The next step is for governments to make the political decisions necessary to resolve a small number of critical issues. In short, we must now move from the technical drafting and preliminary exploratory exchanges of views at this just completed session, which has laid bare both the outlines of agreement and the details of disagreement, to the highest political levels, involving heads of states themselves, to make accommodation on these critical issues possible.

The fundamental problem is that most states believe the major decisions must be put together in a single package. Every state has different priorities, and agreement on one issue is frequently conditioned on agreement on another. Thus, it might have been possible— and might have been helpful to the Executive Branch in its efforts here today-to adopt a general declaration of principles in Caracas endorsing, among other things, a 12-mile territorial sea and a 200mile economic zone. Our Delegation opposed such an idea, because it would have diverted us from negotiating the key details of an economic zone that can spell the difference between true agreement and the mere appearance of agreement, and because our willingness to support such concepts is also conditioned on satisfactory resolution of other issues, including unimpeded passage of straits. In choosing to concentrate on precise texts and alternatives, our Delegation believed we were in fact best promoting widespread agreement on schedule. However, we recognized that the absence of tangible symbols of agreement would place us in a politically difficult situation between sessions.

The draft articles on the economic zone place the United States in the mainstream of the predominant trends in the Conference, and we were pleased with the favorable reaction to our proposal. We were disappointed, however, at the support, particularly among a number of African countries, for an economic zone in which there would be plenary, coastal state jurisdiction, not only over resources, but over scientific research and vessel-source pollution as well and in all of these areas there would be no international standards except provisions for freedom of navigation and overflight and the right to lay submarine cables and pipelines. Many of the same countries are saying that if a pattern of unilateral action by individual countries emerges before a treaty is agreed, they would go further and opt for a full 200-mile territorial sea.

We believe that specifying the rights and duties of both coastal states and other states in the economic zone is the approach best designed to avoid the sterile debate over abstract concepts.

To promote negotiations on the essential balance of coastal state rights and duties the United States submitted draft articles proposing the establishment of a 200-mile economic zone in the treaty. The U.S. draft articles consist of three sections: the economic zone, fishing, and the continental shelf.

perhaps the most marked differences between the position of the United States and that of a majority of other states at the

Conference emerged in the First Committee, which deals principally with the mining of manganese nodules in the deep seabed for the production of nickel, copper, cobalt and perhaps certain other metals. The basic differences relate to who will exploit the deep seabed resources and how this exploitation will take place. The United States took the position that access to the resources should be guaranteed on a non-discriminatory basis under reasonable conditions that provide the security of expectations needed to attract the investment for development of the resources. This would generate international revenues to be used for international community purposes, particularly for developing countries. A number of developing countries have supported a concept under which the international seabed authority would itself undertake exploration and exploitation, and which, under the new formula introduced by the developing countries at Caracas, would in addition have discretion to contract with States and private companies to operate under its direct and effective control and under basic conditions of exploitation set forth in the Convention itself.

During the last few weeks of the Conference real negotiations began on the basic conditions for exploitation when the First Committee agreed to establish a small, informal negotiating group. This group will resume its work at the next session of the Conference and we hope that negotiations in this context and during the intersessional period will lead to a narrowing of differences and a realistic approach that will promote access by industrialized consumer countries and the development of the mineral resources of the deep seabeds. The differences between what we call regulation and what others call control may be narrowed if we can agree on the conditions of exploitation, including measures to ensure that exploitation on a non-discriminatory basis will take place, and if agreement can be reached on protecting relevant interests in the decisionmaking

process.

In the Third Committee of the Conference, there were mixed results on formulating treaty texts for protection of the marine environment and oceanographic scientific research. We were pleased that texts concerning the preservation of the marine environment were prepared on several points including basic obligations, particular obligations, global and regional cooperation and technical assistance. But basic political issues remain to be resolved on the jurisdiction of port and coastal states with respect to vessel-source pollution and on whether there will be different obligations for states depending upon their stage of economic development-the so-called double standard. We believe that the Caracas session broadened the basis of understanding of the complex problems involved in drafting new legal obligations to protect the marine environment, and there were indications that all states were analyzing their environmental policies in detail.

On the scientific research issue, the various proposals were reduced to four principal alternatives regarding scientific research within the areas of national jurisdiction. Some states advocated a regime requiring coastal state consent for all research. Others supported a modified consent regime. The United States supported a

regime which places obligations on the state conducting the research to notify the coastal state, provide for its participation and ensure sharing of the data, and assistance in interpreting such data. Other states proposed complete freedom of scientific research.

We were encouraged by the fact that for the first time states appeared to be moving toward serious negotiations on this subject, including serious consideration of our proposal.

we know there will be disputes with respect to the interpretation and application of the provisions of the treaty. The willingness of the United States and many others to agree to a particular balance of the rights and duties of states and the International Authority is predicated upon reasonable confidence that the balance will be fairly maintained. Accordingly, the establishment of an impartial system of peaceful and compulsory third party dispute settlement is critical. We were encouraged to find at the Caracas session that there were states from all Regional Groups that support the need for comprehensive dispute settlement provisions

Hearings, Committee on Foreign Relations, U.S. Senate, 93d Cong., 2d Sess., Sept. 5, 1974; Dept. of State Bulletin, Vol. LXXI, No. 1839, Sept. 23, 1974, pp. 389-395.

§ 2

The Territorial Sea

Limits

Straight Baselines

In the case of United States v. Florida, S.Ct., No. 52, Original, the United States sought a determination of the extent of the rights of the State of Florida, as against the United States, to the seabed and subsoil of the continental shelf seaward of its coastline on the Atlantic Ocean and the more precise determination than has heretofore been made of the extent of those rights seaward of its coastline in the Gulf of Mexico. On January 18, 1974, a Special Master issued a Report which, inter alia, found that three groups of islands in the lower Florida Keys should be considered separately from the other islands and that the waters within each group were inland waters of the State of Florida. The waters within the island groups are currently encompassed by the territorial seas of each of the islands. There was no evidence of a valid historic claim to internal waters.

On March 19, 1974, Carlyle E. Maw, Legal Adviser of the Department of State, wrote a letter to Wallace H. Johnson, Assistant Attorney General of the Land and Natural Resources Division, Department of Justice, taking exception to the findings of the Special Master. Mr. Maw stated that the finding "appears to be based on the drawing of straight baselines around the islands." He said that in the view of

the Department of State, "this finding is seriously prejudicial to the interests of the United States." Mr. Maw said further:

* * *

The choice of whether to use the straight baseline method for determining inland waters claimed against other nations involves questions of foreign policy. A decision to adopt straight baselines not only increases the area of internal waters, but it also extends areas of national sovereignty and jurisdiction (territorial sea, the contiguous zone and the contiguous fisheries zone) into international waters, thereby affecting high seas navigation and resource rights. The questions of the territorial effect of islands, the drawing of straight baselines around island groups (the archipelago principle), and the international rights affected thereby are currently matters of international negotiation in the Third United Nations Conference on the Law of the Sea.

The Court has recognized the foreign policy nature of the straight baselines question in the United States v. California decision, 381 U.S. 139, 169 (1964), where it held that decisions on straight baselines rest with the Federal Government and not with the individual states. Moreover, in United States v. Louisiana, 394 U.S. 11, 73-4 (1969), the Court found that selection of the straight baselines method of delimitation should be left to ". . . the branches of government responsible for the formulation and implementation of foreign policy." [Emphasis added.] In that case the Court found that it would be inappropriate for the Court to review or overturn the considered decision of the United States not to extend its borders to the furthest extent consonant with international law. We believe that the straight baselines question involves foreign policy determinations which should not be made by the judicial branch. This is particularly true in this case where, to our knowledge, neither of the parties argued for the drawing of straight baselines around these groups of islands.

Furthermore, under international law the United States cannot draw straight baselines in these areas. These island groups do not meet the international law criteria for straight baselines as codified in Article 4 of the Convention on the Territorial Sea and Contiguous Zone. That Article allows the drawing of straight baselines "in localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity." Such baselines "must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters." The islands in this case do not meet these criteria. They are separated from the coastline; the baselines do not follow the general direction of the coast; and the sea areas enclosed thereby are not closely linked to the land domain.

As you know, some nations such as Indonesia and the Philippines have drawn baselines around their outermost islands and have claimed the waters inside those lines as internal, or "archipelagic"

waters. These claims are made on the basis of the archipelago principle, a theory outside the terms of the Territorial Sea Convention and which in our view violates international law. We have vigorously opposed these actions due to their effects on high seas rights. In particular, recognition of such archipelago claims could subject vast areas of ocean space to the sovereignty of archipelago states, thereby hampering high seas freedoms, such as the freedom of navigation, which are vital to our national security and commercial shipping interests. While the straight baselines drawn by the Special Master would be significantly shorter than those drawn by archipelago states such as Indonesia, in other respects the principle would be the same. Moreover, to permit the drawing of straight baselines around clusters of coastal islands could seriously exacerbate the potential navigational and other jurisdictional problems, since there are numerous coastal areas around the world where the principle might be applied.

Thus, the drawing of straight baselines around these three groups of keys is, in our view, contrary to international law, and could seriously prejudice interests vital to the United States. Moreover, the archipelago concept is an important issue in the current sensitive negotiations in the Law of the Sea Conference, and we feel the United States should not take any action at this time which would prejudice the negotiations on this issue.

Dept. of State File No. P74 0034-0231.

Bays

In United States v. Florida (see supra) the Special Master's Report of January 18, 1974, found, inter alia, that the eastern portion of "Florida Bay" is a juridical bay. The Special Master found that the total area which the State of Florida claims as "Florida Bay" cannot be regarded as a juridical or an historic bay. But he concluded that the eastern part of that area "... is sufficiently enclosed by the mainland and the upper Florida Keys, which constitute realistically an extension of the mainland, to be regarded as a bay which constitutes inland waters of the state. . . ." (Masters Report, p. 39). This area, specifically defined, constitutes the waters "between the mainland on the northwest and the upper Florida Keys on the southeast which lies east of a closing line running southwesterly from East Cape of Cape Sable to Knight Key in the Florida Keys, a distance of approximately 24 geographical miles." (Ibid.)

The letter dated March 19, 1974, from Department of State Legal Adviser Carlyle E. Maw to Wallace H. Johnson, Assistant Attorney General (see supra), said that the area in question "does not meet the international law criteria to be considered a judicial bay." Mr. Maw stated: