For your use and the use of your principals, I am attaching the seabed
boundary paper Mr. Stevenson sent
today to Under Secretary Train,
Deputy Under Secretary Peacock, Assistant Secretary Nutter and Mr. Marchling.
Mr. Stevenson plans to meet
personally with each of these officials in the near future to discuss
our proposal.
Attachment.
State Department Proposal for a United States
Government Position on Location of Seabed Boundaries
The Problem
The absence of a U.S. Government policy on the location of the
boundary of the continental shelf increasingly jeopardizes the
national interest, both domestically and internationally. Refinement
of our principles and policies with respect to other aspects of
exploration and exploitation of the mineral resources of the seabeds
and constructive leadership are impeded by the lack of a position
with respect to the boundary. We believe it is timely, essential,
and possible to remove this disability, and this paper proposes a
policy that would do so.
Discussion
It has been informally agreed, in response to Dr. Kissinger’s memorandum of July 12,
1969, that the NSC Under Secretaries
Committee consider what the position of the U.S. Government should
be on the location of the boundary and the related matter of how the
boundary is to be defined by the international community.
Domestically, the pressures for reaching a decision soon on the
location of the boundary are strong. Senators Jackson, Pell, and Metcalf have each asked State
specific questions concerning the location of the boundary.
Internationally, the absence of a decision within the Government on
the location of the boundary makes it increasingly difficult for us
to influence the development of discussion and possible events.
Ambassador Pardo of Malta has,
for example, suggested that seabed boundary
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negotiations begin at 200 miles. While it is
agreed within the U.S. Government that this figure is excessive and
unacceptable, our own inability to state where the boundary should
be handicaps us. We have sought to dissuade various countries,
including the United Kingdom, from unilaterally extending their
national jurisdiction, but these countries naturally want to know
where we think the boundary ought to lie.
We believe that while our policy of keeping options open served a
useful purpose at one time, we have now reached the point where we
should obtain an early decision within the U.S. Government on the
location of the boundary and the authority to present this position
publicly in ways best calculated to gain widespread international
acceptance.
We appreciate the national security interest in a narrow boundary and
the national resources development interest in a wide boundary. We
believe that these various interests of the U.S. Government can be
accommodated, as well as certain international community interests,
by utilizing a variation of the intermediate zone concept first
suggested by the Commission on Marine Science, Engineering and
Resources.
Within the intermediate zone as proposed by the Commission only the
coastal nation or its licensees, which might or might not be its
nationals, would be allowed to explore or exploit the area. In all
other respects exploration and exploitation of the intermediate zone
would be governed by the international regime for the area of the
deep sea. This would include an obligation to pay an agreed small
portion of the value of the production for international community
purposes, as well as to agree internationally to pollution control
measures and other similar international standards, and the
application of an international registry machinery.
This proposal has been criticized as in effect subjecting the
exploitation of the resources of the
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intermediate zone to two administrations—that
of the coastal state in the first instance and an international
regime as well.
The variation of this proposal which we propose would more adequately
insure the coastal states’ jurisdiction over the natural resources
of the intermediate zone by eliminating any international
administration or machinery from the intermediate zone and providing
in effect that the exploration and exploitation of the resources of
the inter-mediate zone would be subject to the exclusive
jurisdiction and administration of the coastal state subject to the
obligation of the coastal state to pay an agreed small royalty
payment to a designated international agency for international
development purposes and to enforce certain international
standards.
The intermediate zone proposal of the Marine Commission is based on
the legal theory that the source of authority for granting exclusive
authority to the coastal state for the exploitation of the mineral
resources in the intermediate zone is the international regime
itself. We do not accept the Commission approach because we consider
that the recognition of coastal state authority with respect to
exclusive jurisdiction over resources is a preferable basis to
receiving that authority from an international regime which has not
yet been formulated even conceptually. We feel it is possible to
build international elements (royalties and international standards)
into our proposal which would provide assurance that the national
and international interests of the United States would be adequately
protected.
The National Petroleum Council has taken the view that under the
Continental Shelf Convention the United States now has exclusive
jurisdiction over the natural resources of the submerged continental
mass seaward to where the submerged portion of that mass meets the
abyssal ocean floor and that the United States should declare its
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rights accordingly.
The National Petroleum Council position fails to give sufficient
attention to the problem of protecting the right of all states to
conduct other legitimate activities, including scientific research
and military activities in the area of the intermediate zone.
We have also not accepted Senator Pell’s proposal that the outer
boundary of the continental shelf is limited to the 550 meter
isobath or to a distance of 50 miles from the baseline from which
the breadth of the territorial sea is measured, whichever results in
a greater area for the coastal state. We believe it is unrealistic
to limit the preferential right of coastal states to seabed
resources off their coasts to this narrow boundary.
Proposal
We propose the following statement of what the U.S. Government
position should be on the location of the boundary of the
continental shelf, to be incorporated in a new international treaty.
Attached is an analysis we have prepared of the major elements of
this proposal:
- 1.
- The coastal State has sovereign rights in respect of the
seabed’s natural resources up to a depth of 200 meters from
the coast.
- 2.
- With respect to the seabed area beyond a water depth of
200 meters and to the seaward edge of the geologic
continental rise* (herein referred to as the “intermediate
zone”), the coastal State does not have any sovereign rights
in respect of the seabed’s mineral resources or for any
other purpose but has jurisdiction to authorize exploration
and exploitation pursuant to its own laws and regulations
(including those governing licensing fees, taxes, and
royalties) subject to agreed international standards as
follows:
- a.
- These jurisdictional rights of the coastal State
do not affect the rights of other States to conduct
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activities other than exploration and exploitation
of mineral resources in the seabed and subsoil of
the intermediate zone (including the right to
conduct military activities). The coastal State has
no jurisdiction over such other activities.
- b.
- The right to conduct scientific research in the
intermediate zone free of control by the coastal
State will be protected. “Exploration” will be
defined so as to assure freedom for legitimate
scientific research.
- c)
- All uses of the intermediate zone, including
exploration and exploitation, must be exercised with
reasonable regard to the interests of other users of
the seabed and the superjacent waters in their
exercise of the freedom of the high seas. The treaty
will specify certain standards which the coastal
State must observe and enforce regarding exploration
and exploitation of the mineral resources of the
intermediate zone. These standards include
safeguards against pollution and hazards to
navigation, avoidance of interference with fisheries
and other uses of the ocean, and notice of the
nature, location, and duration of activity it
authorizes.
- d)
- Every coastal State will be obligated to pay an
agreed small portion of the value of all mineral
production from the intermediate zone into an
existing fund for international development
purposes. For example, the treaty might provide an
option for the payment to be made to the IBRD/IDA or the UNDP. The treaty would
fix the percentage of the value of the production,
the means of computing the amount, and related
procedures.
- e)
- In order to protect the international community’s
interest in revenue from the intermediate zone, the
coastal State would undertake not to revoke
exploitation concessions prior to termination except
for failure to comply with the conditions on which
such concessions have been
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granted, and not to take the
equipment of licensees except in connection with
justifiable revocation on termination of licenses
and on payment of adequate compensation. A provision
would be included for obligatory reference of
disputes to the International Court of Justice or
the IBRD’s
International Centre for the Settlement of
Investment Disputes.
- 3.
- The exploration and exploitation of the resources of the
seabed beyond the intermediate zone will be governed by an
international regime. The nature of the international regime
which we seek is set forth in Circular Airgram 4439 (Tab
B).
