oversight

Results of the Third Law of the Sea Conference 1974 to 1976

Published by the Government Accountability Office on 1977-06-03.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                         DOCURENT RESUME

02465 - [A1612601]

Results of the Third Law of the Sea Conference 1974 to 1976.
ID-77-37; B-145099. June 3, 1977. 33 pp. + appendix (1 pp.).

Report to the Congress; by Elmer B. Staats, Comptroller General.

Issue Area: materials: International Policies and Practices
     (Including Seabed Resources) (1803); Envircnuental
    Protection Programs: Bnergy/Environmental Protection
    Conflicts (2204).
Contact: International Div.
Budget Function: International Affairs (150); Natural Resources,
    Environment, and Energy: Water Resources and Power (301);
    Natural Resources, Ervironment, and Energy: Pollution
    Control and Abatement (304).
Organization Concerned: Depar+ment of State: National Security
    Council.
Congressional Relevance: House Committee on International
    Relations; Senate Committee on Foreign Relations; Congress.

          Gr.O examined U.S. participation in the various sessions
of the Third Law of the Sea Conferenc* (1974-1976) and the
status of the issues as they stood before the conference session
scheduled for May 23, 1977. The intention of the conference was
to reach agreement on a comprehensive treaty covering all the
uses of the oceans. The most important issues were: the breadth
of the territorial sea; "transit passage" through, under, and
over international straits used for navigation; use and
conservation of tha living resources of the sea; coastal states'
rights to the mineral resources of the Continental Shelf;
exploitation of the minerals of the deep seabed; protection of
the marine environment; marine scientific research; and a system
for settling disputes arising from the interpretation and
application of the treaty. Findings/Conclusions: New U.S.
proposals for an acceptable deep seabed mining regime were
presented at the last conference session. They were to be
considered during the intersessional period and ¢iuld be the
basis for discussion at the next session. The greatest degree of
agreement was reached on the breadth of the territorial sea,
transit passage of straits, and coastal resource rights in the
economic zone. The high seas status of the economic zone
remained to be resolved. There was agreement on many of the
environmental protection articles. However, the United States
has encountered opposition to the right of a coastal state to
set ship construction, design, equipment, and manning standards
in th? territorial sea. Agreement was not reach-d on
requirements for permitting scientific research in the economic
zone. Although there was general agreement on the need for a
dispute-settlement mechanism in the treaty, there were
differences of opinion on the details. Congress expressed its
 support of US. positions at the start of the conference. Since
that time, however, those positions have been modified.
(Author/QH)
                 REPORT TO THE CONGRESS
     t,
                 BY THE COMPTROLLER GENERAL
          :"?:
           9     OF THE UNITED STATES




                 Results Of The Third Law
                 Of The Sea Conference
                 1974 To 1976
                 Department of State

                 This report isa record of U.S. participation in
                 the Third Law of the Sea Conference. It out-
                 lines the current status of conference issues,
                 including U.S. positions thereon, as they
                 stood before the conference session scheduled
                 to start in New York on May 23, 1977.




                  ID-77-37
                                                                   JUNE 3, 1977
Is
               COMPTROLLER GENERAL OF THE UNITED    TnATEI
                          WASHINGTON, D.C.   0N4S




b-14 5099




To the President of the Senate and the
Speaker of the House of Representatives
     This report provides a record of U.S. participation in
the Law of the Sea Conference and addresses the status of
major Conference issues.  The importance of reaching a treaty
on the use of the oceans and their resources led us to monitor
the actions being taken to create a cooperative international
regime. We believe this report may be helpful to the Congress
as a concise summary of treaty issues.

     We did not request written comments from the National
Security Council Interagency Group for Law of the Sea, but did
discuss the report with officials of that office and considered
their comments in preparing the report.
     We made our review pursuant to the Budget and Accounting
Act, 1921 (31 U.S.C. 53), and the Accounting and Auditing Act
of 1950 (31 U.S.C. 67).

     Copies of this report are being sent to the Director, Of-
fice of Manager.ent and Budget; Secretary of State; Chairman,
National Security Council Interagency Group for Law of the
Sea; and the Special Representative of the President for the
Law of the Sea Conference.




                                    Comptroller General
                                    of the United States
COMPTROLLER GENERAL'S                 RESULTS OF THE THIRD LAW
REPORT TO THE CONGRESS                OF THE SEA CONFERENCE
                                      1974 to 1976

         DIGEST
         BACKGROUND

         The first:two Law of the Sea Conferences
         sponsored by the United Nations in 1958
         and 1960 left some issues unresolved, in-
         cluding the breadth of the territorial sea,
         coastal state fisheries jurisdiction, and
         the limits of jurisdiction over the con-
         tinental shelf. Also, technological ad-
         vancements have created issues concerning
         potential mining of the deep seabed and
         protection of the marine environment,
         which in turn raised new issues for con-
         sideration.

         In 1970, the United Nations called for a
         third Law of the Sea Conference. The
         first substantive session was held in
         Caracas, Venezuela, from June 20 to
         August 29, 1974. It was one of the larg-
         est international conferences ever held,
         with delegates from about 150 countries.

         Since then, three more sessions have been
         held--Geneva from March 17 to May 10,
         1975; and New York from March 15 to
         May 7 and August 2 to September 17, 1976.
         This report provides a record of U.S.
         participation in the Conference and out-
         lines the status of the issues, as they
         stood before the Conference session sched-
         uled to start in New York on May 23, 1977.
          ISSUES
          The intention of the Conference is to
          reach agreement on a comprehensive treaty
          covering all the uses of the oceans. The
          most important ib3ues are
          -- the breadth of the territorial sea;

tmLs5Z      removal, the report
         Upono
                                  i                    ID-77-37
-- "transit passage" through, under, and over
   international straits used for navigation;
-- use and conservation of the L.ving re-
   sources of the sea;
-- coastal states'rights to the mineral re-
   sources of the continental shelf;
-- exploitation of the minerals of the deep
   seabed;
-- protection of the marine environment;

-- marine scientific research; and
-- a system for settling disputes arising from
   the interpretation and application of the
   treaty.

U.S. POSITIONS AND PROPOSALS
The United States is prepared to accept a 12-
mile territorial sea as part of a treaty pack-
age. This includes the right of "transit pall-
sage" through, under, and over the more than
100 international straits which would be over-
lapped by the 12-mile territorial seas.

In recognition of the need for conservation
and equitable apportionment of fisheries,
the United States supports (1) coastal state
jurisdiction for coastal species of fish in
an exclusive economic zone, (2) coastal state
control of fish that spawn in internal waters
(anadromous species) and (3) international
management of highly migratory species, such
as tuna.
National jurisdiction over shelf resources
was not precisely defined in the Continen-
tal Shelf Convention of 1958. Increased
ability to extract minerals (oil and gas)
from greater depths, the growing need for
these resources, and the expectation of
mining the deep seabed made an exact legal
definition of the continental shelf neces-
sary. The United States is willing to


                     ii
accept the concept of an exclusive economic
zone of 200 miles provided there is an
agreement that the rights of other states
in the zone, such as navigation and over-
flight, are preserved. Its primary con-
cern is that the economic zone would be-
come the equivalent of a territorial sea
if the coastal state had jurisdiction over
non-resource uses.
Parts of the deep seabeds of the oceans
are covered with manganese nodules that
contain exploitable amounts of copper,
nickel, manganese, and cobalt. Various
countries have developed the technology to
raise these nodules and extract the metals;
but development of an ocean mining indus-
try has been delayed by uncertainty over
the legal basis for such operations.

The United States recognizes the need for
international administration of deep sea-
bed mining, provided there is assured non-
discretionary access to the area by states
and state-sponsored entities, and has pro-
posed that revenues from seabed exploita-
tion be shared internationally, particularly
with developing nations.

The 1958 Continental Shelf Convention re-
quired the consent of the coastal state
for marine scientific research on the
shelf and provided that consent would
not normally be withheld. In practice,
consent has sometimes been denied arbi-
trarily or unreasonable conditions have been
imposed. The Conference hoped to provide
an equitable legal regime for the conduct
of scientific research in the oceans.
U.S. proposals for scientific research
are designed to take into account the
interests of coastal states without unduly
hampering research projects. There would
be advance notification of the proposed
project, a right of participation by the
coastal state, sharing of data, and pub-
lication of the results. The United States


                    iii
indicated that it could accept a consent
requirement for resource-related research.

OBSERVATIONS
New; U.S. proposals for an acceptable deep
seabed mining regime were presented at the
last Conference session. They were to be
considered during the intersessional period
and could be the basis for liscussion at
the next session.
The greatest degree of agreement was reached
on the breadth of the territorial sea,
transit passage of straits, and coastal
state resource rightcs in the economic zone.
The high seas status of the economic zone
remains to be resolved.
There is agreement on many of the environ-
mental protection articles. However, the
United States has encountered opposi ion
to the right of a coastal state to set ship
construction, design, equipment, and man-
ning standards in the territorial sea. Agree-
ment has not been reached on requirements
for permitting scientific research in the
economic zone.
Although there is general agreement on the
need for a dispute settlement mechanism
in the treaty, there are differences of
opinion on the details.
At the start of the Conference in 1973,
the Congress expressed its support of
the U.S. positions through Resolutions
by the Senate and the House of Represen-
tatives. Since that time, however, the
U.S. positions have been modified.




                     iv
                        Contents
                                                          Page

DIGEST                                                      i
CHAP ER
      1    INTRODUCTION                                     1
               Geneva Session                               2
               spring 1976 New York SeesJon                 ?
               Summer 1976 New York Session                 3
               Scope of review                              3
      2    CDMMITTEE I: THE ')EEP SEABEDS                  4
               Informal Single Negotiating Text            6
               Revised Single Negotiating Text             7
               Objections of U.S. industry to
                 revised SNT                              11
               Domestic legislation                       1.
               Unresolved issues                          12
      3    COMMITTEE II: TERRITORia.r SEAS AND STRAITS,
             ECONOMIC ZONE, CONTINENTAL SHELFO AND HIGH
             SEAS, ARCHIPELAGOS, LANDLOCKED AND GEO-
             GRAPHICALLY DISADVANTAGED STATES             14
               Territorial seas and straits               14
               Economic zone, continental shelf,
                 and high seas                            16
               Other issues                               22
               Observations                               23
      4    COMMITTEE III: PROTECTION AND PRESERVATION
             OF THE MARINE ENVIRONMENT AND MARINE
             SCIENTIFIC RESEARCH                          24
               Marine environment                         24
               Marine scientific research                 26
      5    DISPUTE SETTLEMENT                             30
               Revised Dispute Settiement Text            31
               observations                               32
      6    PROVISIONAL APPLICATION                        33
               Observation                                33
APPENDIX

      I    Principal officials responsible for admin-
             istration of activities discussed in this
             report                                       34
                         ABBREVIATIONS
SNT        Single Negotiating Text
                         GLOSSARY

Anadromous species   Fish, such as salmon, which spawn in
                     fresh waters, migrate to ocean waters,
                     then return to fresh waters to complete
                     their life cycle.

Coastal species      Fish, such as haddock, other than highly
                     migratory and anadromous species, in-
                     habiting the waters off the coast.

Continental shelf    Legally described as the seab*ed and sub-
                     soil of the submarine areas adjacent to
                     the coast, but outside the area of the
                     territorial sea, to a depth of 200
                     meters or beyond to where the depth of
                     the superjacert waters admits of the
                     exploitation of the natural resources
                     of these areas. Geographically de-
                     scribed as the seabed area extending
                     off the coast of a state to an outer
                     edge which averages 200 meters water
                     depth.

Highly migratory     Fish, including but not limited to tuna,
species              which spawn and migrate during their
                     life cycle in broad expanses of the
                     open ocean.

High seas            All water beyond the outer limit of
                     the territorial sea.

Innocent passage     Navigation through the territorial
                     sea to traverse that sea without en-
                     tering internal waters, to proceed
                     to internal waters, or to make for
                     the high seas from internal waters,
                     so long as it is not prejudicial to
                     the peace, good order, or security
                     of the coastal state.
Provisional          Arrangement whereby a treaty, or cer-
application          tain aspects of it, would provisionally
                     be applied after the treaty is signed,
                     without waiting until it has been en-
                     tered into force.  Precedents exist for
                     a provisional application regime, in-
                     dicating that provisional application
                     is legally and practically possible.
State             A country or nation.

Territorial sea   A zone off the coast of a state where
                  complete sovereignty is maintained by
                  the coastal state, but subject to the
                  right of innocent passage to ships of
                  all states.
                          CHAPTER 1
                        INTRODUCTION

     The United Nations convened three Law of the Sea
Conferences to resolve problems of national jurisdiction and
rights in the oceans. The first Conference, held in 1958,
adopted four international conventions relating to the terri-
torial sea, the high seas, the continental shelf, and fishing.
The breadth of the territorial sea was not determined and
questions concerning fishery jurisdiction and rights to the
resources of the continental shelf were not resolved. The
second Conference, held in 1960, again failed to reach agree-
ment on the breadth of the territorial sea.

     Since these conferences, technology to mine the deep
seabed has been developed and the need for greater protection
of the marine environment has become apparent. In 1968 the
United Nations established a permanent Committee on the
Peaceful Uses of the Seabed and the Ocean Floor Beyond the
Limits of National Jurisdiction (Seabed Committee), and in
1970 the Seabed Committee was given responsibility for organi-
zing a third Las, of the Sea Conference. The third Conference
was expected to produce a comprehensive treaty covering the
territorial sea and straits, high seas, living resources,
mineral resources of the continental shelf and the deep sea-
bed, protection of the marine environment, marine scientific
research, nd dispute settlement. During the next 2 years,
proposals wfre submitted on these issues and articles were
drawn up showing the positions of the participants.

     The first session of the Third Law of the Sea Conference
was an organizational meeting held in New York City in Decem-
ber 1973. No negotiations were conducted.
     The second session was held in Caracas, Venezuela, from
June 20 to August 29, 1974, and was attended by delegates
from about 150 countries. Conference issues were allocated
to three Committees.

     -- Committee I, the legal regime to be established for
        mining the deep seabed.

     -- Committee II, the breadth of the territorial sea,
        exclusive economic zone, straits, limit of the con-
        tinental margin, archipelagos, problems of landlocked
        states, and other minor issues.

     -- Committee III, marine scientific research and environ-
        mental protection.

                              1
     Another infor.nal group   discussed dispute settlement.
     The U.S. delegation rt Caracas included about 100 dele-
gates, alternates, advisers, experts, and several Members of
Congress. Federal agencies with ocean interests and the
private sector were represented.  The U.S. delegation was
organized along the same lines as the Conference, with teams
for each of the three committees and for dispute settlement.

     U.S. positions on issues were determined by _ie President
on the basis of alternatives developed by the National Secur-
ity Cour;cil Interagency Task Force on the Law of the Sea (now
Interagency Group for Law of the Sea).

     Draft treaty articles, representing differing opinions
on the various issues were developed. Many of these opinions
represented differences between the developed countries and
developing countries who are collectively known as the "Group
of 77".

     On March 6, 1975, we issued our report to the Congress
on this session, entitled "Information on United States Ocean
Interests Together With Positions and Results of Law of The
Sea Conference At Caracas" (ID-75-46).
     Since that time, tnree additional sessions of the Con-
ference, one in Geneva and two in New York, have been held.
This report traces the progress of the U.S. positions in
negotiations since the Caracas session.
GENEVA SESSION

      Thz third session of the Conference in Geneva from
March 17 to May 10, 1975, principally resulted in the com-
pilation of an informal Single Negotiating Text (SNT). Each
Committee Chairman prepared a section on the issues considered
by his Committee which represented his assessment of the trend
of the negotiations based on both formal and informal discus-
sions. The Conference President prepared the text on Dispute
Settlement. The text was intended as a procedural device and
a basis for negotiation. The SNT was issuCd on the final day
of the Conference and was the basis for later negotiations.
SPRING 1976 NEW YORK SESSION
     The fourth session, usually referred to as the Spring
session, was held in New York City from March 15 to May 7,
1976. The Geneva SNT was used as the basis for discussions,
and numerous amendments were proposed. The Committee Chair-
men and the Conference President prepared a revised Single


                               2
Negotiating Text based on their appraisal of the formal and
informal meetings. This revised text was issued on the final
day of the Spring session.

     Secretary of State Henry Kissinger visited this session
to underline the importance of the negotiations to the United
States. He met with the Conference President and several
heads of delegations and made several proposals for facili-
tating agreement on key issues.  (See p. 9.)
SUMMER 1976 NEW YORK SESSION

     Despite some opposition from some Cc ference partici-
pants, a fifth, or Summer, session was held from August 2 to
September 17, 1976. It is generally agreed that little or
no progress was made at this session. However, each Commit-
tee Chairman pubished a report on the work of the session,
giving nis view on the status of the issues and possible
future courses of action. Secretary of State Kissinger
visited the session and made additional proposals intended
to assist in reaching agreement. The Conference agreed to
meet again in New York City beginning May 23, 1977, for
7 or 8 weeks.
SCOPE OT REVIEW

     We rcviewed documeints and reports on U.S. ocean policy,
plane, anI preparations for the Third Law of the Sea Confer-
ence ses3ions at the Lz:artment of State and U.S. delegation
reports on ach of the sessions. We interviewed U.S. Govern-
ment officials responsible for managing U.S. participation in
the Conference and monitored meetings of the Geneva and two
New York 1976 sessions as well as certain intersessional
meetings.

     Written comments were not requested frcm the National
Security Council Interagency Group for Law of the Sea, but
we did discuss this report with officials of that office and
considered their comments in its preparation.




                               3
                          CHAPTER 2

                COMMITTEE I:       THE DEEP SEABEDS

      One major objective for convening the third Law of the
Sea Conference was to establish a legal regime for the uses
of thie seabed and ocean floor beyond the limits of national
jurisdictions--the deep seabed.   The most important known
resource of the deep seabed is manganese nodules, metallic
chemical precipitates in the form of small rocks, containing
various metals.   On the avecage, they contain 25 percent man-
ganese, 1 percent copper, 1.25 percent nickel, 0.22 percent
cobalt, and smaller amounts of other metals, such as molyb-
denum, zinc, and vanadium.   Parts of the ocean floor are
covered with millions of these nodules.   Higher concentra-
tions of nodules and their greater metallic content make
certain areas more valuable to potential seabed miners.
During the 1960s, technology was developed for raising the
nodules from depths of 12,000 feet or more and extracting
their metals. Tiiis technology is now being tested.

      The United States depends to a great extent on foreign
sources of supply for most of the metals which could be ex-
tracted from the nodules, especially cobalt, manganese, and
nickel.   Several U.b and foreign corporations have developed
and are testing the technology necessary to mine and process
the nodules; however, no commercial mining has taken place
because of uncertainty about the legal regime for mining in
international waters and the high cost of such an operation.
To begin commercial exploitation on a single minesite would
cost an estimated $300 million Lo $600 million in 1975 dollars
and mining companies do not want to make such large invest-
ments without a ch=ar legal right to tenure of a specific
minesite. However, if U.S. miners were able to extract these
metals from the seabed, dependence on foreign sources could
be reduced or eliminated, the possibility of price control by
foreign cartels--although not thought to be great--could be
mitigated, and the U.S. balance-of-payments position could
be somewhat improved. Moreover, there may be benefits from
spin-off technology.   Therefore, it is in the U.S. interest
for U.S. miners to obtain access to deep seabed minesites.

     Historically, it has been the high seas rights of any
state to exploit ocean resources beyond the limits of na-
tional jurisdiction. This is still the U.S. position and it
applies to the rights of U.S. miners to exploit the deep sea-
bed.  In 1970, the U.N. Seabed Committee declared that the
resources of the seabed and ocean floor were the "common heri-
tage of mankind."  President Nixon's Ocean Policy statement


                               4
supported this concept, which in the view of the U.S. National
Security Council Interagency Group for the Law of the Sea did
not contradict the U.S. high seas right to exploit the deep
seabed. Most developing countries, however, interpret the
concept of "common heritage" to mean that the resources of
the deep seabed are, in fact, common property. In 1970, the
United States proposed draft treaty articles which provided
that:

     1. Coastal states would have jurisdiction over the sea-
        bed out to a water depth of 200 meters.

     2. From the 200-meter depth to the limit of the continen-
        tal margin, called a trusteeship zone, exploitation
        of the seabed would be administered by the coastal
        state for the international community.

     3. An international Seabed Resource Auth Pity would
        control exploitation beyond the conti intal margin
        area.

     4. The Authority would be financed from fees for ex-
        ploitation rights.

     5. A portion of the income would be used for the bene-
        fit of less developed countries.

     The Authority would consist of (1) an Assembly, compris-
ing all parties to the treaty, which would make general policy
and approve financial arrangements, ,2) a C-.-ncil, consisting
of 24 members (6 designated from industrially developed coun-
tries and 18 elected, 12 of them from developing countries,
and decisions would require a majority of both elected and
designated members), which would adopt rules end practices,
and (3) a 'Iribunal for settling disputes over treaty inter-
pretation or application.

     At the Caracas session, there were several major areas
of disagreement. The most important one was the system of
exploitation. The Group of 77 insisted that the Seabed Re-
source Authority should have complete control over the ex-
ploitation system. Many developing countries supported a
proposal for the Authority itself to engage in seabed mining;
other countries, African and Asian in particular, proposed
that the Authority initially contract with commercial miners
and engage in direct exploitation later. A proposal supported
by Europeans included both direct and licensed operations.



                              5
      The issue of the possible economic implications
                                                       of deep
 seabed mining on countries presently
                                       producing minerals which
 would be mined at sea was given considerable
 There was widespread support for price        attention.
                                         and production con-
 trols to protect landbased producers.

      Another unresolved issue, one of importance
 United States, is the inclusion in the             to the
                                         treaty of detailed
 rules and regulations for the operation
                                          of the Authority,
 especially the granting of mining contracts.
 opposed this, preferring to give the Authority The Group of 77
 bility in rulemaking.                           greater flexi-
                        There was also a difference of opinion
 as to what the basic conditions of exploitation
                                                  should be.
      These major issues--the basic conditions
 tion, economic implications of seabed          of exploita-
                                       mining, and inclusion
 of rules and regulations in the treaty-
                                          were considered at
 the Geneva session.

 INFORMAL SINGLE NEGOTIATING TEXT

      In Geneva, the United States agreed to
 basic conditions of exploitation part        consider making
                                        of the treaty on the
 condition that there would be detailed
                                         regulations during
 the period of provisional application.
                                          (See ch. 6.)
      Several systems were examined which would
of parallelism between operations of            permit a form
                                      the Authority and the
Enterprise, the operational arm of the
                                        Authority.  Under a
Soviet proposal, the Authority would
                                      directly exploit a por-
tion of the seabed, eitheL alone or under
or private entities.                       contract with state
                       Another portion of the area would be
reserved for the exclusive use of states
                                          or state-sponsored
entities.

     The United States explored a system, also
concept of parallelism, under which an          embodying the
mine would submit two equal minesites   applicant wishing to
                                       to the Authority, one
of which the Authority would reserve or
                                         "bank" and for which
it would negotiate a contract with a state
                                            or private entity
on whatever ter,'is seemed appropriate
                                        The other area would
be exploited by the states or private
                                       entities making the
application.   Conditions for exploitation would be
in advance in tile treaty.                          specified

      The chairman of the Committee I working
                                               group also pro-
posed a system using the concept of parallelism,
sites would be reserved for the Authority           under which
mining.                                    and  for  private
          One half of the private areas would be
                                                  turned over


                               6
to the Authority when commercial production began, and even-
tually the Authority would have 75 percent of the minesites.

     The Group of 77 rejected all these proposals, and the
informal Single Negotiating Text reflected the Group of 77
position--complete control of the exploitation system by the
Seabed Resource Authority which "may, if it considers it
appropriate," enter into arrangements with states or private
entities.

     The Geneva SNT was not acceptable to the United States
as a basis for negotiation because it provided for:
     -- Direct price and production control and for the Author-
        ity to control the seabed area beyond national juris-
        diction, including scientific research and other non-
        resource uses.
     -- The Council to have little or no power and be subordi-
        nate to the Assemoly, while a Secretariat would have
        audit and inspection powers but would not be respon-
        sible to the Assembly or the Council.

     -- No Rules Commission, which the United States considered
        necessary.

     -- Private parties to have no right of access to the Tri-
        bunal.

     --Possible changes in miners' contracts.

     -- No security of tenure of minesites, control of pros-
        pecting by the Authority, and a quota system whereby
        one country could not have more than a specified number
        of minesites.

REVISED SINGLE NEGOTIATING TEXT
     Many of the U.S. proposals for amending the Geneva seabed
articles were incorporated in the revised Single Negotiating
Te t issued at the end of the Spring 1976 New York session.
In the opinion of U.S. delegation members, the new Committee I
text was an improvement over the Geneva text; however, they
believed some of the articles were still not good enough. For
example:
     -- Production control is limited to 20 years and is spe-
        cified in the treaty, with provision for an additional
        5 years with Council approval. Production is based on
        the growth of world nickel market requirements, which

                               7
      are estimated to be a minimum of 6 percent a year.
      This provision as drafted would not effectively limit
      projected seabed development. States and their na-
      tionals have the right of access to seabed resources,
      based on mainly objective criterla. The United States
      still maintained that these procedures fell short of
      the U.S. requirements for nondiscriminatory access.

    -- The Authority controls seabed resources only, not
       scientific or other non-resource activities.
    -- The Assembly would make general policy, and the Coun-
       cil would make specific policies. The powers and
       functions of the Assembly were generally consistent
       with the U.S. position. The voting system in the
       Assembly was changed from two-thirds of those present
       to two-thirds of all members. A "cooling off" period,
       during which Assembly votes could be changed, helped
       to ensure against arbitrary decisions.
    -- Rules and Regulations, Economic Planning, and Tech-
       nical Commissions were established.
    -- The Enterprise would be allowed to operate under the
       same conditions as private or state contractors; how-
       ever, contractors would be required to provide re-
       served sites for the Enterprise to exploit.

    -- Two possible systems of revenue-sharing were nrovided--
       the contractor could choose either profit-sharing or
       royalties or the Authority could choose the revenue-
       sharing plans.

     --The ability of the Authoricy to revise the conditions
       of existing contracts was deleted; contractors could
       contract for separate stages of the mining operations.
     The cnly subject discussed at the Summer 1976 New York
session was the system of exploitation.     This issue was raised
by the Group of 77 because they  found  the  revised SNT un-
acceptable and believed that  access to  the  seabed should not
be guaranteed but that T:he Seabed Resource   Authority should
have the right to refuse permission for   private  or state  ex-
ploitation.

     The United States, with the support of other industrial-
ized countries, favored a parallel system of access under
which states and private entities would be assured access to
the deep seabed. The Authority would supervise all exploita-
tion of the seabed and could make contracts with the Enterprise

                                8
and private or state miners. Unless the private or state
applicants did not meet criteria to be spelled out in detail
in the treaty, the Authority would be obligated to enter into
the contract.

     The Soviet Union proposed a somewhat similar system.
The Authority could exploit certain areas, and state or state-
sponsored miners would have access to other areas. The Au-
thority would have greater control over the state and private
operations than in the U.S. proposal.

     On April 8, 1976, at the New York session, Secretary of
State Kissinger, in a major policy speech and meetings with
heads of the Conference delegations, made several new pro-
posals for reconciling differing positions on seabed issues.
He related these proposals to the U.S. positions as outlined
below.

     --The powers of the Authority should be detailed in the
       treaty.

    -- The Council should reflect the interests of consumer
       and producer states. A state's influence in the Coun-
       cil should be based on its economic interest in the
       deep seabed.

    -- Private parties should have access to the Tribunal to
       settle disputes.

    -- All nations should have nondiscriminatory access to
       deep seabed resources, with no quotas or limits on
       the number of sites available to a country. The Au-
       thority may itself exploit the seabed through the
       Enterprise. State-sponsored operators would propose
       two sites, one of which would be selected by the Au-
       thority, and the Enterprise could mine these areas or
       make them available to developing countries for ex-
       ploitation. This is a refinement of the "parallel
       svytem" which had been proposed at Geneva.

    -- There should be a system of sharing the revenue for
       the benefit of the less developed nations of the
       world, which should also be assisted by sharing sea-
       bed mining technology and the training of their per-
       sonnel in seabed mining techniques.

     Secretary Kissinger also indicated U.S. willingness to
accept a temporary limit on deep seabed production of min-
erals to reassure landbased developing country copper


                              9
 producers. Production would be limited
 growth of the nickel market, estimated toto bethe projected
-The limit on nickel would also serve to iinit 6 percent a year.
 the other nodule minerals, chiefly copper,       production of
 cobalt.                                      manganese,  and
          In its practical effect, however, the U.S.
 that the production ceiling would not reduce           view  is
                                                 projected seabed
 output, although the upper limit should reassure
 copper producers that seabed copper output          landbased
 their investments. Further protection for    would  not threaten
could be offered by having the Seabed Resourcelandbased  producers
                                                   Authority par-
 ticipate in commodity agreements for the seabed
The Authority would also arrange for adjustment minerals.
                                                    assistance
programs for countries whose economies may suffer
of ocean mining.                                      as a result

     These proposals were well received by the Conference
participants and are incorporated in part
section of the revised SNT prepared at the in the Committee I
                                            New York session.
      Secretary Kissinger again attended the Conference
September 1 and 2, 1976, and met with several              on
He emphasized the importance the United States delegations.
right of assured access to the deep seabed       placed on the
                                            and made several
proposals for consideration. First, the United
                                                  States would
be prepared to agree to a means of financing
Thus the Enterprise could commence operations the  Enterprise.
same time as private or state miners. Second,  at  about the
agreed provisions for the transfer of seabed     there  would be
                                              mining technology
to the Enterprise so that, over time, the
of certain industrialized states would he existing    advantages
recognizing that it might be unwise to set equalized.    Third,
                                            up rules and regu--
lations for the regime's operation on a permanent
                                                     basis, he
proposed that there be reviews of the regime      25
intervals.                                    at     -year

     The proposals were contingent upon acceptance
parallel access system which assured access          of a
                                             to
seabed to states and state-sponsored entities.   the deep
                                                  Secretary
Kissinger indicated that these proposals represented
limit of U.S. compromise. Because the proposals        the
tails and were made late in the session, it        lacked  de-
assess their effect on other delegations.    was  difficult  to
                                            The
not discuss them, and some delegations indicated Committee  did
in pursuing them at the next session.              an interest

     The Committee Chairman's comments on the results
Summer 1976 New York session noted                     of the
                                   that the system of access
was the most controversial issue in the negotiations.
noted also that Secretary Kissinger's proposals         He
cated on acceptance                             were  predi-
                    of the parallel system and that details


                              10
were not yet known. In regard to the offer of financial
assistance to the Enterprise, he said that it must not
"depend purely on the benevolence of willing States alone."

OBJECTIONS OF U;S. INDUSTRY TO REVISED SNT
     Although some members of the ocean-mining industry 'e-
lieved that the revised SNT issued in New York was satis-
factory as a basis for negotiations, others objected to it.
The basic requirements of the ocean-mining industry are to
assure access to sources of ore and security of tenure of
minesites. Specifically, industry members want (1) free
access to all seabed minerals, (2) protection against such
things as price and production controls, monopolies, and
cartels, (3) coverage by U.S. laws--tax, customs, safety, and
antipollution, and (4) U.S. Government diplomatic protection.
     Many industry members do not believe that the New York
Committee I text met these requirements. They believe the
text provided for unfair competition by the Enterprise, which
would be provided with seabed minesites located at the ex-
pense of private companies. The Seabed' RE.ource Authority
would regulate seabed mining and control mining operations
and could exploit the seabed through the Enterprise. Also,
the text offers no guarantee of access to the seabed and ac-
cess could be limited by an anti-monopoly clause.

     Another objection was the tax question, which concerns
domestic U.S. policies rather than the treaty text. By law,
payments made to the Authority would not be subject to U.S.
foreign tax credit provisions since they would be made to an
international organization. The Treasury Department believes
that any U.S. contribution to an international organization
should be subject to the congressional appropriation process.
     For these reasons, several U.S. companies interested in
deep seabed mining have stated that they will not attempt to
engage in ocean mining if the final treaty contains the pro-
visions in the New York text.
DOMESTIC LEGISLATION

     Legislation was introduced, but not passed, to provide
for deep seabed mining by U.S. companies 2 years before the
first organizational session of the Third Law of the Sea Con-
ference in 1973. Similar legislation was introduced at each
subsequent session. The legislation, although differing on
some details, would provide for the issuance of licenses to
mine a specified area of the seabed and for compensation for


                             11
any adverse effects of an international agreement. Numerous
hearings have been held on the proposed legislation, and the
views of advocates and opponents have been made known to the
appropriate coriressionil committees.
     U.S. mining companies have advocated passage of the leg-
islation as a means of preserving the technological lead over
foreign competitors. Some companies could have begun mining,
but a substantial investment would be required to commence
operations and, without the security of tenure of a minesite
and protection of the U.S. Government, they are reluctant to
begin.
     The executive branch has opposed the legislation because
it believes unilateral action would hurt the U.S. negotiating
position at the Law of the Sea Conference. It would endanger
not only the seabed articles but also the entire treaty, in-
cluding fishing, navigation, and other important provisions.
UNRESOLVED ISSUES
     From the U.S. point of view, probably the most important
unresolved issue is the system of exploitation--the access
system. The United States continues to seek acceptance of
provisions which would grant assured access to the deep sea-
bed for state-sponsored miners. This is a fundamental U.S.
objective. Other important issues includ- the Council's
voting system and composition. As the rui.naking arm of the
Authority, the structure and procedures of the Council would
substantially affect access to the deep seabed and contractor
operations. The United States wanted to ensure that it and
the other industrialized countries with seabed mining capabil-
ity would h -a sufficient influence in the Council.
     The quota system caused a difference of opinion among
the industrialized nations. Some nations wanted to limit
the number of individual country minesites and/or contracts.
The United States opposed this because it felt that there are
more than enough prime sites for potential miners.

     For provisional application of the treaty, the question
is: Should the entire treaty, only Committee I articles and
those pertaining to fisheries in Committee II, or none of the
treaty become provisionally applicable? The U.S. position
supports provisional application of at least the Committee I
articles. Some states have domestic legal problems with this
concept. There are precedents for U.S. provisional applica-
tion of international agreements, but some Members of Con-
gress have reservations about its use in this case. However,
the treaty will require Senate approval.

                            12
     Although the new text provided for funding the Enter-
prise by several methods--voluntary contributions, borrow-
ing, charges to member states--there was little discussion of
this at the 1976 New York sessions other than the Secretary
Kissinger initiative.




                             13
                             CHAPTER 3

        COMMITTEE II:    TERPITORIAL SEAS AND STRAITS

      ECONOMIC ZONE, CONTINENTAL SHELF, AND HIGH SEAS

        ARCHIPELAGOS,   LANDLOCKED AND GEOGRAPHICALLY

                        DISADVANTAGED STATES

TERRITORIAL SEAS AND STRAITS

     The maximum breadth of the territorial sea and passage
through, under, and over straits used for international navi-
gation have been inseparably linked.  With acceptance of a
12-mile territorial sea, over 100 straits less than 24 miles
wide would come under the jurisdiction of the bordering coastal
states. The U.S. position has been to accept extension of the
territorial sea to 12 miles, provided the right of "transit
passage" through, under, and over the international straits
was retained.

     The right of transit passage differs from the right of
innocent passage which, under the 1958 Convention on the
Territorial Sea, is limited to vessels on the surface and
does not apply to overflight or submerged passage.   This Con-
vention has beeni used to make subjective interpretation of
the type of passage which will be permitted. Some states
have claimed a right to exclude certain types of ships and
to restrict passage on the basis of cargo, nationality, or
destination of the ship.   Lack of the clear right of transit
would seriously impede the mobility of the U.S. Armed Forces.

     In Caracas, the United States expanded its acceptance
of a 12-mile territorial sea conditioned upon an acceptable
straits regime, to include conditional agreement on a 200-
mile economic zone as part of a comprehensive treaty package.

     There was general agreement on the 12-mile territorial
sea, although there were no formal negotiations on this
issue.  Several proposals were made regarding innocent
passage, the majority of which were concerned with develop-
ing objective criteria.

     In Geneva, agreement on the 12-mile territorial sea
was almost unanimous.  Discussions were held on the base-
line from which the territorial sea is measured.  Attempts
were made to clarify the 1958 Convention regime of innocent


                               14
passage by compiling an objective list of activities which
were "not innocent."

Informal Single Negotiating Text

     The United States objected to the provision in the SNT
that coastal state laws and regulations "shall not apply to
or affect the design, construction, manning or equipment of
foreign ships or matters regulated by generally accepted in-
ternational rules *    *   *."   This conflicted with the U.S. posi-
tion and laws and appears to conflict with the environmental
protection articles in part III of the SNT. (See ch. 4.)
     An attempt was made to balance the rights of states that
border coastal straits with traditional freedom of navigation.
The SNT provided for "transit passage" for straits used for
navigation between one area of the high seas or an exclusive
economic zone and other areas of the high seas or an exclu-
sive economic zone. Passage and overflight using the "normal
mode" would be for continuous transit of the straits without
delay and without threat or use of force. The use of the
phrase "normal moae" is important to the United States, because
the normal and safest mode of submarine transit is underwater.
The SNT also provided for establishment of a contiguous zone
of an additional 12 miles beyond the territorial sea at the
option of a coastal state. This zone would extend the
state's right to control its customs, immigration, and sani-
tary regulations.
     At the Spring 1976 New York session, the question of
division or delimitation of territorial sea boundaries was
raised. This issue applied also to economic zones and con-
tinental shelves. There were advocates of both equidistance
and equity for determining these boundaries.
Revised Single Negotiating Text

     The issues of territorial seas and straits were virtually
resolved at the Geneva session by general acceptance of the
12-mile territorial sea and transit passage in straits.
     Discussion of the rights of coastal states to set de-
sign, construction, and manning criteria for ships in their
territorial seas was limited to a short period at the end
of the Summer 1976 New York session. It is to be brought
up again at the May 1977 session and will need to be coordi-
nated with the Committee III anti-pollution articles.




                                   15
ECONOMIC ZONE,-CONTINENTAL-SHELF, AND HIGH SEAS
     Befor~ the Caracas session, the U.S. policy on resources
of the coastal zone was that coastal states should have pref-
erential fishing rights and exclusive minerals control on
the continental shelf to a water depth of 200 meters. Beyond
this depth would be an intermediate zone reaching to the outer
edge of the continental margin, for which a coastal state
would act as trustee for the Seabed Resource Authority. A
large part of the revenues from exploitation of this area
would be made available to developing countries.
     Possibly because of changing conditions in this period--
continual decline of the U.S. coastal fishing industry and
the energy crisis--U.S. policy changed to some extent. There
was strong international and domestic support in favor of a
broad national resource or economic zone. The United States
proposed that coastal states have control over construction,
operation, and use of offshore drilling platforms and deep-
water ports and similar installations.
     The fisheries position became one of broad coastal state
control of coastal and anadromous species subject to certain
international obligations. U.S. fisheries proposals are
based on the three main types of fishing stocks: coastal,
anadromous (which spawn in fresh water, nigrate to the oceans,
and return to spawn, such as salmon), and highly migratory
species, such as tuna.
     Coastal species were to be under the jurisdiction of
coastal states, which would have preferential rights to them
to the extent of their ability to harvest them within the
allowable limits. The allowable limit would be the amount
of fish which could be taken without endangering reproduction
of the species. Other nations would be permitted to harvest
the difference. Management jurisdiction and preferential
rights to anadromous species througnout the oceans was given
to the state of origin.
     Under the U.S. proposals, highly migratory fish species
would be subject to international or regional control and
there would be provisional application of the fisheries
articles of the treaty.
     During the Caracas session there was extensive support
for establishing an economic zone of 200 miles (including the
12-mile territorial sea), with a coastal state having ex-
clusive rights to exploitation of the living and nonliving

                             16
resources of the zone. A coastal state would have exclusive
drilling rights on the continental shelf or sea floor of
the zone and control of installations. There would be
freedom of overflight and navigation, and other states
would have the right to lay pipelines and cables.

     States with broad shelf margins opposed the U.S. revenue-
sharing proposal but some developing countries supported it.
Extension of coastal state resource jurisdiction beyond 200
miles to the end of the continental margin was supported by
many Latin American, Asian, and Western European nations and
by Canada, Australia, Mauritius, and New Zealand. It was gen-
erally opposed by African nations, Japan, and landlocked and
geographically disadvantaged states.

     The question of the economic zone was raised during the
Caracas session. Creation of the zone would remove or modify
some of the traditional high-seas freedoms, such as fishing,
while retaining others, including navigation and overflight.
The United States feared that granting rights to coastal
states in the zone would erode the status of the high seas
and, through extension of various forms of jurisdiction,
make the zone the equivalent of a territorial sea. Thus
the U.S. delegation proposed a text stating that the regime
of the high seas applied to the economic zone except as
modified by the provisions of the treaty.
     Although there were no negotiations on details, the
proposals were set out in working papers, with alternative
texts covering the main trends on the issues.
     The Evensen Group 1/ considered economic zone matters
at the Caracas session and met frequently during the period
between sessions. It produced articles which covered most
Committee II issues except highly migratory species, although
attempts were made to negotiate an article on this issue.

Informal SingleNegotiating Text
     The Evensen articles greatly influenced the Single Ne-
gotiating text issued by the Chairman of Committee II. A
major problem was negotiating a balance between the duties of
the coastal states to respect international rights, such as


 i/A group of about 40 delegates, including many delegation
   chiefs and representatives of all regional groups.


                              17
freedom of navigation, and the duties of the states that
use the economic zone to respect coastal state rights.   The
SNT articles reflect the general acceptance of freedom of
nav:igation, overflight, and related rights and give the
coastal states the right to exploit and manage the natural
resources of the zone.   There was no provision, however,
for assigning unspecified or "residual" rights to coastal
states or user states.   This is related to the overall is-
sue of the legal status of the economic zone as high sea.

     There were other indications in the text that the
economic zone should be considered a separate area, neither
high sea nor territorial sea.  A formal discussion of the
definition of high sea was postponed until the overall
economic zone issue was settled.

     Fisheries

     At the Geneva session, there was substantial opposition
to the Evensen fisheries articles.   The landlocked and geo-
graphically disadvantaged states objected   because the articles
failed to provide them access to a  fishing  territory.   They
wanted a provision in the treaty to  give them  the right  to
fish in the economic zones of their  neighbors.   Coastal  states
preferred bilateral negotiations for these rights.

     The Geneva SNT reflected a favorable position for the
United States on fisheries in the economic zone--coastal
state management jurisdiction over fishing.     The coastal
states were required to adopt conservation   measures   to en-
sure that the fish stocks were not  over-exploited    and to
provide optimum use, allowing other  states  to  harvest  up to
the maximum allowable catch over that  which  each   coastal state
does not have the capacity to take.   The state   of  origin
was responsible for anadromous stocks and for protecting
other states which suffered "economic dislocation."

      The SNT provided for access by landlock d and geographi-
cally disadvantaged states to the fisheries of neighboring
state economic zones, but the concerned states considered
the provision inadequate.   The SNT also provided for a coastal
state  to regulate highly migratory species in its economic
zone, a provision the united States considered unsatisfac-
tory.

     Continental shelf

     Although there was widespread agreement on a 200-mile
economic zone, there was a difference of opinion as to the



                              18
outer limit of the continental shelf where it extends beyond
200 miles. Some states advocated an absolute limit of 200
miles, others wanted to control seabed resources to the limit
of the continental margin. During the Geneva session, a com-
promise by which coastal states would retain the right to
exploit the resources of the continental margin beyond 200
miles but would share revenues from exploitation beyond
200 miles won increased support.
     The United States supported the compromise and, modify-
ing its original position of revenue-sharing beyond 12 miles
or the 200-meter depth, which had little support, indicated
that it could support revenue-sharing starting at 200 miles.
It suggested a 1-percent revenue-sharing of the wellhead
value of production af er 5 years, followed by an increase
of 1 percent a year up to 5 percent. This general method
of revenue-sharing was reflected in the revised SNT, although
proposals for profiL haring or contributions in-kind were
made during the Geneva session.


           THE CONTINENTAL MARGIN IN PROFILE

  112 Mile Territorial Sea (proposed)
   200 Mile Exclusive Economic Zone
                (proposed)
   Shoreline                     Sea Level



                                                     o(E .. i Sabed
                                   L s v v is tssss isj
Revised Single Negotiating Text

     Coastal state jurisdiction over the resources of the
economic zone continued to be acceptable to the majority
of participants. The major problem was negotiating a balance
between coastal state resource jurisdiction and other ocean
uses. Some countries continued to support greater coastal
state jurisdiction in the zone.
     In the Spring 1976 New York session, Secretary Kissinger
stated that the high seas is the economic zone; however, the
introduction by the Chairman of Committee II to the revised
text states "Nor is there any doubt that the exclusive econo-
mic zone is neither high seas nor the territorial sea." He
believes that it is a separate regime.
     During the Summer 1"76 New York session, the United
States considered the legal status of the economic zone to
be the most important outstanding issue in Committee II,
and it was accorded priority status. A negotiating group
open to all members was set up for discussion. The issue
was divided into (1) the legal status of the economic zone
and (2) the rights and duties of states with respect to the
living resources of the economic zone. Later, small con-
sultative groups were set up for each of these items.

     Debate on the legal status of the economic zone was
generally between coastal and maritime states. Coastal
states wanted the treaty to provide for specific international
rights in the economic zone, such as navigation rights and
cable laying. The remaining unstated or "residual" rights
would also revert to the coastal state. The maritime states,
including the United States, want these residual rights to
be international. which would tend to prevent the high sea
from becoming equivalent to the territorial sea. In addi-
tion, the United States favored retaining the high sea
status of the exclusive economic zone.

     No acceptable solution has yet been reached. The United
States did not agree to the revised SNT article which states
that the economic zone is not a high sea.
     Fisheries
     The revised Single Negotiating Text showed few changes
in the coastal and anadromous fisheries arti:=l', due to gen-
eral acceptance and to the Chairman's relu ' nce to change




                             20
the SNT articles without broad support. Some technical
changes were made to the highly migratory species articles.
The changes, which the United States considered an improve-
ment, were opposed by other coastal states. Even with these
changes, the revised articles were not considered satisfac-
tory by all of the U.S. tuna industry.
     In April 1976, the President signed Public Law 94-265,
the Fishery Conservation and Management Act of 1976, extend-
ing U.S. fisheries jurisdiction to 200 miles.

     The provisions of the domestic legislation were gen-
erally compatible with the coastal fisheries articles of the
revised SNT, but did extend U.S. menagement authority of
salmon beyond the fisheries zone to wherever the fish were
found, except if found within a foreign nation's recognized
territorial sea or fishery conservation zone. The law does
not provide jurisdiction over highly migratory species. It
provides for conforming the implementing regulations to the
Law of the Sea Treaty.
     In connection with extension of its fisheries jurisdic-
tion, the United States hes had to negotiate new agreements
with nations fishing off the U.S. coasts. Negotiations were
quite successful and resulted in acceptance of the new limit
by other countries.
     During the 1976 New York sessions, highly migratory spe-
cies were briefly discussed. The tuna articles of the re-
vised SNT were a slight improvement from the U.S. point of
view. The United States wanted international or regional
control of tuna in the economic zone and the articles were
ambiguous on this point. Some coastal states want to con-
trol the economic zone in order to increase tneir influence
in the zone. The issue was not resolved.
     The continental shelf

     There was emerging recognition that the accommodation
on the shelf would provide for extending coastal state
jurisdiction to the outer limit of the continental margin
and for sharing revenue from mineral exploitation beyond
200 miles. This required an agreed formula for determining
the exact outer limit of the continental margin. Two formulas
were proposed. One was a standard geological principle. The
other, proposed by the Irish delegation and acceptable to the
United States, included a formula based on seabed sediment
thickness. The United States supports revenue-sharing beyond
200 miles with percentages specifically designated as part
of the treaty.

                             21
     During the Summer 1976 New York session, the main topics
discussed in the negotiating groups were:

     --The limits of the shelf.

     -- Possible exemption of developing states from contri-
        butions.
     -- Which states would benefit from the contributions.

     -- Which organization would distribute the contributions.
OTHER ISSUES

Archipelagos
     Several island states maintain that they have sovereignty
over the waters within baselines connecting the outermost
points of the outermost islands. The United States does not
recognize the current claim by such states. The revised SNT
does address this issue by limiting its applicability and by
providing navigation and overflight through and over the waters
of the archipelagos.

Landlocked and geographically
aisadvantaged states
     About 52 countries at the Conference are actually land-
locked or consider themselves to be geographically disadvan-
taged. There was no official definition of the latter type
of state. These states want to obtain fishing rights and
other concessions in the economic zones of their neighbors,
and landlocked countries want to gain transit rights to the
sea. They believed their interests were not reflected in
the revised Single Negotiating Text.
     Negotiations were held and some progress was made. The
United States is sympathetic to the concerns expressed and
is encouraged that the states directly concerned have been
negotiating to resolve differences.
Territories under foreign domination--
resource rights in the economic zone
     An article in the SNT would give resource rights estab-
lished by the treaty to certain non-self-governing territories.
The issue was sensitive because it raised difficult questions
for states with dependent territories. It also raises issues



                                22
regarding liberation organizations recognized by the Organiza-
tion of African Unity and the League of Ar,;b States. The U.S.
position was that the question was not appropri:'t for the
Law of the Sea Conference.
     The transitional provision was not acceptable to the
United States, and at the Spring 1976 New York session the
U.S. delegation proposed compromise wordirg which would, among
other things, provide for its application to commonwealth as-
sociations.

OBSERVATIONS
     There was probably greater agreement on Committee II
issues than on the other parts of the Conference.
     The issue of delimitation of boundaries between opposite
and adjacent states was essentially a bilateral problem and
might be settled on this basis with the general guidelines
for negotiation contained in the Law of the Sea Treaty.
     The issue of the legal status of the economic zone was
extremely important and may be difficult to resolve.
     Passage of legislation extending U.S. fisheries juris-
diction has required restructuring of U.S. bilateral fishing
agreements. To a great extent, members of the U.';. delegation
concerned with Committee II fisheries' discussion; were also
involved in the bilateral negotiations.




                             23
                          CHAPTER 4
         COMMITTEE III:   PROTECTION AND PRESERVATION
                OF THE MARINE ENVIRONMENT AND
                 MARINE SCIENTIFIC RESEARCH
MARINE -ENVIRONMENT

     The marine environment has been deteriorating for many
years, and there have been several attempts at international
cooperation in marine pollution control, including the:
     -- Amendments to the 1954 Convention for the Prevention
        of Pollution of the Sea by Oil.

     -- Convention on the Prevention of Marine Pollution by
        Dumping of Wastes and other Matter.
     -- Regulations adopted by the Intergovernmental Maritime
        Consultative Organization.

     --U.N. Environment Program.
     --U.N. Marine Environment Protection Committee.

      Discussicns in the Seabed Committee and in the initial
phases of the Law of the Sea Conference identified several
existing or potential sources of marine pollution. These
include (1) landbased sources of pollution, such as sewage
or industrial waste, (2) potential pollution from manganese
mining of the deep seabed, (3) pollution from the development
of oil and gas and from other activities on the continental
shelf, (4) pollution from ocean dumping, and (5) accidental
or intentional vessel pollution.
     The objective of the Law of the Sea negotiations con-
cerning the protection and preservation of the marine en-
vironment has been to establish effective environmental pro-
tection obligations with regard to these sources of marine
pollution. In general, this would include standard-setting
and enforcement rights for each source and, with the excep-
tion of landbased pollution, would require that domestic
regulations be at least as effective as international
regulations.

     During the Caracas session of the Conference, draft
articles were completed on general obligations for preventing


                             24
pollution, some particular obligations, global and regional
cooperation, technical assistance, rights of states to exploit
their resources, and the relevance of economic factors to
developing-country obligations. These texts were not fully
agreed upon. The major item ot contention was the double
standard issue raised by some developing countries, which
felt that the obligations on developing states should be less
stringent than those placed on developed states.
Single Negotiating Text

     During the Geneva session, articles covering monitoring,
landbased sources of pollution, and environmental assessments
were generally agreed upon. The environmental assessment
provision required states to determine the possible pollut-
ing effects of domestic activities before they are carried
out. The Single Negotiating Text issued at the session gen-
erally reflected these agreements.
     The monitoring and assessment articles were intended to
ensure that states assess in advance the environmental im-
pacts of activities which may cause substantial marine pollu-
tion and follow up with reasonable monitoring efforts. The
article on landbased sources of pollution requires states to
establish national regulations to control pollution and in-
cludes special mention of toxic and persistent substances.
Discussions on pollution from the continental shelf and from
dumping did not reach complete agreement during this session
of the Conference. The central issue was whether these
sources of pollution should be controlled only by the coastal
state or should be subject to a binding obligation to accept
international standards.
Revised Single -Negotiating Text

     The revised SNT produced during the spring session in
New York reflected general agreement on several outstanding
issues. The provisions of this text obligated (1) coastal
states to establish national laws to control pollution arising
from seabed activities subject to their jurisdiction and (2)
all states to establish rules to control pollution from the
dumping of wastes. These laws are not subject to, but must
be as effective as, international or global standards. The
text also reflected an emerging consensus on three major as-
pects of vessel source pollution--coastal state pollution re-
gulations in the economic zone, general enforcement problems
concerning vessel source pollution, and coastal state rights
concerning pollution in the territorial sea.


                              25
      The right of a port state to prosecute was extended from
·vessels in port to violations regardless of location.    Fla7-
 state enforcement rights and obligations were increased,
 balanced by safeguards, such as liability for unreasonable
 enforcement.   The setting of standards in the territorial
 sea was a major source of disagreement.   The United States
 and several other coastal states believed that coastal states
 should be permitted to establish regulations .triccer than
 international standards in -heir territorial seas for such
 things as ship design, construction, and manning.   U.S.
 domestic legislation has already provided for this.   Most
 West European nations and Japan and Russia, however, were
 opposed to this view.   The U.S. position was reflected in
 the Committee III section of the revised SNT, but the Com-
 mittee II articles on the territorial sea contained the
 opposing view.

     At the Summer 1976 New York session, coastal state
competence to establish standards for ship construction,
manning, and equipment in the territorial sea was discussed,
but the session ended with no resolution of the issue.

     The revised SNT, containing the degree of balance be-
tween environmental protection and navigational rights ad-
vocated Ly the United States, was not revised during the
Summer New York session.

Observations

     Coastal state authority to prescribe ship design, con-
struction, and manning and equipment standards in the terri-
torial sea is a basic U.S. interest and an unresolved issue
in Committee III.  Domestic legislation now provides for the
United States to exercise authority in these matters in U.S.
territorial seas.  The domestic legislation was intended to
protect U.S. coasts from environmental damage.

MARINE SCIENTIFIC RESEARCH

     The right to conduct scientific research in the oceans
beyond the territorial sea has been traditionally one of the
freedoms of the high seas.  The 1958 Convention on the Con-
tinental Shelf, which required consent of the coastal state
for research on another continental shelf, imposed the first
limit on this right.  Consent is not normally withheld when
the research is purely scientific. Coastal states are to have
the right to participate in the research, and the results of
the research are to be published.



                             26
     In practice, however, states have withheld consent
through not replying to requests or in other ways impeding
research efforts. This situation, combined with technologi-
cal advances and coastal state claims of extended jurisdic-
tion, made revision of the existing regime necessary.
     During the Ca:acas session, the United States supported
t:eaty articles it felt would protect coastal state interests
without discouraging research. Coastal state protection would
be provided by obliging those conducting the research to:
    -- Notify the coastal state in advance.
    -- Allow coastal state participation.

    -- Share data and samples with the coastal state.
    -- Assist the coastal state in interpreting data.

    -- Publish the results of the research.
     -- Comply with environmental regulations.

    -- Certify that the research is purely scientific and is
       to be conducted by a qualified scientific organization.

The proposed articles also provided for compulsory dispute
settlement to resolve questions of compliance with the obli-
gations and any other disputes. However, most developing
countries felt that their interests could be protected only
by requiring consent for all research in areas under coastal
state jurisdiction. As a result of the differing views, the
Caracas session produced agreement only on general principles
for the conduct of marine research. Irnese principles include
requirements that research must be conducted for peaceful
purposes only, must not interfere with other ocean uses,
cannot form the legal basis for claims to any part of the
marine environment or its resources, and researchers must
comply with applicable environmental protection regulations.
Single Negotiating-Text
     During the Geneva session of the Conference three main
trends developed. The first was reflected ty the proposal
of the Group of 77, which provides that all scientific re-
search in areas under coastal state jurisdiction be conducted
unly with the consent of the coastal state. The second, sup-
ported by the United States, was reflected in the proposal
of several West European countries that marine scientific

                              27
research be conducted if a list of internationally agreed
obligations are fulfilled, subject to dispute settlement
procedures. The third was reflected by a Soviet proposal
that marine scientific research in the economic zone "related
to the exploration and exploitation of living and non-living
resources" be conducted only with the consent of the coastal
state; research not so related would be conducted subject to
the fulfillment of a series of obligations; a similar regime
would apply to research un The continental shelf beyond the
economic zone.  Research in ,he international area could be
conducted freely.  As this approach, focusing on the purpose
of the research, had scate appeal to both those seeking a con-
sent regime and those advocating marine scientific research
under an obligation regime, it was the center of discussion
throughout the session and was reflected in the SNT.

     The major criticism levied at the Soviet approach by de-
veloping and some developed countries was the practical diffi-
culty of making such a distinction.  Some countries, led by
Canada, concluded that all marine scientific research should
be subject to consent regime, while others stated that they
could accept distinction if the coastal state had the exclu-
sive right to determine whether the research related to explo-
ration or exploitation of resources.  This controversy con-
tinued during most of the New York Spring session.

Revised Single Negotiating Text

      The text required consent for all scientific research in
the economic zone.   Consent was not to be withheld unless it
was resouLce-related or involved drilling, explosives, or
structures. There was also recourse to the treaty dispute
settlement provisions if a dispute could not be resolved
withi.n 4 months by the conciliation procedures detailed in
the text.   These procedures involve the use of experts in
the field of marine research, to be chosen by the parties to
the dispute.

     The revised Single Negotiati.g Text, however, reflected
a different approach from those discussed in the negotiation.
It requires consent for all scientific research in the eco-
nomic zone but provides that consent shall not be withheld
unless the research is resource-orientea, unduly interferes
with economic activities of the coastal state, involves
drilling and the use of explosives, or involves the use of
artificial islands or installations subject to coastal state
jurisdiction.  The new text also provides that disputes over
research will first be referred to experts to aid the parties
in reaching agreement, and if those efforts are not success-
ful, to the binding dispute settlement procedures set forth
in Part IV.


                             28
     Many provisions of the revised SNT are considered
unacceptable by the U.S. scientific community. Two specific
provisions will serve as examples. The text prvVid      h
                                                       that a
coastal state can withhold consent if the research falls
into any of the four categories outlined above. These cate-
goriez a-e so broad that consent can be denied for virtually
any research project. The text also permits a coastal state
to prohibit publication of the research results if the project
"bears substantially upon the exploration and exploitation of
living or non-living resources of the economic zone or con-
tinental shelf." Few scientists will conduct research without
an assurance that they can publish the results. Experience
with the Continental Shelf Convention has shown that if con-
sent can be denied it oten will be denied.

Observations

     The problems concerning marine scientific research -emain
unresolved. Members of the U.S. marine scientific commuiity
believe that the current revised SNT is unacceptable. They
see it as containing the worst features of both consent and
obligation regimes. Secretary Kissinger reemphasized the im-
portance of the issue to the United States and pointed out the
dissatisfaction of U.S. scientists with the revised SNT during
his attendance at the Conference. This issue remains one of
the most difficult facing the Law of the Sea Conference.




                             29
                           CHAPTER 5

                      DISPUTE SETTLEMENT

      A major objective of a comprehensive Law of the Sea
Treaty was to minimize conflict between nations.    It was gen-
erally agreed, however, that  there would always be  differences
of interpretation of the treaty which could be resolved only
by an agreed means of settlement.   During the U.N. Seabed Com-
mittes meetings in preparation  for the Caracas session, the
United States introduced draft articles allowing states to
choose tne type of dispute settlement mechanism they preferred.
A Law of the Sea Tribunal was to be established for use when
parties to the dispute could not agree on the means of settle-
ment.

     Thte United States further emphasized the importance it
attached to this subject by inserting cross references to
the Dispute Settlement section of the treaty in all its draft
treaty articles except those on the territorial sea and
straits.   The original U.S. proposals applied only to states,
except for vessel owners to obtain release of a vessel and
certain continental shelf cases.   Fishing disputes would be
settled by a special commission rather than by the proposed
tribunal.
     Informal meetings by a smiall group of states at the
Caracas session resulted in a w4:king paper of draft alter-
native texts for use at the Geneva session. The texts of-
fered three basic forums for dealing with disputes: The
Law of the Sea Tribunal, The International Court of Justice,
and arbitration.
     The question of access to the system by private persons
and international organizations was also raised but not re-
solved. During the Geneva session, there was support for
each of the basic forums discussed at Caracas, but no clear
majority for any one forum. There was considerable support,
however, for a compromise by which a state could choose one
of the basic forums upon ratifying the treaty.

     Some states opposed the establishment of a permanent
Law of the Sea Tribunal. There was also opposition to ap-
plication of dispute settlement to the economic zone, ex-
cept for specific items, such as navigation or pollution.

     The working group provided the Conference President
with four proposed articles on which there was general



                             30
agreement and three alternative proposals. The four articles
                                                      L
provided for peaceful settlement of disputes and cho.ie    .
forum. The articles and  alternative proposals  were  issued  by
the Conference President as an adjunct to the  SNT at  the  end
of the Geneva session.

REVISED DISPUTE SETTLEMENT TEXT
     In May 1976, the President of the Conference issued a
revised text on dispute settlement, a document based primarily
on the plenary discussions to be used for further negotiations.
The text provided for a special Law of the Sea Tribunal and
for private persons to have access to the Tribunal. A fourth
method of dispute settlement was added to the three basic
forums--a special procedure in combination with any one of
the three forums. Parties to the treaty were to be bound
by existing dispute settlement procedures. Cases involving
mixed seabed and non-seabed disputes were to be referred
to the chosen method for settlement. Special procedures
were to be used in cases of treaty application or inter-
pretation.
     During the Summer 1976 New York session, almost all dele-
gations participated in an article-by-article review of the
revised text. About 100 amendments were proposed to the text,
but few had broad support.
     Most states accepted the principle of dispute settle-
ment for the high seas, but many had reservations about its
application to the economic zone. Most agreed that naviga-
tion, overflight, scientific research, and pollution should
be included and national boundaries and military matters ex-
cluded. Coastal states generally opposed dispute settlement
for fisheries. Notable exceptions were the United States
and coastal states with distant-water fishing industries.
     There was widespread support for allowing a choice of
the four procedures. However, some delegations were con-
cerned that this would subject them to an objectionable
procedure. The revised text required that the plaintiff
use the procedure chosen by the defendant when differing
procedures had initially been chosen. As a compromise, the
United States proposed that the plaintiff have a choice
between the defendant's chosen procedure and arbitration.
The United States Jid not state which procedure it intends
to choose.




                              31
                                                        settle-
     The question of access to procedures for dispute
                                                   and politi-
ment involves private persons, groups ofof states,
                                            the latter is the
cally orientated entities. An example
Palestine Liberation Organization.
                                                   access by
     The United States continued its support for
vessel owners and masters to obtain  release of their vessels
                          judicial decision  in the cases. This
on bond without a formal
had the support of some European countries.
                               establishment of two tribunals,
      Some states favored thefor
one for the seabed  and one      other disputes arising under
                                             a single tribunal
the treaty. It was proposed that thereandbe one for general
with two chambers, one for the seabed        from maritime na-
disputes. The United States, with support       speed and con-
tions, favored a separate Seabed Tribunal for
 .istency and as a check on the Authority.
                           President of the Conference is-
     In November 1976, the
                        on dispute settlement.  The text was
sued a new revised text
                                            the Conference
presented as a further stage in the work of
and was prepared to serve as a basis for continuing negotia-
                                         revision to be a gen-
tions. The United States considered the        in May 1976.
eral improvement over the previous text issued
OBSERVATIONS
                                                    need for a
     Although there is general agreement on thethere  is a dif-
dispute settlement mechanism in the  treaty,
                                     It is  possible   that some
ference of opinion on the details.             or  treaties, rep-
issues could be incorporated into a  treaty,
                                                  Law of the Sea
resenting something less than a comprehensive
                                           for  dispute  settle-
Convention. This could result in   a nc:d
                                                on this issue
ment procedures, requiring that negotiations
be accelerated.
      The following issues remained unresolved.
                                                    economic
      -- Categories of disputes to be excluded from
         zone settlement procedures.

      -- Choice of forum.
                                                   intergovern-
      -- Access to the forums by private persons, entities.
         mental organizations, and nongovernmental
                                                         system
      -- Relationship of the overall dispute settlement
         to a Seabed Tribunal.


                               32
                            CHAPTER 6

                    PROVISIONAL APPLICATION
                                                                 to
      Some international agreements contained a provision the
                                                     rumber of
become effective upon signature by a specified  by  the  respective
parties rather than upon   full  ratification
                                  provisional   application.     At
governments. This is known as                        the  United
the 1973 meeting of the   U.N.  Seabed  Committee,
States proposed provisional application of      the treaty articles
                           accelerate   the  development   of seabed
on deep seabed mining to                                   under in-
mining and to ensure that mining would be conducted         support
ternational regulations. The U.S. position included and,
for provisional application of the     fisheries   articles
                                                           Resource
possibly, other sections of the treaty. The Seabed       circulated
Committee had a study prepared    on the   subject  and
to the delegations.
                                                                 in
      Provisional application was discussed only slightly
the various Conference sessions. The by    Geneva SNT contained
a section  on provisional  application       which the seabed
                                   upon  notice   of intent to
articles would enter into force                section   was car-
ratify the convention by   36  states.    This
 ried over to the revised SNT.
                                                     may cause
     Provisional application of the seabed articles
                                                the Seabed
a problem. The current text on the Council of
                                            by  categories
Authority specifies membership requirements
                                     not be fulfilled  unless
of states. These requirements would         the  treaty.
the states in these categories had accepted

OBSERVATION
                                                        the pos-
     Members of Congress have expressed concern at
                                                       importance,
sibility that an international agreement of major        on the
or significant portions of it,  could  become  binding
                                      action  or  approval.   The
United States without congressional                           be-
U.S. delegation has assured the  Congress  of  consultation
                                      portion  of  the  treaty  is
fore provisional application of any
accepted.




                                 33
APPENDIX I                                             APPENDIX I


                       PRINCIPAL OFFICIALS
                RESPONSIBLE FOR ADMINISTRATION OF
              ACTIVITIES DISCUSSED IN THIS REPORT

                                             Tenure of office
                                             From          To
                       DEPARTMENT OF STATE

SECRETARY OF STATE:
    Cyrus R. Vance                     Jan. 1977       Present
    Henry A. Kissinger                 Sept. 1973      Jan. 1977
DEPUTY SECRETARY OF STATE:
    Warren M. Christopher              Feb.     1977   Present
    Charles W. Robinson                Apr.     1976   Jan. 1977
    Robert S. Ingersoll                July     1974   Mar.  1976
                     NATIONAL SECURITY COUNCIL
CHAIRMAN OF THE NATIONAL SECURITY
  COUNCIL INTERAGENCY GROUP FOR
  LAW OF THE SEA:  (note a)
    Elliot L. Richardson               Mar.     1977   Present
    T. Vincent Learson                 Dec.     1975   Jan. 1977
    Carlv'i E. Maw                     Aug.     1975   Dec.  1975
    John R. Stevenson                  Aug.     1973   May   1975
             SPECIAL REPRESENTATIVE OF THE PRESIDENT
SPECIAL REPRESENTATIVE OF THE
  PRESIDENT FOR THE LAW OF THE
  SEA CONFERENCE:
    Elliot L. Richardson               Mar.     1977   Present
    T. Vincent Learson                 Dec.     1975   Jan. 1977
    Carlyle E. Maw                     Aug.     1975   Dec. 1975
    John R. Stevenson                  Aug.     1973   May   1F75
a/Formerly National Security Council Interagency Task Force
  on the Law of the Sea.




                              34