J. SEWARD JOHNSON LECTURES IN MARINE POLICY SOME LIKELY OUTCOMES FROM THE NEXT LAW OF THE SEA CONFERENCE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80B01495R000800140049-6
• Release Decision: RIFPUB
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• Document Page Count: 23
• Document Creation Date: December 14, 2016
• Document Release Date: March 12, 2003
• Sequence Number: 49
• Publication Date: May 2, 1973
• Content Type: SPEECH

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J. Seward Johnson Lectures
in
Marine Policy
Some Likely Outcomes
From
The Next Law Of The Sea
Conference
John R. Stevenson, Esq.
May 2,1973
Redfield Auditorium
Woods Hole Oceanographic Institution
Woods Hole, Massachusetts
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The Lecture Series has been initiated as a tribute
to Mr. J. Seward Johnson whose longstanding interest
in man and the oceans has been influential in the
establishment of the Institution's program in Marine
Policy and Ocean Management. The objective of
the Program is to promote interdisciplinary investi-
gations of the problems generated by man's increas-
ing uses of the sea.
The fourth J. Seward Johnson Lecture was given
on 2 May 1973 by John R. Stevenson. The subject
was Some Likely Outcomes from the Next Law of
the Sea Conference. The lecturer, The Honorable
John R. Stevenson, served as The Legal Adviser to
the Department of State from 1969 to 1972. During
this period he was Special Advisor to the United
States Delegation to the United Nations General
Assembly and a member of the United States Dele-
gation to the General Assembly of the Organization
of American States. He chaired both the United States
Delegation to the United Nations Seabed Committee
and the United States Government Interagency Task
Force on the Law of the Sea. Mr. Stevenson received
his A.B. from Princeton and his LL.B. and Doctorate
from Columbia Law School. He is now in private
practice with the firm of Sullivan & Cromwell.
PAUL M. FYF, President
Woods Hole Oceanographic Institution
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I appreciate the opportunity to be in Woods Hole.
I have had the opportunity of working with Dr. Fye
and a number of the other ocean scientists in the-last
two years and I have particularly appreciated Dr. Fye's
presentation of the scientific community's interest in
ocean problems. I want to assure you that he has
been a very eloquent advocate for the importance of
freedom of scientific research in the whole ocean.
In the talk tonight I felt that rather than moving
directly to what we can expect to happen in the
upcoming Law of the Sea Conference it might be useful
to at least briefly see how we got there. This will
give you some idea of my own perspective in analyzing
what is apt to happen in the future.
This upcoming Law of the Sea Conference is some-
thing that will basically affect all our interests, not only
the particular interest of many of you which is freedom
of scientific research, but also problems which are of
very vital importance to many different interests in the
U.S. These include vital interests, such as the mobility
of our naval and air forces as well as the survival of
our fishing industry; in terms of the energy and resource
problems you are all hearing so much about these
days, the oceans probably are the most important
new source of petroleum and copper and nickel.
Finally, I think we all today are very well aware of the
tremendous problems of pollution of the environment,
and the pollution of the marine environment is cer-
tainly one of the most important aspects of this pol-
lution problem.
Basically the problem we have in the ocean today
is that there is no agreement on what the rules are for
conducting activities in an area which really represents
70% of the planet. Thus we have a serious problem of
escallating conflicts between many different countries
having different objectives. Now why this has happened
needs some historical context to it. One could say,
why is it that we suddenly realize that we do not have
an adequate legal system under which these activities
can be carried on in peace and without conflict. The
fact of the matter is that for some 31/2 centuries we
did have a very viable legal regime for the ocean. It
had one basic principle, namely the principle of
freedom of the seas, and this was the cornerstone of
what was probably the most durable part of inter-
national law as we have known it. But today, to take
an extreme example, you have a situation where a
number of countries far from accepting the freedom
of the sea concept have been urging200-mile territorial
seas. If this was to be generally accepted, it would
mean that approximately 35% of the ocean would
cease to be the high seas and would then become the
sovereign territory of the coastal states. This, of course,
would also mean that freedom of the high seas, includ-
ing freedom of scientific research, would be a thing
of the past.
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was always an exception for a small area of territorial
seas. For many years a three-mile territorial sea was
the most generally accepted compromise. Within
three miles of a coastal state the seas were sovereign
territory subject only to a right of innocent passage
for surface vessels. Beyond that distance the seas
were free.
Prior to World War II there never was complete
international agreement on the extent of the so-called
territorial sea; however, the three-mile limit always
had the largest measure of support. One could never
get sufficient agreement between those urging three
miles, and those urging up to 12 miles to develop a
binding international treaty on the width of the ter-
ritorial sea. However one thing was clear prior to
World War II-beyond 12 miles, freedom of the seas
was the rule. That is, everyone had the right to use the
seas providing they did not unreasonably interfere with
someone else's use of the sea. Well, what happened
to destroy this generally accepted rule which, by and
large, worked very satisfactorily?
Basically two things have happened: one is that
technology outdistanced international law and inter-
national institutions and; second, in reaction to this
technological explosion and the failure of the world
to deal with this on an international scale, you had a
vast expansion of claims by coastal states to greater
and greater jurisdiction over the oceans.
I won't belabor the technological explosion to this
audience for many of you are more familiar with it
than I am. I certainly should point out the vast im-
provement in our technology for off-shore drilling for
oil and the new technology for producing nickel and
copper from manganese nodules on the deep seabed
which many expect will be commercially viable in
three or four years. Other advances are the mech-
anization and expansion of the distant water fishing
fleet and, of course, the expansion of oceanic research.
At the same time that these technological break-
throughs occurred you had a tremendous economic
need for utilizing this technology, including increases
in the world demand for energy and for animal proteins
from fish.
Up to World War II navigation and fishing were the
primary uses of the sea but with these new uses being
developed you had increasing conflicts over the use
of the same ocean space. In many instances, the new
uses of the ocean conflicted with the traditional uses
and this became a matter of very legitimate concern
to the coastal states, including the United States, who
are naturally interested in protecting their own offshore
resources and beaches. The natural response of many
coastal states has been to assert more and more juris-
diction. One must remember that now the maritime
countries, unlike in the 19th century, are not in a
position to use force to protest many of these claims.
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terms of the high cost of maritime countries attempting
to enforce their rights against developing coastal states.
The international community did try to do something
about the unsettled state of the law of the sea during
the 1958 and 1960 Law of the Sea Conferences; how-
ever, unfortunately, although these were very successful
in terms of codifying many of the detailed rules apply-
ing the freedom of the seas and territorial sea principles,
they were unable to agree on the maximum breadth
of the territorial sea and they were also unable to agree
on a precise outward limit for coastal states' rights to
exploit seabed resources. The meetings paid very little
attention to pollution problems and did not even
address the problem of a legal regime for the deep
seabed area beyond the continental margin. Thus, the
situation that we face today is one in which the Law
of the Sea Conference beginning its substantive delib-
erations in Santiago, Chile, in 1974, may well be the
last opportunity for some sort of international solution
that can peacefully accommodate many of these
competing interests.
In May of 1970 the President announced what the
mainlines of U.S. policy would be with respect to the
Law of the Sea Conference and modernization of the
legal regime of the oceans. His policy has been ampli-
fied and spelled out in more detail at the various
meetings of the United Nations Seabed Committee,
which has been acting as a preparatory committee for
this Conference.
Before commenting on what I think are the most
likely areas of compromise and the critical problems
I would like to very briefly indicate what the U.S.
policy basically is. In general, the approach has been
to try to accommodate the different interests involved
on the assumption that in many cases the conflicts are
not real conflicts if properly analyzed and one can in
many ways achieve a number of different objectives
without necessarily sacrificing one interest to achieve
another interest.
The first aspect of U.S. policy has been a willingness
to move from the traditional 3-mile territorial sea,
which we followed for nearly 200 years, to a 12-mile
territorial sea. We have conditioned this change in
position on obtaining international guarantees of un-
impeded transit through international straits. There are
some hundred international straits that now contain a
high seas corridor under our 3-mile limit because they
are wider than 6 miles. These will become territorial
seas when you move from a 3 to a 12-mile territorial
sea. If all straits between 6 and 24 miles become
territorial seas and there were no international guaran-
tee of unimpeded passage, you would only have the
right of innocent passage which from the United States
standpoint is not satisfactory because, for example, it
would require submarines to navigate on the surface.
This is one of the rules that was agreed to in the
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permit military aircraft to overfly the strait. Moreover,
the concept of innocent passage has become a very
subjective concept by which coastal states could in
effect decide who could or could not go through the
strait.
The second basic concept of U.S. policy (and I'll state
this first very generally) is to recognize that in order
to get general agreement on a 12-mile territorial sea
and to protect our own coastal resource interests, there
must be broad coastal state resource management
jurisdiction over the resources in an area beyond the
territorial sea. On the other hand we have coupled
the willingness to accept broad coastal state resource
management jurisdiction with an insistence on inter-
national standards to be applied in this area, parti-
cularly and most important international standards
protecting other uses of this area, such as navigation
and freedom of scientific research. We have also
conditioned the acceptance of coastal state resource
management jurisdiction on compulsory dispute settle-
ment, so that disputes with respect to the rights of
other states in the area and the coastal states which are
managing the resources can be settled through legal
procedures and not through bilateral political con-
frontation between a maritime state and a developing
coastal state.
Now the details of this general principle of coastal
state resource management jurisdiction vary if you
are talking about fisheries on the one hand or the
seabed minerals on the other and I do not want to go
into great detail. However, I think that it is very impor-
tant, as you in New England know, that there would be
adequate protection for coastal fishermen. The U.S.
proposal basically would give coastal states regulatory
jurisdiction, together with a preference for the fish
that they have the capacity of catching, with respect
to the so-called coastal species of fish (these include
the fish that typically remain over the continental
margin) as well as with respect to fish such as salmon
which although they go so far out to sea return to
spawn in coastal inland waters. We would not give
coastal states jurisdiction over highly migratory fish
such as tuna which in fact migrate off the shores of
many different countries.
In this fisheries area there are certain specific inter-
national limitations of coastal state resource jurisdic-
tion that we have in mind in addition to the general
principles I mentioned concerning protecting other
uses of the area and compulsory dispute settlement.
We have suggested that, where the coastal state itself
is not catching all the fish that can be caught under
sound conservation principles, foreign fishermen
should be admitted to the area on a reasonable basis,
including payment of a reasonable management fee.
With repect to seabed resources, and here we are
talking again about coastal areas and not the deep
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mainly considering here are petroleum resources since
most of the petroleum to be found in the ocean will
be found in the continental margins off the coasts.
In this area we have proposed that the coastal state's
resource management jurisdiction extend out to the
edge of the continental margin, although we have
indicated flexibility if a general agreement can be
achieved by having some kind of a mileage limitation
on coastal state resource management jurisdiction over
petroleum and other resources of the seabed. We have
suggested this coastal state resource management
jurisdiction will be very complete in terms of giving
the coastal state full right to decide who drills for this
oil, the terms on which they drill for it, and what
eventually happens to it. Nonetheless, we have urged
that the coastal state's management jurisdiction be
limited by international standards, thus preventing the
coastal state from unreasonably interfering with other
uses of the area and also by setting certain standards
to prevent the pollution of this area. It is also different
from the fisheries proposals in that we have suggested
there should be some revenue sharing with the inter-
national community with respect to production from
this area.
Considering the deep seabed, that is the area beyond
coastal state resource management jurisdiction, the
principal resources here are manganese nodules from
which nickel, copper, cobalt and manganese can be
produced, and presumably will be produced com-
mercially by the end of this decade.
In this area, the United States has proposed a fully
international regime for licensing the production of
minerals from this area and for revenues to be devoted
to international seabed purposes and for development.
Here, also, we would have the same sort of interna-
tional standards to protect other uses of this area, to
protect the marine environment and have a compulsory
dispute settlement mechanism to make sure that there
were no infringements on other uses of this very
important area.
With repect to scientific research, I have already
indicated what our position has been-in general, it
has been to work for maximum freedom of scientific
research and also to suggest the importance of dis-
semination of the results of such research and participa-
tion by scientists from developing countries.
Now what are the chances for agreement and how
far can some of these U.S. objectives that I mentioned
be realistically achieved in the course of the Law of
the Sea Conference. One should note that in addition
to the Conference itself there have already been a
series of meetings of the Seabed Committee acting as
a preparatory committee; it, in fact, has not limited
itself to technical matters but has been dealing with
some of the political issues that must be dealt with
at the conference itself. A session of this committee
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e a two mont session t is summer in eneva which
will be of very great importance in determining the
success of the Conference beginning next fall and
continuing next spring.
It is also important to note that the resolution decid-
ing that there should be this definite conference
schedule was adopted unanimously by the General
Assembly of the United Nations in the fall of 1972,
so that there was clearly a very strong consensus that
we should move forward as promptly as possible in
attempting an international agreement.
Well, in what areas does it look as if agreement is
emerging? I think that in terms of freedom of naviga-
tion there is a very real possibility of achieving the
12-mile territorial sea. I think that in addition to the
very large number of states that now claim a 12-mile
territorial sea, a number of the states that have been
claiming more than that, and up to 200 miles, have
expressly stated they recognize freedom of navigation
and freedom of overflight in the area beyond the
12 miles. Other states presently embracing the 200-mile
territorial sea have indicated that, providing an accept-
able international agreement in which their resource
interests in the area beyond 12 miles were satisfied,
they would go along with this 12 mile figure.
Now, realistically there are two basic conditions on
which this optimistic prediction is based. On the one
hand, the United States and a number of the other
maritime countries are conditioning the 12-mile terri-
torial sea on obtaining agreement at the same time on
free transit through international straits. On the other
hand, developing countries are willing to agree to the
12-mile territorial sea only if they get jurisdiction over
resources beyond 12 miles as part of the same package.
This brings me to the second area where it is quite
clear that a consensus is emerging, which is the area
of coastal state resource management jurisdiction. I
think the vast majority of states going to the Confer-
ence have indicated a willingness to recognize some
form of coastal state resource management jurisdiction
beyond 12 miles. Now, of course, there remain serious
differences as to how far out this coastal state resource
management jurisdiction is to extend and there remain
differences as to what standards there should be in
terms of international protection of other uses of this
area. But there is a consensus on the underlying
general concept.
Secondly, with respect to the area beyond this
coastal state resource management jurisdiction there
is very general agreement that there should be an
international legal regime for the seabeds beyond
coastal state jurisdiction, wherever it stops. The strong-
est evidence of this was that in 1970 the General
Assembly again adopted, without any negative votes,
a declaration of principles for this area of the seabed
beyond national jurisdiction. At the time the Soviet
Union and a number of the eastern European countries,
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meetings they have in effect withdrawn their opposition
to this concept of an international legal regime for the
seabed beyond international jurisdiction. Their position
was initially predicated primarily on their opposition
to having any kind of revenue sharing with the inter-
national community and also on their- objection to
having any kind of international authority in this area.
However, they have now, in principle, agreed to accept
those two elements providing they are part of a
generally accepted package and, of course, with no
agreement as to the details. of those two aspects. We.
have had a working group of the preparatory com-
mittee which has been trying to spell out what the
actual treaty principles for this area beyond national
jurisdiction should be, and while it is a long way from
agreement it has gotten to the point of drafting treaty
articles and preparing alternative texts so that the
political decisions can be made in the context of fairly
specific proposals.
All right, so much for the area of general consensus;
now, what are the critical problems that we are facing
if you are going to get an overall acceptable package?
Well, I think the first problem has already been sig-
naled by what I said previously about general accep-
tance of coastal state management jurisdiction. The
key problem is how far out does this coastal state
resource management jurisdiction extend and to what
extent is it to be subject to international standards and
international accountability? The great majority of
developing coastal countries, which have indicated a
view, have supported the idea of a 200-mile exclusive
jurisdiction over both the fish and mineral resources
of this area, and at least for the present are not accept-
ing the concept of any international limitations or
standards by which that coastal state jurisdiction will
be governed. I think the most striking evidence of the
very general support for this concept was that at a
regional meeting of the Caribbean States about a year
ago and almost concurrently a regional meeting of
African experts of the law of the sea, both groups came
up with the proposal for a 12-mile territorial sea linked
with a 200-mile coastal state exclusive resource zone.
Other states have been taking a different position. For
example, the distant water fishing states, particularly the
Soviet Union and Japan, have been urging much
narrower limits for coastal state fishing jurisdiction. A
number of landlocked and shelf-locked countries of
the world have been urging that as far as seabed
minerals jurisdiction go that the coastal state juris-
diction not go that far, and have suggested a 40 mile
alternative. They, of course, wish to maintain more
of the ocean for the purely international area in
which they will participate. The United States, as I
mentioned before, has accepted the concept of very
broad coastal state jurisdiction, although we suggest
in the case of fish that its limit be determined by the
location of the coastal species of fish rather than by
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most of the petroleum is contained but have indicated
flexibility on a mileage limitation as an alternative.
We have been stressing the necessity that whatever
the extent of the coastal state resource management
jurisdiction it must protect other uses of this area
including, most importantly, navigation and scientific
research. While a number of the developing countries
have indicated, both privately and to a lesser extent
publicly, that they understand the concerns, they have
continued to take the position that only when the
concept of an exclusive resource zone is accepted will
they begin to consider international limitations on the
exclusive coastal state resource zone.
With respect to the problem of transit through and
over international straits, the situation has been that
the U.S. proposal for free transit has been supported
by other maritime countries, particularly the Soviet
Union, the United Kingdom, and France and by a
limited number of developing countries, such as
Singapore and Argentina. It has been very strongly
opposed by Spain, the Asian Archipelago countries of
the Philippines and Indonesia, and by the Arab states.
The great bulk of the developing countries have stayed
quiet on this issue. The U.S. has continued to stress
that we are not interested in having high seas freedom
in straits but simply a right to transit international
straits. We have also attempted to accommodate the
straits' states very legitimate concern with the problem
of accidents and pollution by suggesting that the Law
of the Sea treaty should make it mandatory that vessels
navigating straits observe the International Maritime
Consultative Organization's (IMCO's) rules for traffic
separation schemes in straits. Hard as it is to believe,
these are only recommendatory at the present time
and we feel there is no excuse for them not being
made obligatory. We also feel that aircraft overflying
straits (in this instance we are talking primarily about
military aircraft because civilian aircraft are covered
by other international agreements) should normally
comply with the International Civil Aviation Organiza-
tion's traffic safety rules. Moreover, we think that where
an accident occurs because a vessel or an airplane does
comply with the safety rules that there should be an
international obligation of strict liability so that there
will just be no question of the coastal state having to
bear the financial burden of any accident that occurs.
The negotiations on the straits issue are in some
respects only commencing because of procedural
problems that arose in the committee with respect to
the scope of the Conference, but you already have a
situation in which there have been some recent
developments. At the last session we had an actual
proposal by the so-called strait states reflecting their
point of view that the traditional rule of innocent
passage should continue to apply and that there should
be special rules for nuclear power vessels, super
tankers, and I hate to mention it in this audience,
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while basically following the U.S. position on free
transit, does define the straits in which the free transit
will be protected as only straits connecting two parts
of the high seas which would, of course, not cover a
strait like the Gulf of Tiran which connects the high
seas with the territorial sea of a third state, in that case
the territorial sea of Israel.
I think that considerable additional discussion on this
issue will take place this summer, and hopefully there
will be more clarification of what various countries
are really seeking. The United States has many times
made the point that we are only talking about a right
of transit and not the right to pollute or fish, or do any
other things in the strait, but I am not sure that has
been fully understood.
Concerning the problem of the regime for the deep
seabed area, as I previously indicated, there has been
a very general agreement in principle. However, once
you start to translate very general principles into very
specific treaty articles some of the problems that were
passed over in developing the general principles start
to surface. For example the general principles recognize
the common heritage of mankind in the seabed beyond
national jurisdiction. Now, we have had a very definite
issue arise over whether common heritage means
common ownership as some developing countries have
asserted. If it were to mean common ownership, no
one could exploit the seabed until we had an inter-
national agreement. The point of view of the United
States and other countries with the technical capacity
to engage in exploitation in this area has been that
until international agreement is reached there exists a
right to exploit the deep seabed subject to reasonable
regard for other uses of the area.
The general principles also recognize that the deep-
sea area should be used exclusively for peaceful pur-
poses. Some countries have interpreted this as meaning
that the area cannot be used for any military purposes
whatsoever. The United States' position and that of
a number of other countries has been that peaceful use
means that it will be used in accordance with the
United Nations charter and that the whole question
of military uses is more appropriately dealt with in the
disarmament context.
However, there is real progress being made on
principles. Probably the most difficult problem in this
area beyond national jurisdiction is that of what type
of an international agency will you have and what will
be its powers. This is a problem which in the United
Nations nomenclature is described as the problem of
the international machinery.
One important machinery problem concerns the
exploitation of mineral resources. In the present state
of technological knowledge this production will be
limited to nickel, copper, cobalt and manganese from
manganese nodules lying on the deep seabed bottom.
z
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vidual companies on the basis of licensing and regula-
tion by the international organization or whether the
international organization shall itself engage in pro-
duction. A number of the developing countries have
urged that in their view these resources are all the
common heritage of mankind and the only way the
international community can basically benefit from this
common heritage is to have the international organiza-
tion itself carry on the activity. The United States and
a number of other developed countries have suggested
that the international community would benefit much
more immediately and directly if the revenues from
these areas are shared and if the international seabed
authority provides technological assistance, but does
not itself directly attempt the investment and personal
organization that would be required to carry on this
activity.
Another important problem with respect to the deep-
sea ocean is what sort of voting arrangement are you
going to have in the executive body, which will be the
most important organ of this international agency.
Here again you have a difference of opinion with many
developing countries urging the one nation-one vote
principle. The developed countries say that if they are
going to obtain the agreement of their governments
and national legislatures to come into this organization
there must be some protection for the countries that
have the capacity to develop the deep-sea areas, but
rather than doing it themselves, agree to operate under
an international system.
With respect to pollution, I'll be very brief. I think
that there is no real jurisdictional problem as far as
pollution of the ocean from land-based sources or from
seabed exploitation within coastal state resource man-
agement jurisdiction. It is recognized that coastal
state should have primary responsibility for enforcing
states should have primary responsibility for enforcing
areas. However, I think there is a very definite feeling
that it would be desirable to have international
standards which the coastal states would adhere to in
enforcing pollution control. We have always very
strongly urged that coastal state resource management
jurisdiction should be subject to a requirement of
minimum international pollution standards. You all
know that pollution of the oceans within a particular
coastal state resource management area can have very
adverse effects in many other areas far beyond that
jurisdiction.
The difficult problem in the pollution area, at least
as far as the Law of the Sea is concerned, is primarily
the problem of pollution from vessels. The basic
problem here is reconciling the coastal state's very
legitimate interest in protection from pollution, with
international interests in freedom of navigation. I
think there has been a growing consensus in this
area that international standards are desirable. Most
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coastal state control the problem for the merchant
marines of the world becomes virtually insolvable
and furthermore the standards will not be anywhere
nearly as effective if they vary from area to area.
the difficult aspect concerns who should enforce
these general standards. Here you have the maritime
states urging that the only efficient way to enforce
vessel standards is for the flag state that controls the
vessel to enforce the standards and possibly to supple-
ment this by a requirement that port states, where
these vessels go, inspect them and make sure they are
in compliance with the standards. Thus there is no
need for the coastal states where the vessels are merely
transiting their waters to attempt to board these vessels
and to enforce standards. However, a number of
coastal states have taken the position that, while, in
fact, they would hope that the flag states and port
states will insure that there will be no pollution, they
still want the residual jurisdiction to take action in the
area beyond their territorial sea. Frequently, they have
urged that they should have this authority in the area
of their coastal state resource management jurisdiction
zone.
One issue which is being discussed, but in respect
of which no agreement has been reached, is that of the
freedom of scientific research. Here again you have
something somewhat akin to the pollution problem
because a number of the developing coastal states that
have been urging this exclusive coastal state resource
zone of 200 miles have, in addition to wanting coastal
state resource jurisdiction and coastal state pollution
jurisdiction, also wanted coastal state control over
scientific research in this area. I think that this is the
principal threat to freedom of scientific research. There
have been some countries that have also suggested
that in the area beyond coastal state jurisdiction, the
international agency should have some regulatory
authority with respect to scientific research but this
certainly has not been discussed to date to anywhere
near the extent of coastal state control in the area of
coastal state resource management.
The United States, as I previously said, has strongly
opposed this position. It has been one of our basic
principles that in agreeing to broad coastal state
resource management jurisdiction other freedoms,
including freedom of scientific research in this area,
should be preserved. However, this still remains a
difficult issue.
What have we been doing about it? We have been
trying our best to inform other countries about the
value of scientific research and have been assisted in
this by the scientific community. Last summer, Pro-
fessor John Knauss of the University of Rhode Island
gave an excellent presentation and, more recently at
the meeting in New York, Dr. Philip Handler, President
of the National Academy of Sciences, also spoke, poin't-
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was something very different from commercial explora-
tion. We have also had attempts to educate developing
countries by a United Nations exhibit on deep-sea
drilling and by a trip of the delegates to Columbia's
Lamont-Doherty Geological Observatory. More parti-
cularly and I think perhaps our most successful effort,
and for which we are thankful to Woods Hole, was the
visit by the research ship Knorr to New York. This visit
was very well received and I think very helpful.
In areas other than education, we have indicated
great receptivity to the concerns of the coastal states
with respect to participation in and obtaining the
results of research.
On the question of whether we can reach any
agreement at the Law of the Sea Conference, I think
that prospects were vastly increased by the action of
the United Nations General Assembly last fall in
unanimously agreeing on the Conference schedule. I
think this also shows that the so-called consensus
approach, where you attempt to accommodate differ-
ent points of view before taking a vote, can achieve
significant results. However, the success of the Confer-
ence is going to depend very markedly on how
successful the 8-week session this summer is in moving
further down the road towards dealing with some of
these unsettled issues which I have referred to, and
further developing a consensus on points where we
have made progress. Certainly one of the keys to the
success of the Conference will be the attitude of
responsible leaders of developing countries who are
beginning to realize that it is not just a question of
using their voting majority to ram through provisions
in their interests, and that a treaty without the United
States, the Soviet Union and the other principal mari-
time countries will not be worth much. They and we
are going to have to follow something like the con-
sensus approach in order to try to develop a generally
acceptable treaty.
Well, as I said, at the outset, the law of the sea is
in a state of crisis and is being challenged. On the
other hand, there is a tremendous opportunity. If we
can develop effective rules and effective institutions
in this area it should have a very definite fall-out effect
on the effectiveness of international law and inter-
national institutions in general.
THANK YOU VERY MUCH
Dr. Fye:
Thank you very much Dr. Stevenson. I think your very
lucid, precise and clear expression of what we face in
the Law of the Sea Conference has been extremely
helpful to us. Your challenge in the beginning that
this may be the last opportunity for peaceful accom-
modation of these conflicting interests impresses us with
the enormous importance of the Conference. I view
your indication of agreement so far as a very encourag-
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ahead. Dr. Stevenson has graciously consented to
answer questions.
Question:
The U.S. participation in the agreement would, of
course, require Senate confirmation. Have key senators
from the important committees been involved in the
considerations to the point?
Answer:
Yes, they have been. We. have consistently briefed key
senators in various committees. In fact, there are a
number of different committees, not just the Foreign
Relations Committee, but the Commerce Committee
and the Interior Committee and, to a certain extent,
the Armed Forces Committee. But more than that we
have had two Senators on our delegation-Senator Pell
of Rhode Island in particular has participated in a
number of the meetings-and other Senators who
couldn't come themselves have sent staff members.
There has been considerable interest and I think they
have been kept well advised.
Question:
How does the military contribute to these meetings?
Answer:
Well, here again very much so. In Washington we had
an interagency task force for the law of the sea which
formulated the U.S. position. While I have been stating
very flatly the U.S. positions, they didn't start out that
way; they only emerged after a good deal of inter-
agency discussions back and forth. We have always
had military representation on our delegation.
Dr. Fye:
I should say that a great deal of success of that inter-
agency task force looking at these things was because
Dr. Stevenson headed that group.
Question:
I am intrigued by the concept of defining the area for
the coastal state resource management not in terms of
mileage but in terms of function, and I wonder what
types of disputes you see arising from this concept
and how might they be settled?
Answer:
The problems with that concept have been first in the
mineral resource area. Here we were suggesting what
we thought was logical-control over the mineral
resources of the continental margin. This is the area
where most of the petroleum is, so it seemed reason-
able to have coastal state resource management extend
to the edge of the continental margin. The problem is
political-many countries of the world, particularly
those of the west coast of Latin America, do not have
a broad continental margin so they say that this is not
fair. They would like a mileage limit or at least a
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How far does the adventurous codfish swim?
Answer:
Well, here again, in the case of living resources, the
so-called coastal species, by and large, do'stay within
the continental waters over the continental margin.
Salmon and other anadromous species go all over the
ocean, and there is a very strong scientific case for
giving the coastal state control over these anadromous
species and only fish for them when they are returning
to spawn. After all, the coastal states own the rivers
that have to be kept ii shape for that stock to prosper.
Question:
Canada has recentIv extended its jurisdiction to
100 miles on the grounds that this is to defend their
territorial integrity from pollution. The provisions have
rules that will inhibit freedom of transit of merchant
vessels regulations. Do the Canadians still support this
position?
Answer:
With respect to the Canadian position, two comments
are important. One is, that once the Canadians began
to address the problem of implementing those laws
with respect to the coastal state pollution zone, they
found it took them much longer than anticipated to
come up with the necessary regulations and make
them effective. It is much more complicated than it
appears on the surface. The second comment is that
in justice to the Canadian position, they, from the
outset, have said that they are doing this as an emer-
gency measure and thzit they would prefer international
agreement. In fact, they have been actively pushing
for an international agreement. We, of course, felt
that they prejudiced the possibility of an international
agreement by acting unilaterally. However, the Cana-
dians are not asserting their laws as the best answer
but simply as an emergency measure. Their concept
of coastal resource m~.nagement is somewhat different
from ours. They talk more in terms of coastal state
custodianship and of going somewhat further in pollu-
tion in terms of coasts I state action, yet like a number
of the developing countries, they have been very firm
in saying there should be international standards.
Question:
To what extent does the U.S. desire for the right of
submarines to transit straits underwater affecting the
reaching of an agreement on the straits question?
Answer:
I think in a way I ansovered the question earlier. The
question of submerged transit by submarines is one.
aspect of the whole transit problem. Today, it is largely
a military problem; bit I don't think this will be the
case in the future, since you may have cargo sub-
marines in the future. The safest way for submarines
to transit straits is submerged rather than on the sur-
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information an understanding we can get c oser to
agreement.
Question:
The fishing community has had `problems concerning
the location of species and they have given you trouble
over that type of agreement-could you discuss some
of the pros and cons of this issue?
Answer:
Basically our fisheries position was supported by the
fisheries industry in the United States. There was an
agreement between the distant water and coastal fisher-
men in general on this species approach as a way of
protecting those two different interests on a reasonable
basis. The scientific aspects of the species approach
is something on which obviously different fish scientists
can and do disagree. Some argue that from an
administrative standpoint a fixed mileage area is easier
to deal with than the concept that the extent of
coastal state jurisdiction extends depends on where
the fish are. On the other hand, I think that the con-
cept that highly migratory fish should be treated differ-
ently from fish that basically stay off the coasts of one
country is something that many people have accepted.
The question of how you best implement that separate
treatment is something presently being discussed.
Question:
There has been much discussion about the utilization
of the ocean for the general purpose of mankind. As
one gets closer to the voting stage it appears that
countries are taking positions which are to their best
advantage. Whatever the economic value of the oceans
will be, do you see any fraction of the total value that
states might be willing to put back into the inter-
national community? 10%, 1%, 0%?
Answer:
I think again it depends on what countries you are
talking about. Our position on this has been consis-
tently to advocate revenue sharing with the inter-
national community both in the deep seabed and in
the area of coastal state resource management juris-
diction. The developing coastal states have not been
sympathetic with that concept in the area of coastal
state resource management. On the other hand, when
you get to the deep seabed they want it virtually fully
devoted to the international community. There is a
very sharp difference in their point of views depending
on the area. One factor that I didn't mention is that
there has been increasing activity by the so-called
landlocked and shelf-locked countries, that do not
have a continental margin or else have a very limited
one. They have votes too and are beginning to take
a common position, so that even though you were to
analyze this strictly in terms of the national interest of
a particular country, it so happens that some countries'
national interests can only be met by some kind of
provision for taking care of the international com-
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I would like to take yc u back to the free transit issue.
The Soviet Union, which claims a 12-mile territorial
sea, claims prior perm ssion for all transit through its
territorial waters is joining with you to demand free
transit elsewhere. Isn't there a contradiction in the
Soviet Union attitude?
Answer:
I have enough probleris defending the U.S. position:
I don't think I want to Undertake defending the Russian
one. For our part, WE have made it very clear that
whatever rules we propose to govern our transit in
other countries' watery we will accept and intend to
apply in our own area;. I think the problem that the
Soviet position creates or other countries is something
that may not be completely resolved at the Conference
because it may be that the issue will be in terms of
some concept, such as historic waters which will have
to be resolved after the Conference, hopefully through
compulsory dispute settlement. This is then one of
the reasons we feel sc strongly that there should be
compulsory dispute set:lement so some of these issues
that are not fully resolved in a general treaty can be
dealt with in due course and will not hold up the
whole agreement on the treaty.
Question:
If the U.S comes to support a 200-mile economic zone
limit, or some other mileage type limit, it would seem
to me that this would mean a complete change in the
U.S. policy, it would compromise our species approach,
it would compromise Nixon's proposals for trusteeship
zone etc., particularly with 200 miles. Do you think
the U.S. might eventually get in a position where it
would accept this proposal for other things the U.S.
very seriously wants su:h as freedom to pass through
the straits?
Answer:
You have asked some very loaded questions. When we
talk about a 200-mile gone we can be talking about
many different animals As far as the seabed is con-
cerned, the U.S. contimntal margin proposal in many
areas went beyond 200 miles. We feel the international
content of the area k in many ways almost more
important than what its exact extent is. The gut issues
for us are protecting ocher uses of the area including
freedom of navigation and scientific research and we
feel that can only be cone if you get into the treaty
express provisions which you can hang your hat on,
and if you can get compulsory dispute settlement. This
is much more important than the exact distance
involved or the concept involved. In the fisheries area
we have opposed a fixed mileage zone.
Question:
Who then bears the burden of proof for international
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In the straits area it would be essential, if you believe
that free transit is important, that the transit be allowed
to take place and then you litigate later on who is
responsible for any violation of International standards.
As far as navigation is concerned you would have to
take that stand. If navigation is to be held up for a
long litigation you don't have any rights.
Question:
Concerning the unilateral act jeopardizing international
negotiations, could you say something about House
Resolution 9 and the need for a deep-sea mining
regime now?
Answer:
The issue here is one of what happens before you get
agreement on an international regime and before that
international regime becomes effective. Suppose our
companies are in a position to go forward before that
happens. To put it differently. If they are to make the
investment necessary to do this, they need some assur-
ance that the problem will be looked at from the
standpoint of industry's interests. The problem looked
at from the international negotiating standpoint is that
a number of developing countries feel that the pro-
posed interim legislation is just as much a unilateral
act as extending your territorial sea; it is in essence
preempting the international regime before it is ever
established. You have both of these considerations.
The United States did indicate its position on this
problem just before this last session and at the session
suggesting that the most constructive approach would
be to work for having the international regime agreed
to by 1974 or 1975 at the latest as the United Nations
schedule now calls for; but more than that providing
that the seabed rules would become provisionally
operative immediately following agreement and not
await the complex radification process which may take
2 or 3 years or more. This is the same approach that was
followed with respect to the International Civil Aviation
Organization and was very successful there. If this
could be done here then you do not confront the
issue. On the other hand, if it is impossible to get
international agreement, then you will have to take
another look at what the U.S. national interests would
demand in terms of this activity.
Question:
In my years in the Congress I (Congressman Hastings
Keith) was constantly confronted by my constituency
which was more interested in the fisheries than they
were perhaps in scientific aspects of the problem. I'd
like to have you, for the record, develop that here a
little more. I am sure that you were thinking of this
audience when emphasizing freedom of navigation and
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wit re erence tote fisheries problem the Department
of State as it represents the interagency task force and
our government is very concerned with the ficherv
 Approved e r 200af0 &stC RDPMB9sl4R1 000800140049-6
ested in going to sea because they don't see what the
future holds for them. ICNAF hasn't been strong
enough to effectively protect the resource, and the
Assistant Secretary of Commerce at the opening of
the international session in Washington, a year ago,
said we might have to abandon this ICNAF regional
approach if ICNAF couldn't come up with some
revolutionary measures that would keep up with the
revolutionary changes in fisheries technique. My ques-
tion is, what is the sarre time table for the national
agreement that will bind us more or less? And what
do we do in the meanwhile to strengthen the regional
operations and regional regulations of fisheries?
Answer:
In terms of your first question, about the importance
of the fisheries issue, I think that the whole concept of
the U.S. accepting and, in fact, agreeing to a coastal state
resource management jurisdiction meets in very large
measure the problem cf the coastal fishermen. The
coastal fishermen are going to have a preference and
there is going to be U.S. regulation in this area, so that
I think they are being very fully taken into account.
This coastal state resource management concept is one
of the basic points of or. r policy and is fortunately one
on which there is fairly wide agreement with the
exception of a small ni mber of distant water fishing
states. Now the probl gym, as you indicated in the
second part of your statement, is that we can't have
that put into effect right now, and so the time schedule
is for 1974-75 for the trEaty and then it may take some
time to ratify it thereafte ?. In the meanwhile, I certainly
agree with you that we should try, as I know the U.S.
Government has been trying, to move the regional
organizations along the same lines that we are moving
in the Law of the Sea negotiations and convince ICNAF
and other organizations to take more account of
coastal state interests. How successful we will be
remains to be seen. But I think the fact that this is what
we want for a general la,v of the sea settlement can be
helpful in terms of getting the regional groups to
move that way.
Question:
Concerning the question of freedom of scientific re-
search, do you mean by this that all states will benefit
and, if so, what kind o1 guarantees would the under-
developed countries have for equal consideration of
the results?
Answer:
I think that by freedom of scientific research you do
mean that this would be a right that all countries
would have. The prob em of achieving that is, to a
certain extent, suggested by your second question
because I think the deNeloping countries that do not
themselves have the capacity to carry on scientific
research are not particularly interested in other coun-
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eve oping countries participate in scientific researc
in areas off their coast, and that provision of the
necessary technical assistance is made. These are very
important aspects of the negotiation. I wish we had
had much more of this in the past. The scientific
community has done an excellent job in this area.
However, unfortunately in many countries sometimes
the local scientists haven't told their foreign offices
how much they have benefited by this. Hopefully more
of them will do so in the future.
Question:
You said earlier that if in fact USSR and U.S. didn't
accept the provisional Law of the Sea, then the Law of
the Sea treaty wouldn't be very effective. just now you
mentioned that all but a few states accept the concept
of coastal state jurisdiction over resources. I wonder,
thereby, if those few states that don't include the
USSR, Japan etc., who are necessary for an effective
agreement? Second, I wonder, in relation to the
previous comment on research, whether we distinguish
between the concept of innocent research and non-
innocent research as we do in the passage through
straits.
Answer:
First, on the resource question I think we should nar-
row the problem if there is one. It is a fisheries problem
and not a coastal state mineral resource jurisdiction as
far as these countries are concerned. Now there is
another group of states concerned with the seabed
mineral resource problem (the landlocked and shelf-
locked). As far as the Soviet Union and Japan are
concerned, the fisheries problem is a difficult one.
While I didn't mention it, because of time, certainly
the problem of what you do about countries that have
traditionally fished in a particular area is one that will
have to be addressed. There will have to be some
formula for dealing with the problem that those
countries may have and, in some instances, there may
be bilateral ways of taking care of it. While you can't
say that the whole negotiation will depend on satisfying
Japan and Soviet Union on fisheries, I think that
certainly the whole package will have to be such that
on balance what happens in that very difficult area is
something that they can accept.
Concerning the kind of research, the approach that
has been most publicly made in that area has been the
approach referred to of the Academy of Sciences which
has suggested a distinction between open research as
that being carried on for the benefit of mankind and
limited research made for the economic benefit of a
small group.
Question:
Do you think those two definitions of research stand
alone, or do you think there should be some machinery
for differentiating what is, in fact, open research and
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Academy is open pLblication and this occurs after
the fact.
Answer:
I think the problem you mention is really a more
general problem of :he extent to which you have
machinery which will itself define what certain terms
mean or whether you try to spell it out in the treaty.
I think frankly this is much too early in the negotiations
to see just how that is going to work. You have very
serious problems along the same line in the whole
question of what sort of standards for pollution are you
going to have. Are you simply going to try now to
set up procedures for that or are you going to attempt
to spell it out in detail? I think that, as a general
principle, for someth ng that is important to us you
have got to get something in the treaty you can hang
your hat on. You jus: can't leave the whole thing up
in the air to be resolved by some subsequent machin-
ery. On the other hand, sometimes it may not be to
our advantage to get too detailed and we should rather
prefer to have a morE generalized statement.
Question:
Do you know what tFe U.S. position is as far as world
fisheries? And if the :.00-mile zone is adopted will the
U.S. continue to go along and pay for the present
licensing used by some coastal states?
Answer:
Well, you've asked two different questions. As I indi-
cated, our position as far as the Law of the Sea
negotiations is that a highly migratory species such as
tuna should be deaf with through international ar-
rangements and international organizations rather than
by the coastal state. Coastal state resource management
jurisdiction is what we favor for all other species of
fish.
Now the question of what the U.S. is going to do in
the interim is to a certain extent a matter which our
Congress decides. The approach which we have been
taking with respect to Peru and Ecuador has been
mandated by Congress, so that this will essentially
depend on Congress' views about what the prospects
for settlement through an international agreement
will be.
Dr. Fye:
Ladies and Gentlemen, you now see why I said Dr.
Stevenson was the nation's leading authority on the
subject. I know you could stay and ask some more
questions, but I think we should give him a breather.
We have some refre! hments in the lobby, so please
have some and meet Dr. Stevenson in person.
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