On May 23, 1970 the President announced that the United States would
propose an international agreement under which coastal states would
limit their sovereign right over the seabed to the point where the high
seas (the United States is also proposing a 12-mile limit on the
territorial sea) would reach a depth of 200 meters. The President’s
proposal further contemplated that coastal states would act as trustees
for the international community in an international trusteeship zone
comprised of the continental margins beyond a depth of 200 meters off
their coasts, determining who shall exploit the seabed’s resources and
receiving a share of the international royalty payments from the zone in
which they act as trustees. Exploration of seabed resources in the area
beyond would be authorized by an international authority. The President
also announced that the United States would introduce specific proposals
at the next meeting of the United Nations Seabed Committee, which meets
in Geneva convening on Monday, August 3.
Since the time of the President’s announcement, an inter-agency task
force, of which I have served as Chairman, has prepared a draft treaty
spelling out in detail the President’s proposal. This draft treaty has
now been cleared by State, Defense, Interior and the other agencies
concerned for presentation as a working document for discussion purposes
and not necessarily representing the definitive views of the U.S.
Government.
During the course of the preparation of the draft treaty, we conferred
with representatives of the oil and hard mineral industries and have
incorporated a number of their suggestions in the present version of the
treaty and I have also appeared this week before the Interior and
Foreign Relations Committees of the Senate and will appear on Friday
before the Foreign Affairs and Fisheries Committees of the House.
Senator Pell, the Chairman of the Ocean Subcommittee of the Foreign
Affairs Committee, and Senator Hollings, Chairman of the Commerce
Committee have announced support for the treaty. Senator Jackson and three other members of the
Senate Interior Committee wrote you last week indicating their concern
regarding presentation of the treaty at this time. However, at the end
of my meeting with the Interior Committee on Monday to explain the
changes we had made in the treaty in the light of some of the questions
they raised together with our intention to present the draft as a
working paper for discussion, Senator Metcalf indicated that he regarded my explanation as an
appropriate answer to the letter.
It is our present plan to submit the draft treaty to the Seabeds
Committee in Geneva next Monday and at the same time to make copies
available to the press and various capitals in order to achieve the
maximum benefit for our overall Law of the Sea effort.
Attached hereto for your information are (1) May 23, 1970 Statement by
the President on U.S. Oceans Policy; (2) a summary prepared by me of the
draft treaty; (3) the draft treaty; and (4) a brief statement of the
benefits to various states which would result from the treaty.
Attachment
Statement of John R.
Stevenson, The Legal Adviser, Department of State,
summarizing draft “United Nations Convention on the International
Seabed Area”
On May 23, 1970, President Nixon announced a new oceans policy for the United
States and stated that the United States would make specific
proposals at the UN Seabeds Committee
in August with regard to the proposed regime for the seabeds beyond
national jurisdiction which he set forth in broad outline in his
announcement. The submission of a draft “United Nations Convention
on the International Seabed Area” to the Seabeds Committee as a
working paper for discussion within that Committee as well as with
other governments and within the United States, implements the
President’s announcement. The draft Convention and its appendices
raise a number of questions with respect to which further detailed
study is clearly necessary and do not necessarily represent the
definitive views of the United States Government.
The basic structure of the Convention reflects the President’s
proposals that states should by international agreement renounce
their sovereign rights in the seabed under the high seas* beyond a water depth of 200 meters; establish an
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international regime
for the area beyond with certain basic principles and general rules
applicable throughout this area; authorize the coastal states as
trustees for the international community to carry out the major
administrative role in licensing the exploration and exploitation of
natural resources from the limit of coastal state national
jurisdiction to the edge of the continental margin, and share in the
international revenues from the trusteeship area which they
administered; and establish international machinery to perform
similar functions in the area beyond the continental margin.
Basic Principles
Among the basic principles which would become applicable to the
entire International Seabed Area (including the International
Trusteeship Area) under the Convention would be the following:
The International Seabed Area would be the common heritage of mankind
and no State could exercise sovereignty or sovereign rights over
this area or its resources, or, except as provided in the
Convention, acquire any right or interest therein.
The International Seabed Area would be open to use by all States
without discrimination, except as otherwise provided in the
Convention, and would be reserved exclusively for peaceful
purposes.
Provision would be made for the collection of revenues from mineral
production in the Area to be used for international community
purposes including economic advancement of developing countries and
to promote the safe, efficient and economic exploitation of the
mineral resources of the seabed.
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Exploration and exploitation of the natural resources of the Area
must not result in unjustified interference with other activities in
the marine environment and all activities in the Area must be
conducted with adequate safeguards against pollution and the
protection of human life and the marine environment.
A contracting party would be responsible that those authorized by it
(as Trustee in the Trusteeship Area) or sponsored by it (in the area
beyond) complied with the Convention and for any damage caused by
them.
The general rules would be as follows:
Mineral Resources
All exploration and exploitation of the mineral deposits in the Area
would be licensed by the appropriate Trustee in the Trusteeship Zone
and by the International Seabed Resource Authority in the area
beyond subject to general provisions relating to the terms of
licenses included as Appendices forming part of the Convention, a
number of which allow greater discretion to the Trustee State in the
case of the Trusteeship Area. The Contracting Parties would have
primary responsibility for inspecting activities licensed or
sponsored by them. The International Seabed Resource Authority would
also have authority to inspect and determine if a licensed operation
violates the treaty. Licenses would be revoked only for cause
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and in accordance with
the Convention with expropriation of investments made, or
unjustifiable interference with operations conducted, pursuant to a
license prohibited.
Living Resources of the Seabed
All contracting parties would have the right to explore and exploit
these resources (e.g. king crab) subject to necessary conservation
measures and the right of the Trustee in the Trusteeship Area to
decide whether and by whom such resources should be exploited.
Protection of the Marine Environment, Life and
Property
The International Seabed Resource Authority would be authorized to
prescribe rules to protect against pollution of the marine
environment and injury to persons and resources resulting from
exploration and exploitation and to prevent unjustifiable
interference with other activities in the marine environment.
Scientific Research
Each party would agree to encourage and to obviate interference with
scientific research and to promote international cooperation in
scientific research.
International Trusteeship Area
The provisions of the Treaty relating to the International
Trusteeship Area would define the outer limit of the
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area as a line beyond
the base of the continental slope where the downward inclination of
the seabed reaches a specified gradient, such gradient to be
determined by technical experts taking into account, among other
factors, ease of determination, the need to avoid dual
administration of single resource deposits and the avoidance of
including excessively large areas in the Area; would limit the
Trustee’s rights to those set forth in the Convention; would include
among those rights the issuing, suspending and revoking of mineral
exploration and exploitation licenses subject to the rules set forth
in the Convention and its Appendices, with full discretion to decide
whether a license should be issued and to decide to whom a license
should be issued; to exercise criminal and civil jurisdiction over
its licensees; and to retain a portion (a figure between 33 1/3% and
50% is suggested for consideration) of the fees and payments
required under the Convention for activities in the Area; to collect
and retain additional license and rental fees to defray its
administrative expenses; and to collect other additional payments,
retaining the same portion as above of such other additional
payments.
International Seabed Resource Authority
The principal organs of the proposed International Seabed Resource
Authority would be an Assembly of all Contracting
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Parties; a Council of 24 members,
including the six most industrially advanced Contracting States, at
least twelve developing countries and at least two landlocked or
shelf-locked states; and a Tribunal of from five to nine judges
elected by the Council.
The Assembly which would meet at least once every three years, would
elect members of the Council, approve budgets proposed by the
Council, approve proposals of the Council for changes in allocation
of net income within the limits prescribed in an Appendix to the
Convention, and make recommendations. The Council, which would make
decisions only with the approval of a majority of both the six most
advanced industrial members and of the eighteen other members, would
appoint the Commissions provided for in the Convention, submit to
the Assembly budgets and proposals for changes in the allocation of
net income within the limits prescribed in an Appendix, and could
issue emergency orders at the request of a Contracting Party to
prevent serious harm to the marine environment. The Tribunal would
decide all disputes and advise on all questions relating to the
interpretation and application of the Convention. It would have
compulsory jurisdiction in respect of any complaint brought by a
Contracting Party against another Contracting Party for failure to
fulfill its obligation under the Convention, or whenever the
Operations
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Commission,
on its own initiative or at the request of any licensee, considered
that a Contracting Party or licensee had failed to fulfill its
obligations under the Convention. If the Tribunal found the
Contracting Party or licensee in default, such party or licensee
must take the measures required to implement the Tribunal’s
judgment. The Tribunal would have the power to impose fines of not
more than $1,000 for each day of an offense as well as to award
damages to the other party concerned. Where the Tribunal determined
that a licensee had committed a gross and persistent violation of
the provisions of the Convention and within a reasonable time has
not brought its operations into compliance, the Council could either
revoke the license or request the Trustee Party to do so. Where a
Contracting Party failed to perform the obligations incumbent on it
under a judgment of the Tribunal, the Council, on application of the
other party to the case, could decide upon measures to give effect
to the judgment, including, when appropriate, temporary suspension
of the rights of the defaulting party under the Convention (the
extent of such suspension to be related to the extent and
seriousness of the violation). In addition, any Contracting Party,
and any person directly affected, could bring before the Tribunal
the legality of any measure taken by the Council, or one of its
Commissions, on the ground of violation of the Convention, lack of
jurisdiction, infringement of important procedural rules,
unreasonableness, or misuse of powers and the Tribunal could declare
such measure null and void.
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The Convention also provides for the establishment of three
Commissions, each of from five to nine members: the Rules and
Recommended Practices Commission would consider and recommend to the
Council adoption of Annexes as described below. The Operations
Commission would issue licenses for mineral exploration and
exploitation in the area beyond the International Trusteeship Area
and supervise the operations of licensees in cooperation with the
Trustee or Sponsoring Party, but not itself engage in exploration or
exploitation. The International Seabed Boundary Review Commission
would review the delineation of boundaries submitted by the
Contracting Parties for approval in accordance with the Convention,
negotiate differences among the Parties and if the differences were
not resolved initiate appropriate proceedings before the Tribunal,
and render advice to Contracting Parties on boundary questions.
The members of the Council could not be employees of the Authority
and the members of the Rules and Recommended Practices Commission
and the International Seabed Boundary Review Commission would not be
full-time employees of the Authority.
The Secretariat of the Authority would consist of a Secretary-General
appointed by the Council and a staff appointed by the
Secretary-General under the general guidelines established by the
Council.
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Any amendment of the Convention or the Appendices would require the
approval of the Council and a two-thirds vote of the Assembly and
would come into force only when ratified by two thirds of the
Contracting Parties, including each of the six most advanced
industrial states.
Appendices, which are integral parts of the Convention, are included
in the draft Convention by way of example only as they require
extensive consideration by technically qualified experts of the
questions involved.
The illustrative Appendices included in the draft Treaty relate to a)
terms and procedures applying to all licenses in the International
Seabed Area; b) terms and procedures applying to licenses in the
International Seabed Area beyond the International Trusteeship Area;
c) terms and procedures for licenses in the International
Trusteeship Area; d) division of revenue; and e) designation of
members of the Council representing the six most industrially
advanced states.
Appendix A, applicable to the entire International Seabed Area, would
provide for: non-exclusive exploration licenses not restricted as to
area authorizing geophysical
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and geochemical measurements and bottom
sampling; exclusive exploitation licenses including the right to
undertake deep drilling and expiring at the end of fifteen years if
no commercial production is achieved; deep drilling for purposes
other than exploration or exploitation of seabed minerals under a
permit issued at no charge by the Authority provided the Authority
judges the proposed drilling does not pose an uncontrollable hazard
to human safety and the environment; certification by the Trustee or
Sponsoring Party of the operator’s technical and financial
competence; a minimum and maximum limit on license fees, the
applicable fee to be specified in an Annex to the Convention with
authorization to the Trustee or Sponsoring Party to impose
additional fees within specified limits to help cover its
administrative costs; the categories of minerals and areas covered
by licenses; relinquishment of part of the licensed area when
production commences; maximum and minimum rental fees prior to and
after attaining commercial production, the applicable fee to be
specified in an Annex to the Convention; minimum annual work
requirements; submission of work plans and data under exploitation
licenses prior to
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commercial production; submission of production plans and reports;
unit operations; minimum and maximum payments on production, the
applicable amount to be specified in an Annex to the Convention
(such payments to be percentages of the gross value at the site of
oil and gas or minerals, to be proportional to production, and to be
in the nature of payments ordinarily made to governments under
similar conditions); the levels of payments on production and work
requirements to be graduated to take account of probable risk and
cost to the investor, including such factors as water depth,
climate, volume of production, vicinity to existing production, or
other factors affecting the economic rent that can reasonably be
anticipated from mineral production in a given area; and the
operator and the Authorizing or Sponsoring Party, as appropriate, to
be liable for damage to other users of the environment and to
require operators to subscribe to an insurance plan or provide other
means of guaranteeing responsibility.
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Appendix B, applicable to the area beyond the International
Trusteeship Area, would permit Contracting Parties to obtain
exploration and exploitation licenses from the Authority if they
designate a specific agency to act as operator on their behalf; and
to authorize persons they sponsor to apply for licenses; require the
Sponsoring Party to certify as to the technical and financial
competence of the operator; would require the Authority to grant
licenses on proper application unless another application for the
same block has been received at the monthly intervals at which
applications are opened; if more than one application has been
received, to award the license at competitive bidding among such
applicants; to provide for award of a license by competitive bidding
in the event of termination, forfeiture, or revocation of an
exploitation license, or sale of a block contiguous to a block on
which production has begun, or of a block from which hydrocarbons or
other fluids are being drained; would authorize transfer of an
exploitation license with the approval of the Sponsoring Party and
the Authority and the payment of a transfer fee; would provide
limits on the duration of exploitation licenses; and would stipulate
minimum and maximum work requirements, the applicable amount to be
stipulated in an Annex to the Convention.
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Appendix C, applicable solely to the International Trusteeship Area,
would reaffirm the Trustee’s exclusive right, in its discretion, to
approve or disapprove applications for exploration and exploitation
licenses; and to use any system for this purpose; to establish the
term of the exploitation license and conditions, if any, under which
it may be renewed provided that continuance after the first 15 years
is contingent upon achieving commercial production; to impose
proration; and to set work requirements above the minimums specified
in Appendix A.
Appendix D would provide that the net income, after administrative
expenses of the Authority, devoted to the economic advancement of
developing States Parties to the Convention would be divided among a
list of stipulated international and regional development
organizations, the list to indicate the percentages assigned to each
organization.
Appendix E would stipulate the formula for determining the six most
industrially advanced Contracting Parties for purposes of
designation to the Council.
Annexes to the Convention would be prepared by the Rules and
Recommended Practices Commission, submitted for comments to the
Contracting Parties and to the Council for adoption and would come
into force unless more than one-third of the Contracting Parties
disapproved within three months. In addition
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to fixing the level, basis and
accounting procedures for determining international fees and other
forms of payment within the ranges specified in Annex A and
establishing work requirements for the area beyond the Trusteeship
Area within the ranges specified in Appendix B, Annexes could
establish criteria for defining technical and financial competence
of applicants for licenses; assure that all exploration and
exploitation activities and deep drilling were conducted with strict
and adequate safeguards for the protection of human life and safety,
the marine environment and living marine organisms; prevent or
reduce to acceptable limits interference arising from exploration
and exploitation activities with other uses and users of the marine
environment; assure safe design and construction of fixed
exploration and exploitation installations and equipment; and
related matters. Any Contracting Party believing that a provision of
an Annex could not be reasonably applied to it because of special
circumstances might seek a waiver from the Operations
Commission.
The Convention would provide for the due integrity of investments in
the International Seabed Area made prior to the coming into force of
the Convention. Authorizations by a Contracting Party to exploit
granted prior to July 1, 1970, would be continued without change
after the coming into force of the Convention, with the Contracting
Parties being obligated
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to pay the production requirements provided under the Convention,
and new activities under such authorizations being subject to the
regulatory requirements of the Convention relating to pollution and
unjustifiable interference with other uses of the marine
environment. With respect to authorizations granted after July 1,
1970, the authorizing Contracting Party would be bound to either
issue a new license in its capacity as Trustee or, in the area
beyond, to sponsor the licensee’s application for a new license from
the International Resource Authority. A new license issued by a
Trustee would include the same terms and conditions as the previous
authorization and the Trustee would be responsible for complying
with the increased obligations resulting from the application of the
Convention. Moreover, any Contracting Party authorizing activities
after July 1, 1970, would be required to compensate the licensee for
any investment losses resulting from the application of the
Convention.
