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The Third United Nations Conference on the Law of The Sea: The Seventh Session (1978)

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman
Bernard H. Oxman*
Affiliation:
University of Miami School of Law
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Extract

The seventh session of the Third United Nations Conference on the Law of the Sea met in Geneva from March 28 to May 19, 1978, and resumed in New York from August 21 to September 15, 1978.

Type
Research Article
Information
American Journal of International Law , Volume 73 , Issue 1 , January 1979 , pp. 1 - 41
Copyright
Copyright © American Society of International Law 1979

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References

1 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);—The 1975 Geneva Session, 69 AJIL 763 (1975); and Oxman, The Third United Nations Conference on the Law of the Sea: The 1976 New York Sessions, 71 AJIL 247 (1977);—The 1977 New York Sessions, 72 AJIL 57 (1978).

2 Ambassador Amerasinghe was also chairman of the UN Seabed Committee, and its predecessor Ad Hoc Committee, throughout the pReparations for the Conference.

3 8 OFF. REC., Third Un Conference On The Law Of The Sea (1978), UN Doc. A/Conf.62/WP.10, July 15, 1977 and Add.l, July 22, 1977. The ICNT is Reprinted in 16 ILM 1108 (1977).

4 See Oxman, The 1977 New York Session, note 1 supra, 72 AJIL 59-60, n.8.

5 For further discussion of this issue, see section III, infra.

6 H.R. 3350, 95th Cong., 2d Sess. (1978) was passed by the House of Representatives July 26, 1978 by a vote of 312 to 80, 124 CONG. REC. H7341, H7382. Although similar legislation (S. 2053) was Reported to the floor of the Senate, unanimous consent to proceed without debate was not obtained, and insufficient time for debate remained prior to adjournment of the 95th Congress.

7 Protocol of 1978, Relating to the International Convention for the Safety of Life at Sea of 1974,. TSPP/Conf./10, Feb. 16, 1978; Protocol of 1978, Relating to the International Convention for the Prevention of Pollution from Ships of 1973, TSPP/ Conf./11, Feb. 16, 1978.

8 Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1953 (1977), clarified by Pub. L. No. 95-576 (1978). See also Pub. L. No. 95-474 (1978).

9 Third UN Conference on the Law of the Sea, Rules of Procedure, Rule 12, UN Doc. A/Conf.62/30/Rev.2 (1976).

10 Id., Rule 6. The League of Nations practice was to have an independent president, not a member of his delegation, who was appointed by the Council of the League (not the Conference). Arthur Henderson was thus appointed president of the Disarmament Conference. There is also one precedent in the United Nations, i.e., the continuance in the presidency of the Conference on a Code of Conduct for Liner Conferences of C. P. Sriwastawa of India, after he was elected Secretary-General of IMCO and could no longer be a member of the Indian delegation. UN Doc. TD/CODE/10, Vol. I, at 1, 144 (1974).

11 The Gentleman's Agreement, approved by the UN General Assembly when it convened the Conference, and endorsed by the Conference when it adopted the Rules of Procedure, provides that the “Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.” Rules of Procedure, supra note 9, Appendix.

12 The affirmative votes came from Africa and Asia with some Western support, and included Sri Lanka and the United States. The negative votes came from Latin America. Those abstaining or not participating were mainly West and East Europeans, joined by China and some English-speaking states from the Western Hemisphere. The UN General Assembly's administrative decisions of November 10, 1978 proceed on the basis of the Conference's decision Confirming Ambassador Amerasinghe's continuation in office.

13 UN Doc. A/Conf.62/62, April 13, 1978. The documents of the 7th session, of which the Official Records were not yet published when this article was written, are Reproduced in R. Platzöder, dokumente Der Dritten Seerechtskonferenz Der Vereinten Nationen—Genfer Session 1978 (Munich: Stiftung Wissenschaft und Politik, July 1978, 3 vols.). Vol. 10 of the Official Records, which comprises the 7th session, is now available.

14 UN Doc. A/Conf.62/62, note 13 supra, para. 11(5), which follows (chairman's name added): Negotiating groups of limited size—but open-ended—should be established to deal with the Following hard-core issues, on the understanding that the wording of the issues does not prejudice the position of any delegation concerning their substance: (1) System of exploration and exploitation and resource policy, taking note of the work of the informal group of technical experts invited to consider the technical problems associated with any formula that might be used to limit production of minerals from the area, chaired by a member of the United Kingdom delegation. [Frank Njenga, Kenya] (2) Financial arrangements (the results of an informal and preliminary study which has been made solely for the information of delegates and does not have the status of a Secretariat document will be available). [Tommy Koh, Singapore] (3) Organs of the Authority, their composition, powers and functions. [First Committee Chairman, Paul Engo, Cameroon] (4) Right of access of land-locked States and certain developing coastal States in a subregion or region to the living resources of the exclusive economic zone. Right of access of land-locked and geographically disadvantaged States to the living resources of the economic zone. [Satya Nandan, Fiji] (5) The question of the settlement of disputes relating to the” exercise of the sovereign rights of coastal States in the exclusive economic zone. [Constantin Stavropoulos, Greece] (6) Definition of the outer limits of the Continental Shelf and the question of Payments and Contributions with respect to the exploitation of the continental shelf beyond 200 miles. Definition of the outer limits of the continental shelf and the question of revenue sharing. [Second Committee Chairman, Andres Aguilar, Venezuela] (The Secretariat's Report on the definition of the outer limits of the continental shelf, pRepared at the request of the Second Committee, is to be produced as document A/Conf.62/C.2/L.98 and Add.l.) (7) Delimitation of maritime boundaries between adjacent and opposite States and settlement of disputes thereon. [E. J. Manner, Finland] In regard to item (4) above, the principle of “open-endedness” of negotiating groups should be maintained with the proviso that the Chairman of that negotiating group shall consult extensively with Representatives of the two groups immediately concerned. This would provide for maximum participation in an open-ended group and at the same time ensure full and proper consultation with the delegations most interested in the issue.

15 Id., para. II(10).

16 Id., para. II(11).

17 Third UN Conference on the Law of the Sea. Reports of the Committees and Negotiating Groups on negotiations at the Seventh Session contained in a single document both for the purposes of record and for the convenience of delegations, May 19, 1978 (hereinafter cited as 7th Sess. Geneva Reps.). (Page citations are to English text.)

18 UN Doc. A/Conf.62/SR.108, Sept. 22, 1978, and informal docs. A/Conf.62/ RCNG/2, NG1/13, Sept. 12, 1978; NG2/10, Sept. 13, 1978; NG3/4, Sept. 13, 1978; NG7/24, Sept. 14, 1978; and C.3/Rep.l, Sept. 13, 1978.

19 Report by the Chairman of the Third Committee, 7th Sess. Geneva Reps., note 17 supra, at 79; C.3/Rep.l, note 18 supra. Details discussed infra.

20 Report of the Chairman of the Second Committee, 7th Sess. Geneva Reps., note 17 supra, at 66, para. 13 at 68-69. (Adds the word “or” between the words “roadstead” and “port facility” in the English text of ICNT Art. 18, para. 1(b).)

21 Ibid. (Deletes the word “safe” from ICNT Art. 53, para. 1. The word was considered redundant (and possibly misleading in some languages), particularly in light of the other provisions of Article 53 and the provisions of Articles 44 and 54.)

22 NG 4/10 and Annex A (NG 4/9/Rev.2), 7th Sess. Geneva Reps., note 17 supra, at 71. Details discussed infra.

23 See Report of the Chairman of the Second Committee, Sept. 15, 1978, UN Doc. A.Conf.62/SR.108, note 18 supra, at 7.

24 Report of the Chairman of the Second Committee, 7th Sess. Geneva Reps., note 17 supra, para. 13 at 69.

25 See Report of the Chairman of the Second Committee, Sept. 15, 1978, UN Doc. A/Conf.62/SR.108, note 18 supra, at 6-7.

26 C.3/Rep.l, note 18 supra, at 12, 15. See note 103 infra.

27 Ibid.

28 Proposals were made raising a host of different issues regarding signature by different types of entities, ranging from economic communities to associated states, dependencies, and national liberation movements. A new proposal was circulated by the Federal Republic of Germany on behalf of the European Economic Community permitting customs unions, communities or other regional economic integration groupings, constituted by sovereign States, which exercise powers in areas covered by the present Convention [to] become Contracting Parties with the same rights and obligations as States Parties … to the extent that these rights and obligations relate to an area where powers have been given to them by their Member States UN Doc. A/Conf. 62/L.32, Sept. 14, 1978. Among the interesting questions that arise in the context of this wording are those regarding reciprocity of rights and obligations between states parties and such entities (and their member states), and the concept of a law of the sea convention as a “package deal.“

29 NG1/12 and Annex A (NG 1/10/Rev.l), 7th Sess. Geneva Reps., note 17 supra, at 1.

30 NGl/7, Annex B to NG1/12, id. at 11.

31 The new texts establish an interim period under which there is a nickel production ceiling for the deep seabeds (effectively, an economic ceiling on overall deep seabed manganese nodule production). The interim period would last 25 years, unless Replaced sooner by relevant commodity arrangements. The formula includes precise mathematical methods for projecting the growth of nickel consumption in a given year, and requires that a miner's plan of work (contract for a mine site) shall not be approved if the level of nickel production specified in the plan would cause total deep seabed nickel production to exceed, during any year of planned production, the increase in consumption of nickel during the 5 years preceding the earliest commercial deep seabed production and 60% of the increase in consumption thereafter. By expressly requiring that the level of production in the plan of work be authorized if it does not exceed the ceiling, the text emphasizes the fact that once his plan of work is approved and his contract issued, the miner is not subject to cuts in his authorized level of production.

32 NG1/13, Sept. 12, 1978.

33 NG2/9 and Annex A (NG2/4), and NG2/9, Annex B (NG2/5), 7th Sess. Geneva Reps., note 17 supra, at 35, 37, 39.

34 NG2/9, Annex C (NG2/7), Chairman's Explanatory Memorandum on document NG2/7, id., para. 4 at 47, referring to Nyhart, Antrim, Capstaff, Kohler, & Leshaw, A Cost Model of Deep Ocean Mining and Associated Regulatory Issues (1978).

35 NG2/10, Sept. 13, 1978, Annex (proposal for para. 7 (sexies) (c) of Annex II).

36 ICNT, Annex II, para. 11(b)(3).

37 NG2/10, Sept. 13, 1978, at 5.

38 NG2/9, Annex C (NG2/7), 7th Sess. Geneva Reps., note 17 supra, at 41.

39 NG2/10, Sept. 13, 1978, at 6.

40 Ibid. There would be a $500,000 application fee, subject to refund if the administrative costs of processing the application are less, and subject to review from time to time by the Council. Para. 7 (bis). There would be an annual fixed fee of $1 million from the time the contract enters into force, that is, several years before commercial production might commence. That fee would be deducted from payments on production after commencement of commercial production. Para. 7 (ter). The contractor may choose, for the life of the contract, between a production charge only or a mixed system combining a reduced production charge with a share of net proceeds. Para. 7 (quinques) and para. 7 (sexies). Unlike the Geneva proposal, under the New York proposal the share of net proceeds payable under the mixed system would not vary according to the contractor's rate of return on investment. The share of net proceeds would increase automatically with time, from 40% to 80% of the (40% of total) net proceeds attributable to mining. “Safeguards” would be included in the mixed system that delay increases in the relevant rates of payment if the contractor has not recouped his initial development costs in the first 6 years of commercial production or twice that amount in the first 12 years of commercial production. Para. 7 (sexies).

41 NG3/2, 7th Sess. Geneva Reps., note 17 supra, at 58.

42 Id. at 61.

43 Ibid.

44 Id. at 64. The reference to coastal states was added.

45 ICNT Arts. I58(2)(xvi) and 160(2)(xiv).

46 ICNT Art. 160.

47 Id. at para. 1.

48 NG3/2, 7th Sess. Geneva Reps., note 17 supra, at 62.

49 NG3/4, Sept. 13, 1978.

50 ICNT Art. 62.

51 See Council Resolution on certain External Aspects of the creation of a 200-mile Fishing Zone in the Community with Effect from 01 January 1977, Reprinted in 15 ILM 1425 (1976).

52 NG4/10 and Annex A (NG4/9/Rev.2), 7th Sess. Geneva Reps., note 17 supra, at 71, 76.

53 Id. at 72. The Report was circulated to the Conference with the texts. It was drafted in connection with penultimate texts which contained more explicit references on those points.

54 Id. at 73.

55 UN Doc. A/Conf.62/SR.100, May 22, 1978, at 5 (provisional).

56 See statement of Ambassador Castaneda of Mexico on behalf of 16 members of the coordinating group of the Group of Coastal States, UN Doc. A/Conf.62/SR.102, May 23, 1978, at 2 (provisional); statement of Ecuador, id. at 7, Argentina, id. at 9, Norway, id. at 10; Canada, UN Doc. A/Conf.62/SR.103, May 23, 1978, at 3 (provisional), Ireland, id. at 8, Mauritius, id. at 12, United Kingdom, id. at 16, Pakistan, id. at 22; New Zealand, UN Doc. A/Conf.62/SR.104, May 24, 1978, at 3 (provisional), Australia, id. at 8, Sri Lanka, id. at 8, India, id. at 14, Uruguay, id. at 23; and Chile, UN Doc. A/Conf.62/SR.105, May 25, 1978, at 2 (provisional).

57 NG5/16, 7th Sess. Geneva Reps., note 17 supra, at 100, 103. See Rosenne, Settlement of Fisheries Disputes in the Exclusive Economic Zone, infra at 89, for discussion and texts of these provisions.

58 NG5/16, 7th Sess. Geneva Reps., note 17 supra, at 100.

59 NG6/1. The major changes in ICNT Article 76 proposed in the Irish amendment are contained in the following paragraphs: 2. The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor nor the subsoil thereof. 3. For the purpose of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: (a) A line delineated in accordance with paragraph 4 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1% of the shortest distance from such point to the foot of the continental slope; or, (b) A line delineated in accordance with paragraph 4 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.

60 The proposal of the Group of Arab States would limit jurisdiction to 200 miles. NG6/2.

61 C.2/Informal Meeting/14, April 27, 1978. The described result is: (1) Where the continental margin does not extend beyond the Confines of the 200-mile economic zone, the edge of the continental shelf will lie along the outer limit of the economic zone. (2) In cases where the edge of the continental margin extends less than 100 miles beyond the outer limit of the 200-mile economic zone, the continental shelf of the coastal State will be determined on the basis of scientifically-sound geological and geomorphological data. If such data are not available, the outer edge of the continental shelf will be determined in accordance with paragraph 3(b) of the Irish amendment (“not more than 60 nautical miles from the foot of the continental slope“), on the understanding, however, that the edge of the continental shelf snail not under any circumstances be fixed at more than 100 mile; beyond the outer limit of the 200-mile economic zone. (3) Where the continental margin extends beyond the 100-mile strip adjacent to the 200-mile economic zone, the edge of the continental shelf will be fixed at a distance of 100 miles from the outer limit of the economic zone. Consequently, according to the suggested formula the 100-mile extension of the continental shelf beyond the outer limit of the 200-mile economic zone Represents a maximum limit beyond which no State may exercise its sovereign rights over the continental shelf. Ibid.

62 The following informal Canadian paper thoughtfully elaborates on the idea of a commission mentioned in paragraph 5 of the Irish proposal, note 59 supra: Article I A Continental Shelf Boundary Commission on the delineation of the seaward boundary of the Continental Shejf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, shall be established in accordance with the following Articles. Article II The Commission shall consist of 30 members who shall be experts in the fields of geology, geophysics or hydrography and who shall be appointed by a procedure established by the Intergovernmental Oceanographic Commission and the International Hydrographic Bureau. Article III The functions of the Commission shall be: (a) to certify that the delineation by a coastal State of the seaward boundary of its Continental Shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, is in accordance with Article 62; (b) to provide technical advice through its members, if requested by the coastal State concerned, with respect to the delineation referred to in paragraph (a)- Article IV A coastal State that has in accordance with Article 62 delineated the seaward boundary of its Continental Shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, shall submit such boundary to the Commission along with supporting scientific data. The coastal State shall at the same time give the names of any Commission members who have provided it with technical advice. Article V The Commission shall function by way of a Special Committee composed of five members which it shall appoint to deal with each submission from a coastal State. Nationals of the coastal State making the submission who are members of the Commission shall be excluded from the Special Committee. No Commission member who assists a coastal State by providing technical advice with respect to the delineation shall be a member of the Special Committee which deals with that submission. Article VI If a majority of the Special Committee is satisfied, on the basis of the evidence supplied by the coastal State, that the whole or part of the boundary has been correctly delineated in accordance with Article 62, it shall certify such boundary or part thereof. This certification shall be final and binding and shall be conclusive for the purposes of the Convention. The coastal State shall issue appropriate charts showing the certified boundary and deposit them with the Secretary- General of the United Nations. Article VII If the Special Committee is not satisfied on the basis of the evidence supplied by the coastal State that the whole or part of the boundary has been correctly delineated in accordance with Article 62, it shall give its reasons in writing to the coastal State within 6 months from the date of receipt of the coastal State's submission. The coastal State shall, within a reasonable time, make a new submission which may contain a revised boundary as well as further data with reference to those parts of the boundary that have not been certified. Article VIII Each coastal State Party to this Convention shall submit its proposed boundary beyond 200 miles to the Commission within 10 years of the entering into force of this Convention for that Party. Article IX In no case shall the function of the Commission include matters relating to the delimitation of boundaries between opposite or adjacent States.

63 Convention on the Continental Shelf, 1958, Art. 5, para. 1, 15 UST 47, TIAS No. 5578, 49 UNTS 311, 52 AJIL 858.

64 ICNT Art. 56(2).

65 See, e.g., ICNT Arts. 80, 211(5), 217(1)(a), 247-50, 254-56.

66 ICNT Art. 82.

67 U.S. proposed Art. 258 bis, C.3/Rep.l, note 18 supra, at 14, 16.

68 7th Sess. Geneva Reps., note 17 supra, para. 9 at 68.

69 UN Doc. A/Conf.62/SR.108, note 18 supra, at 6.

70 7th Sess. Geneva Reps., note 17 supra, at 107.

71 ICNT Art. 74.

72 ICNT Art. 83 (substantively the same as Art. 74).

73 Note 70 supra.

74 Ibid.

75 See, e.g., ICNT Arts. 56(2), 58, 59, 60(3-7), 61-63, 64-67, 70, 79, 98, 100, 108, 109, 113 123, 193-97, 198-202, 205, 207, 209, 211, 215, 217, 219(3), 228, 229, 244, 245, 247(3), 248, 253, 255, and 256; C.3/Rep.l, note 18 supra, Annex I, at 19, Art. 212, para. 2 bis.

76 UN Doc. A/Conf.62/SR.108, note 18 supra, at 12; C.3/Rep. 1, note 18 supra, para. 8 and Annex I; MP/27, Aug. 31, 1978.

77 Ibid.

78 7th Sess. Geneva Reps., note 17 supra, at 80.

79 Art. 195, new para. 5, id. at 81.

80 Amendment to Art. 212, para. 1, C.3/Rep.l, note 18 supra, Annex I.

81 Art. 212, new para. 6, ibid.

82 ICNT Art. 218.

83 Amendment to Art. 222, C.3/Rep.l, note 18 supra, Annex I.

84 Amendment to Art. 212, para. 3, ibid.

85 Amendment to Art. 231, ibid.

86 ICNT Art. 21, para. 2.

87 ICNT Art. 25, para. 2.

88 ICNT Art. 21, para. 2 refers to “[s]uch laws and regulations,” meaning those described in paragraph 1, namely ‘laws and regulations … relating to innocent passage through the territorial sea.” Among other things, an “act of wilful and serious pollution” contrary to the convention takes a ship out of innocent passage under ICNT Art. 19, para. 2(h).

89 Art. 212, new para. 2 bis, C.3/Rep.l, note 18 supra, Annex I.

90 Amendment to Art. 221, para. 5, ibid.

91 Amendment to Art. 227, para. 1, ibid.

92 Amendment to Art. 221, para. 6, ibid.

93 Redraft, Art. 227, para. 1, ibid (no change from ICNT).

94 Amendment to Art. 227, para. 1, ibid.

95 See ICNT Arts. 218 and 219. Paragraphs 6 of the former and 3 of the latter place a duty to investigate on these states when a request is received.

96 See ICNT Arts. 58, 92, and 110.

97 Amendment to Art. 1, para. 5(a)(i), C.3/Rep.l, note 18 supra, Annex I.

98 Ibid.

99 Amendment to Art. 213, ibid.

100 See statement by Mr. Oxman, UN Doc. A/Conf.62/SR.101, May 22, 1978 (provisional), at 8, 9, referring to Categories I and II of the Report of the Chairman, 7th Sess. Geneva Reps., note 17 supra, at 80-84.

101 See Oxman, The 1977 New York Session, note 1 supra, 72 AJIL at 70, 75.

102 Note 100 supra.

103 “The coastal State in the application of this part shall provide other States witha reasonable opportunity to obtain from it, or with its co-operation, information necessary to prevent and control damage to the health, safety and environment of persons not subject to the jurisdiction of the coastal State, such as research and monitoring data regarding weather, currents, pollution and other general processes and their causes and effects.” Comment. International law in principle regulates the manner in which a State may use areas subject to its jurisdiction when such use causes harm outside its jurisdiction. The specific application of this general principle depends on the subject-matter. Article 195, paragraph 2, is an application of the principle relevant to pollution. This new article would apply the same principle to marine scientific research where, for example, understanding of the monsoon may be critical to the development, and indeed the survival, of millions. “States shall establish, through competent international organizations, international rules and standards to facilitate consent for and the conduct of marine scientific research projects of importance to the international community that require the consent of several coastal States.” Redraft paragraph 1 as follows: “Coastal States have jurisdiction to regulate, authorize and conduct marine scientific research in their exclusive economic zone in accordance with the relevant provisions of this article.” Comment, paragraph 1. The addition of paragraph 1 to the text creates problems in relation to other provisions. It does not Conform to the structure of the basic article on the exclusive economic zone (ICNT art. 56), which refers to “jurisdiction” over marine scientific research. When read alongside the current drafts of either article 265 or article 296, paragraph 3, the use of the term “right” in article 247, paragraph 1, may unintentionally create a total exception from dispute settlement rather than the intended exception. 1. Modify paragraph 1(d) as follows: “if requested, provide the coastal State, as soon as practicable, with an assessment of such data, samples and research results …” 2. Delete from paragraph 1(e) the words “subject to paragraph 2 of this article,” and redraft paragraph 2 as follows: “The coastal State, if it decides to grant consent under Article 247 for a project of direct significance for the exploration and exploitation of natural resources, may require prior agreement on reasonable conditions for making the research results internationally available.” 1. Insert the following new article: “Articles 249 and 250 shall apply mutatis mutandis to marine scientific research that is of direct significance for the exploration and exploitation of the natural resources of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” 2. Delete the references to the continental shelf in articles 247 to 250 and articles 254 to 256. (N.B. There would be no change in article 81, which applies to drilling “for all purposes”.) Comment. A major outstanding issue in the Conference relates to the continental shelf. Article 258 bis, while affecting only a limited number of States with continental shelves beyond the exclusive economic zone, sets forth an approach designed to contribute to the over-all progress not only of Committee III but of Negotiating Croup 6 as well. 1. Delete the words “a right or” and add the phrase “to withhold consent” after the word “discretion”. 2. Delete the words “and 254” and the clause “or a decision taken in accordance with Article 254”. Comment, paragraph 1. Particularly in view of the drafting of article 247(1), this correction is necessary to give the exclusion of dispute settlement its intended scope. The use of the term “right” may unintentionally create a total exception from dispute settlement rather than an exception applicable to cases where the coastal State exercises its discretion to deny consent. Comment, paragraph 2. Article 254 permits the coastal State to stop a project “in progress” that was commenced with its consent under the treaty. Such a decision should be distinguished from the exercise of discretion to deny consent before the project begins. In some cases the loss of scientific knowledge might be the same, but the economic costs of loss of valuable time in trained personnel and specialized equipment are quite different. Coastal State authority under article 254 is onerous. For practical purposes its exercise, whether or not lawful, may end a particular project. Therefore, it is both unnecessary and inappropriate to exclude such a decision from dispute settlement procedures. (See MSR/2.) The complete text of the U.S. proposal, containing amendments and notes, appears in Vol. 10 of the Official Records at pp. 190-95.

104 Ibid.

105 In this connection, one consistent English drafting problem in maritime treaties is now the subject of a preliminary conclusion by the English Language Group: either the term “ship” or the term “vessel” should be used consistently throughout the convention. A choice was deferred pending review by governments. Document LGDC/1, Sept. 21, 1978.

106 The language groups, and the delegations of the respective chairmen, are: Arabic (Syria), Chinese (China), English (United States), French (Italy), Russian (USSR), and Spanish (Spain).

107 Informal Paper l/Rev.l/Add.2.

108 UN Doc. A/Conf.62/BUR/SR.41, Aug. 30, 1978 (provisional), UN Doc. A/ Conf.62/SR.109, Sept. 25, 1978 (provisional). The quotations in the text are from copies of the statements supplied to me by Ambassador Satya Nandan, the chairman of the Group of 77, and Ambassador-at-Large Elliot L. Richardson, the U.S. Representative.

109 The president of the Conference noted that the group on behalf of which Ambassador Nandan had spoken currently included 119 countries. UN Doc. A/Conf.62/ SR.109, note 108 supra, at 23.

110 Statement of Ambassador Richardson.

111 The problem of protecting existing mining investments differs in significant ways from the question of “traditional fishing.” Nevertheless, one might note that Articles 62 and 66 of the ICNT, as well as the revised Articles 69 and 70 proposed by the chairman of Negotiating Group 4 (Doc. NG4/9/Rev.2), while eliminating freedom of fishing in the exclusive economic zone and with respect to anadromous species, provide in specific circumstances for the need to minimize economic dislocation in connection with habitual fishing. In this case, as with deep seabed mining, a significant body of opinion held during the negotiations that the right to engage in such fishing as a freedom of the high seas did not exist, at least not any longer. Moreover, unlike the case with mining, habitual fishing was precisely the main source of the evil sought to be remedied. If practical protections could nevertheless be negotiated in such circumstances, there should be no insurmountable ideological objection to ensuring adequate practical protection for mining pioneers who will subject prior investment to a new regime.

112 UN Doc. A/Conf.62/BUR/SR.41, note 108 supra, at 11.

113 Declaration of Principles regarding the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, adopted Dec. 17, 1970 (108- 0-18), GA Res. 2749 (XXV), 25 GAOR, Supp. 28, at 24, UN Doc. A/8028 (1971).

114 See note 6 supra.

115 Note 113 supra.

116 Paragraph 3 of the Declaration of Principles states, “No State or person, natural or juridical, shall claim, exercise or acquire rights with respect to the area or its resources incompatible with the international regime to be established and the principles of this Declaration.” As the language suggests, delegates faced the problem of the earlier “Moratorium Resolution” (note 118 infra) in negotiating the text of this principle. It was clear that there could be nothing approaching agreement on a Declaration of Principles if the text attempted to establish a moratorium or to Confirm the Moratorium Resolution. At the same time, supporters of the Moratorium Resolution refused to support language in a declaration implying approval of interim mining. A key to the solution was the word “incompatible.” In this connection, it is interesting to consider the following extract from the statement in General Committee on August 28, 1978 by Ambassador-at-Large Elliot L. Richardson: Mr. President, so far as the United States is concerned, the goal of my Government remains the earliest possible conclusion of a generally acceptable Law of the Sea Treaty, and I believe the legislation now before the Congress to be entirely compatible with the principles on which the eventual treaty will be founded: — It recognizes that the resources of the seabed are the common heritage of mankind. — It requires that revenues be set aside for developing countries. — It requires stringent standards for the protection of the marine environment. — It does not assert any right of sovereignty or sovereign rights over seabed mine-sites. — It will be superseded whenever a law of the sea treaty takes effect with regard to the United States. — It does not declare or imply any intention that American seabed mining companies should remain outside the jurisdiction of an International Seabed Authority under such a treaty.

117 Article 2 of the Convention on the High Seas provides: The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas. Convention on the High Seas, 1958, 13 UST 2312, TIAS No. 5200, 450 UNTS 82, 52 AJIL 842. The preamble of the convention states that it is intended to codify international law. ICNT Article 87, drafted of course in the context of a convention that would have one part devoted exclusively to a new regime for “activities in the Area” (seabed mining beyond the continental, shelf) and including some wording changes and cross-references, Repeats the “inter alia” before the enumeration, adds references to “artificial islands and other installations permitted under international law” and “scientific research” among the enumerated freedoms, omits the clause “and others which are recognized by the general principles of international law,” and adds at the end a requirement of “due consideration for the rights under the present Convention with respect to activities in the Area.“

118 Adopted Dec. 15, 1969 (62-28-28), GA Res. 2574 (XXIV), 24 GAOR, Supp. 30, at 11, UN Doc. A/7630 (1970).

119 Extracts, statement by Ambassador-at-Large Elliot L. Richardson, Plenary, September 15, 1978: First, Mr. President, I want to emphasize that there is no government Represented here that is more dedicated than the United States to the conclusion of a broadly acceptable comprehensive Law of the Sea treaty at the earliest possible date. But from the outset of these negotiations, it has also been our consistent position that exploration and exploitation of the deep seabed beyond areas of national jurisdiction are freedoms of the high seas enjoyed by all nations. Legal restraints may be imposed on national action beyond the limits of the jurisdiction of any state only by their inclusion in rules of international law. With respect to seabed mining we are unaware of any such restraints other than those that apply generally to the high seas and the exercise of high seas freedoms, including the prohibition on sovereignty claims, the exclusive jurisdiction of states over their ships and nationals, and the duty to have reasonable regard for other high seas users. States will become subject to additional restraints when they adhere to a treaty that establishes an international authority to manage and oversee seabed mining. They will then have voluntarily accepted the alteration of those freedoms in the broader interest of creating a stable legal regime for the use and management of the world's oceans and their resources. But we cannot accept the suggestion that other states, without our consent, could deny or alter our rights under international law by resolutions, statements, and the like. Specific allegations have been made here concerning the incompatibility of national legislation with United Nations General Assembly Resolution 2574D (XXIV) and 2749 (XXV). With respect to the former, the so-called “Moratorium Resolution,” I would first note that, while 62 states voted in favor, the United States and 27 other states voted against, and 28 additional states abstained. Clearly, the resolution cannot be said to have commanded overwhelming support. Moreover, the United States Representative was explicit in his explanation of his government's negative vote: “The prohibition which the draft resolution contains is without binding legal effect; that is the case with almost any General Assembly resolution, and it is certainly the case for any General Assembly resolution purporting to prescribe standards of conduct for States in the oceans.” The United States voted for the “Declaration of Principles” embodied in UNGA Resolution 2749 along with 107 other states. None was opposed and 14 abstained. While proclaiming the deep seabed resources the “common heritage of mankind,” this resolution did not purport to prohibit access to these resources. Indeed, it is clear from the text of the resolution and from statements made at the time of its adoption that it was not intended to constitute an interim deep seabed mining regime, but rather was intended to be a general basis for subsequent negotiation of an internationally agreed regime. Thus, one delegate said that the resolution was “only a basis for the pReparation of a regime and must not be interpreted as an interim regime,” while another commented that “it is balanced and comprehensive enough to serve as the foundation and framework for an international regime for the seabed beyond national jurisdiction, without attempting to go so far as to substitute either for the regime itself or the international agreement which must give it force and effect.” A third, the delegate of the Soviet Union, noted that “adoption of the declaration by the General Assembly cannot create legal consequences for states in view of the well-known fact that decisions of the General Assembly have simply the force of recommendations.” The United States Representative in explaining our affirmative vote noted our view that the principles constituted a basis for subsequent negotiation of a definitive agreement containing an internationally agreed upon regime. He said: The text of the draft declaration before us clearly points the way towards an internationally agreed regime and will be the most useful basis for treaty negotiations. It is because we are Confident that this session of the General Assembly will take appropriate decisive action for convening a new law of the sea Conference to reach agreement, among other things, on a new seabed regime with precise limits that it is possible to approach the principles with the conviction that definitive agreement will soon be reached on the matters dealt with in the declaration. Accordingly, it is possible for delegations to compromise on certain aspects of the principles that may be somewhat vague or ambiguous, or imperfectly worded or punctuated, and hence might not be satisfactory if they were to be the final word. The United States is persuaded by the many delegations which have spoken so eloquently regarding the need to preserve this delicately balanced compromise, despite the fact that it is not entirely satisfactory, in order that we may move forward to a Conference to establish an internationally agreed regime. Until last year, successive United States Administrations refrained from supporting Congressional efforts to provide a statutory framework for seabed mining, largely because they considered such proposed legislation premature, particularly in view of the hope which then existed for early success in the Third United Nations Conference on the Law of the Sea. Our position has never been that such legislation might be contrary to international law, but rather that, in view of the existing state of research and development work, legislation could safely be deferred while the negotiations continue…. [But] each year of delay in reaching international agreement on a deep seabed mining regime has made it more necessary to find some interim framework that can define the seabed mining industry's legal obligations and secure its members’ rights as against each other.

120 Extracts, statement by Ambassador Satya Nandan (Fiji) as chairman of the Group of 77, Plenary, September 15, 1978: The Group of 77 rejects the entire basis for such legislation—in particular the promise that the right to engage in mining of the resources of the sea bed beyond the limits of national jurisdiction is a legal freedom of the high seas. There is no practice, much less custom in the legal sense, of actual exploitation of the sea bed beyond national jurisdiction which could be deemed as a legal right or grounds for such exploitation. Nor is there a general treaty authorizing the exploitation of the sea bed. The Declaration of Principles embodied in Resolution 2749 (XXV) expressly excludes the unfounded argument of pretending an extension of high seas freedom to the sea beds and subjects the exploration and exploitation of the sea bed to the international regime to be established. The situation is’ therefore exactly the opposite of that which applies to the exploitation of the resources of the high seas. Here, three centuries of custom and innumerable treaties provide the necessary legal sources for maintaining that the freedom of the high seas permits the exploitation of its resources. But regarding the sea bed beyond national jurisdiction, there is total lack of sources of international law authorizing its exploitation for the benefit of individual states. [In] the absence of a previously existing legal regime for the sea bed, the Declaration of Principles adopted by way of Resolution 2749 (XXV) of the General Assembly establishing the sea bed and its resources as the “common heritage of mankind” acquires a special significance, content and value. It has the effect of creating the basis for the legal regime this Conference was entrusted to formulate. The Declaration of Principles cannot be ignored merely by saying that General Assembly resolutions are not binding and are solely recommendatory in character. The Declaration was not a recommendation simply inviting States to behave in a certain way. It was substantially more than that. It was a solemn pronouncement by the most Representative organ of the international community declaring that the resources of the sea bed beyond national jurisdiction are the common heritage of mankind as a whole, and that they can only be exploited under an international regime and not unilaterally appropriated. The Declaration of Principles was adopted without dissent. All groups of States have thus accepted the common heritage principle, the international character of the sea bed and its resources beyond national jurisdiction, and thus the inevitable legal consequence of this, namely that unilateral exploitation is incompatible with that principle. The Declaration of Principles therefore is the authoritative expression of international law as to the regime of the sea bed beyond national jurisdiction. It must be recalled also that the Declaration of Principles was the result of several years of pReparatory work and intensive negotiations both in the General Assembly itself and in the Sea Bed Committee. Because of these antecedents, it cannot be dismissed as just another United Nations resolution; to the contrary, it establishes a principle of international law in the precise sense of Article 38 of the Statute or the International Court of Justice and constitutes an authoritative expression of the opinion of the international community on the matter. It is, therefore, clear that no State can legally act in violation of the principles stated in the Declaration of Principles. What is more, every State, in the words of the Declaration, “shall have the responsibility to ensure that activities in the area … shall be carried out in Conformity with the international regime to be established.” Unilateral exploitation would be a clear violation of international law which entails the corresponding legal responsibility and the fact that no sovereignty is claimed is irrelevant. Unilateral recovery and appropriation of the resources which are the subject of the Declaration [are] more than claiming sovereignty. [They], in fact, [amount] to an exercise of sovereignty. The fact of reserving a small, unilaterally decided, portion of the proceeds for developing countries is not equivalent to fulfilling the obligation of exploiting the resources under a regime which is to be established. The Group of 77, therefore, through this Declaration, reaffirms that unilateral legislative action by a State or a Group of States regarding the exploitation of the sea bed beyond the limits of national jurisdiction before a regime is established to administer the use of the Area and its resources as the common heritage of mankind in a manner agreed to by the international community as a whole, would be contrary to the Declaration of Principles. Such legislation, though supported by other States, will not be in accordance with an international regime in Conformity with the Declaration of Principles within the framework of an International Convention and would be contrary to international law. Action to exploit the sea bed, or to facilitate its exploitation pursuant to such legislation, would also be contrary to international law. In the interest of the future of this Conference, therefore, the Group of 77 calls upon States to exercise restraint and to refrain from taking unilateral legislative or other actions relating to the exploitation of the resources of the sea bed. The Group of 77 would wish to reaffirm the inseparability of the different aspects of the Law of the Sea being currently negotiated as well as its commitment to the establishment of a comprehensive Convention on the Law of the Sea. Finally, the Group of 77 deplores such action and Repudiates as wholly illegal any unilateral actions for the exploration and exploitation of the deep sea bed and categorically asserts that any such action will not be recognised. 121 UN Docs. A/Conf.62/69, Sept. 14, 1978, approved Sept. 15, A/Conf.62/ SR.108, Sept. 22, 1978 (provisional).

122 UN Doc. A/Conf.62/62, discussed in connection with note 15 supra.

123 Peru has proposed a new article for the convention establishing an “Intergovernmental Commission on the Law of the Sea as an intergovernmental body responsible for the examination of problems which may arise in connection with the application of the present Convention, as well as from situations not covered by it” comprised of all states parties. UN Doc. A/Conf.62/L.22. Portugal and others have introduced different proposals dealing with periodic review Conferences and with the implementing roles of various international organizations. UN Docs. A/Conf.62/L.23, L.30.

124 It comes as no surprise that some threaten such unraveling; their unceasing hostility to a treaty that does not Conform to their claims in all respects is matched only by their early success in inciting general ideological hostility to any practical arrangement for deep seabed mining that accommodates miners and consumers, a success so extensive that these very states are now able to argue that their current positions are moderate and flexible but that there is a limit to their ability to persuade others to be as reasonable.

125 ICNT Article 137 states that minerals derived from the Area “may only be alienated in accordance with this Part of the present Convention and the rules and regulations adopted thereunder,” and provides, “No State or person, natural or juridical, shall claim, acquire or exercise rights with respect to the minerals of the Area except in accordance with the provision of this Part of the present Convention.“

126 See ICNT Arts. 187-92.

127 In his Report at the end of the resumed session, the chairman of the First Committee stated in part: Written guarantees seem to be the motto. The result is that we have not only plunged our efforts into the undesirable elaboration of a mining code for seabed mineral exploitation, but have ourselves been dragged into adopting models and systems of calculations on fictitious data that no one, expert or magician, can make the basis of any rational determination. We get more and more engrossed with each session and have been reduced to mere spectators in the inconclusive tournament among experts. I would strongly recommend that we stop this trend… . I intend to call on delegations at the next session to consider a quick resolution to the crucial question of the decision-making processes in the Council. This may well open the door to more Confidence on all sides. This could be done at the same time as the process of eliminating undesirable details. UN Doc. A/Conf.62/RCNG/2.