42. Memorandum of Conversation1 2
SUBJECT:
- Secretary’s Meeting With Selected Delegations On Marine Scientific Research And The Status Of The Economic Zone
PARTICIPANTS:
- Australia
- Ambassador Ralph Harry
- Ambassador Keith Brennan
- Mr. Berard A. Brennan
- Brazil
- Ambassador Ramiro Saraiva Guerreiro
- Mr. Carlos Calero Rodrigues
- Bulgaria
- Ambassador Alexander Yankov
- Canada
- Ambassador J. Alan Beesley, Q.C.
- Mr. Paul Andre Lapointe
- Kenya
- Mr. Francis Xavier Njenga
- Mr. William Njorge Mbote
- Mexico
- Ambassador Manuel Tello
- Jose Luis Vallarta
- Srta. Alicia Cabrera
- FRG
- Ambassador Karl Hermann Knoke
- Cornel Metternich
- Netherlands
- Mr. P. H. Kooijmans
- Professor W. Riphagen
- Mr. A. Bos
- Mr. Jaap A. Walkate
- New Zealand
- Ambassador M.J.C. Templeton
- Mr. C.D. Beeby
- Mr. William Mansfield
- Norway
- Ambassador Helge Vindenes
- Mr. Arne Treholt
- Mr. Per Tresselt
- Peru
- Ambassador Juan Miguel Bakula
- Mr. Alfonso Arias Schreiber
- Senegal
- Ambassador Amadou Cisse
- Mr. Doudou Diop
- Singapore
- Ambassador T.T.B. Koh
- Mr. Chao Hick Tin
- Venezuela
- Ambassador Marcos Falcon Briceno
- United States
- The Secretary
- Under Secretary Maw
- Ambassador Learson
- Mr. Oxman
- Vice Admiral Minter
- Ambassador Clingan
- Mr. Leitzell
- Mr. French
- Admiral Morris
- Mr. Taft (notetaker)
The Secretary: I would like to express my appreciation that you have accepted my invitation. I am here for a number of reasons. It provides an alibi for the US Delegation. If things don’t work out, they can blame the Secretary of State. I would also like to get a feel for what is on your minds. How do we move things [Page 3] forward? There is a tremendous impact of these negotiations on mankind. They are the most important negotiations going on at this time. As we approach the end, the more difficult issues are left. I would like to know what you think are the most important issues and the directions we might go. There is a dispute regarding the status of the economic zone. For some, it is sui generis; for others, it is high seas rights and high seas status. How do you see this issue? Then I might indicate some of our views. I am told that this is an extremely vocal group.
Mexico (Tello): There are two juridical positions. The economic zone is a result of a compromise between those who want a 200-mile territorial sea and those who advocate a territorial sea of 12 miles plus a zone of preferential rights. There may be problems of navigation and communication for the maritime powers. Article 46 may not be to your satisfaction, but it could perhaps be changed.
The Secretary: There is no point in changing the article if you are not prepared to yield the principle.
Norway (Vindenes): The status of the zone is not as important as the impression one gets from the discussions. The coastal state rights are listed in the text. The question of the status of the exclusive economic zone is whether it is labeled high seas or sui generis. We think it should be sui generis. It is more than a question of the label. It does have an impact on residual rights, those not attributed to coastal states or to other states.
The Secretary: How would you answer the argument that if we exclude the high seas definition for the zone, over a period of years it would tend to the position of those who want a 200 mile territorial sea?
Norway (Vindenes): The answer really lies in Article 47, which deals with future conflicts. It leaves the question open to future conciliation on the basis of equity. We cannot answer in advance whether it would work to the advantage of one or the other. It is a careful balance.
[Page 4]The Secretary: Can conciliation lead to constant disputes? This is likely to be of major concern to the major maritime users whose rights would be contested.
Norway (Vindenes): I will not disagree with that. We have to weigh settling everything in this convention against no convention.
Singapore (Koh): We can agree that the economic zone is not part of the high seas or of the territorial sea. The question is who has residual rights. Article 47 leaves the issue open. Residual rights, other than those specified, should be in the international community to the extent not incompatible with explicit coastal state rights in the economic zone.
The Secretary: You leave open the status, and concentrate on high seas rights in the economic zone.
Canada (Beesley): How do we guard against creeping jurisdiction by coastal states in the future? There are several elements in the problem. Residual rights can be a misnomer. We should distinguish preexisting uses and new uses of the sea. The debate has focused on preexisting uses. Some say they are permissible; others say they are not. We are talking about the military uses. The articles could give rise to the fear you raise. That is not the case with the Evensen text. Your delegation has attacked head-on Article 75. To the great majority of the Conference, it is unacceptable to characterize the zone as high seas. Canada is included. That was the essence of the compromise. The high seas gives the impression of moving backward. We should look at other articles, 44 and 46. We should talk about high seas freedoms of navigation. It may be possible that we could say that no jurisdiction other than that spelled out in the treaty appertains to the coastal state. Perhaps we could bring in the language on freedoms. This is a highly political and legal issue, but perhaps we can circumscribe coastal state rights or spell out the freedoms. It is idle to tinker with Article 75.
Peru (Bakula): On the question of residual rights, all residual rights of navigation, communication, and other legitimate uses are attributed to the international community. Other [Page 5] rights are attributed to the coastal state. The freedoms of the high seas are preserved. But high seas status is not juridically correct.
The Secretary: Are you willing to attribute high seas freedoms?
Peru (Bakula): Yes.
The Secretary: The Canadian proposal concerning high seas freedoms?
Peru (Arias Schreiber): There is a problem in the economic zone. There perhaps must be restrictions because of coastal state rights.
The Secretary: If the coastal state determines what is an economic right, it tends to a territorial sea.
Peru (Arias Schreiber): We do not exclude military uses but the flag state must refrain from activities which threaten the sovereignty of the coastal state.
The Secretary: How can an aircraft carrier not menace a coastal state? Who determines whether the activity is peaceful or not? Some states have a very low threshold of anxiety.
Peru (Arias Schreiber): We are only requesting other states to behave peacefully.
New Zealand (Templeton): There is an article in the convention that the oceans be used for peaceful purposes.
The Secretary: But you have the gap mentioned by Singapore.
Singapore (Koh): Military training activities are in a lucana. We prefer not to be explicit. I am not sure if the convention could articulate-such rights.
FRG (Knoke): We have great difficulty with the economic zone, but could accept coastal state resource jurisdiction. We support high seas status to the extent it is not incompatible with Chapter III. It is not only a resource zone but now a scientific research zone. We see creeping jurisdiction. We adhere to the need for dispute settlement. The LDCs say no dispute [Page 6] settlement except for navigation and communication. If there is an economic zone, we must have certain guarantees. We need peaceful settlement. There must be guarantees against creeping jurisdiction. It should be written that the economic zone is not subject to the territorial sovereignty of the coastal state or is not a territorial sea of 200 miles.
Kenya (Njenga): We have to take the exclusive economic zone as a fundamentally new concept, not just some rights from the territorial sea and the high seas. It is not purely a resource zone leaving the rest to preexisting law. It is a question of resources plus protection regarding marine pollution and scientific research. You cannot have freedoms of the high seas in its current form. None will remain the same. All will impinge on coastal state rights and that will lead to conflict. Regarding military uses, it is not feasible in the future for coastal states to permit extensive maneuvers and weapons testing. The economic zone is completely new. Freedom of the seas must be changed. You should leave the law to develop.
The Secretary: That is a perfect description of our major concerns. It merges the economic zone and the territorial sea.
Senegal (Cisse): Forgive my English. I agree with my colleagues. The economic zone is neither territorial sea nor high seas. We are concerned with economic resources. We are ready to leave all those rights not related to resources to the international community, those that do not affect exploitation of resources, those that do go to the coastal state.
Australia (Brennan): I am sure that all are giving close thought to the problems. I am considerably impressed by the need to get a convention. The alternative is chaos. States would unilaterally act to protect their interests and would not follow the Single Negotiating Text. They would make broad declarations of territorial seas and seabed that go far beyond the edge of the margin into the common heritage of mankind. These declarations would tend to spread. There are serious difficulties. Our primary objective is a workable convention that attracts all [Page 7] groups whose cooperation is necessary for its operation. There is no point in a convention that is unacceptable to broad margin states. There is no point in a convention that is unacceptable to the main maritime users. There is no point in a convention concerning the economic zone if the coastal states find that unacceptable. My delegation is one of those who supports high seas rights to the maritime users. We proposed an amendment to Article 75 at the last session that the economic zone is part of the high seas except for the economic zone chapter. We are under instructions to check the acceptability of that formula. I have concluded that that amendment is not acceptable and am not pursuing it further. The only starting point is that the zone is not territorial sea or high seas but is sui generis. Only then can we arrive at a solution. I feel strongly that we could deal with this in political terms. Your delegation feels that the economic zone may become a territorial sea. Many others fear that the economic zone will become an area of high seas where the coastal state has only preferential rights. We must take all of this into account. The economic zone is a re-distribution of the resources of the seas. We must acknowledge the coastal states’ sovereign rights. If excessive rights are given to the landlocked and geographically disadvantaged states in the exclusive economic zone, the zone is in danger of being dismantled. If compulsory dispute settlement provisions are not very carefully worked out, the economic zone is in danger of being dismantled. And residual rights could dismantle the exclusive economic zone. No one knows how far residual rights go. They do not know the implications of all residual rights going to the maritime users. We must feel our way forward. The guarantees that you and the coastal states seek must fall short. There will be a gap.
Brazil (Guerreiro): We must recall the historical origins of the exclusive economic zone. Countries thought they have interests beyond 12 miles. In the process of negotiations, we must try to protect the essence of their interests. Anytime one tries to depart from the text of the chairman there are difficulties. That is the situation in Committee II. We should attract the support of 140 nations or we will lose [Page 8] our opportunity. We have nothing to propose on drafting but need understanding. Peaceful uses in the UN Charter applies to land and waters.
The Secretary: I appreciate your views which give me a clearer understanding of the different groups. There seem to be three different positions. One is that the economic zone, except for enumerated items, has high seas status. That is the US position which is not unanimously agreed to. The second is that the purpose of the economic zone is a sui generis regime that tends to resolve residual rights more or less for the coastal state. The third recognizes that the economic zone has its own legal character but perhaps defines high seas rights within the zone but does not define its status. We are not here to do drafting but to agree on philosophy. I suppose we could find the key. The Australian’s statement of three concerns to be met are fair and substantial. The US is interested in high seas rights that the economic zone is not to become a territorial sea. We cannot leave this to the coastal state and a vague definition of equity. We will take very seriously what has been said regarding rights and not status. Then we will come back with an approach to bridge the gap. We hope that Committee II comes to substantial agreement to narrow the differences. Is that a fair statement of the issues? (COMMENT: There was no objection.)
The Netherlands (Kooijmans): It is vital to have agreement on the compulsory settlement of disputes, but we have fears that it cuts both ways.
The Secretary: Dispute settlement could lead to an expansion of the territorial sea. Peaceful uses of the economic zone and the UN Charter are all right, but states must agree here to behave with restraint. If within the exclusive economic zone, there is particularly stringent behavior required, I doubt we could go along with that.
Bulgaria (Yankov): Despite our differences, the more we agree that we should define rights and duties the better we will be. This goes also for the scientific research regime. On scientific research, we start with [Page 9] positions far apart. One trend was that of freedom, the other was absolute consent. We tried to work out a mixed regime distinguishing between resource and fundamental research. This effort could only show the impossibility of the distinction without abuses. In the RSNT, we tried to reflect in the economic zone that the conduct of scientific research recognizes the jurisdiction of the coastal state. It is in the interest of the coastal state to encourage scientific research. They should normally grant consent and consent should not be delayed or unreasonably denied. I understand the apprehension by researching states, but there are exceptions to the general rules. If the researcher gives sufficient evidence that the research is not resource oriented, then the coastal state will not withhold consent. This is the most viable approach to the exclusive economic zone. We could find guarantees for the researching and the coastal state. I know the US has very considerable apprehensions concerning qualified consent. They with some others feel their rights are not protected. Efforts should be made.
Canada (Beesley): My delegation does not find the position in the RSNT satisfactory. You can’t distinguish between resource research and pure research, or resource research and military research. Less developed countries cannot make the distinction. We should adopt a cautious approach. The RSNT articles are as close to protecting the general interests. We can accept the distinction as a political distinction. The coastal state has the right to consent. The vast majority of states feel strongly and are unwilling to give up.
The Secretary: If it is impossible to distinguish resource and other research, how does the text solve the problem?
Canada (Beesley): The text gives protection to the coastal state.
The Secretary: I am acting as the devil’s advocate. Why won’t the coastal state say that all scientific research is resource oriented?
[Page 10]Canada (Beesley): That is the difficulty in the approach. You have to take the formula as a whole. It’s a balance. I am not an advocate for that position.
Bulgaria (Yankov): The researching states said they could make the distinction. That is the presumption. That was to satisfy the researching state. This is an element of compromise.
FRG (Knoke): The burden of proof is on the researching state. That turns the exclusive economic zone into a zone of territorial sovereignty and that causes us great trouble.
Australia (Brennan): The Government of Australia is particularly active on this issue. Delegations are much closer than it appears. No one will reject all projects. The coastal state will have little difficulty saying that this project is all right and that project is not. They will make pragmatic decisions. The dispute turns on this, freedom of scientific research and the nature of the exclusive economic zone. The position of the coastal states is that the coastal state has in the zone rights x and y and gives back y. While the researching states say that the coastal states should only have x. We should look to pragmatic solutions. If the coastal state wants to stop projects, its views will prevail. We may say that proposals will go forward with coastal state consent for specific items. We might blur the issues that separate us.
The Secretary: It is absurd for the conference to fail on this issue.
Peru (Arias Schreiber): Our delegation and the majority of delegations start with scientific research always subject to consent. This has been Peru’s position for 30 years and we have never refused scientific research requests. We have interests off our coasts. Only with reluctance do we support the Yankov text. There are too many obligations on the coastal state. There are difficulties for the coastal state including conciliation. The researching state has all the means to prove that the research is not for resources. We cannot go beyond the Yankov text.
[Page 11]Kenya (Mbote): There is a tendency of developed states to consider themselves researching states. Without scientific research, we will not be able to benefit. Less developed countries have interests in encouraging scientific research, not hindering it. We would welcome scientists to our country. The problem is what the scientists are doing without our knowledge. They publish things without us knowing about it. With research on land, we know of no serious complaints. What is the difference in the exclusive economic zone? It is a wrong approach to view us as hindering scientific research. Consent yields benefits to the developing countries. On the distinction approach, we cannot easily differentiate one from another. We have other problems with the present text, but we can negotiate on the basis of the present text.
The Netherlands (Kooijmans): We recognize the apprehension of coastal states. Scientific research should go on for mankind. We need guarantees that research can go on. This has to do with the nature of the economic zone. If guarantees are not given, we share the fears of the FRG.
The Secretary: I am not familiar with the text. The text I have says consent shall not be withheld but the word “normally” has crept in. That increases my fears. The Department of State believes that the Secretary should not exercise powers beyond that of the British Queen. Leaving aside the old text, the new text is much more difficult. This has implications for the nature of the zone and what practical arrangements can be made for scientific research. It is an almost impossible situation for ratification if the scientific research community opposes, even if there are some safeguards. The distinctions made earlier between resources and others, with all the difficulties, offer us possibilities. Some coastal states are concerned that activities are carried out without their knowledge. We propose a notification regime unless the research relates to resources, drilling, and installations. Perhaps that is the direction to go. Our delegation will do its best to deal with the issue in a non-doctrinaire manner. We cannot agree to a pure consent regime. Perhaps we should go along the Australian lines and not spell everything out. This has been enormously [Page 12] helpful. I hope that Committees II and III can come to substantial agreement. If the public views all committees as stalemated, that will lead to unilateralism.