), at pp. 1260 et seq.
McGILL LAW JOURNAL
[Vol. 17
doctrine of the continental shelf, will also have to be given
recognition in any new proposed global institution. This need will
exist not because of the frequently expressed fealty which the
world community owes to many of these rules because of their
long-standing and general observance. 113 They are rules and they
can be changed –
the evolution of international law is replete with
examples of this mutability.” 4 The need for recognition will rather
arise from the political reality that there is wide-spread and strong
national support for these rdgimes. In the case of the territorial sea,
for example, there is, again, present the functional nexus between
the coastal state and the offshore area for a variety of purposes. 11
The “freedom of the seas” evolved from the need of the powers of
the world to freely travel the oceans, exploit their resources and
contest one another there.”” The great powers still want these
rights and any workable global institution for the ocean must give
recognition to them. Such recognition does not, however, mean that
these rights and the basis therefor should not be critically examined
in the context of the present-day needs and goals of the world
community and appropriately tempered. It is a fact and one well
known to the developing countries of the world that the “freedom
of the seas” and at least initially, the doctrine of the continental
shelf, were rdgimes created by the developed countries and princi-
pally used by them for their convenience and benefit.” 7 The inde-
pendent point of view of the developing countries has and should
continue to serve a therapeutic purpose in achieving adjustments
in established international regimes that serve to reduce the possi-
bility of international conflicts.” 8
113 See supra n. 60. See generally L. Oppenheim, International Law, A Trea-
tise, at pp. 24-27, 581-587, H. Lauterpacht ed. (8th ed., 1955).
1″4 See Fulton, op. cit., n. 95; Report Special Committee on Outer Continental
Shelf, supra n. 52.
1″ See United States v. California, 332 U.S. 19 (1947), at p. 32; Fulton, op.
cit., n. 95, at pp. 576 et seq; McDougal and Burke, op. cit., n. 110, at pp.
176-179; Judgment of The Anglo-Norwegian Fisheries Case [1951] I.C.S. Rep. 116.
116 Report on Outer Continental Shelf, op. cit., n. 52, at pp. 30-33; L. Oppen-
heim, op. cit., n. 113, at pp. 593-594; see Opening Statement of Arthur Dean
(U. S. Representative) at Geneva Law of the Sea Conference, Mar. 11, 1958:
38 Dept. of State Bull. 574, at pp. 576-579; see generally, R. Palmer, A History
of the Modern World (2nd ed., 1962), at pp. 396, 512, 674-675. See also Franklin,
op. cit., n. 107, at pp. 115 et seq.; McDougall and Burke, op. cit., n. 110, at
p. 561.
“17U.N. First Committee Prov. Summ. Rec., Nov. 6 – Dec. 16, 1970, passim;
see also Legault, op. cit., n. 110.
11s See supra at n. 84.
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EVALUATION OF UNITED STATES OCEANS POLICY
645
It
is quite apparent that national security requirements are
important considerations for the great powers, particularly the
United States and the Soviet Union. The ability to freely travel
the world’s oceans and its numerous straits by ship, submarine
and air is of obvious importance to them.119 In evaluating the
priority that national security interests should receive in estab-
lishing a management system for the world’s oceans, however, the
long-range significance of confirming an absolute right of free
transit should be weighed in terms of its necessity and worth
and its cost as reflected by any concessions with respect to other
relevant national interests that may be involved.
An expansion of the accepted limits of territorial sea to 12 miles
as proposed by the United States 120 would close many important
straits now regarded in part as high seas and the U.S. concern for
the maintenance of free transit for military and non-military pur-
poses through them is valid. A right of “innocent passage”, as the
same now exists with respect to the territorial sea, would not be
110 See Statement of Robert A. Frosch, Assistant Secretary of the Navy
for Research and Development, Hrgs. Before Subcom. on Ocean Space of the
Com. on For. Relations, U.S. Senate 91st Cong., Ist Sess., July 24, 25, 28 and 30,
1969, “Activities of Nations in Ocean Space”, in which the following comment is
made at pp. 30-31:
“Beyond that, our greatest concern with regard to legal problems in the
seas, and here it is not only a Navy concern but an Air Force concern
and a DOD concern, has to do with the problem of the width of the
territorial sea and the associated problems of passage and over-flight of
international straits. This is an area in which there are some evidences
of beginning encroachement by practice, and on area of considerable con-
cern because such encroachment would change the entire pattern not only
of overflights and passage for military vessels but the entire pattern of
commercial use of the seas, and take it away from a pattern of free
use, whether that use is established by clear international water defini-
tions or by historical precedent that make certain straits international in
a sense of passage.
From a defense point of view, we are interested in seeing the maximum
of the seas in this respect both because we believe it is the best for U. S.
national security interests in the broadest sense and because it is in
keeping with a long tradition of freedom of the seas which, on the whole,
has been generally consistent with peacekeeping efforts.”
See also Rept. of Com. on Deep-Sea Mining of the Int’l L. Ass’n, (Australian
Br., 1970), at pp. 19-20. Cf. Statement of Luke W. Finlay, representing the
American Petroleum Institute in Hrgs. of Subcomm. on Minerals, Materials
and Fuels of Sen. Comm. on Interior and Insular Affairs, Sept. 23, 1970;
Statement Senator Lee-Metcalf, 117 Cong. Rec. S. 2814, S. 2818 (92nd Cong.,
1st Sess., 1971).
120 See supra n. 38.
McGILL LAW JOURNAL
[Vol. 17
sufficient.12 ‘ It is highly questionable, however, whether this con-
cern should be extended to internationalizing offshore coastal areas
beyond the territorial sea that could logically be the subject of a
national coastal contiguous zone for resource purposes, if a right
of free transit through it is assured. This concept of international-
ization, it seems clear, was the intent of the U.S. Draft Seabeds
Convention in proposing the de-nationalization of large portions
of the continental shelf and establishing the International Seabed
Area, defined as “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”. 22 The Draft Convention provides that the
International Seabed Area “shall be open to use by all States,
without discrimination, except as otherwise provided in this Con-
vention” 123 and further provides that the “[e]xploration and ex-
ploitation of the natural resources of the International Seabed
Area must not result in any unjustifiable interference with other
activities in the marine environment”.2 4 Free transit through the
entirety of the International Seabed Area, including the proposed
International Trusteeship Area, 2 5 would thus be assured.
Further, it should be observed that military uses frequently
do not follow defined orders. The Convention on the Continental
Shelf does not presently authorize uses of the seabed for military
purposes and a negative inference can be drawn in this regard.’2
Notwithstanding, however, it seems certain that the United States
and many of the other developed powers use their continental
shelves, indeed the continental shelves of each other, for various
forms of military use. Whether this is a “right” or simply a matter
of realpolitik is not of particular significance. When national security
121Under the Convention on the Territorial Sea and the Contiguous Zone
neither aircraft nor submerged submarines have a right of innocent passage
and passage is deemed “innocent” only “so long as it is not prejudicial to
the peace, good order or security of the coastal State”. U.N. Doc. A/CONF.
13/L. 52, Art. 14, para. 4. There is, therefore, a subjective quality to the
definition. See Statement by John R. Stevenson to Subcom. II of U.N. Sea-
beds Committee dated Aug. 3, 1971, infra, Part IV at p. 3.
122 Art. 1, para. 2.
123 Art. 3.
124 Art. 8.
125 Art. 26.
126A valid case can be made, however, that military installations are per-
mitted use of the continental shelf by reason of the coastal state’s inherent
right of self-defense. See Franklin, op. cit., n. 107, at pp. 65-67; McDougal and
Burke, op. cit., n. 110, at pp. 718-720. Cf. The Law of the Sea Crisis, infra, n. 272.
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has required it there have been U-2 flights, submarines in all types
of territorial waters and probably other unknown but equally
exotic excursions by the military. By the same token it is questionable
whether rights confirmed for “security” purposes will not be subject
to unilateral withdrawal by the various states involved, if their own
national interests indicate that it is desirable or expedient to do
so at a future date. There is no reason that rights of this nature
could not fall into question as quickly as did the provisions of the
Geneva Conventions of 1958.
In evaluating national interests it should also be borne in mind
that the developing countries (and certainly more than a few of
the developed) of the world quite understandably are much more
interested in achieving economic growth and, consequently, in the
exploitation and development of resources, rather than in concerns
of environmental quality and multiple use. 2 It is very clear from
international discussions on the subject that the developing coun-
tries regard, and quite reasonably regard, the current concern
over environmental quality as one that is relevant principally to
affluent countries and peoples who can afford what is essentially
a new luxury in an industrial society. 28 It would be interesting
to see how many countries of the world, and even states of the
United States, would accept Southern California’s extensive off-
shore oil reserves with their inherent threat of pollution for the
economic benefit that they would bring. 29 Lesser developed coun-
tries and peoples would like to first enjoy the benefits of industri-
alization and technology before they begin to control its deleterious
aspects.
There has been a great deal of serious thought directed toward
the issue of a r6gime for the oceans that would be workable –
attractive to both developing and developed nations, to coastal as
well as land and coast-locked. 30 There seems, however, to have
been little done (or perhaps more accurately which could be done)
to quantify the benefits which a given nation might receive under
a particular form of international regime, such as that proposed
12 7 See supra nn. 91, 104.
128 See U.N. Press Releases on Preparatory Conference on Human Environ-
ment, HE.1/Rev.1 (Mar. 6, 1970) to HE./16 (Mar. 20, 1970), passim.
129 Pollution from offshore oil drilling appears in an overall environmental
context to have a quite limited impact. See Krueger, International and National
Regulation of Pollution from Offshore Oil Production, (1970), 7 San Diego L.
Rev. 541, 558.
130 See supra nn. 9 et seq.
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by the United States, as against those which a nation might receive
under the existing or another alternate r6gime. It is obvious from
the unilateral claims made to date that coastal nations feel that
their best national interests lie in a broad area of national juris-
It is equally apparent that the advantages which coastal
diction.’
and non-coastal nations would receive from an international r6gime
of broad dimensions, such as that proposed by the United States,
are nebulous and uncertain. The proposed International Seabed
Resource Authority is required to use revenues from the exploration
of the seabed “for the benefit of all mankind, particularly to promote
the economic advancement of developing States Parties to this
Convention, irrespective of their geographic location”.132 It is clear
however, that this fund is to be composed of net revenue over
and above administrative and operating costs of the Authority
which could be very substantial 133 and further subject to the
qualification that an indeterminate portion of the revenue is re-
quired to be used “to promote” resource exploitation, environ-
mental research, the development of marine resource knowledge
and technical assistance to contracting parties. 34 With due regard
to this it is virtually impossible to assure any coastal nation that
it will receive more under the proposed r6gime than it will from
whatever zone of national jurisdiction it can legitimately claim.
Further, it is only on principle that a land-locked nation can be
assured that it will receive more from the international r6gime
than it would otherwise.
The dynamics of the situation are becoming quite clear. If a
developing coastal nation is asked to give up a potentially oil-laden
continental shelf or a valuable coastal fishery for an unspecified
share of an uncertain portion of undetermined revenue from (in
large part) undiscovered resources, as it is essentially asked by
the U.S. Draft Convention, predictably it will chose to claim and
manage the resources involved, whether pursuant to an interna-
tional regime providing for a broad contiguous zone or by uni-
lateral declaration. 35 The fact that an international r6gime which
would accommodate the interests of the coastal states might be
defeated by land and shelf-locked states would be irrelevant. Such
131 See supra nn. 85-93.
132 Art. 5, para. 1.
133 App. D, paras. 1.1, 3.1.
” 4 Art. 5, para. 2.
135 See supra nn. 85-93, 104.
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states may have a “blocking third”,13′ 6 but they do not constitute
the majority which is necessary to establish a comprehensive r6gime
for the oceans. If the international r6gime is not structured so as
to accommodate the interests of the coastal states, they predictably
will refuse to accept it and the land-locked states will lose the
opportunity to establish rights of access to the oceans which they
have long and ardently sought.137
In light of the very dominant pattern of national self-interest
that has emerged among many of the coastal nations it is difficult
in the extreme to perceive of consensus being established on an
international r6gime that does not give valid recognition to it. It
is further difficult in the extreme to perceive of a minimization
of the confrontations, conflicts and environmental and resource
mismanagement that has characterized international oceans policy
in the past without such a consensus.
3.
International Organization
The powers and composition of the international agency to be
given responsibility to administer the oceans management plan
should depend upon the extent of the lands, waters, and resources
over which it will have jurisdiction and its duties with respect to
them. If it were to be given management jurisdiction over all
resources beyond a narrowly defined continental shelf, it would
need broad powers and a comprehensive administrative frame-
work.13 If it were to be given management jurisdiction only over
resources beyond a broadly defined continental shelf with limited
regulation functions over activities in areas under national juris-
diction, it would seem that it could operate adequately with limited
powers and a sparse administrative structure. 3 9
With due regard to the strong national interest of many coastal
states in the management of coastal and certain of the deep sea
136 See Ratiner, United States Oceans Policy: An Analysis, op. cit., n. 37, at
p. 240 (there are more than 40 such nations).
137See supra n. 81; Rep. Sec. Gen. on Study of the Question of Free Access
to the Sea of Land-locked Countries and of the Special Problems of Land-
locked Countries Relating to the Exploration and Exploitation of the Re-
sources of the Sea-Bed and the Ocean Floor Beyond Limits of National
Jurisdiction, A/AC.138/37, June 11, 1971.
138 See Report of U.N. Secretary-General, Study on International Machinery,
U.N. Doc. A/AC.138/23 (May 26, 1970) at pp. 28 et seq. (“International Machinery
Having Comprehensive Powers”).
139 Ibid., at p. 23 (“International Machinery For Registration and Licensing”).
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resources and the relative lack of incentive to abandon them in
the proposals that have been offered to date, the latter situation
seems more likely. Additionally, the caution with which new inter-
national structures are regarded makes it desirable that the one
proposed for the oceans be sparsely structured, taking maximum
advantage of existing institutions and agencies, 140 and reserve for
future action issues not directly relevant to the plan of regulation.14 1
The agency should be sufficiently complete to intelligently manage
and allocate resources over which it has jurisdiction, supervise
their development and multiple use, administer all other aspects
42 and be sufficiently flexible to permit
of the plan of regulation 1
restructuring if and as it is given further responsibilities –
but
not more. Certainly the oceans are “one world” in an environmental
and resource sense, but politically we have not achieved this global
unity. The proposed organization should reflect this reality.
4.
International v. National Regulation
In evaluating any proposed global management plan for the
oceans it does not serve any purpose to think in terms of “creeping
jurisdiction” by either national or international agencies. 43 It has
140 See Reports of the National Petroleum Council (N.P.C.) and the American
Bar Association (A.B.A.), op. cit., n. 97.
141 See Part II B 3, infra, n. 214.
142 The desire to minimize the international controls involved in the new
regimes have led some to recommend a registry which could receive and
record claims, as opposed to a licensing authority which would allocate them.
See A.B.A. and N.P.C. reports, op. cit., n. 97. It is very apparent, however, that
even those opposed in principle to a licensing authority want to achieve the
ends which can be accomplished only by an agency with substantial decision-
making powers. A consensus appears to have developed that at the very least
a licensing authority of some type will be necessary. This is the clear import
of the Nixon proposal and the U.S. Draft Resolution, and the suggestion of
the recently approved U.N. Sea-Bed principles.
See also statement of Ambassador Phillips, U.S. Ambassador to the United
Nations, made on October 31, 1969, that “[b]ecause mere registry of claims
would probably only contribute to a confused race, it is our view that an
international regime should include an international registry of claims gov-
erned by appropriate procedures”. See Press Release USUN-141(69). As indi-
cated in the Secretary-General’s report, there is little reason to generically
distinguish between a registry and a licensing authority: op. cit., n. 138, at
p. 24.
143 Statement of John R. Stevenson, The Legal Adviser to the U.S. Dept. of
States regarding the Draft Convention, Aug. 3, 1970, para. 1; Statement of
Robert A. Frosch, supra n. 119; Statement John R. Stevenson to Subcon. II,
U.N. Seabeds Com., Aug. 3, 1971, p. 5 (“historic tendencies to assert more and
more types of control within fixed. zones of special purpose jurisdiction”).
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EVALUATION OF UNITED STATES OCEANS POLICY
651
become popular to use this term to describe the purported process
by which a coastal state’s jurisdiction for limited purposes (e.g.,
the development of the continental shelf for natural resources)
will gradually and inexorably lead to regulations for all purposes
(i.e., territorial sea). It follows from acceptance of this theorem
that the “freedom of the seas” is threatened by the maintenance
of a broad continental shelf and that the shelf consequently should
be reduced or “internationalized”. 144 This may or may not be a
desirable result, but it should not flow from this line of reasoning.
The evolution of international law regarding the oceans has
had a direct and it would seem necessary correlation with the
development of technology and the need for exploitation.1 45 Fur-
ther, and more importantly, the growth in the world’s popula-
tion, particularly the portions directly affected by the oceans,
the growth in the uses of the oceans and their resources and,
finally, the conflicts between those uses and the environmental
impingements resulting from them require regulation, and regu-
lation in growing amounts, if chaos is to be avoided. 40 If ocean
regulation is provided by a coastal nation regarding a use, interest
or activity with which it has a functional nexus and which is not
the subject of international agreement, it would seem an entirely
appropriate act, even a commendable one where it has a beneficial
effect from a resource or environmental standpoint. An example
of this would be the Canadian Arctic Waters Pollution Prevention
14 4 The Marine Sciences Commission in its report, Our Nation and The Sea,
accepted the validity of the theorem without qualification and came to a
gross and tangled set of conclusions:
“Such developments [Latin American 200 mile territorial sea claims] are
obviously contrary to traditional U.S. Policy to limit national claims to
the sea in the interest of the maximum freedom essential to the multiple
uses, including military uses, which the United States makes of the
oceans. National security and world peace are best served by the nar-
rowest possible definition of the continental shelf for purposes of mineral
resources development.” (Emphasis added). Ibid., at p. 145.
Others beside the author have questioned the rationality of the statement
and the thought processes through which it was reached. See Burke, Law,
Science, and the Ocean, (1970), 3 Nat. Res. Lawyer 195, at p. 217.
145 See Resources of the Sea, Part One: Mineral Resources of the Sea Beyond
the Continental Shelf, Report of the United Nations’ Secretary-General to the
U.N. Economic and Social Council, U.N. Doc. E/4449/Add. 1, (Feb. 19, 1968),
at pp. 14-17; Krueger, op. cit., n. 2 at p. 452.
146 A review of the various developments, interests and pressures renders
this statement rather axiomatic. See Part II Al, supra n. 94; Our Nation and
The Sea, passim.
McGILL LAW JOURNAL
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Act.147 If, on the other hand, the world community establishes
regulations for uses, interests or activities which effectively and
logically preempt regulation by the coastal states or are outside the
accepted orbit of interest of the coastal states, this should be
equally acceptable if, again, the regulations achieve a beneficial
result. An example of this would be the regulation of areas beyond
limits of national jurisdiction by an international agency, such
as the proposed International Seabed Authority. 14 The point is,
of course, that both national and international regulation of the
world’s oceans are proper depending upon the circumstances and
that it serves little to speak in terms of “creeping jurisdiction”. It is
interesting to observe that it was likely, if not intended, that
the International Seabed Authority proposed to be created by
the August, 1970 United States Draft Convention would have or
would come to have residual (“creeping”?) regulatory authority for
all purposes over the continental margins, notwithstanding
the
coastal state being given limited “trusteeship” powers. 49
Lastly, it should be noted that the theorem of “creeping jurisdic-
tion”, which was developed by the United States Department of
Defense,50 does not appear to be supported by historical fact. The
historical fact is that successively greater national claims in off-
shore areas usually have not risen from internationally agreed
rdgimes for national action, but in the absence of them. The case
most frequently cited by the proponents of the theorem is that
of Peru in which it successively established a 200 mile fishing
conservation zone (1947), a 200 mile petroleum concession area
(1952), a 200 mile area of exclusive sovereignty (1952), a 200 mile
coastal air space zone (1965) and finally a 200 mile area of
“Dominio” (1969).1 51 This course of conduct, however, was not
because of an internationally agreed r6gime permitting any of
the national acts, but in the total absence of them. A more current
example is the Canadian Arctic Waters Pollution Prevention Act in
which an express premise for the national claim asserted was that
there was no international agreed rdgime on the subject.
The
147 See supra, nn. 35-37, 109-112.
‘ 4 8 See Part II B4, infra n. 231.
149 See supra n. 40.
150 See supra n. 119; Loring, supra n. 91, at pp. 428-431. See also Ratiner,
supra n. 37, passim.
151 Loring, supra n. 91, at p. 430.
‘ 52 See supra n. 36. From time to time there seems to be recognition that
the absence of a comprehensive regime is the cause for gradually expanding
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EVALUATION OF UNITED STATES OCEANS POLICY
653
relatively short history of the 1958 Geneva conventions further
lends no factual support to the theorem. Conceptually unproven,
probably invalid, and largely irrelevant, “creeping jurisdiction” has
been a mischievous catch-phrase the case of which has detracted
from rational discussions of the essential facts and issues involved.153
With the growth that we have seen in ocean uses and the
increasing awareness of its importance on the environment we
are coming to a period in which there should be comprehensive
regulation of all uses affecting the oceans or their coasts. Whether
it should be international, national or, within the U.S. federal-
state context, at a state or local level depends upon the use or
activity to be regulated and the fundamental appropriateness of
the regulation. 54 It is a comprehensive oceans management plan
toward which the international community is striving and this will
not be practicable for the foreseeable future without such cooper-
ative and “creeping” inter-relating jurisdiction.
5. National and International Objectives
The objectives which the United States has indicated should
be served by the r6gime for the area beyond limits of national
jurisdiction. In the Statement of Elliot L. Richardson, Under Secretary of
State in Hearings on Issues Related to Establishment of Seaward Boundary
of United States Outer Continental Shelf Before the Special Subcommittee
on Outer Continental Shelf of the Senate Committee on Interior and Insular
Affairs, 91st Cong., 2nd sess., Part 2, p. 427 (1970) it is said at p. 441:
“If we have no treaty governing the right of exploration and exploitation
of the continental margin, we can anticipate a situation in which coastal
states progressively, over time, [claim] unilaterally wider and wider areas
of exclusive control not suject to any international regulation or limita-
tion.” Cf. n. 143, supra.
153See also Loring, supra n. 91, at pp. 452453.
154 Recognition of the accuracy of this conclusion appears in the recom-
mendation reached by the U.N. Food and Agriculture Organization’s Marine
Pollution Conference in December of 1970, in which it was stated that
“…the increases in uncontrolled industrialization and in other weste-
producing activities constitute, in the absence of new and increased
remedial measures and preventive action, the major threat to the success
of any measures for alleviating marine pollution and that this threat is
aggravated by increasing world population.” Press Release FAO/2210 (Dec.
17, 1970).
The resolution then recommended:
“[U]rgent action to prevent and combat pollution on individual, national,
regional and international levels in order to minimize the effects on marine
environment, its living resources and fishing.” (Emphasis added).
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jurisdiction,15′
the 1970 Declaration of Principles Governing the
Sea-Bed and the Ocean Floor and the Subsoil Thereof beyond the
Limits of National Jurisdiction, adopted with its approval by the
U.N. General Assembly,1 55a the Nixon proposal of May, 1970 1’0 and
the U.S. Draft Convention 157 reflect in varying degrees the following
broad policy objectives:
1. The internationalization of the world’s oceans –
the objective
of minimizing national jurisdiction and control of the world’s oceans
and their resources and of maximizing international jurisdiction
over them.1 58
2. The development of ocean resources –
the objective of
encouraging the exploration and exploitation of ocean resources,”5 9
3. The encouragement of national participation in the develop-
ment of ocean resources –
the objective of permitting nations
on a uniform basis to acquire exploration and exploitation permits.10
the objective of pro-
viding internationally earmarked assistance to developing coun-
tries.161
4. Assistance to developing countries –
5. The preservation of free transit through the world’s oceans
and straits –
the objective of limiting and avoiding national
claims so as to afford convenience to military and commercial
travel.162
6. The establishment of international consensus on ocean rd-
the objective of achieving uniformity in international law
gimes –
and eliminating future conflicts.16
155 Supra, n. 31.
1sa Supra, n. 68.
156 Supra, n. 38.
157 Supra, n. 38a.
i’s The Nixon proposal and the Draft Convention, supra, nn. 68 and 38a;
the 1970 Declaration of Principles, supra, n. 31. See Our Nation and The Sea,
supra, n. 21.
I9 This objective is present in all of the above-cited documents, supra,
nn. 155-157.
160 U.S. objectives, supra, n. 31; Draft Convention, supra, n. 38a.
161 Id., supra, n. 159.
162The Nixon proposal, supra, n. 156. The objective also appears
to be
evidenced by Article 3 of the Draft Convention, supra, n. 157, which provides:
“The International Seabed Area shall be open to use by all States, without
discrimination, except as otherwise provided in this Convention.”
103 Id., supra, n. 159.
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EVALUATION OF UNITED STATES OCEANS POLICY
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7. The encouragement of multiple use of resources –
the
objective of coordinating the management of the various ocean
resources and uses to minimize conflicts.164
8. The advancement of knowledge and development of tech-
nology –
the objective of learning more about the oceans and their
resources and achieving the technological capability to safely permit
scientific exploration and resource development. 65
9. The protection of environmental quality –
the management
objective of preserving or restoring the natural condition of the
environment.’66
164 Id., supra, n. 159. This objective has been repeatedly acknowledged as
necessary by many branches of the U.S. federal government. The Act for the
classification of public lands which was passed contemporaneously with the
law creating the Public Land Law Review Commission defined “multiple use”
as follows:
“[T]he management of the various surface and subsurface resources so
that they are utilized in the combination that will best meet the present
and future needs of the American people; the most judicious use of the
land for some or all of these resources or related services over areas
large enough to provide sufficient latitude for periodic adjustments in
use to conform to changing needs and conditions; the use of some land
for less than all of the resources; and harmonious and coordinated man-
agement of the various resources, each with the other, without impair-
ment of the productivity of the land, with consideration being given to
the relative values of the various resources and not necessarily the com-
bination of uses that will give the greatest dollar return or the greatest
unit output.” 78 Stat. 987 5, 43 U.S.C. 1415(b) (1964).
165 Id., supra, n. 159. This policy is implicit in the Truman Proclamation and
the administration of the Outer Continental Shelf Lands Act. It is made
explicit by the Marine Resources and Engineering Development Act of 1966
and is also evidenced in the Convention on the Continental Shelf. The Marine
Resources and Engineering Development Act provides:
“(b) The Marine Science activities of the United States shall be conducted
so as to contribute to the following objectives:
(1) …
(2) The expansion of human knowledge of the marine environment.
(3) The encouragement of private investment enterprise in explora-
tion, technological development….”
80 Stat. 203 2, 33 U.S.C. 1100 (1966).
106 Id., supra, n. 159. This policy objective is also evidenced in a number
of recent federal acts, particularly the recently enacted National Environ-
mental Policy Act of 1969, which provides that “the policies, regulations, and
public laws of the United States shall be interpreted and administered in
accordance with” the Act’s environmental protective policies, and that federal
agencies shall use environmental design arts in their planning and by July 1,
1971, propose changes to their statutory authority and regulations to conform
McGILL LAW JOURNAL
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The last three objectives are the same as certain of those
identifiable as applicable to the U.S. outer continental shelf.0 7
Note, however, that the following objectives which are also identi-
fiable as being applicable to the U.S. outer continental shelf, and
applicable in a beneficial sense, have not yet evolved as national
or international policy objectives for the area beyond:
1. Efficient resource management –
the objective of best effect-
ing the prudent use of resources through their intelligent manage-
ment.168
2. The encouragement of private participation –
the objective
of permitting qualified responsible representatives of the private
sector to participate in the development of resources.00
to the Act’s purposes. Pub. L. 91-190 102-03, 83 Stat. 852 (1969). This policy
is also evident in the Conventions on the Continental Shelf and High Seas.
See Krueger, op. cit., n. 129, at p. 571.
167See 1 Nossaman, Waters, Scott, Krueger & Riordan, Study of the Outer
Continental Shelf Lands of the United States (Clearinghouse: Springfield, Va.,
1968), 11.1 (hereinafter referred to as 1 Nossaman OCS Study); Krueger,
An Evaluation of the Provisions and Policies of the Outer Continental Shelf
Lands Act, (1970), 4 Nat. Res. J., pp. 763-764.
308 The Truman Proclamation of 1945, the Marine Resources and Engineering
Development Act and the legislative history of the Outer Continental Shelf
Lands Act all evidence the objective of best effecting the prudent use of
resources through their intelligent management by the federal government.
Proclamation No. 2667, 3 C.F.R. (1943-1948 Comp.) 67; 80 Stat. 203, 33 U.S.C.
1101-24 (1966). Also see, 1 Nossaman OCS Study, op. cit., n. 167, 1.5, 1.12. The
Marine Sciences Commission in Our Nation and The Sea at p. 137 recom-
mended, however, that the Secretary of the Interior be given and use the
authority to issue offshore leases on the continental shelf for hard minerals
on a non-competitive basis. The Commission also recommended that claims
for mineral resources in areas beyond limits of national jurisdiction be
registered with the proposed International Agency on a “first-come, first-
registered” basis. Id., at pp. 148, 150. It also recommended that the United
States use the same policy in disposing of claims made by it with the pro-
posed International Agency. Id., at p. 155. From the standpoint of resource
management these suggestions are quite illogical. See Brooks and Christy,
Memorandum on Suggested Operational Guidelines for an International Regu-
latory Authority for the Sea-Bed, Twenty-First Report of Commission to Study
the Organization of Peace (1970) at p. 29; Krueger, op. cit., n. 167 at pp. 791-795.
169 The Outer Continental Shelf Lands Act and the regulations promulgated
pursuant thereto clearly contemplate that the development of minerals in the
outer continental shelf be undertaken by qualified, responsible representatives
of the private sector. 43 U.S.C. 1337(a) (1964); 43 C.F.R. 3380.1 (1964). The
Marine Resources and Engineering Development Act also recognizes the desira-
bility of “[tjhe encouragement of private investment enterprise in exploration,
technological development, marine commerce, and economic utilization of the
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EVALUATION OF UNITED STATES OCEANS POLICY
657
3. The maximization of revenue to the resource owner –
the
objective of effecting the greatest financial return for resource
allocation and use. 7 0
Some of the reasons for this are philosophical. The Soviet
Bloc and many of the developing countries, for varying reasons,
do not favor competitive means of resource allocation or private
participation. 171 Further, many of the developing countries are more
interested in maximizing their own participation in resource de-
velopment and in the revenue therefrom than in maximizing return
to an international agency, even one which will use revenues for
assistance to them.7 2 It
is, moreover, far simpler and more ex-
resources of the marine environment”. 33 U.S.C. 1101(b)(3) (1966); 1 Nossa-
man OCS Study, op. cit., n. 167, 11.1.
In Sprague and Julian, An Analysis of the Impact of An All Competitive
Leasing System on Onshore Oil and Gas Leasing Revenue, (1970), 10 Natural
Resources J. 514, at p. 531, it is concluded that an all competitive leasing system
for federal onshore leases would have increased government bonus revenue
from $10-million to $100-million in 1967 with a filing fee loss for non-competitive
leases of only $21 -million. A competitive system of allocation appears as
functionally valid for hard minerals as for oil and gas. See Brooks and
Christy, op. cit., n. 168, at p. 29; Thompson, Canadian Trends in Mining and
Petroleum Legislation: Some New Zealand Comparisons, Australasian Mining
Symposium 1, at p. 7 (1970); Krueger, op cit., n. 167, at pp. 786 et seq.
170 While there are indications in the legislative history of the Outer Conti-
nental Shelf Lands Act that the generation of revenue was a secondary con-
sideration, its subsequent administration, particularly in recent years clearly
indicates that a basic policy objective has been to maximize revenue to the
federal government from the sale of mineral leases. This was particularly
manifest in the 1968 Santa Barbara lease sale. See the Nossaman Study, op.
cit., n. 167, 4.16.
17iA draft resolution containing principles to govern the seabeds was
presented to the U.N. Seabeds Committee by Brazil, Cameroon, Ceylon, Chile,
India, Kenya, Kuwait, Libya, Madagascar, Sierra Leone, Sudan, Tanzania,
Thailand, Trinidad and Tobago, and Yugoslavia which provided that the
international machinery to be created should have
“…responsibility for regulating, co-ordinating supervising and controlling
exploitation, conservation, use and exploitation of that zone.”
U.N. Doc. A/AC.138/SC.1/L2 (March 23, 1970) at p. 3. The Soviet Union,
however, believes that the responsibility for activities should be borne by
the respective states, irrespective of how they choose to carry them out, and
that the international machinery “should not itself carry out exploration and
exploitation of sea-bed resources, since it might, in the final analysis, become
a capitalist undertaking and a tool of monopolies”. See U.S.S.R. representative
statement to U.N. Seabeds Committee, 36th mtg., Aug. 14, 1970, Prov. Sum.
Rec., U.S. Doc. A/AC.138/SR.36, at p. 12 (Aug. 14, 1970).
172 Supra, nn. 82-83, 85-93, 104.
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pedient to create a non-competitive administrative system of the
type traditionally used and supported by the hard mining in-
dustry, 78 than to structure an economically efficient one employing
competitive standards, particularly where the competing parties will
be nations. 7 4 Again, the political reality of national interest would
presently seem to have a strong influence. It is to be noted that
the last of the principles supported by the United States in August
of 1970 in the U.N. Seabeds Committe was that the international
r6gime must be “so plainly viable that States will in fact ratify the
173 The U.S. hard mining industry has under the Mining Law of 1872 non-
competitive entry to federally-owned onshore lands. 17 Stats. 91 (1872). The
Outer Continental Shelf Lands Act requires competitive bidding and the hard
mining industry has used the fact that there are no outer continental shelf
leases for minerals other than petroleum, sulphur and salt to support the
contention that this form of allocation has discouraged the development of
other minerals. See Walthier, Problems Relating to Mineral Exploration and
Mining on the U.S. Continental Shelf, paper presented to the Public Land
Law Review Commission (Jan. 11-13, 1968); U.S. Dept. Int., A Report to the
Public Land Law Review Commission 90 (March 29, 1968). The argument is
of questionable logic and utterly without factual support. See 1 Nossaman
OCS Study, op. cit., n. 167, 11.10, 11.29 and 11.69; Krueger, op. cit., n. 167,
at pp. 778, 786 et seq. Notwithstanding, however, the concept of non-com-
petitive allocation of hard mineral resources has been successfully advocated
to both the Marine Sciences Commission and the Public Land Law Review
Commission. Ibid.
174 With respect to areas beyond limits of national jurisdiction consensus
seems to have developed in support of an essentially non-competitive system
of the type set forth in the Draft Convention where competitive bidding would
be used only to determine allocation in the event of multiple filings. See
Draft Convention, App. B. para 3.5. This has been in large part because of
a feeling that a competitive system would give an unfair advantage to the
developed countries. See Rpt. Deep-Sea Mining Comm. of Int’l L. Ass’n, op.
cit., n. 44, at pp. 14-26. The point has an emotional appeal, despite the fact
that it is irrational from the standpoint of resource economics. Allocation of
the resource has little to do with its exploitation. The developed powers of
the word will have a great advantage in the exploitation of resources regardless
of the original allocation which may in fact be made by a developing nation
for them as a “flag of convenience”. The choice of a non-competitive system
of allocation for resources, for the area beyond limits of national jurisdiction
must be made and rationalized on political grounds. In terms of resource
management and economics, competitive allocation is clearly superior. In
Brooks and Christy, op. cit., n. 168, it is said:
“Leases must be obtainable on the basis of some non-arbitrary allocation
scheme. This is best achieved by some form of auction system.
The auction mechanism provides several advantages over a system that
awards rights to the first claimant or over a system that awards rights
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EVALUATION OF UNITED STATES OCEANS POLICY
659
treaties establishing it” with the explanation that “[u]nless the
regime we establish is acceptable to the vast majority of the na-
tions who would participate in seabed resource development its
chance of success is small”.175
It will be helpful to examine the Nixon proposal and the U.S.
Draft Convention in light of the foregoing policy objectives and
their interrelationships.
B. The Nixon Proposal – The U.S. Draft Convention
1. Introduction
The Nixon proposal was essentially a liberalized version of that
proposed by the Marine Sciences Commission in its 1969 report
which would have confirmed unto coastal states exclusive juris-
diction to a depth of 200 meters or 50 miles from coastlines, which-
ever would be further, and established an “intermediate zone” beyond
to the 2,500 meter isobath or 100 miles from coastlines, whichever
would be further.176 In the Nixon proposal the limit of national juris-
diction would end at 200 meters and the “intermediate zone” desig-
ated a “trusteeship zone” would extend to the entirety of the
“continental margin”. 17 7 The international r6gime for the “trustee-
ship zone” and the area beyond were to provide for “the collection
of substantial mineral royalties to be used for international com-
munity purposes, particularly economic assistance to developing
countries” 78
on the basis of non-economic criteria. First, it helps to ensure that most
efficient producers will get the exploitation rights.
Second, the auction mechanism provides the least arbitrary means for
choosing among competing claimants.
Third, the auction mechanism approximates a fair value for the exploi-
tation right much more effectively than any other system. The exploifer
bids no more than he feels he can afford.
And finally, the auction mechanism will deter speculations from seeking
to acquire exploitation rights. Other systems would have to depend entirely
upon some kind of performance requirement to ensure that leases are
used correctly.”
175 See U.S. Objectives, supra, n. 31, para. 12.
176 Our Nation and The Sea, op. cit., n. 20 at pp. 145-147.
17
178 Ibid.
7 Supra, n. 38.
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Earlier proposals
to internationalize the oceans and ocean
resources had met with a great deal of opposition from extractive
industries, particularly the petroleum industry,1 70 and there was
consequently reason to anticipate opposition to this proposal as
well. In and of itself, it is questionable whether the Nixon proposal
warranted the criticism of any of the extractive industries, if viewed
objectively. The proposal, if adopted by the world community, would
bring about a stabilization of titles in presently uncertain conti-
nental shelf and continental slope situations, establish a means
for acquiring concessions in deep sea areas that are presently non-
existent and invest national concessions in areas beyond 200 meters
with an international character which could materially assist the
present expropriation problem. Moreover, there was no suggestion
in the proposal that the proposed rdgimes would create any higher
cost of doing business by way of royalties or rentals -than are
presently being paid and there was the indication that a coastal
state would retain a number of independent rights with respect to
properties in the “trusteeship zone.” It was apparently for this
reason that a “wait and see” attitude developed on the part of
industry toward the proposal when it was first presented. As the
implementing Draft Convention developed, however, it became very
clear that the International Seabed Resources Authority would
have extensive regulatory powers over the entirety of the inter-
national seabed area, including the International Trusteeship Area,
and that the rights of the coastal states in the International Trustee-
ship Area were strictly limited. At this time, strong opposition to
the Nixon proposal as so implemented developed within the petrole-
um industry and to a lesser extent within the hard mining industry,
which undoubtedly felt more comfortable with the non-competi-
tive licensing system proposed for the International Seabed Area.180
179See N.P.C. and A.B.A. Reports, op. cit., n. 97. See also Hearings on the
Outer Continental Shelf before the Sen. Comm. on Interior and Insular Affairs,
91st Cong., 1st & 2nd Sess., at p. 10 (1970). Cf. Krueger, The Convention on
the Continental Shelf, the Need for Its Revision and Some Comments Regard-
ing the Regime for the Lands Beyond, (1968), 1 Nat. Resources Law. 1, at
pp. 16-17.
180 See statement of Northcutt Ely on behalf of the American Bar Associa-
tion before the Subcomm. on Minerals, Materials and Fuels of the Comm. on
Interior and Insular Affairs, U.S. Senate, dated Sept. 1970; statement of Luke
W. Finlay on behalf of the American Petroleum Institute before said Sub-
committee, dated Sept. 23, 1970. Cf. statement of John G. Laylin, mining lawyer
to said Subcommittee dated Sept. 22, 1970. See also Report on Outer Conti-
nental Shelf, supra, n. 52 at pp. 5-28; Supplemental Report of N.P.C., Petroleum
Resources Under the Ocean Floor (Mar. 1971), passim.
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EVALUATION OF UNITED STATES OCEANS POLICY
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In many respects, the Nixon proposal was a quite clever one
that gave the United States the initiative in the quite awkward
negotiating situation that had developed as a result of the 1969
U.N. seabeds resolution. 81 Irrespective of this and its potential
efficiency with respect to mineral development, however, it and
the Draft Convention fail to suggest or provide a framework for
a comprehensive management system for ocean resources and uses.
It should be emphasized that what has been suggested is essen-
tially another measure directed toward the exploitation of the natu-
ral resources of the seabeds of the type which has predominated
the world’s thinking regarding the oceans in the past. The Nixon
proposal starts out well in referring to “the ecological hazards of
unregulated use of the oceans and seabeds” and the need to estab-
lish “general rules to prevent unreasonable interference with other
uses of the ocean [and] to protect the ocean from pollution” 82
The Draft Convention, however, is clearly geared toward mineral
development with environmental considerations being weighed only
insofar as they relate to such development. It is, in the final analy-
sis, a quite benignly written international mining code. The Con-
vention requires the International Seabed Resources Authority to
issue very large blocs to nations on a non-competitive basis 183 and
states that the categories of minerals and the areas to be covered
by exploitation licenses “shall be those which will best promote
simultaneous and efficient exploitation of different minerals”.’8
There are restraints on the use of structures “for the exploration
or exploitation of minerals deposits” so as to minimize interference
with navigation similar to those contained within the Convention
on the Continental Shelf.’5 The International Seabed Resources
Authority is also required to prescribe Rules and Recommended
Practices to protect “the marine environment against pollution
arising from exploration and exploitation activities”’86 and to pre-
vent “any unjustifiable interference with other activities in the
181 See supra, nn. 24-30.
182 Supra, n. 38.
183 App. A, para. 5.1; App. B, para. 3A.
184 Art. 15, para. 1.
185 Art. 21. Cf. Convention on the Continental Shelf, U.N. Doe. A/CONF.13/L.
55, Art. 5, paras. 2, 3, 5 and 6.
188Art. 23, para. 1(a). The Council of the Authority is also authorized to
“[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”, Art.
40, para. ().
McGILL LAW JOURNAL
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marine environment arising from the aforementioned activities”. 18 7
Except in the quite secondary sense in which the environment
is considered by the foregoing provisions and the power of the
International Seabed Resources Authority to establish international
marine parks and preserves in areas that have “unusual educa-
tional, scientific or recreational value”, 188 the Draft Convention
literally ignores non-mineral and non-seabed uses, resources and
values of the oceans. With due regard to the structure of the Draft
Convention it could serve only to provide as a strong catalyst for
early and relatively unconditioned exploration and exploitation of
extractive resources of the seabed, particularly petroleum. The
system provides for the development of mineral resources, the
developing countries who will be a significant factor in the system’s
administration will receive direct economic development from the
187 Art. 23, para. I(c).
The fact that the U.S. Draft Convention proposes both national and inter-
national policies and laws that profoundly affect oceans’ environment raises
strong question as to whether it did not fall within the purview of the National
Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852. In the event
that it or a successor proposal does, an environmental impact statement to
the National Council on Environmental Quality would be required. The Act
requires that “all agencies of the Federal Government shall –
(A) Utilize a systematic, interdisciplanary approach which will insured the
integrated use of the natural and social sciences and the environmental design
arts in planning and in decision-making which may have an impact on man’s
environment.
(B)
identify and develop methods and procedures… which will insure
that presently unquantified environmental amenities and values may be given
appropriate consideration in decision-making along with economic and tech-
nical considerations;
(C)
include in every recommendation or report on proposals for legislation
and other major Federal actions significantly affecting the quality of the
human environment, a detailed statement by the responsible official on –
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environ-
ment and the maintenance and enhancement of long-term produc-
tivity, and
(v) any irreversible and irretrievable commitments of resources which
would be involved in the proposed action should it be imple-
mented.”
See infra, n. 244.
188 Para. 25.
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EVALUATION OF UNITED STATES OCEANS POLICY
663
exploitation, and the developed countries and their nationals have
the technology and interest in exploitation. There are no functional
brakes provided in the system to effectively slow or prohibit devel-
opment, even if necessary to protect environmental quality or other
uses and resources of the ocean. This is true, although to a lesser
extent, even as to the International Trusteeship Area in which the
coastal state has the “exclusive right” to approve or disapprove ap-
plication for licenses,” 9 and may “impose higher operating, conser-
vation, pollution, and safety standards than those established by the
Authority, and may impose additional sanctions in case of viola-
tions of applicable standards”.190 Would the United States or any
other developed power as trustee be able to withhold licensing
operations in proven or highly potential offshore oil areas if re-
quested to do so by the International Seabed Resources Authority? 191
2. Trusteeship Zone Concept
The trusteeship concept of the Nixon proposal and the Draft
Convention also raises problems. It is an apparent attempt to com-
promise the quite direct interest that a coastal state has in its
continental margins that has been confirmed in varying degrees
by the Truman Proclamation, the Convention on the Continental
Shelf and customary international law 192 with the policy objective
of achieving a greater internationalization of the world’s oceans. 193
The coastal state would be given the right to administer seabed
resources within the International Trusteeship Area which extends
from 200 meters to probably the base of the continental slope 194
and in this area to determine the conditions under which mineral
licenses would be issued 95 and living resources of the seabed would
189 Art. 27, para. 2(a); Art. 28(b); App. C, para. 2.1.
190 Art. 27, para. 2(c); App. C, para. 10.1.
191 There would be many such areas if the proposed renunciation of title
beyond a depth of 200 meters were to take place. See supra, n. 40; Krueger,
op. cit., n. 2, at p. 400; N.P.C. Supplemental Report, op. cit., n. 180, at pp. 19
et seq.
‘ 9 2 See supra, nn. 1, 2 and 4.
193 See supra, n. 158.
194 Art. 26, para. 1. This could encompass lands as deep as 5000 meters (see
National Petroleum Council Report, Petroleum Resources Under the Ocean
Floor, (1969)) at pp. 23-25 but would probably average closer to 2500 meters
(see Statement of W. T. Pecora, Director of U.S. Geological Survey, dated
Feb. 1, 1968, para. 5).
195 Draft Convention, art. 28; supra nn. 189, 190.
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be permitted to be exploited. 96 As an apparent recognition of the
coastal state’s continuing national interest in the area and in
consideration for its continuing responsibilities, the Draft Convention
would permit it to retain between 33/ % and 50% of fees and
payments received for the issuance or retention of a license or
otherwise required by the Convention. 1′ 7 On the other hand, the
Draft Convention would divest the coastal states utterly of any
other rights in the International Trusteeship Area and give to the
International Seabed Resources Authority, in effect, preemptive
powers over the area, including the power to regulate and inspect
all operations 198 and to issue emergency orders to prevent serious
harm to the marine environment. 199
The
trusteeship concept
immediately raised a number of
objections. It was questioned whether a coastal state should have
this high a degree of control over ocean resources if the same
were in fact located beyond limits of national jurisdiction 00 Some
nations, largely developing, thought that the International Trustee-
ship Area should be administered purely by an international au-
thority.F01 Others, such as Australia, expressed the point of view
that the limits of national jurisdiction should be more liberally
drawn and the trusteeship concept eliminated.202 Additionally, the
“trusteeship” appellation had an unsavory quality to a number
of countries because of the history of the mandate system of the
League of Nations and the succeeding U.N. trusteeship system 03
From the standpoint of resource management, there are distinct
advantages in clearly defining and separating the responsibilities
of the coastal states and of the proposed international agency.
Potential conflicts are minimized and accountability is established.
The history of the federal-state relationship in this country, which
provides an interesting and useful analogy in analyzing most as-
pects of the proposed rdgime, bears this out. 4
196 Id., para. f.
197 Id., para. d and e.
198 Art. 2; art. 23. See n. 40.
199 Art. 40, para. (j). See statement by Ambassador Christopher H. Phillips,
United States Mission Press Release, Geneva, Aug. 7, 1970, at p. 5.
200 See Liberia, supra, n. 55, at pp. 8-9.
201 Kenya, supra, n. 55, at pp. 2-3.
202 Australia, supra, n. 56., at pp. 16-17
203 Cameroon, supra, n. 55 at pp. 7-8. See supra, n. 50; Statement of Ambas-
sador Christopher H. Phillips, United States Mission Press Release, Geneva,
Aug. 28, 1970, at p. 2.
204 E.g., see Federal Water Pollution Control Act, 33 U.S.C., 1151 et seq.
(1970).
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EVALUATION OF UNITED STATES OCEANS POLICY
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The Nixon proposal, itself, indicates that the international trus-
teeship zone would extend beyond all points at which the high
seas reach a depth of 200 meters, which would establish an inter-
national character in lands lying between the mainland of a coastal
state and its islands located more than 24 miles offshore (the sum
of the two proposed 12-mile territorial seas combined) and sepa-
rated by waters more than 200 meters deep. This situation would
exist in the United States with respect to California, Alaska and
other areas and in many other countries of the world. With due
regard to the fact that the United States has abstained from
claiming historic bays or drawing straight baselines, as it proba-
bly could in a number of these situations, there is a valid basis
for concern that neither the United States nor the affected (U.S.)
coastal states will have sufficient jurisdiction to permit effective
coastal zone management.205
The Draft Convention ameliorates this problem by providing
for a 60-mile closing rule and the drawing of straight base-lines
in the demarcation of the 200 meter limit.206 This would vastly
extend the limits of national jurisdiction and the rules applicable
to the continental shelf in many parts of the world where there
are offshore reefs, banks and islands. In Southern California, for
example, the rule would appear to encompass most of the conti-
nental borderland at least out to the Cortes Bank, 120 miles from
the mainland and something less than 50 miles from San Clemente
205 The United States could quite properly draw a straight baseline connec-
ting coastline fringes and offshore islands for purposes of measuring the
territorial sea in the case of Alaska, Maine, Massachusetts and Louisiana,
and to a somewhat lesser extent in the case of California. See supra, n. 109;
United States v. Louisiana, 394 U.S. 11, at p. 72 (1969); Krueger, op. cit., n. 167, at
pp. 452 et seq. and 491. Canada has carefully and properly drawn straight
baselines in similar situations both on its east and west coast. See maps of
Can. Hydro. Serv., Marine Sciences Br., Dept. of Energy, Mines & Resources,
Nos. 391, May 16, 1969 (Vancouver Island), 392, May 16, 1969 (Queen Charlotte
Sound to Dixon Entrance), 401, May 16, 1969 (South and East Coasts of
Nova Scotia), 402, October 27, 1967 (Newfoundland) and 402, October 27, 1967
(Labrador). The United States to the contrary in recently released maps
(September, 1971) refuses to apply the straight baseline rule, notably in the
case of Alaska. This approach results in large areas that would otherwise
be inland waters or territorial sea under a straight baseline rule remaining
as high seas and potentially International Seabed Area or International Trus-
teeship Area.
206 Art. 1, para. 3. A similar rule is authorized for the delineation of the
seaward boundary of the International Trusteeship Area. Art. 26, para. 1.
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Island.20 7 Pragmatically the provision would appear to be a desira-
ble one, but it does raise the question as to why a closing rule
of 60 miles was selected and whether the trusteeship zone con-
cept should be retained in any case. If the nexus between the
coastal state and the offshore within 60 miles of 200 meter points
of closure is so great as to justify national jurisdiction why should
it not extend to that distance based upon other and certainly not
less logical considerations? Why should it not extend 100 miles
or 200 miles or to the base of the continental slope? 20
The existence of such a pervasive exception is an implicit and
very strong recognition of the interest of the coastal state in a
broad coastal zone. This fact points up the fundamental infirmity
in the trusteeship concept proposed in the U.S. Draft Conven-
tion: it is impracticable to structure a rdgime for a contiguous
zone for resources that does not give proper recognition to the
many interests of the coastal state without setting definite, and
in some areas narrow, limits to the jurisdiction of the proposed
international seabeds agency.20 9 This is not to suggest, however,
that internationally approved national contiguous zones could not
accomplish the goals of the international community. A r6gime
could be created in which all of the broad policy objectives of the
international community 21 were achieved in coastal areas by the
coastal state acting as the agent of the international community
in accordance with internationally approved standards. Such stand-
ards would logically consist of both those set forth in the organic
treaty establishing the rdgime and those promulgated by the inter-
national oceans agency to be created, with such agency having
207The Nixon proposal standing alone would result in large portions of
lands lying between mainland California and certain of the Channel Islands
which lie more than 24 miles offshore (the sum of the two proposed 12 mile
territorial seas combined) and separated by waters more than 200 meters
deep in being treated as international trust territory. The same situation
would also exist in similar areas off Alaska. See Krueger, op. cit., n. 167, at
p. 490. There is a strong and presumptively legitimate interest on the part
of California and many other coastal states (see supra, n. 112) in the proper
management of offshore resources and it may have been out of deference
to this quite basic political consideration that the 60 mile closing rule was
developed. Aside from the fact that the rule “works” in the case of California,
however, there is little in logic to recommend it. With due regard to the
failure of the federal government to draw straight baselines the rule does
not appear to “work” in some areas of Alaska, such as the Shelikof Straits.
208See supra, nn. 91-93, 104.
2 09 Cf. Comm. on Deep-Sea Mining, Int’l L. Ass’n., op. cit., n. 97, at pp. 12-13.
210 See supra, nn. 158-166.
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EVALUATION OF UNITED STATES OCEANS POLICY
667
enforcement powers.21’ It would seem far more logical to have a
broad resource contiguous zone of this type commencing at the
edge of the territorial seas and reserving appropriate rights of
free transit in the areas beyond, 212 than to attempt to develop a
highly internationalized
trusteeship zone of the type proposed
in the U.S. Draft Convention which excludes large portions of the
oceans and their resources in which the international community
has broad and legitimate interests 13
This could be done as part of a “package” which included the
earmarking of a portion of national revenues from the contiguous
zone for international purposes. Such funds could be earmarked
for the economic advancement of the developing state generally,
as does the Draft Convention, but they might well be also appro-
priately earmarked for assistance to developing countries for the
protection of their environment. It has been made very clear in
the United Nations that the developing countries will need some
form of direct subsidization in order to meet the environmental
standards of developed countries 214
211 There are benefits that could accrue to both national and international
interests from having some mixture of responsibility in offshore areas. For
example, a national interest in environmental quality would be enhanced
by an international system calculated to reduce environmental impingements
by other nations. On the other hand, international interests could be served
by having offshore resources managed by the coastal nation whose knowledge
of them and their interaction with other resources and values is most com-
plete. It is important, however, that the regulatory and enforcement powers
of the international agency be limited to issues invested with an acknowledged
international interest, such as environmental quality and the protection of
living resources. An international agency having simply the power to require
performance of the environmental and living resources convenants contained
in the 1958 Geneva Conventions would go a long way toward establishing a
workable order for the oceans. See Convention on the Continental Shelf, art.
5, paras. 1, 6, 7; Convention on the High Seas, art. 24; Convention on Fishing
and Conservation of the Living Resources on the High Seas, art. 1, para. 2;
Krueger, op. cit., no. 129, at pp. 452-454.
The international interest in such a national contiguous zone could also be
so developed as to minimize or eliminate the expropriation problem which
is prevalent today in developing countries.
212 See supra, 119 et seq.
213 Under the draft convention, areas within its 60 mile-200 meter closing
test would be excluded from any international regulation, except insofar as
the same may be provided by the 1958 Geneva Conventions, customary inter-
national law or special convention. See supra, n. 207.
214 See supra, nn. 82-83.
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3. Non-Mineral Uses
The Nixon Proposal was directed to living as well as non-living
resources. It stated that the proposed law of the sea treaty “would
also accomodate the problems of developing countries and other
nations regarding the conservation and use of the living resources
of the high seas”.2l14a Unfortunately, the U.S. Draft Convention vir-
tually ignores this important element of oceans policy. In the
proposed international trusteeship area, the coastal state has the
power to “decide whether and by whom the living resources of the
seabed shall be exploited”.215 In the International Seabed Area
beyond the trusteeship zone, free access to all seabed living resources
is guaranteed to each contracting nation, subject only to “such
conservation measures as are necessary to protect the living re-
sources of the International Seabed Area and to maximize their
growth and utilization”. 21 In neither area is there any rdgime
established for non-seabed living resources, and neither the coastal
state nor the proposed International Seabed Resource Authority
have any meaningful management powers over such resources.
Viewed in a political context, as it must be, the failure to deal
with the fishery issue is one of the more obvious defects in the
U.S. Draft Convention; to the coastal states with significant coastal
fisheries this is a very important issue and one that cannot be
given a secondary priority in international discussions regarding
the oceans.217
The Nixon proposal and the Draft Convention do not give re-
cognition to the need for the authorization and coordination of
other uses in the proposed international area either by the pro-
posed international agency or by the coastal state.21 8 The use of
the offshore for artificial islands for non-mineral purposes, such
as airports and even living purposes,21 9 appears to be both feasible
214a See supra, n. 38.
215Art. 28(f).
21 Art. 22.
217See supra, nn. 87-93, 104-109. Since the tabling of the Draft Articles on the
Breadth of the Territorial Sea, Straits and Fisheries at Geneva in August of
1971 there is no longer a hiatus in U.S. policy on this point. See infra, nn. 283
et seq.
218See text supra, at nn. 181 et seq.
2190 Offshore islands and other man-made coastal installations are proving
to be very much in demand, if not necessary, in urbanized coastal areas.
There have been a vast variety of such structures and installations proposed
for continental shelf areas, including airports, floating cities and hotels. See
Urban Expansion Takes to the Water, Fortune Magazine 131 (Sept. 1969);
I Nossaman OCS Study, supra, n. 167, 11.61. The fact that the Convention on
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EVALUATION OF UNITED STATES OCEANS POLICY
669
and desirable. The authorization and regulation of the develop-
ment of geothermal and fresh water resources, salvage and treas-
ure recovery, aquaculture, and dredging and dumping, would also
appear appropriate.2
Already there have been attempts to build islands on the Cortes
Bank 120 miles off Southern California 2 2 ‘ and on the Triumph and
Long Reefs located 41/2 miles off southeastern Florida.22 While
both of these areas would fall within limits of national jurisdic-
tion under the Draft Convention, they do point up the need for
the consideration of non-mineral uses of the proposed Interna-
tional Seabed Area, including the International Trusteeship Area.
The Draft Convention would effect a renunciation of the right of
the coastal state to control such other uses, except to the extent
that they might be construed as falling within the limited mineral
and seabed resource delegation made to it and would invest the
International Seabed Resources Authority with the power to pro-
hibit them but not to authorize them 223
There have been indications that it was the intention of the
drafters of the U.S. Draft Convention that the rights of the inter-
national community with respect to non-mineral uses be left as
they are in whatever ambiguous state they may be. If one fol-
lows a flag nation analogy, can country A build and claim sov-
ereignty over an offshore island located on the International
Seabed Area adjacent to country B and 30 miles offshore? 224
the Continental Shelf does not expressly provide for such uses does not neces-
sarily mean that a coastal state is without the power to make use of its
continental shelf for such purposes, although a negative inference in this
regard can be drawn from the language of the Convention. Cf. military use,
supra, n. 126. See Krueger, op. cit., supra, n. 167 at 802; Auburn, infra, n. 246
at p. 181.
220 Id., at 803 et seq.; 1 Nossaman OCS Study, op. cit., n. 167, 11.62 – 11.63.
221 1 Nossaman OCS Study, supra, n. 167, at p. 20.
222 Recently in United States v. Ray, 294 F. Supp. 532 (S.D. Fla. 1969) the
construction of two islands nations on a reef approximately four and one-half
miles offshore the southeast coast of Florida was held unlawful in the absence
of federal permits under the provision of the Outer Continental Shelf Lands
Act and a permanent injunction issued. On appeal the judgment was affirmed
with the Fifth Circuit Court of Appeals noting “[n]either ownership nor
possession by [the United States of the lands in question] is a prerequisite
for the granting of injunctive relief”. 432 F. 2d 16, 22 (1970).
223See Draft Convention, art. 2, supra, n. 38a.
224 Under the U.N. Draft Convention, a good argument could be made that
country A could undertake this act unless the International Seabed Resource
Authority prohibits the same. Article 3 provides that
McGILL LAW JOURNAL
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Could country B claim the same island, a territorial sea sur-
rounding the same, and even a continental shelf adjacent thereto
by constructing it and a causeway to it? 225 It should be quite clear
that a coastal state which today has quite broad, although as yet
inchoate, powers over its continental shelf for such purposes has
a sufficiently direct nexus with them to be given jurisdiction and
control over them.220 Politically it would be difficult for most, if
not all, of the countries of the world to accept the jurisdiction of
an international agency over such other uses of their continental
shelves and other immediately adjacent areas. In any case, however,
these new uses of the oceans and their resources could be of great
significance and a rule of law with respect to them should be
created at a relatively early date both with respect to the Inter-
national Seabed Area and for the continental shelf itself. It may
be that the inclusion of certain of them in the agenda for the
first law of the sea conference scheduled for 1973 would un-
necessarily complicate it, but the point should be treated, even if
only by way of reservation or exception. 227 Until an international
rdgime for these uses has been established it would seem clear
that any rights of the coastal state with respect to them should
“The International Seabed Area shall be open to use by all States, without
discrimination, except as otherwise provided in this Convention.”
It seems quite clear, however, that International Seabed Resource Authority
could and probably would prohibit such activity in light of its preemptive
authority over the seabed and its regulatory powers for the purposes of living
resource conservation and environmental protection. See Draft Convention,
arts. 6-9, 22 and 23; supra, n. 38a. Under existing law country A could probably
not build such an island in view of the fact that it would probably involve a
proscribed use of country B’s natural resources in which its rights are ex-
clusive. See Convention on the Continental Shelf, op. cit., n. 211, art. 2, para 2;
The Geneva Convention on the Continental Shelf, (1959), 35 Brit. Y.B. Int’l L.
The question is not free from doubt, however, in view of the fact that the
island might constitute “territory” not theretofore claimed by country B. This
was the 1969 Jessup International Moot Court Competition question.
225 Country B would have a quite credible claim in such a case. The Con-
vention on the Territorial Sea and Contiguous Zone, 2 U.S.T. 1606, T.I.A.S.
No. 5639, 516 U.N.T.S. 205, provides that the territorial sea is measured from
the “low-water line long the coast” (Art. 3) and “the outermost permanent
harbour works … shall be regarded as forming part of the coast” (Art. 8).
Further, it is clear from the 1965 U.S. v. California (381 U.S. 139, 175 [1965])
decision that artificial filling creates a new coastline for this purpose. See
Krueger, op. cit., n. 2 at pp. 462-463. Again, However, the matter is not free
from all doubt where a distance of the above magnitude is involved.
226Id., supra, n. 217.
227 See supra, n. 40; text, supra, nn. 223 et seq.
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EVALUATION OF UNITED STATES OCEANS POLICY
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be preserved.228 It seems certain, however, that the agenda for
the conference cannot be limited to the seabed. It must include
the issue of coastal fisheries and a national contiguous zone for
their conservation and development if there is to be any reason-
able expectation of establishing a consensus with the developing
coastal states2 29 To these nations this issue cannot be severed
from the mass of other relevant issues, such as the territorial sea,
the breadth of the zone of national jurisdiction for the seabeds
and the international r6gime for the seabeds. 80
4. The International Seabed Resources Authority
The International Seabed Resources Authority proposed in the
Draft Convention is a large and complicated agency, but one which
could ultimately prove to be the type of organization that will be
necessary in order to intelligently manage the world’s oceans and
their resources. The rationale presented by the United States for
the structure was that it was easier to negotiate and administer
a r6gime providing for extensive and complete machinery and
simple rules than one calling for extensive rules and simple
machinery. 31 The mixed reaction receive to date, however, would
indicate that there is question as to whether this is the case.”2
It does seem quite clear that the proposed Authority is more
complex than it would be required to be in order to fulfill the
functions that it will be assigned at least in the beginning years
of its operations.2 33 Part of the complexity would appear to be due
to the responsibilities which it would be given regarding the In-
ternational Trusteeship Area and political ramifications concerning
it. The International Trusteeship Area can be expected to be
the most attractive area during the begining years of the Au-
thority, particularly for petroleum prospects, which undoubtedly
22s Ibid. See Krueger, supra, n. 2, at p. 493.
229 See supra, nn. 87-93, 104-109. This is not to suggest, however, that an
oceanic species, such as tuna, which are usually fished in a coastal or near
coastal area, need be put in the same category as coastal fisheries, such as
anchovy. See Loring, op. cit., n. 91 at pp. 424, 434 et. seq.; statement of John R.
Stephenson to subcommittee II of U.N. Seabeds Committee, Part V, infra,
at p. 6.
23o Ibid.
231 Statement by Ambassador Christopher H. Phillips, United States Mission
Press Release, Geneva, Aug. 7, 1970, at p. 7.
232 See supra, nn. 55-56.
233 See supra, n. 138.
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was a factor in the formulation of the various commissions and
the quite voluminous operating provisions .34 The drafters were
preparing the Authority to cope with all the problems of the
Bureau of Land Management, the U.S. Geological Survey and the U.S.
Army Corps of Engineers in the administration of the outer con-
tinental shelf.235 The broad powers of the Authority with respect
to the International Trusteeship Area also undoubtedly influenced
the division of the proposed Council into “industrially advanced”
and “developing” nations and the creation of their mutual veto
powers. 3
If the International Trusteehip Area were to be eliminated and
a simplified r6gime developed, as suggested above,237 there is, there-
fore, good reason to believe that the structure could be substan-
tially simplified. If, for example, the coastal states were given
jurisdiction over seabed resources and coastal fisheries to the base
of the continental margins or a broader contiguous zone stated in
terms of distance with appropriate covenants and conditions im-
posed in order to implement the identified policy objectives,23
the
Authority would need quite little by way of organizational structure
or staff to administer resources in the area beyond and monitor or
participate in the monitoring of the activities of the coastal states.
In this regard the monitoring might also be carried out through
the aegis of the U.N. Seabeds Committee or the Intergovernmental
Oceanographic Commission of UNESCO in cooperation with other
interested U.N. organizations.2 39
Moreover, enforcement of the covenants and conditions imposed
upon the coastal states could be effected through the sanctions of
withholding aid under the Draft Convention (and possibly through
U.N. organizations generally) and a boycott on resources produced
in violation of the conditions imposed. It would be possible also
to provide for the suspension of rights in the high seas and the
territorial seas of contracting nations F
4
0
4 See supra, nn. 191, 194.
235 See Krueger, supra, n. 167, at pp. 779 et seq.; 1 Nossaman OCS Study,
Chapter 2 (Allocation of Federal Jurisdiction over Activities on or Affecting
The Outer Continental Shelf).
36 See supra, nn. 46-47.
237See supra, nn. 210-213.
238 Ibid.
239See U.N. Law of the Sea Conference Resolution, supra, n. 71, para. 13.
240 See L. Goodrich, E. Hambro, and A. Simons, Charter of the United Na-
tions 311-14 (1969). There is here suggested nothing more than an application
of the principle of reciprocity; the most prominent example of its use is the
reciprocal tax or tariff treaty.
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With a simplified system, completely international in focus,
much less by way of a political structure would be necessary.
There would seem to be less need to emphasize the division be-
tween the developing and developed countries. The concept of
regional interest is an attractive one and perhaps the proposed
Council could be composed of a designated number of representa-
tives from identified regions represented among the contracting
states with provision for election or rotation on a fixed basis?24 1
With a structure of this type, there might not be a need for the
proposed Assembly consisting of representatives of all contracting
states.2 42 Insofar as the allocation of revenues received from the
International Seabed Resources Area or from a coastal state’s off-
shore is concerned, the structure might provide for a committee
of the Council to make such allocation and have on it developing
and developed powers with mutual veto rights as proposed in the
Draft Convention. 243
The newly constituted Council could be given the authority to
create commissions, committees, a tribunal and all of the other
administrative machinery set forth in the Draft Convention with-
out specifying their exact functions, dimensions and composition
at this time. This would permit the organization to grow logically
with its responsibilities. Again, the changing and expanding role
of the federal government in the federal-state relationship in the
United States offers an apt analogy.
It is noteworthy that any earmarking of funds for international
purposes from lands claimed by the federal government and to
establish restrictions or conditions on them in connection with
an international rdgime will require federal legislation and proba-
bly an amendment to the Outer Continental Shelf Lands Act.244
241 This is somewhat the concept of the newly enlarged U.S. Seabeds Com-
mittee whose 44 new members are to be “appointed by the Chairman of the
First Committee in consultation with regional groups and taking into account
equitable geographical representation thereon in a framework of close inter-
national co-operation”. See supra, n. 79.
242See supra, n. 47.
243 See supra, n. 46.
2441n the December 21, 1970, report of the Special Subcommittee on Outer
Continental Shelf of the U.S. Senate Committee on Interior and Insular
Affairs, supra, n. 52, it is stated at p. 29:
“Article IV. Section 3, Clause 2 of the United States Constitution delegates
to the Congress the power to dispose of all property of the United States.
All rights specified in the 1953 Outer Continental Shelf Lands Act, and
in the 1958 Geneva Convention on the Continental Shelf are the property
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There have been strong indications within Congress that a simpler
international r6gime and organization would be more acceptable 24 ‘
5. Reappraisal and Adjustment
The Nixon proposal was unquestionably a very generous and
fair one. It showed to the world community the willingness of the
United States to provide a format for the internationalization of
the oceans, if other states would agree. The Draft Convention was
an imaginative effort to provide compromises that would minimize
national claims but still appeal to national interests. The U.S. Draft
Convention, however, was an incomplete and somewhat awkward
statement of the principles enunciated in the Nixon proposal. Few
supporters of it can be found outside of the United States and there
are strong opponents within this country.2 46
Notwithstanding, neither the Nixon proposal nor the U.S. Draft
Convention, viewed even in a narrow sense has failed. The Nixon
proposal remains a highly credited statement of foreign policy and
the U.S. Draft Convention as a working paper has inspired a great
deal of constructive thought in the United Nations and elsewhere
that has contributed to the progress on international oceans policy.
In a broader sense, moreover, the Nixon proposal may prove,
may indeed already be, an outstanding success. It appears to have
given the United States the initiative in a very difficult negotiating
of the United States. The designation of those rights constituting the heart
of our sovereign rights is in no way intended to be an exhausted descrip-
tion of all of the property rights possessed by the people of the United
States in our continental margin. As we interpret Article IV, Section 3,
Clause 2 of the United States Constitution, renunciation of any of the
rights referred to in any of the aforementioned laws would require an
Act of Congress.”
In any case, it would be necessary that a new treaty on the subject be
ratified by the United States Senate before the United States would be bound
by it. In this regard, it is noteworthy that a credible, although highly legalistic,
case can be made that Article 2.1 of the U.S. Draft Convention would violate
Article 30 of the Vienna Convention on the Law of Treaties, 8 Int’l Leg.
Materials, (1969), p. 674. Arguably, Article 2.1 would require a contracting
party not to recognize rights confirmed by the 1958 Convention on the Con-
tinental Shelf as to non-contracting parties. See NPC Supplemental Report,
supra, n. 39 at p. 17; supra, n. 187.
245 See supra, n. 52.
246 See supra, nn. 39, 52, 55-56. See also, Auburn, The International Seabed
Area, (1971), 20 Int’l and Comp. L.Q., 173 at pp. 179 et seq.; Jennings, The
United States Draft Treaty on the International Seabed Area – Basic Prin-
ciples, (1971), 20 Int’l and Comp. L.Q. 443 at pp. 447 et seq.
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EVALUATION OF UNITED STATES OCEANS POLICY
675
situation. It, the U.S. Draft Convention and the other interim work
of the Department of State, would appear to have had a signifi-
cant role in creating the atmosphere which resulted in the very
successful 1970 sessions of the U.N. First Committee and the Gen-
eral Assembly on the oceans resolutions.2 7 It is very apparent
from a review of developments in 1970 that the United States
gradually assumed a role of leadership in seabeds matters and
in this the Nixon proposal, as developed by the U.S. Draft Conven-
tion, played a major part.
It is clear that most of the principles of the Nixon proposal
can be implemented by a treaty calling for a broad national re-
source contiguous zone of the type suggested above, the major
exception being the proposed renunciation of national claims to
8 The
seabed resources beyond an oceans depth of 200 meters.
deletion of this element of the proposal should present no diffi-
culty. The entire proposal was conditioned upon acceptance of
the international community and this element has not been so
accepted.2 49
Insofar as the Draft Convention is concerned, it was presented
only as a working paper and appropriate adjustments in the
format can properly evolve during the workings of the U.N. Sea-
beds Committee in its capacity as the Preparatory Committee
for the proposed 1973 law of the sea conference.
C. Future Developments
1. Conference on the Law of the Sea
With the passage of the U.N. seabeds resolutions in late 1970,50
it becomes very likely that there will be a United Nations con-
ference or conferences on the law of the sea in 1973, as scheduled,
or within a short period thereafter.251 The conference is presently
247 See supra, nn. 61 et seq.
248 See supra, nn. 38, 211-212.
249 The Nixon proposal included:
“I believe that these proposals are essential to the interests of all nations,
rich or poor, coastal and landlocked, regardless of their political systems.
If they result in international agreements, we can save over two-thirds
of the earth’s surface from national conflict and rivalry, protect it from
pollution, and put it to use for the benefit of all. This would be a fitting
achievement for this 25th anniversary year of the United Nations.” See
supra, n. 38.
250 See supra, nn. 61, et seq.
2 5 1 See supra, n. 77.
McGILL LAW JOURNAL
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scheduled to deal with the entire multitude of ocean and ocean
resource questions, although the preparatory committee, the en-
larged U.N. Seabeds Committee, seems to have been assigned a
priority with the international issues framed by the Nixon pro-
posal and the U.S. Draft Convention.252
It will be incumbent upon the preparatory committee to create
a “manageable package” for the 1973 Conference which may very
well involve limited treatment or reservation of some of these very
complex issues. 25 3 The manner in which they are treated on the
proposed agenda will be important to the success of the Confer-
ence.254
2. Convention Provisions
Obviously of prime interest is the fixing of limits of national
jurisdiction for both seabed and oceans resources and the creation
of a r6gime for the area beyond. At the time of the 1958 Geneva
Conference on the Law of the Sea, there were 82 members in the
United Nations of which 57 (out of 68 voting) voted in favor of
the Convention. There are now 131 members in the United Nations 2″
with most of the new members consisting of developing nations.”‘
It is likely, therefore, that obtaining the requisite approval to a new
treaty will be even more difficult than in 1958.251 The coastal
states which will have a substantial, even if not controlling,258
majority at the conference have typically shown a strong interest
in establishing a broad national contiguous zone for resource
development and conservation purposes.25 9 Furthermore, as we
have seen, there are structural difficulties in attempting a “trustee-
ship” zone of the type proposed in the U.S. Draft Convention
252 See supra, n. 77.
253 See supra, nn. 101, 229 et seq.
2 54 See supra, nn. 57-60; U.S.S.R. Draft Treaty, infra, Part V, U.N. Doc. A/AC.
138/43, July 22, 1971.
255 See Krueger, The Convention on the Continental Shelf, The Need for Its
Revision and Some Comments Regarding the Regime for the Lands Beyond,
(1968), 1 Nat. Res. Lawyer 1, at p. 13.
256Interview, October 11, 1971, United Nations Informations Service, The
last three admittees were Bahrain, Qatar and Bhutan admitted on September
23, 1971. New York Times, Sept. 23, 1971. Bahrain and Qator are oil-rich
Persian Gulf states.
257See Krueger, supra, n. 2 at p. 472.
258 See supra, nn. 90-93, 104, 136.
259 See supra, nn. 130 et seq.
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EVALUATION OF UNITED STATES OCEANS POLICY
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(200 miles? 262 ), whichever
in which the proposed international agency would in effect have
preemptive powers.260 Both factors weigh
in favor of defining
the contiguous zone broadly. The concept of establishing the zone
in terms of designated water depth (2,500 meters? 261) or distance
from the coastline
is further, with
portions of the revenue being earmarked international purposes,
could prove to be politically attractive.263 It is noteworthy that only
13 Latin American countries signed the Genevea Convention on the
Continental Shelf and that only 8 have ratified or acceded to it.26 4
When the first 200 mile claims were made they appeared unreason-
able, if not shocking, in light of the then existing technology. This is
not true today when present and probable technological capability
is not limited to the near shore and continental shelf.2 5
The proposed international agency to administer resources in the
area beyond could also be given specific monetary and regulatory
functions in the contiguous zone to insure the effectuation of inter-
national policy objectives, principally those relating to environ-
mental protection and resource conservation 266 The proposed con-
vention could possibly be made more attractive to developing states
by permitting them to retain all revenues from their area of national
jurisdiction until they had reached a designated gross national
product with progressive contributions being made thereafter until
the state reached a “developed” level of GNP.261
260 See supra, n. 209 et seq.
261W. T. Pecora, Director of U.S. Geological Survey in 1968, commented that
“the base of the continental slope.., throughout much of the world is
at or below the 2,500 meter isobath”. He suggested that, therefore, “as
an interim line of demarcation to delineate the continents from the
oceans”. February 1, 1968 statement. See Krueger, supra, n. 255 at p. 13;
supra, n. 194.
262 See supra, nn. 90-93.
263 See Grunawalt, The Acquisition of the Resources at the Bottom of the
Sea – A New Frontier of International Law, (1966), 34 Mil. L. Rev. 101, at p. 131;
Krueger, supra, n. 255 at p. 14. Arvid Pardo has suggested a straight 200
mile limit for coastal state jurisdiction. See Malta supra, n. 93.
264 Only Colombia, The Dominican Republic, Guatemala, Haiti, and Venezuela
have ratified the Convention, although there has been an accession deposited
by Jamaica, Mexico, and Trinidad-Tobago. U.N. Multilateral Treaties in Respect
of Which the Secretary-General Performs Depositary Functions; List of Signa-
tures, Accessions, and Ratifications. U.N. Publication, Dec. 31, 1970.
2605 See Krueger supra, n. 2 at pp. 451 et seq.
266 See supra, n. 211 et seq.
2 67 The gross national product was the standard for differentiating between
“developing” and “industrially advanced” parties under the Draft Convention.
Art. 36, para 2; App. E, para. 1. See supra, n. 46.
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The proposed national contiguous zone could initially be made
applicable only to seabed resources and coastal fisheries,20 8 but in
the future hopefully the rights of the coastal state would also be
extended to other uses, such as artificial islands. 20 The territorial
sea could be established at 12 miles and rights of free transit
guaranteed through designated international straits and national
contiguous zones.270 The right of free transit should, however, be
subject to reasonable regulation by the coastal state for purposes
of environmental and resource protection.27 1 This might at times
result in some impingement of military and national security values
of developed nations.2 2
268See supra, nn. 241a et seq.
269 See supra, nn. 219-223.
270 See supra, nn. 119 et seq.
271 See supra, nn. 211 et seq.
272 Malta has recommended a slightly modified right of innocent passage in
“national ocean space”. See Draft Ocean Space Treaty, supra, n. 93, art. 47;
Pardo, supra, n. 93 at pp. 50 et seq.; cf. nn. 121 et seq. The Senatorial critics of
the United States “free transit” proposal fear that it will in the short run
require a trade-off of national interest in deep sea mining and in the long
term be unobtainable. See The Law of the Sea Crisis, supra, n. 93.
At its twenty-sixth (1971)
session the United Nations General Assembly
adopted a resolution entitled “Declaration of the Indian Ocean as a zone of
peace” in which it took note of “recent developments that portend the exten-
sion of the arms race into the Indian Ocean area, thereby posing a serious
threat to the maintenance of such conditions in the area” and concluded that
“the establishment of a zone of peace in an extensive geographical area in one
region could have a beneficial influence on the establishment of permanent
universal peace based on equal rights and justice for all, in accordance with
the purposes and principles of the Charter of the United Nations”. U.N. Doc.
A/RES/2832 (XXVI) (Jan. 19, 1972). The resolution then declared the Indian
Ocean to be a “zone of peace” and called “upon the littoral and hinterland
States of the Indian Ocean, the permanent members of the Security Council
and other major maritime users of the Indian Ocean … to enter into consul-
tations with a view to the implementation of this Declaration and such action
as may be necessary to ensure that: [inter alia]
“(a) Warships and military aircraft may not use the Indian Ocean for any
threat or use of force against the sovereignty, territorial integrity and
independence of any littoral or hinterland State of the Indian Ocean in
contravention of the purpose and principles of the Charter of the United
Nations;
“(b) Subject to the foregoing and to the norms and principles of inter-
national law, the right to free and unimpeded use of the zone by the
vessels of all nations is unaffected.” Ibid. [Emphasis added.]
This resolution which was approved by the First Committee 50 to none with
49 abstentions, the abstentions consisting of the United States, the Soviet
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EVALUATION OF UNITED STATES OCEANS POLICY
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The interest of coastal states in protecting offshore fish stocks
in which they have a direct interest could also be recognized
and further support created by provisions giving the coastal state
preferential rights in them under terms which would encourage
regional conservation measures. A Convention on Fishing and Con-
servation of the Living Resources of the High Seas similar to that
adopted in Geneva in 1958, but “with teeth” should attract a great
deal of support.27 3 It would also be appropriate to give the proposed
international agency powers to manage and protect fishery stocks
in areas beyond limits of national jurisdiction.2 7 4 Comprehensive
national and international management powers could begin to
establish a concept of rationality in the protection and allocation
of living resources of the oceans.2 7 5
The r6gime for the international zone should incorporate the
objectives set forth in the December, 1970 U.N. resolution and
others identified above,27’6 and could follow any one of a number
of suggested organizational structures. A feasible course, and one
which this writer favors, is the establishment of a relatively sparse
Union and their normal voting associates, shows quite clearly the very cautious
attitude which many of the developing countries have toward the military
or “security” interests of the great powers. Rep. of U.N. Ist Com. U.N. Doc.
A/8584 (Dec. 14, 1971), p. 3. See also Statement of People’s Republic of China,
New York Times, infra, n. 342. Cf. infra, nn. 285-286, 305, 313.
273 Convention on Fishing and Conservation of the Living Resources of the
High Seas, supra, n. 211, was also adopted at the 1958 U.N. Conference on
the Law of the Sea and became effective in 1966 after being ratified by 25
nations. The Convention authorizes conservation measures by nations for
“any stock of fish or other marine resources in any area of the high sea
adjacent to its territorial sea”. Id., art. 7, para. 1. Few of the great fishing
powers have ratified the Convention and it has distinctly failed to achieve its
conservation purpose. See Crutchfield, The Convention on Fishing and the
Living Resources of the High Seas, 1 Nat. Res. Lawyer (No. 2) 114, at pp. 119
et seq.; 1 Nossaman OCS Study 1.4. Cf. infra, nn. 283 et seq.
274 See supra, n. 214 et seq.
275 There is no reason that fish stocks either in contiguous zones in which
the coastal states have a preferred interest or in the area beyond cannot be
allocated on a pre-determined basis, either competitively or non-competitively,
so as to maintain their maximum sustainable yield. Crutchfield supra, n. 273
at p. 122 et seq. The Marine Sciences Commission made recommendations
consistent with this concept. See Our Nation and the Sea, 92-93; Krueger supra,
n. 167 at p. 803. It is noteworthy that the Draft Convention contains no provi-
sion for the allocation or conservation of living resources except with respect
to those of the seabed. See arts. 22, 27, para. 2h; supra, nn. 214 et seq. Cf.
infra, nn. 283 et seq.
270 See supra, nn. 158 et seq.
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organization with well-defined responsibilities which makes the
maximum use of existing national and international agencies and
institutions.27 7 The financial assistance for the international agency
“for international community purposes, particularly economic as-
sistance to developing countries”, identified in the Nixon proposal,
could be supplied by earmarking in the Convention a portion of
the revenue received by the coastal state from seaward portions of
their areas of national jurisdiction. With a 2,500 meter/200 mile
format, it would seem reasonable to require such payments as to
all areas beyond 200 meters or 50 miles, whichever is further. 78 The
international agency should be required in its operations to give full
consideration to all uses, values and resources of the oceans in its
policy determinations.279
Even in recent years, it has been unfashionable in some circles
to speak of the need for the revision of the Geneva Conventions,
much less the establishment of an international r6gime for the
deeps 2ss0 In the past few years, however, we have moved toward a
national and international understanding of the issues and problems
involved which should lead us in the next five years to some
rational and acceptable solutions to the major problems involved. If
we do, it will provide sound evidence of the worth and viability
of the United Nations. It is fitting that the first tangible steps
toward this accomplishment occurred on its 25th anniversary.
III. Conclusion
Those in the U.S. Government who have supported the concept
of free transit incorporated in the U.S. Draft Convention have been
criticized, and largely unfairly criticized, as “nautical hawks”2 81 The
277 See supra, nn. 138 et seq., 231 et seq.
278 Cf. the Marine Sciences Recommendation regarding its “intermediate
zone”, Our Nation and The Sea, pp. 145-151 (1969); the Nixon proposal, supra,
n. 37.
279 See supra, nn. 182, 214 et seq.; 1 Nossaman OCS Study 12.1 – 12.2;
Krueger supra, n. 167 at p. 808.
280 See supra, n. 23.
281 In 117 Cong. Rec. March 10, 1971, Senator Metcalf is quoted at p. S2815
as follows:
“There are, however, some few militant factions in our Government which
are hopeful that coastal nations will sacrifice their sovereign rights to the
natural resources of their continental margins. These nautical hawks feel
that their freedom to navigate may be hampered by the development of
natural resources of the continental margins of the world.”
See also statement of Senator Stevens, id. at p. S2818.
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EVALUATION OF UNITED STATES OCEANS POLICY
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allegation does, however, raise an element of relevance. The term
“hawk” immediately brings to mind Vietnam and the depersonal-
ized and quite intellectualized policy commitments that were made
by the United States. Vietnam, in the view of one expert observer,
provides a classic example of “the non-material element of will,
of purpose and patience.., a rebuke of spirit to the logic of
numbers”,28 2 a comment that perhaps is equally applicable to the
position of the developing coastal nations of the world regarding
their offshore resources. The United States has solid supporters with-
in the world community for its approach in the development of
international oceans policy, with Canada being one of the more
innovative and treasured. It would be unfortunate in the extreme,
however, if the United States and the other developed countries
of the world were to give other than full recognition to the aspi-
rations, policies and needs of the developing coastal states in
creating necessary reconfigurations of oceans policy. These nations
are not aberrant; they are not outlaw; they are not irrational.
Their claims and interests must be accorded respect if consensus
is to be established on the critical elements of oceans policy.
With due regard to the present and predicted need for resources,
both living and non-living, it would seem clear that the world com-
munity and its various members should encourage the development
of ocean resources, if development can be undertaken without a
significant adverse impact on other equally important values pe-
culiar to the area where the operation is to be conducted. The
economic and revenue producing aspects of offshore development
have been given great, at times overriding, consideration in the past
and continue to be overemphasized by many. These considerations
should not be ignore4, but they should not be given greater weight
than other beneficial policy objectives. Ocean resources should be
managed for the maximum economic benefit, but only where this
is compatible with other policy objectives. It may be that with
the developing countries this concept is only feasible with outside
assistance as appears to be the case with environmental protection
programs generally. In this case the assistance should be provided.
In the conservation and development of ocean resources, the
international community cannot afford to assume a neutral or
passive role. It should provide the machinery to actively plan and
manage resource development in such a manner as to best accom-
plish all identified policy objectives. The proposed new international
282 George W. Ball, former Undersecretary U.S. Department of State, in
essay, “The Trap of Rationality”, Newsweek Magazine, July 26, 1971, p. 64.
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rdgime should provide the framework and the incentives for various
states to meet this goal. In creating those incentives, great care
must be taken to appropriately recognize resources, uses and values
in which the various coastal states have a “real” interest. Traditional
and vested rights in oceans should have a prominent place in con-
siderations, but the issue is not what the rule of law is, but what
the rule of law should fairly be.
Today the developments both here and in the United Nations
give every promise of national and international rules that will
move man toward the intelligent use and management of the oceans
and cement further international bonds regarding this invaluable
common heritage.
IV Epilogue
Except as expressly noted otherwise, the foregoing analysis has
considered developments only through mid-1971. There were, how-
ever, a number of developments involved in the July-August 1971
meeting of the United Nations Seabed Committee that are worthy
of note.
The announcement by the United States on August 3, 1971, of
Draft Articles on the Breadth of the Territorial Sea, Straits and
Fisheries 283 emphasized the priority given to free transit by the
United States in unmistakable language:
[T]here are uses of the oceans with respect to which we must all
exercise the greatest care and circumspection. I am speaking of navigation
and overflight. The freedoms of navigation and overflight connect us as
a single community; they embody our rights and interests in communicat-
ing with each other.
In the imperfect world in which we live, many nations, including the
United States, depend upon air and sea mobility in order to guarantee
their ability to exercise the inherent right of individual and collective
self-defense. To contemplate changes in the law of the sea that might
reduce that mobility is to contemplate changes affecting fundamental
security interests not only of States compelled to maintain significant
military preparedness, but also of States that rely on the stability created
by a political and military balance to pursue other important national
goals, and to avoid diverting too much of their attention and resources
to matters of security.
2s3Statement by John R. Stevenson to Subcommittee II U.N. Seabeds Com-
mittee on “Submission of Draft Articles on the Breadth of the Territorial
Sea, Straits and Fisheries”, Release United States Mission, Geneva, August 3,
1971.
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We doubt whether any State would wish to subject its sea communi-
cations or defense preparedness to the consent or political goodwill of
it should be apparent that new rules
another State. Accordingly,
of international law that might have the effect of reducing mobility
cannot be expected to enhance international stability.284
The Draft Articles, supplementing the U.S. Draft Seabeds Con-
vention, would establish the following:
1. A twelve mile territorial sea subject to a right of free transit
in straits as “an inherent and inseparable adjunct of the freedoms
of navigation and overflight on the high seas themselves”. 285 The
proposal, however, left (albeit somewhat ambiguously) the door
open for pollution and environmental control by the coastal state:
Subject only to the right of free transit, territorial waters in international
straits would retain their national character in each and every respect.
The new right of free transit would only apply in international straits,
using the definition that was adopted at the 1958 Law of the Sea
Conference; it would not apply to other territorial or internal waters.
Moreover, the right is a narrow one – merely one of transiting the
strait, not -of conducting any other activities. Should a vessel conduct
any other activities that are in violation of coastal State laws and regu-
lations, it should be exceeding the scope of its right, and would be
subject to appropriate enforcement action by the coastal State.
When we refer to enforcement of coastal State laws and regulations,
we intend to include reasonable traffic safety regulations both for vessels
and aircraft.2 G
2. An international or regional r6gime for the regulation of
living resources of the high seas “designed to maintain the maxi-
mum sustainable yield or restore it as soon as practicable, taking
into account relevant environmental and economic factors.28 7 Allo-
cation of the fishery would be without discrimination, except that
“[t]he percentage of the allowable catch of a stock in any area
of the high seas adjacent to a coastal State that can be harvested
by that State shall be allocated annually to it”. 2 8 8 There are two
important exceptions to this rule, however:
2 84 Id., at p. 2. Emphasis added.
285 Id., at p. 3.
2861d., at p. 4. Emphasis added.
287 Draft Articles on the Breadth of the Territorial Sea, Straits and Fish-
eries submitted by the United States, August 3, 1971, art. III, para. 2A, supra,
n. 283, at pp. 6 et seq.
288 Draft Articles, art. III, para 2C, supra, n. 287, at p. 4. This also applies to
anadromous fish to the extent that they “can be harvested by the State in
whose water it spawns”. Id., para. 2D. The form of fishery allocation and
regulation proposed is quite clearly directed to species. See statement of
Donald L. McKernan, infra, n. 295. The use of the concept of adjacency with
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a) “The percentage of the allowable catch of a stock tradi-
tionally taken by the fishermen of other States shall not be
allocated to the coastal State”; 289 and
b) “[H]ighly migratory oceanic stock”, e.g., tuna, “shall be
regulated pursuant to agreement or consultation among the States
concerned with the conservation and harvesting of the stock”. 00
3. A conceivably regional, but predictably national, r6gime for
coastal fisheries or those that spawn in the water of that nation.
Except in the case of a “highly migratory oceanic stock”, a coastal
State would be empowered to implement all of the proposed conser-
vation provisions, if it has submitted to “all affected States its
proposal for the establishment… of an international or regional
fisheries organization.. .”; “[n]egotiations with other States affected
have failed to produce, within four month, agreement on measures to
be taken either with respect to the establishment of an organization
or with respect to the fisheries problems involved”; and “[t]he
coastal State has submitted to all affected States the available data
supporting its measures and the reasons for its actions”.291 It would
appear predictable that “affected States” would be offered a proposal
that would not inspire their acceptance. 292
respect to coastal fisheries, however, could lend itself to the same type of
disagreement which has typified the construction of the continental shelf set
forth in the 1958 Geneva Convention. U.N. Doc. A/CONF.13/L.55 (1958), art. 1.
Compare Oxman, The Preparation of Article 1 of the Convention of the Conti-
mental Shelf, (1972), 3 Journ. Maritime Law and Commerce 245 and Stone,
Legal Aspects of Marine Oil and Gas Operations, 15th Ann. Inst. on Mineral
Law L.S.U. (1968), p. 31. See Krueger, supra, n. 2 at pp. 474475.
289 Id., at art. III, para. 2C(1).
99If an international or regional organization established standards for the
taking of “a highly migratory oceanic stock”, it would be controlling. Id., at
art. III, para. 1, p. 3; III, para. 3A, p. 5. It is highly questionable, however,
whether it will be practicable for such standards to be established in the
near future. The international or regional organization must be one in which:
“the coastal State and any other State whose nationals or vessels exploit or
desire to exploit a regulated species have an equal right to participate without
discrimination”. Id., at art. III, para. 1, p. 3. Cf. infra, n. 292.
291 Draft Articles, Art. III, paras. 3A and B(l) (2) and (3) supra, n. 287, at
pp. 5-6. Art. III, para. 3 also provides:
“The implementing regulations of the coastal State may apply in any
area of the high seas adjacent to its coast or, with respect to an ana-
dromous stock that spawns in its fresh waters, throughout its migratory
range.” Id., at p. 6.
292The history of the relations between the various foreign fishing nations
and the nations whose coastal fisheries they have exploited has typically not
been a happy one. See Loring supra, n. 91, at pp. 424 et seq.; Auguste, supra,
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The U.S. Draft Articles also provided for the compulsory settle-
ment of disputes and a number of procedural matters such as the
form of inspection and arrest functions.2 93
Politically, however, perhaps the most important aspect of the
document from a political standpoint was the quite clear indica-
tion of relative rigidity with respect to the concept of free transit
and the attitude of accommodation with respect to the fisheries
issue. Compare the following statements:
[T]he first two Articles we are presenting, we believe, would together
provide the necessary accomodation of the international and maritime
interests in navigation and overflight that I have outlined. They constitute
basic elements of the Oceans Policy announced by our President last
year. I trust that the considerations I have discussed explain why my
Government would be unable to conceive of a successful Law of the
Sea Conference that did not accommodate the objectives of these Articles.
It should be clear from my remarks concerning fisheries that our
consultations have indicated a need for further accommodation of coastal
States by distant water fishing States. We have submitted our own
draft in order to encourage consideration of a practical solution of the
problem that avoids juridical absolutes, and that takes into full account
the modern trend toward international and regional cooperation. We
look forward to the submission by other States of fishery proposals
designed to achieve a broad accommodation of interests, and pledge
our sympathetic consideration of any such proposal that is formulated
in a way that precludes the potential for encroachment on freedom
of navigation and overflight beyond….294
The U.S. delegation appeared to be technically the best equipped
and prepared to advise the U.N. Seabeds Committee on the tech-
nical aspects of matters at issue.2 95 While there were no members
n. 95, at p. 264. The fact that the coastal State will be given regulatory power
over coastal and anadromous fisheries, if an international or regional organi-
zation is not established, would in and of itself provide motivation to avoid
agreement.
293 Draft Articles, art. III, para. 4, supra, n. 287, at pp. 6-7; Stevenson state-
ment, supra, n. 283, at p. 8.
294Stevenson statement, supra, n. 283, at pp. 5, 8. There would appear,
therefore, to be some reason to believe that “a highly migratory oceanic
stock”, such as tuna, might well be also made the subject of coastal control
if a critical tradeoff occurs. The majority of such stocks are caught within
coastal areas and certainly the developing coastal States have the interest
and are rapidly acquiring the technology to harvest them. See Loring, supra,
n. 91, at p. 434 et seq. In the words of the Draft Articles, supra, art. III, paras.
2C, 3C, n. 288, they will shortly be in a position where such stocks “can be
harvested” by them.
295 See List of Delegations for U.N. Seabeds Committee, U.N. Doc. A/AC.
138/INF. 5 (July 23, 1971); e.g., statements of Dr. Vincent E. McKelvey, Chief
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of the private sector on the delegation,290 certainly the views of
various interested groups within the United States and Canada were
fully and fairly represented. An example was the advice to the U.N.
Seabeds Commitee that the cost of developing deep ocean resources
would make it clearly inappropriate for the proposed international
agency to have the power to develop resources directly, a position
popular with both the U.S. petroleum and mining interests. A U.S.
representative stated:
But while the organization we propose would have strong supervisory
and regulatory powers, and would be authorized to issue licenses to
private organizations and to organizations created by States or groups
of States, it would not in itself have the power to undertake seabed
exploration and exploitation.
We do not believe that an international organization with monopolistic
powers, including the power to undertake for itself exploration and
exploitation, would be an efficient means of developing these resources
or of generating revenues from their production. Such an arrangement
would not achieve our basic objective of developing the greatest benefit
for mankind. Nor would it provide the incentives to operators and
financial institutions to make the investments necessary to undertake
ocean mining ventures.2 97
In most of the countries of the world, including the United States,
the resource owner has the capability of developing the resource,
if it wishes. The United States and its states have chosen to en-
courage private participation in resource development, 298 although
governmental resource development has occurred in the United
States. 299 In many other countries, however, the contracts negotiated
with the resources developers are so detailed as to required devel-
opment and other elements as to actually put the government “in
the business”.299 Examples of this would be the North Sea develop-
ment contracts issued for petroleum by the Governments of Norway
Geologist, U.S. Geological Survey, to Subcommittee I, U. N. Seabeds Com-
mittee, dated August 4, 1971, and Donald L. McKernan, Alternate U.S. Repre-
sentative, to Subcommittee II, dated August 17, 1971, United States Mission
Geneva Releases regarding, respectively, seabeds resources and fisheries
resources.
296 See List supra, n. 295. A large number of U.S. nationals representing
affected industry groups, particularly petroleum and fishery, were present
and briefed by the U.S. Delegation.
297 Statement by Bernard H. Oxman to Subcommittee I, U.N. Seabeds
Committee, dated August 18, 1971, United States Mission Geneva Release, p. 3.
298See supra, n. 169.
299See Long Beach Net Profits Contract, 2 Nossaman OCS Study, App. 12,
p. 12-A-16 et seq., 12-A-156 et seq.; Krueger supra, n. 167 at pp. 789-790.
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EVALUATION OF UNITED STATES OCEANS POLICY
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and the United Kingdom.300 In the developed socialist countries, of
course, it is customary for the sovereign to develop the resources.0
Developing countries typically do not, regardless of their political
philosophy, because of the costs of operation which indicates quite
accurately that this is an economic issue 02 As such, it should not
be unacceptable to the United States, the U.S.S.R., or any developed
power that the proposed international agency have the power of
developing resources under its jurisdiction. With due regard to the
economic realties involved, it will probably be many years before
the proposed international agency has the financial ability to exer-
cise this power, but conceptually it should have it.3M3
300 See 2 Nossaman OCS Study, App. C at pp. 12-C-59 (Norway), 12-C-75
(United Kingdom).
301 An example is the Soviet Union which has a large and technologically
advanced petroleum industry administered by the government. Note, however,
that for grounds apparently arising out of Marxist theory, it would not wish
to have self-directed development by the proposed international oceans agency
and the potential competition which could occur from it. See supra, n. 171. Cf.
Venezuela which since 1956 has had a governmental corporation, Corporacion
Venezolana de Petroleo (“C.V.P.”) with the power to develop petroleum either
through a “mixed company” in which it and a private company are partici-
pants or at its option by itself. See 2 Nossaman OCS Study, App. C at p.
12-C-90 et seq.
302 This is particularly true of offshore mineral development in which the
“start-up” costs, particularly for petroleum, can be enormous. See Krueger,
supra, n. 167 at pp. 777, 785 and 786 et seq.; 1 Nossaman OCS Study at p. 606.
303 If a resource owner, such as the proposed international oceans agency,
has discretion over work and development requirements, as it should have,
a license for the exploitation of the resource can have a broad range of terms
depending largely on the economic potential of the resource. The provisions
of the U.S. draft convention, for example, are broad enough to accommodate
virtually any form of lease, operating agreement, joint venture agreement or
concession known to the U.S. petroleum and mining industries. See Draft
Convention, art. 18, App. A, para. 7. See supra, nn. 299, 302. It is, therefore,
of little consequence whether the agency is permitted to directly develop the
resource itself and it would seem to serve little purpose to emphasize the
economic incompetence of the developing countries or the proposed inter-
national agency to undertake this work. Cf. Oxman statement supra, n. 297
at p. 2.
It is noteworthy that the Working paper on the regime for the sea-bed and
ocean floor and its sub-soil beyond the limits of national jurisdiction U.N.
Doc. A/AC.138/49, introduced by Trinidad and Tobago on August 10, 1971,
would effect in the words of the sponsors:
“In keeping with the principle of the common heritage, the co-sponsors
of the Working Paper contained in document A/AC.138/49 envisage the
establishment of a system in which mankind, in the capacity of owner,
would participate directly in the administration and management of the
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The Soviet Union also tabled a draft seabeds treaty in the
summer of 1971 with the U.N. Seabeds Committee 0 4 The treaty,
while largely structural in nature, stated the interest of the Soviet
Union in preserving its position in the foreign fisheries and the
free transit of the oceans:
The use of the sea-bed and the subsoil thereof for the purpose of
exploring and exploiting its resources shall not conflict with the principles
of freedom of navigation, fishing, research and other activities on the
high seas. 305
The “Question of the limits of the sea-beds”, 300 the “Question of
licences for industrial exploration and exploitation of sea-bed re-
sources”,30 7 and the “Question of the distribution of benefits”308
were left as unsettled issues. The statements of the Soviet repre-
sentatives to the U.N. Seabeds Committee, however, confirmed the
the priority of the items on which a position had been taken in
very direct terms:
To recognize a state’s rights over the biological resources of the high
seas in that way amounted to making it responsible to the international
community for a full and rational exploitation of the fish stocks and,
moreover, to placing an obligation on it not to permit over-exploitation
which might be detrimental to the replenishment of the stocks. It was
very unlikely that the coastal state could fulfil such a task on its own
without international co-operation and without the help of scientists
and specialists from other countries concerned. In those circumstances,
the conferring of responsibility for such functions on the coastal state
area and the exploitation of its resources. Although in its initial stages it
may not be possible under the system for mankind by itself to undertake
activities in the area, it may nonethless enter into arrangements with
third parties for the attainment of its objectives.”
“It would be therefore more in consonance with the principle of the
common heritage for such a body in the early stages to enter into joint
ventures, production-sharing and profit-sharing arrangements with other
entities, public or private, national or international rather than to grant
or issue licences to such entities. The concept of a licensing or concession
system is in our view inconsistent with the principle of the common
heritage.”
Report of Subcommittee I, U.N. Seabeds Committee, U.N. Doc. A/AC.138/60,
August 26, 1971, p. 6.
304 U.S.S.R. Provisional Draft Articles of a Treaty on the Use of the Sea-Bed
for Peaceful Purposes, U.N. Doc. A/AC.138/43 (July 22, 1971).
305 Id., art. 4.
30 6 Id., art. 3.
307 Id., art. 9.
308Id., art. 14. Emphasis added.
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EVALUATION OF UNITED STATES OCEANS POLICY
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might bring no advantages, but could be contrary to the interests of
states, including the coastal state itself. No state could claim that it
alone had the right and capacity to protect the resources of the zones
adjacent to the high seas.300
In stating its position, the Soviet delegation was not only anxious to
protect the interests of the USSR, but it also has the sincere desire to
find a flexible solution which would fully meet the interests of all.
The articles of the treaty which the Committee was to draft must
be universal in character and must be acceptable to al countries. 310
The realistic way to arrive at an equitable solution of the problem was
to recognize the specific rights of the coastal state to exploit marine
resources within the 12-mile territorial limit, taking into account, in
an equitable manner, the interests of states engaged in deep-sea fishing.
For its part, the Soviet Union was ready to make every effort to bring
the work to a successful conclusion. 311
The debate had shown that opinions on the question of the territorial
sea were divided. As ninety States had accepted a twelve-mile limit, it
had been requested that that limit should be recognized and codified.
The USSR shared that view. Other States, however, had requested that
a distance of 200 miles should be adopted in order to protect the interests
of coastal States. In his opinion, the distance of twelve miles ought
to satisfy all States, and he hoped that the States which had asked
for a greater distance would withdraw their claims, so as to avoid
further difficulties and pave the way for a compromise solution. 312
[S]traits … should [be defined] more precisely. It had been pointed
out that many straits would be affected if the breadth of the territorial
sea was set at twelve miles. Only, the main straits, which played an
important part in international navigation, should, however, be considered,
and a list of such straits should be drawn up. The concerns and interests
of the coastal States should obviously be taken into account in that
connexion. What was wanted by countries like the USSR, which had
requested freedom of transit in the territorial seas, was a reasonable,
but not an absolute freedom of transit. He suggested that the Sub-Com-
mittee might include in its draft articles provisions covering the interests
of coastal States in that respect.313
While the United States has relatively limited interest in foreign
fisheries, 314 its position regarding other ocean issues appears en-
309 Prov. Sum. Rec. A/AC. 138/SC.II/SR.12 (August 17, 1971) at p. 10. Empha-
sis added.
310 Id., at p. 11.
311 Ibid.
3 12 Prov. Sum. Rec. A/AC. 138/SC.II/SR.13 (August 17, 1971) at p. 11
313 Id., at p. 12.
314 The United States distant-water fisheries consist principally of tuna,
is small
fished off Peru and Ecuador, and shrimp, fished off Mexico. It
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tirely consistent with those of the Soviet Union. It is interesting
to note the sense of accommodation that both have in order to
preserve a right of free transit through the world’s oceans.318
A number of other draft conventions and working papers were
submitted on the subject of the rdgime for the administration of
the seabeds or oceans beyond limits of national jurisdiction during
1971, including those by the United Kingdom,31 6 France,317 Poland,” 8
Tanzania,319 Trinidad and Tobago et al.,320 Afghanistan et al.,32
1 Ca-
in proportion to the coastal fishing industry operating off the United States.
See Ratiner, supra, n. 37 at p. 235; Loring, supra, n. 91 at p. 424 et seq.
310 Compare text at nn. 294 and 313, supra.
316 The United Kingdom working paper submitted essentially proposed a
mining code for seabed resources, U.N. Doc. A/AC.138/46 (July 30, 1971). See
also Report of Subcommittee I supra, n. 303 at p. 3.
317 The French working paper was also directed essentially to the exploita-
tion of seabed resources. Id., at p. 4.
318 The Polish working paper submitted contained the following suggestion:
“The organization to be established, and its nature and powers, should
be adapted to growing needs. This means that, initially, before
the
exploitation of mineral resources of the international area is conducted
on a large scale, the organs of the organization should not be over-de-
veloped, its secretariat should be small, and the competence of the
organization should first and foremost be of a co-ordinating nature. This
would be for the transitional period. The duration of this stage should
depend on the progress of exploration and exploitation of the resources
of the international area and, consequently, on the emergence and de-
velopment of the need for institutionalized arrangements for international
co-operation.”
U.N. Doc. A/AC.138/44 (July 28, 1971), para. 10. Cf. Part II, A3 supra, at n. 138
et seq.
310 The Draft Statute as submitted by Tanzania would authorize the proposed
international agency to itself exploit the resources of the international area
and emphasized that the agency should “pay particular attention to the desira-
bility of minimizing fluctuations of prices of land minerals and raw materials
that may arise from the exploitation of resources of the area”. U.N. Doe. A/AC.
138/33 (March 24, 1971), arts. 16, 2(2). See Report of Subcommittee I supra,
n. 303, at p. 5.
32 0 Id., at p. 5. See supra, n. 303.
321 The preliminary working paper submitted by Afghanistan, Austria, Bel-
gium, Hungary, Nepal, Netherlands and Singapore essentially represented the
view of land-locked and shelf-locked states. It proposed that a coastal state
have a “priority zone” extending 40 miles from the outer limit of a twelve-
mile territorial sea of basically the same type proposed as a trusteeship zone
in the U.S. Draft Convention. U.N. Doc. A/AC.138/55, August 19, 1971 ,art. IC.
See Report of Subcommittee I supra, n. 303 at pp. 6-7.
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nada 22 and Malta.3 All of the proposals fall short of establishing
a comprehensive resources management system for the oceans. 3 4
Probably the Malta Draft Ocean Space Treaty comes the closest
in providing for the management of both living and non-living re-
sources of the “national ocean space” extending 200 miles adjacent
to a nation’s coast 325 and in the “international ocean space” be-
yond.3 26 Conceptually, however, it is defective in failing to provide
means to enforce established international standards of environ-
mental quality and resource protection in the national zone.32 7 It,
too, has its primary emphasis on the exploitation of natural re-
sources.328
While a great deal of work remains to be done before concep-
tually sound draft articles are ready, nonetheless a great deal of
progress has been made. Most of these proposals accepted the
Assembly-Council-Secretariat concept of the U.S. Draft Convention 32 9
3 22 The Canadian working paper on the seabed regime and machinery was
essentially described by its drafters as proposing a resource management
system:
“The resource management system must be stable –
the large amounts
of investment capital needed will not be forthcoming without assurance
of an impartial and objective regulatory and administrative climate within
which to operate. The system must, however, have enough flexibility to
take into account new scientific and technological advances and problems
arising therefrom, such as marine pollution. The machinery must be
effective, and thus have the necessary powers to deal with the States
-and other powerful entities engaged in exploitation. This entire field is
one as yet only in its formative stages. It would therefore appear desirable
to design machinery that would reflect these developments, with transi-
tional skeletal machinery to begin with that could evolve along with the
progress of development. These then are the concepts which underlie the
philosophy of the Canadian working paper –
development, equity, sta-
bility, flexibility, and effectiveness.”
Id., at p. 7.
32 Draft Ocean Space Treaty A/AC..138/53, August 23, 1971.
324 See supra, n. 96 et seq.
325 Draft Ocean Space Treaty supra, n. 324, art. 36.
326 Ibid.; id., art. 66 et seq.
3 2 7 In the national ocean space there is only a duty of consultation and
.
cooperation with other states and the proposed international agency “before
the coastal state may undertake or permit activities in national ocean space
that might substantially reduce the living resources of ocean space outside
its jurisdiction”. Id., art. 58, para. 1.
328 See supra, n. 181 et seq.
329 See supra, n. 45 et seq.
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with the principal point of departure being whether the Council
should be selected on a weighted basis, as favored by the developed
nations 330 or be simply elected by the Assembly without classifica-
tion, as favored by the developing nations 331 There also appeared
to be consensus that the r6gime should be based upon the Declara-
tion of Principles approved by the 1970 U.N. General Assembly and
that the rdgime should be established by an international treaty
of universal charactery 2 The proposals submitted contained widely
divergent concepts of contiguous zones for resource purposes, but
there appeared to be a strong area of agreement as to the need
for establishing a balance between the interests of the international
330 See supra, n. 46. The Soviet proposal would provide for an executive
board consisting of thirty States including five States from each of the fol-
lowing groups of countries:
“(a) the socialist countries,
(b) the countries of Asia,
(c) the countries of Africa,
(d) the countries of Latin America,
(e) the western European and other countries not coming within the
categories specified in sub-paragraph (a) to (d) of this paragraph;
and (f) one land-locked country from each of the aforementioned groups of
States.”
See supra, n. 304, art. 21, para. 1.
The United Kingdom proposal stated:
“[Jjust as it would be appropriate to give developing States a special
position on any institutions of the Authority which might be set up for
the purpose of distributing sea bed benefits, so it would be necessary to
make special provision on the Council for those States with an established
sea bed technology, who have a special contribution to make in organising
sea bed activity and without whose support no international regime in
this field would be viable. This could be done by designating as members
of the Council a limited number of industrialised countries which, either
directly or through commercial enterprises based on their territory, have
or develop a substantial sea bed technology. An important criterion in
establishing a country’s claim to be a designated member of the Council
might be the extent to which it has an established tradition and expertise
in the transfer of technological skills and abilities to developing countries.”
Working Paper, supra, n. 316, para. 19.
331 The working paper introduced by Trinidad and Tobago provided for a
Council of thirty-five members elected by the Assembly “from the lists pre-
pared in accordance with Article… having due regard to the principle of
equitable geographical representation”. Trinidad and Tobago Working Paper
supra, n. 303, art. 27. A similar provision was contained in the draft statute
submitted by Tanzania. See supra, n. 319, art. 24.
332 Report of Subcommittee I supra, n. 303, at p. 9.
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community and the coastal state and to provide means of commu-
nication between the proposed international agency and the coastal
state.3
The Seabeds Committee also made substantial progress in pre-
paring a list of subjects and issues relating to the law of the sea,
as a prelude toward drafting treaty articles thereon.P 4 It also had
extensive discussions regarding the preservation of the marine en-
vironment,335 although quite clearly the Committee was awaiting
the outcome of the U.N. Conference on the Human Environment,
scheduled for Stockholm in June, 1972, for guidelines as to its
activities in this area.
In terms of specifics it is difficult to say that the U.N. Seabeds
Committee has made the type of progress in its preparatory work
that will be necessary in order to effect a comprehensive law of
the sea conference in 1973, as tentatively scheduled. On the other
hand the August, 1971 meeting of the Seabeds Committee clearly
appears to have been the first in which it or any of its predecessor
committees faced the realities of the situation and commented
directly and at many times quite knowledgeably on them. Progress
was accordingly made toward establishing a consensus on a num-
ber of the issues to be discussed at the proposed law of the sea
conference. As indicated above, the developed nations have shown
a willingness to compromise their interest in establishing or main-
taining narrow zones of national jurisdiction in order to retain
rights of free transit over the oceans and major straits that would
be engulfed by the imminent twelve-mile territorial sea rule, and
proposed extensive resource contiguous zones. 33 6 There have been
indications that even this right of free transit may be modified to
permit regulation by the coastal states or the proposed international
agency at least for purposes of environmental protection.3 7 The
333 Id., at p. 10.
334 See Report of Subcommittee II, U.N. Press Release, SB/60, August 27,
1971, Geneva, 10 Int’l L. Materials, pp. 973, 978-979 (1971). The United Nations
General Assembly in its twenty-sixth (1971) session adopted a resolution upon
recommendation of the U.N. First Committee generally commenting favorably
upon the progress of the U.N. Seabeds Committee toward the proposed law
of the sea conference. See U.N. Doc. A/RES/2881 (Jan. 26, 1972), supra, n. 79.
Aside from adding the People’s Republic of China and four other new mem-
bers to the Committee its only significant action on the subject was to author-
ize two 1972 sessions in March-April and July-August. Ibid. See Rep. 1st Com.,
U.N. Doc. A/8623 (Dec. 17, 1971).
335 Report of Subcommittee III, Id., at pp. 980-981.
336See supra, nn. 294, 313.
337 See supra, n. 286.
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United States has shown itself amenable to regulation by the coastal
state over an unspecified but potentially large portion of the high
seas adjacent to it for purposes of the allocation and conservation
of living resources. 33 8 The Soviet Union and other distant fishing
nations have shown less accommodation on this point, but it is
probable that agreement could be established on this point as well
if consensus were reached on other major issues.339
For their own part, the developing coastal nations have given
recognition that transportation in the oceans of the world is of
universal benefit and should be maintained with, however, a desire
for a broad zone of national jurisdiction for resource development
and management 40 Within this zone they appear largely to be
willing to recognize a right of free transit with a substantially more
stringent view of the rights of the coastal state to regulate the
nature and circumstances of the transit3 4’
The case of the developing coastal states was given noteworthy
impetus by the People Republic of China in its first address to
the General Assembly after its recent admission. It was there stated:
The Chinese Government and peoples resolutely support the struggles
initiated by Latin American countries and people to defend their rights
over 200-nautical-mile territorial seas and to protect the resources of their
respective countries. 342
338 See supra, nn. 287 et seq.
339See supra, nn. 309 et seq.; Summary Records Subcommittee II, U.N.
Doc. A/AC.138/SC.II/SR.4, July 23, 1971 et seq., passim.
340See supra, nn. 91-93, 104.
341 See e.g., Draft Ocean Space Treaty supra, n. 323, art. 48; statement of
the representative of Brazil, Prov. Sum. Rec., Subcommittee II, U.N. Doc. A/AC.
138/SC.II/SR.14 (August 18, 1971) p. 2; statement of the representative of In-
donesia, Prov. Sum. Rec., Subcommittee II, U.N. Doc. A/AC.138/SC.II/SR. 12,
(August 17, 1971) pp. 11-13; statement of the representative of Malaysia, Prov.
Sum. Rec., Subcommittee II, U.N. Doc. A/AC.138/SC.II/SR.11 (August 13, 1971)
pp. 2-3. Cf. statement of the representative of Italy, Prov. Sum. Rec., Sub-
committee II, U.N. Doc. A/AC.138/SC.II/SR.15 (August 19, 1971) pp. 8-12.
342 New York Times, November 16, 1971 (“Text of China’s Policy Statement
in the U.N.”). The statement also contained the following comments:
“China is still an economically backward country as well as a developing
country. Like the overwhelming majority of the Asian, African et Latin-
American countries, China belongs to the Third World.”
“The Chinese Government and people resolutely support the struggles
unfolded by the petroleum-exporting countries in Asia, Africa and Latin
America as well as various regional and specialized organizations to protect
their national rights and interests and oppose economic plunder.” Ibid.
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EVALUATION OF UNITED STATES -OCEANS POLICY
695
The shift in the balance of power which accompanied the entry
of China into the U.N. and which was further emphazised by
the U.S.
China discussions cannot but improve the political
stature of the case of the developing coastal nations.343
–
There further seems to be consensus on the desirability of
providing land-locked states with coastal access under terms that
would make their entry to the exploitation of ocean resources com-
petitive with those of coastal states, at least in the international
area.3 44 For their own part the land-locked and shelf-locked states
appear to recognize that in order to establish such a r6gime it
will be necessary that the coastal states be given quite broad contig-
uous zones for the purposes of resource conservation and devel-
opment3 4
Finally, it would be appropriate to offer some additional com-
ments based upon personal observations of the U.N. Seabeds Com-
mittee at work in Geneva during August of 1971:
1. High seas fishery, including both coastal and migratory
varieties, have been focused on as a part of the “common heritage
of mankind”. The desire of coastal states to control these living
resources has become clearly evident in a number of suggestions
by developing nations and some by developed for broad contiguous
zones for resource management. The scientific and technical dis-
This position is consistent with that previously taken by the People’s
Republic. See supra, n. 92.
Subsequently China in the U.N. Seabeds Committee, of which it was
made a recent member (see supra, n. 79), attacked Japanese claims in the
East China Sea with which the United States “collaborated” as “an attempt
to further plunder China’s coastal seabed resources”. Los Angeles Times,
March 3, 1972 (“Peking Sees U.S. –
Japan Plot to Take Over Chinese Islands”).
China further stated “it is within each country’s sovereignty to decide the scope
of its rights over territorial seas”. Ibid.
343See supra, nn. 91-93, 104. See also New York Times, October 26, 1971
(“U.S. is Defeated in Key U.N. Vote on China, 59-54”); Time Magazine, Novem-
ber 8, 1971, p. 26 et seq. (“China: A Stinging Victory”).
34 Most of the lists of subjects and issues submitted to Subcommittee II
in one form or another articulated an interest in establishing access. See
Report of Subcommittee II supra, n. 334, p. 979. The working paper submitted
by Norway on this subject, for example, contained in its list of issues the
following:
“Land-locked States
– Right of access to the high seas
– Participation in the activities in the international sea-bed area.”
U.N. Doc. A/AC.138/52 (August 13, 1971), para 8.
345See supra, n. 321.
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tinctions between coastal and migratory species does not appear
to have had any significant persuasion and it seems likely that
the coastal states as a class will be interested in the taking and
conservation of all living species within a broad coastal zone. The
quid pro quo for this arrangement with respect to the distant-fishing
nations may very well prove to be the protection of “traditional”
takings, although even here it is likely that some concession will
have to be made in light of the interest of the developing nations
in developing capability in the taking of all fishery stocks in ad-
jacent oceans areas.
2. The U.N. Seabeds Committee is not in reality a preparatory
committee for the proposed law of the sea conference. With due
regard to the scope of its work and the character of its operation
its meetings are emerging quite clearly as the first part of the law
of the sea conference. Because its operation and conclusions will
be screened annually by the U.N. First Committee and General
Assembly, the fate of the various issues to be decided may very
well have been largely decided when the agenda is established for
the conference. 40 After the issues have been framed, draft articles
prepared and the same laboriously discussed in the fashion that
they have during the past years, there is doubt as to whether any
major reconfigurations of policy will be practicable at the conference
itself.
This is not a regrettable outcome. If the in depth preparatory
work now taking place in the U.N. Seabeds Committee had been
undertaken before the 1958 Geneva Conference on the Law of
the Sea and the abortive 1960 Geneva Conference, it is likely that
some of the problems which have emerged from the 1958 Geneva
Conventions could have been identified and appropriate modifica-
tions made. It seems certain, for example, that a definition of the
breadth of the territorial sea would have been achievable, if this
type of work had taken place in the earlier conference.347
The fact that the delegations to the U.N. Seabeds Committee
are comprised both of experts and persons having political respon-
sibility within their countries appears also to have had a beneficial
effect. The issues involved are essentially political in nature and
can best be cast into policy by this type of group rather than the
340See supra, n. 78.
347 The United States sponsored a proposal which would have provided for
a territorial sea of six miles plus an exclusive fishery zone in an additional
six miles which was defeated by a narrow margin. 3 Official Records law
of the Sea Conference, U.N. Doe. A/Conf. 13/38, 39 (1958); 1 Nossaman OCS
Study, pp. 3 et seq.
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EVALUATION OF UNITED STATES OCEANS POLICY
697
International Law Commission whose work was the primary source
for the 1958 Geneva Conventions. 3 48
3. The “common heritage of mankind” concept appears to be
of secondary importance to the developing coastal states whose
primary priority is essentially the acquisition of more territory
and the control and management of resources in and above it in
a broad contiguous zone of national jurisdiction. The quid pro quo
for effecting this rdgime could well be the establishment of the
jurisdiction of the international oceans agency to enforce inter-
national measures for environmental protection and the conservation
of resources, internationally guaranteed rights of free transit and
provision for adequate coastal success by land-locked nations. The
overlap in governmental responsibility in the contiguous zone
between the international agency and the coastal state could be very
useful in the development of a comprehensive system of oceans
management.
4. It has been repeatedly stated or implied by representatives
of both developing countries and developed countries that only the
latter have the financial capability to develop resources of their
zones of national jurisdiction, whether for living or non-living
resources. This concept is fallacious. If there is resource potential,
it can be developed by an investor under license from the resource
owner. If the resource potential is large, many investors will be
interested and the terms can be very favorable to the resource
owner, regardless of its own financial capability. In a broad sense
the financial capability of a resource owner is irrelevant to the
capability of its development.34 9 The U.S. Draft Articles submitted
in 1971 are consequently questionable in concept in allocating the
take of a fish stock to be given to a coastal state on the basis of
whether it “can be harvested by that state”.350
5. There perhaps has been an overemphasis of the concept that
developing nations are less interested in environmental protection
and more interested in development than are other nations. It is
becoming quite clear that a number of environmental concerns
are not necessarily uneconomic either in the short or long run and
social and cultural values are involved and esthetic characteristics
are not in a broad sense simply a luxury for affluent nations. Where
social and cultural values are involved and esthetic characteristics
348The Geneva Conventions grew out of draft articles prepared by the
International Law Commission in large part during the period from 1950 to
1956. See Franklin supra, n. 107 at pp. 8 et seq., 84 et seq.; Krueger supra,
n. 2 at p. 473.
349 See supra, nn. 173, 301-303.
350 See supra, n. 288.
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(e.g.,
with a positive economic value are present
tourism), de-
velopment nations may be as concerned as developed countries.3 1
6. The internal criticism of the U.S. Draft Convention made
in the United States both in the Congress and elsewhere was
openly discussed in the U.N. Seabeds Committee.1 2 It will be
difficult in the extreme for the United States or any other nation
to maintain leadership in the formulation of the complex series
of oceans issues unless there is bipartisan support for its policies
domestically. This appears to have been the case substantially to
this point in time and it would be unfortunate if it were otherwise.
7. The Soviet Union and its bloc appear to be doing the devel-
oped nations a favor in taking as strong a position as they have
on distant fishery operations and the breadth of limits of national
jurisdiction. Certainly the developing coastal nations interested in
or claiming a broad contiguous zone for resources purposes are
fully aware that the Soviet Union and the land and shelf-locked
nations could block the establishment of a rdgime that would give
acceptability to their claims. There are less obvious factors that
suggest that the Soviet Union is as prepared to come to agreement
as the United States on fishery and all other issues, if an accept-
able concept of free transit and compromises on other relevant
issues are established. The Soviet Union appears to perceive the
need for a comprehensive law of the sea conference as clearly as
any other nation.
Developments during 1971 have continued to show the leadership
of the United States in the development of oceans policy. They
have also illuminated quite clearly and predictably the policies of
the developing nations that are inconsistent with certain of the
concepts of the 1970 U.S. Draft Convention and to a lesser extent
the 1971 U.S. Draft Articles. The attitude of accommodation shown
by the United States, the Soviet Union and other developed coun-
tries suggests that appropriate modifications of the type discussed
above may be forthcoming at the appropriate time. If so, it seems
likely that the international community will effect, whether in 1973
or in a succeeding year, the very necessary reconfigurations in oceans
policy. In doing so it may provide a most useful precedent for
other global interests that are equally a “common heritage of
mankind” and improve the pattern of policy-making between the
developed and developing nations of the world.
351 The New York Times, September 26, 1971, (“Pollution Grows in Pacific
Isles – Conference Discusses Rise in Peril to Environment”), dateline New
Caledonia. Cf. Los Angeles Times, November 18, 1971, (“Profit Seen in Pollu-
tion Fight”).
352 See statement of Peru supra, n. 92 at p. 5.
