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Chapter 7

LAW OF THE SEA AND
INTERNATIONAL WATERWAYS

§ 1 General

U.S. Oceans Policy

U.N. Conference on Law of the Sea

Secretary of State Kissinger made a statement upon the conclusion of the fifth session of the Third U.N. Conference on the Law of the Sea. which met in New York August 2 to September 17, 1976, in which he stated the views of the United States with respect to the current status of the negotiations. The following is an excerpt:

The present Revised Single Negotiating Text (RSNT) represents a consensus on a large number of issues before the Conference. This text has been maintained in this session as the basis for negotiations. A broad consensus already exists in certain key areas, including a 12-mile territorial sea, establishing coastal state resource and other rights in a 200-mile economic zone, protecting navigational rights and on marine pollution. However, the United States believes the present text remains imperfect and requires further changes in a certain number of key areas, such as:

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- a regime for mining deep seabed minerals;

the nature of the economic zone;

- the provisions for marine scientific research in the economic zone;

— the articles dealing with the exploitation of resources in the continental margin beyond 200 miles;

the rights of landlocked and geographically disadvantaged

states in the economic zone.

During meetings between myself and certain other delegations on September 1-2, the United States put forward important new ideas on a number of key topics still at issue. With respect to deep seabed mining we proposed a package approach which would include assured access in all its aspects to deep seabed mining sites by all nations and their citizens along with a financing arrangement to enable the proposed Enterprise (the independent operating arm of the International Seabed Authority) to get into business. As part of that package we further proposed that there could be a review, in 25 years, perhaps, to determine if the provisions of the treaty regarding the system of seabed exploitation

were working adequately. This was a significant move which generated considerable interest which we believe can be transformed at the next session into specific treaty language. . . .

With respect to the issues in Committee II of the Conference dealing with navigation and the nature of the economic zone, the United States continues to believe that a satisfactory solution is within reach. While specific language on the nature of the proposed economic zone has not yet been agreed, several promising ideas have been considered. We believe that a solution can be found which will provide for both the legitimate interests of the coastal states in protecting their resource and other interests and the high seas freedoms of the international community in the economic zone.. These provisions are important in maintaining global security and supporting our allies in this dangerous age.

În Committee III the United States is seeking protection of the marine environment and preservation of the right to conduct marine scientific research. The present text already contains important provisions on ocean pollution which we seek to strengthen. With respect to marine scientific research in the economic zone, we have proposed a compromise which will give the coastal states the right to control marine scientific research directly related to resource exploitation but which will ensure the right to conduct other forms of marine scientific research which benefit all mankind.

In order for an overall package settlement to be viable, the treaty must contain provisions for comprehensive, obligatory and binding third party dispute settlement. This session has made considerable progress toward that goal.

We believe that equitable resolution of these and other key issues in these negotiations can be found. Unless this is the case various governments may conclude agreement is not possible, resulting in unilateral action which can lead to conflict over the uses of ocean space.

The United States has a major interest as a global power in preventing such conflict and thus will continue to seek overall solutions acceptable to all groups of countries. In so doing, however, we will continue vigorously to safeguard essential American interests. We will work cooperatively with other nations, but we expect a reciprocal attitude of good will and reasonableness. There are limits beyond which the United States will not go, and we are close to such limits now.

We must now move toward businesslike negotiations and toward a recognition that the alternative to a treaty would serve no national or international community interest The United States will seek to build on the progress made to date and will continue its intensive efforts to achieve a treaty.

Press Release USUN-104(76), Sept. 17, 1976; Dept. of State Bulletin, Vol. LXXV, No. 1946, Oct. 11, 1976, pp. 451-453. The Revised Single Negotiating Text which formed the basis for negotiations at the Aug. 2-Sept. 17, 1976, session of the Law of the Sea Conference consisted of revised texts prepared by the Chairmen of Committee I, Committee II, and Committee III and a new single negotiating text on settlement of disputes prepared by the President of the Conference at the preceding session, U.N.

Docs. A/CONF. 62/WP.8/Rev. 1, Parts I-III, May 6, 1976, and A/CONF. 62/WP.9/Rev. 1, May 6, 1976.

In an address to the U. N. General Assembly on September 30, 1976, Secretary of State Kissinger said, with respect to the law of the sea negotiations:

The negotiations which have just recessed in New York represent one of the most important, complex, and ambitious diplomatic undertakings in history.

Consider what is at stake:

-Mankind is attempting to devise an international regime for nearly three quarters of the Earth's surface.

-Some 150 nations are participating, reflecting all the globe's diverse national perspectives, ideologies, and practical concerns. -A broad sweep of vital issues is involved: economic development, military security, freedom of navigation, crucial and dwindling living resources, the ocean's fragile ecology, marine scientific research, and vast potential mineral wealth.

-The world community is aspiring to shape major new international legal principles: the extension of the longestablished territorial sea, the creation of a completely new concept of an economic zone extending 200 miles, and the designation of the deep seabeds as the "common heritage of mankind."

We have traveled an extraordinary distance in these negotiations in recent years-thanks in no small part to the skill and dedication of the distinguished President of this Assembly. Agreement exists on key concepts: a 12-mile territorial sea, free passage over and through straits, a 200-mile economic zone, and important pollution controls. In many fields we have replaced ideological debates with serious efforts to find concrete solutions. And there is growing consensus that the outstanding problems must be solved at the next session.

But there is hardly room for complacency. Important issues remain which, if not settled, could cause us to forfeit all our hardwon progress. The conference has yet to agree on the balance between coastal state and international rights in the economic zone, on the freedom of marine scientific research, on arrangements for dispute settlement, and most crucially, on the regime for exploitation of the deep seabeds.

The United States has made major proposals to resolve the deep seabed issue. We have agreed that the seabeds are the common heritage of all mankind. We have proposed a dual system for the exploitation of seabed minerals by which half of the mining sites would be reserved for the International Authority and half could be developed by individual nations and their nationals on the basis of their technical capacity. We have offered to find financing and to transfer the technology needed to make international mining a practical reality. And in light of the many uncertainties that lie ahead, we have proposed that there be a review-for example, in 25 years to determine whether the provisions on seabed mining are working equitably.

In response some nations have escalated both their demands and the stridency with which they advocate them.

I must say candidly that there are limits beyond which no American Administration can, or will, go. If attempts are made to compel concessions which exceed those limits, unilateralism will become inevitable. Countries which have no technological capacity for mining the seabeds in the foreseeable future should not seek to impose a doctrine of total internationalization on nations which alone have this capacity and which have voluntarily offered to share it. The United States has an interest in the progressive development of international law, stable order, and global cooperation. We are prepared to make sacrifices for this-but they cannot go beyond equitable bounds.

Let us therefore put aside delaying tactics and pressures and take the path of cooperation. If we have the vision to conclude a treaty considered fair and just by mankind, our labors will have profound meaning not only for the regime of the oceans but for all efforts to build a peaceful, cooperative, and prosperous international community. The United States will spend the interval between sessions of the conference reviewing its positions and will approach other nations well in advance of the next session at the political level to establish the best possible conditions for its

success.

Dept. of State Bulletin, Vol. LXXV, No. 1948, Oct. 25, 1976, pp. 507-508. The U.N. General Assembly, on Dec. 10, 1976, adopted Res. 31/63, approving the convening of the sixth session of the Third U.N. Conference on the Law of the Sea in New York from May 23 to July 8, 1977, with a possible extension to July 15 should the Conference so decide.

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The U.S. Embassy in New Delhi, in a note of March 15, 1976, to the Ministry of External Affairs of India, noted its disagreement with the position stated by the Indian Government in a circular note of August 4, 1975, that the passage of warships through Indian Territorial waters requires prior notification to and permission by the Government of India. In its circular note, the Indian Ministry of External Affairs had informed governments that for security reasons the entry of foreign vessels in the territorial waters around Andaman and Nicobar Islands had been temporarily sealed off, and it requested that its notice be brought to the attention of all concerned for strict compliance. The note also included the statement of the Indian position on passage of warships through territorial waters.

The Embassy's reply informed the Ministry of the dissemination and publication of its note, but added:

this does not constitute legal recognition by the United States of America of the international validity of any rule so

published. For example, the United States does not agree that the passage of warships requires notification or permission.

Dept. of State File No. P77 0009-12.

§ 3

Coastal State Economic Jurisdiction Legal Status of the Economic Zone

At the fifth session of the Third U.N. Conference on the Law of the Sea, which met in New York August 2-September 17, 1976, the Second Committee set up a negotiating group to deal with the legal status of the exclusive and economic zone and the rights and duties of the coastal state and other states in that zone. The U.S. Delegation Report for that session described the U.S. position and that of some other governments as follows:

..

The U.S. objective in this regard is to retain this traditional high seas status of the zone, except for rights over resources and other limited rights (which had previously been high seas freedoms) assigned to coastal states by the provisions of the treaty. This objective has been made more difficult because: (1) the present Revised Single Negotiating Text (RSNT) clearly states that the economic zone is not high seas, and (2) in his introductory note to the RSNT, the Chairman of the Second Committee wrote the following:

Nor is there any doubt that the exclusive economic zone is neither the high seas nor the territorial sea. It is a zone sui generis.

He suggested that the solution was to be found in adjusting the articles dealing with the rights and duties of coastal states in the zone, and those of other states.

The United States made clear that the provisions of the RSNT on this subject are unacceptable as written and that we cannot agree to any text which makes it clear that the zone is not high seas. On the contrary, the text must somehow explicitly accord high seas status to the zone but with the recognition that the zone is not high seas with respect to the exercise of coastal state rights provided for in the treaty. In addition, the summary of coastal state rights in the zone must be made consistent with the substantive articles.

The negotiations have been made still more difficult by the extremists of the territorialist group who have insisted that the zone be characterized as one of national jurisdiction in which other states enjoy only subordinate rights of navigation, overflight, and communication.

More moderate coastal states worked at this session of the Conference to seek an accommodation by experimenting with various formulations which might more satisfactorily specify the rights and duties of states in the zone.

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