- 1.
-
The deep seabeds (Section
H)
Although the deep seabeds discussion appears in
Section H in the proposed instructions, it is
discussed at this point because of the potentially
great overall impact of the U.S. deep seabeds position on the
negotiations. That impact is analyzed in the pros
and cons to the options presented below.
In his May 23, 1970 Oceans Policy Statement,
President Nixon supported the establishment of
an international regime and machinery to authorize
and regulate deep seabed mining. A principal purpose
of that proposal is to provide a stable,
internationally agreed legal regime for the mining
of the deep seabeds. The U.S. has supported a nondiscretionary
access system designed to ensure access by U.S. firms to deep seabed
minerals under reasonable conditions for
development. This policy has been endorsed by both
Houses of Congress and has been closely coordinated
with the Soviet Union, the United Kingdom, France
and Japan during more than three years of
preliminary negotiations.
Option a, the first of
four options open to the U.S. provides for an international regime
and machinery which would ensure access by
interested U.S. firms
to deep seabed mineral resources under reasonable
conditions for exploitation consistent with these
goals. The Delegation would be authorized to accept
an international authority with broad flexibility to
regulate deep seabed mining, so long as the U.S. and other countries,
which can be expected to supply the technology and
capital for such mining, exercise sufficient voting
control to protect their interests. The arguments
for this option are that it would give the U.S. maximum flexibility
to achieve its goals, and, since the regime would be
controlled by countries which supplied the
technology and capital for the mining, protect
U.S. interests
almost as well as limitations on the authority’s
powers. [Page 18]
The arguments against the option are that there are
no significant economic conditions which would
require an international authority to manage deep
seabed resource development, that such an authority
would introduce substantial economic inefficiencies
and additional transaction costs, and that
limitations on the authority’s powers would protect
U.S. interests
better than adequate voting control for the U.S. which would only
ensure negative control to prevent unfavorable
actions and would probably be as difficult to
negotiate as limits on power.
Option b provides for an
international regime and machinery which would
ensure access by interested U.S. firms to deep seabed mineral
resources under reasonable conditions for
exploitation. Such a regime and machinery would both
provide a stable international investment climate
for development of deep seabed mineral resources and
preclude a management regime in which there would be
discretion to turn down an application for mining
rights properly certified by a sponsoring state or
to introduce requirements not economically
justified. The international machinery would not
have the power to control prices or production
levels and would only have strictly limited
discretion to propose regulations on a few specified
matters which would go into effect after Council
approval and after submission to states. The treaty
itself would set out the essential terms for mining
with specific ranges to protect U.S. interests, encourage
development, and ensure stability of investment. The
authority would be controlled, in all significant
respects, by a Council in which the U.S. would be assured of
voting control with other similarly interested
states sufficient to prevent adverse decisions on
important issues. The treaty would protect
nonresource uses, establish rules for the prevention
of claims to extraordinarily large areas, require
U.S. agreement to
be bound by treaty amendments, and provide for the
integrity of investments and the compulsory
settlement of disputes.
The arguments for this option are that it would
provide a stable international investment climate
for deep seabed mining and would be consistent with
U.S. economic
objectives as determined by the economic review. It
would protect nonresource uses and interests
concerning the seabed (including SOSUS); provide
protection against large areas being withdrawn by
states from commercial development and against
threats to U.S.
navigational and security interests from expanding
coastal state jurisdictional claims; be consistent
with the President’s Ocean Policy Statement of May
23, 1970, the Resolutions in both Houses of
Congress, and the views of the Public Advisory
Committee on the Law of the Sea (including members
of the hard minerals industry); and provide for [Page 19] legally
recognized exclusive mining rights in a specific
area which corporate and banking officials believe
to be necessary to justify the large capital
investments required, despite the fact that poaching
or claim jumping may not be likely, since factors
like variations in mineral content in nodules make
mine sites nonfungible and require a refining
process carefully tailored to each site.
The arguments against the option are that there are
no economic conditions which require an
international authority to manage the development of
deep seabed resources; a system of exclusive mining
rights for security of tenure can be provided
without creating this type of international
organization since there are few firms capable of
engaging in mining (which is capital intensive) and
potential sites are plentiful; an international
organization would create additional transaction
costs for deep seabed mining; we have no experience
with an international organization able to make
regulations binding without the consent of each
state; and we run a real risk of creating a system
that does not adequately protect our interests.
Option c provides for an
international authority limited to functioning as a
claims registry, information center, and
consultative forum which could make recommendations
to contracting parties. Mining claims would be
registered on a first-come first-served basis with
competitive bidding, if necessary. The treaty would
include general obligations on contracting states to
ensure that registrants under their sponsorship
would move to commercial production within a
reasonable period of time, would not claim
extraordinarily large areas of the deep seabed,
would take reasonable measures to safeguard the
environment, and would have reasonable regard for
other uses of the deep seabed. States would be
responsible for implementing specific measures to
meet these obligations; any revenue sharing
obligations would be placed on sponsoring states
which in turn would determine the best way to obtain
the necessary revenues; and the system would provide
for compulsory dispute settlement as a safeguard to
ensure that national obligations are fulfilled.
The arguments for this option are that it would
provide minimum disincentives to development of deep
seabed resources on an efficient basis and eliminate
discretion which might be used to discriminate
against U.S.
concerns; that there are no significant economic
conditions requiring an international authority to
manage the development of deep seabed resources;
that there would probably be no conflict over mine
sites since there are a large number of primary mine
sites, a small number of potential operating firms,
and a requirement for high [Page 20] capital investment; that this
approach would avoid the more complicated
negotiations concerning precise limitations on the
authority’s power; that the authority created under
this approach would provide the flexibility to deal
with changing conditions and technology; and that a
more powerful organization could result in
additional transaction costs.
The arguments against this option are that it is the
opinion of the Special Representative of the
President for the Law of the Sea Conference, the
Chairman of the NSC
Interagency Task Force on the. Law of the Sea, the
broad consensus of the Executive Committee, with a
few exceptions, and the private sector Advisory
Committee on the Law of the Sea that a decision to
support this approach would be inconsistent with
obtaining a timely multilateral agreement on the Law
of the Sea and would amount to a decision not to
seek such agreement, thus jeopardizing all our ocean
law objectives, including national security
objectives; that it would seriously impair U.S. credibility in view
of the President’s Oceans Policy Statement of May
23, 1970 and our consistent support in three years
of negotiations for a nondiscretionary access system
as outlined in option b; that it would not protect
U.S. interests as
well as option b, since the treaty obligations would
be less specific and result in the transfer of more
discretion to the compulsory dispute settlement
machinery; that it would not provide the requisite
security of tenure since there would be no
international agreement; and that, since the
economic review concluded that a strictly limited
system along the lines of option b would not harm
U.S. economic
interests, there is no reason to jeopardize U.S. objectives by such a
radical shift in position.
Option d would provide no
international authority for deep seabed mining. This
would mean that any legal regime needed for creating
exclusive exploitation rights would be established
under national legislation in accordance with
general obligations in the Law of the Sea Treaty.
Specific national systems would be coordinated to
the extent feasible through reciprocal agreements
among those states licensing exploitation; that any
regulations for environmental protection and any
specific revenue sharing provisions would need to be
established in the treaty or negotiated separately;
and that the treaty would reflect general
obligations on states on such matters as, among
others, avoiding exploitation claims to
extraordinarily large areas of the seabed,
protecting other uses of the seabed and adherence to
dispute settlement procedures.
The arguments in favor of this option are that deep
seabed mining could take place under the general
framework [Page 21]
of international principles without creating an
authority; that conflict over mine sites is unlikely
in view of the large number of primary sites, and
that even a claims registry system could result both
in additional transaction costs and, eventually, in
a full-blown international organization.
The arguments against it are that it is the opinion
of the Special Representative of the President for
the Law of the Sea Conference, the Chairman of the
NSC Interagency
Task Force on the Law of the Sea, the broad
consensus of the Executive Committee, with a few
exceptions, and the private sector Advisory
Committee on the Law of the Sea, that a decision to
support this approach would be inconsistent with
attaining a timely multilateral agreement on the Law
of the Sea and would amount to a decision not to
seek agreement, thus jeopardizing all our ocean law
objectives including national security objectives;
that it would not provide the requisite security of
tenure; that it would seriously impair U.S. credibility in view
of the President’s Oceans Policy Statement of May
23, 1970 and our consistent support in three years
of negotiations for a nondiscretionary access system
as outlined in Option b; that, since the economic
review concluded that an Option b-type system would
not harm U.S.
economic interests, there is no reason to jeopardize
U.S. objectives;
and that it would end U.S. influence in the negotiations which
might then proceed to conclude a Treaty inimical to
U.S. interests.
Exploitation by the
authority
An additional option would
authorize support, in the context of a satisfactory
deep seabeds regime, for power in the authority to
directly exploit seabed resources. The direct
exploitation operation would be insulated from the
administrative arm, required to compete on equal
terms with other licensees for licenses, and subject
to the same rules and regulations and to compulsory
dispute settlement. International revenues from
seabed resources could not be used to subsidize the
direct exploitation operation, and there would be no
obligation for states to financially support it.
The arguments for the option are that it would
enhance the negotiability of a nondiscretionary
access system and U.S. commercial interests would not be
harmed. The arguments against this option are that
there would always be a risk of discrimination by
the authority in favor of the direct exploitation
operation and that U.S. support for an international
organization engaged in direct commercial activities
would establish a dangerous precedent.
[Page 22]
Funding of the authority
The question of funding for the machinery may be an
issue at the Conference. Option
A presents the existing U.S. position under which
the U.S. has stated
its support for the authority to use funds generated
by licensed exploitation activity for the payment of
the authority’s administrative expenses and to
permit a first call against revenue for the same
purposes. Under Option B
the U.S. would shift
its support to a funding system based on state
contributions in accordance with UN practice.
The arguments for option A are that if the authority
is financed by direct contributions, the U.S. will in all
likelihood end up paying a major share; that
taxpayers should not subsidize the industry; that
there is no basis for the presumption of greater
U.S. influence
under option B; and that the bureaucracy will be
much smaller, since developing countries will be
using income earmarked for them for administrative
costs.
The arguments for option B are that since the U.S. would be a major
contributor (up to 25%) it would have greater
influence over the organization; that a
self-financing organization has unpredictable
implications; and that, since the organization would
be dependent on contributions, it would have a
greater interest in avoiding actions that abuse its
authority.
Revenue rate and base
Regardless of which options are selected, it is
agreed that the international portion of the
revenues generated from deep seabed mining beyond
national jurisdiction will be used for international
purposes. Various approaches may be employed to
determine the revenues to be distributed.
It is recommended that the U.S. Delegation be authorized to support
a sharing of revenues from manganese nodule mining
in areas beyond national jurisdiction as a royalty
on production, at a rate not to exceed 10% of the
value of the manganese nodules, or computed pursuant
to some other acceptable method such as a carefully
circumscribed system of production sharing. Within
this framework, the criteria in NSDM 62 for determining
the rate of financial obligations at “a level that
will make a substantial contribution to
development...and at the same time encourage
exploration and exploitation of the seabeds” would
continue to apply.
[Page 23]
Allocation of revenues
Finally, the U.S.
approach with respect to the use of revenues is that
revenues should be employed for general development
assistance, assistance for enumerated types of
oceans-related projects, and adjustment assistance.
In each instance, flexibility should be retained to
determine, in light of U.S. development assistance and other
ocean law goals and tactical considerations, which
positions would best serve U.S. interests at the Conference.
- 2.
-
The territorial sea (Section
B)
It is widely accepted that the Convention will
include agreement on a 12-mile territorial sea.
Aside from establishment of the breadth of the
territorial sea and agreement on the straits
question, the U.S. is
opposed to reopening the regime of the territorial
sea as defined in the 1958 Convention. If, however,
that regime is reopened, the U.S. should work for a more favorable
innocent passage regime in the territorial sea.
- 3.
-
Straits (Section C)
The U.S.’s major
opponents on the straits issue—Spain, Egypt, and the
other Arab states, Indonesia, Malaysia, the
Philippines, and Tanzania—support a restrictive
innocent passage-type regime, a regime which is
unacceptable to the U.S. because of its subjectivity and its
prohibitions on submerged transit and overflight. By
working with states that have similar straits
interests, we hope to form a broad common front on
the question of which straits must remain covered by
a regime more liberal than innocent passage and what
the nature of the regime should be.
Recommendations
It is recommended that the U.S. be authorized to indicate privately
to other delegations with similar straits interests
our willingness to negotiate with them draft treaty
articles which would be mutually acceptable on
straits transit.
Straits to be covered
The current U.S.
proposal applies a free transit regime to all
straits used for international navigation between
one part of the high seas and another part of the
high seas or the territorial seas of a foreign
state. To attain [Page 24] greater flexibility, an
exclusion formula (which would exclude certain
straits based on specific criteria) might prove
advantageous. The formula would provide a regime of
nonsuspendable innocent passage in those straits
which were excluded.
Recommendations
The U.S. should be
authorized to support a regime of nonsuspendable
innocent passage through those straits six miles
wide or narrower or which, although wider than six
miles, do not connect two parts of the high seas.
The U.S. should also
be authorized to support an exclusion for straits
formed by islands within 24 miles of the coast of
the same state where, and only to the extent that, a
nearby and equally suitable high seas route is
available on the seaward side of the islands. (This
exclusion would be drafted to ensure that the Soviet
Arctic straits are not excluded.)
Nature of regime
The U.S. has proposed
that vessels and aircraft, in transit through and
over international straits, enjoy the same freedom
of navigation and overflight, for the purpose of
transit, as they enjoy on the high seas. In all
other respects, the straits would be territorial
waters under the sovereignty of the coastal
state.
Recommendations
The U.S. should
continue to emphasize the critical elements of the
U.S. straits
proposal—unimpeded transit through and over
international straits by surface vessels, submerged
and surfaced submarines, and military aircraft
without a requirement for notification to, or
authorization from, the coastal state—while playing
down use of the term “free transit.”
It is also recommended that the U.S. be authorized to
privately assure states bordering the Malacca and
Danish straits that we will not transit them
submerged because it is clear that this cannot be
done safely; support a system whereby the coastal
state could design a surface traffic control system
for international straits which should be
implemented only after approval by the
Intergovernmental Maritime Consultative Organization
and whereby major user states would be obligated to
agree with straits states on an equitable method of
joint financing for such systems; support the same
vessel pollution regime in straits as [Page 25] would apply
in areas beyond the territorial sea; accept a duty
for state aircraft to respond while in the strait to
ground communications from the appropriate
international air traffic controller on applicable
“international frequencies for the purpose of
verifying course, speed, and altitude; support
liability up to and including a rule that the flag
state be subject to strict liability for personal
injury or property damage to the coastal state or
its inhabitants caused by an act of or accident
involving a vessel or aircraft entitled to sovereign
immunity while exercising the right of the transit
in the strait; and support, if necessary (i) the
strict liability of the owner or operator of a
commercial vessel or aircraft for personal injury or
property damage to the coastal state or its
inhabitants caused by an act of or accident
involving the vessel or aircraft transiting the
strait and (ii) flag state responsibility to require
its flag vessels to have insurance or other
financial security.
- 4.
-
Archipelagos (Section D)
Archipelago claims have been advanced by, among
others, Fiji, Indonesia, Mauritius, and the
Philippines. Since the archipelago issue is
interfering with progress in other areas of the
negotiations, including in particular the straits
issue, the U.S.
should seek an early solution which meets the
security interests of the U.S. and the political and security
interests of the claimants.
Recommendations
The U.S. should
intensify exploratory efforts to determine whether a
solution is possible which would embody, among
others, the following points: the archipelago
concept would apply only to island states;
archipelagic lines, not to exceed 90 (or 120 as a
fallback) nautical miles, could be drawn from
outermost land point to land point; all enclosed
waters would be “archipelagic waters” which would
differ from internal waters, territorial waters, or
the economic zone; the maximum ratio of water to
land would be 5:1; the archipelagic state would have
exclusive jurisdiction over activities within the
archipelagic waters other than navigation and
overflight; transit through and over archipelagic
waters would not be subject to notification; the
navigation and overflight right would be the right
to transit the archipelago in a route which
reasonably conforms to the destination outside the
archipelago and which would be accomplished without
unreasonable delay; all vessels and aircraft may
take such measures in transit as are normal for
their safety and self-defense; the straits [Page 26] transit
regime, if necessary, could be accepted for the
straits portion of the transit; and vessels and
aircraft entitled to sovereign immunity would be
exempt from pollution standards and enforcement
although the archipelago state could establish and
enforce nondiscriminatory discharge and dumping
standards for commercial vessels. If necessary, we
could accept transit through: a passage area not
less than 75% of the area between the nearest points
of land or 100 miles, whichever is less.
- 5.
-
Coastal resources and an
economic zone. (Section E)
The major issues are coastal state jurisdiction
beyond 200 miles over continental margin seabed
resources and coastal and anadromous fisheries,
special treatment for highly migratory species
through regional or international organizations,
limitations and standards governing the exercise of
coastal state jurisdiction, and compulsory
settlement of disputes. In the context of a
satisfactory resolution of these major issues and an
overall satisfactory settlement, the U.S. can support coastal
state jurisdiction over all resources in a 200-mile
economic zone.
Seabed resources of the
continental margin
There is a complex matrix of competing costs and
benefits to the U.S.
inherent in international recognition in the
Convention of coastal state seabed resource
jurisdiction beyond 200 miles. Based on these
considerations and the negotiating situation, the
following recommendations are made.
Recommendations
The U.S. Delegation
should not oppose proponents of a 200-mile limit,
proponents of a margin limit beyond 200 miles or
proponents of an intermediate zone beyond 200 miles,
but should seek to establish a tactical role of
honest broker on the issue. The Delegation should
take no position inconsistent with coastal state
jurisdiction over Arctic seabed resources extending
to the North Pole under a sector approach limited to
resource jurisdiction. Precise figures for defining
any continental margin limits beyond 200 miles
should be developed.
Revenue Sharing
There is a disagreement about whether there should
[Page 27] be
revenue sharing in any area of coastal state seabed
jurisdiction and, if so, where and what rate should
apply.
-
Option 1 states that the
U.S. should
withdraw its support for revenue sharing. The
arguments for the option are that revenue sharing
involves large sums which will increase through
time; that verification of coastal state
compliance will be difficult; that it would be a
disincentive for exploitation of hydrocarbons; and
that it would raise prices. The arguments against
the option are that withdrawal of our support for
revenue sharing would seriously impair U.S. credibility for the
U.S. has
consistently and strongly supported this policy
since it was announced by President Nixon on May 23,
1970; that developing countries would doubt the
seriousness of our proposals in terms of
accommodating their interests; that revenue
sharing is virtually the only benefit that might
be offered to geographically disadvantaged states
which have little to gain from coastal state
jurisdiction over seabed minerals and which
constitute a blocking third at the Conference; and
that revenue sharing sums are unlikely to be
excessive since they would apply uniformly to all
coastal states.
-
Option 2 provides for
revenue sharing, not to exceed 1% of the value of
the hydrocarbons extracted, from seabed minerals
production seaward of a 12-mile territorial sea.
The arguments for this option are that it would
include major areas like the Persian Gulf and
North Sea, thus increasing total revenues and
reducing the rate of sharing; gain votes of
geographically disadvantaged states for our
nonresource objectives; increase the chances for
success in obtaining other international standards
from 12 miles out; and provide a larger revenue
sharing area which, in turn, allows for a lower
sharing rate. The arguments against this option
are that revenue sharing is designed as a device
for accommodating legal differences on coastal
state jurisdiction beyond 200 meters; that
opposition to revenue sharing at 12 miles is
likely to be great since coastal states have
vested rights within 200 meters; and that a
significant portion of the recoverable hydrocarbon
potential on the U.S. continental margin lies between 12
miles and the 200-meter isobath.
-
Option 3 states that the
U.S. should
continue to support revenue sharing, at a rate not
to exceed 5% of the value of the hydrocarbons
extracted, seaward of the territorial sea or the
200-meter depth curve, whichever is farther
seaward. The arguments in favor of option 3 are
that all current U.S. production is from areas landward
[Page 28] of the
200-meter depth curve; revenue sharing is designed
in part to accommodate difference on coastal state
jurisdiction beyond 200 meters; and more than half
of the recoverable hydrocarbon potential on the
U.S. margin is
landward of 200 meters. The arguments against
option 3 are that the U.S. should not take the blame for
excluding wealthy, shallow areas from revenue
sharing; major oil exploitation is in the Persian
Gulf and North Sea at depths less than 200 meters;
and the U.S., since
it is likely to use deep water technology first,
might pay a higher proportion of the total
revenues initially under this option.
Options 2 and 3 are not mutually exclusive since the
Delegation could use the flexibility of authority
under both to seek the greatest negotiating
advantage for the U.S. Moreover, an additional option,
consistent with option 2 and 3, would allow the
U.S. to support a
greater rate of revenue sharing for seabed areas
under coastal state control beyond 200 miles than
those landward of 200 miles. Divergent views on
coastal state control of seabed resources beyond 200
miles might best be reconciled by accepting this
approach, and this approach could relieve pressure
for a high rate landward of 200 miles. On the other
hand, this could prove expensive to us, could be a
disincentive to exploitation, and could raise
prices.
Delimitation and island
problems
The issues of boundaries and whether small, isolated
islands are entitled to full economic jurisdiction
are controversial and we will generally avoid being
involved in discussions concerning them. Although
both the U.S. and its
allies (France and the U.K.) have interests in these issues, the
U.S. should remain
silent rather than risk identifying the islands
issue with big power ambitions.
Fisheries
As stated in earlier instructions, the U.S. objectives are to
seek international acceptance of a fisheries
settlement that would (i) give coastal states
effective regulatory and economic control over
coastal and anadromous species throughout their
migratory range on the high seas, subject to
international standards, and (ii) provide for
international regulation for highly migratory
species. To develop support for the U.S. position, the U.S. delegation has been
authorized to explore and propose to seek the
possibility of a compromise which accommodates our
fisheries objectives within the framework of a
200-mile [Page 29]
economic zone. At the same time, however, the U.S. should also support
coastal state control and preferential rights over
coastal and, especially, anadromous species that
migrate beyond the zone.
Recommendation
Assuming an obligation to permit foreign fishing to
the extent stocks are not utilized up to the
allowable catch by the coastal state fishermen, the
U.S. Delegation
should be authorized to accept a coastal state right
to license foreign fishing for stocks under its
jurisdiction, subject only to a general limitation
that the conditions of the license be reasonable and
nondiscriminatory as among foreign fishermen.
In addition, the U.S.
should at the appropriate time and if consistent
with the overall fisheries settlement indicate that
it is prepared to regard joint ventures in coastal
state fisheries as entitled to preferential rights,
regardless of the flag of the vessel. Furthermore,
we should maintain our broad flexibility concerning
traditional fishing while continuing to press our
objective of including some provisions for
traditional fishing in the treaty.
Highly migratory species
Because of their migration patterns, highly migratory
species (tuna and whales and other highly migratory
fish and marine mammals) cannot be managed in
individual 200-mile zones to ensure conservation or
equitable allocation of stocks. Accordingly, a
regional or international system of management is
necessary. However, to achieve our objectives,
coastal, state political and economic interests may
well have to be accommodated within the
international or regional framework.
Recommendation
To achieve a satisfactory resolution of the problem
of regulating highly migratory species within the
framework of international or regional
organizations, the U.S. should have the negotiating
flexibility to pursue possible accommodations
including those concerning fees, preferential
rights, licensing, and coastal state enforcement.
Any accommodation, however, must not only support
our objectives concerning highly migratory species
and provide adequate protection for our tuna
interests but also be accompanied by a ore
accommodating approach by the [Page 30] coastal states with
regard to our other interests including straits,
general navigation, and deep seabed issues.
- 6.
-
Pollution (Section F)
The current U.S.
position includes a general obligation not to
pollute the marine environment, requires adherence
to international standards for all marine-based
sources of marine pollution, provides for the
establishment of international standards for such
sources of marine pollution and permits the coastal
state to apply higher standards to seabed resource
activities, drilling, and fixed installations in the
exercise of its rights in the Coastal Seabed
Economic Area. With respect to vessels, a state may
not impose higher standards except on vessels
entering its ports or its flag vessels, although it
may enforce international standards in its
territorial sea, has limited enforcement powers
beyond, and can prosecute vessels in it ports for
violations of international standards irrespective
of where they occur. Under the U.S. position, warships
are exempt from the pollution articles.
The most sensitive pollution negotiating problem
relates to vessel-source pollution. Many coastal
states including Canada and Australia favor rather
broad coastal state authority in a zone. Some
maritime States have indicated a willingness to
accept a coastal state enforcement right of
international standards in a zone and
standard-setting rights in exceptionally vulnerable
areas. However, since the last preparatory session,
the 1973 IMCO
Conference has produced a good set of international
standards and IMCO
has been somewhat restructured to allow rapid,
effective future action in setting new standards.
Four options are presented which would change our
existing position. Disapproval of all four options
would mean that the U.S. would continue to support and work
for adoption of its present position. One or more of
the latter three options can be approved in
conjunction with Option 1.
Option 1 provides that
coastal states may enforce international discharge
and dumping standards in a zone extending to a
maximum breadth of 50 nautical miles from the coast,
provided that vessels and aircraft subject to
sovereign immunity would be exempt and that there
would [Page 31] be
prompt release of vessels under bond, liability for
unreasonable enforcement actions, and compulsory
dispute settlement.
The arguments for option 1 are that U.S. must be prepared to
move if it is to influence the majority and the
outcome of the pollution negotiation. This move will
also enable the U.S.
to argue for a distinction between discharge and
construction controls, thus avoiding coastal state
rights regarding construction of vessels, a right
which could seriously hamper navigation.
The arguments against option 1 are that existing
U.S. proposals have
not received adequate consideration by other
delegations. It could also result in interference
with navigation and would be of limited
effectiveness in protecting the environment. Jose
Vallarta, of Mexico, Chairman of the Pollution
Working Group, has told us that his concept of a
final settlement would include an economic zone
satisfactory to other countries with no coastal
state pollution control zone.
Option 2 would authorize
the U.S. to support a
maximum zone of 100 nautical miles if option 1 is
approved and agreement cannot be reached on a
50-mile limit. The arguments for option 2 are that
Canada, a leader in the pollution negotiation, has
used the 100 mile figure in her domestic
legislation. In addition if agreement is not
possible on a 50-mile limit the U.S. would have to support
a 100-mile position to prevent the negotiation from
going to a 200-mile zone. The arguments against
option 2 are that the area of potential interference
by coastal states with navigation would be increased
and environmental protection would not be
significantly increased by an extension from 50 to
100 miles.
Option 3 authorizes the
U.S. to support a
coastal state right, in addition to the right in
option 1, to establish and enforce discharge and
dumping standards in the zone higher than the
international standards, provided that the coastal
state could neither discriminate between vessels of
differing nationalities nor set standards which
would have the practical effect of preventing
navigation. The arguments for option 3 are that it
would deal with the most visible and politically
sensitive problem; would strongly enhance our
ability to prevent coastal state construction
standard-setting and would provide additional
environmental protection particularly from oil
tankers if adopted for an area broader than 50
miles. The arguments against option 3 are that the
[Page 32]
environmental benefits would not be great; coastal
state rights to set higher standards could undercut
efforts to achieve higher international standards;
and the already high international standards should
be tried before they are increased.
Option 4 would allow the
U.S. to support
exclusive international vessel construction
standards for pollution prevention for foreign ships
entering ports but allow port states to apply
internationally agreed standards prior to their
effective date or entry into force, subject to
consultations with appropriate members of Congress
and their staff. The arguments for the option are
that it would remove the inconsistency between
U.S. opposition to
coastal state residual authority to set construction
standards and U.S.
support for port state authority to set such
construction standards. It may also help obtain
maritime state support on other aspects of the
vessel pollution issue. The arguments against the
option are that certain Congressmen would find it
difficult to accept relinquishment of this right
embodied in U.S.
legislation since most tankers entering U.S. ports are not covered
by the new IMCO
construction standards, and since, under the IMCO Convention, a few
major flag states can block amendments. Moreover,
port states, unlike coastal states, are likely to
act reasonably so as not to disrupt their own
trade.
Recommendation
Although the options reflect the areas of greatest
concern, it is recommended, in any case, that the
U.S. be authorized
to explore privately the concept of a “Ship rider”
approach to enforcement of tanker discharge
standards, pursuant to which a ship-rider would be
placed aboard each tanker and be required to report
any illegal discharges to the next port-of-call or
the flag state which would have to take enforcement
action against the vessel. In addition, the U.S. should be authorized
to explore privately coastal state standard setting,
subject to IMCO
approval, of construction standards for well-defined
areas with special ecological and navigational
problems.
- 7.
-
Scientific research (Section
G)
As a result of economic, military, and scientific
interest; the U.S.
has a major interest in assuring the maximum freedom
of marine scientific research. The U.S. has proposed, as an
alternative to coastal state consent, a series of
obligations upon the researcher and his flag [Page 33] state to
respect coastal state resource interests in waters
and seabed areas beyond the territorial sea where
the coastal state exercises jurisdiction. These
obligations include advance notification,
participation, data sharing, assistance in
interpreting data, and compliance with applicable
international environmental standards.
To date, the response to the U.S. proposal from both developed and
developing countries has been disappointing. It is
agreed, however, that there should not be an early
change in the U.S.
position, but that we should make every effort to
persuade others of its merits. In dealing with
developing countries, the U.S. should also explore the possibility
of fostering regional training centers for
scientists, providing selected developing countries
with research vessels, offering a significant
contribution ($50 million over 10 years) for
regional centers and research vessels, and expanding
the coastal state’s right of participation by
providing for the coastal state’s scientists to
participate in the research—all appropriately linked
to support for protection of marine scientific
research. In discussion with developed countries,
attention should be focused on the similarities of
our research interests.
While it is agreed that there should not be an early
change in the U.S.
position, there is disagreement as to whether the
Delegation should be authorized to accept a form of
coastal state consent. An option is presented on
this issue
Option
If it is determined that there is no basis for
agreement without a consent requirement and that an
accommodation would better serve U.S. research interests
than being outvoted, the U.S. is authorized to negotiate a consent
requirement in areas of coastal state resource
jurisdiction, provided that the coastal state is
required to grant consent if specified criteria are
met and provided, also, that consent must be
presumed in the absence of a denial of consent
within a fixed period of time.
The arguments for the option are that a consent
requirement such as stated in the option would be a
significant improvement over the existing
Continental Shelf Convention in that consent could
not be denied if specific criteria are met, and
consent is presumed in the absence of a denial. It
may prove necessary to move soon in view of the
opposition to the present U.S. approach if we are to have any
influence in avoiding a worse regime. Moreover, [Page 34] military
research can only be protected by careful drafting
which may require participation in drafting of the
consent regime.
The arguments against are that it broadens the
consent regime of the Shelf Convention to the water
column as well as the shelf, and in areas where the
continental shelf is less than 200 miles wide
expands the consent requirement beyond the shelf. A
consent regime is inconsistent with our objective of
limiting coastal state jurisdiction, and even though
carefully worded, provides the coastal state with a
practical right of denial in individual cases. A
change in position could draw attention to our
interest in military research and cause difficulties
in preserving it. Coastal states should have little
more reason to support the option than our present
position and thus a change in posit could ultimately
facilitate movement to a more stringent consent
regime.
- 8.
-
Compulsory settlement of
disputes (Section I)
Although no change is required in the instructions
concerning compulsory dispute settlement, a
clarification is needed. Since the U.S. draft proposal
omitted reference to dispute settlement in the
territorial sea and straits and since the underlying
problem in these areas relates to warships and state
aircraft, an adjustment should be made.
Recommendation
It is recommended that compulsory dispute settlement
apply to all parts of the Convention, but it would
not apply to any dispute regarding a vessel or an
aircraft entitled to sovereign immunity under
international law without the express consent of the
flag state.
