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In response some nations have escalated both their demands and the stridency with which they advocate them.
I must say candidly that there are limits beyond which no American Administration can, or will, go. If attempts are made to compel concessions which exceed those limits, unilateralism will become inevitable. Countries which have no technological capacity for mining the seabeds in the foreseeable future should not seek to impose a doctrine of total internationalization on nations which alone have this capacity and which have voluntarily offered to share it. The United States has an interest in the progressive development of international law, stable order, and global cooperation. We are prepared to make sacrifices for this-but they cannot go beyond equitable bounds.
Let us therefore put aside delaying tactics and pressures and take the path of cooperation. If we have the vision to conclude a treaty considered fair and just by mankind, our labors will have profound meaning not only for the regime of the oceans but for all efforts to build a peaceful, cooperative, and prosperous international community. The United States will spend the interval between sessions of the conference reviewing its positions and will approach other nations well in advance of the next session at the political level to establish the best possible conditions for its success.
Dept. of State Bulletin, Vol. LXXV, No. 1948, Oct. 25, 1976, pp. 507-508. The U.N. General Assembly, on Dec. 10, 1976, adopted Res. 31/63, approving the convening of the sixth session of the Third U.N. Conference on the Law of the Sea in New York from May 23 to July 8, 1977, with a possible extension to July 15 should the Conference so decide.
§ 2 The Territorial Sea
Passage of Warships The U.S. Embassy in New Delhi, in a note of March 15, 1976, to the Ministry of External Affairs of India, noted its disagreement with the position stated by the Indian Government in a circular note of August 4, 1975, that the passage of warships through Indian Territorial waters requires prior notification to and permission by the Government of India. In its circular note, the Indian Ministry of External Affairs had informed governments that for security reasons the entry of foreign vessels in the territorial waters around Andaman and Nicobar Islands had been temporarily sealed off, and it requested that its notice be brought to the attention of all concerned for strict compliance. The note also included the statement of the Indian position on passage of warships through territorial waters.
The Embassy's reply informed the Ministry of the dissemination and publication of its note, but added:
this does not constitute legal recognition by the United States of America of the international validity of any rule so
published. For example, the United States does not agree that the passage of warships requires notification or permission.
§ 3 Coastal State Economic Jurisdiction
Legal Status of the Economic Zone At the fifth session of the Third U.N. Conference on the Law of the Sea, which met in New York August 2-September 17, 1976, the Second Committee set up a negotiating group to deal with the legal status of the exclusive and economic zone and the rights and duties of the coastal state and other states in that zone. The U.S. Delegation Report for that session described the U.S. position and that of some other governments as follows:
.. The U.S. objective in this regard is to retain this traditional high seas status of the zone, except for rights over resources and other limited rights (which had previously been high seas freedoms) assigned to coastal states by the provisions of the treaty. This objective has been made more difficult because: (1) the present Revised Single Negotiating Text (RSNT) clearly states that the economic zone is not high seas, and (2) in his introductory note to the RSNT, the Chairman of the Second Committee wrote the following:
Nor is there any doubt that the exclusive economic zone is neither the high seas nor the territorial sea. It is a zone sui generis.
He suggested that the solution was to be found in adjusting the articles dealing with the rights and duties of coastal states in the zone, and those of other states.
The United States made clear that the provisions of the RSNT on this subject are unacceptable as written and that we cannot agree to any text which makes it clear that the zone is not high seas. On the contrary, the text must somehow explicitly accord high seas status to the zone but with the recognition that the zone is not high seas with respect to the exercise of coastal state rights provided for in the treaty. In addition, the summary of coastal state rights in the zone must be made consistent with the substantive articles.
The negotiations have been made still more difficult by the extremists of the territorialist group who have insisted that the zone be characterized as one of national jurisdiction in which other states enjoy only subordinate rights of navigation, overflight, and communication.
More moderate coastal states worked at this session of the Conference to seek an accommodation by experimenting with various formulations which might more satisfactorily specify the rights and duties of states in the zone.
U. S. Delegation Report, 3d U.N. Conference on the Law of the Sea, 5th Sess., Aug. 2-Sept.17, 1976, pp. 9-10, Dept. of State File D/LOS. For the RSNT produced at the 4th Sess., Mar. 15-May 7, 1976, see U.N. Doc. A/CONF.62/WP.8/Rev.1/Part II, May 6, 1976, pp. 26-35.
The Continental Margin Negotiations concerning the continental margin at the fifth session of the Third U.N. Conference on the Law of the Sea focused on two questions. The first was the definition of the outer limits of the continental margin where it extends beyond 200 miles. The second involved revenue sharing from mineral exploitation on the margin beyond 200 nautical miles. Although the United States does not have an extensive margin beyond 200 miles, it worked for a compromise between the broad-margin states, which favored exclusive control over resources throughout the broadest reaches of the margin, and narrow-margin states (including landlocked and geographically disadvantaged states) which wished to insure that significant resources be retained for the common heritage of mankind. The following is an excerpt from the U.S. Delegation Report on the session:
The United States has supported a compromise which would define the legal limit of the continental margin where it extends beyond 200 miles, either at a fixed distance from the foot of the slope, or at a fixed thickness of sediment. As a necessary adjunct to this formula, the treaty would provide for a sharing of revenues derived from mineral production from the margin
beyond 200 nautical miles with the international community. The formula which was the primary focus of attention called for revenue sharing of one percent of the value of production at the site in the sixth year of production, increasing in annual increments of one percent to the maximum of five percent in the tenth year and thereafter.
The concepts of these formulae seem to be gaining substantial support. The organization(s) which would collect and distribute revenues has yet to be agreed. Discussion, however, did focus on both the regional and other development organizations and the International Seabed Resource Authority (ISRA) as mediums of distribution. It is an important element in the accommodation that all areas of the margin beyond 200 miles which would be recognized as under coastal state jurisdiction for resource purposes be subject to revenue sharing obligations. If certain large areas of the margin under coastal state resource jurisdiction are excluded, the revenues for the international community will be significantly reduced.
U.S. Delegation Report, 3d U.N. Conference on the Law of the Sea, 5th Sess., Aug. 2-Sept. 17, 1976, pp. 10-11, Dept. of State File D/LOS.
Maritime Jurisdiction U.S.-Canada Maritime Boundaries
On November 4, 1976, the Department of State published in the Federal Register the coordinates of the boundaries of the continental shelf and fisheries jurisdiction asserted by the United States in the areas off the coasts of the United States and Canada. The publication was made in view of the publication by Canada on November 1, 1976, of an order giving the 60-day advance notice required by Canadian law of the 200-mile fisheries zones it intended to implement on January 1, 1977. The Canadian order sets out the lateral limits of the zones asserted by Canada in the Atlantic and Pacific Oceans, including areas off the coasts of the United States.
The notices were issued while maritime boundary and related resource questions continued under discussion between the two countries, without agreement having been reached on continental shelf or fisheries zone boundaries. In a number of areas, the asserted coordinates are different. Each notice makes clear that the assertions of jurisdiction are without prejudice to the negotiation of any maritime boundary between the two countries.
The U.S. notice, dated November 1, 1976, and issued by Monroe Leigh, Legal Adviser of the Department of State, stated, in part:
The Fishery Conservation and Management Act of 1976 (Pub. L. 94-265) establishes a fishery conservation zone contiguous to the territorial sea of the United States, effective March 1, 1977, the outer boundary of which is a line drawn in such a manner that each
a point on it is 200 nautical miles from the base-line from which the territorial sea is measured.
The United States exercises sovereign rights, in accordance with international law, over the continental shelf appertaining to the United States for the purpose of exploring it and exploiting its natural resources.
The Government of the United States of America has been, is, and will be engaged in consultations and negotiations with the governments of neighboring countries, concerning the delimitation of areas subject to the respective jurisdiction of the United States and of these countries.
The Government of the United States of America intends in due course to determine and publish the limits of the entire fishery conservation zone off its coast.
The Government of Canada, on November 1, 1976, announced in an Order-in-Council the extent of the fishery zone to be asserted by Canada which will become effective January 1, 1977.
The United States and Canada have not agreed on maritime boundaries and the United States does not accept all of the coordinates published by Canada on November 1.
Therefore, in order to protect the rights of the United States and those of its nationals, the Department of State, on behalf of the Government of the United States of America, hereby announces the lateral limits, in certain maritime areas off the coasts of the United States adjacent to areas off the coasts of Canada within which the United States will exercise its fishery management authority and its sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources in accordance with international law.
The limits of the maritime jurisdiction of the United States as set forth below are intended to be without prejudice to any negotiations with Canada or to any positions which may have been or may be adopted respecting the limits of maritime jurisdiction in such areas.
The limits specified are in four areas: U.S.-Canada Gulf of Maine 1 and 2, U.S.-Canada Juan de Fuca 2, U.S.-Canada Dixon Entrance 2, and U.S.-Canada Beaufort Sea 2.
Fed. Reg., Vol. 41, No. 214, Nov. 4, 1976, pp. 48619-48620. The following footnotes are appended to the Department's notice:
1. In view of the fact that the claimed boundaries published by the United States and Canada would leave an unclaimed area within the Gulf of Maine, the United States will exercise its fisheries management jurisdiction to the Canadian-claimed line where that line is situated eastward of the United States-Canadian-claimed line, until such time as a permanent maritime boundary with Canada is established in the Gulf of Maine.
2. Where the continental shelf extends beyond 200 miles the claimed continental shelf boundary of the United States will extend to the seaward limit of the continental shelf in accordance with international law and in a direction determined by application of the principles by which the described boundary segment is determined
The Department of State issued on November 4, 1976, the following press release on maritime boundaries between the United States and Canada:
On November 1, Canada published an order giving the 60-day advance notice required by Canadian law of the 200-mile fisheries zones it intends to implementon January 1, 1977. The order sets out the lateral limits of the zones asserted by Canada in the Atlantic and Pacific Oceans, including areas off the coasts of the United States.
The United States and Canada have had maritime boundary and related resource questions under active discussion for a number of months, but we have not yet reached agreement on our continental shelf or fisheries zone boundaries. Thus the United States does not accept all of the limits published by Canada.
In view of the Canadian publication the Department of State has today published in the Federal Register the coordinates of the boundaries of the continental shelf and fisheries jurisdiction asserted by the United States in areas off the coasts of the United States and Canada. In a number of areas, the coordinates are different.