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659

B. The Nixon Proposal The U.S. Draft Convention

1. Introduction
2. Trusteeship Zone Concept
3. Non-Mineral Uses
4. The International Seabed Resources Authority
5. Reappraisal and Adjustment

659 663 668

671 674

675

C. Future Developments

1. Conference on the Law of the Sea
2. Convention Provisions

675 676

III. Conclusion

680

IV. Epilogue

682

* An expanded version of this article and other materials will be published in 1972 by Praeger Publishers of New York under the title Marine Resources Policy: An International Analysis.

** A. B. Univ. Kansas, 1949; J. D. Univ. Michigan, 1952, Member of the Bar of the State of California; Chairman, California Advisory Commission on Marine and Coastal Resources; Member, U.S. Advisory Committee on the Law of the Sea.

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I. Introduction

In historical perspective the United States clearly appears as a leader, albeit a somethat inconsistent one, of recent world oceans policy. The 1945 Truman Proclamation on the Continental Shelf was a landmark proclamation in asserting and establishing a right of appropriation to seabed resources beyond a nation's territorial

1 The Proclamation expressed the view that "the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just” and proclaimed

"... the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States [and] subject to its jurisdiction and control."

Proclamation No. 2667, 3 C.F.R. 67, at p. 68 (1943-1948 Comp.). At the same time President Truman issued the Continental Shelf Proclamation he also issued the proclamation entitled Policy of the United States with Respect to Coastal Fisheries and Certain Areas of the High Seas of which the principal premises were:

"Fishery resources have a special importance to coastal communities as a source of livelihood and to the nation as a food and industrial resource;

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“The progressive development of new methods and techniques contributes to intensified fishing over wide sea areas and in certain cases seriously threatens fisheries with depletion; [and]

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"There is an urgent need to protect coastal fishery resources from destructive exploitation, having due regard to conditions peculiar to each region and situation and to the special rights and equities of the coastal State and of any other State which may have established a legitimate

interest therein" Proclamation No. 2668, 10 Fed. Reg. 12,304, 3 C.F.R., 1943-1948 Comp., pp. 67, 68 (1945) The Proclamation then asserted that:

"[T]he United States regards it as proper to establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and maintained on a substantial scale.

“The right of any State to establish conservation zones off its shores in accordance with the above principles is conceded, provided that corresponding recognition is given to any fishing interests of nationals of the United States which may exist in such areas. The character as high seas of the areas in which such conservation zones are established and the right to their free and unimpeded navigation are in no way

thus affected." Ibid. See contemporaneous Executive Order providing for the Establishment

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sea ? and served as the precedent for the many subsequent national

2 assertions of jurisdiction, as well as the concept of the 1958 Geneva Convention on the Continental Shelf. The lasting impact of this imaginative, and then unilateral, national act was reflected in the 1969 decision in the North Sea Continental Shelf case before the International Court of Justice in which it was noted that the Proclamation served as "the starting point of the positive law on the subject.” 5 So, too, the United States by its enactment of the 1953 Outer Continental Shelf Lands Act authorizing the development in minerals underlying “all submerged lands ... of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control"? and its willingness to apply the Act to remote sections of the continental shelf, even slope, provided an example of exploitive quest that was followed with alacrity elsewhere. It then appears that its own introspection of the conse

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of Fishery Conservation Zones No. 9634, Sept. 28, 1945, 10 Fed. Reg. 12,305; 3 C.F.R., 1943-1948 Comp., p. 437.

While the proposed conservation zones have never been created, the proclamation nonetheless stands as clear evidence of a strong history of U.S. interest in the protection of domestic coastal fisheries from foreign fleets. For a current and excellent examination of the development of U.S. policy in this area see Allen, Law, Fish and Policy, (1971), 5 Int'l Lawyer, at p. 621, 630. See also J. Bingham, Report on the International Law of the Pacific Coastal Fisheries, p. 5 (1938); Loring, infra, n. 91, at pp. 397 et seq. The Truman Fisheries Proclamation provided clear precedent for the concept of the succeeding claims of Latin American nations. Id., at p. 399. See Lecture by Ambassador Alfonso Arias-Schreiber of Peru to National Defense College of Canada on “Foundations of the Marine Sovereignty of Peru," pp. 4 et seq. (Lima, April 9, 1970); supra, n. 91.

2 See Krueger, The Background of the Doctrine of the Continental Shelf and the Outer Continental Shelf Lands Act, (1970), 10 Nat. Res. J. 442, at p. 464.

3 Id., at p. 471. 4 [1969] I.C.J. 3. 5 [1969] I.C.J. 3, at p. 33. See Krueger, supra, n. 2, at pp. 481, et seq. 643 U.S.C. SS 1331-43 (1964). 743 U.S.C. § 1332(a) (1964). See Krueger, supra, note 2, at pp. 466, et seq.

8 Commencing in 1961 the Department of the Interior has issued leases under the Outer Continental Shelf Lands Act covering areas 40 miles offshore and in waters as deep as 4,00 feet and 26 miles offshore and in waters from 1,200 to 1,800 feet in depth. In addition the Secretaries of the Interior and the Army asserted jurisdiction under the Act over an area approximately 120 miles off Southern California which is separated from the coastline by waters as deep as 6,000 feet. Lastly, the Secretary of the Interior has issued exploratory permits under the Act to conduct core drilling in the Gulf of Mexico in waters as deep as 3,500 feet and on the Atlantic seaboard for waters as deep as 5,000 feet and lying as far as 250-300 miles from the coast. Krueger, supra, n. 2, at pp. 478-479.

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quences of this type of global activity led to a reconsideration of its own and world oceans policy.

President Johnson in 1966 made his much quoted statement that:

under no circumstances must we ever allow the prospects of rich harvest and mineral wealth to create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and to hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings.

The same year the Marine Resources and Engineering Development Act was adopted which required the President with the advice and assistance of the newly created Council on Marine Resources and Engineering Development to undertake a broad scale review of the marine science activities of the United States, including the duty to:

undertake a comprehensive study ... of the legal problems arising out of the management, use, development, recovery, and control of the

resources of the marine environment ...10 The Act also created a Commission on Marine Science, Engineering and Resources (“Marine Sciences Commission") which was required to:

make a comprehensive investigation and study of all aspects of marine science in order to recommend an overall plan for an adequate national oceanographic program that will meet the present and future national needs. 11

It was not, however, the United States but the smaller and developing nations led by Malta that provided the impetus for the current reexamination of global policy regarding the oceans, indeed the entire marine environment. In 1967 the Mission of Malta to the United Nations proposed a resolution which would call for a conference for the drafting of a treaty which would reserve the seabed and ocean floor "beyond limits of present national jurisdiction" as a "common heritage of mankind" and provide for their "economic exploitation ... with the aim of safeguarding the interests of mankind (and using] the net financial benefits derived [therefrom] to promote the development of poor countries”. 12 This highly controversial proposal found strong support from a number of the smaller and lesser developed countries in the United

9 Comments made by the President at the commissioning of the new research ship, The Oceanographer, on July 13, 1966.

10 33 U.S.C. § 1103 (1966).
11 33 U.S.C. § 1104(b) (1966).
12 U.N. Doc. A/6695, dated August 18, 1967.

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Nations 13 and led to a resolution of the 1967 United Nations General Assembly creating an Ad Hoc Committee to Study Peaceful Uses of the Sea-Bed and Ocean Floor Beyond Limits of National Jurisdiction.14 This Committee, on which both the Soviet Union and the United States were represented, was given a broad mandate to study the entire international organization with respect to the seas." During the course of its work in 1968, the United States expressed the view that there should be "an internationally agreed precise boundary for the deep ocean floor" and that no nation should “claim or exercise sovereignty" over it.18

13 It also found a substantial amount of support in the United States, notable in resolution proposed by Senator Pell that included its basic principles. S. Res. 172, 186, 90th Cong. Ist Sess. (1967). See Senate Comm. on For. Rel. Report on Governing the Use of Ocean Space, 90th Cong., 1st Sess. (1967) pp. 1-7.

14 22 U.N. GAOR at U.N. Doc. A/2340 (1967).

15 The Ad Hoc Committee was requested to cooperate with the Secretary. General in the preparation of a study with the twenty-third (1968) session of the U.N. General Assembly which would include: “(1)'a survey of the past and present activities of the United Nations, the specialized agencies, the IAEA (International Atomic Energy Agency) and other intergovernmental bodies with regard to the sea-bed and the ocean floor, and of existing international agreements concerning these areas; (2) an account of the scientific, technical, economic, legal and other aspects of this item; (3) an indication regarding practical means to promote international co-operation in the exploration, conservation and use of the sea-bed and the ocean floor, and the subsoil thereof, as contemplated in the title of the item, and of their resources, having regard to the views expressed and the suggestions put forward by Member States ..." Id. 16 U.N. Doc. A/AC.135/25 (June 28, 1968); U.N. Doc. A/AC.135/L.1, Annex III, at p. 4 (July 16, 1968). The proposal also stated that there should be established "as soon as practicable, internationally agreed arrangements governing the exploitation of resources of the deep ocean floor" which shall included provision for:

(a) the orderly development of resources of the deep ocean floor in a manner reflecting the interest of the international community in the development of these resources;

(b) conditions conducive to the making of investments necessary for the exploration and exploitation of resources of the deep ocean floor;

(c) dedication as feasible and practicable of a portion of the value of the resources recovered from the deep ocean floor to international community purposes; and

(d) accommodation among the commercial and other uses of the deep ocean floor and marine environment." Id., at para. 2.

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