No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 683 We doubt whether any State would wish to subject its sea communications or defense preparedness to the consent or political goodwill of another State. Accordingly, it should be apparent that new rules of international law that might have the effect of reducing mobility cannot be expected to enhance international stability.284 The Draft Articles, supplementing the U.S. Draft Seabeds Convention, would establish the following: 1. A twelve mile territorial sea subject to a right of free transit in straits as "an inherent and inseparable adjunct of the freedoms of navigation and overflight on the high seas themselves".285 The proposal, however, left (albeit somewhat ambiguously) the door open for pollution and environmental control by the coastal state: Subject only to the right of free transit, territorial waters in international straits would retain their national character in each and every respect. The new right of free transit would only apply in international straits, using the definition that was adopted at the 1958 Law of the Sea Conference; it would not apply to other territorial or internal waters. Moreover, the right is a narrow one merely one of transiting the strait, not of conducting any other activities. Should a vessel conduct any other activities that are in violation of coastal State laws and regulations, it should be exceeding the scope of its right, and would be subject to appropriate enforcement action by the coastal State. When we refer to enforcement of coastal State laws and regulations, we intend to include reasonable traffic safety regulations both for vessels and aircraft.286 2. An international or regional régime for the regulation of living resources of the high seas "designed to maintain the maximum sustainable yield or restore it as soon as practicable, taking into account relevant environmental and economic factors.287 Allocation of the fishery would be without discrimination, except that "[t]he percentage of the allowable catch of a stock in any area of the high seas adjacent to a coastal State that can be harvested by that State shall be allocated annually to it".288 There are two important exceptions to this rule, however: 284 Id., at p. 2. Emphasis added. 285 Id., at p. 3. 286 Id., at p. 4. Emphasis added. 287 Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries submitted by the United States, August 3, 1971, art. III, para. 2A, supra, n. 283, at pp. 6 et seq. 288 Draft Articles, art. III, para 2C, supra, n. 287, at p. 4. This also applies to anadromous fish to the extent that they "can be harvested by the State in whose water it spawns". Id., para. 2D. The form of fishery allocation and regulation proposed is quite clearly directed to species. See statement of Donald L. McKernan, infra, n. 295. The use of the concept of adjacency with 684 MCGILL LAW JOURNAL [Vol. 17 a) "The percentage of the allowable catch of a stock traditionally taken by the fishermen of other States shall not be allocated to the coastal State"; 289 and b) "[H]ighly migratory oceanic stock", e.g., tuna, "shall be regulated pursuant to agreement or consultation among the States concerned with the conservation and harvesting of the stock".290 3. A conceivably regional, but predictably national, régime for coastal fisheries or those that spawn in the water of that nation. Except in the case of a "highly migratory oceanic stock", a coastal State would be empowered to implement all of the proposed conservation provisions, if it has submitted to "all affected States its proposal for the establishment... of an international or regional fisheries organization..."; "[n]egotiations with other States affected have failed to produce, within four month, agreement on measures to be taken either with respect to the establishment of an organization or with respect to the fisheries problems involved"; and "[t]he coastal State has submitted to all affected States the available data supporting its measures and the reasons for its actions".291 It would appear predictable that “affected States" would be offered a proposal that would not inspire their acceptance.292 respect to coastal fisheries, however, could lend itself to the same type of disagreement which has typified the construction of the continental shelf set forth in the 1958 Geneva Convention. U.N. Doc. A/CONF.13/L.55 (1958), art. 1. Compare Oxman, The Preparation of Article 1 of the Convention of the Contimental Shelf, (1972), 3 Journ. Maritime Law and Commerce 245 and Stone, Legal Aspects of Marine Oil and Gas Operations, 15th Ann. Inst. on Mineral Law L.S.U. (1968), p. 31. See Krueger, supra, n. 2 at pp. 474-475. 289 Id., at art. III, para. 2C(1). 290 If an international or regional organization established standards for the taking of "a highly migratory oceanic stock", it would be controlling. Id., at art. III, para. 1, p. 3; III, para. 3A, p. 5. It is highly questionable, however, whether it will be practicable for such standards to be established in the near future. The international or regional organization must be one in which: "the coastal State and any other State whose nationals or vessels exploit or desire to exploit a regulated species have an equal right to participate without discrimination". Id., at art. III, para. 1, p. 3. Cf. infra, n. 292. 291 Draft Articles, Art. III, paras. 3A and B(1) (2) and (3) supra, n. 287, at pp. 5-6. Art. III, para. 3 also provides: "The implementing regulations of the coastal State may apply in any area of the high seas adjacent to its coast or, with respect to an anadromous stock that spawns in its fresh waters, throughout its migratory range." Id., at p. 6. 202 The history of the relations between the various foreign fishing nations and the nations whose coastal fisheries they have exploited has typically not been a happy one. See Loring supra, n. 91, at pp. 424 et seq.; Auguste, supra, No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 685 The U.S. Draft Articles also provided for the compulsory settlement of disputes and a number of procedural matters such as the form of inspection and arrest functions.293 Politically, however, perhaps the most important aspect of the document from a political standpoint was the quite clear indication of relative rigidity with respect to the concept of free transit and the attitude of accommodation with respect to the fisheries issue. Compare the following statements: [T]he first two Articles we are presenting, we believe, would together provide the necessary accomodation of the international and maritime interests in navigation and overflight that I have outlined. They constitute basic elements of the Oceans Policy announced by our President last year. I trust that the considerations I have discussed explain why my Government would be unable to conceive of a successful Law of the Sea Conference that did not accommodate the objectives of these Articles. * It should be clear from my remarks concerning fisheries that our consultations have indicated a need for further accommodation of coastal States by distant water fishing States. We have submitted our own draft in order to encourage consideration of a practical solution of the problem that avoids juridical absolutes, and that takes into full account the modern trend toward international and regional cooperation. We look forward to the submission by other States of fishery proposals designed to achieve a broad accommodation of interests, and pledge our sympathetic consideration of any such proposal that is formulated in a way that precludes the potential for encroachment on freedom of navigation and overflight beyond....294 The U.S. delegation appeared to be technically the best equipped and prepared to advise the U.N. Seabeds Committee on the technical aspects of matters at issue.295 While there were no members n. 95, at p. 264. The fact that the coastal State will be given regulatory power over coastal and anadromous fisheries, if an international or regional organization is not established, would in and of itself provide motivation to avoid agreement. 293 Draft Articles, art. III, para. 4, supra, n. 287, at pp. 6-7; Stevenson statement, supra, n. 283, at p. 8. 294 Stevenson statement, supra, n. 283, at pp. 5, 8. There would appear, therefore, to be some reason to believe that "a highly migratory oceanic stock", such as tuna, might well be also made the subject of coastal control if a critical tradeoff occurs. The majority of such stocks are caught within coastal areas and certainly the developing coastal States have the interest and are rapidly acquiring the technology to harvest them. See Loring, supra, n. 91, at p. 434 et seq. In the words of the Draft Articles, supra, art. III, paras. 2C, 3C, n. 288, they will shortly be in a position where such stocks "can be harvested" by them. 295 See List of Delegations for U.N. Seabeds Committee, U.N. Doc. A/AC. 138/INF. 5 (July 23, 1971); e.g., statements of Dr. Vincent E. McKelvey, Chief 686 MCGILL LAW JOURNAL [Vol. 17 of the private sector on the delegation,296 certainly the views of various interested groups within the United States and Canada were fully and fairly represented. An example was the advice to the U.N. Seabeds Commitee that the cost of developing deep ocean resources would make it clearly inappropriate for the proposed international agency to have the power to develop resources directly, a position popular with both the U.S. petroleum and mining interests. A U.S. representative stated: But while the organization we propose would have strong supervisory and regulatory powers, and would be authorized to issue licenses to private organizations and to organizations created by States or groups of States, it would not in itself have the power to undertake seabed exploration and exploitation. We do not believe that an international organization with monopolistic powers, including the power to undertake for itself exploration and exploitation, would be an efficient means of developing these resources or of generating revenues from their production. Such an arrangement would not achieve our basic objective of developing the greatest benefit for mankind. Nor would it provide the incentives to operators and financial institutions to make the investments necessary to undertake ocean mining ventures. 297 In most of the countries of the world, including the United States, the resource owner has the capability of developing the resource, if it wishes. The United States and its states have chosen to encourage private participation in resource development,298 although governmental resource development has occurred in the United States.299 In many other countries, however, the contracts negotiated with the resources developers are so detailed as to required development and other elements as to actually put the government "in the business".299 Examples of this would be the North Sea development contracts issued for petroleum by the Governments of Norway Geologist, U.S. Geological Survey, to Subcommittee I, U. N. Seabeds Committee, dated August 4, 1971, and Donald L. McKernan, Alternate U.S. Representative, to Subcommittee II, dated August 17, 1971, United States Mission Geneva Releases regarding, respectively, seabeds resources and fisheries resources. 296 See List supra, n. 295. A large number of U.S. nationals representing affected industry groups, particularly petroleum and fishery, were present and briefed by the U.S. Delegation. 297 Statement by Bernard H. Oxman to Subcommittee I, U.N. Seabeds Committee, dated August 18, 1971, United States Mission Geneva Release, p. 3. 298 See supra, n. 169. 299 See Long Beach Net Profits Contract, 2 Nossaman OCS Study, App. 12, p. 12-A-16 et seq., 12-A-156 et seq.; Krueger supra, n. 167 at pp. 789-790. No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 687 and the United Kingdom.300 In the developed socialist countries, of course, it is customary for the sovereign to develop the resources.301 Developing countries typically do not, regardless of their political philosophy, because of the costs of operation which indicates quite accurately that this is an economic issue.302 As such, it should not be unacceptable to the United States, the U.S.S.R., or any developed power that the proposed international agency have the power of developing resources under its jurisdiction. With due regard to the economic realties involved, it will probably be many years before the proposed international agency has the financial ability to exercise this power, but conceptually it should have it.303 300 See 2 Nossaman OCS Study, App. C at pp. 12-C-59 (Norway), 12-C-75 (United Kingdom). 301 An example is the Soviet Union which has a large and technologically advanced petroleum industry administered by the government. Note, however, that for grounds apparently arising out of Marxist theory, it would not wish to have self-directed development by the proposed international oceans agency and the potential competition which could occur from it. See supra, n. 171. Cf. Venezuela which since 1956 has had a governmental corporation, Corporacion Venezolana de Petroleo ("C.V.P.") with the power to develop petroleum either through a "mixed company" in which it and a private company are participants or at its option by itself. See 2 Nossaman OCS Study, App. C at p. 12-C-90 et seq. 302 This is particularly true of offshore mineral development in which the "start-up" costs, particularly for petroleum, can be enormous. See Krueger, supra, n. 167 at pp. 777, 785 and 786 et seq.; 1 Nossaman OCS Study at p. 606. 303 If a resource owner, such as the proposed international oceans agency, has discretion over work and development requirements, as it should have, a license for the exploitation of the resource can have a broad range of terms depending largely on the economic potential of the resource. The provisions of the U.S. draft convention, for example, are broad enough to accommodate virtually any form of lease, operating agreement, joint venture agreement or concession known to the U.S. petroleum and mining industries. See Draft Convention, art. 18, App. A, para. 7. See supra, nn. 299, 302. It is, therefore, of little consequence whether the agency is permitted to directly develop the resource itself and it would seem to serve little purpose to emphasize the economic incompetence of the developing countries or the proposed international agency to undertake this work. Cf. Oxman statement supra, n. 297 at p. 2. It is noteworthy that the Working paper on the regime for the sea-bed and ocean floor and its sub-soil beyond the limits of national jurisdiction U.N. Doc. A/AC.138/49, introduced by Trinidad and Tobago on August 10, 1971, would effect in the words of the sponsors: "In keeping with the principle of the common heritage, the co-sponsors of the Working Paper contained in document A/AC.138/49 envisage the establishment of a system in which mankind, in the capacity of owner, would participate directly in the administration and management of the |