With one exception, the Department of Interior has agreed to our draft
statement of seabed principles. They have proposed language, which you
have seen, that substantially alters the principle concerning a boundary
for the area beyond national jurisdiction. Since June 1968 the United
States has called for an “internationally agreed” precise boundary. The
Interior language substitutes a call for precise definition of an
“internationally accepted” boundary. Interior also refuses to accept our
proposal for a moratorium on boundary claims.
I understand that, upon the advice of Mr. Pollack of SCI, you have
agreed to the substitute language proposed by Interior.
The purpose of this memorandum is to request that, for the reasons given
below, you reverse this decision.
That you decide that the United States should continue to seek an agreed
boundary to the continental shelf and a moratorium on national
claims.
Tab A
SEABEDS MORATORIUM - BACKGROUND AND CONSIDERATIONS
SUMMARY:
For the past several months there have been persistent but
unsuccessful attempts to reach agreement within the United-States
Government on a moratorium proposal that will protect important
options regarding the eventual location of an agreed boundary of
coastal State jurisdiction over seabed area. If this Government does
not propose a moratorium for boundary claims we run a serious risk
that, as a practical matter, within the fairly near future the
option of establishing a narrow zone of coastal State jurisdiction
will be lost. This memorandum reviews the factors relevant to a
moratorium proposal and points out courses of action available to
obtain resolution of this issue.
[Page 5]
BACKGROUND:
Since late 1967 this Government and the international community have
been engaged in active consideration of the seabeds item introduced
by Ambassador Pardo of Malta.
Most efforts to date have been directed toward accumulation of basic
facts and adoption of a set of principles to guide future efforts.
The two ultimate, and closely interrelated, issues are:
- a)
- What is, or should be, the boundary of coastal State
jurisdiction; and
- b)
- What regime should be applicable in the area beyond the
limits of coastal State jurisdiction?
Existing international law and agreements do not provide a clear
answer, or a satisfactory basis for arriving at a clear and broadly
accepted answer, to either of these questions. There is no doubt
that under the 1958 Continental Shelf Convention all coastal nations
(with the possible exception of those possessing extensive shallow
offshore areas extending several hundred miles) have exclusive
jurisdiction over seabed resources to a depth of 200 meters. In the
recent North Sea cases the ICJ indicated that customary
international law allows a coastal State to exercise such
[Page 6]
jurisdiction over its
geologic continental shelf. (The geologic shelf normally ends at
about 200 meters, but shelves as shallow as 50 meters and as deep as
550 meters are not unknown.) There is doubt as to the right of a
coastal State to extend its exclusive jurisdiction beyond the edge
of the shelf and as to the sufficiency of existing law to facilitate
exploitation of the area beyond.
In June 1968 in the Ad Hoc Seabeds Committee, the U.S. proposed, and
has often reaffirmed, a set of principles that calls for agreed
solutions to both issues and sets forth guidelines to be followed in
seeking agreement. Paragraph 3 reflects our desire to allow seabed
activities to continue at ever-increasing depths without destroying
the practical possibility of reaching agreement on a narrow zone of
coastal State jurisdiction should this result prove to be in our
interest:
“Taking into account the Geneva Convention of 1958 on the
Continental Shelf, there shall be established, as soon as
practicable, an internationally agreed precise boundary for
the deep ocean floor — the seabed and subsoil beyond that
over which coastal States may exercise sovereign rights for
the purpose of exploration and exploitation of its natural
resources; exploitation of the natural resources of the
ocean floor that occurs prior to establishment of the
boundary shall be understood not to prejudice its location,
regardless of whether the coastal State considers the
exploitation to have occurred on its ‘continental
shelf’.”
[Page 7]
Since December 1968 the State Department has been seeking authority
to propose in the Seabeds Committee that all nations should refrain
from making boundary claims until efforts could be made to reach
international agreement on the boundary and regime issues. Such a
moratorium proposal would effectively protect the possibility of
agreement to a narrow zone and prevent a race to establish paper
claims to vast seabed areas while such efforts are undertaken. The
following relevant views have emerged:
- 1.
- The Oil Industry objected to principle 3, above, and
opposes any moratorium proposal. In July, 1968 the National
Petroleum Council (NPC),
announced its conclusion that the United Sates, and other
nations, now “have exclusive jurisdiction over the natural
resources of the continental land mass seaward generally to
where the submerged portion of that land mass meets the
abyssal ocean floor” (i.e., we now have a broad zone of
jurisdiction to a depth of at least 2,500 meters). The
Council recommended that the U.S. forthwith “declare its
full rights…as described above…” NPC representatives explain that these
positions, which are still maintained, are not offered for
the purpose of furthering
[Page 8]
the Oil Industry’s interests, but
only to further the national interests in protecting the
“American mineral estate.”
- 2.
- Spokesmen for the hard minerals industry are not as
unified as the oil men. Several reject the NPC view as to the extent of
present jurisdiction and favor rapid adoption of a boundary
and regime that will facilitate exploitation of the area
beyond national jurisdiction. They would probably support a
moratorium proposal.
- 3.
- The Department of Defense has consistently maintained that
our national security interests require that we favor a
narrow zone of coastal State jurisdiction (200 meters, or at
the most 550 meters). See letters from Deputy Secretaries
Nitze and
Packard at Tabs A and B. However,
DOD. spokesmen have
stated that under an undesirable regime (i.e. UNGA control) they might
prefer a broad zone of national jurisdiction. DOD favors an effective
moratorium proposal.
- 4.
- The Departments of Interior and Commerce have stated their
preference for a broad zone of national jurisdiction; they
have opposed every moratorium proposal made by State.
However, they say they are not opposed to the principle
[Page 9]
of a moratorium,
and that they do not accept the NPC view that coastal State jurisdiction now
extends to the deep ocean floor. On Tuesday, May 20, State
and Interior representatives met to lay the groundwork for
the meeting of State and Interior Undersecretaries May
22.
- 5.
- At the international level, Ambassador Pardo has proposed that a
“minimum” area beyond the limits of national jurisdiction be
defined as that area beyond 200 meters and 200 miles. This
proposal has received little support to date but it will be
debated at the August meeting of the Seabeds Committee. Its
adoption, we believe, would effectively preclude eventual
agreement to a narrow zone of coastal State
jurisdiction.
DISCUSSION:
In considering the importance of obtaining authority to propose a
moratorium on boundary claims it is necessary to assess the probable
results of our failure to make such a proposal, the result of making
the proposal, and the effect of such results upon our interests. It
is then necessary to consider the details of an acceptable
moratorium.
FAILURE TO PROPOSE A MORATORIUM:
If we fail to make a moratorium proposal we can reasonably expect
that other nations will continue to grant offshore
[Page 10]
exploration and
exploitation permits covering seabed areas at great distances from
shore, substantially beyond the geologic continental shelf and down
to the abyssal ocean floor. These countries will be disinclined to
agree later to a boundary landward of areas covered by the permits
unless a moratorium proposal is adopted, or at least made,
particularly if their permittees (U.S. oil companies) demand that
they not do so. Unless we protest such permits, or the enabling
legislation which authorizes them, we can expect that other States,
the Oil Industry and possibly other agencies of the U.S.
Government will argue that “State practice” has established that
coastal State jurisdiction extends to the abyssal floor (i.e. to
approximately 2500 meters). In short, the passage of time is
strongly, against preserving the possibility of later agreeing to a
narrow zone of coastal State jurisdiction. The evidence of a trend
toward a broad zone of coastal State jurisdiction is rapidly
mounting:
- a)
- Sudan and Saudi Arabia have each recently asserted
jurisdiction over the floor of the Red Sea, which is about
7000 feet deep and 200 miles wide.
- b)
- Iceland has recently adopted legislation stating that its
continental shelf “reaches … as far from the country’s shore
as it proves possible to exploit its wealth.”
- c)
- Apparently several countries, particularly in Southeast
Asia and at the behest of U.S. companies, are issuing
permits which cover very large seabed areas, including areas
that extend to the abyssal ocean floor. An example is
provided by a request from Gulf Oil to the Republic of China
for a large concession north of Taiwan. (We have received
this information from Gulf on a confidential basis.)
- d)
- The NPC has noted in its
report that 29 countries have granted offshore concessions
for areas deeper than 200 meters. NPC spokesmen have recently stressed that
international law is evolving through State practice in this
regard. (On this point it is important to bear in mind that
all such concessions, including those granted by the U.S.,
include shallow areas as well as deep areas and that the
concessions are sought primarily because of the shallow
areas. However, this fact does not completely
[Page 12]
destroy the
point that such concessions may constitute an exercise of
sovereign rights over the deep areas as well.)
PROPOSAL OF A MORATORIUM.
If the United States makes a moratorium proposal and acts in accord
with it, both in its leasing policy and in its relations with other
countries, we probably can protect the possibility of an
internationally agreed narrow zone of national jurisdiction and
prevent a race to grab seabed areas while efforts are made to reach
agreement on the boundary and regime issues. Clearly this is true if
the UNGA adopts the proposal; it is
probably true, for reasons given below, even if the proposal is not
accepted by all, or even a majority, of the members of the Seabed
Committee. Most offshore exploitation is conducted by U.S.
companies—because they have the knowhow and capital and because of
advantages offered by United States tax law. However, because of
U.S. tax law, a U.S. company probably will not exploit an area
leased from a foreign country unless the U.S. recognizes that
country’s right to lease the area concerned. The possibility that
the United States Government
[Page 13]
will eventually decide that coastal States do
not have jurisdiction beyond a certain point will discourage
exploitation beyond that point unless there is general
agreement—along the lines of our moratorium proposal—that such
exploitation can occur and should be protected even after a boundary
is drawn landward of it.
Our Interests
At the working level all concerned agencies of the Executive Branch
have agreed the U.S. has at least the following interests which will
be affected by the eventual solutions for the seabed boundary and
regime issues:
- a)
-
Foreign Policy. Bilateral and
multilateral disputes over boundaries, claims to distant
seabed areas, expropriations of foreign investments, etc.,
should be avoided; if they arise, they should be resolved by
a compulsory dispute settlement procedure. Seabeds solutions
should also encourage international cooperation, hopefully
providing useful precedent for other matters of clear
international concern.
- b)
-
Access to Resources. The U.S. and
its nationals should have access, on reasonable terms and
conditions, over
[Page 14]
the long run to the maximum quantity of all economically
recoverable resources—known and presently unknown—of the
submerged areas of the world.
- c)
-
Access to Seabed for Other Uses.
The U.S. also has a great interest—largely for national
defense and scientific investigation—in protecting our right
to use seabed areas off other nations’ coasts, as well as
our own, for purposes, consistent with international law and
agreement, other than natural resource exploration or
exploitation.
- d)
-
Use of the Superjacent Water Column and
Air Space. For commercial and national defense
reasons we have a great interest in assuring our continued
right to exercise the freedoms of the high seas in all
waters and air space presently subject to the regime of the
high seas.
The U.S. has no immediate or near term requirements for resources
known or suspected to exist beyond the geologic shelf.
The U.S. Government has not decided what boundary/regime combination
would best serve the interests listed above.
[Page 15]
In June 1968, it decided that
internationally agreed solutions were preferable to solutions
resulting from unilateral actions by coastal states. In January,
1969 it decided that all options should be kept open while further
studies were undertaken to determine the most desirable
boundary/regime combination. There is general agreement within the
government that the boundary and regime issues are too closely
interrelated to be separated—i.e. if a desirable regime can be
agreed upon we would perhaps favor a narrow zone of national
jurisdiction, but if an acceptable regime cannot be negotiated we
would perhaps favor a broad zone of national jurisdiction.
As more and more nations assert control over seabed areas in deeper
and deeper water far from their shores, it is clear that we will
effectively lose the option of agreeing to any boundary/regime
combination which contains a narrow zone of national jurisdiction
unless we take some positive action to protect this option.
Two courses of action are available: we can seek international
agreement, or an understanding, that there will be a moratorium upon
seabed boundary claims pending
[Page 16]
an effort to arrive at agreed solutions; or
(separately or in conjunction with the former alternative) we can
unilaterally protest all actions which might effectively diminish
the available options. Whether or not the second course is adopted
it is important now to proceed vigorously to pursue the first if it
is to be adopted. A prompt decision on this issue is necessary so
that we can undertake any necessary consultations prior to
August.
Terms of a Moratorium.
In early January, 1969 there was general agreement within the
Executive Branch that the U.S. should propose and seek support for a
moratorium on boundary claims. There was, however, disagreement over
whether the proposal should state that the moratorium applied only
to claims beyond a depth of 200 meters. State and Defense favored
inclusion of this figure; Interior and Commerce opposed it on the
ground that it would tend to prejudice location of the boundary in
favor of 200 meters.
During the March, 1969 meeting of the Seabeds Committee an intensive
but unsuccessful effort was made within the United States Government
to reach agreement on a proposal which did not contain a reference
to 200 meters. State and
[Page 17]
Defense supported a proposal covering all boundary claims,
including those based on the 1958 Convention; Interior and Commerce
supported a proposal covering only “further” claims.
This difference is substantial. Under the proposal which State has
most recently recommended to Interior claims based on an
interpretation of the Convention would not be prejudiced, but they
would be held in abeyance until an effort could be made to negotiate
an agreed boundary. Under the proposal most recently made by
Interior a coastal State can, through increasing technological
capability of its lessees, extend its jurisdiction under the
Convention to the abyssal ocean floor. Under the NPC view the U.S. presently has rights
to that point. The Convention and its history are sufficiently
ambiguous to allow other nations to support the moratorium favored
by Interior and, Commerce and then (perhaps upon urging by U.S.
companies seeking large mineral concessions) to espouse the Interior
or NPC interpretation of the
Convention. If this were to happen the possibility of eventual
agreement to a narrow zone of coastal State jurisdiction would be
greatly diminished.
[Page 18]
Other differences are much less important. It should be possible to
overcome them if agreement can be reached, or other resolution
reached on the more important issue separating the various
Departments. The area of agreement is large.
Hopefully agreement to a moratorium proposal can be reached at the
Thursday meeting. If agreement is not reached, there should be
discussion of the procedure to follow in order to resolve the issue
of what, if any, moratorium proposal the USG should make. The most promising possibility is that
the issue should be referred to the NSC for prompt decision.
