"Common Heritage of Mankind" Exploitation Prior to Establishment of International In responding on August 15, 1980, to an inquiry about the phrase, "common heritage of mankind", from Senator Adlai E. Stevenson, Chairman of the Subcommittee on Science, Technology, and Space of the Senate Committee on Commerce, Science, and Transportation, Ambassador George H. Aldrich, the Deputy Special Representative of the President of the United States for the Law of the Sea Conference and Deputy Chief of Delegation, enclosed a copy of remarks that he had delivered on December 6, 1979, to the Oceans Policy Forum, held under the auspices of the Center for Oceans Law and Policy of the University of Virginia. Ambassador Aldrich had discussed the United States position regarding resources of the seabeds beyond the limit of national jurisdiction, which had been referred to for some years in the Third United Nations Conference on the Law of the Sea as the "common heritage of mankind”. He had also spoken to an interpretation of the phrase, for which some states contended, that it implied the legal unrecoverability of such resources, "unless and until universal agreement is reached on a regime for their exploitation." The United States position, summarized, was (and is) that such resources are not available for acquisition of national sovereignty but must be available for all, that their exploitation should be for the benefit of all, and that their use should normally be preceded by good faith negotiations aimed at creating an agreed legal regime, prior to unilateral action for their exploitation. It was also the United States position, Ambassador Aldrich had made clear, that achievement of a universally agreed international regime was not a prerequisite to exploitation of the resources of the seabeds beyond the limit of national jurisdiction, if and when the need for access to them should become urgent. A portion of Ambassador Aldrich's address follows: Looking at the current negotiations in the Third United Nations Conference on the Law of the Sea aimed at creating a new international regime for the exploitation of the deep seabeds, I would suggest that the Government of the United States, and the governments of other countries concerned about the availability of raw materials that may come from seabeds, must inevitably reach conclusions along the following lines: First, we cannot accept the views pressed by many of the developing countries on the legal nature of the restraints on our access to seabed resources. To do so would, in the context of this Conference, skew much too far the negotiating leverage against us. More broadly, it would create a dangerous precedent for the imposition of new restrictions to which we have not assented on our rights of action in areas beyond national jurisdiction. Second, we can and we should do all that is possible to develop through the Conference an acceptable agreement on a new regime for the exploitation of seabed resources. Quite apart from the value we may place on the other, non-seabeds parts of the Law of the Sea Treaty, we need an agreed regime if we can possibly reach one in our own interest of access to seabed resources. A favorable climate for investment is unlikely in the absence of security of tenure and broad agreement on a workable regime. Moreover, if agreement proves in the end unobtainable, and the United States and the other most concerned countries are thus forced to act on their own, it will be both politically and legally important to have a clear record that we have made every reasonable effort to achieve agreement and that failure is not our fault. Third, if and when our needs for seabed mineral resources become urgent, we can and we should ensure that the resources will be available, whether or not the Third United Nations Conference on the Law of the Sea is successful. We should do so consistent with the common heritage principle, that is providing benefits for all through increased world production of needed minerals and perhaps through some sharing of revenues, and by demonstrating our continued willingness to negotiate a reasonable international regime for these resources to supplant any interim one that we are forced to create. If anyone doubts that states would, and in fact must, be prepared to take necessary action to obtain urgently needed resources, I would ask them to consider what would be the likely position of the oil importing countries of the world if the minerals at stake in the deep seabeds were hydrocarbons instead of nickel, copper, cobalt, and manganese. Does anyone really believe that the absence of a universally agreed international regime would long delay exploitation of such hydrocarbon resources? Fourth, the difficulties facing the seabeds negotiations are formidable, but not insuperable, if we remain determined to negotiate for an acceptable regime, and show patience and willingness to stay at this negotiation as long as it takes. The problems we face are extraordinarily difficult, in part for reasons inherent in the complexities of creating the first international regime for the exploitation of the resources of one of the commons of the world. Moreover, if it were not clear that we had important security benefits in the navigational provisions of the treaty, or if we had not been compelled to legitimize 200-mile fishery zones while the treaty negotiations were in process, or if we had a demonstrably more pressing need for access now to the seabed minerals in question, the negotiations would be much easier. Nonetheless, we have no choice but to accept the facts as they are and to continue to negotiate for an acceptable regime, which means a regime under which we shall have assured access to seabed minerals under reasonable terms and conditions. Although we are approaching the crunch in these negotiations, and all of the 150 participating states are anxious to bring the negotiations to a successful conclusion during 1980, the United States must make clear that our minimum requirements must be met and that we cannot be pressed by deadlines into accepting a result that does not give us the assured access we require. The Moon Treaty: Hearings before the Subcomm. on Science, Technology, and Space of the Sen. Comm. on Commerce, Science, and Transportation, on [the] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 96th Cong., 2d sess. (1980), pp. 223-224. The phrase, "common heritage of mankind", appears in both the Moon Treaty and in the United Nations Convention on the Law of the Sea, which in 1980 was still under negotiation. On July 9, 1982, President Ronald Reagan announced that the United States would not sign the Convention on the Law of the Sea, adopted by the Third United Nations Conference on the Law of the Sea, Apr. 30, 1982. See, further, this Digest, Ch. 1, ante, p. 584. The text of the Convention, which was opened for signature at Montego Bay, Jamaica, on Dec. 10, 1982, may be found at The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index; Final Act of the Third United Nations Conference on the Law of the Sea; Introductory Material on the Convention and the Conference, New York, United Nations, 1983. See also, Int'l Legal Materials, Vol. XXI, No. 6, Nov. 1982, p. 1245. Freedom of Navigation Strait of Tiran and Gulf of Aqaba In a note to Secretary of State Vance, dated February 26, 1980 (just before the opening of the Ninth Session of the Third United Nations Conference on the Law of the Sea, February 27-April 4, 1980, at New York), the Ambassador of Israel at Washington, Ephraim Evron, expressed his Government's concern about possible assertions being made as to a limiting effect of a new Convention on the Law of the Sea upon the regime governing the Strait of Tiran and the Gulf of Aqaba. Ambassador Evron directed the Secretary's attention to provisions regarding the right of passage through and over these waters, contained in the Treaty of Peace between the Arab Republic of Egypt and the State of Israel, signed on March 26, 1979, on the lawn of the White House at Washington, with President Carter as a witness, as well as in the related Memorandum of Agreement between the United States and Israel, signed the same day (TIAS 9825; 32 UST 2141; entered into force, March 26, 1979). The substantive portion of the Department of State's reply, dated April 25, 1970, follows: * The Department has carefully noted the Embassy's concern that an attempt might be made to claim a new Convention on the Law of the Sea would limit the navigation and overflight rights of the Strait of Tiran and the Gulf of Aqaba enjoyed by Israel and Egypt under the Treaty of Peace signed March 26, 1979. The United States remains mindful of the need to promote full observance of the Treaty of Peace and to support the rights of the parties to the Treaty regarding navigation and overflight, as provided in the Memorandum of Agreement between the United States and Israel of March 26, 1979. The Department wishes to assure the Embassy that the Government of the United States is fully aware of the significance of the final clauses in a treaty on the Law of the Sea with respect to the rights of the parties under Article V, paragraph 2 of the Treaty of Peace. The delegation of the United States to the Third United Nations Conference on the Law of the Sea continues to be mindful of the United States' undertaking, in paragraph 4 of the Memorandum of Agreement between the Governments of the United States of America and Israel of March 26, 1979, to "support the parties' rights to navigation and overflight for access to either country through and over the Strait of Tiran and the Gulf of Aqaba pursuant to the Treaty of Peace." The United States Government agrees with the Government of Israel that there are a variety of ways in which those rights could be protected from adverse impact by the proposed new Convention. One way is in the text of that Convention's final clauses. Accordingly, at the Ninth Session of the Third United Nations Conference on the Law of the Sea, as well as in the preparations for it, the delegation of the United States has endeavored to achieve consensus on a wording of the proposed article on Relation to Other Conventions which would protect the rights of the parties under Article V, paragraph 2 of the Treaty of Peace. [See, further, post.] Since negotiations were not completed during the recently concluded portion of the Ninth Session in New York City on such a provision, the United States will be continuing this effort during the course of any intersessional meeting on final clauses, if one is convened, and the resumed meeting of the Ninth Session in Geneva later this year. At the same time, the difficulties involved in pursuing this course must be borne in mind. * * * Dept. of State File No. P80 0058-0830, in response to ibid., No. P80 0057-0488. See, further: Treaty of Peace Between the Arab Republic of Egypt and the State of Israel, signed on Mar. 26, 1979, Art. V, par. 2; and Annex I, Protocol Concerning Israeli Withdrawal and Security Arrangements, Art. VI, par. 2(d). Dept. of State Bulletin, Vol. 79, No. 2026, May 1979, pp. 3-7; and the 1979 Digest, pp. 1691, 1694. See, also, the Memorandum of Agreement Between the Governments of the United States of America and the State of Israel, dated Mar. 26, 1979, Art. 4. TIAS 9825; 32 UST 2141; entered into force, Mar. 26, 1979; reproduced in the 1979 Digest, pp. 1708-1709. The United Nations Convention on the Law of the Sea, adopted by the Third United Nations Conference on the Law of the Sea on Apr. 30, 1982 and opened for signature at Montego Bay, Jamaica on Dec. 10, 1982, provides in Art. 311: * * Article 311 Relation to other conventions and international agreements 1. This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958. 2. This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 3. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 4. States Parties intending to conclude an agreement referred to in paragraph 3 shall notify the other States Parties through the depositary of this Convention of their intention to conclude the agreement and of the modification or suspension for which it provides. 5. This article does not affect international agreements expressly permitted or preserved by other articles of this Convention. 6. States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof. United Nations, The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index; Final Act of the Third United Nations Conference on the Law of the Sea; Introductory Material on the Convention and the Conference (1983), pp. 106-107. Strait of Hormuz Shortly after the outbreak of the Iran-Iraq conflict, President Carter set out the United States position in the matter to reporters at the White House on September 24, 1980. The United States was in no way involved in the dispute, the President said; he urged that "[t]here should be absolutely no interference by any other nation in this conflict," and he strongly supported "international efforts. . . to bring this fighting to a prompt end and to obtain a negotiated settlement." In regard to freedom of navigation, the President stated: Of course, a total suspension of oil exports from the other nations who ship through the Persian Gulf region would create a serious threat to the world's oil supplies and consequently a threat to the economic health of all nations. Therefore, it's important that I add my own strong support and that of my Nation to the declaration which the nine European Community nations made yesterday. Freedom of navigation in the Persian Gulf is of primary importance to the whole international community. It is imperative that there be no infringement of that freedom of passage of ships to and from the Persian Gulf region. Public Papers of the Presidents of the United States: Jimmy Carter, 1980-81, Bk. II (1982), pp. 1921-1922. At a townhall meeting in Dayton, Ohio on October 2, 1980, President Carter stated that the United States "will use whatever means are required to keep the Straits [sic] of Hormuz open." In response to a question about the possibility of committing United States forces to defend Saudi Arabia if it were attacked, posed on |