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The Third United Nations Conference on the Law of the Sea: the 1976 New York Sessions*

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman
Bernard H. Oxman*
Affiliation:
U.S. Representative and Deputy Chief of Delegation, 1976 New York Sessions of the Law of the Sea Conference; Assistant Legal Adviser for Oceans, Environment and Scientific Affairs, U.S. Department of State
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Extract

The law of the sea has changed, for good or for ill. The Revised Single Negotiating Text (hereinafter RSNT) issued in the spring of 1976 may prove to be the single most important document regarding the law of the sea since the 1958 Geneva Conventions in terms of its influence on state practice, whether by way of an ultimate treaty or otherwise. Important differences will exist regarding the extent to which portions of the text are declaratory of emerging customary international law and regarding the extent to which the text must be changed to be acceptable as a universal treaty or as customary law. Indeed, difficult questions of implementation of its principles in bilateral and other arrangements are already arising. Positions taken at multilateral conferences may differ from the positions taken in other contexts. But the text will not be ignored.

Type
Research Article
Information
American Journal of International Law , Volume 71 , Issue 2 , April 1977 , pp. 247 - 269
Copyright
Copyright © The American Society of International Law 1977

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Footnotes

** The views expressed herein are those of the author and do not necessarily represent the views of the Department of State or the U.S. Government.
*

This article is a sequel to Stevenson & Oxman, The Preparations for the Law of the Sea Conference, 68 AJIL 1 (1974); The Third United Nations Conference on the Law of the Sea: the 1974 Caracas Session, 69 AJIL 1 (1975); and The Third United Nations Conference on the Law of the Sea: the 1975 Geneva Session, 69 AJIL 763 (1975).

References

1 Revised Single Negotiating Text, U.N. Doc. A/Conf.62/WP.8/Rev.1, May 6, 1976 (hereinafter RSNT).

2 Informal Single Negotiating Text, UN Doc. A/Conf.62/WP.8 , May 7, 1975; reprinted at 14 ILM 682 (1975). See also Stevenson, & Oxman, , The Third United Nations Conference on the Law of the Sea: the 1975 Geneva Session, 69 AJIL 763–64 (1975)CrossRefGoogle Scholar.

3 Note 1, supra.

4 UN Doc. A/Conf.62/WP.9/Rev.1, May 6, 1976. 15 ILM 61 (1976).

5 UN Doc. A/Conf.62/L.16 (Committee I), L.17 (Committee II), L.18 (Committee III), Sept. 16, 1976.

6 UN Doc. A/Conf.62/WP.9/Rev.2, Nov. 23, 1976.

7 UN Doc. A/Conf.62/L.13, July 26, 1976.

8 The Introductory Note to the RSNT by the President of the Conference concludes: The President presents these texts to the Conference as a procedural device to carry forward the process of negotiation in the expectation and the hope that the future negotiations will help towards the attainment of general agreement in keeping with the letter and spirit of the “Gentleman’s Agreement” regarding the conclusion of a Treaty or a Convention by consensus.

The text of the “Gentleman’s Agreement” can be found in the Appendix to the Rules of Procedure of the Conference, UN Doc. A/CoNF.62/30/Rev.2.

9 The following ten points were elaborated in Stevenson & Oxman, supra note 2, at 764–65:

  • (1)

    (1) a maximum 12–mile limit for the territorial sea, over which the coastal state will have sovereignty, subject to a right of innocent passage, with some elaboration of the rules of innocent passage;

  • (2)

    (2) unimpeded passage of straits used for international navigation for all vessels and aircraft;

  • (3)

    (3) a 200–mile economic zone in which the coastal state exercises sovereign rights over the exploration, exploitation, conservation, and management of living and nonliving resources and in which all states continue to enjoy freedoms, in particular of navigation and overflight and other uses related to navigation and communication; coastal state sovereign rights over the exploration and exploitation of the resources of the seabed and subsoil of the continental margin where it extends beyond 200 miles, coupled with a duty to contribute some international payments in respect of mineral production in the area of the margin beyond 200 miles;

  • (4)

    (4) comprehensive coastal state control of all drilling and of all economic installations in the economic zone;

  • (5)

    (5) some adjustment and modernization of the regime of the high seas, for example the recognition of the special interest and responsibility of the state of origin for anadromous species of fish and new rules with respect to control of unauthorized broadcasting and cooperation in the suppression of illicit traffic in narcotics;

  • (6)

    (6) an elaboration of a concept of island nations as archipelagic states which includes a precise definition of a new category of archipelagic waters and a regime of unimpeded passage through archipelagic sealanes and air routes that traverse the archipelago;

  • (7)

    (7) international standards to prevent and control marine pollution, and limited coastal state enforcement rights with respect to vessel–source pollution;

  • (8)

    (8) specified coastal state and flag state rights and duties with respect to scientific research in the economic zone and on the continental shelf, and general provisions regarding international cooperation in marine scientific research and transfer of marine technology;

  • (9)

    (9) an international regime and machinery to deal with the exploration and exploitation of seabed resources beyond the limits of national jurisdiction (that is, beyond the economic zone or continental margin);

  • (10)

    (10) a system for peaceful third–party settlement of disputes regarding the interpretation or application of the Convention which have not been resolved by negotiation or other agreed procedures.

10 The “Group of 77” now includes over 100 “developing countries” embracing wide variations in wealth, income, and agricultural industrial development. In his report, the Chairman of Committee I states:

I am convinced that we shall spend decades in fruitless dialogue if we continue to accept that the interests at this Conference may naively be classified into two: those of the developed versus those of the developing countries. Neither group is without a diversity of concrete interests, given the factor of uneven development within.

Supra note 5, at 10 (English text).

11 RSNT, Part I, Art. 22.

12 Id. Annex I. See especially paras. 4–12.

13 Id. Annex I, para. 8 ( d ).

14 Generally id. Annex I, other than paras. 7 & 12.

15 Generally id., Arts. 12, 13, 16, 22, 28(2) (xii); Annex I, paras. 7 & 12; Special Appendix.

16 Id. Arts. 33–40; Annex III.

17 Id. Art. 9; Annex I; paras. 8(a) (iv), 21.

18 See 74 Dept. State Bull. 539 (1976). See also report of the Chairman of Committee I, supra note 5, at 8, 9 (English text).

19 Text of the U.S. informal text of Sept. 7, 1976:

Article 27

The Council

Composition

  • 1.

    1. The Council shall consist of 36 members of the Authority elected by the Assembly, the election to take place in the following order:

    • (a)

      (a) The six industrialized States which have made the greatest contributions to the understanding of, the exploration for and the exploitation of, the resources of the Area as demonstrated by substantial investments or advanced technology in relation to the resources of the Area, including at least one Eastern European State;

    • (b)

      (b) Six States from among the developing countries, including at least two from among the least developed countries;

    • (c)

      (c) The six States which are the largest producers of the categories of minerals to be derived from the Area;

    • (d)

      (d) The six States which are the largest consumers of the categories of minerals to be derived from the Area;

    • (e)

      (e) Twelve States elected according to the principle of equitable geographic distribution, to include at least two from each of the following regions: Africa, Asia, Latin America, Eastern Europe, and Western Europe & Others.

  • 2.

    2. At least one–fourth of the members of the Council shall be landlocked and geographically disadvantaged States.

  • 3.

    3. In electing the Council, the Assembly shall ensure that the members of the Council, taken as a whole, account for one–half of the value of the production and of the consumption of the categories of minerals to be derived from the Area accounted for by the members of the Authority.

  • 4.

    4. A State Party which is qualified for election to more than one of the categories specified in paragraph 1 above shall select the category to which it chooses to be elected and, in the event it is not elected to this category, may select to be a candidate for another category for which it is qualified.

  • 5.

    5. Members shall be eligible for reelection.

  • 6.

    6. Elections shall take place at regular sessions of the Assembly, and each member of the Council shall be elected for a term of four years.

  • 7.

    7. The Council shall function at the seat of the Authority and shall meet in continuous session, unless it decides otherwise.

Voting

  • 8.

    8. Each member of the Council shall have one vote.

  • 9.

    9. Decisions on questions of procedure shall be made by a simple majority of the members present and voting.

  • 10.

    10. Except as provided in paragraph 11 of this Article, all decisions on questions of substance shall be made by a three–fourths majority of the members of the Council, provided that such majority represents more than one–half of the total value of the production, as well as more than one–half of the total value of the consumption, of the categories of minerals to be derived from the Area accounted for by the members of the Authority. If any member of the Council objects to a ruling by the President on whether a question is one of substance or not, that question shall be treated as a question of substance unless the Council by the majority specified in this paragraph decides otherwise.

  • 11.

    11. All decisions related to the exercise of the Council’s powers and functions concerning the adoption of necessary and appropriate measures in accordance with paragraph 4 of Article 9, the budget of the Authority and the assessment of contributions of States Parties and matters under Articles___ shall be made by a three-fourths majority of the members of the Council, provided that such majority represents at least three–fourths of the total value of the production, as well as three-fourths of the total value of the consumption, of the categories of minerals to be derived from the Area accounted for by the members of the Authority. If any member of the Council objects to a ruling by the President on whether a question falls under this paragraph or not, that question shall be treated as falling under this paragraph unless the Council by the majority specified in this paragraph decides otherwise.

  • 12.

    12. Before any matter of substance is put to a vote, a determination that efforts have been made to reach general agreement shall be made by the majority specified in paragraph 10.

Participation by All Members of the Authority

  • 13.

    13. In order to ensure the widest possible participation by all members of the Authority in the decisions of the Council, each State Party shall have the right to assign the value of the production and of the consumption of the categories of minerals to be derived from the Area for which it accounts to another State Party for the purpose of composing the Council or to a member of the Council for the purpose of voting.

  • 14.

    14. The Council shall establish a procedure whereby a member of the Authority not represented on the Council may send a representative to attend a meeting of the Council when a request is made by such member, provided that a matter particularly affecting it is under consideration. Such a representative shall be entitled to participate in the deliberations but not to vote.

20 RSNT, Part I, Art. 1(ii); Annex I, paras. 6(c), 11.

21 Id. Annex I, para. 12(b) (2), (3), (7).

22 Id. Annex I, para. 8 ( d ) ( i i ).

23 See id., Part II, Arts. 44, 65; Convention on the Continental Shelf, Art. 2, 15 UST 471, TIAS No. 5578, 499 UNTS 311, 52 AJIL 585 (1958).

24 RSNT, Part I, Annex I, para. 12 ( b ) ( 1 ) .

25 An analogy can be made between the deep seabeds requirements and the duty of full utilization with respect to fisheries in the economic zone (RSNT, Part II, Art. 51), particularly since the concept of full utilization was for some delegations central to the acceptability of the economic zone concept as a whole. However, the duration of the coastal state economic zone rights is not temporary, and the size of the area granted is not tied to production. On the other hand, the duty of full utilization in effect qualifies the exclusive right to use all of the fisheries if there is a surplus. The coastal state may control and regulate foreign access to the surplus, but may not arbitrarily prohibit it.

26 RSNT, Part I, Annex I, para. 3.

27 Id. Part II, Art. 48.

28 Convention on the High Seas, Art. 2; 13 UST 2312, TIAS No. 5200, 450 UNTS 82, 52 AJIL 842 (1958); See RSNT, Part II, Art. 76.

Id.

30 Convention on the High Seas, supra note 28, Arts. 6 & 22; RSNT, Part II, Arts. 80, 98.

31 RSNT, Part I, Arts. 3, 4, 7, 8.

32 See id., Part II, Art. 32; Convention on the Territorial Sea and the Contiguous Zone, Art. 24; 15 UST 1606, TIAS No. 5639, 516 UNTS 205, 52 AJIL 851 (1958).

33 See Convention on the Continental Shelf, supra note 23, Arts. 1, 3; RSNT, Part II, Arts. 44, 64, 66.

34 See Convention on the Continental Shelf, supra note 23, Arts. 2, 4, 5; Convention on the High Seas, supra note 28, Art. 2.

35 See, e.g., RSNT, Part II, Arts. 44, 48, 50, 51, 69; Part III, Art. 60.

36 See, e.g., id. Part II, Arts. 51, 53, 58, 59; Part III, Art. 60.

37 See, e.g., id. Part II, Arts. 46, 47, 77–103.

38 See, e.g., id. Part III, Arts. 20, 21, 26, 28, 30, 43.

39 Stevenson & Oxman, supra note 2, at 774–81.

40 RSNT, Part II, Art. 44(2).

41 Id. Part III, Art. 46(3).

42 Note 28, supra.

43 RSNT, Part III, Chapter I.

44 Id.

45 Id. Arts. 20, 21, 26, 28, 29, 30, 31.

46 Id. Part II, Art. 44; see also Arts. 50–57, 64–65.

47 Id. Part II, Art. 48; see also Art. 68.

48 Id. Part II, Art. 44. The words “exploitation and exploration of the zone” and “production” are of course designed to ensure that navigation is not covered by this rubric.

49 Id. Part II, Arts. 64, 69.

50 Part III, Arts. 58–60.

51 Id. Part II, Art. 64, 67(3).

52 Id. Part II, Art. 99(2).

53 Id. Part III, Arts. 18, 24.

54 Id. Part II, Art. 67(2).

55 Id. Part III, Arts. 20, 26.

56 Id. Part III, Arts. 21(5), 30(3–6, 8).

57 Id. Part III, Art. 43.

58 Id. Part III, Arts. 4(4), 5, 21(4), 30(3–7), 33–41.

59 Id. Part III, Art. 31. See International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969, TIAS No. 8068, 9 ILM 25 (1970); Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other than Oil, 1973, 13 ILM 605 (1974).

60 RSNT, Part III, Art. 45.

61 Id. Part II, Art. 46(1).

62 Id. Part III, Art. 49.

Id. Part II, Art. 46(2).

64 Convention on the High Sea, note 28 supra.

65 RSNT, Part II, Art. 75.

66 Id. Part II, Arts. 79, 80, 82, 85; Part III, Arts. 4, 21(2), 26(1)(b), 27, 28(2,3), 30(4,7), 38, 40, 44, 45.

67 Id. Part II, Art. 85.

68 Id. Part II, Art. 48.

69 16 UST 794. TIAS No. 5813.

70 Note 5 supra, L.17, para. 26; RSNT, Part II, Introductory Note, para. 18.

71 Navigation, overflight, submarine cables, and pipelines. RSNT, Part II. Art. 46.

72 Fishing. Id. Part II, Art. 44.

73 Id. Part II, Art. 64.

74 International Convention for the Prevention of Pollution from Ships, 1973, IMCO Doc. MP/Conf./WP.35, Nov. 2, 1973 (not yet in force), 12 ILM 1219 (1973).

75 Note 6, supra. The provisions in the RSNT on dispute settlement are not discussed in detail here, since they are the subject of a note appearing elsewhere in this issue of the Journal. See Adede, , Law of the Sea: The Scope of the Third–Party, Compulsory Procedures for Settlement of Disputes, infra, p. 305 Google Scholar.

76 For text of Article 17, see infra p. 305.

77 RSNT, Part IV, note 6, supra, Art. 9(1).

78 Id. Part IV, Art. 9(5).

79 Id. Part II, Arts. 62(3), 71(3).

80 Id. Part II, Introductory Note, para. 12.

81 Id. Part IV, Art. 18(1) (a).

82 Fisheries Conservation and Management Act, 90 Stat. 331, PL 94–265, 16 USC 1801, 70 AJIL 624 (1976), 15 ILM 634 (1976).

83 Resolution of the Council of the European Communities on External Aspects of the Creation of a 200–mile Fishery Zone, 15 ILM 1425 (1976).

84 Decree of the Presidium of the Supreme Soviet of the U.S.S.R. Dec. 10, 1976, UN Doc. A/Conf. 62/53 (1977), 15 ILM 1381 (1976).

85 E.g., Canada, Order–in–Council, 110 Can. Gaz. Part I, Extra No. 101, Nov. 1, 1976, 15 ILM 1372 (1976). Mexico, Decree Adding to Article 27 of the Political Constitution, Diario Official, Feb. 6, 1976, 15 ILM 380 (1976).