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did not know how to extract them. New modern technology is rapidly advancing the time when their exploration and commercial exploitation will become a reality.
The United Nations has declared the deep seabed to be the "common heritage of mankind." But this only states the problem. How will the world community manage the clash of national and regional interests, or the inequality of technological capability? Will we reconcile unbridled competition with the imperative of political order?
The United States has nothing to fear from competition. Our technology is the most advanced, and our Navy is adequate to protect our interests. Ultimately, unless basic rules regulate exploitation, rivalry will lead to tests of power. A race to carve out exclusive domains of exploration on the deep seabed, even without claims of sovereignty, will menace freedom of navigation, and invite a competition like that of the colonial powers in Africa and Asia in the last century.
We believe that the Law of the Sea treaty must preserve the right of access presently enjoyed by states and their citizens under international law. Restrictions on free access will retard the development of seabed resources. Nor is it feasible, as some developing countries have proposed, to reserve to a new international seabed organization the sole right to exploit the seabeds.
Nevertheless, the United States believes strongly that law must regulate international activity in this area. The world community has an historic opportunity to manage this new wealth cooperatively and to dedicate resources from the exploitation of the deep seabeds to the development of the poorer countries. A cooperative and equitable solution can lead to new patterns of accommodation between the developing and industrial countries. It could give a fresh and conciliatory cast to the dialogue between the industrialized and so-called Third World. The legal regime we establish for the deep seabeds can be a milestone in the legal and political development of the world community.
The United States has devoted much thought and consideration to this issue. We offer the following proposals:
•An international organization should be created to set rules for deep seabed mining.
•This international organization must preserve the rights of all countries and their citizens directly to exploit deep seabed resources.
•It should also insure fair adjudication of conflicting interests and security of investment.
•Countries and their enterprises mining deep seabed resources should pay an agreed portion of their revenues to the international organization, to be used for the benefit of developing countries.
•The management of the organization and its voting procedures must reflect and balance the interests of the participating
states. The organization should not have the power to control prices or production rates.
•If these essential U.S. interests are guaranteed, we can agree that this organization will also have the right to conduct mining operations on behalf of the international community primarily for the benefit of developing countries.
•The new organization should serve as a vehicle for cooperation between the technologically advanced and the developing countries. The United States is prepared to explore ways of sharing deep seabed technology with other nations.
.A balanced commission of consumers, seabed producers, and land-based producers could monitor the possible adverse effects of deep seabed mining on the economies of those developing countries which are substantially dependent on the export of minerals also produced from the deep seabed.
The United States believes that the world community has before it an extraordinary opportunity. The regime for the deep seabeds can turn interdependence from a slogan into reality. The sense of community which mankind has failed to achieve on land could be realized through a regime for the ocean.
The United States will continue to make determined efforts to bring about final progress when the Law of the Sea Conference reconvenes in New York next year. But we must be clear on one point: The United States cannot indefinitely sacrifice its own interest in developing an assured supply of critical resources to an indefinitely prolonged negotiation. We prefer a generally acceptable international agreement that provides a stable legal environment before deep seabed mining actually begins. The responsibility for achieving an agreement before actual exploitation begins is shared by all nations. We cannot defer our own deep seabed mining for too much longer. In this spirit, we and other potential seabed producers can consider appropriate steps to protect current investment, and to insure that this investment is also protected in the treaty.
The Conference is faced with other important issues:
•Ways must be found to encourage marine scientific research for the benefit of all mankind while safeguarding the legitimate interests of coastal states in their economic zones.
•Steps must be taken to protect the oceans from pollution. We must establish uniform international controls on pollution from ships and insist upon universal respect for environmental standards for continental shelf and deep seabed exploitation.
•Access to the sea for landlocked countries must be assured.
•There must be provisions for compulsory and impartial thirdparty settlement of disputes. The United States cannot accept unilateral interpretation of a treaty of such scope by individual states or by an international seabed organization.
The pace of technology, the extent of economic need, and the claims of ideology and national ambition threaten to submerge the difficult process of negotiation. The United States therefore believes that a just and beneficial regime for the oceans is essential to world peace, for the self-interest of every nation is
heavily engaged. Failure would seriously impair confidence in global treaty-making and in the very process of multilateral accommodation. The conclusion of a comprehensive Law of the Sea treaty on the other hand would mark a major step toward a new world community.
The United States cannot indefinitely accept unregulated and indiscriminate foreign fishing off its coasts. Many fish stocks have been brought close to extinction by foreign overfishing. We have recently concluded agreements with the Soviet Union, Japan, and Poland which will limit their catch and we have a long and successful history of conservation agreements with Canada. But much more needs to be done.
Many within Congress are urging us to solve this problem unilaterally. A bill to establish a 200-mile fishing zone passed the Senate last year; a new one is currently before the House.
The Administration shares the concern which has led to such proposals. But unilateral action is both extremely dangerous and incompatible with the thrust of the negotiations described here. The United States has consistently resisted the unilateral claims of other nations, and others will almost certainly resist ours. Unilateral legislation on our part would almost surely prompt others to assert extreme claims of their own. Our ability to negotiate an acceptable international consensus on the economic zone will be jeopardized. If every state proclaims its own rules of law and seeks to impose them on others, the very basis of international law will be shaken, ultimately to our own detriment.
We warmly welcome the recent statement by Prime Minister Trudeau reaffirming the need for a solution through the Law of the Sea Conference rather than through unilateral action. He said, “Canadians at large should realize that we have very large stakes indeed in the Law of the Sea Conference and we would be fools to give up those stakes by an action that would be purely a temporary, paper success."
That attitude will guide our actions as well. To conserve the fish and protect our fishing industry while the treaty is being negotiated, the United States will negotiate interim arrangements with other nations to conserve the fish stocks, to insure effective enforcement, and to protect the livelihood of our coastal fishermen. These agreements will be a transition to the eventual 200-mile zone. We believe it is in the interests of states fishing off our coasts to cooperate with us in this effort. We will support the efforts of other states, including our neighbors, to deal with their problems by similar agreements. We will consult fully with Congress, our States, the public, and foreign governments on arrangements for implementing a 200-mile zone by virtue of agreement at the Law of the Sea Conference.
Unilateral legislation would be a last resort. The world simply cannot afford to let the vital questions before the Law of the Sea Conference be answered by default. We are at one of those rare
moments when mankind has come together to devise means of preventing future conflict and shaping its destiny, rather than to solve a crisis that has occurred or to deal with the aftermath of war. . . The United States is resolved to help conclude the conference in 1976—before the pressure of events and contention places international consensus irretrievably beyond our grasp.
See Dept. of State Bulletin, Vol. LXXIII, No. 1889, Sept. 8, 1975, pp. 353–362.
The Territorial Sea
United Nations Conference on Law of the Sea
The Second Main Committee of the Geneva session of the Third U.N. Conference on the Law of the Sea, which met from March 17 to May 9, 1975, produced a single informal negotiating text, Part I of which concerned the territorial sea and the contiguous zone. It contains four sections including a general statement regarding the sovereignty of a coastal state over the territorial sea; a section on the seaward limits of the territorial sea; a section on innocent passage, including rules applicable to all ships, rules for merchant ships, and rules for government ships; and a section on a zone contiguous to the territorial sea for customs, fiscal, immigration, and sanitary purposes. The U.S. delegation to the Conference reported that a substantial consensus had continued at the Conference on a territorial sea of 12 miles and an economic zone of 200 miles (see post, $ 3, p. 389) and that there was a strong trend in favor of unimpeded passage of straits.
The U.S. delegation report assessed the negotiating text produced by the Second Committee as follows:
(a) Territorial Sea
...There was general acceptance of the provisions of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone regarding this issue.
(2) Historic Waters
Although a draft text, which attempted to define historic bays and other historic waters, was introduced by Colombia, the Consultative Group to which this was referred adjourned without taking any action on the text. There was strong opposition to a general doctrine of historic waters as proposed by the Philippines.
. . The two principal changes between the revised text and the 1958 Geneva Convention articles are, first, the new provision that where, because of a delta or other natural conditions the coastline is highly unstable, appropriate points may be selected along the farthest extent of the low water line and connected by straight baselines; and second, that straight baselines may be drawn to and from low tide elevations with no lighthouses on them where the specific delimitation has received general international recognition. The Conference is proceeding on the assumption of a 12-mile territorial sea for which there is very broad support. .
(4) Innocent Passage on the Territorial Sea
.. There was broad support for retaining the relevant provisions of the 1958 Convention on the Territorial Sea and Contiguous Zone, Articles 14 through 23, in all substantial respects except as follows:
(i) Rules applicable to all ships
There was support for clarifying passage to mean navigation through the territorial sea for the purpose of a. traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or b. proceeding to or from internal waters or a call at such a roadstead or port facility. The text of Article 16(2) of the 1958 Territorial Sea Convention was changed so as to provide a coastal state right to take necessary steps to prevent any breach of the conditions to which admission to roadsteads and facilities beyond internal waters, as well as internal waters, is subject.
With respect to the definition of innocent passage, there was support for an objective list of activities by a passing ship prejudicial to the peace, good order or security of the coastal state and therefore noninnocent. Items receiving most support were the use or threat of force in contravention of the U.N. Charter, and: (1) any exercise or practice with weapons of any kind; (2) the launching or taking on board of any aircraft; (3) the launching, landing or taking on board of any military device; (4) the taking on board or putting overboard of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary regulations of the coastal state; (5) any act aimed at collecting information to the prejudice of the defense or security of the coastal state; (6) any act aimed at interfering with any system of communication of the coastal state; and (7) any act aimed at interfering with any other facilities or installations of the coastal state.
There was support for a list enumerating the competence of the coastal state to make laws and regulations, in conformity with the provisions of the Convention and other rules of international law, relating to innocent passage. Items receiving most support were: (1) the safety of navigation and the regulation of marine traffic, including the designation of sealanes and the establishment of traffic separation schemes; (2) the protection of navigational aids and facilities and other facilities and installations, including those for exploration and exploitation of the marine resources of the territorial sea and the seabed and subsoil thereof; (3) the protection of cables and pipelines; (4) the conservation of the living resources of the sea; (5) the preservation of the environment of the coastal state, including the territorial sea, and the prevention of pollution thereto; (6) research for the marine environment and hydrographic surveys; (7) the prevention of infringement of the customs, fiscal, immigration, quarantine or sanitary or cryptosanitary regulations of the coastal state; (8) the prevention of infringement of the fisheries regulations of the coastal state, including, inter alia, those relating to the stowage of
Both of the lists are attempts to clarify possible ambiguities in the 1958 Territorial Sea Convention which deals both with the issue of definition of innocence and coastal state regulatory power in general terms.
(ii) Rules applicable to ships with special characteristics
Efforts to provide for advance notification for innocent passage of tankers and nuclear-powered ships or ships carrying nuclear weapons, and to provide for advance authorization in the latter case, received little support. Oil exporting and importing states stated strong opposition, noting that tankers are frequently rerouted.
(iii) Rules applicable to merchant ships
There was no opposition to clarifying the text of Article 19 of the 1958 Territorial Sea Convention to add quote psychotropic drugs unquote to the provisions of Article 19–1(d) regarding suppression of traffic in narcotic drugs.
(iv) Rules applicable to government ships
There was support for state responsibility in the event of damage to the coastal state as a result of noncompliance with coastal state laws or regulations relating to passage through the territorial sea by a warship or other government ship on noncommercial service, in view of the sovereign immunity of such ships.
(5) Freedom of Navigation and Overflight Resulting from the Plurality of Regimes in the Territorial Sea