No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 691 nada 322 and Malta.323 All of the proposals fall short of establishing a comprehensive resources management system for the oceans.324 Probably the Malta Draft Ocean Space Treaty comes the closest in providing for the management of both living and non-living resources of the "national ocean space" extending 200 miles adjacent to a nation's coast 325 and in the "international ocean space" beyond.326 Conceptually, however, it is defective in failing to provide means to enforce established international standards of environmental quality and resource protection in the national zone.327 It, too, has its primary emphasis on the exploitation of natural resources.328 While a great deal of work remains to be done before conceptually sound draft articles are ready, nonetheless a great deal of progress has been made. Most of these proposals accepted the Assembly-Council-Secretariat concept of the U.S. Draft Convention 329 322 The Canadian working paper on the seabed regime and machinery was essentially described by its drafters as proposing a resource management system: the large amounts "The resource management system must be stable of investment capital needed will not be forthcoming without assurance of an impartial and objective regulatory and administrative climate within which to operate. The system must, however, have enough flexibility to take into account new scientific and technological advances and problems arising therefrom, such as marine pollution. The machinery must be effective, and thus have the necessary powers to deal with the States and other powerful entities engaged in exploitation. This entire field is one as yet only in its formative stages. It would therefore appear desirable to design machinery that would reflect these developments, with transitional skeletal machinery to begin with that could evolve along with the progress of development. These then are the concepts which underlie the philosophy of the Canadian working paper development, equity, stability, flexibility, and effectiveness." Id., at p. 7. 323 Draft Ocean Space Treaty A/AC..138/53, August 23, 1971. 324 See supra, n. 96 et seq. 325 Draft Ocean Space Treaty supra, n. 324, art. 36. 326 Ibid.; id., art. 66 et seq. 327 In the national ocean space there is only a duty of consultation and cooperation with other states and the proposed international agency "before the coastal state may undertake or permit activities in national ocean space that might substantially reduce the living resources of ocean space outside its jurisdiction". Id., art. 58, para. 1. 328 See supra, n. 181 et seq. 329 See supra, n. 45 et seq. 692 MCGILL LAW JOURNAL [Vol. 17 with the principal point of departure being whether the Council should be selected on a weighted basis, as favored by the developed nations,330 or be simply elected by the Assembly without classification, as favored by the developing nations.331 There also appeared to be consensus that the régime should be based upon the Declaration of Principles approved by the 1970 U.N. General Assembly and that the régime should be established by an international treaty of universal character.332 The proposals submitted contained widely divergent concepts of contiguous zones for resource purposes, but there appeared to be a strong area of agreement as to the need for establishing a balance between the interests of the international 330 See supra, n. 46. The Soviet proposal would provide for an executive board consisting of thirty States including five States from each of the following groups of countries: "(a) the socialist countries, (b) the countries of Asia, (c) the countries of Africa, (d) the countries of Latin America, (e) the western European and other countries not coming within the categories specified in sub-paragraph (a) to (d) of this paragraph; and (f) one land-locked country from each of the aforementioned groups of States." See supra, n. 304, art. 21, para. 1. The United Kingdom proposal stated: "[J]ust as it would be appropriate to give developing States a special position on any institutions of the Authority which might be set up for the purpose of distributing sea bed benefits, so it would be necessary to make special provision on the Council for those States with an established sea bed technology, who have a special contribution to make in organising sea bed activity and without whose support no international regime in this field would be viable. This could be done by designating as members of the Council a limited number of industrialised countries which, either directly or through commercial enterprises based on their territory, have or develop a substantial sea bed technology. An important criterion in establishing a country's claim to be a designated member of the Council might be the extent to which it has an established tradition and expertise in the transfer of technological skills and abilities to developing countries." Working Paper, supra, n. 316, para. 19. 331 The working paper introduced by Trinidad and Tobago provided for a Council of thirty-five members elected by the Assembly "from the lists prepared in accordance with Article... having due regard to the principle of equitable geographical representation". Trinidad and Tobago Working Paper supra, n. 303, art. 27. A similar provision was contained in the draft statute submitted by Tanzania. See supra, n. 319, art. 24. 332 Report of Subcommittee I supra, n. 303, at p. 9. No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 693 community and the coastal state and to provide means of communication between the proposed international agency and the coastal state.3 333 The Seabeds Committee also made substantial progress in preparing a list of subjects and issues relating to the law of the sea, as a prelude toward drafting treaty articles thereon.334 It also had extensive discussions regarding the preservation of the marine environment,335 although quite clearly the Committee was awaiting the outcome of the U.N. Conference on the Human Environment, scheduled for Stockholm in June, 1972, for guidelines as to its activities in this area. In terms of specifics it is difficult to say that the U.N. Seabeds Committee has made the type of progress in its preparatory work that will be necessary in order to effect a comprehensive law of the sea conference in 1973, as tentatively scheduled. On the other hand the August, 1971 meeting of the Seabeds Committee clearly appears to have been the first in which it or any of its predecessor committees faced the realities of the situation and commented directly and at many times quite knowledgeably on them. Progress was accordingly made toward establishing a consensus on a number of the issues to be discussed at the proposed law of the sea conference. As indicated above, the developed nations have shown a willingness to compromise their interest in establishing or maintaining narrow zones of national jurisdiction in order to retain rights of free transit over the oceans and major straits that would be engulfed by the imminent twelve-mile territorial sea rule, and proposed extensive resource contiguous zones.338 There have been indications that even this right of free transit may be modified to permit regulation by the coastal states or the proposed international agency at least for purposes of environmental protection.337 The 333 Id., at p. 10. 334 See Report of Subcommittee II, U.N. Press Release, SB/60, August 27, 1971, Geneva, 10 Int'l L. Materials, pp. 973, 978-979 (1971). The United Nations General Assembly in its twenty-sixth (1971) session adopted a resolution upon recommendation of the U.N. First Committee generally commenting favorably upon the progress of the U.N. Seabeds Committee toward the proposed law of the sea conference. See U.N. Doc. A/RES/2881 (Jan. 26, 1972), supra, n. 79. Aside from adding the People's Republic of China and four other new members to the Committee its only significant action on the subject was to authorize two 1972 sessions in March-April and July-August. Ibid. See Rep. 1st Com., U.N. Doc. A/8623 (Dec. 17, 1971). 335 Report of Subcommittee III, Id., at pp. 980-981. 336 See supra, nn. 294, 313. 337 See supra, n. 286. 694 MCGILL LAW JOURNAL [Vol. 17 United States has shown itself amenable to regulation by the coastal state over an unspecified but potentially large portion of the high seas adjacent to it for purposes of the allocation and conservation of living resources.338 The Soviet Union and other distant fishing nations have shown less accommodation on this point, but it is probable that agreement could be established on this point as well if consensus were reached on other major issues.3 339 For their own part, the developing coastal nations have given recognition that transportation in the oceans of the world is of universal benefit and should be maintained with, however, a desire for a broad zone of national jurisdiction for resource development and management.340 Within this zone they appear largely to be willing to recognize a right of free transit with a substantially more stringent view of the rights of the coastal state to regulate the nature and circumstances of the transit.341 The case of the developing coastal states was given noteworthy impetus by the People Republic of China in its first address to the General Assembly after its recent admission. It was there stated: The Chinese Government and peoples resolutely support the struggles initiated by Latin American countries and people to defend their rights over 200-nautical-mile territorial seas and to protect the resources of their respective countries. 342 338 See supra, nn. 287 et seq. 339 See supra, nn. 309 et seq.; Summary Records Subcommittee II, U.N. Doc. A/AC.138/SC.II/SR.4, July 23, 1971 et seq., passim. 340 See supra, nn. 91-93, 104. 341 See e.g., Draft Ocean Space Treaty supra, n. 323, art. 48; statement of the representative of Brazil, Prov. Sum. Rec., Subcommittee II, U.N. Doc. A/AC. 138/SC.II/SR.14 (August 18, 1971) p. 2; statement of the representative of Indonesia, Prov. Sum. Rec., Subcommittee II, U.N. Doc. A/AC.138/SC.II/SR. 12, (August 17, 1971) pp. 11-13; statement of the representative of Malaysia, Prov. Sum. Rec., Subcommittee II, U.N. Doc. A/AC.138/SC.II/SR.11 (August 13, 1971) pp. 2-3. Cf. statement of the representative of Italy, Prov. Sum. Rec., Subcommittee II, U.N. Doc. A/AC.138/SC.II/SR.15 (August 19, 1971) pp. 8-12. 342 New York Times, November 16, 1971 (“Text of China's Policy Statement in the U.N."). The statement also contained the following comments: "China is still an economically backward country as well as a developing country. Like the overwhelming majority of the Asian, African et LatinAmerican countries, China belongs to the Third World." "The Chinese Government and people resolutely support the struggles unfolded by the petroleum-exporting countries in Asia, Africa and Latin America as well as various regional and specialized organizations to protect their national rights and interests and oppose economic plunder." Ibid. 85-197 O-73-30 No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 695 The shift in the balance of power which accompanied the entry of China into the U.N. and which was further emphazised by the U.S. China discussions cannot but improve the political stature of the case of the developing coastal nations.343 There further seems to be consensus on the desirability of providing land-locked states with coastal access under terms that would make their entry to the exploitation of ocean resources competitive with those of coastal states, at least in the international area. 344 For their own part the land-locked and shelf-locked states appear to recognize that in order to establish such a régime it will be necessary that the coastal states be given quite broad contiguous zones for the purposes of resource conservation and development.345 Finally, it would be appropriate to offer some additional comments based upon personal observations of the U.N. Seabeds Committee at work in Geneva during August of 1971: 1. High seas fishery, including both coastal and migratory varieties, have been focused on as a part of the "common heritage of mankind". The desire of coastal states to control these living resources has become clearly evident in a number of suggestions by developing nations and some by developed for broad contiguous zones for resource management. The scientific and technical dis This position is consistent with that previously taken by the People's Republic. See supra, n. 92. Subsequently China in the U.N. Seabeds Committee, of which it was made a recent member (see supra, n. 79), attacked Japanese claims in the East China Sea with which the United States "collaborated" as "an attempt to further plunder China's coastal seabed resources". Los Angeles Times, March 3, 1972 ("Peking Sees U.S. — Japan Plot to Take Over Chinese Islands”). China further stated "it is within each country's sovereignty to decide the scope of its rights over territorial seas". Ibid. 343 See supra, nn. 91-93, 104. See also New York Times, October 26, 1971 ("U.S. is Defeated in Key U.N. Vote on China, 59-54"); Time Magazine, November 8, 1971, p. 26 et seq. ("China: A Stinging Victory"). 344 Most of the lists of subjects and issues submitted to Subcommittee II in one form or another articulated an interest in establishing access. See Report of Subcommittee II supra, n. 334, p. 979. The working paper submitted by Norway on this subject, for example, contained in its list of issues the following: "Land-locked States Right of access to the high seas Participation in the activities in the international sea-bed area." U.N. Doc. A/AC.138/52 (August 13, 1971), para 8. 345 See supra, n. 321. |