THE VOICE OF SCIENCE ON CAPITOL HILL F.A.S. NEWSLETTER FEDERATION OF AMERICAN SCIENTISTS-Founded 1946 A national organization of natural and social scientists and Vol. 26, No. 4 SPECIAL ISSUE ON April, 1973 FAS OPPOSES AMERICAN MINING CONGRESS BILL The United Nations, through its Third Law of the Sea Conference, is moving toward a treaty on the international seabed area that would cover such diverse activities as outer continental margin oil wells, deep seabed hard mineral mining, fishing rights, pollution control, scientific research and the limits of territorial waters. A recent unanimous General Assembly resolution—supported, in particular, by the United States-set forth agreed principles for the forthcoming treaty: seabed resources were to be the common heritage of mankind and to be exploited for the benefit of mankind with particular consideration to be given to developing countries; no State was to exercise rights incompatible with the international regime to be established. With a view to implementing these principles, the United States has adopted an enlightened policy in a statement made by President Nixon on May 23, 1970. Our proposed treaty would have coastal States renounce claims to seabed resources beyond 200 meters depth and would set up an international regime to exploit seabed resources beyond that limit. But coastal States would act as internationally supervised trustees for the seabed resources on that continental margin between the 200 meter depth isobath and the abyssal deep ocean bottom. The agreed international machinery would completely regulate seabed resources beyond the continental margin on the ocean floor. Through the good offices of Congressmen, the American Mining Congress has submitted a bill, H.R. 9, that would supplant this international machinery for mining the ocean bottom. Under this bill, the United States would unilaterally proclaim certain regulations for mining the ocean bottom and then classify as "reciprocating" states all others nations who would cooperate and adopt similar legislation. In order to secure the agreement of other states, the bill would prohibit American citizens and corporations from engaging in seabed mining for those states that did not cooperate. As the Administration has noted, this bill has become a "symbol to many countries of defiance of the multilateral negotiating proc ess." Worse, the bill may become an excuse for those states who wish to press their preferred unilateral claims in other areas and some who may even wish to scuttle this treaty. At stake are a number of matters vital to our national interests and to the hope of humanity. While the American Mining Congress bill relates only to ocean bed mining, the treaty that its existence See FAS OPPOSES, page 2 Approved by the Federation Executive Committee. the above statement was reviewed and endorsed by the following FAS members or outside consultants whose experience and expertise bear on various aspects of this problem. (Their credentials appear on page 3). Judge Philip C. Jessup Professor John J. Logue Professor Warren S. Wooster ·Page 2. FAS OPPOSES, from page 1 may unsettle covers a multitude of U.S. interests. We are a major maritime power but three hundred years of freedom of the seas, beyond narrow territorial limits, may be lost if coastal states are further encouraged to claim large national jurisdictions over the seabed-creeping jurisdictional claims excited by interests in fishing may then lead to claims for controlling the water column above. In this way, as much as one-third of the ocean might be claimed if the Law of the Sea Conference fails. No wonder the Defense Department strongly urges the widest possible international jurisdiction. We are a nation increasingly short of oil supplies. Yet the American Mining Congress bill may unsettle a treaty that would substitute international jurisdiction over continental margin seabed oil for national jurisdiction, thereby improving the climate for U.S. investment. What is at issue in this treaty-as the President has noted-is whether the oceans will be used for the benefit of mankind or whether they will become "an arena of unrestrained exploitation and conflicting jurisdictions." Economic conflicts are sharpening in the world, both between states of the same level of development and between states of different levels of development. It would be a catastrophe pregnant with possibilities for war, if the oceans were to be carved up on a first-come, first-served basis, as was colonial Africa in the 19th century. Moreover, if ocean pollution and over-fishing is to be prevented, the exploitation of ocean resources must be organized and guided on an international basis. Finally, the international ocean authority on which the U.N. nations are agreed in principle, would represent a giant step forward in the rule of law. Ruled by a council in which neither developed nor developing nations could overrule the other, it would unlike the United Nations have stable and growing revenues provided by its own resources. Indeed, as these revenues grew, they would become a source of support for projects in the developing world. Since, in this era, there is a clear and probably growing correlation between the poverty of states and the origins of state conflict, it is in our own national interest, as well as in our moral interest, to provide developing states with an ample share of those resources of the sea that are now agreed to belong to all mankind. The American Mining Congress bill is not, as it pretends to be, a national interest bill pitted against anti-American developing states and internationalist forces at home. It is simply a mining industry bill drafted by that industry in such a way as to benefit itself first and foremost. The bill would permit small states to provide our mining industry with incentives to work under the flags of other nations-much as ships sail under the flags of Liberia or Panama. In disregard of the U.N. resolution cited above, the bill provides for only the April, 1973 most rudimentary income for the international authority and for developing countries. The treaty permits a single firm to lay claim to areas several times larger than the United States; it requires no competitive bidding on royalties of the kind we require today for offshore oil-but only small license fees given on a first-come, first-served basis; it asks the government to provide licenses good for so long as production continues; and it wants indemnity for 40 years if the international treaty to be agreed upon should reduce the profit expected under its very favorable terms. In any case, the minerals involved are not currently important to the national interest either in quantity or kind. Certainly there is no urgent need to mine magnanese, copper, nickel or cobalt that would compare with any one of the major stakes which the United States has in the successful outcome of the Law of the Sea Conference. In short, the American Mining Congress bill is simply a special-interest bill drafted by specialinterest lawyers. It deserves little faith and credit from Congressmen. At best, it is a sell-out to a particular industry. At worst, it can begin to unravel the hopes of our nation for international agreement on all of the several important interests we have in the oceans. FAS Chairman: MARVIN L. GOLDRERGER The Federation of American Scientists is a 27-year old organization of natural and social scientists and engineers concerned with problems of science and society. Democratically organized with an elected National Council of 26 members, FAS is a non-profit civic organization sponsored by worldfamous scientists of all kinds. Members of FAS include many Nobel Prize winners and former science-related offcials of the highest possible rank from the major Government agencies. SPONSORS (partial list) Jerome D. Frank (Psychology) NATIONAL COUNCIL Willis E. Lamb, Jr. (Physics) Jerome B. Wiesner (Engineering) Cameron B. Satterthwaite (Physics) Joseph L, Sax (Environment) Herbert Scoville, Jr. (Defense Policy) Eugene B. Skolnikoff (Pol. Science) Jeremy J. Stone (Mathematica) Vigdor Teplitz (Physics) Victor Weisskopf (Physics) Herbert F. York (Physics) Quentin D. Young (Medicine) Page 4 U.S. POSITION The United States has always been a strong defender of freedom of the seas and has supported, since the time Jefferson was Secretary of State, a narrow three-mile limit for the size of territorial seas. Many other nations have claimed twelve, however, and some two hundred. The United States is therefore prepared to acquiesce in ratifying an international convention with a twelve-mile limit, so long as it can negotiate continued rights of free transit through those 6 to 24-mile-wide straits that would otherwise suddenly become closed. The Defense Department, especially, wants to be sure that its warships and submarines can use these straits without qualifying for the otherwise necessary "innocent passage" applied to territorial seas. The right of planes to overfly the straits is also at issue. The U.S. proposal envisages coastal state jurisdiction over the seabeds of the continental shelf proper. The resources of the rest of the continental slope and rise-i.e. the rest of the continental margin-would be administered by the coastal state as part of an international area. (See the schematic representation on this page.) An international authority would be constructed to share jurisdiction in this "Trusteeship Zone" and to administer, by itself, the exploitation of the deep ocean floor. In the Trusteeship Zone (also called the economic or intermediate zone), the coastal state would regulate exploration and exploitation under international standards, and under rules for compulsory settlement of disputes. These standards would prevent resource exploitation on the seabed from polluting the marine environment. And there would be sharing of revenues with the international community. U.S.-suggested drafts would allot 50% to 66% to the international authority. The notion of an intermediate zone is a shrewd compromise. Some developing states, and American commercial interests, want wide national control over those seabeds near them. In effect, the trusteeship zone gives those states many such benefits. On the other hand, the proposal keeps the area beyond 200-meters depth formally within an international framework thereby preventing such activities as expropriation, permitting the international authority to protect against pollution, and, of course, providing for revenue sharing with the international authority. Who would control the international overseer-dubbed the International Seabed Resource Authority? The U.S. draft convention would provide for an "Assembly" in which all would have one vote and a "Council" of 24 states-the six most advanced industrial states, at least 12 developing states, and at least two landlocked or shelflocked states. Decisions by the council would require that a majority of both the 6 major industrialized states and of the 18 remaining states approve each decision. Thus the convention seeks to balance the disparate economic interests of the parties to the treaty in the resources at issue. The draft convention also provides for a Tribunal to decide and advise on dispute under the convention. April, 1973 PRESIDENT NIXON'S ANNOUNCEMENT ON U.S. OCEANS POLICY-1970 the stark fact is that the law of the sea is inadequate to meet the needs of modern technology and the concerns of the international community. If it is not modernized multilaterally, unilateral action and international conflict are inevitable. ... I am today proposing that all nations adopt as soon as possible a treaty under which they would renounce all national claims over the natural resources of the seabed beyond the point where the high seas reach a depth of 200 meters and would agree to regard these resources as the common heritage of mankind. The treaty should establish an international regime for the exploitation of seabed resources beyond this limit. The regime should provide for the collection of substantial mineral royalties to be used for international community purposes, particularly economic assistance to developing countries. It should also establish general rules to prevent unreasonable interference with other uses of the ocean, to protect the ocean from pollution, to assure the integrity of the investment necessary for such exploitation and to provide for peaceful and compulsory settlement of disputes. ECONOMIC IMPACT OF SEABED The United Nations Secretariat and U.S. Government experts believe that seabed production of oil and gas beyond the 200-meter isobath will produce no adverse effects on land producers because it will constitute only a fraction of new demand in a steadily increasing market. The higher costs of deep water exploration and production further eliminate any possibility that deep seabed petroleum production will depress prices. By 1980, about 500 million barrels of petroleum might arise from beyond the 200-meter limit--2 or 3% of world production of liquid fuels. Production of gas beyond this limit is likely to grow even more slowly. No country has been identified that might suffer economically as a result of the competition induced. A few countries might suffer ill effects from the economic competition produced by mining nodules but none of them seem likely to suffer badly. DIAGRAMMATIC PROFILE OF CONTINENTAL MARGIN April, 1973 PROVISIONS OF THE METCALF-AMERICAN MINING CONGRESS BILL The bill would instruct the Secretary of the Interior to issue an exclusive license to exploit either the surface or the subsurface of the seabed. Surface blocks would be up to 40,000 kilometers and ten meters deep. Subsurface blocks would be up to 500 square kilometers and would extend downward without limitation. Unlike the law governing the continental shelf which calls for bids including both downpayment and royalties, the bill would require only $5,000 for a license. The Secretary would be required to give the license to the first qualified person who requested it. The license would be good for so long as commercial recovery of the minerals continued and fifteen years at least. Scientific research would not be precluded by the license-unless it interfered with the mining of the developer! As a condition of the license, the firms must make minimum annual expenditures which grow from $100,000 per year originally to $700,000 per year in the fifteenth year. But off-site development expenditures are not only counted toward these expenses but even carried over from earlier years to be credited against later ones. The bill would designate as a "reciprocating state" other nations who accepted the bill's approach to the problem and adopted similar practices. No American citizen or company would be permitted to work on mining the deep seabed for states who were not designated as reciprocating states. Thus, the bill would seek to pre-emptively establish at a stroke, a regime in which the ocean would be carved up in such fashion as the licensees lined up at the window of the Secretary of the Interior (and the windows of analogous officials in "reciprocating states"). The licenses offered by non-reciprocating states would, presumably, be ignored by the reciprocating states. Developing Nations Get Little The developing nations would not get very much under this bill. In the first place, only developing "reciprocating" nations would get anything And they would get only a percentage of the $5,000 fees-not likely to add up to much-and a percentage of the income taxes resulting from mining the seabed. The percentages would be decided upon by Congress. And, since the percent would come out of taxes, it would hardly be very large. The bill is also careful to provide that the minerals mined should not be subject to import duties and should be treated as if mined domestically. The bill is obviously designed to permit companies to stake out very large areas initially and-through subscquent further exploration-to zero in on more valuable sites. The amount of territory that could be claimed in this fashion, under the American Mining Congress bill, is fantastic. For example, it is widely asserted by the mining interests that $250,000,000 would be required to prepare for ocean bed mining. This sum would permit the claiming and holding onto an area the size of the United States for five years or ten times the size of the United States for one year. ATTITUDES OF THE SENATE INTERIOR COMMITTEE Page 5 In 1969, the Senate Interior Committee, chaired by Senator Henry M. Jackson (D., Wash.) organized a special subcommittee on the Outer Continental Shelf, under the Chairmanship of Senator Lee Metcalf (D., Mont.). These two Senators, and some other members of the subcommittee and staff involved, take a dim view of certain aspects of the U.S. position on the seabed, and of the U.N. approach to the deliberations leading to another Law of the Sea Conference. Faced with varying interpretations, the Subcommittee interprets the 1958 Convention on the Continental Shelf to mean that the area we own "extends to the limit of exploitability then existing, within an ultimate limit of the natural prolongation of the submerged land continent." This position is also termed "consistent with the wisest of policy preferences." However, this still leaves problems. The Subcommittee wants to argue against the idea of a trusteeship zone over the continental slope on the grounds that it would involve giving up something to international ownership which was ours. Since the waters beyond 200 meters are not yet subject to exploitation, the committee also adopted the notion that our rights to the entire continental margin were vested "by virtue of the natural extension beneath the sea of our sovereign land territory." (pg. 30, "Outer Continental Shelf" report) (If 146 other nations were to assert similar claims, 25% of the entire ocean bottom would be claimed and a large number of boundaries would have to be solved where overlapping claims were asserted.) Interior Committee Sends Observers The Interior Committee staff has twice sent observers to the U.N. deliberations and returned with reports sharply critical of the activities there. The first was prepared by Senator Metcalf's Administrative Assistant, Mr. Merrill Englund, and the Interior Committee's minority counsel, Mr. Charles F. Cook, Jr.-who is now Assistant General Counsel for Government Affairs for the American Mining Congress. The second was prepared by Mr. Englund and Mr. David P. Stang of the Committee staff. The tone of these reports is indicated by the summary of the second report here provided in full: "The developments [at the United Nations Scabed Committce] have led us to the conclusion that present U.S. rights to mine the occan floor are in jeopardy due to the increasing militance of the Group of 77, the private policy caucus of the developing countries of Africa, Asia and Latin America. These countries, through concerted effort, are taking active steps to deny the United States and other maritime powers the freedom of the seas, including effective present and future access to the minerals of the ocean floor. They are being assisted in their efforts by the full support of China. Legislation, now pending before this committee, may soon need to be acted upon in order to prevent U.S. forfeiture of our freedom of the seas including our right to mine minerals of the seabed lying beyond our continental margin." (The Law of the Sea Crisis, Part 2, May 1972) 97-898 O-73-38 Page 6 Part of the "concerted effort" to deny the US. "freedom of the seas" was the 1969 U.N. resolution calling for a moratorium on seabed mining; the Committee refers to it repeatedly as a resolution that "purported to declare" a moratorium passed by a "paper majority" in a "spirit of confrontation." The State Department agrees that General Assembly resolutions are not binding and that it does not intend to try to discourage its nationals from violating the moratorium. But the United States Governinent did subsequently join in a unanimous U.N. vote on certain principles that were similar-precluding states, in particular, from asserting rights "incompatible with the international regime to be established." The Committee's approach to the problem seems to emphasize short run national interests only. For example, one witness noted that the Committee claim to the Continental Margin would simply produce analogous world claims by other coastal states and, as a result, would restrict U.S. nationals from a comparably larger area. The Committee said it could not "see the logic" of this because policies precluding U.S. nationals "would not be consistent with the desire of such countries in developing greater exports." This is a delicate reference to the fact that, at present, only the U.S. and a few other countries have the technology to do the mining. But, in time, developing nations will develop the technology; they will then expropriate our installations and deny our nationals the access we would otherwise have had. The developing nations might also discriminate in favor of the nationals of some other industrialized nation-the Japanese or the Germans, for example. By contrast, under the U.S. proposals, although coastal states would have exclusive rights to manage the offshore resources, they would have to agree to international standards that would protect foreign investment. Committee Double Standard Sometimes, however, the Committee takes the view that the developing Nations do have the capacity to go it alone. A Subcommittee staff report charges that the developing nations want "to deny effective commercial access by the technologically advanced states" to the ocean bottom minerals by controlling the international regime to be set up. According to the Committee's earlier analysis above, this would be foolish since only the technologically advanced states can do the work. If denied "effective commercial access" there would be no revenues. A further example of the Subcommittee's temper is reflected in a U.N. mention of the American Mining Congress bill. The Chilian delegate noted the Moratorium resolution-and the Declaration of Principles, for which the U.S. voted and which expressed similar ideas-and raised questions about the bill. He noted accurately that the bill "apparently envisaged a-situation in which States would grant each other exclusive rights to the international area," and noted politely that "obviously the submission of the bill did not reflect the view of the U.S. Government." Among other things, he suggested that the United States delegation be "invited to provide further information" on the bill and some specific on-going deepsea mining activities. Subsequently, one Senator spoke of this as an effort to April, 1973 1969 MORATORIUM RESOLUTION OF THE GENERAL ASSEMBLY (2574-D) Spending the establishment of the aforementioned international regime: a) States and persons, physical and juridicial, are bound to refrain from all activities of exploitation of the resources of the area of the sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction; b) No claim to any part of that area or its resources shall be recognized. "intimidate the U.S. Senate" and another said that the Chilean delegate had referred to the bill "in the most derogatory terms" and had "demanded", of the U.S. Government "all the information at its disposal" about deepsea mining and had threatened a "resolution condemning the legislation." Unfortunately, the conclusions of the staff report on the March 1972 conference do make the "threats, claims and demands" charged to the developing countries. The developing coastal countries are said to be playing a "dangerous game" of delay, looking toward a fait accompli in which a proposed economic zone might be established without need for a treaty. In such case, they may be faced with "countersanctions" by the developed countries who have the "greatest strength" including ships, technology, capital, and the option to refuse to ratify a deep sea regime. As for derogatory remarks and inflammatory language. the staff likens the developing nations Group of 77 to a Samson in the temple who "felt that there was no hope of tailoring circumstances exclusively to his liking, so he tore loose the pillars of the temple, causing the roof to collapse and kill nearly everyone." Some nations are referred to as "puerile." Others "apparently believe that, because they may have the majority of the votes in the U.N. Seabed Committee, they can overturn international law merely by threats or by making demands." Finally, suggesting that it may take "years before these nations "return to reality," the committee staff report proposes legislation which "could set a practicable precedent, a model for a future treaty, after which the rules governing ocean mining could be patterned." In view of the repeated emphasis upon protecting the rights accorded in the interim regime, this is clearly a call for a U.S. fait accompli pre-empting the treaty process -precisely what the developing nations are said to be doing with regard to an economic zone. Indeed, the report ends by urging a continued watch on the U.N. deliberations: "to ascertain whether there is any chance that there may be a future international seabed treaty to supersede the legislation, or whether the legislation, and possible similar legislation enacted by other countries will provide the only rules and develop the only revemues related to the mining of minerals on the deep ocean floor for decades to come." |