To the defendant's argument that the Act was void for uncertainty in that regulations thereunder change from time to time, reflecting recommendations promulgated under the Tuna Convention, the Court responded:

While it is true that the regulations are subject to change, it can hardly be held that anyone is subject to forfeiture without proper notice. The regulations are clear and are readily available to the public. The procedures detailed in the Act are sufficient to insure that no one will be subject to penalties in criminal prosecution due to questionable or unclear legislation.

85

The Deep Seabed and the High Seas

Domestic Claims

John Norton Moore, Chairman of the National Security Council Interagency Task Force on the Law of the Sea and Deputy Special Representative of the President for the Law of the Sea Conference, presented the views of the Executive Branch on the proposed Deep Seabed Hard Minerals Act, in appearances before the House and Senate subcommittees considering the bill. Mr. Moore made identical statements on H.R. 12233 to the House Committee on Merchant Marine and Fisheries, Subcommittee on Oceanography, on February 26, 1974, and on S. 1134 (Amendment 946) to the Senate Committee on Interior and Insular Affairs, Subcommittee on Minerals, Materials and Fuels, on March 5, 1974.

The bills would authorize the Secretary of the Interior to issue licenses to persons subject to U.S. jurisdiction for the exploration and commercial recovery of hard mineral resources of the deep seabed surface. The licenses would authorize commercial recovery of hard mineral resources after January 1, 1976. However, after the Act took effect, exploration would be permitted immediately upon issuance of a license. Licenses issued pursuant to the Act would become subject to the provisions of an international agreement concerning the development of deep seabed minerals which becomes binding on the United States. The proposed legislation also details certain terms and conditions to be included in licenses issued for deep seabed minerals development, and authorizes the Secretary of the Interior, in consultation with other interested Federal agencies, to promulgate such additional rules and regulations as may be necessary to ensure the orderly development of these resources under conditions which do not unduly damage the marine environment. Further, the U.S. Government would be required to compensate the holders of licenses issued in accordance with the

terms of the bill for certain losses or impairment of their investment resulting from new obligations placed upon them by an international convention to which the United States becomes a party. For the Executive Branch position on a similar bill proposed in 1973, see the 1973 Digest, Ch. 7, § 5, pp. 264-267.

The following are excerpts from Mr. Moore's 1974 statements:

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The General Assembly resolution convening the Third United Nations Conference on the Law of the Sea provides for completion of the work of the Conference in 1974 or 1975 at the latest. As we have previously testified in commenting on a predecessor bill, we would not view agreement as timely unless it were reached in accordance with this General Assembly schedule. Any delay after 1975 would deter the expected sequence of development. Accordingly, we agree with the underlying premise of the bill that by January 1, 1976, there must be an adequate legal regime for deep seabed mining under an internationally agreed regime in force on a provisional basis, or, if this is not possible, then under appropriate legislation. In either event, we will support appropriate legislation regarding the conduct of United States nationals and the role of Federal agencies. We are mindful in this regard that United States firms are making substantial investments in deep seabed mining and are rapidly approaching the point where they must make even greater investment decisions.

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On several occasions during 1973, the Executive Branch provided its views on H.R. 9, a bill similar in purpose to H.R. 12233. Our opposition to the enactment of interim legislation for deep seabed minerals development at that time was based, in large part, on the assessment that such action could seriously jeopardize our ability to achieve a timely and successful international agreement which would encourage development of deep seabed resources as well as accommodate a variety of other important ocean uses. We have carefully reviewed this new version of the deep seabed interim legislation and take note of the constructive efforts that have been made to accommodate our previous difficulties with the interim approach. Among the improvements in the bill is that while it would establish a legal regime for granting exclusive rights to ocean miners, these rights would not apply to commercial recovery of deep seabed minerals prior to January 1, 1976. In addition, such licenses would be subject to the provisions of any international agreement accepted by the United States.

Nevertheless, we cannot support enactment of this bill for the following principal reasons.

We believe that enactment of this bill prior to the Caracas session of the Law of the Sea Conference would adversely affect progress on the deep seabeds as well as other aspects of the Law of the Sea negotiation. We will be in a better position to assess progress toward an international agreement after the Caracas session.

Our remaining reasons deal with the substance of the bill. First, we believe that issuance of any licenses prior to 1976 is unnecessary and undesirable in the absence of a determination that a timely and successful Conference is not possible. Second, the bill does not give the Secretary of the Interior sufficient flexibility to deal with the important contingency of provisional application of an internationally agreed regime applicable to all mineral resources of the deep seabeds. Third, we do not believe the United States Government should assume liability to private investors for the exercise of its normal treaty-making powers, and we cannot support the insurance provisions of the bill. Finally, we do not agree with all of the resource management provisions of the bill.

Let me elaborate on each of these points in turn.

With respect to the impact on the negotiations of enactment of the bill at this time, passage of legislation prior to Caracas would permit the opponents of a timely and successful Conference to focus the attention of the Conference on this legislation rather than on constructive efforts to reach international agreement.

Turning to the first substantive objection to the bill, that of licensing before 1976, I wish to reiterate that the United States. remains firmly committed to the creation of an international legal order for the exploration and exploitation of the deep seabeds. While most of the provisions of the bill would not become effective prior to the scheduled conclusion of the Law of the Sea Conference, some nations might regard our enactment of a detailed resource management system as an attempt to preempt the international negotiation. In this respect the feature of the bill which permits exclusive exploration rights even before 1976 is susceptible to the charge that it preempts the negotiation and might be particularly misunderstood. It is our understanding that two of the major objectives for proceeding with legislation before January 1, 1976, would be, first to establish some domestic priority as among U.S. nationals after that date with respect to action by the U.S. Government under either an internationally agreed regime or appropriate legislation, and second to ensure that the appropriate Federal agency is empowered to take necessary steps. The bill, however, goes far beyond those objectives.

The second substantive point relates to the flexibility to deal with the important contingency of provisional application. As you are aware, we have proposed that the internationally agreed regime and machinery for the deep seabed should go into force provisionally very soon after the conclusion of the Conference. Provisional application is rooted in solid experience internationally, and does not in any way prejudge the international negotiation. We have been pleased at the favorable reaction to the proposal and are concerned that support for legislation which does not take into account the provisional application concept could serve to undercut this international support.

The third substantive point relates to the guarantee and insurance provisions of the bill.

Section 13 would require the United States Government to act as guarantor for the security of investments under the terms of this

bill with certain exceptions, to the extent that such investments were taken or impaired by differing requirements of any new international agreement. Such an obligation would unjustifiably shift the cost of the relevant uncertainties from the industry to the general taxpayer. Moreover, to provide for compensation for financial loss resulting from the normal exercise of lawmaking functions, whether by treaty or legislation, is to establish an enormously broad precedent. Our rights and those of other nations with respect to the deep seabeds derive from high seas principles which permit exploration and exploitation subject to reasonable regard for the interests of other states in their exercise of high seas freedoms. Inherent in those principles is the authority of states to reach agreement regarding activities in the area on such matters as controlling pollution from ships or ensuring conservation of fisheries.

Similarly, we cannot support the government insurance system. provided by this bill. It would place the Federal Government in the role of a direct or primary insurance underwriter in a situation in which it would be inappropriate. We see no overriding policy reason for the Federal Government to assume this function which belongs in the private sector.

Finally, we have concluded that there are serious problems with the resource management and other aspects of the bill. We are studying ways to construct a more adequate resource management system. For example, we would note the absence of any provisions regarding royalties or other revenues, flags of convenience, safety of life at sea, and marking and lighting of offshore mining facilities.

Hearings before the Subcommittee on Oceanography of the Committee on Merchant Marine and Fisheries, House of Representatives, 93d Cong., 2d Sess., Feb. 26, 1974; also Hearings before the Subcommittee on Minerals, Materials and Fuels of the Committee on Interior and Insular Affairs, United States Senate, 93d Cong., 2d Sess., Mar. 5, 1974. For the U.S. proposal on provisional entry into force of a permanent regime for the deep seabed, see the 1973 Digest, Ch. 7, § 5, pp. 267-269.

On November 15, 1974, the Department of State received a letter from Mr. John E. Flipse, President of Deepsea Ventures, Inc., setting forth a "notice of discovery and claim of exclusive mining rights and request for diplomatic protection and protection of investment, by Deepsea Ventures, Inc." The claim identifies an area in the Eastern Pacific Ocean beyond the national jurisdiction of any state and asserts that Deepsea Ventures, Inc. "has discovered and taken possession of, and is now engaged in developing and evaluating, as the first stages of mining, a deposit of seabed manganese nodules." Deepsea Ventures asserted the exclusive rights to develop, evaluate and mine the deposit and to take, use and sell all of the manganese nodules in, and the minerals and metals derived therefrom.

Immediately after receiving the letter, the Department of State issued a statement on the claim through its Office of Press Relations. After citing the above facts, the statement continues as follows:

The Department of State does not grant or recognize exclusive mining rights to the mineral resources of an area of the seabed beyond the limits of national jurisdiction.

The appropriate forum for the development of the law of the sea is the Third United Nations Conference on the Law of the Sea and not unilateral claims. The United States supports the achievement of a widely acceptable and comprehensive law of the sea treaty in 1975 that would include a regime and machinery for the exploration for and exploitation of the mineral resources of the deep seabed beyond the limits of national jurisdiction.

The position of the United States Government on deep ocean mining pending the outcome of the Law of the Sea Conference is that the mining of the seabed beyond the limits of national jurisdiction may proceed as a freedom of the high seas under existing international law. If necessary, the Department of State will consider providing such diplomatic protection for deep seabed mining as would be provided for other high seas uses. However, high seas freedoms do not include exclusive rights to the exploration or exploitation of the mineral resources of an area.

Dept. of State File L/OES.

Permanent Regime

On July 17, 1974, Ambassador John R. Stevenson, Special Representative of the President, and U.S. Representative to the Law of the Sea Conference at Caracas, made a statement to Committee I of the Conference with respect to an international authority for the international seabed area. The following are excerpts from the statement:

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The central issue in the negotiation is the extent of control by the authority over commercial development of the resources of the international seabed area. In a very real sense the question of who will control is resolved. The authority will have the control and will exercise it through its principal organs and the subsidiary organs. The authority should contain four principal organs, an assembly, a council, an operational arm, and a dispute settlement body. The United States, in the latter part of the Geneva Session of the Seabed Committee last year, proposed the creation of a comprehensive Law of the Sea Tribunal for disputes arising out of the interpretation or application of the Law of the Sea Convention. We would anticipate that the dispute settlement machinery in the authority would be a more specialized organ. Each of these principal organs will have to be given different types of powers. Broad policy guidance will come from the Assembly, executive decision making will be in the