A report prepared by the Interagency Task Force on the Law of the Sea
regarding the July 2 to August 24, 1973, Geneva preparatory meeting for
the Law of the Sea Conference is attached. The report contains
negotiating recommendations as requested in your memorandum of March 16,
1973. The report is being concurrently submitted to the various agencies
for comment and clearance. The Department of the Treasury reserves its
position on the report pending instructions.
The report containing recommendations is divided into seven sections,
which I have outlined below. In view of earlier submissions on the Law
of the Sea, additional background material has only been presented where
new issues or additional facts are involved.
Section I. The Context of the Summer Session.
This section presents the setting for the July–August Seabed Committee
meeting, particularly with regard to the timing of the Conference. The
report identifies key issues which need to be resolved in order to
achieve a successful overall treaty package. A general grouping of
states according to their national interests (coastal, developed
maritime, landlocked/shelf-locked, distant water fishing developing) is
outlined. It is suggested that our almost across-the-board interests
should help us play a significant role in encouraging the emergence of a
package accommodating our basic interests.
Section II. Objectives for the Summer Session.
This section recommends four major objectives for the summer session: to
begin to construct the outlines of a broad consensus compatible with the
full range of basic U.S. interests; to
form a broader common front of states with similar interests to
demonstrate well in advance the futility of attempting to outvote the
U.S., thus leaving adequate time for
negotiation; to gain a better understanding of what may be acceptable to
other states so that our instructions for the Conference can be formed
in a manner that reduces the need for urgent high-level decisions in
Washington during the Conference; and to ensure sufficient technical
preparations so that the main issues are fairly clearly understood at
the Conference and as many important issues as possible are settled in
advance. On the straits issue, it is recommended that concentration be
placed on the formation of a broad common front of states with similar
interests, while continuing our dialogue with straits states and
maintaining strong opposition to their innocent passage proposal. As to
the question of coastal state resource jurisdiction, it is recommended
that the U.S. work with the coastal state
majority, in particular in private exploratory discussions with the
moderate developing coastal states favoring a 200-mile resource zone on
the substance of coastal state jurisdiction and on an overall Law of the
Sea package involving the full range of U.S. interests. While maintaining our opposition to
exclusive coastal state jurisdiction, we would not in those discussions
indicate that we would oppose a 200-mile resource zone if our
substantive interests were accommodated. At the same time, we would
maintain close contact with the distant water fishing states and the
landlocked/shelf-locked states that must eventually be brought along,
and would remind the coastal states of that necessity.
Section IV. Pollution. This section presents
recommendations on vessel source pollution designed to support the
U.S. position that vessel source
pollution standards should be exclusively international. Measures
designed to strengthen IMCO are
outlined in order to respond to the need to demonstrate the adequacy of
the system for promulgating international standards. To protect against
abusive actions and ensure more responsible behavior, all pollution
control actions undertaken pursuant to the LOS treaty would be subject to a satisfactory compulsory
dispute mechanism to which immediate access can be had. It is suggested
that existing rights, including those relating to the right of approach
and port and flag state enforcement actions, be spelled out in the
treaty. In recognition of the need for effective enforcement and the
desire for coastal state pollution controls, a highly circumscribed
coastal state enforcement right is recommended. The report recommends
three pollution liability objectives, and ideas to achieve them are set
out. Military vessels and aircraft would be exempt from the treaty’s
pollution control provisions.
Section V. Provisional Application of the
Treaty. This section presents recommendations on the
provisional application of the treaty in the period between signature
and its entry into force. The U.S. has
already proposed such application for the deep seabeds regime and
machinery. Provisional application of other aspects of the treaty, it is
believed, would be in the interest of the U.S., provided it were done in a way which encourages
prompt ratification of the treaty. Support for provisional application
would be indicated in light of its effect on substantive objectives and
relevant tactical circumstances.
Section VI. Seabeds Resources: The Intermediate Zone
and the Continental Shelf Convention. This section discusses
the relationship between our intermediate zone proposal and the
exclusive economic zone advocated by certain states, and proposes that
the five points in the President’s Oceans Policy Statement be made
applicable to all seabed resources under coastal state jurisdiction
beyond the territorial sea, but with our interim leasing policy
continuing to apply only beyond a depth of 200 meters. Flexibility on
whether revenue sharing should begin at 200 meters or at 12 miles
(coupled with a grandfather clause) is recommended.
Section VII. Compulsory Dispute Settlement.
This section recommends that major emphasis be placed on compulsory
dispute settlement as a general principle applicable to all disputes
arising out of the treaty. Acceptance of the principle of compulsory
dispute settlement is regarded as essential to a successful Conference
by the U.S. Government Departments and
Agencies on the Task Force and affected industries.
Attachment 2
Report
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[Page 5]
REPORT ON THE MARCH/APRIL, 1973, MEETING OF THE U.N. SEABED COMMITTEE
Summary
The U.N. Seabed Committee completed
its fifth session in preparation for the third U.N. Conference on the Law of the Sea
which is scheduled to commence in New York with a two week
organizational session during November/December 1973. The
substantive phase of the Conference will take place in Santiago,
Chile over an eight week period starting in April, 1974. The latest
preparatory meeting lasted from March 5 to April 6 and was
characterized by a business-like atmosphere and slow but perceptible
progress. It now seems clear that the commitment to holding the
Conference on schedule is increasing. The preparatory committee is
generally moving beyond general debate and procedural wrangling to
structured discussion on specific issues in working groups and
informal drafting groups. Thus far these groups are preparing for
presentation at the Conference draft treaty articles with
alternative or bracketed texts where differences exist on the seabed
regime and machinery and marine pollution. While the debate and the
preparation of articles have served to focus and sharpen positions,
the difficult negotiations and accommodations still lie ahead. At
this meeting, the United States continued to press for acceptance of
the positions it had proposed at previous sessions of the Committee.
In support of this objective, the United States delegation made
several statements and circulated two working papers. There follows
a brief report on the highlights of this session.
Procedural Developments
An important feature of the March/April meeting was the consensus
which emerged on a variety of procedural matters which facilitated
the negotiations and opened the way for more intensive work and
drafting. Early in the session, the Main Committee agreed on the
allocation of subjects and issues contained in the list of subjects
and issues adopted last summer. Under this arrangement,
Subcommittees I and III will consider items specifically within
their mandate and Subcommittee II will discuss all other items on
the list except for “peaceful uses” which will be dealt with by the
Main Committee.
[Page 6]
Subcommittee
I will prepare draft treaty articles on the international regime and
machinery for the seabed; Subcommittee III will deal with
preservation of the marine environment and scientific research; and
Subcommittee II will be handling issues such as the territorial sea,
the contiguous zone, straits used for international navigation, the
continental shelf, exclusive economic zone beyond the territorial
sea, coastal state preferential rights or other non-exclusive
jurisdiction over resources beyond the territorial sea, the high
seas, the rights of landlocked countries, shelf-locked countries and
broad-shelf states, archipelagos and natural and artificial
islands.
Two new working groups were established at the March/April session so
that there are now four in existence. The first working group had
been created in March 1972 to deal with the seabed regime and
machinery. Towards the end of last summer’s meeting, a second
working group was established in Subcommittee III to consider
preservation of the marine environment. This session, a third
working group of the whole was established in Subcommittee II under
the Chairmanship of Ambassador Kedadi of Tunisia to consider the
territorial sea, contiguous zone, straits, continental shelf,
exclusive economic zone and preferential state rights—not
necessarily in that order. The remaining Subcommittee II items on
the list of subjects and issues would be dealt with after the
working group had completed its discussion on these issues.
While it consumed most of the first three weeks of the session to
reach agreement on the formation of a working group in Subcommittee
II, the selection of a Chairman, and the basic division of subjects
for its consideration, the achievement of this arrangement marked
the overcoming of a major psychological obstacle as Subcommittee II
had long been the focal point of delaying tactics by those who
viewed time as being on their side. The selection of an African
Chairman was strongly resisted by the Eastern European block which
felt that it should have the Chairmanship. The strength of the group
of 77 on procedural issues was once again demonstrated by their
ability to secure one of their members to head this important
working group. As part of the compromise on this matter, the Eastern
European bloc was given a chairmanship of a second working group in
Subcommittee III.
On the last day of the March/April meeting, the Chairman of the
Seabed Committee, Ambassador Amerasinghe, circulated a paper on the
administration and organization of the Conference. He stated that he
intended to initiate a series of informal consultations prior to the
summer
[Page 7]
meeting in order to
determine which arrangements would be appropriate, mentioning
specifically such questions as Conference officers, a representative
of the Secretary General, the decision-making procedures, and
voting. On the voting issue he suggested that the Committee articles
might be adopted by a simple majority and that at the plenary stage
a 2/3 majority might be appropriate.
Territorial Sea and Straits
In August 1972 the Soviet Union circulated a draft article providing
for freedom of transit through straits used for international
navigation and at this session submitted a draft treaty article
providing for a 12-mile territorial sea. In contrast to the US and Soviet position on a special
regime for straits used for international navigation, eight States
(Spain, Morocco, Philippines, Indonesia, Greece, Cyprus, Yemen and
Malaysia) proposed draft articles concerning the territorial sea and
straits. These articles do not recognize any special right of
transit in straits used for international navigation different from
the doctrine of innocent passage in the territorial sea. Moreover,
they define the concept of innocent passage in a more restrictive
and subjective manner than presently exists under international law.
The proposal represented a coalition between hard-line strait states
and archipelago states; however the draft was also supported by
Peru, Sri Lanka and Cyprus. It was reported that Egypt, while
supporting the draft in the Committee, did not consider the draft
had gone far enough. The United States expressed deep
dissatisfaction with the draft articles and reiterated its strongly
held position that US vital interests
require agreement on a 12-mile territorial sea coupled with free and
unimpeded transit through and over straits used for international
navigation. We stressed that the question of straits transit must be
considered separately from that of passage generally in the
territorial sea. The UK firmly
endorsed the US position but reserved
comment on the question of strict liability for damage caused by
vessels or aircraft in violation of certain IMCO or ICAO
standards. The Soviet Union also spoke in support of its straits
proposal, which differs from our own in that it would only apply to
those straits which connect areas of the high seas, thereby
exempting Tiran and a part of Pemba Channel. France and Kuwait also
supported free transit although Kuwait made it clear that freedom of
transit did not, in its view, include freedom of overflight.
Thailand and Zaire indicated that innocent passage would be
inadequate for
[Page 8]
their
individual geographic circumstances while a number of other states,
including Madagascar and Tunisia, spoke in favor of the concept of
innocent passage. Both Norway and Denmark endorsed the concept of a
special regime for straits different from that of passage in the
territorial sea.
Four archipelagic states (Philippines, Fiji, Mauritius and Indonesia)
introduced a draft paper on archipelagic principles. These
principles would give an archipelagic state sovereignty over the
waters within the archipelago. The territorial sea would be drawn
from the baselines delimiting the enclosed “archipelagic waters.”
Innocent passage would be permitted in such waters through sealanes
designated by the archipelagic state.
The acceptance of a 12-mile territorial sea continued to gather
support at this session although many states are tying their
agreement on 12 miles to a satisfactory settlement on a broad
coastal state economic jurisdiction beyond 12 miles. This broad
coastal jurisdiction was often expressed in terms of an economic
zone or a patrimonial sea. Interestingly, the clustering of states
favoring 12 miles may be having effects on the negotiating positions
of states claiming broader territorial sea breadths. Nigeria, for
example, stated that although it had a 30-mile territorial sea, it
would be willing seriously to consider acceptance of a 12-mile
territorial sea if that were embodied in a general convention. Even
Peru and Chile spoke favorably of Uruguayan legislation which
designates two zones within the “territorial sea”. Under the
legislation, in the first 12-mile zone, the regime of innocent
passage would be applicable. In the second zone of 12 to 200 miles,
there would be freedom of navigation and overflight.
In the discussions on the subject of the territorial sea, it emerged
that a number of countries were concerned about the jurisdictional
issues affecting islands. Turkey and Greece engaged in an extended
exchange which related to the troublesome problem of the Greek
islands off the Turkish coast. A number of other states such as
Italy, Tunisia, Denmark and Venezuela also expressed concern with
this problem. Part of the difficulty relates to the question of how
much resource jurisdiction these islands should be given in light of
the fact that they are often on the continental shelf of another
state. States with foreign islands off their coasts may have some
interest in narrow territorial sea limits. For example, foreign
islands,
[Page 9]
which are clearly
entitled to a territorial sea under international law, could lead to
a disproportionately large loss of territorial sea area which
otherwise would go to the coastal State.
Resource Zones and Fisheries
Venezuela, with Mexico and Colombia as co-sponsors, introduced draft
treaty articles based on the Santo Domingo Declaration. The articles
provide for a 12-mile territorial sea and the equivalent of an
exclusive economic zone beyond this territorial sea up to 200-miles.
In the patrimonial sea area, there would be freedom of navigation
and overflight. In commenting on the articles, Ambassador Castenada
of Mexico made a special point of emphasizing that coastal State
rights were limited to specific functions in the patrimonial sea.
Australia expressed support for a 200-mile fisheries zone, as well
as an exclusive economic or patrimonial sea, the breadth of which
was undelimited. Ambassador Harry also appeared to endorse the Santo
Domingo articles as a basis for discussion. Several delegations
noted the similarity between the Santo Domingo articles and the
Kenyan draft proposal which provides for an exclusive economic
zone.
The United States delegation spoke on several occasions in support of
the species approach on fisheries. We also made a detailed statement
and circulated a working paper on the special management problems of
tuna and anadromous fisheries. The Japanese and Soviets continued
strongly to resist zonal approaches on fisheries. The Japanese, in
particular, spoke against coastal State management of salmon. The
Soviets offered developing countries assistance in improving their
fisheries capabilities. Tanzania rejected coastal States
preferential rights for coastal stocks as inadequate and endorsed
the exclusive economic zone approach. Liberia also spoke in favor of
the Kenyan proposal for an exclusive economic zone although the
Liberians suggested that there should be international standards for
navigation.
Marine Pollution
The working group on marine pollution in Subcommittee III met on
fifteen occasions during the March/April session. It began
discussion of proposals formally submitted by Australia, Canada,
USSR
and Malta regarding the preservation of the marine,
environment and the prevention of marine pollution. These
discussions focused on the following
[Page 10]
subjects: a general obligation to preserve and
protect the marine environment; a general obligation of states to
adopt measures to prevent pollution of the marine environment
irrespective of the source of pollution; an obligation of states to
adopt measures to prevent pollution of the marine environment
irrespective of the source of pollution; an obligation of states to
prevent damage from marine pollution; a particular obligation of
states to adopt specific measures in connection with certain sources
of marine pollution and their relation between such measures and
generally accepted international standards; and international
cooperation and technical assistance. In addition, the working group
considered the right of states to exploit their own resources in
conformity with the obligation to preserve and protect the marine
environment as well as a number of relevant subjects contained in
the proposals that were discussed. Much of the substantive work at
the March/April session was accomplished in a small, informal
working group. This informal working group, in which the United
States played an active role, met and consulted twelve times and
produced a number of texts based on the draft proposals before the
Subcommittee, as well as on the comments of the working group
members.
The United States submitted a draft working paper on the need for
exclusively international standards for the control of pollution
from ships and during the later stages of the March/April session,
the working group began a preliminary discussion of these issues.
The US position of exclusively
international pollution standards for vessels was opposed by the
majority of nations in the working group including Canada,
Australia, Ghana, Kenya, Malta, Peru, Trinidad and Tobago, India,
Egypt, Tanzania, and New Zealand. A number of objections focused on
the inability of existing international regulation-making
organizations to be responsive to coastal states needs in a timely
manner as well as the desires of coastal states to have the right to
enforce environmental standards. Our position was supported by the
USSR, the UK, Norway, Japan, Greece, Denmark and
Liberia.
Scientific Research
The new working group on scientific research which was established at
the end of the March/April session, will begin its deliberations in
July under the Chairmanship of the Polish representatives. This
working group will
[Page 11]
also
deal with the issue of transfer of technology to developing
countries. The United States spoke on the benefits derived from
obtaining world-wide geological knowledge obtained from freedom of
scientific research in the oceans. The President of the National
Academy of Sciences delivered an address on the need to maintain
freedom of fundamental oceanographic research. An exhibit of the
Deep Sea Drilling Project, sponsored by the National Science
Foundation, was displayed in the UN
Conference area. In addition, the Woods Hole Oceanographic Institute
made a research vessel available for a tour by all Seabed Committee
Delegates.
The Soviet Union, with the co-sponsorship of the Ukraine, Poland and
Bulgaria, submitted draft treaty articles on marine scientific
research. Their fourteen articles reflect a position of maximizing
the freedom of scientific investigations in the oceans other than in
the territorial sea or on the continental shelf. They provide that
scientific research shall not be subjected to unjustified
interference, nor shall scientific research itself cause
unjustifiable interference with traditional high seas activities.
The representative of Malta also introduced draft articles on
scientific research which were intended to avoid abuse by either
commercial ventures or coastal State controls. The articles go into
considerable detail and contemplate a relationship between the
international institutions to be established and the conduct of
scientific investigations in the oceans.
In other statements, Chile suggested that scientific research needed
to be carefully controlled within national jurisdiction and that it
also be regulated in the area beyond national jurisdiction. Mexico
and Colombia’s positions were more moderate on the subject. The
UK indicated that it was
unnecessary to negotiate on scientific research and that only deep
drilling in the seabed presented pollution dangers which needed to
be regulated.
Seabeds
The principal US initiative at the
March/April meeting was a proposal for the provisional entry into
force of the international regime and machinery for deep seabed
development. Provisional entry into force under the US proposal would enable our mining
companies to begin exploitation of manganese nodules under a
provisional
[Page 12]
regime that
protects their rights after agreement at the Conference was reached
but before the Convention received the necessary number of
ratifications to enter into force. The United States proposal was
well-received. Over 20 delegations spoke to the Proposal and, of
these, 17 expressed interest in pursuing the concept. No state was
opposed, although the PRC indicated
that the approach was “not helpful”. As a corollary to its
initiative on provisional application, the United States also
proposed a study by the Secretary General of past instances where
multilateral regimes have entered into force on a provisional basis.
This study suggestion was unanimously approved by the Main Committee
and will be prepared by the Secretariat for the use of the Seabed
Committee at the July/August session.
Negotiations on an international regime for the seabed have
progressed further than those on any other subject in the Seabed
Committee and this momentum was maintained at the recent session.
The working group of Subcommittee continued to function effectively
under the Chairmanship of Christopher
Pinto of Sri Lanka. During the fourth week, the
second reading of draft treaty articles on seabed regime principles
was completed and consideration was shifted to articles on the
international machinery for the seabed.
In the working group discussions on the preparation of alternative
draft treaty article texts, the Soviet Union, Canada, and Australia
indicated that they had “no objection” to giving the Authority the
power to exploit the area when the Authority was financially and
technology capable of doing so, and, in the Soviet view, as long as
the rights of states to exploit the area were protected. From an
opposite perspective, Latin American supporters of the Enterprise
concept indicated that their position did not contemplate exclusive
exploitation by the Authority. Chile and Peru acknowledged that deep
seabed mining would not have significant adverse economic effects on
developing countries during its early years, although they supported
empowering the Authority to control economic implications for
developing countries producers as a precautionary measure. These
concessions may demonstrate the emergence of a willingness to reach
compromises, at least in some areas, in the process of drafting
alternative texts. The merging of positions in this matter should
substantially reduce the time it will take to make decisions at the
Conference.
Efforts in the Subcommittee I working group to produce agreed texts
on Article XIV (Due Regard to the Rights, etc. of coastal states)
were unsuccessful. The clear implication of the resulting debate was
that in
[Page 13]
conflicts between
coastal States and the international community, coastal States
should receive priority. Moreover, developing coastal State
dominance was reconfirmed during the debate on Article XIX (Access
to and from the Area) in which the landlocked and shelflocked
participation was neither effective nor cohesive.
Position of China
The representatives of the People’s Republic of China were far more
active in this session of the UN
Seabeds Committee than previously. The PRC has become increasingly involved since joining the
Committee in March, 1972. At this session, they made five major
statements on the Law of the Sea which were clearly intended to
appeal to the developing countries and to oppose the US and Soviet proposals. They tended to
endorse the more extreme positions of the “Third World” and they
were one of the few delegations to speak out strongly against the
“superpowers”, although their attacks were directed principally
against the Soviets. They attacked the four Geneva Conventions on
the Law of the Sea on the basis that most countries had not
participated in their formulation. They asserted that coastal States
could unilaterally set their limits for the territorial sea and for
economic zones. They maintain that pure science does not exist and
that coastal State consent would be mandatory within national
jurisdiction. The Chinese charged that the two superpowers wanted
narrow limits to dominate the oceans militarily and to plunder the
resources of the oceans without regard to the interests of
developing coastal States. In spite of the PRC desire to play a leading role in the Law of the Sea
deliberations, there was little evidence at this session that they
were exerting great influence among the developing countries. The
Soviets tended to escalate the political nature of the confrontation
by having the head of their Delegation respond to the Chinese
attacks. The United States took a low-key approach in responding to
the Chinese charges. On the few occasions when we did reply, we
stated that we regretted the tone of their remarks which we did not
find helpful in advancing the work of the Committee.
Other Developments
The landlocked and shelf-locked block did not appear to be
functioning as effectively at the March/April session taking into
account their rather remarkable display of cohesiveness and
discipline at the last UN General
Assembly. However the group did meet regularly and they
[Page 14]
did stagger the
presentation of statements which promoted the agreed objectives of
their group. Some of their difficulties may have resulted from the
wide range of issues which must necessarily be covered during Seabed
Committee meetings.
The United States continued to work closely on seabed questions with
the Group of Five which includes the US, the USSR, Japan, the UK and France. It was agreed that the
Group of Five would meet before the summer meeting of the UN Seabed Committee. (These discussions
have now been scheduled for the latter part of May and early part of
June in London.) The Group of Five will be considering not only
seabed matters but also other issues such as a coordinated position
on straits, marine pollution, scientific research and tactics at the
summer meeting. The Group of Five coordination on contentious issues
in the working group in Subcommittee I once again proved very
useful. We intend to continue to work more closely with these
delegations in the months ahead on certain issues.
Technology transfer continues to be an issue raised by many
developing countries in relation to scientific research. As
mentioned above, during the concluding days of the March session, a
working group on scientific research was established which
subsequently had the issue of technology transfer added to its
mandate. Although general debate on scientific research in
Subcommittee III has concluded, it is anticipated general debate on
technology transfer will continue before it is dealt with in the
working group.
Congressional Participation
Senators Stevens and Pell and Congressmen Mailliard and Fraser attended portions of the
March Seabed Committee meeting. Congressional interest appears to be
increasing on the Law of the Sea negotiations. In this regard, the
House of Representatives overwhelmingly passed a resolution
endorsing the objectives of President Nixon’s Oceans Policy Statement of May 23 and
commended the work of the US
Delegation to the Seabed Committee. A parallel resolution is pending
in the Senate.
