Foreign Relations of the United States, 1952–1954, General: Economic and Political Matters, Volume I, Part 2

320.22/4–2952

The Secretary of State to the British Ambassador (Franks)

confidential

The Secretary of State presents his compliments to His Excellency the British Ambassador and has the honor to refer to his note No. 175 of April 29, 1952,¹ enclosing a draft of the United Kingdom’s reply to the request of the United Nations Secretariat for comments on the draft articles on the Continental Shelf and Related Subjects prepared by the International Law Commission.²

There is enclosed the proposed reply of the Government of the United States on this subject. It will be noted therefrom that the Government of the United States is not prepared at this time to submit comments on Part II, Related Subjects, but will endeavor to submit them to the Commission at a later date. Whether this will be possible before the Commission meets in June the Department of State is unable to state at this time. In any event, the comments of the Government of the United States on Part II will be made available to the British Government.

It will be further noted from the proposed reply that the Government of the United States is in general agreement with the draft of the Commission on Part I, Continental Shelf, and that its views are not substantially different from those of the British Government on Articles 3, 4, 5, 6 and 7. With respect to Article 1, the Government of the United States observes that it is not inconsistent with the President’s Proclamation of September 28, 1945 under the terms of which the exploitation of the natural resources of the Continental Shelf is not limited by the depth of the superjacent waters. The Government of the United States is not entirely convinced by the comments of the British Government in support of its proposal to amend Article 1 to permit the exploitation of the continental shelf only “as far as the hundred fathom line”.

In so far as Article 2 is concerned, the formulation “control and jurisdiction” is the same as that used in the President’s Proclamation and is, therefore, unobjectionable to the Government of the United States. This does not necessarily mean, however, that the United States would object to the application of the concept of “sovereignty” to the continental shelf should such application have general approbation.

It should be pointed out further with respect to the proposed comments of the Government of the United States that they are made with a view to furthering the work of the Commission and do not necessarily represent a final position, although it is unlikely that they will be modified generally.

Washington, [May 16, 1952.]

[Enclosure]

Draft Reply by the United States Government to the United Nations

undated

The Government of the United States refers to the request of the International Law Commission for comments on the Draft Articles on The Continental Shelf and Related Subjects.

It is the understanding of this Government that the purpose of these comments is to facilitate reconsideration of the draft by the Commission prior to the preparation of a final document. For this purpose, the Government of the United States is in general agreement with the principles which appear to inspire the draft articles of Part I, Continental Shelf, but has the following suggestions to make.

This Government is under the impression that the draft articles in Part I, Continental Shelf intend to establish in favor of the coastal state an exclusive right to the exploration of the continental shelf and the exploitation of its resources. This Government wonders, accordingly, whether it would not be advisable to make it clear, at least in the commentaries, that control and jurisdiction for the purpose indicated in the draft articles mean in fact an exclusive, but functional, right to explore and exploit. It is also the view of this Government that Article 5 does not carry out precisely enough its purpose which, as stated in the commentary, is to bar the coastal state from excluding the laying or maintenance of submarine cables. As it stands, Article 5 appears to imply that the coastal state may do so if the measures resulting in such exclusion are reasonable. The matter, it is believed, deserves clarification.

In addition, this Government does not believe that it is advisable to limit the scope of judicial arbitration by defining it as arbitration ex acquo et bono, as suggested in the commentary to Article 7.

The Government of the United States is not prepared to submit comments at this time on Part II, Related Subjects, and will endeavor to communicate them to the Commission at a later date.

1. Not printed; it stated that the British Government was generally satisfied with the terms of the draft articles. (320.22/4–2952)
2. The reference Draft Articles are printed as part of the Report of the International Law Commission to the General Assembly concerning the work of its third session in ILC Yearbook, 1951, vol. ii, p. 141. These articles were drafted after presentation of the Second Report on the High Seas (A/CN.4/42) submitted by Professor J. P. A. François of the Netherlands, Rapporteur Spécial of the Commission, on Apr. 10, 1951. Chapter 11 of the Second Report dealt with the Continental Shelf. For the text of the report in French, see ibid., p. 75. The Commission discussed Chapter 11 at its meetings from June 28 to July 4 and again on July 12, 1951; for additional information, see ibid., vol. i, pp. 267–301 and 346.