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Permanent Regime

The United States put forward significant new proposals on the deep seabeds at the resumed session of the Third U.N. Conference on the Law of the Sea, which met in New York August 26-September 17, 1976. It indicated its readiness to agree to a financing arrangement for the proposed Enterprise (the independent operating arm of the International Seabed Authority) designed to enable the Enterprise to begin mining operations within a reasonable time span. The United States further proposed that there could be a review, possibly in 25 years, to determine if the provisions of the treaty regarding the system of seabed exploitation were working adequately. Secretary of State Kissinger described the U.S. initiatives in a statement to heads of delegations at the Conference, on September 1, 1976, as follows:

At the last session, the United States proposed the system of parallel access in which, concurrently with any state or private mining of the deep seabeds, a similar site would have to be set aside for the international community to be exploited or mined by the international community

On reflection, many countries have expressed reservations about this concept on many grounds...one of the principal grounds was that it did no good to set aside a part of the mining sites for the international community if the international community did not possess the financial resources with which to mine or to put its Enterprise into business and if there were no provisions for the transfer of technology to the international community.

We have taken these views into serious consideration. And, therefore, on the occasion of my meeting with some of the members of Committee I, I proposed on behalf of the U.S. Government that the United States would be prepared to agree to a means of financing the Enterprise in such a manner that the Enterprise could begin its mining operation either concurrently with the mining of state or private enterprises or within an agreed timespan that was practically concurrent.

We proposed also that this would include agreed provisions for the transfer of technology so that the existing advantage of certain industrial states would be equalized over a period of time.

We have also taken into account the views that have been expressed by some delegates that it might be premature to establish a permanent regime for the deep seabeds, for the exploitation of the deep seabeds, at the beginning of a process of technology and to freeze it for an indefinite period.

For this reason we have proposed today that there could be periodic review conferences at intervals to be negotiated-for example, 25 years—in which the methods by which mining in the deep seabeds takes place and the apportionment between various sectors could be periodically reexamined.

The United States has made its proposals, which represent significant restrictions on our freedom of action, for the sake of international peace and international harmony and for the purpose of demonstrating that in this new area of mankind's activities we will make every effort to avoid the sort of rivalries that characterized colonial exploitations of the 19th century.

But there are limits beyond which no American leader can go. And if those limits are attempted to be exceeded, then we will find ourselves in the regrettable and tragic situation where at sea-just as previously on land-unilateralism will reign supreme.

We in the United States would not, in the short term, have any disadvantages from this-quite the contrary. But we are part of mankind, and we believe that an opportunity would be lost that may not come again.

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Dept. of State Bulletin, Vol. LXXV, No. 1944, Sept. 27, 1976, pp. 397-399.

§ 6 Straits

Regime of Transit Passage The straits articles set forth in the revised single negotiating text (RSNT) submitted by the Chairman of the Second Committee at the fourth session of the Third U.N. Conference on the Law of the Sea, March 15-May 7, 1976, provide for the regime of transit passage considered by the United States to be an essential element in the adoption of a 12-mile maximum breadth of the territorial seas. U.S. delegations to the 1976 sessions of the Conference reported general agreement among states on the subject, although noting that a small number of states sought changes, varying according to their geographical location and configuration.

Ch. 2 of the Second Committee's text, entitled "Straits used for international .navigation,” follows:

SECTION 1. GENERAL

Article 33
Juridical status of waters forming straits used for

international navigation 1. The régime of passage through straits used for international navigation established in this chapter shall not in other respects affect the status of the waters forming such straits nor the exercise by the states bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil.

2. The sovereignty or jurisdiction of the states bordering the straits is exercised subject to this chapter and to other rules of international law.

Article 34

Scope of this Chapter Nothing in this chapter shall affect:

(a) Any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with article 6 has the effect of enclosing as internal waters areas which had not previously been considered as such;

(b) The status of the waters beyond the territorial seas of states bordering straits as exclusive economic zones or high seas, or

(c) The legal régime in straits in which passage is regulated in whole or in part by longstanding international conventions in force specifically relating to such straits.

Article 35
High seas routes or routes through exclusive economic zones

through straits used for international navigation This chapter does not apply to a strait used for international navigation if a high seas route or a route through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics exists through the strait.

SECTION 2. TRANSIT PASSAGE

Article 36

Scope of this Section This section applies to straits which are used for international navigation between one area of the high seas or an exclusive economic zone and another area of the high seas or an exclusive economic zone.

Article 37

Right of transit passage 1. In straits referred to in article 36, all ships and aircraft enjoy the right of transit passage, which shall not be impeded, except that if the strait is formed by an island of a state bordering the strait and its mainland, transit passage shall not apply if a high seas route or a route in an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics exists seaward of the island.

2. Transit passage is the exercise in accordance with this chapter of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one area of the high seas or an exclusive economic zone and another area of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a state bordering the strait, subject to conditions of entry to that state.

3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of the present convention.

Article 38 Duties of ships and aircraft during their passage 1. Ships and aircraft, while exercising the right of transit passage, shall: (a) Proceed without delay through or over the strait;

(b) Refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of states bordering straits, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(c) Refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress;

(d) Comply with other relevant provisions of this chapter. 2. Ships in transit shall: (a) Comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea;

(b) Comply with generally accepted international regulations, procedures and practices for the prevention and control of pollution from ships.

3. Aircraft in transit shall:

(a) Observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation;

(b) At all times monitor the radio frequency assigned by the appropriate internationally designated air traffic control authority or the appropriate international distress radio frequency.

Article 39
Sea lanes and traffic separation schemes in straits used

for international navigation 1. In conformity with this chapter, states bordering straits may designate sea lanes and prescribe traffic separation schemes for navigation in straits where necessary to promote the safe passage of ships.

2. Such states may, when circumstances require, and after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by them.

3. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.

4. Before designating or substituting sea lanes or prescribing or substituting traffic separation schemes, states bordering straits shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the states bordering the straits, after which the states may designate, prescribe or substitute them.

5. In respect of a strait where sea lanes or traffic separation schemes are proposed through the waters of two or more states bordering the strait, the states concerned shall cooperate in formulating proposals in consultation with the organization.

6. States bordering straits shall clearly indicate all sea lanes and traffic separation schemes designated or prescribed by them on charts to which due publicity shall be given.

7. Ships in transit shall respect applicable sea lanes and traffic separation schemes established in accordance with this article.

Article 40
Laws and regulations of states bordering straits relating to

transit passage 1. Subject to the provisions of this section, states bordering straits may make laws and regulations relating to transit passage through straits, in respect of all or any of the following:

(a) The safety of navigation and the regulation of marine traffic, as provided in article 39;

(b) The prevention of pollution by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait;

(c) With respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear;

(d) The taking on board or putting overboard of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary regulations of states bordering straits.

2. Such laws and regulations shall not discriminate in form or fact amongst foreign ships, nor in their application have the practical effect of denying, hampering or impairing the right of transit passage as defined in this section.

3. States bordering straits shall give due publicity to all such laws and regulations.

4. Foreign ships exercising the right of transit passage shall comply with such laws and regulations.

5. The flag state of a ship or aircraft entitled to sovereign immunity which acts in a manner contrary to such laws and regulations or other provisions of this chapter shall bear international responsibility for any loss or damage which results to states bordering straits.

Article 41
Navigation and safety aids and other improvements and the

prevention and control of pollution
User states and states bordering a strait should by agreement cooperate:

(a) In the establishment and maintenance in a strait of necessary navigation and safety aids or other improvements in aid of international navigation; and

(b) For the prevention and control of pollution from ships.

Article 42

Duties of states bordering straits States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which it has knowledge. There shall be no suspension of transit passage.

SECTION 3. INNOCENT PASSAGE

Article 43

Innocent passage 1. The régime of innocent passage, in accordance with section 3 of Chapter 1, shall apply in straits used for international navigation:

(a) Excluded under paragraph 1 of article 37, from the application of the regime of transit passage; or

(b) Between one area of the high seas or an exclusive economic zone and the territorial sea of a foreign state.

2. There shall be no suspension of innocent passage through such straits. U.N. Doc. A/CONF. 62/WP.8/Rev. 1, Part II, May 6, 1976, pp. 21-26.

§ 7 Canals

Panama Canal The Governments of the Republic of Panama and the United States presented a joint report concerning treaty negotiations on the Panama Canal to the Sixth General Assembly of the Organization of American States, at Santiago, on June 9, 1976. The text of the joint report follows:

For the past twelve years, with the support of the OAS, Panama and the United States have maintained an active negotiating process with respect to the new regime for the Panama Canal. By virtue of the Joint Declaration of April 3, 1964, both countries pledged their word to work out a new treaty-a treaty new not only in its date of entry into force, but also in the mentality which it will reflect; that is, it will be in accord with the evolution experienced by the international community.

We are negotiating because both countries feel the need to build a new relationship which gives full regard to the aspirations of the Panamanian people, the interests of both nations and the principles and objectives of the Charter of the UN. And we are negotiating in deference to the unanimous views of our sister republics in the Western Hemisphere.

We are working on the basis that every negotiation concerning an old problem is a transaction towards new formulas of justice; and that progress can only be achieved when a spirit of compromise between the parties exists as a result of their understanding of new realities and, above all, when they seek a balancing of interests within a reasonable period of time.

The negotiating process has confirmed the dedication of both parties to the eight principles agreed on by their authorized representatives on February 7, 1974. The two countries reported to this Assembly last year that significant progress had been made in this process of balancing the interests of both parties in accordance with the eight principles. We are pleased to report that during the

year the parties have made further significant progress on the highly complex issues before them.

Differences remain between the two parties on important issues—the period of duration of the new treaty and arrangements in the land and water areas comprising the Panama Canal Zone.

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