Council, with particular reference to the implementation of the general system of exploration and exploitation. The operational arm will manage the day-to-day affairs of the authority and the dispute settlement procedures will help preserve the integrity of this treaty we are here to negotiate. It will be necessary to provide for some checks and balances among the organs of the authority to ensure against any abuse of power. This approach may help find a common middle path to agreement on the structure of the authority and many of its powers and functions.

The questions we face are: How much control and subject to what safeguards? And over what activities? These are clearly not easy questions but our impression of the statements of various speakers is that the question of control is made somewhat more difficult by thinking of it in terms of control versus no control. We believe a better approach would be to recognize that certain controls are essential in the authority-these controls in a broad sense are the rights of the authority and these rights should be accompanied by corresponding duties.

Our first task is to identify the common denominators-what types of controls do most delegations seek to repose in the authority. We have identified seven major categories which appear to command widespread support:

-First, the right of the authority to prevent degradation of the marine environment from seabed exploration and exploitation; -Second, the right to ensure that sufficient and reliable information and data are given to the authority so as to allow it independently to satisfy itself that it is receiving all benefits and income to which the treaty entitles it;

-Third, the right to impose requirements which prevent any state or person who does not have the bona fide intention of exploring and exploiting from obtaining or keeping any mining rights in the area;

-Fourth, the right to require that mining be carried out safely; -Fifth, the right to establish the procedures and mechanisms which will ensure that those provisions of our treaty which promote programs for the transfer of technology to the developing countries and provide for the training of developing country personnel be faithfully executed;

-Sixth, the right to ensure that the resources of the area are not monopolized by a few countries or private entities so as to preclude developing countries from participation in the exploitation of the resources of the area when they have the technology and financial capacity to do so; and

--Seventh, the right to participate in the benefits of resource development.

my delegation can pledge its full support to work to achieve these kinds of controls. In some cases, we believe the controls should be carefully spelled out in the treaty itself. In others, we would want to include the controls by way of a mandate to regulate in the future,

provided we can agree in the treaty on standards for the regulatory machinery and a just procedure for rule making which will inspire the confidence of all states.

We have also listened with care to the statements of other delegations concerning the duties or obligations of the authority. Here again, we have found basically five common denominators:

-First, developing and developed countries alike have spoken out clearly for the need to ensure that no state is subject to discrimination in the exercise of its rights, nor can any state be deprived of a right of access to the resources, if it meets the obligations imposed by the treaty-this being one of the fundamental principles of the common heritage concept;

-Second, virtually all countries have recognized the duty to provide stable conditions of investment which will promote the development of the resources. There is widespread recognition that we all depend on the creativity and initiative of a pioneering few to achieve realizable benefits for all from the extraction of the resources;

-Third, it has been wisely said by many delegations that the authority should not encumber those who extract the resources with needless regulatory interference and administrative burdens which reduce economic efficiency and thus the benefits, including the revenues, which will be available for sharing;

-Fourth, many delegations have noted the need to protect the property including proprietary data and trade secrets of those on whom we depend for the extraction of the resources;

-Fifth, the authority must provide facilities and institutions for the knowledge and technology which will be transferred to developing countries. Effective transfer of technology, which many have stressed, requires careful planning and the creation of new institutions of learning. In this area the authority will make one of its most significant contributions to the benefit of all mankind.

We believe... that seabed metal production should be treated on the same basis as land production. Together, the two sources will account for the global supply and meet the global demand for these metals. To draw up special restrictions for one source and not the other is equivalent to agreement by treaty to discriminate against all states who may be seabed producers. This is neither a fair nor rational approach to the disposition of the common heritage of mankind.

... my delegation places special emphasis on the decision-making procedures which will be used by the authority for dealing with the multitude of problems that will face the authority in its quest for control over the resources of the area. As I mentioned earlier, we believe that in order to protect the interests of all states decision making should be dispersed throughout the organs of the authority to avoid any single organ's dominance over the machinery. In respect of the basic resource policies of the authority we wish to assure a

special procedure which we call rule making. The authority will have to deal with a host of unpredictable developments. In these areas, which include environmental protection, mining safety, resource conservation, adjustments to regulatory provisions which ensure diligence in exploration and deter speculation, to name only a few, we think the authority should make rules by a procedure similar to the one used by the International Civil Aviation Organization. Rules should be drafted by a specialized subsidiary organ. and after council approval, forwarded to all states for review. If after a fixed time period, say 90 days, less than one-third of the members of the authority have objected, the rules would become binding. This approach, we believe, will give maximum opportunity for expert review in the authority and in governments and avoids the risk of undue influence by one or another of the organs of the authority.

... my delegation wishes to stress the following points which we regard as most important in these negotiations:

(1) The resource system we choose for the treaty must ensure nondiscriminatory access to the resources of the area for all states. If the authority has the power to restrict the number of areas available for commercial development and to select among applicants, my government would not be satisfied that our access was secure and free of potential discrimination.

(2) The mandate of the authority should only include control of activities in the area which are directly related to the exploration and exploitation of seabed resources.

(3) The treaty should provide an appropriate system of checks and balances among the organs of the authority.

(4) A carefully defined system of rule making should be elaborated in the treaty to ensure a fair and thoughtful decision-making

process.

(5) Provisions for the compulsory settlement of disputes and machinery for that purpose are essential.

(6) Voting arrangements in the council of the authority should be

realistic.

(7) We should seek methods for accommodating the concerns of land-based producers who are developing countries if it is clear that seabed production harms their level of domestic production, but at the same time the consumers of goods made from raw materials found in the seabed must be protected from artificial price increases for such materials.

(8) The provisional application of the permanent regime and machinery.

On March 14, 1974, John Norton Moore, Chairman of the NSC Interagency Task Force on the Law of the Sea and Deputy Special Representative of the President for the Law of the Sea Conference, made a statement on the U.S. position concerning free transit through and over international straits to the House Committee on the Judiciary, Subcommittee on Immigration, Citizenship, and International Law. Mr. Moore said, in pertinent part:

For nearly two hundred years the United States has adhered to a territorial sea of 3 miles and has maintained that 3 miles is the maximum breadth recognized under international law. In an attempt to develop worldwide consensus on the breadth of the territorial sea, the United States has proposed that, in the context of an overall satisfactory settlement, it would be willing to accept a 12mile territorial sea. Such an extension of the territorial sea from 3 to 12 miles, however, would overlap over 100 straits between 6 and 24 miles in width which under a 3-mile territorial sea now include high seas. Because of the importance of straits as avenues for international navigation the United States has coupled its willingness to agree to a 12-mile territorial sea with recognition of a treaty right of unimpeded transit through and over straits used for international navigation. Without clear recognition of such a right of unimpeded transit, it might be possible to assert that only the right of innocent passage would apply even in such strategically important straits as Gibraltar.

The traditional doctrine of innocent passage evolved long before the advent of submarines, supertankers and aircraft and was premised on a narrow territorial sea. Partly because of this historical beginning the innocent passage regime does not permit submerged transit by submarines or overflight by aircraft. Moreover, there is an insufficiently agreed international understanding of what passage is "innocent." As a result there is always a danger of subjective interpretation of "innocence," which is defined as passage that is not prejudicial to the "peace, good order, or security" of the coastal state. Some strait states have asserted, for example, that large petroleum tankers or nuclear powered vessels are inherently noninnocent.

It has never made sense to apply to straits used for international navigation a legal doctrine developed to govern passage in the territorial sea. Unlike the territorial sea in general, international straits serve as access and connecting points for large areas of the oceans. As such, transit through straits is essential to meaningful exercise of the high seas rights of all states in these vast areas. Functionally, then, straits are quite distinct from other territorial sea areas. And

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because of their special prominence the potential for conflict from an uncertain legal regime is greatly increased in straits.

To avoid these and other difficulties, the United States has submitted a draft treaty article that would provide a right of unimpeded navigation through and over international straits. This right is less than that presently exercised under existing high seas principles and is limited to a right in international straits to move through the strait in the normal mode for the vessel or aircraft. The United States has also made it clear that it recognizes the legitimate safety and pollution concerns of straits states. Accordingly, we have proposed that surface ships transiting straits observe IMCO traffic separation schemes and that state aircraft normally comply with ICAO regulations and procedures. We have also proposed that strict liability apply for damage caused by deviations from such IMCO or ICAO regulations. Our objective is to find a balance between the reasonable concerns of strait states and the need of the international community for guarantees of meaningful high seas

usage.

The United States straits proposal is not, of course, limited to military vessels and aircraft. We are equally concerned about unimpeded transit for commercial vessels. The energy dilemma has brought widespread attention to the fact that a nation's well-being may be intimately linked to an adequate and secure supply of petroleum and other basic imports. All nations must have reliable international legal rights to bring necessary resources through international straits.

For these reasons we have repeatedly stated that agreement on a 12-mile territorial sea must be coupled with agreement on unimpeded transit of international straits, which together constitute basic elements of our national policy.

Hearings before the Subcommittee on Immigration, Citizenship, and International Law, Committee on the Judiciary, House of Representatives, 93d Cong., 2d Sess., Mar. 14, 1974; Dept. of State Bulletin, Vol. LXX, No. 1816, Apr. 15, 1974, pp. 397-402. The United States draft calling for an agreed maximum breadth of the territorial sea of 12 miles, coupled with transit provisions, is found at U.N. Doc. A/AC.138/SC.II/L.4, July 30, 1971. U.S. proposals concerning compliance with IMCO regulations by surface ships transiting straits are in U.N. Doc. A/AC.138/SC.II/SR/37, July 28, 1972, p. 25. See also the 1973 Digest, Ch. 7, 86, pp. 271–273.

Interests of States Bordering Straits

On July 22, 1974, Mr. Moore made a statement before Committee II of the Law of the Sea Conference dealing with the concerns of states bordering straits with respect to security, safety of navigation, and pollution prevention. The statement included the following:

The United States Delegation has stated on numerous occasions the central importance that we attach to a satisfactory treaty regime