616 MCGILL LAW JOURNAL [Vol. 17 It calls for the creation of an International Seabed Resource Authority with seabed resource jurisdiction over the entirety of the International Seabed Area 40 and with the authority to use revenues therefrom "for the benefit of all mankind, particularly to promote the economic advancement of developing States, Parties to this Convention, irrespective of their geographic location".41 Administratively, the Authority would have an International Seabed Boundary Review Commission to review and approve boundaries proposed by each coastal state, an Operations Commission to issue licenses for seabed mineral exploration and shelf. See Krueger, supra, n. 2 at pp. 452, 478 and 481 et seq.; Supplemental Report National Petroleum Council, Petroleum Resources Under the Ocean Floor, p. 15 et seq., March, 1971. It appears to have been for this reason that the drafters of the Draft Convention added the following caveat to Article 2: (NOTE: The preceding Article is not intended to imply that States do not currently have rights under, or consistent with, the 1958 Geneva Convention on the Continental Shelf.) 40 Draft Convention, 19(2) and 23, arts. 13(1). The Draft Convention authorizes the Authority to license only "mineral deposits" for "exploration and exploitation" (Art. 13[1]). The fact that it has this power and general regulatory power for the protection of the marine environment (Art. 23), however, would clearly seem to give it preemptive authority over the entirety of the international seabed area and, to a substantial extent, the waters and resources above. While this element does not appear to have been stressed by U.S. Department of State representatives in domestic discussions, U.S. Ambassador Christopher H. Phillips in speaking to the U.N. Seabeds Committee stated as follows: "A fourth point raised by some other delegations is, why is the machinery called "International Seabed Resources Authority" rather than "International Seabed Authority". It is true that the Authority's function is broader than resources management but since its functions are primarily concerned with resources this name seemed more appropriate to us." (Emphasis added). United States Mission Press Release, Geneva, August 28, 1970. See also Statement by John R. Stevenson to the U.N. Seabeds Committee, United States Mission Press Release, Geneva, August 20, 1970. Cf. Auburn, infra, n. 246 at p. 179; Jennings, infra, n. 246 at p. 448. 41 Draft Convention, art. 5(1). The Draft Convention also requires that a portion of the revenues be used "...to promote efficient, safe and economic exploitation of mineral resources of the seabed; to promote research on means to protect the marine environment; to advance other international efforts designed to promote safe and efficient use of the marine environment; and to provide technical assistance to Contracting Parties or their nationals" (Art. 5(2)). 42 Id., arts. 1(4), 45. No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 43 617 exploitation 13 and supervise operations, a Rules and Recommended Practices Commission 44 to propose annexes to the Convention and a Secretariat comprised of a Secretary-General and staff.45 Politically, the Authority would be directed by an Assembly consisting of all contracting parties and a Council consisting of "the six most industrially advanced Contracting Parties" and 18 others elected by the Assembly, of which at least 12 would be required to represent developing countries. Except for its elective powers and its authority to suggest and recommend, the Assembly would have no real responsibilities and the Council itself would not be empowered to act without a majority of both the industrially advanced parties and the 18 others." The structure proposed in the Draft Convention also included a Tribunal to determine disputes and advise on legal matters.48 The Draft Convention would give to the coastal state administrative control over the issuance of licenses and operations in the "continental margins" which were indicated as extending probably to the foot of continental rise and thus encompassing all lands over which a coastal state could assert jurisdiction and control under the doctrine of the continental shelf or the Convention on the Continental Shelf. Within this "International Trusteeship Area", the coastal state would be authorized to issue "mineral exploration and exploitation licenses" (and keep 33% % to 50% of revenues received therefrom), determine "the allowable catch of the living resources of the seabed", and prescribe operating and conservation measures with respect thereto so long as the same would be "higher than or in addition to those required under this Convention".50 43 Id., art. 44. 44 Id., art. 43. 46 Id., arts. 35, 36. 47 Id., art. 38. This provision drew fire from a number of the developing countries and was the subject of a great deal of defensive explanation at Geneva in August of 1970. See Ambassador Phillips, supra, n. 40. 48 Id., arts. 46-60. 49 Id., art. 26(1). The seaward boundary is stated as extending "beyond the base of the continental slope" down to a fixed but yet unspecified gradient. See Krueger, supra, n. 2 at pp. 471, 478. 50 Id., art. 27. The ambiguous character of the "trusteeship" zone concept led to criticism within the U.N. Seabeds Committee, largely by representatives of developing countries, and to some rather protracted explanations of its reason for being (Statement by John R. Stevenson, United States Mission Press Release, Geneva, August 27, 1950). See infra, n. 55. 618 MCGILL LAW JOURNAL The Convention specifically noted that: [Vol. 17 The United States has simultaneously proposed an international Convention which would, inter alia, fix the boundary between the territorial sea and the high seas at a maximum distance of 12 nautical miles from the coast.5 51 There was a great deal of domestic controversy regarding the Draft Convention both before and after its presentation to the U.N. Seabeds Committee.52 It appears for this reason to have been ex 51 Footnote, art. 1, para. 2. 52 In a letter from the chairman and ranking minority member of the U.S. Senate Committee on Interior and Insular Affairs to Secretary of State, William P. Rogers, dated July 21, 1970, doubt was expressed that Congress would ever agree to the financial arrangements contemplated for the coastal state in the international trusteeship area and concern was expressed over the "elaborate labyrinth of legal rules and procedures" and "an international organization potentially so vast as to make the size of the United Nations pale by comparison." The Senators concluded that it was "highly unlikely that other coastal states would be willing to agree to the terms of such a treaty" and stated their opinion that "to table such a complicated and unwieldy document... at Geneva would seem certain to invite bitter criticism of and embarrassment to the United States Government." After extensive hearings the Special Subcommittee on Outer Continental Shelf of the U.S. Senate Committee on Interior and Insular Affairs reported on December 21, 1970, that it generally supported the Nixon proposal and then stated: "Our only areas of initial difference with the President are his suggestions that the United States should renounce its sovereign rights to its continental margin in return for similar, but limited rights in an area designated as a trusteeship zone, and his suggestion that leases applying to areas of the Continental Shelf beyond the 200-meter isobath be issued subject to an international regime to be agreed upon. Regarding the proposal suggesting renunciation of the heart of our sovereign rights, we have three objections: (1) The offer to renounce our sovereign rights beyond the 200-meter isobath could cast a cloud on our present title to the resources of our continental margin; (2) The renunciation of our sovereign rights to the resources of our continental margin beyond the 200-meter isobath in no way guarantees the willingness of the international community to re-delegate functionally to us the same rights we would renounce, and (3) Our sovereign rights to explore and exploit our continental margin, although reaffirmed by the 1958 Geneva Shelf Convention, are nevertheless inherent rights which have vested by virtue of the natural extension beneath the sea of our sovereign land territory. Our sovereign rights to the resources of this area are not dependent upon the acquiescence and approval of the international community. To renounce these inherent No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 619 pressly designated as "a working paper for discussion purposes [which does] not necessarily represent the definitive views of the United States Government".53 While the United States received some encouragement for its voluminous product,54 most of the expressed reaction ranged from the mistrust of some of the developing countries to the somewhat studied indifference of the developed 55 rights and to ask that they be returned in part to us merely requests the international community to give us that which, ipso facto and ab initio, is rightfully ours to begin with." Report on Outer Continental Shelf, at pp. 29-30. "The President did not provide any detailed suggestions as to the type of machinery which could best facilitate such a result. The draft working paper, on the other hand, proposed the creation of an immense international agency and very complicated rules related to deep seabed resource exploration and exploitation. Such an arrangement would seem to encourage such bureaucratic and pseudo-legalistic obstructions that rational and equitable use of the wealth of the deep ocean floor would be deterred rather than encouraged. None of the six alternative proposals printed as appendices to this report contain such elaborate proposals. We do not suggest, however, that the U.S. draft working paper is without merit. It contains some articles worthy of serious consideration. It also contains unacceptable provisions. It is a document which will require further study by the Committee on Interior and Insular Affairs, by the executive departments, and by the concerned public. The Committee on Interior and Insular Affairs shall resume study of the draft working paper during the next session of Congress." Id., at pp. 32-33. See also Hearings of such Special Subcommittee on Outer Continental Shelf dated December, 1966, January 22, 1970 and March 4, 1970, regarding "Issues Related to the Establishment of Seaward Boundary of the United States Outer Continental Shelf." 53 The caveat was on the face of the Draft Convention; it also stated that the Draft Convention and its appendices "raise a number of questions with respect to which further detailed study is clearly necessary." 54 India "agreed with many of the basic principles contained in the draft Convention," but objected to the concept of a "trusteeship" area. Prov. Sum. Rec. 34 mtg. A/AC.138/SR.34, at p. 14, (Aug. 13, 1970). 55 E.g.: Malaysia: "The United States draft convention, for all its nine chapters, 78 articles and 5 appendices, in the final analysis was over-elaborate and misconceived; one could not see the wood for the trees." Prov. Sum. Rec. 33 mtg. A/AC.138/SR.33, at pp. 2-3 (Aug. 11, 1970). Cameroon: "[T]he International Seabed Resource Authority proposed by the United States delegation would only be acceptable if it formed an integral part of the organization and, as such, was responsible for the supervision, regulation, co-ordination and control of all exploration and exploitation activities... The United States' proposals concentrated too much on materialistic aspects and too little on the ocean floor's potentiality for peace." Id., at p. 8. Kenya: "[T]he 200 metres limit suggested by the United States would 620 MCGILL LAW JOURNAL [Vol. 17 countries.56 The Draft Convention and the issues which it raised were discussed at length by the Seabeds Committee, but it adjourned in late August of 1970 without reaching agreement even on the principles which should obtain with respect to ocean areas beyond limits of national jurisdiction. discriminate against countries, such as Kenya, which had a narrow continental shelf. The United States proposal to set up a trusteeship area beyond the 200 metres limit, to include the continental slope, was also unacceptable to his delegation, as that, rather than the deep sea-bed, was precisely the area rich in petroleum, natural gas, manganese nodules, and so on." Prov. Sum. Rec. 35 mtg. A/AC138/SR.35 at p. 3. (Aug. 13, 1970). Liberia: “...had doubts about the depth of 200 metres proposed for the limit of sea-bed area under the international regime. His Government might have objections to make on the granting of trusteeship of coastal States over any area of the sea-bed or ocean floor beyond the limits of national jurisriction, whatever limits might eventually be set to that jurisdiction." Id., at p. 10. Chile: "The draft, however, did not fit in with the concept of the common heritage of mankind as defined by the developing countries... Furthermore, in its provisions on limits, the draft discriminated against those countries which did not have a geographical or physical continental shelf, thereby departing from the criteria laid down by international law during the past twenty years." Prov. Sum. Rec. 30 mtg. A/AC.138/SR. 30 at p. 2 (Aug. 5, 1970). 56 E.g.: United Kingdom: “While it was not at present prepared to suggest any precise formula or figure, his Government had been inclined to favour a simpler division of the sea-bed between national areas and areas subject to the international regime, and a reasonably deep limit to national jurisdiction or a combination of depth and width, to give a broad deep limit. It would also be prepared, however, to consider the United States proposal for a shallow limit to national jurisdiction and a trusteeship zone beyond that limit, if that idea appealed generally to members of the Committee." Prov. Sum. Rec. 30 mtg. A/AC.138/SR.30 at pp. 8-9 (Aug. 5, 1970). U.S.S.R.: "Another important question was that of defining the limits of national jurisdiction of coastal states. Some delegations had stated that the problem could only be solved by revising existing regimes applying to the open sea, territorial waters, the continental shelf and so forth. However, the proposal that the 1958 Geneva Conventions should be revised had been opposed by a number of delegations, including the Soviet delegation, which believed that the foundations on which international co-operation in the matter now rested should be strengthened rather than undermined... The establishment of international machinery, which required very careful study, must be related to the conclusion of an international agreement on a regime for the exploitation of marine resources. It would be a serious mistake if such machinery were to be set up in the interests of an international capitalist consortium rather than of all States." Id., at pp. 4-5. Australia: "A novel feature of the United States paper was the concept of an intermediate trusteeship zone together with renunciation of national |