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Military Installations, Structures, and Devices on the Seabed

Published online by Cambridge University Press:  27 February 2017

Tullio Treves
Tullio Treves*
Affiliation:
Private International Law, University of Milan, Italy
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Extract

The legal regulation of military objects on the seabed and in general of military uses of the seabed seems to have ceased to attract the attention of the international community since the conclusion in 1971 of the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and Ocean Floor (the Seabed Treaty). Attention now seems to be concentrated on other military uses of the sea, especially those concerning the mobility of naval fleets. This shift in focus is particularly noticeable if one considers the work of the Third United Nations Conference on the Law of the Sea.

Type
Research Article
Information
American Journal of International Law , Volume 74 , Issue 4 , October 1980 , pp. 808 - 857
Copyright
Copyright © American Society of International Law 1980

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References

1 Present and prospective military uses of the seabed, including those involving installations, structures, and devices, are reviewed by: E. Luard, The Control of the Seabed 49-60 (1974); Stockholm International Peace Research Institute [hereinafter referred to as SIPRI], Yearbook 1969-70, at 99-154 (1970) and 1974, at 303-25 (1974); Bosma, The Alternative Futures of Naval Force, 5 Ocean Dev. & Int'l L. 181-248 (1978); Brown, N., Military Uses of the Ocean Floor, in Pacem in Maribus I: The Quiet Enjoyment 115–21 (Young, & Ritchie-Calder, eds., 1971)Google Scholar; Hirdman, Weapons in the Deep Sea, Environment, No. 36, 1971, at 28-42; UN Secretariat, The Military Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction, UN Doc. A/AC. 135/28 (1968). Discussions on the legal aspects of the use of these installations, structures, and devices are in: R. J. Dupuy, L'océan Partagé 256-59 (1979); W. Graf Vitzthum, Der Rechtsstatus Des Meeresbodens 122-33, 283-91 (1972); U. Jenisch, Das Recht Zur Vornahme MilitÄrischerÜbungen und Versuche Auf HÖher See in Friedenszeiten 30-31, 139-49 (1970); D. P. O'Connell, The Influence of Law on Sea Power 146-59 (1975); B. RÜster, Die Rechtsordnunc Des Festlandsockels 68-73 (1977); Evensen, , The Military Uses of the Deep Ocean Floor and its Subsoil, in Symposium on the International Legal Regime of the Sea-Bed, Proceedings 535–56 (Stucki, ed., 1970)Google Scholar; Gehring, , Legal Rules Affecting Military Uses of the Sea-bed, 54 Mil. L. Rev. 168, 215–20 (1971)Google Scholar; Petrowski, , Military Use of the Ocean Space and the Continental Shelf, 7 Colum. J. Transnat'l L. 279–301 (1968)Google Scholar; Krüger-Sprengel, , Militärische Aspekte der üctzung des Meeresbodens, in Die NÜtzung Des MeeresgrÜndes Ausserhalb des Festlandsockels (Tiefsee) 48–79 (1970)Google Scholar.

2 The so-called Seabed Treaty, 23 UST 701, was signed in London, Moscow, and Washington on February 11,1971, and came into force on May 18, 1972.

3 This results from the trends in the Third UN Conference on the Law of the Sea towards accepting a 12-mile limit for the territorial sea and a 200-mile exclusive economic zone. These trends make it important for naval powers to have guaranteed freedom of navigation through straits and within the economic zone. See, for the U.S. position, Richardson, , Power, Mobility and the Law of the Sea, 58 Foreign Aff. 902 (1980)CrossRefGoogle Scholar. Cogent analyses of the importance for security of free passage through straits, though with divergent views on the adequacy of the current proposals in the conference's negotiating text to guarantee it, have been recently developed by Reisman, , The Regime of Straits and National Security: An Appraisal of International Lawmaking, 74 AJIL 48 (1980)CrossRefGoogle Scholar and by Moore, , The Regime of Straits and the Third United Nation Conference on the Law of the Sea, 74 AJIL 77 (1980)CrossRefGoogle Scholar. The security importance of free passage through straits has been criticized by Osgood, U.S. Security Interests and the Law of the Sea, in The Law of the Sea: U.S. Interests and Alternatives 11 (Amacher & Sweeney eds., 1976) and, more recently, by Darman, , The Law of the Sea: Rethinking U.S. Interests, 56 Foreign Aff. 373 (1978)CrossRefGoogle Scholar.

4 The conference (which started in 1973 and at the time of writing had concluded the first part of its ninth session) has proceeded utilizing a series of “informal negotiating texts.” The first was prepared in 1975, Third United Nations Conference on the Law of the Sea, 4 Official Records [hereinafter cited as UNCLOS III, OFF. REC] 137; the second in 1976, 5 id. at 125; the third in 1977, 8 id. at 1; the fourth in 1979, UN Doc. A/CONF.62/WP.10/Rev.1; the fifth in 1980, UN Doc. A/CONF.62/WP. 10/Rev.2: this latter text is the Informal Composite Negotiating Text, Revision 2 [hereinafter, ICNT/Rev.2]. In this paper, references to the conference's negotiating text (unless otherwise indicated) are to the ICNT/Rev.2.

5 M. S. McDougal & W. T. Burke, The Public Order of the Oceans 754 (1962); Bosma, supra note 1, at 169; Hoist, , The Strategic and Security Requirements of North Sea Oil and Gas, in The Political Implications of North Sea Oil and Gas 131–41 (Sater, & Smart, eds., 1975)Google Scholar; Larson, , Security, Disarmament and the Law of the Sea, 3 Marine Pol'y 40, 51 (1979)CrossRefGoogle Scholar. According to British Vice-Admiral Sir Ian McGeoch, underwater military devices are not deployed around oil installations for their defense; Oceanic Management, Conflicting Uses of the Celtic Sea and other Western UK Waters 179 (Sibthorp & Unwin eds., 1977).

6 Baker & Gruson, The Coming Race Under the Sea, in The Pentagon Watchers 335, 351 ff. (Rodberg & Glearer eds., 1970); Evensen, supra note 1, at 532; Knauss, , The Military Role in the Ocean and its Relation with the Law of the Sea, in A New Geneva Conference, Proceedings of the Sixth Annual Conference of the Law of the Sea Institute 77, 84 (Alexander, ed., 1972)Google Scholar; Kildow, Tegger, Nature of Present Restrictions on Marine Scientific Research, in Freedom of Oceanic Research 5, 14–16 (Wooster, ed., 1973)Google Scholar.

7 Hollick, , International Political Implications of Ocean Thermal Energy Conversion Systems, in Ocean Thermal Energy Conversion 75, 84–85 (Knight, , Nyhan, , & Stein, eds., 1977)Google Scholar.

8 E. Luard, supra note 1, at 49-53; Bosma, supra note 1, at 191-94; SIPRI Y.B. 1969-70, at 116-17, 141-48.

9 T. Burns, The Secret War for the Ocean Depths 64-68, 90-102, 152-59 (1978); D. P. O'Connell, supra note 1, at 72-78; Bosma, supra note 1, at 194,236-37; Sipri Y.B. 1969-70, at 110-11, 120-21, 123, 148-52; Sipri Y.B. 1974, at 305-08, 316-18.

10 Though this kind of accommodation also is not devoid of difficulties. For a recent example of possible conflict between noise-generating ocean thermal energy conversion plants and military acoustic devices, see Washom, Spatial and Emerging Use Conflicts of Ocean Space, in Ocean Thermal Energy Conversion, supra note 7, at 91, 99.

11 Art. I.

12 Especially that of aiding navigation.

13 See M. W. Janis, Sea Power and the Law of the Sea 9 (1976); Knauss, supra note 6, at 78, 79, 84; Zeni, Defence Needs and Accommodation Among Ocean Users, in The Law of the Sea: International Rules and Organizations for the Sea 334 (Proceedings, 3d Annual Conference of the Law of the Sea Institute, Alexander ed., 1969).

14 See McGwire, , Naval Power and Soviet Global Strategy, 3 Int'l Security 134, 168 (1978)Google Scholar.

15 Craven, International Security on the Seabed, in The Law of the Sea, supra note 13, at 414, 419.

16 Goldblat, , Law of the Sea and the Security of the Coastal States, in Law of the Sea: Caracas and Beyond 301, 306 (Christy, , Clingan, , Gamble, , Knight, , & Miles, eds., 1975)Google Scholar. See also Sipri Y.B. 1974, at 304: “an ASW [antisubmarine warfare] system designed to attack missile-carrying submarines could threaten the second-strike capability of these submarines,” and this would be undesirable for the proper functioning of deterrence.

17 Reisman, supra note 3, at 52, considers detection of nuclear missile-carrying submarines “systemically dangerous” under “deterrence theory.“

18 See McGwire, supra note 14, at 167.

19 Bosnia, supra note 1, at 194-96; Sipri, Tactical and Strategic Anti-Submarine Warfare 31 (1974); Craven, supra note 15, at 417.

20 See Osgood, supra note 3, at 17-18.

21 UN Charter, Art. I, para. 1.

22 D. P. O'Connell, supra note 1, at 151.

23 Booth, The Military Implications of the Changing Law of the Sea, in Law of the Sea: Neglected Issues 328-97 (Proceedings, 12th Annual Conference of the Law of the Sea Institute, Gamble ed., 1979) says, at p. 340, that the negotiating text “has adopted the tactic of silence” on military matters, an area, he observes, “where the prospects for disagreement are strong, and the prospects for legal clarity are weak.“

24 Geneva Convention on the Territorial Sea and the Contiguous Zone of April 29, 1958, 516 UNTS 205; Geneva Convention on the High Seas of April 29, 1958,450 UNTS 11; Geneva Convention on Fisheries and the Conservation of the Living Resources of the High Seas of April 29, 1958, 559 UNTS 285; and Geneva Convention on the Continental Shelf of April 29, 1958, 499 UNTS 311.

25 Geneva Continental Shelf Convention, Art. 2, para. 1. The problems mentioned are studied infra in sec. IV.

26 On this notion, see especially de Lacharrière, La réforme du droit de la mer et le rôle de la Conference des Nations Unies, 84 Revue Générale de Droit International Public [RGDIP] 216 (1980); and McWhinney, The Codifying Conference as an Instrument of Law-Making: From the “Old” Law of the Sea to the “New,” 3 SYR. J. INT'L L. & Comm. 301 (1975).

27 This is the meaning explicitly accepted, e.g., by Riphagen, , La Navigation dans le nouveau droit de la mer, 84 RGDIP 144 (1980)Google Scholar.

28 Fisheries Jurisdiction (United Kingdom v. Iceland) (Merits), Judgment, [1974] ICJ REP. 3; The United Kingdom of Great Britain and Northern Ireland and the French Republic Delimitation of the Continental Shelf Decision of 30 June 1977, HMSO Cmnd. 7438, Misc. No. 15 (1978), reprinted in 18 ILM 398 (1979).

29 [1974] ICJ Rep. 25, para. 53.

30 Decision of 30 June 1977, supra note 28, para. 47. Comments on this paragraph are in Brown, The Anglo-French Continental Shelf Case, 16 S. Diego L. Rev. 461, 525-27 (1979); and in Queneudec, , L’Affaire de la delimitation du plateau continental entre la France et le Royaume-Uni, 83 RGDIP 1, 18–20 (1979)Google Scholar.

31 As it appears from the fact that the arbitral tribunal considered rules of the 1976 Revised Informal Negotiating Text, though emphasizing that they “have not yet been adopted by the Conference” and that they “are still a matter of discussion“; Decision of 30 June 1977, supra note 28, para. 96.

32 It may be sufficient to indicate that the conference's negotiating texts have been followed closely by many states in their domestic laws on the economic zone (see, e.g., the Mexican law of Dec. 4, 1975, reprinted in 15 ILM 382 (1976)) and that fisheries agreements have been concluded “taking into account the work of the Third United Nations Conference on the Law of the Sea and resulting State practice“; Fisheries Agreement between Canada and the European Economic Community, initialed on July 28, 1978 and provisionally applicable since 1979, preamble, in II Regime Della Pesca Nella Comunita Economica Europea 248 (Leita & Scovazzi eds., 1979). Moreover, agreements for the delimitation of the continental shelf have been concluded which do not take into account the limits set out in the Geneva Convention on the Continental Shelf and consider as “continental shelf” to be delimited the whole seabed lying between the two states, provided that the distance between the coasts does not exceed 400 miles; Italy-Spain Agreement of 19 February 1974, in Atlante Dei Confini Sottomarini/ Atlas of the Seabed Boundaries 75 (Conforti & Francalanci eds., 1979). See also de Lacharriere, supra note 26, at 244-46.

33 On these aspects: Treves, , Devices to Facilitate Consensus: The Experience of the Law of the Sea Conference, 2 Italian Y.B. Int'l L. 39 (1976)Google Scholar.

34 De Lacharrière, supra note 26, at 247-49, 251.

35 See the ICJ's Judgment of December 18, 1951 on the Fisheries case (United Kingdom v. Norway), [1951] ICJ Rep. 116, 131.

36 An example might be the initiative taken by the U.S. Government in 1979 in ordering the navy and air force “to undertake a policy of deliberately sending ships and planes into or over the disputed waters of nations that claim a territorial limit of more than the three miles accepted by the U.S. and 21 other nations” (The New York Times, Aug. 10, 1979, at 1). In the discussions at the Law of the Sea Conference which followed the appearance of this news in the daily press, the United States, though declaring the reports “distorted,” emphasized that the 12-mile limit would be acceptable only within a general package deal and coupled with transit passage through international straits (UN Docs. A/CONF.62/92 and A/CONF.62/SR. 118 (1979)). The Group of Coastal States firmly emphasized the conformity of the 12-mile limit to customary international law (UN Docs. A/CONF.62/90 and A/CONF.62/SR. 118). This position was explicitly supported by some other states and was opposed by none (UN Doc. A/CONF. 62/SR. 118). Thus, the U.S. initiative may have had an effect contrary to the intentions that originated it (see the observations of de Lacharriere, supra note 26, at 244). Considering, however, that it seems unlikely that transit passage through straits will be seriously challenged at the conference, the kind of compromise sought by the United States seems to have already been reached.

37 On this principle, see particularly: W. Graf Vitzthum, supra note 1, at 288-90; U. Jenisch, supra note 1, at 65-66; E. Luard, supra note 1, at 97-100; Dupuy, L’Affectation exclusive du lit des mers et des océans à une utilisation Pacifique, in Le Fond Des Mers 29-49 (Colliard, Dupuy, Polvèche, & Vaissièreeds., 1971); Krüger-Sprengel, supra note 1, at 54-55; A. Myrdal, Preserving the Oceans for Peaceful Purposes, 133 Recueil Des Cours 5-15 (1971 II); see also the interventions by Hirdman, De Soto, and Gorove in A New Geneva Conference, supra note 6, at 90, 95, 97.

38 GA Res. 2749 (XXV), Declaration of Principles Governing the Sea-Bed and Ocean Floor, and the Sub-soil thereof, beyond the Limits of National Jurisdiction, paras. 5 and 8.

39 The concept of the peaceful uses of the seas is mentioned in the following articles of the ICNT/Rev.2: 88, 141, 143, 147, 155, 240, 242, and 246.

40 See especially, for the discussion in 1968, UN Docs. A/AC.135/SR.14,16,17, and A/ AC. 135/20, 24, 26, 27, and A/AC.135/WG.1/SR.8. For the discussion in 1969, A/AC.138/SR.5, 6,8,10,12,13. For 1970, especially A/AC. 138/SR.22 and the debates in the General Assembly on the adoption of the Declaration of Principles (supra note 38), A/C.1/PV. 1798-1799. Useful summaries of these discussions are in E. D. Brown, Arms Control in Hydrospace, Legal Aspects 26, 46-49, 53-64 (Woodrow Wilson International Center for Scholars, Ocean Series 301, 1971); and in L. Migliorino, Fondi Marini e Armi Di Distruzione Di Massa 15-18 (1980).

41 See the interventions by the USSR in UN Docs. A/AC.135/SR.16 (1968), A/AC.135/WG.1/ SR.8 (1968), A/C.1/PV.1592 (1968), A/AC.138/SR.6,10,12,22,56 (1969), and A/C.1/PV.1798 (1970). See also those of Bulgaria (A/AC. 135/SR.16), Poland (ibid.) ,Libya (ibid.), Peru (A/AC. 135/ SR.17), Malta (A/C.1/PV.1589), and Trinidad and Tobago (A/AC. 138/ SR.50).

42 Antarctic Treaty, signed at Washington on Dec. 1, 1959, 12 UST 794, TIAS No. 4780, 402 UNTS71, Art. I.

43 See the intervention in the 1968 debates of the British delegate, Mr. Auckland: UN Doc. A/AC.135/SR.17.

44 See the U.S. interventions in UN Docs. A/AC.135/SR.17, A/C.1/PV.1590 (1968), and AJ AC.138/SR.6.12 (1969). See also the British intervention in A/C.1/PV.1594 and the Norwegian one in A/AC.135/SR.17.

45 See L. Migliorino, supra note 40, at 18-23.

46 Whatever its position in the debates, the concrete proposals of the USSR did not go beyond this in the Seabed Committee: see the Soviet proposal in UN Doc. A/AC. 135/20 of June 20, 1968. See also the observations by M. W. Jams, supra note 13, at 34-35.

47 Art. V.

48 See the interventions by the United States (UN Docs. A/AC. 138/SR.18 and A/C. 1/PV. 1799), by the USSR (A/AC.138/SR.12), and by Sweden (A/AC.138/SR.46).

49 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, of Jan. 27, 1967, entered into force on Oct. 10, 1967, 610 UNTS 205, 18 UST 2410, TIAS No. 6347.

50 Art. IV.

51 UNCLOS III, 5 OFF. REC. 54-68 (66th to 68th meeting of the Plenary).

52 The positions in the debate were ably summarized by the Iranian delegate, Mr. Bavand: 5 id. at 65-66. For a review, see L. Migliorino, supra note 40, at 110- 15.

53 A clear example seems to be the intervention of Tunisia: UNCLOS III, 5 OFF. REC. 67.

54 W. at 58.

55 W. at 62.

56 See the articles of the ICNT/Rev.2 listed supra at note 39. Arts. 240(a) and 242 are, however, general provisions on marine scientific research, with no restriction of geographical scope.

57 Compare Art. 76 with Art. 1(1) of the ICNT/Rev.2.

58 ICNT/Rev.2 Art. 298, para. 1(b). Janis, , Dispute Settlement in the Law of the Sea Convention: The Military Activities Exception, 4 Ocean Dev. & Int'l L.J. 51 (1977)CrossRefGoogle Scholar.

59 See especially Arts. 296, 298, and 187 of ICNT/Rev.2. On the dispute settlement system negotiated at the conference, see Adede, , Law of the Sea: The Scope of the Third-Party Compulsory Procedures for Settlement of Disputes, 71 AJIL 305 (1977)Google Scholar; Ridruejo, Pastor, La solución de controversias en la HI Conferencia de las Naciones Unidas sobre el derecho del mar, 30 Rev. Espanola Derecho Int'l 11 (1977)Google Scholar; Rosenne, , The Settlement of Disputes in the New Law of the Sea, Iranian Rev. Int'l Rel., Nos. 10-11, 1978, at 401 Google Scholar; Sohn, Towards a Tribunal for the Oceans, id., Nos. 5-6, 1975-76, at 247.

60 ICNT/Rev.2 Art. 246, para. 3.

61 This depends on the stringent limitations the ICNT/Rev.2 imposes on compulsory thirdparty settlement in the field of marine scientific research; see Art. 296, para. 2. For an interpretation which (apart from the “military activities” optional exception) would make it possible to submit to third-party compulsory settlement disputes involving the point of whether a research project is conducted “exclusively for peaceful purposes,” see Treves, , Principe du consentement et recherche scientifique dans le nouveau droit de la mer, 84 RGDIP 253, 265 (1980)Google Scholar.

62 Treves, Principe, supra note 61, at 266-68.

63 See, e.g., Dupuy, , Droit déclaratoire et droit programmatoire: de la coutume sauvage à la “soft law,” in Société Franchise De Droit International, Colloque De Toulouse, L'élaboration Du Droit International Public 132–48 (1975)Google Scholar.

64 It would seem that this is the position of D. P. O'Connell (supra note 1 at 159) when he observes that “the persistent lip service” which has been given to the peaceful purposes formula has “created a political milieu in which no credit is likely to accrue to any assailant in the seabed, however defensible its motives.” U. Jenisch (supra note 1 at 66) considers that in contemporary international law the concept of “peaceful purposes” “can only be the basis of confusion.“

65 E.g., Mexico: intervention by J. Castaneda of July 9, 1970, Doc. CCD/PV.477, para. 54, U.S. Arms Control and Disarmament Agency [hereinafter cited as ACDA], [1970] Documents on Disarmament 307.

66 E. D. Brown, supra note 40, at 33; M. W. Janjs, supra note 13, at 91. See also the intervention of the British delegate, Mr. Auckland, at the Seabed Committee on August 23, 1968: UN Doc. A/AC.135/SR.17.

67 Geneva Convention on the Territorial Sea, Art. 2; ICNT/Rev.2, Art. 2, para. 2. Marston, , The Evolution of the Concept of Sovereignty over the Bed and Subsoil of the Territorial Sea, 48 Brit. Y.B. Int'l L. 320 (1976-77)Google Scholar.

68 Provided that it does not create difficulties for the innocent passage of foreign ships.

69 See the table—based upon information available to the FAO in November 1978—in UN Department of Public Information, A Guide to the New Law of the Sea 49 (Reference Paper No. 18, 1979).

70 ICNT/Rev.2 Art. 3.

71 For references to recent practice, see supra note 36. See also the observations by Reisman, supra note 3, at 59; Moore, supra note 3, at 86, 115-16; and B. Conforti, Appunti Dalle Lezioni Di Diritto Internazionale 131-33 (1976).

72 By accepting, for instance, the Ecuadorian proposal contained in Conf. Doc. C.2/Informal Meetings/11 of April 27, 1979.

73 For a review of these treaties, see Brown, , The Demilitarization and Denuclearization of Hydrospace, 4 Annals Int'l Stud. 71 (1973)Google Scholar.

74 Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water of August 8, 1963, 480 UNTS 43, 14 UST 1313, TIAS No. 5433.

75 Art. I, para. 1 (chapeau).

76 Art. I, para. 1(a) and (b).

77 L. Migliorino, supra note 40, at 10; Evensen, supra note 1, at 547.

78 This interpretation was upheld by Japan at the 4th meeting of the 1977 Review Conference of the 1971 Seabed Treaty: Doc. SBT/CONF/SR.4, para. 7. E. D. Brown, Arms Control, supra note 40, at 60, and The Demilitarization, supra note 73, at 11, considers as the “most logical” the interpretation that explosions in the bed of the high seas are in all cases illegal, because this part of the seabed is outside the territorial limits of the state and that, presumably, radioactive debris will be present, at any rate where the explosion has taken place. The logical cogency of this interpretation notwithstanding, it seems to us, as it seems to Brown, that the intention of the parties “was to place the subsoil of the high seas in the same position as the ‘underground’ of national territories, thus banning only those explosions which caused radioactive pollution of the water or the atmosphere.“

79 M. Whiteman, 11 Digest of International Law 791 (1968).

80 See note 2 supra.

81 Art. I, para. 1.

82 The following definition given by the U.S. negotiator seems adequate:

[I]t has … the meaning of embracing nuclear weapons, embracing also chemical and biological weapons and then being open-ended … in order to take care of developments which one cannot specify at the present time, some form of weapon which might be invented or developed in the future, which would have devastating effects comparable to those of nuclear or chemical or biological weapons but which one cannot simply describe at the present time.

Seabed Arms Control Treaty: Hearing on EX. H. 92-1 before the Senate Comm. on Foreign Relations, 92d Cong., 2d Sess. 13 (1972).

83 Nuclear mines moored to the seabed seem to be already included in the nuclear weapons concept. See especially E. D. Brown, Arms Control, supra note 40, at 54-56; L. Migliorino, supra note 40, at 60-61; Goralczyk, , Legal Problems of the Peaceful Uses of the Sea-bed and the Ocean Floor: Denuclearization, 5 Polish Y.B. Int'l L. 43, 51–58 (1972-73)Google Scholar.

84 A further difficulty may reside in drawing a distinction between vehicles that can move only when in contact with the seabed and vehicles navigating at a very short distance from the seabed and possibly resting on it from time to time. The prevalent position is that the latter vehicles are excluded from the treaty prohibitions. This is also the U.S. view: see the statements of Mr. Leonard at the Conference of the Committee on Disarmament (CCD) on Oct. 7, 1969 (Doc. CCD/PV.440, paras. 24-25, reprinted in ACDA, [1969] Documents on Disarmament 479) and before the U.S. Senate's Committee on Foreign Relations (Hearing on EX. H. 92-1, supra note 82, at 6; see also p. 12, Sen. Pell and Mr. Irwin). The same view is held by E. D. Brown, Arms Control, supra note 40, at 58; D. P. O'Connell, supra note 1, at 157; Goralczyk, supra note 83, at 52; Skowronski, , Some Aspects of the Demilitarization of the Sea-bed, in Scientific and Technological Revolution and the Law or the Sea 52, 58 (Frankowska, ed., 1974)Google Scholar.

85 However, it is difficult to distinguish these dual-purpose installations from installations designed for conventional weapons but that also can accommodate nuclear weapons. The records show only the quite obvious U.S. view that “facilities specifically designed for using nuclear weapons or weapons of mass destruction would not, because they could also use conventional weapons, be exempted from the prohibitions” (Mr. Leonard, Oct. 7, 1969, Doc. CCD/ PV.440, para. 24, supra note 84, at 479). E. D. Brown, Arms Control, supra note 40, at 57, rightly observes that “the Treaty seems deficient in this respect.“

86 This is the U.S. position: Mr. Leonard in Hearing on EX. H. 92 -1, supra note 82, at 14-15. Mexico, while taking a strong position for the demilitarization of the seabed, excluded from the objects it wanted banned “those devices of a purely passive or indirect defensive character, such as means of communication, shipping and surveillance” (Castaneda, July 9, 1970, Doc. CCD/PV.477, para. 54, supra note 65, at 307).

87 Art. II. Thus, the zone to which the treaty prohibitions do not apply coincides with the contiguous zone as defined by the Geneva Convention.

88 The U.S. representative emphasized that the reference to the Geneva Convention “in no way implies that any party to the sea-bed treaty which was not a party to the 1958 Convention would find itself bound by or, so to speak, adhering to that Convention” (Oct. 30, 1969, Doc. CCD/PV.447, para. 14, reprinted in ACDA, [1969] Documents, supra note 84, at 512). See also the statement of the Argentinian representative at the meeting of the UN General Assembly's First Committee on Dec. 11, 1969: UN Doc. A/C.1/PV.1722, at 87-92.

89 Statement of the U.S. representative, Mr. Leonard, of Oct. 30, 1969, Doc. CCD/PV.447, para. 13, supra note 88, at 512.

90 Geneva Convention on the Territorial Sea and the Contiguous zone, Art. 7, para. 6, and Resolution VII adopted by the Geneva Conference at its 20th plenary meeting, UN Conference on the Law of the Sea, 2 Official Records 145 (1958).

91 Art. 7, para. 4.

92 See the Soviet intervention in Doc. CCD/PV.440, supra note 84 (Oct. 7, 1969); and D. P. O'Connell, supra note 1, at 155-56.

93 The legislation and other materials are presented in W. E. Butler, The Law of Soviet Territorial Waters 12-15 (1967); and in V. Sebek, 1 The Eastern European States and the Development of the Law of the Sea 166-72 (1977-79).

94 A recent statement of the U.S. position is in A. W. Rovine, Digest of United States Practice in International Law 1973, at 291 (1974). Among legal writers, see especially, L. Bouchez, The Regime of Bays in International Law 281 (1964); C. De Visscher, Problemes De Confins En Droit International 134 (1969); F. Lauria, II Regime Giuridico Delle Baie e Dei Golfi 148-56 (1970).

95 W. E. Butler, supra note 93, at 13-14.

96 See the positions taken by the United States, Japan, and the Federal Republic of Germany and the replies of the USSR in M. Whiteman, 4 Digest of International Law 251 - 5 7 (1965). That the definition of historic bays is still uncertain seems also to emerge from the fact that attempts at codification have been postponed more than once since the Geneva Conferences of 1958 and 1960. Lastly, in 1977 the International Law Commission decided that the subject did not require further consideration in the near future and that it could be taken up in the light of the results of the Third Conference on the Law of the Sea: [1977] 2 Y.B. Int'l L. Comm'n, 2d part, at 127.

97 See Hearing on EX. H. 92-1, supra note 82, at 8, 12.

98 Especially in the light of the so-called disclaimer clause contained in Article IV of the treaty.

99 This appears to be confirmed by a recent modification in the conference's negotiating text (ICNT/Rev.2 Art. 298, para. 1(a)), which provides that compulsory settlement of disputes concerning boundary delimitation or “historic bays or titles” can be excluded by contracting parties by resorting to an optional exception, though these disputes have to be submitted to conciliation. It is well known that excluding compulsory arbitral or judicial settlement on delimitation and on historic bays and titles has been an objective of the USSR throughout the conference: see especially the intervention of the Head of the Soviet delegation, Mr. Kozyrev, at the 106th meeting of the Plenary on May 19, 1978 (UNCLOS III, 9 Off. Rec. 84). See also Irwin, , Settlement of Maritime Boundary Disputes: An Analysis of the Law of the Sea Negotiations, 8 Ocean Dev. & Int'l L, 105 (1980)CrossRefGoogle Scholar.

100 “This provision is designed to leave unaffected the sovereign authority and control of the coastal State within such territorial sea” (Mr. Leonard, United States, at the General Assembly's First Committee, Nov. 16, 1970, UN Doc. A/C.1/PV.1762, at 34-35). “That provision must be interpreted as embodying the intangible rights of all coastal States arising from such sovereignty under international law” (Mr. Roschin, USSR, at the same forum on the same day, id. at 47).

101 Art. I, para. 2.

102 Thus the opinion, upheld by E. D. Brown, Arms Control, supra note 40, at 71, Goralczyk, supra note 83, at 63, and Skowronski, supra note 84, at 55, that the coastal state cannot authorize other states to emplace or emplant in the intermediate zone the weapons and installations considered in the treaty, is acceptable only if one accepts the idea that the coastal state enjoys no such power regarding its continental shelf. The power of the coastal state to authorize other states to utilize the bed of its territorial sea is explicitly linked to the situation of sovereignty there by Mr. Irving, U.S. Under Secretary of State, in Hearing on EX. H. 92-1, supra note 82, at 23.

103 Art. Ill, para. 1. This conclusion was explicitly set forth by the USSR delegate, Mr. Roschin, at the CCD meeting of July 7, 1970 (Doc. CCD/PV.476, para. 71, reprinted in ACDA, [1970] DOCUMENTS, supra note 65, at 297), while rejecting as redundant a Swedish proposal concerning the exclusive right over verification in the intermediate zone.

104 Krieger, , The United Nations Treaty Banning Nuclear Weapons and Other Weapons of Mass Destruction on the Ocean Floor, 3 J. Mar. L. & Comm. 107, 118 (1971)Google Scholar.

105 Treaty for the Prohibition of Nuclear Weapons in Latin America of Feb. 14, 1967, 634 UNTS 364.

106 Art. 1, chapeau.

107 Art. 3.

108 Art. 18.

109 Art. 1(a) and (b).

110 D. P. O'Connell, supra note 1, at 157; Brown, The Demilitarization, supra note 73, at 77. According to the national laws collected by A. Szekely, 1 Latin America and the Law of the Sea (1978), the Latin American states claiming sovereignty over zones of 200 miles are Argentina, Brazil, Ecuador, El Salvador, Panama, and Uruguay. See also Szekely's commentaries in 2 id., ch. IIB, 2(c) and (d). It must be stressed, however, that the term “sovereignty” in the treaty can raise serious difficulties because legislations using it do not always refer to the same fullness of powers to which the Geneva Convention refers regarding the territorial sea, where the only exception is innocent passage.

111 United Nations, Status of Multilateral Arms Regulation and Disarmament Agreements 64-65 (Special supp. to 2 UN Disarmament Y.B. 1977 (1978)). A. Garcia Robles, the Mexican Under Secretary of State who chaired the preparatory commission for the denuclearization of South America, commented upon the UK declaration in the following terms: “it is obvious that no one would contest this statement which, in light of the preparatory work of the treaty, corresponds to what its authors had in mind all the time” (SIPRI Y.B. 1969-70, at 231).

112 3 UN Disarmament Y.B. 1978, at 492 (1979).

113 A map showing the zone to which the treaty will apply according to Art. 4, para. 2 is in SIPRI Y.B. 1972, at 548.

114 These conditions are set out in Art. 28, para. 1.

115 On the Soviet attitude, see SIPRI Y.B. 1972, at 544-45.

116 3 UN Disarmament Y.B. 1978, at 492.

117 D. W. Bowett, The Legal Regime of Islands in International Law 73-113 (1979); B. H. Dubner, The Law of Territorial Waters of Mid-Ocean Archipelagos and Archipelagic States (1976); J. Syatauw, Some Newly Independent States and the Development of International Law 168-82, 185-89 (1961); Amerasinghe, C. F., The Problem of Archipelagos in the International Law of the Sea, 23 Int'l & Comp. L.Q. 538–75 (1974)Google Scholar; Coquia, , Territorial Waters of Archipelagos, 1 Philippine J. Int'l L. 119 (1962)Google Scholar; Evensen, , Certain Legal Aspects Concerning the Delimitation of the Territorial Waters of Archipelagos, 1 UN Conference on The Law of the Sea, Official Records 289–302 (1958)Google Scholar; Kusumaatmadja, , The Legal Regime of Archipelagos: Problems and Issues, in The Law of the Sea: Needs and Interests of Developing Countries 166 (Alexander, ed., 1973)Google Scholar; O'Connell, , Mid-Ocean Archipelagos in International Law, 45 Brit. Y.B. Int'l L. 1–72 (1971)Google Scholar; Sorensen, , The Territorial Sea of Archipelagos, 6 Neth. Int'l L. Rev. Supp. 315 (1959)Google Scholar.

118 ICNT/Rev.2 Arts. 46-54.

119 ICNT/Rev.2 Art. 46.

120 Set forth in Arts. 46(a) and 47, paras. 2 - 8 .

121 Art. 47, para. 1.

122 Art. 48.

123 Art. 49, para. 1.

124 Art. 49, paras. 1 and 2.

125 Art. 50.

126 Art. 48.

127 Art. 52.

128 Art. 53. According to paragraphs 1 and 2, if the archipelagic state designates “sea lanes and air routes thereabove” for archipelagic passage, the right of overflight undoubtedly exists: see Oxman, , The Third United Nations Conference on the Law of the Sea: The 1977 New York Session, 72 AJIL 57, 66 (1978)CrossRefGoogle Scholar, and Moore, supra note 3, at 110-11. When the archipelagic state does not designate such sea lanes and air routes, Article 53, paragraph 12 provides that “the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation.” The implication seems to be that the right to fly “thereabove” is included, but the language could open the way to disagreement over this interpretation.

129 Philippine note of Dec. 12, 1945 to the UN Secretary-General, in UN, Laws and Regulations on the Regime of the Territorial Seas 39-40 (ST/LEG/SER.B/6, 1957); Philippine Republic Act No. 3046 of June 17, 1961, sec. 2, UN, National Legislation and Treaties Relating to the Law of the Sea 103 (ST/LEG/SER.B/15, 1970); Philippine Constitution of Jan. 17,1973,Art. l,sec. 1, National Legislation and Treaties Relating to the Law of the Sea 30 (ST/LEG/SER.B/18, 1976). Indonesian communique of Dec. 13, 1973 (in J. Syatauw, supra note 117, at 173); Indonesian Act No. 4 of Feb. 18, 1960, Art. 1(1), in UN Doc. A/CONF.- 19/5/Add. 1, at 3; see also the Indonesian reservations to the Geneva Convention on the High Seas, in Multilateral Treaties in Respect of which the Secretary-General Performs Depositary Functions 559 (ST/LEG/SER.D/12, 1979).

130 p o r a s u n l r nary, see M. Whiteman, 4 Digest of International Law 282-85 (1965). For a discussion of the relevance of these protests, see O'Connell, Mid-Ocean Archipelagos, supra note 117, at 60-69. See also the objections to Indonesia's reservations to the Geneva High Seas Convention by Australia, Denmark, the Federal Republic of Germany, Japan, Madagascar, the Netherlands, Thailand, the United Kingdom, and the United States (Multilateral Treaties, supra note 129, at 561-62). Fiji and Tonga accepted the Indonesian reservations, while stressing the continuing existence of the right to innocent passage through the waters which, before being included in Indonesian internal waters, belonged to the high seas (ibid.).

131 Algeria, UNCLOS III, 2 Off. Rec. 271. See also the United Kingdom, id. at 261, and the USSR, id. at 266.

132 Philippines, id. at 264.

I33 Mauritius, id. at 269.

134 For example: Japan, id. at 261; Bulgaria, ibid.; the Netherlands, id. at 262; France, id. at 263; the USSR, id. at 266; Egypt, id. at 268; Singapore, ibid.; Canada, id. at 271.

135 Since the compromise that appears in Arts. 117-131 of part II of the 1975 Single Negotiating Text (UNCLOS III, 4 OFF. REC. 168) was reached, there have been only minorchanges, the essential aspects remaining unchallenged. Yet, states with offshore archipelagoes would also like to apply the archipelagic waters concept to these archipelagoes.

136 This would seem to be the situation in the light of the weakening of the protests against archipelagic states during the Third Law of the Sea Conference and of the fact that some leading maritime states actively participated in the elaboration of proposals on the subject. Most authors do not try to assess the situation as it stands but prefer to formulate guidelines for the solution of the problem on ade legeferenda basis; see, e.g., Amerasinghe, supra note 117, at 575; O'Connell, Mid-Ocean Archipelagos, supra note 117, at 75-77; B. H. Dubner, supra note 117, at 67-81.

137 This would be one of the consequences mentioned above (sec. I, “The Evolving Legal Framework“) of the accelerating effect of general diplomatic conferences on state practice and of decisionmaking by consensus in such conferences. On the importance of the compromise on archipelagoes, see Stevenson, & Oxman, , The Third United Nations Conference on the Law of the Sea: The 1975 Geneva Session, 69 AJIL 763, 784–85 (1975)Google Scholar.

138 See, e.g., the Philippines, Second UN Conference on the Law of the Sea, Official Records 51, and Indonesia, UNCLOS III, 2 Off. Rec. 260. Also D. W. Bowett, supra note 117, at 98-102.

139 The exception, among legal writers, seems to be Amerasinghe, supra note 117, at 571.

140 The Seychelles Maritime Zones Act, 1977 defines the “limits” of the various maritime zones by referring to “the individual or composite group or groups of islands constituting the territory of Seychelles” (National Legislation and Treaties Relating to the Law of the Sea 112, ST/LEG/SER.B/19 prel. issue, 1978).

141 Gayan, , Mauritius and the Law of the Sea, Iranian Rev. Int'l Rel., Nos. 11-12, 1978, at 220–21 Google Scholar; see also D. W. Bowett, supra note 117, at 92.

142 See M. S. Mcdougal & W. T. Burke, supra note 5, at 716-24; E. D. Brown, Arms Control, supra note 40, at 22-33; U. Jenisch, supra note 1, at 84-87; W. KÜhne, Das Völkerrecht und die MilitÄrische NÜtzung des Meeresbodens 39 - 59 (1975); B. RÜster, supra note 1, at 224-27; Baxter, , Legal Aspects of Arms Control Measures Concerning the Missile, Submarine and Anti-Submarine Warfare, in The Future of the Sea-Based Deterrent 209, 218–19 (Tsipis, ed., 1979)Google Scholar; Gehring, supra note 1, at 188-95; Knight, , The Law of the Sea and Naval Missions, U.S. Naval Inst. Proc, June 1977, 32, 37, 39Google Scholar; O'Connell, , Resource Exploitation, the Law of the Sea and Security Implications, in New Strategic Factors in the North Atlantic 160–67 (Bertram, & Hoist, eds., 1977)Google Scholar; Petrowski, supra note 1, at 279.

143 ICNT/Rev.2, pts. V and VI, respectively. On the relationship between these two parts, see R. J. Dupuy, supra note 1, at 112-14; Pistorelli, , La piattaforma continentale: Un istituto ancora vitale?, 61 Rivista Diritto Internazionale 496 (1978)Google Scholar; Phillips, , The Exclusive Economic Zone as a Concept in International Law, 26 Int'l & Comp. L.Q. 585, 614–15 (1977)Google Scholar; Pulvenis, , Zone économique et plateau continental—Unite ou dualite?, Iranian Rev. Int'l Rel., Nos. 11-12, 1978, at 103–20 Google Scholar.

144 ICNT/Rev.2 Art. 56, para. 1(a).

145 ICNT/Rev.2 Art. 76.

146 The only discrepancy seems to concern the laying of cables and pipelines. According to Article 58, paragraph 1, all states enjoy the freedom to lay cables and pipelines in the economic zone, while Article 79, paragraph 3 provides that on the continental shelf “the delineation of the course” for the laying of cables and pipelines “is subject to the consent of the coastal State.” See Phillips, supra note 143, at 615, and R. J. Dupuy, supra note 1, at 112. As Article 58 states that the freedoms it mentions are to be enjoyed “subject to the relevant provisions of this Convention,” and as Article 79, paragraph 1 states that “[a]ll States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance with the provisions of this article,” it seems that the requirement of the coastal state's consent to the delineation of the course for the cable or pipeline is a modality of the exercise of this freedom, which thus applies to the shelf as a whole and so also within the 200-mile line. Therefore, no contradiction seems to exist. Another interpretation would lead to the absurd result that the coastal state would have more powers over the continental margin beyond the 200-mile limit than within that limit.

147 ICNT/Rev.2 Arts. 80 and 60.

148 ICNT/Rev.2 Art. 56, para. 3.

149 On scientific research on the continental shelf beyond 200 miles, see infra note 220.

150 Pistorelli, supra note 143, at 503. ,

151 ICNT/Rev.2 Art. 77, para. 3.

152 Pistorelli, supra note 143, at 504.

153 ICNT/Rev.2 Arts. 58 and 59.

154 For further developments, see “The New Law of the Sea,” in this section infra.

155 Among the elements upholding this view, the most persuasive seem to be the following: (1) that even states not yet ready to accept the notion of the exclusive economic zone have proclaimed 200-mile fisheries zones, in particular the United States, the USSR, the EEC countries, and Japan; (2) that bilateral fisheries agreements have been concluded recognizing the rights of states that have proclaimed fisheries or economic zones (see, e.g., the agreement cited supra at note 32); and (3) that multilateral regional fisheries agreements have been abrogated and renegotiated for the purpose of taking into account the coastal states’ claims to sovereign rights over fisheries in 200-mile zones (see, e.g., the Convention on future Multilateral Cooperation in the Northwest Atlantic Fisheries, opened for signature at Ottawa on Oct. 24, 1978, 21 O.J. EUR. Comm. (No. C 271) 2 (1978)).

156 See Kiss, , La pollution du milieu marin, 38 Zeitschrift für Auslandisches Offentliches Recht und Volkerrecht 903, 929–31 (1978)Google Scholar; Treves, Principe, supra note 61, at 266-68.

157 ICNT/Rev.2 Art. 56.

158 UN Doc. A/CONF. 13/C.4/L.57, UN Conference on the Law of the Sea, 5 Official Records 141 (1958). The Bulgarian proposal (which was withdrawn in favor of the Indian one) was formulated as follows: “The Coastal State shall not use the continental shelf for the purposes of building military bases or any installations which are directed against other States.” In a revised version, the words “which are directed against other States” were deleted: UN Doc. A/CONF.13/C.4/L.41 and L.41/Rev.1, id. at 137.

159 TJN Conference on the Law of the Sea, 6 Official Records 91.

160 Id. at 73. See also the Indian intervention at p. 85 and the one by the USSR at p. 77.

161 Id. at 83.

162 Intervention by India: id. at 85. See also O. De Ferron, 2 Le Droit International De La Mer 213 (1960).

163 This implies that on the continental shelf the residuary rule of allocation of powers between the coastal state and the generality of states is in favor of the latter because of the functional character of the rights of the coastal state. They are limited to the purposes of exploration and exploitation of resources, while the freedom of the high seas has a general character. Consequently, whenever the functional rights of the coastal state are not involved, the general rule, which obviously applies to the coastal state also, prevails. This view—though rejected by some writers, e.g., E. D. Brown, Arms Control, supra note 40, at 27-28, and Burke, W. T., Contemporary Legal Problems in Ocean Development, in Sipri, Towards a Better Use of the Ocean 13, 111–12 (1969)Google Scholar—not only is upheld by the above-quoted travaux of Geneva and seems to be accepted by the USSR (UN Doc. A/C.1/PV.1605, meeting of Nov. 11, 1968), but also seems to correspond to the assessment of the present state of the law prevailing at the Third Law of the Sea Conference. The discussions at the conference on the “residuary rule” to be applied to the economic zone appear to indicate that states agree in thinking that such a rule exists in the traditional law of the sea regarding the high seas. The same conclusion seems to ensue from the discussions at the conference on the legality of mining the deep seabed. One position is that the freedom of the high seas includes this activity. The position opposing it relies, more than on the idea that there is no treaty or custom specifically permitting seabed mining, on the alleged existence of a rule forbidding it, a rule that would be evidenced by the Declaration of Principles of 1970: see UN Docs. A/CONF.62/BUR/SR.41 (1978) and A/CONF.62/SR.- 109 (1978) (see also infra sec. V).

164 Geneva Convention on the Continental Shelf, supra note 24, Art. 5.

165 Id., Art. 5, para. 5. The establishment of safety zones (Art. 5, paras. 2 and 3) is something the coastal state is entitled, but not obliged, to do.

166 Id., Art. 5, para. 5. On the environmental implications of this article, see Treves, , La pollution résultant de l’exploration et de l’exploitation desfonds rnarins en droit international, 24 Annuaire Francais Droit Int'l 827, 835 (1978)CrossRefGoogle Scholar. Commenting on a case decided by the French Conseil d'Etat, Dec. 4, 1970, 99 Journal Droit Int'l 572 (1970), in which an abandoned target moored to the continental shelf by the French Navy had caused damage to a ship navigating in the area, Queneudec (id. at 577-78) makes the point that the use of the continental shelf for military activities is to be considered lawful because it is not forbidden by international law. Consequently, the rule on removal of installations should also apply to military installations “by analogy and for the same reasons of navigational security.” It would seem that it is not necessary to invoke analogy. The application of the rule to military installations is a consequence of the need to ensure reasonable regard for the interests of other states in their exercise of the freedom of the high seas. There is also a literal argument in this direction: Article 5, paragraph 5 of the Continental Shelf Convention says that “any” installations must be removed, and thus not only those for exploration and exploitation.

167 Geneva Convention on the Continental Shelf, supra note 24, Art. 5, para. 6.

168 Id., Art. l.para. 2.

169 Id., Art. 5, paras. 1 and 4.

170 which might be considered included in the freedom to lay cables: see O'Connell, Resource Exploitation, supra note 142, at 167.

171 Though the legal premises are different, this conclusion seems to be equivalent, in practice, to that reached, on considerations of policy, by M. S. McDougal & W. T. Burke, supra note 5, at 724, and by Petrowski, supra note 1, at 289. According to McDougal and Burke, the emplacement of military installations on the continental shelf “should come within the same exclusive authority” (of the coastal state); this use of the continental shelf by the coastal state “should be regarded as reasonable, subject to the requirement of relatively slight interference with navigation” (ibid.). For reasoning closer to that followed in the text: Baxter, supra note 142, at 218-219.

172 Buzan, , A Sea of Troubles?, 143 Adelphi Papers 12 (1978)Google Scholar, observes that “a dispute arising out of the detection of unsuspected military devices could be quite serious if both parties stood by what they felt to be their rights.

173 Knight, supra note 93, at 37.

174 Geneva Convention on the Continental Shelf, supra note 24, Art. 5, para. 8. See also this section infra, “ Installations and Equipment for Military Scientific Research.“

175 See the references at note 6.

176 UN Conference on the Law of the Sea, 6 Official Records 83 (but see also 85) (1958).

177 UN Doc. A/C.1/PV.1763, at 4: intervention of Mr. Garcia Robles of Nov. 17, 1970.

178 Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 111, at 111. See also Jain, , India and the Sea-Bed Arms Control Treaty, 30 India Q. 300 (1974)CrossRefGoogle Scholar.

179 Doc. SBT/CONF/SR.5, paras. 11-14 (and corrigendum thereto).

180 Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 111, at 108-09.

181 UN Doc. A/CONF.62/C.2/L.42/Rev.1 (1974), 3 Off. Rec. 220. The original Mexican proposal, UN Doc. A/CONF.62/C.2/L.42, was limited to military installations and appliances.

182 Arbitral award of June 30, 1977, supra note 28, para. 161.

183 Purver, Canadian Foreign Policy and the Military Uses of the Seabed, in Canadian Foreign Policy and the Law of the Sea 202, 245–46 (Johnson, & Zacher, , eds., 1977)Google Scholar. See also Buzan, supra note 172, at 12. According to Stevenson, and Oxman, , The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session, 69 AJIL 1, 23–24 (1975)Google Scholar, the U.S. position seemed to be that “arms control questions were more properly addressed in other forums and could complicate the negotiations.“

184 5 Off. Rec. 54-68.

185 Buzan, supra note 172, at 12.

186 ICNT/Rev.2 Art. 60, para. 1(a).

187 ICNT/Rev.2 Art. 60, para. 1(b).

188 ICNT/Rev.2 Art. 56, to which reference is made in Art. 60, para. 1(b).

189 ICNT/Rev.2 Art. 60, para. 1(c).

190 Stevenson and Oxman, The 1975 Geneva Session, supra note 137, at 777, observe that this provision “ ‘tilts’ heavily towards the coastal state even with respect to noneconomic installations in the economic zone.“

191 Art. 5, para. 2.

192 Art. 60, paras. 1(b) and (c). This variation was introduced by the Evensen Group during the 1975 Geneva session. See the group's final document on the economic zone in Third United Nations Conference on the Law of the Sea, Documents of the Geneva Session 273 (ed. Platzöder, 1975), Arts. 1, para. 1(c) and 4, para. 1(b). This variation in the English text notwithstanding, the original translation of “devices” as “dispositifs” was maintained for translating “structures” in the French version of the various negotiating texts up to the ICNT/Rev. 1 (1977). The French language group of the Drafting Committee proposed adoption of the term “ouvrages,” which is closer to “structures“: Conf. Doc. FLGDC/1 (May 11, 1979). This proposal was adopted in the French version of the ICNT/Rev.2.

193 Indications are in the Evensen text,supra note 192, Art. 1, para. 1(c) and in the ICNT/Rev.2 Art. 1, para. 5, which speak of “installations and similar structures” and of “platforms and other man-made structures at sea.“

194 Clingan, in Law of the Sea: Neglected Issues, supra note 23, at 418, argues, in the same vein, that under Art. 60 of the ICNT any installation which falls within one of the three categories listed therein is prohibited, while any installation “which does not fall in these categories is not prohibited, be it military or not.” Fraser, id. at 401, argues that Art. 60 “implicitly” prohibits military installations, and the same view seems to be held by D. W. Bowett, supra note 117, at 122.

195 However, a Soviet proposal aiming at making this freedom somewhat more explicit (Conf. Doc. NG.6/8 of April 18, 1979, in Dokumente Der Dritten Seerechtskonferenz Der Vereinten Nationen—genfer Session 1979, at 640 (ed. Platzoder, 1979)) did not obtain enough support and did not find its way into the ICNT/Rev.1.

196 Oxman, The 1977 New York Session, supra note 128, at 67-75; Treves, , La Conferenza sul diritto del mare dal “Testo unico riveduto” del 1976 al “Testo composito informale di negoziato” del 1977, 60 Riv. Diritto Internazionale 566, 569–72 (1977)Google Scholar.

197 ICNT/Rev.2 Art. 55.

198 ICNT/Rev.2 Art. 58, para. 1.

199 Supra note 170.

200 ICNT/Rev.2 Art. 56, para. 2.

201 ICNT/Rev.2 Art. 58, para. 3.

202 Moore, intervention in New Trends in Maritime Navigation 32 (Proceedings of the 4th International Ocean Symposium, Nov. 20-22, 1979, the Japan Shipping Club, Tokyo, 1980).

203 iCNT/Rev.2 Art. 59.

204 ICNT/Rev.2 Art. 59. This rule was first introduced in 1975: UN Doc. A/CONF.62/WP.8, pt. II, Art. 47(3), 4 OFF. REC. 159.

205 First of all, it has to be established that the dispute concerns the “interpretation or application” of the convention, as the means of settlement provided for in the ICNT/Rev.2 apply only to these disputes (Arts. 279 ff.). This obstacle overcome, it has to be determined whether the dispute relates to the “exercise” by a coastal state of its sovereign rights or jurisdiction (Art. 296, para. 1). If the answer is in the negative (because one considers that a question regarding the existence of these rights is different from one regarding their exercise), resort to arbitral or judicial procedures is possible. If the answer is in the affirmative, in order to resort to arbitral or judicial settlement, the dispute must be included in those listed in Article 296, para. 1 of the ICNT/Rev.2. Paragraph 1(a) seems particularly relevant, as it considers the case

when it is alleged that a coastal State has acted in contravention to the provisions of this Convention in regard to the freedoms and rights of navigation or overflight or of the laying of submarine cables and pipelines or other internationally lawful uses of the sea specified in article 58.

Even when applicable in principle, arbitral or judicial means of settlement must be ruled out if the already mentioned optional exception for military activities included in Article 298, paragraph 1(b) is applicable.

206 Brown, , The Exclusive Economic Zone: Criteria and Machinery for the Resolution of International Conflicts Between Different Users of the EEZ, 4 Mar. Pol'y & MGMT. 325, 338–44 Google Scholar.

207 Fisheries Jurisdiction case, supra note 28, at para. 74; North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark, Federal Republic of Germany v. Netherlands), Judgment of Feb. 20, 1969, [1969] ICJ REP. 3, especially para. 85. See the observations of Brown, Exclusive Economic Zone, supra note 206, at 343-44.'

208 Skeptical observations on the legal effects of this provision are in Queneudec, , Un Problème en suspens: la nature de la zone économique, Iranian Rev. Int'l Rel., Nos. 4 - 5, 1975-76, at 39, 40 Google Scholar; and in Gündling, , Die exclusive Wirtschaftszone, 38 Zeitschrift für Auslandisches Öffentliches Recht und VÖlkerrecht 616, 654–55 (1978)Google Scholar.

209 According to Riphagen, supra note 27, at 170-71 n.96, the legal importance of Article 59 is mostly negative “as it rules out ‘residual’ rights of the coastal State.“

210 While it would seem difficult to rely on self-defense for the purpose of justifying the emplacement of military objects on the seabed of another state (see E. D. BROWN, supra note 40, at 29-32), in some instances, especially when the objects emplaced are weapons, it appears possible to do so in order to justify the removal of the objects emplaced by another state. This position can be upheld either by accepting the interpretation that anticipatory self-defense is admissible under international law, or by relying on the fact that removal of the objects may be considered as not constituting use of force against a state and that it would fall into a concept of self-defense broader than that envisaged in Article 51 of the UN Charter.

211 ICNT/Rev.2 Art. 76.

212 Art. 1, Continental Shelf Convention, supra note 24.

213 See, e.g., the agreement on delimitation quoted in note 32 supra.

214 See the references in notes 65 and 66 supra.

215 N. Papadakis, The International Legal Regime of Artificial Islands 205-25 (1977); Caflisch, & Piccard, , The Legal Regime of Marine Scientific Research and the Third United Nations Conference on the Law of the Sea, 38 Zeitschrift Ausl. Oeff. R. U. Volkerrecht 848, 882–90 (1978)Google Scholar; Yusuf, , Towards a New Legal Framework for Marine Research: Coastal-State Consent and International Coordination, 19 Va. J. Int'l L. 411, 427 (1979)Google Scholar.

216 ICNT/Rev.2 Art. 258.

217 ICNT/Rev.2 Art. 246, paras. 1 and 2.

218 ICNT/Rev.2 Art. 246, para. 4(c).

219 ICNT/Rev.2 Art. 246, paras. 4(a) and (b).

220 It must be added that even when these conditions are met the coastal state “may not exercise” its discretion when research of direct significance for the exploration and exploitation of resources is to take place on the continental shelf beyond the 200-mile limit, provided, however, that the area where the research is conducted has not been publicly designated as an area “in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time” (ICNT/Rev.2 Art. 246, para. 6). This is the outcome of a long negotiation aiming at a compromise between states wishing to have the same regime for research on the continental shelf both within and beyond the 200-mile line and those maintaining that the regime of research on the outer continental shelf should be as liberal as possible. Compare Art. 246 ftis(b) in UN Doc. A/CONF.62/91 (1979) and the Soviet proposal cited in note 195 supra.

221 ICNT/Rev.2 Art. 246, para. 3.

222 See supra sec. I, “Peaceful Purposes.“

223 See Art. 296, para. 2 of the ICNT/Rev.2, and the comments by Caflisch & Piccard, supra note 215, at 877-78 and by Treves, Principe, supra note 61, at 264-65.

224 ICNT/Rev.2 Art. 246, para. 1.

225 Treves, Principe, supra note 61, at 267.

226 Supra sec. II.

227 ICNT/Rev.2 Art. 55.

228 This question has been asked regarding the reference to the “high seas” contained in Article 12 of the 1944 Chicago Convention on Civil Aviation: does this reference in the conditions now prevailing exclude the economic zone? Compare Heller, Airspace ewer Extended Jurisdictional Zones, in The Law of the Sea: Neglected Issues, supra note 23, at 135, 144-48, and Hailbronner, id. at 154.

229 This seems to be confirmed by the Legal Adviser to the Department of State, who stated that “the phrase ‘including territorial waters or high seas’ is illustrative and not limiting“: M. Whiteman, 11 Digest of International Law 790 (1968).

230 See supra sec. II

231 Arts. I and II: see supra sec. II.

232 ICNT/Rev.2 Art. 33, para. 2.

233 Larson, supra note 5, at 50-51.

234 The opposite line of reasoning seems to have been taken by the USSR, whose representative said at the United Nations on Nov. 11, 1968: “if we should prohibit military uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction, we would, as it were, be permitting the use of the continental shelf for military purposes” (UN Doc. A/C.1/PV.1605, para. 39).

235 E. D. Brown, Arms Control, supra note 40, at 28.

236 Art. IV.

237 Art. III. Apart from the unilateral “observation” set forth in paragraph 1, the procedures for verification considered in the article have never been utilized: Final Act of the 1977 Review Conference under Art. I l l, in UN Doc. SBT/CONF/25/II. The article is analyzed by E. D. Brown, Arms Control, supra note 40, at 75-88, and by L. Migliorino, supra note 40, at 73-89.

238 See supra sec. IV, “The Traditional Law of the Sea.“

239 Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 111, at 109-11. This does not mean that it is possible to agree with these states on the rights which international law recognizes for the coastal state on the shelf. See also id., the objections by the Federal Republic of Germany, the United States, and the United Kingdom.

240 Art. I l l, para. 5.

241 Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 111, at 108.

242 Decree Law No. 1098 of March 25, 1970, Art. 3, National Legislation and Treaties Relating to the Law of the Sea (ST/LEG/SER.B/16, at 3, 1974); A. Szekely, supra note 110, vol. 2, Booklet 3, at 49 (Jan. 1978).

243 Status of Multilateral Arms Regulation and Disarmament Agreements, supra note 111, at 113.

244 Id. at 111, 113.

245 GA Res. 2749 (XXV) of Dec. 17, 1970, para. 1; ICNT/Rev.2 Art. 136.

246 ICNT/Rev.2 Art. 153, para. 1.

247 ICNT/Rev.2, Ann. Ill, Art. 16.

248 ICNT/Rev.2 Art. 153, para. 2.

249 “The Area and its resources are the common heritage of mankind“: ICNT/Rev.2 Art. 136 (emphasis added).

250 ICNT/Rev.2 Arts. 143(3), 256, and 257. The proposals for an “internationalization of research” in the Area (see, e.g., the Iranian intervention at the 68th meeting of the Plenary, 5 OFF. REC. 66) had no further consequence than the adoption of rules permitting the Authority to engage in marine scientific research “concerning the Area and its resources” and providing that states shall promote scientific cooperation in the Area (ICNT/Rev.2 Art. 143, paras. 2 and 3).

251 Compare Art. 141 with Art. 88 of ICNT/Rev.2.

252 Compare Art. 137, para. 1 with Art. 89 of ICNT/Rev.2.

253 ICNT/Rev.1, Ann. II, Art. 2, para. 1(d). The article was deleted from the ICNT/Rev.2 “since the nature of prospecting activities is such that it is unlikely to have such major effects as to cause irreparable harm to the marine environment or interfere seriously with other uses of the Area” (UN Doc. A/CONF.62/91, at 39 (1979)).

254 Art. 147, para. 1.

255 Even apart from the distinction in the text, the literature on the consequences of the common heritage principle for military activities is scant. See, however: O'Connell, Resource Exploitation, supra note 142, at 166-67; Buzan, supra note 172, at 13-14; Booth, supra note 23, at 354-56.

256 ICNT/Rev.2 Art. 147, paras. 1 and 3.

257 ICNT/Rev.2 Art. 147, para. 2. The main difference between this provision and the rules on installations in the economic zone and on the continental shelf (Arts. 60 and 80) seems to be that the establishment of safety zones is compulsory, while, according to the articles just mentioned, it is a right of the coastal state.

258 ICNT/Rev.2, Ann. III, Art. 2, para. 1(b).

259 ICNT/Rev.2, Ann. III, Art. 6.

260 Besides the already mentioned article on marine scientific research, see the definition of “activities in the Area” as the “activities of exploration for, and exploitation of, the resources of the Area” (ICNT/Rev.2 Art. 1). This definition entails a substantial limitation to the scope of the Authority's powers in most articles of part XI of the ICNT/Rev.2. However, for an indication of the potential for expansion of the powers of the Authority, see Darman, supra note 3, at 387.

261 ICNT/Rev.2 Art. 187(a).

262 Regarding disputes with the Authority, the Chamber has jurisdiction over those that concern acts or omissions violating part XI of the convention (or the annexes thereto, or the rules, regulations, and procedures promulgated in accordance with it) or acts of the Authority alleged to be in excess of jurisdiction or misuse of power (ICNT/Rev.2 Art. 187(b)). The state whose military objects on the seabed are interfered with by mining activities could claim that the Authority, in granting exclusive rights to the mining entity, has violated the rule of Article 147 on accommodation of uses. The same article could be invoked by the Authority against the emplacement of military objects in a zone of the seabed for which it has granted a mining contract. It would seem, however, that both of these claims would be quite indirect. Concerning disputes with the Enterprise, there seems to be no possibility of bringing them before the Chamber because such disputes are taken into account by the negotiating text only when they arise between the parties to a contract for exploration and exploitation (ICNT/Rev.2 Art. 187(c)).

263 See especially the interventions of the Group of 77's spokesman, the representative of Fiji, on Aug. 28 and Sept. 15, 1978: UN Docs. A/CONF.62/BUR/SR.41 and A/CONF.62/ SR.109. The full text of the latter intervention is reprinted in 10 Law. Americas 977 (1978). See also UN Doc. A/CONF.62/77 (April 25, 1979), with a memorandum by a special group of legal experts of the Group of 77. See also Vicuna, Orrego, Les législations nationales pour l'exploitation desfonds des mers et leur incompatibilité avec le droit international, 24 Annuaire FranÇais De Droit Int'l 810–26 (1978)CrossRefGoogle Scholar.

264 See especially the interventions by the U.S. representative on Aug. 28 and Sept. 15, 1978: UN Docs. A/CONF.62/BUR/SR.41 and A/CONF.62/SR.109, the latter being reprinted in 10 Law. Americas 981 (1978). See also the interventions by France, the Federal Republic of Germany, Italy, Belgium, Japan, the Netherlands, and the United Kingdom in UN Doc. A/CONF.62/SR.109 (1978). Among legal writers, T. G. Kronmiller, The Lawfulness of Deep Seabed Mining (1979); Burton, , Freedom of the Seas: International Law Applicable to Deep Seabed Mining Claims, 29 Stan. L. Rev. 1135 (1977)CrossRefGoogle Scholar; Jackson, , Deepsea Ventures: Exclusive Mining Rights to the Deep Seabed as a Freedom of the Sea, 28 Baylor L. Rev. 170 (1976)Google Scholar.

265 This kind of provision is included in the U.S. Deep Seabed Hard Minerals Resources Act of 1980, Pub. L. No. 96-283 §403 (see also §§102(c) and 201), 94 Stat. 553. The international arrangements mentioned in the text could include the “mini-treaty” envisaged by Darman, supra note 3, at 393-95, and criticized by Orrego Vicuna, supra note 263, at 824.

266 Canadian intervention of March 6, 1972, at the Seabed Committee (UN Doc. A/AC.138/ SC.1/SR.33), and Iranian intervention at the Third Law of the Sea Conference on April 26, 1976, UNCLOS III, 5 OFF. REC. 66 (especially para. 26). E. LUARD, supra note 1, at 243.

267 ICNT/Rev.2 Art. 153, para. 5.

268 ICNT/Rev.2, Ann. I l l, Art. 18.

269 ICNT/Rev.2, Ann. Ill,-Art. 4, para. 2.

270 Seabed Treaty Art. I l l, para. 5.

271 L. Migliorino, supra note 40, at 85-87.