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assessment programs and oversee responsibilities in the ocean mining field with respect to compliance with the National Environmental Policy Act.
In a letter dated February 24, 1975, to Senator Lee Metcalf, Chairman of the Subcommittee on Minerals, Materials and Fuels of the Interior and Insular Affairs Committee of the Senate, Assistant Secretary of the Interior Jack W. Carlson said:
We continue to be hopeful that the Third U.N. Law of the Sea Conference will soon reach agreement on a satisfactory international system for managing minerals recovery from the seabed beyond national jurisdiction. In that event, the new Ocean Mining Administration will be in place to begin immediately the comprehensive task of harmonizing our programs with those established through the treaty. However, I believe that we must also be prepared if the Law of the Sea Conference does not reach a timely and successful conclusion, given our responsibilities to reduce wherever possible the Nation's dependence on foreign sources of raw materials.
The initial tasks of the Ocean Mining Administration will be to plan for the future of ocean mining, to develop policy and regulatory procedures and to complete a thorough analysis of the environmental effects of ocean mining. The new office will attach the highest priority to early completion of this analysis.
See Dept. of the Interior Press Release, Feb. 25, 1975, and Cong. Rec., Vol. 121, No. 30, Feb. 26, 1975, pp. S2710_2712 (daily ed.).
On July 24, 1975, the Department of State received a letter from South Pacific Oceanographic Research Company enclosing a "Declaration of Territorial Claim" to certain submerged reefs in the South Pacific Ocean, which appear to lie 500–700 miles from the nearest land territory. The enclosed declaration stated that the territory had remained hitherto unclaimed and unoccupied by any nation or company and that the South Pacific Oceanographic Research Company was claiming it for the purposes of scientific research and development.
Monroe Leigh, Legal Adviser of the Department of State, responded by letter dated October 21, 1975, which stated, in part:
This is to advise you that these submerged reefs are not subject to a claim of the kind set forth in the Declaration you enclosed. Moreover, the capacity to make claims of the kind
asserted in your Declaration of July 24, 1975, is solely within the province of states acting in accordance with international law. Accordingly, the United States does not recognize the validity of your Declaration.
The Declaration indicates that the purpose of your endeavors is primarily scientific research and development. Scientific research is, of course, a freedom of the high seas. There is, accordingly, no legal barrier to the conduct of scientific research on and around these reefs, so long as the freedom to conduct scientific research is exercised with reasonable regard to the interests of other states in their exercise of the freedoms of the high seas.
On October 21, 1975, Mr. Leigh also replied to a letter received in the Department on September 18, 1975, from two individuals in California stating a claim of ownership to a broad area of the Eastern Pacific Ocean which they delineated on an attached map and declared available for leasing from them for mining or drilling purposes. Mr. Leigh's letter advised them that "the United States does not recognize the validity of any such claim.”
Dept. of State File Nos. P75 0177–1990 and P75 0177–1991.
Seas in Antarctica
On May 12, 1975, Monroe Leigh, Legal Adviser of the Department of State, replied to a private corporation in the United States which had requested assistance in acquiring an exclusive permit to explore and develop the Weddell and Ross Seas in Antarctica for a 10-year period. Mr. Leigh's letter stated:
No procedure exists under either United States law or international law for the grant of exclusive permits to explore and develop the mineral or other resources of the Ross and Weddell Seas. The Department of State is therefore not in a position to receive your application for such a permit, nor is there any way
in which the Department could assist you in obtaining one. ... The requesting corporation had expressed an interest in exploration of those seas and the development of any petroleum deposits. It grounded its request on the provisions of international law, the U.N. Charter, and the Antarctic Treaty.
Art. VI of the Antarctic Treaty (TIAS 4780; 12 UST 794; entered into force June 23, 1961) provides:
The provisions of the present Treaty shall apply to the area south of 60° south latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any state under international law with regard to the high seas within that
Search and Rescue
Rear Adm. R. A. Ratti, Chief Counsel of the U.S. Coast Guard, Department of Transportation, in an opinion dated October 17, 1974, responded to a question regarding the Coast Guard's authority to declare an area around an underwater rescue operation, in international waters, off-limits to all but approved surface traffic, or to restrict surface traffic in or near the area. He expressed the view that the state performing the operations had no such regulatory authority as regards the operation of vessels of other states on the high seas, and he suggested that an international convention on the subject of international search and rescue matters would be the appropriate method of establishing the desired operational authority. The opinion of the Chief Counsel reads, in part, as follows:
there is no basis, either in international or domestic law, upon which the Coast Guard may effectively cordon an area of the high seas around a rescue operation. ...
Under customary and conventional international law it is clear that there are two recognized duties respecting search and rescue at sea. The first is the duty of vessel masters to render assistance to distressed persons and vessels when they can do so without endangering their own vessel, crew, or passengers. The second is the duty of coastal states to promote the establishment and maintenance of search and rescue services. See Article 12 of the 1958 Convention for the Safety of Life at Sea . . . (TIAS 5200; 13 UST 2312; entered into force for the United States September 30, 1962) and Regulations 10 and 15 of Chapter V of the Annex to the 1960 International Convention for the Safety of Life at Sea ... [TIAS 6284; 18 UST 1289). These international law duties have been implemented for the United States by domestic legislation, viz. 33 U.S.C. 367, 46 U.S.C. 1465, and 14 U.S.C. 88.
It may be possible to imply from these explicit duties a duty on the master of a vessel at the scene of a rescue operation to so conduct himself as to not interfere with the rescue efforts being carried out at that location. However, authority in the state performing the operations to prescribe rules for or otherwise regulate the operation of vessels of other states in the high seas area adjacent to these operations can not be so implied, particularly in view of the clear protection accorded such vessels by the rule set forth in Article 6 of the Convention on the High Seas. It is notable in this respect that 14 U.S.C. 88, while authorizing the Coast Guard to conduct rescue operations, does not authorize this agency to exercise regulatory responsibility in connection with those operations.
The Chief Counsel recommended certain steps with respect to foreign vessels that, in the absence of an international convention on the subject, might be taken by the Coast Guard. These included issuing notices to mariners under 14 U.S.C. 93(f) and in accordance with 33 Code of Federal Regulations Part 72, and public notifications as appropriate; seeking assistance from governmental units of countries whose flag vessels are operating in the area; and notifying the flag state if any foreign vessels upon receiving notification insist upon approaching the rescue operations. With respect to interference on the part of foreign vessels, he added the following:
To the extent that authorization is given and a request for assistance is made by the negligently operating foreign vessel's flag state through the Department of State, Coast Guard units may take appropriate action against the vessel which may include, inter alia, boarding the vessel, removing it from the area, and turning it over to units of its flag state's government. In an extreme situation where the action of a foreign vessel directly posts an imminent threat to the lives of persons involved in the rescue operation, as distinguished from merely interfering with the operation, Coast Guard units may take whatever action, including the exercise of reasonable force, is necessary to protect those lives.
the last (extreme) situation discussed in the preceding paragraph involves the exercise of extraordinary authority on the high seas. The quantum of force used to interfere with the free navigation of a vessel of another country on the high seas in time of peace must be only so much as is reasonably necessary to protect the lives of those persons directly jeopardized by the vessel's operation.
The opinion of the Chief Counsel also noted that while the doctrine of “reasonable use of the high seas" had been used as the basis for temporarily closing off an area of the ocean for such purposes as atomic/nuclear device testing, international law was unclear as to the enforcement action which may be internationally acceptable. He expressed the view that the rationale of “reasonable use" as applied to actions taken by the United States and other states, including France in the Pacific, was limited to the justification of major national security measures and was not a viable basis for enforcement action against foreign vessels in and near the area involved.
Dept. of Transportation, Coast Guard Law Bulletin, No. 410, pp. 10–13.
The informal single negotiating text produced by the Chairman of Committee II at the 1975 session of the Third U.S. Conference on the Law of the Sea, which met at Geneva from March 19 to May 9, 1975, contains as Part II draft articles on “Straits Used for International Navigation.” It includes general provisions, articles on transit passage, and an article on innocent passage. The U.S. delegation reported a strong trend at the Conference in favor of unimpeded passage of straits for international navigation.
The U.S. delegation summarized the 1975 session's work on straits as follows:
. . . A clear majority of states participating in the debates favored a regime of unimpeded transit of straits, with a significant number of states endorsing the principle. The hard line straits states opposing unimpeded passage were more clearly isolated than in past sessions of the Conference. the dominant trend of the Conference now clearly favors an unimpeded transit regime.
... The United Kingdom and Fiji jointly chaired an informal consultative group. . . . This group ... produced a draft straits chapter, adopted by consensus within the Group, which was forwarded to Ambassador Galindo Pohl, and circulated to Committee II.
The United States delegation has a number of problems with the U.K.-Fiji text primarily because the scope of permissible coastal state regulatory authority is too broad.
On May 22, 1975, 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, testifying before the Subcommittee on Oceans and International Environment of the Senate Committee on Foreign Relations, was asked where the United States stood with respect to the straits issue if a 12-mile territorial sea were agreed upon. He replied:
As we move from a 3-mile to a 12-mile territorial sea there are over 100 straits used for international navigation that would be operating under an innocent passage regime in the absence of a clear guarantee of unimpeded passage through and over such straits. This remains one of the essential elements of the United States law of the sea position. We are not fully satisfied with the straits text in Committee II; it did not include the U.S. article as such on free transit, but nevertheless we do feel that it offers a constructive basis for the negotiation on straits to go forward.