Mr. STUDDS. I begin to wonder even if we were successful in enacting legislation to extend our jurisdiction whether that would accomplish anything because we seem to hear on more than one occasion of the executive branch choosing for itself which laws or which parts of the laws it intends to enforce.

I would like to note that the bill which declared the lobster to be a creature of the shelf did not declare it to be a creature of 200 meters of the shelf.

What conceivable justification does the Department of State have for choosing to enforce only a part of that law even if you did it only for a little while?

Mr. MOORE. I defer to the Coast Guard on this.

Commander LYNN. Congressman Studds, there was only a procedural difference in any case. There were various reasons for giving some importance to the 200-meter line and for that reason we had our people reporting back by immediate precedence message so that we could bring the minds here to bear on the case.

We did not have the situation arise at any time during that period,. and we have not had it at any time since.

Mr. STUDDS. But those initial instructions were not consistent with the law which the Congress mandated to be carried out by the Executive.

Commander LYNN. They were internal instructions that allowed us to carry out our enforcement, and we had given our commanding officers authority to board when they saw an intentional taking inside of 200 meters.

Mr. STUDDS. May I ask you whether or not the law which you are enforcing refers either to 200 meters or intentional taking?

Mr. MOORE. Congressman, could I respond to that? One of the difficulties under a provision that refers to the creatures of the Continental Shelf and one of the reasons that we would like a comprehensive law of the sea agreement is that there is no agreement on the outer edge of the Continental Shelf.

The 1958 Continental Shelf Convention makes it very clear that there is legal jurisdiction in the coastal State at least to 200 meters and beyond that to where the water depth permits exploitation so there is some problem or to the precise limit.

There is, then, some ambiguity as to where the outer edge of the Continental Shelf may be so, in fact, I think the initial approach to this was concerned with this question of what would happen if we were enforcing the claim against foreign nations in an area which exceeded something that was within U.S. jurisdiction under the Continental Shelf Convention.

It also, to the best of my knowledge, was something that did not say there would be no enforcement beyong 200 meters.

It was simply a precautionary measure that required a somewhat greater control in situations beyond 200 meters.

Incidentally, I agree with your doubts that were we to unilaterally extend our jurisdiction we would necessarily solve these problems. Mr. STUDDS. Do you not agree with me that we would attempt to

enforce the law?

Mr. MOORE. We would make every effort to enforce the law, as written, but as you have indicated to be effective this is largely something that would have to be done through agreements anyway.

So in the absence of others accepting the claim, as they will in the Law of the Sea Conference, we may well be back in the same old game

of bilateral agreements, except in the meantime they may well have said we are not going to respect any of these agreements we have entered into now because you are asserting a claim that may be fundamentally inconsistent with those agreements.

Mr. COHEN. Will you yield back?

Mr. STUDDS. Yes.

Mr. COHEN. Can I make this request of you? It seems we find ourselves in the position of finding out what the executive branch is doing about the laws we passed long after the fact.

Would it be a breach of your role, protocol, or procedure to request your Department to furnish copies of letters that you send to foreign governments or to enforce these particular laws that we pass?

We would like to be apprised of what you are actually doing to carry out the intent and mandate of Congress and if we could do that contemporaneously with the letters being sent we would not have to find out after the fact.

In May you sent out

letter that we are going to have full enforcement and then in September you say we are going to defer this to November.

In that way we would know where you would need a stronger expression from this committee.

Would that be possible for you to do that?

Mr. MOORE. We can make available these notes that you have requested and I think we would want to keep this committee apprised of any major change.

Mr. COHEN. Any matter that is not classified by the State Department.

I hesitate to suggest that qualification but anything that you would send out would pertain to the law which is passed, laws that are passed by this committee and this Congress, contemporaneous with other foreign nations as to what your notice is about.

Sometimes we feel like we are a part of the foreign nations.
I yield to Mr. Pritchard.

Mr. PRITCHARD. Mr. Chairman, maybe I was hearing things, but Ambassador Stevenson you said something to the effect of what Congress would do and what the Executive would agree to. Did I read a hint in there that you thought that the President might veto Mr. Studds' bill?

Ambassador STEVENSON. I think I was trying to make it clear that. I was not passing judgment. Of course, the President is part of the legislative process and I think it is obviously up to him to decide.

Mr. PRITCHARD. Have you had any hint or had any indication of a course of action by the executive branch on this legislation?

Ambassador STEVENSON. You mean as far as a Presidential veto? Mr. PRITCHARD. Yes.

Ambassador STEVENSON. I have not.

Mr. PRITCHARD. Do you feel at this point that you would urge and recommend a veto?

Ambassador STEVENSON. That will have to be an executive branch decision. I will tell you frankly I hope he would.

Mr. PRITCHARD. You would urge that course then?

Ambassador STEVENSON. That is my personal view.

Mr. PRITCHARD. And I guess the last question would be, do you see any chance that the State Department or the Defense Department will change their opinion on this 200-mile extension?

Ambassador STEVENSON. On the fishing bill?

Mr. PRITCHARD. Well, I have a feeling that we have talked for 3 hours on fishing, and we should have talked 15 minutes on fishing and 2 hours 45 minutes on the defense. I think that is where the weight lies in this whole proposition.

It is my understanding that the Defense Department is very adamant in opposing this extension. Have you seen any evidence of softening on their part?

Ambassador STEVENSON. I think I indicated to you why they are very important national security and defense interests here.

Perhaps Professor Moore who is chairman of that interagency committee could more accurately reflect on that for you.

Mr. PRITCHARD. I thought you might say it quicker. You sometimes get to the point a little quicker.

Well, that is all I have.

Ambassador STEVENSON. If you are asking me, I do not have any indication of a change.

Mr. CLARK. Mr. Studds?

Mr. STUDDS. Gentlemen, one final thing. One of the principal ones who bears the guilt for the length of the session today is perhaps myself. I think it should be said in all fairness that you are not the only folks who work slowly around here.

Last year both Houses of Congress passed a concurrent resolution, which you may remember, which said the Congress is fully prepared to act immediately to provide implementation measures to conserve overfished stocks and protect our domestic fishing industry.

I think we better look a little bit in our own house in this respect, literally and figuratively. We may be in contempt of ourselves as a result of this resolution, and I think one of the lessons that also has come from this is we have been negligent in our oversight responsibilities.

I know that you do not interpret any of the emotion and anger you have heard today as personal and I hope you will not interpret it as being directed solely at one institution of Government.

I think we can all use a little lubricant at this point. We do an awful lot of talking and I think it should be relatively easy to understand the anger of the fishermen at us.

I almost voted against this resolution at the time. I thought it was going to be just a bunch of words and here it is a year later we have done absolutely nothing in the long run, or the short run.

Mr. COHEN. With all deliberate speed.

Mr. STUDDS. I hope the Congress will give the President something he will be able to act on.

Just think what a strong position you will be in next year at Geneva if we had passed the bill, and he vetoed it, and we failed to override the veto by one vote.

You could say to the folks, this is the last time; we get an agreement, or else.

You might want to think about that.

Mr. CLARK. Thank you, very much. I thank all of you for your patience and we do appreciate your coming here and spending the afternoon.

The meeting is adjourned, subject to the call of the Chair.

[Whereupon, at 5:15 p.m., the committee adjourned, subject to the call of the Chair.]

APPENDIX

THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA

(Caracas, Venezuela, June 20-August 29)

U.S. DELEGATION REPORT

1. Summary and overall evaluation of session

The object of the Law of the Sea Conference is a comprehensive Law of the Sea Treaty. This was not achieved at Caracas. It would be a mistake to regard the Caracas session as a failure however, as it accomplished a great deal: the foundations and building blocks of a settlement are now all present in usable form. A treaty can be achieved if detailed authentic negotiation takes place without delay.

Two underlying problems affect the evaluation of the session. First, events beyond the control of the Conference are tempting states to take matters into their own hands. Second, the Conference suffers from the carry over of a negotiating style more suitable for General Assembly recommendations or negotiation of abstract issues than texts intended to become widely accepted as treaty obligations affecting immediate interests of states in a dynamic situation. Tactics, rather than negotiation, was the rule.

Accomplishments of the session are considerable. Among the most important are the following:

(a) The vast array of Law of the Sea issues and proposals within the mandate of Committee II was organized by the Committee into a comprehensive set of informal Working Papers reflecting main trends on each precise issue. The large number of formal proposals were mainly introduced as a basis for insertions in these Main Trends Papers. All states can now focus on each issue, and the alternative solutions, with relative ease. A similar development occurred with respect to marine scientific research in Committee III.

(b) The transition from a Seabed Committee of about 90 to a Conference of almost 150 was achieved without major new stumbling blocks and a minimum of delay.

(c) The overwhelming majority clearly desires a treaty in the near future. Agreement on the Rules of Procedure is clear evidence of this desire to achieve a widely-acceptable treaty. The tone of the general debate and the informal meetings was moderate and serious. The Conference adopted a recommended 1975 work schedule deliberately devised to stimulate agreement.

(d) The inclusion in the treaty of a 12-mile territorial sea and a 200-mile economic zone was all but formally agreed, subject of course to acceptable resolution of other issues, including unimpeded transit of straits. Accordingly, expanded coastal state jurisdiction over living and non-living resources appears assured as part of the comprehensive treaty.

(e) With respect to the deep seabeds, the first steps have been taken toward real negotiation of the basic questions of the system of exploitation and the conditions of exploitation.

(f) Traditional regional and political alignments of states are being replaced by informal groups whose membership is based on similarities of interest on a particular issue. This has greatly facilitated clarification of issues, and is necessary for finding effective accommodations.

(g) The number and tempo of private meetings has increased considerably, and moved beyond formal positions. This is essential to a successful negotiation. With few exceptions, the Conference papers now make it clear what the structure and general content of the treaty will be, the alternatives to choose from, and the blanks to be filled in, and even the relative importance attached to different issues. What was missing in Caracas was sufficient political will to make hard negotiating choices. The main reason was the conviction that this would not be (91)

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the last session, which is the type of assessment that can easily be spread by treaty opponents. Nevertheless, the words "we are not far apart" were more and more frequently heard, at least in Committee II, insofar as the developing country assessment of U.S. positions is concerned.

The Conference has recommended to the UNGA that the next session be held "in Geneva from 17 March to 3 or 10 May, the latter date depending upon certain practical arrangements to be made with the World Health Organization, whose assembly was scheduled to open on 6 May in Geneva.

The Conference also agreed to recommend that the formal final session of the Conference should be held in Caracas for the purpose of signature of the final act and other instruments of the Conference. The successful conclusion of perhaps the most complex and divisive global negotiation ever held must be on the basis of state's real interests rather than abstract concepts. The momentum, albeit with fits and starts, tends to favor such negotiation. The U.S. can contribute to this by retaining its commitment to that end, and sticking to a pragmatic approach to problems; but all must now make the ultimate choice between symbols and achievement.

2. Committee I (seabed beyond the limits of national jurisdiction)

A. General. Unlike other Committees, the entire range of issues under Committee I's mandate, with only one exception, had been reflected in alternative treaty articles prepared by the Seabed Committee. The one exception was the preparation of treaty articles on rules and regulations for deep seabed mining: a critical element of the U.S. deep seabed position. In previous sessions of the Seabed Committee, which worked on the basis of consensus, there had been considerable opposition to even a discussion of rules and regulations, which were referred to in notes and footnotes.

The Committee held one week of general debate in which the following trends emerged: A) a number of African and Asian delegations expressed their willingness to support an exploitation system that permitted different types of contractual arrangements in the early years of operation, coupled with a gradual phasing out of these systems in favor of direct exploitation. In this connection, the need to provide security of tenure and conditions that would attract entities with the necessary capital and technology was a prevalent theme in their statements; B) there was increased support among European delegations for a parallel licensing/direct exploitation system-Australia and Canada maintained their support for this approach; C) a large number of developing country delegations referred to the need to include dispute settlement machinery in the Authority. The general debate was followed by a rapid reading of the Regime Articles in an informal Committee of the Whole, Chaired by Christopher Pinto of Sri Lanka. There were some reductions in alternatives and bracketed language on several articles. The majority received no alteration. The Informal Committee decided to discuss in detail major issues of disagreement rather than proceed to the texts on the Machinery. The three major issues selected were the exploitation system (Article 9 of the Regime), conditions of exploitation (Rules and Regulations), and economic implications.

B. Exploitation system. The exploitation system (Article 9) was identified by many countries as the crux of the Committee I negotiations. During the Caracas session, the Group of 77 agreed on a single text for Article 9 which would permit the Authority to enter into a variety of legal arrangements, provided it maintained "direct and effective control at all times."

A number of developing country delegations throughout the last weeks of the session began to call for serious negotiations on Article 9. Three delegations threatened voting instead.

Several delegations indicated a willingness to discuss formulas which might include the concept that the Authority's control over resource exploitation would be exercised in accordance with certain broad general principles to be laid down in the Convention.

Jamaica introduced a proposal for Article 9 that includes such general principles, together with the requirement that the Authority promulgate rules and regulations within this framework.

In the closing days of the session, after earlier resistance to discussion of the context of general conditions of exploitation, Committee I established a Negotiating Group with the mandate to consider Articles 1-21, placing special emphasis in its work on both Article 9 and conditions of exploitation. The Negotiating Group met several times and engaged in very constructive discussions on the Group of 77 text for Article 9. There emerged in these exploratory talks a definite