In response to an inquiry from Len Meeker about a year ago, we have had
the security implications of the continental shelf question under
intensive review. It now appears that the thrust of international
affairs as well as the terms of the 1958 Geneva Convention will require
a review of the U.S. position on the outer limit of the continental
shelf in the very near future. Therefore, it appears timely to send you
the Department of Defense view of this subject, developed in
coordination with the Joint Chiefs of Staff.
Briefly, our view is the following. First, a continental shelf regime
limited to the 200 meter isobath would be the most compatible with our
national security interests. Second, if some alternative is required, we
would prefer some limit [less than 1 line not
declassified]. Third, no continental shelf regime [less than 1 line not declassified] should be
considered. Fourth, regardless of where the outer limit of the
continental shelf is fixed, there must be a clear reaffirmation of the
continued freedom of the superjacent waters and air space beyond the
limit of the territorial sea.
The interests of the United States would be best served if the
territorial seas and straits questions were settled before any
international agreement is reached on defining the outer limit of the
continental shelf.
Attached is a short paper which sets forth the principal concerns which
have influenced our views.
Enclosure
DEPARTMENT OF DEFENSE VIEW ON THE CONTINENTAL SHELF AND
ISSUES
The protection of U.S. national security requires that, to the extent
it is possible to do so, large areas of sea and air space be
preserved free for military uses. In order to maintain the highest
possible degree of flexibility for military activities the DOD has traditionally opposed the
extension of national sovereignty beyond the three-mile territorial
sea and the superjacent air space. However, the U.S. position with
respect to maximum freedom to use the sea and air space has been
eroded to the point where, at this moment, [1 line
not declassifed].
Decisions which caused this erosion (e.g., in Indonesia, Peru,
Ecuador, the Soviet Union, Communist China, and elsewhere) may
appear, in any given case, to have been the exercise of practical
and intelligent options. Unfortunately, in the aggregate and over
time, these decisions have worked a change in international law to
the detriment of our national security. It would appear that to a
great extent, this erosion was made possible by our failure to
provide sufficiently visible manifestations of the assertion of our
legal rights following the failure of the Geneva Law of the Sea
Convention to agree on a territorial sea limit eleven years ago. The
U.S. is just now beginning to experience the full impact of that
failure.
Nor is the DOD any longer able to
take comfort in the assurance, such as that given when the United
States established a special jurisdictional zone claiming exclusive
fishing jurisdiction, that zones of limited jurisdiction will remain
limited in character. It appears that this can only hold true when
(1) the zone of limited jurisdiction fully accomplishes the purpose
for which it was established (i.e.: is not a compromise zone with
competitory interests laboring to alter its character) and (2) the
zone is established multilaterally with clear and precise
protections for those interests which we do not want subjected to
national or international jurisdiction.
The process of erosion which the U.S. has suffered with respect to
the regime of law applicable to territorial seas very probably would
not have occurred if the world had agreed on a territorial sea limit
adequate to the economic and defense needs of most states and, in
addition, had agreed positively to a regime of continued freedom of
the seas for all other activities. It follows therefore that, in the
absence of a relatively universal agreement on a single territorial
sea limit and on freedom of transit through and over straits, the
DOD position on the continental
shelf issues must, of necessity, be influenced by the possibility of
collateral effects on the superjacent waters and air space.
With respect to the seabeds and deep ocean floor beyond national
jurisdiction the Department of Defense has agreed to the U.S.
proposing that the Eighteen Nation Disarmament Committee be asked to
take up the question of arms control on the seabed with a view to
defining those factors vital to a workable, verifiable and effective
international agreement which would prevent the use of this new
environment for the emplacement of weapons of mass destruction. Such
a study would not place the U.S.
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national security in undue jeopardy. However,
a general prohibition against military activities on the seabed and
ocean floor beyond the outer boundary of the continental shelf would
make necessary and mandatory a thorough re-evaluation, from a
national defense standpoint, of the most favorable shelf outer
boundary. Assuming that no such general prohibition against military
activity is agreed to, it is possible to state the Department of
Defense views on the continental shelf.
From a national security point of view no particular defense
requirements are foreseen which would cause this Department to urge
broadening the continental shelf beyond the narrowest possible
limit, in this case the 200 meter depth curve. Moreover, it is
considered that under the existing circumstances any extension of
the continental shelf beyond a 200 meter limit could degrade the
U.S. national security. Under present international pressures, for
example, a wider continental shelf can only give rise to claims
which will have the effect of placing larger areas of the ocean
bottom under national sovereignty, thereby subjecting our seabed
activities to coastal state control. This can be expected to result
in larger areas of the superjacent waters eventually being placed
under increasing coastal state control. As was pointed out above,
this problem would be reduced in severity if international agreement
on limits of territorial waters and the freedom of transit through
and over straits were to be achieved.
Although the Department of Defense would prefer the 200 meter line
and considers it to be the most desirable outer limit, if overriding
considerations require that a compromise position be offered, it is
felt that a limit [less than 1 line not
declassified] coupled with reaffirmation of the principle
of freedom of the high seas in superjacent waters and air space,
would not have excessively degrading effects on national security.
However, if other U.S. government departments and users propose
limits to the continental shelf beyond the 200 meter depth curve
they should be asked to demonstrate that these overriding interests
and activities will generate real values which would be unobtainable
to the nation without some wider limit.
[2 lines not not declassified] will be in
serious jeopardy under any conceivable regime in which control is
exercised by a nation, state or international organization no matter
how limited the purpose of that control. For technical reasons [2 lines not declassified].
Some legal regimes can be suggested which would create less
interference with this defensive system than others. Nonetheless,
from a Department of Defense standpoint, it is much more important
for the Department of State to be aware that, unless a decision is
made to forego this defensive system, it would not be possible for
this Department to recommend that the United States encourage, sign
or ratify a treaty which could have
[Page 4]
the effect of degrading this system. It does
not appear that it will be adequate to have appropriate language
included in the travaux preparatories nor to rely on complex
constructions placed on existing treaties for the protection of the
U.S. right to install and use this system. If the continental shelf
limit were to be extended [less than 1 line not
declassified] the national security interests would require
that the U.S. obtain substantially worldwide agreement that no state
may impair the freedom of military use of its continental shelf by
foreign nations. Such a widespread agreement appears highly
unlikely. Therefore, the United States should forego any
consideration of a continental shelf limit beyond the [less than 1 line not declassified].
A variety of regimes for the seabed and deep ocean floor have been
suggested in both the international and interagency communities.
These involve schemes for the exercise of sovereignty out to 2500
meters or, at the other extreme, plans for international ownership
of the ocean bottoms up to the boundary of continental shelf
jurisdiction. This Department cannot evaluate which, if any, of
these regimes would be in the acceptable group in advance of knowing
their details. It is obvious, however, that regimes affording the
least jurisdiction and control would be the most compatible with the
U.S. national security interest.
To the extent that United States deliberations on a legal regime for
the seabed and deep ocean floor involve considerations of
jurisdictional control beyond [less than 1 line
not declassified] that control must be carefully
circumscribed so as to make impossible any construction which would
permit interference with the high seas character of the superjacent
waters and air space, or with military uses of the seabed. This, of
course, refers only to those military uses which are consistent with
an arms control agreement, if and when such an agreement comes into
being. It is also recognized that such military uses could not
unreasonably interfere with other lawful activities.
It is therefore concluded that, first, a continental shelf regime
limited to the 200 meter isobath is the most preferable from the
DOD point of view. Second, if
some alternative is required, Defense would prefer some limit
between [less than 1 line not declassified].
Third, no continental shelf regime [less than 1
line not declassified] should be considered. Fourth,
regardless of where the outer limit of the continental shelf is
fixed, there must be a clear reaffirmation of the continued freedom
of the superjacent waters and air space beyond the limit of the
territorial sea.
It is considered that the establishment of a boundary governing the
extent of jurisdiction of coastal states on exploration and
exploitation of resources of the continental shelf, before an
agreement is reached on the limits of territorial seas and on
guaranteed passage through and over international straits, would
adversely affect the interests of the United States. Other nations
would tend to accept this “first agreed boundary” as a boundary for
full national sovereignty. Since this would place serious
restrictions on military operations, the Department of Defense
believes that the territorial seas and straits questions should be
settled before any agreement is reached on defining the outer limit
of the continental shelf. This does not preclude simultaneous
consideration of both questions.
