THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA NEW YORK, MARCH 15-MAY 7, 1976 US DELEGATION REPORT

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82S00697R000400120012-0
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• Document Creation Date: December 15, 2016
• Document Release Date: March 8, 2004
• Sequence Number: 12
• Publication Date: May 7, 1976
• Content Type: REPORT

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UNCLASSIFIED
THE THIRD UNITED NATIONS CONFERENCE
ON THE LAW OF THE SEA
New York, March 15-May 7, 1976
US Delegation Report
I. Summary of Delegation Report
Following is a summary of the Delegation Report on the
New York Session of the Law of the Sea Conference, March 15-
May 7, 1976. The detailed Delegation Report on the work of
the Main Committees is included.
The fourth session of the Law of the Sea Conference met
in New York from March 15 to May 7. The basis of discussion
and negotiation was the Single Negotiating Text prepared by
the three Chairmen of the Main Committees, and by the Presi-
dent of the Conference with respect to dispute settlement,
After virtually complete discussion of these texts at the
current session, revisions were released on the last day of
the current session. These revisions were prepared by the
respective Chairmen, and with respect to dispute settlement,
by the President of the Conference, taking into account dis-
cussions and negotiations at this session.
On April 8 Secretary Kissinger made a major statement
on the LOS negotiations before an American audience which
was circulated to all delegations, and then met with the
conference officers and the heads of delegation, where he
made additional remarks. The Secretary's statement and
appearance were widely welcomed as an indication of the high-
level United States interest in an early and successful con-
clusion to the negotiations, and his new proposals regarding
the deep seabeds were welcomed as evidence of a real effort
to accommodate the interests of developing countries.
The Conference has decided to convene another session
in New York from August 2 to September 17. Procedures are
likely to emphasize negotiations on important outstanding
issues leading to an overall package treaty.
Since the revised Single Negotiating Texts were issued
on the last day of the session, it is not possible to in-
clude an evaluation of them in this report. An initial reading
would indicate the following significant points.
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COMMITTEE I
The new text contains refined ideas with respect to an
accommodation of the interests of developing countries, indus-
trialized countries, consumers, and producers. In particular
it specifies conditions under which States and their nationals
would have access to the exploration and exploitation of deep
seabed minerals, the control of the Authority in this regard,
and establishes a system under which prime mining sites
would be reserved for exploitation by the "Enterprise" (the
exploitation arm of the Authority) and developing countries.
It, also contains specific provisions, including an interim
production limit, to protect developing country land-based
producers of metals also produced on the seabed. New
procedures for the Assembly designed to protect the interests
of all concerned are included.
The text specifically notes that the important question
of the composition and voting of the Council of the Seabed
Authority "has not yet been -fully dealt with by the Committee."
COMMITTEE II
No major changes were made in the Committee II text.
As specifically noted in the introductory note of the Chair-
man to the revised text, certain important issues remain to
be resolved. These include the question of the high. seas
status of the economic zone and the question of the access
of land-locked and other "geographically disadvantaged" States
to _ riving resources of the economic zone. The Chairman's
basic approach to the revision of this text is indicated in
paragraphs 7, 8 and 9 of his introductory note, which are as
follows:
"7. By far the largest category of articles consisted of
those to which no amendments commanding other than minimal
support were introduced. It was clear that these should be
retained as they were in the single negotiating text.
"8. A second group consisted of articles where there
was a clear trend favoring the inclusion of a particular
amendment or where I was given a mandate to make a change
within agreed limits.
"9. A third category consisted of articles dealing with
issues which could be identified, on the basis of extensive
discussion, as those on which negotiations were most needed.
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My response to these issues varied according to my assessment
of the state reached in the negotiations. In certain cases,
I felt I could suggest a compromise solution. In other
cases I considered that negotiations would be advanced if I
were to at least point the way to an eventual solution. In
still other cases, I felt that while there may be a need for
a change in the Single Necotiating Text, any modifications to
the text might prove counterproductive in the search for a
solution."
COMMITTEE III
1. Pollution: The major changes relate to vessel-
source pollution. They include specific enforcement rights
for port States for violations of international discharge
regulation regardless of where they occur, and specified
enforcement rights for coastal States with respect to dis.-
charges in the economic zone in violation of international
standards.
I
2. Scientific research: With respect to marine scienti-
fic research, a major change has been made which would require
the consent of the coastal State for marine scientific
research for activities in the economic zone or on the contin-
ental shelf, provided that consent shall not be withheld
unless the project bears substantially upon the exploration
and exploitation of resources, involves drilling or the use
of explosives, unduly interferes with coastal State econ-
omic activities in accordance with its jurisdiction, or
involves the construction, operation or use of artificial
islands, and structures subject to coastal State jurisdic-
tion. The procedures for settlement of disputes are
elaborated further in this regard.
SETTLEMENT OF DISPUTES
The new text contains new language on those cases in
which the compulsory procedures would apply to disputes in
the economic zone. It adopts a formula on procedures which
permits a State to choose among the following procedures in
c ses. in which it would be subject to suit: (a) arbitration;
(b) the International Court of Justice; (c) a new Law of the
Sea Tribunal; or (d) specialized procedures for particular
kinds of disputes (although, if (d) is selected, the State
must also select a, b, or c for disputes not covered by the
specialized procedures).
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II. Committee I (Deep Seabeds)
Committee I completed a. review of almost all articles of
Part I of the Single Negotiating Text.
Toward the end of the session, the Chairman of Committee _V,
Paul Engo of the Cameroon, issued as informal conference docu-
ments new texts which significantly modified the SNT he had
issued in Geneva in 1975. He characterized these texts as hi_s
personal assessment of the emerging consensus in the Commit-
tee I negotiations. These texts were issued on the last day
of the Conference as the Revised Single Negotiating Text,
Part I.
A. System of Exploitation and Access to Deep Seabed
The Committee began the session by considering Annex I
(Basic Conditions of Prospecting, Exploration and Exploitation)
to Part I of the LOS Treaty. This Annex elaborates the mechan-
ism for obtaining contracts,' the qualifications and selection
of applicants, the rights and obligations under the contract,
terms for suspension and revision of contracts, and the scope
of the Seabed Authority' s _r ules, regulations, and procedures.
It sets forth the objective criteria upon which these rules
and regulations must be based.
Annex I supplements the basic provision in the body of
the treaty on the system of access (Article 22). This article
lies at the heart of the deep seabed negotiations, as it
determines the right of access of States and their nationals
to the mineral resources.
The system of exploitation included in the new SNT con-
sists of a system in which the Authority, through its operating
arm, the Enterprise, may exploit the deep seabed directly or
exploitation may be carried out pursuant to contracts concluded
with the Authority in accordance with Annex I by member States
or their nationals.
Annex I elaborates a new system of revenue sharing between
the contractor and the Authority. The Committee did not
complete its consideration of this issue. As a result, a
formula including precise figures was not negotiated. The
revised Annex provides two alternative formulas: one is
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based on a revenue sharing scheme widely used which includes
.a grace period from payments followed by a sliding scale based
on profits or an alternative royalty system utilized at the
discretion of the operator. A second alternative formula
provides for revenue sharing or royalties at the discretion
of the Authority.
Economic T,,,,,-)licati_on,
Committee I has for many ' year. s clue motioned the economic
effect deep seabed mining may have on developing country
land-based producers of manganese, copper, nickel and cobalt.
. number of these _land_-based producers have attempted in the
negotiations to provide protection for their countries by
giving the Authority the power to control. directly price and
production of these metals mined from the seabed. The U.S.
and a number of other countries have strongly opposed giv.Lng
the Authority the power to control prices or production. A
failure to fired a compromise on this issue has been one of the
major obstacles to a successful conclusion of the negotiations
on seabed issues. The new SNT issued by Engo includes an
article (Article 9) which attempts to achieve a compromise
on this point. It provides for a 20-year period during
which time a production limitation would apply to ensure
that ocean mining does not produce more than the projected
cumulative growth segment of the nickel market..
C. Assembly arid Council
Another difficult area. in the negotiations has been the
delineation of the relative powers and functions of the
Assembly and Council of the Authority. The new SNT attempts
a balance between these two organs of the Authority. The new
Assembly is the supreme organ of the Authority with the power
to prescribe general policies by adopting resolutions and
making recommendations. The Council is the executive organ
of the Authority with the power to prescribe specific policies
to be pursued by the Authority.
D. Commissions
The new SNT establishes three commissions: the Economic
Planning Commission, the Technical Commission and the Rules
and. Regulations Commission. In addition, there are a number
of general and housekeeping articles which were largely agreed
upon.
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E. Dispute Sett.lementSystem
Most delegations favor a system which includes a permanent
organ of the Authority with the power and duty to take final.,
binding decisions regarding all disputes arising under Part I
of the Convention, relating to the conduct of exploration and
exploitation. The now SN'.I:' reflects this philosophy. However,
a few delegations, holding a different view ----that all decisic.F7
sh.ould be made through a system of ad hoc arbitration-
pressed'. their .views .strongly. and wilt do so in the, next session.
A number of important issues were debated but only in a
preliminary mariner during this session and will have to be
negotiated in more detail during the next session of the
Conference.
F. Provisional Application
One such issue is whether the Law of the Sea Treaty,
and particularly Part I, should be applied provisionally
before the treaty as a whole enters permanently into for.cc
Some delegations felt that this question can be more appro--
priately dealt with later or not at all. The majority view,
however, supports provisional application of the treaty as
a whole while recognizing that this concept may involve
certain technical, or juridical difficulties for some Statures.
G. The Enterprise
A major concern of developing countries is the establish-
ment of a functioning Enterprise which would be the organ of
the Authority which would exploit seabed resources directly.
During the closing days of the Conference session, a draft:
Annex II (The Statute of the Enterprise) was circulated.
While there was some discussion on this question, the debate
was inconclusive and the details remain to be resolved at. the
next session. The fundamental issue of concern to developed
and non-developed countries is how the Enterprise will be
financed. The developed countries advocated a system in which
the Enterprise could borrow money in capital markets as well
as receive a portion of the Authority's revenue sharing funds,
while some developing countries urged that there be a manda-
tory fee levied on all States parties. The Enterprise
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statute and the related articles in the treaty on financing
the Authority remain to be settled at a later date.
H. Council Voting
The most important issue which was not resolved concerns
the composition and voting system in the Council.. The U.S.
and other developed countries clearly stated that they could.
not accept the system provided for in the SNT of March 1975.
The U.S. in December 1975 proposed amendments which would
strengthen. this article from our point of view. However, our
representatives have made it clear that we are not satisfied
with our own amendments to the SN'1', and have said that we
would propose a new article at the next Session. In light of
this, Chairman Fngo did not hold consultat.-ions on this
extremely important issue. The SNT contains the text of the
Geneva SNT but there is a clear understanding that this issue
would be discussed and negotiated at the next sess=ion.
1. Quota System or Anti-Monoply Article
Several industrialized countries pressed vigorously
for a limit on the number of mines sites or contracts which
any one State or its nationals could obtain from the Authority
at any given time. This view was resisted with equal viCTOr by
the United States, which explained that there are several
hundred prime mine sites and thousands more of good quality
for the future. This issue remains as one of the most dif-
ficult in the negotiations ahead. The developing countries
sidestepped this issue rather than take sides in a dispute:
among and between developed countries.
J. Secretary's Statement
During this session of the Conference, Secretary Kissinger
made a statement (April 8 before the Foreign Police Associa.
tion) in which he outlined the major remaining issues that had
to be resolved in the LOS negotiations, citing specifically
the difficult problems in Committee I. Secretary Kissinger
outlined the compromise package proposal as an effort to
bridge differences in the negotiations. This speech was
regarded as an important contribution to achieving an atmosphere
of accommodation.
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III. Committee IT (Territorial seas, Straits, the Ec=onomic
Zone, the Continental Shelf, High Seas, Archipelagoes,
Land-locked States, Islands, and Enclosed and Semi-
enclosed Seas)
The work of Committee TI was organized 'Co discuss in
informal working sessions of the full committee all issues in
the Informal Single Ncgociat.incj 't'ext issued at the end of the
last session in Geneva. The discussion. proceeded on an
article--by-a.r,ti.clo bas:iis. In. an attempt to expedite the work,
a rhle was adopted 'whereby silence on the part of any delega-
tion would be interpreted as indicating support for the
Geneva Single Negotiating Text and opposition to any
amendments proposed. While small group consultations were
possible, and did in fact take place (tuna, land-locked and
geographically disadvantaged States) , the committee working
sessions each day left little time for such consultations.
After six-and- one-half weeks of intensive work, the consid-
eration of all Committee II articles was completed, and the
Chairman commenced the preparation of a revised text. The
clear overall impression of the debate was that Part II o,~
the Geneva Single Negotiating Text was broadly acceptable.
The major contentious issues in Committee IT faced by
the Fourth Session were:
1. the juridical. status of the economic zone as high
seas; and
2. the access to the sea by land-locked States, and the
access to the resources in the economic zones of States of a
region by such States and geographically disadvantaged States
of the region.
Other important issues on which there was significant
division were:
1. delimitation of economic zone and continental shelf
boundaries between opposite and adjacent States including the
question of islands;
2. the question of coastal State authority over con-
struction, design, equipment and manning standards for foreign
vessels in the territorial. seas, which is related to the
Committee III pollution negotiations;
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3. highly migratory species;
4. resource rights for territories under foreign occupa-
tion or colonial domination.
It will also be necessary to do further work. with regard
to the continental shelf beyond 200 miles, although the basic
framework of a solut.-i..on seems to be apparent at this point:;
a precise ctefini c-ion of the outer limit combined with r.e :~cr?u^
sharing beyond 200 mi?lcs.
It is clear that delegations now have a better grasp of
the overall Committee II package, though a number of issues
are still outstanding.
A. Territorial Seas
There was continued broad support within the committee
for a 12--mile territorial sea. as a part of an overall, w_Ldely
accepted package. Some coastal States continued, however, to
press for 200 miles, or reserved positions on breadth pending
clarification of coastal States` rights in the exclusive
economic zone. Neither proposals for 200-mile territorial
seas, nor those for extensive historic waters received much
support. Provisions on baselines received general approval
with minor exceptions. In the discussion of delimitaH on
between opposite or adjacent :hates the distinction surfaced,
which appeared later as well, between the use of equity and
equidistance as the prcper criterion.
B. Innocent Passage in the Territorial Sea
There was general support in committee for retaining the
regime for innocent passage as set forth in the Geneva Single
Negotiating Text. There was some attempt to limit the right
of innocent passage, as a preliminary to the straits debates
but none of the major amendments received significant support.
In addition-, a group of States suggested amendments making the
list of non-innocent acts explicitly non-exhaustive. Debate
over whether the coastal State could adopt laws and regulations
concerning the design, construction, manning and equipping of
vessels in innocent passage in the territorial sea was incon-
clusive, as was the debate over the retention of provisions
concerning the documentation of nuclear-powered ships. The
former issue is a vessel-source pollution issue being negoti-
ated in Committee III.
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C. Straits Used for International Navigation
With the exception of vocal objections by a small number
of strait States, the discussion of these articles reflected
a general willingness to accept the Single Negotiating 'T'ext.
The majority of States indicated this by remaining silent:: on
the issue. An initial attempt to delete the entire part and
d suggestion that there be further consultations among .nt_er-
e .sted parties received little suppor_t.. As anti.cipa Led1 a sin :;_
.number of stat.es? pressed for 'amendments which would have the
result of transforming the transit passage regime to one of
innocent passage. Some States pressed for provisions for
State responsibility for loss or damage resulting from passage
of ships. Both efforts generated little support.
D. The Exclusive Economic Zone
Debate on the exclusive economic zone articles of the
Single Negotiating Text was extensive and foreshadowed the
general debate on the nature and character of the economic
zone as high seas which took place in connection with the high
seas section. Strong efforts by land-locked and geographically
disadvantaged States to secure access to economic zones on a
regional basis also emerged in the debate. Maritime States
sought amendments that would limit treatment of coastal State
authority in the economic zone regarding pollution and scienti-
fic research to a cross reference to the work of Committee III.
While there was widespread support for sovereign rights over
resources, some coastal States sought to achieve broader jur-
isdiction tantamount to a territorial sea. The group of land-
locked and geographically disadvantaged States strongly
opposed the latter concept and proposed amendments that would
ensure strong language regarding their rights of access to the
living resources in the economic zones of States on a regional
basis. This evoked equally strong coastal State reactions.
Articles on fishing and surplus of coastal State fish stocks
received little comment, while many States were still of dif-
fering views on regional arrangements for the management and
conservation of highly migratory species. The article on
anadr_omous species drew no substantial comment and appears
broadly acceptable. The question of delimitation again received
committee attention with a clear split between states favoring
the median line and those preferring to place emphasis on
special circumstances.
. Continental Shelf
The primary issue in the Committee debate on the con--
tinental shelf involved the extent of coastal States jurisdiction.
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A number of States argued for limiting such jurisdiction to 200
nautical miles, while a number of States with broad marcgi_ns~
pressed for jurisdiction over the full continental margin where
it extends beyond 200 miles. Public debate and private con-
versations indicated emerge-rice of wide support for a compromise
including acceptance of coastal State jurisdiction beyond 200
Iles to a prec=i_se1y defined. l i_irilt combined with sharing accord-
iq to a treaty formula by the coastal State of .r.evenue:
generated from cxp.t.olt:a.tiorloi_ i:hO mineral res(-.)urces of the
margin beyond 700 miles.
F. High Seas
The majority of the discussions on this topic wore devoted:
to a thorough airing of the question of the juridical natiure:
of the economic zone, with approximately three-quarters of the
States present participating in the debate. States were
evenly split on whether the exclusion of the economic zone
from the high seas should be removed from Article 73, with
corresponding changes in other relevant articles. The length
and complexity of the debate showed a desire by many for some
change in the article which would preserve the high seas status
of the economic zone. Secretary Kissinger expressly stated
that the economic zone remains high seas. Attemp;:.s were made
by some delegations to find a compromise based upon an exclu-
sion from the regime of the high seas of those coastal States'
rights expressly provided for in the convention. Most other
articles received little comment.
G. L" iiving Resoures Beyond the Economic Zone
The provisions of this part were for the most part
acceptable. Some support was generated for amendments call-
ing for coordination of management and conservation of living
resources beyond the economic zone through regional, sub-
regional or global organizations, and for minimizing conflicts
between fishing within and outside the economic zone. In
addition, some whaling States sought deletion of the reference
in Article 53 to prohibitions or special limitations on exploit-
ation of marine mammals.
H. Land-Locked State Access to the Sea
The land-locked States opened debate on this subject call-
ing for the right of transit through the territories of transit
States for the purpose of access to the sea, subject to terms
and conditions to be set by agreement. Such proposals were met
by strong opposition from coastal transit States seeking a more
limited version, suggesting that the principle of reciprocity
should in all cases apply..
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I. Ar.chipcelagic: States
There was little support for changes in the Geneva Single
Negotiating Text. Attempts to alter the size of the envelope
enclosing an archipelago, along with those designed to extend
the concept by changing the land-water ratio, received little
support. Debate centered t:q_pon the length of permissible =.jrchirn.
pelagic base.l..incs with general. support for l._im:i.t s set forth in
the texL with a small n~lltla':'t: of exceptions permitted.
States- pressed for .,extension. of the archipelago concept to
-
archipol-a.gos of continental States, but attracted little support.
J. Islands
This a._r_ Lic.l.e was generally acceptable to the co1TImi Ltee .
The Geneva Single Negotiating Text provides that rocks which
cannot sustain human habitation or economic life of their own
shall not have an economic zone or continental shelf. A pro-
posal to delete this reference drew strong, but not majority,
support.
K. Enclosed and Semi-Enclosed Seas
The text of these articles providing for States bordering
on enclosed or semi-enclosed seas to cooperate in meeting com-
mon problems seemed generally acceptable to most States providedl
that the duty was not strengthened, and. perhaps weakened a bit,
Proposals in this area tended to be attempts to adjust. the
texts to deal with limited, special situations, and these
suggestions received only limited regional support.
L. Territories Under Foreign Occupation or Colonial.
Domination ~~ -
Article 136 of the Geneva Single Negotiating Text would
make special provisions for exercise of resource rights in
certain categories of non. self-governing territories. Discus-
sion of this article tended to be highly politicized and there
was considerable support on the one hand for revising they text
to make it less discriminatory (i.e. inclusion of reference to
associated States) and for extending it to include liberation
movements on the other. There was also some recognition that
the issues involved cannot be resolved in the Law of the Sea
forum. Several compromise proposals were suggested for the
Chairman's consideration.
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M. Landlocked State Access o.
to Marine ,t R~:s ~~ aL ces
.>
Minister Jens Evensen of Norway convened a group
of interested States during the. session to attempt to
find an acceptable formula for Articles 57, 58 and 59
dealing with access of land-locked. and geographically
disadv, :nt'aged S teat es to the l_i_vi_ng resources of the co -
nomi.c zones of eori_~ i .1. S l: a"bee of thci -r recrion. -text:.
was produced for -submission to the Chairman, _(".)ut ? si.g7').::i;:.t w
cant- d.isagreement on* the issue's rcmains.
Iv. Committee. III (Pollution and Scientific Research)
Objectives in this part of the LOS negotiations have
been to establish effective environmental protection
obligations with regard to all sources of marine pollution.
In general, this would include standard-setting and enforce-
ment rights for each source and, with the exception of la.nd-
based pollution, to require that domestic regulations be
at :.(.east as effective as international regulations. In
a.dilition, much effort was devoted to finding a settlement
on vessel-source pollution which would ensure effective
enforcement of the. regulations while not impinging on navi-
gation. The negotiating process occurred mainly within the
informal working group of the whole and through consulta-
tions conducted by Chairman Jose Louis Vallarta. (Mexico).
An important initial decision was not to reopen the
first 15 articles of the Geneva Single Negotiating Text
which were previously negotiated. These cover the general
obligations to prevent pollution, global and regional co-
operation on pollution problems, technical assistance,
monitoring, and environmental assessments. A few changes
were made to those texts based on Evensen Group intersess_concil.
work. Article-by-article discussion then took place on
Articles 1.6 through 19 and 21 through 25 with few changes
be i.ng m nade to the Geneva Singh Negotiating Text. These
articles provide for the establishment and enforcement of
regulations on land-based pollution, continental. shelf
pollution and ocean dumping and indicate that pollution from
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deep seabed exploration and exploitation of resources will
be handled in Committee I. On the vessel-source pollution
artidles (20, 26-39) , the discussion took place on an issue-
by-issue approach. A:i[ter_? general debate in the working
group of the whole, real. negotiation took place in an .nforma1.
consulting group open to all countr_-i_es.' There was movement
.toward compromise on the part of both the coastal and marl.--
i,i.mc St_ ztes . The t.t ~,c r of he di.,-;cuss- permi Ltecl. Ambassador
Yankov to produce ' a new text cwhich may - he ' very close to a
final treaty on most issues.
In the area of veg. sel--source pollution, three major
aspects were addressed : coastal state regulations in the
economic zone; enforcement generally against vessel--source
pollution; and coastal State rights in the territorial sea.
With respect to economic zone regulations, most coun-
tries agree that there should only be generally applicable
.international regulations in the economic zone, ai.thoug11.
there would be special areas,defined by criteria in the
treaty, in which more strict international discharge reoqu.-
lations would apply. In general, t:he crii+eria and requla--
tions in these special areas would be the same as those in
the 1.973 IMCO Convention. __'n addition, the text contains an
article giving coastal States standard.-setting and enforce-
ment rights in ice-covered areas within the limits of the
economic zone.
On enforcement of international discharge r_egul.ations,
an accommodation has been generally supported along the
following lines:
(a) strict flag State obligations to take effective
enforcement action.;
(b) port State enforcement rights to prosecute
vessels in its ports for international discharge standard
violations regardless of where they occur;
(c) a coastal State right to take enforcement action
in the economic zone against flagrant or gross violations
of international discharge regulations causing major damage
or threat of damage to coastal State interests;
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(d) a flag State ricrht to pre-empt prosecutions for
violations beyond the territorial sea by other States unless
the flag State has disregarded its enforcement obligations
or the violation has caused major damage.; and
(e) a series of safeguards including release on
bond of vessels, Lability for unreasonable enforcement,
and. sovereign . miilun:i ty.
With regard to the territorial sea,
a major. spl i_L
remains. '.. The . Other ma-j or maritime pow~r:s (USSR, Japan,
U.K. and most Western )uroeeans) argue that the coastal
State should not be authorized to establish construction,
d.esic,n, equipment or manning regulations more strict than
international regu:l.ations. Many coastal States and the U.S.
support complete coastal State authority subject only to the
right of innocent passage. The U.S. view is already sct out
in domestic legislation in the Ports and Waterway., Safety
Act. The Third Committee text supports the U.S. view while
the Second Committee text suppo.r.ts the maritime viewpoint,
thus requiring later resoluLion of the issue.
The major issue remaining to be resolved is co-ordinat.:i.on
of the Committees i.:t and III texts on territorial sea
jurisdiction. The coastal State rights to set manning,
equipment, design and construction standards within the
territorial sea will not see final resolution until such co--
ordination has taken place.
B. Marine Sci enti fic Research
Committee III completed the first article-by-article
reading of the Geneva Single Negotiating Text on marine
scientific research (MSR) and on Technology Transfer. The
Chairman of the informal working group, Cornel Met.tern.ich
of the FRG, repeatedly stressed. that the purpose of the
sessions was to obtain reactions to the SNT in order to aid
Chairman Yankov in redrafting the text.
With these ground rules, the main focus of the marine
scientific research discussions was Chapter III of the
Geneva, text dealing with research in the economic zone and
on the continental shelf. The U.S. approach was that
coastal State interests in the economic zone should be pro-
tected through a series of agreed obligations upon the re-
searcher. Many developed countries sought consent for all
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research in the economic zone. The Geneva text set
forth a mixed regime in the economic zone requiring consent
for resource-oriented research and an obligations regime
for research not oriented toward resources. This d..istinc-
ti_on between categories of research came under attack
by thirty-six developing countries who claimed such a distinc-
tion wes l.mpract 1_cal an:' that consent: should apply t o mil..
research. ~1C`[:a_~7 t t' es in the nconoIrLLC zonne. Most other CCU 1) 1-1'.'le
defended: the di.st.aa1cI(-_i_oi7 concept a ; the only practical 'ba'sis
for a Compromise Sett:i_emernt_ on. the question of MSR. In
an attempt to find a r.eeson;.1.bie accommodation, Secretary
Kissinger stated a willingness to accept a reasonab' e d i_s-
ti_:nction approach, subject to compulsory dispute Settlement
.
An important element= of a. re ime for marine scientific
research based on a. distinction between resource and non---
resource oriented research i.s the question of who decides;
the orientation of the research. Mexico continued to s'ee'k
compulsory conciliation with the ultimate right in the coastal
State to decide the issue. Many developing States who had
attacked the proposal to distinguish between resource and
non-resource oriented research indicated that the. Mexican
approach would make this distinction concept more acceptable.
Many of the supporters of the distinction concept, on thee
other hand, said it was crucial to have di-p,,,,.-Led questions; on
the nature of the research subject to binding third-party
settlement. There was no clear resolution o F the issue in
the informal meetings of the Committee.
Metter_ni_ch, in his report to Chairman Yankov, referred
to informal negotiations that had occurred during the ses-
sion and offered the following personal conclusion:
(a) a compromise will not be reached on a text which
required consent in all cases, nor in a text where consent
is never required. A mixed regime subjecting some research
activities to consent and some to an obligation regime appeared,
to be the only viable basis for compromise;
(b) while there was no agreement as to the complete
list, it appeared that at least the following should require
consent: resource-oriented research, although there was no
agreement as to the proper terminology to describe this form
of research; drilling or the use of explosives; and utilization
of structures referred to in Article 48 of Part II;
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(c) central to the regime was the question of
dispute settlement with no compromise on this issue readily
apparent.
The revised Single Negotiat.lug 1'ext, however, reflec-tn
a different approach from those discussed in the nectotia.-
tion. It requires consent for all scierit i..fi.c research in the
economic zone but provides that consent shall not be w:i th-
held unless it is .resour, O c,i ,,.1t:cd, i].vai.ves drilling and
the use of explosives, or the utili'z.ation of artificial
islands or in.stalla.tions 'subject to coastal. State jurisctic--
Lion. The new text also provides that disputes regarding
research will first be referred to experts to aid the parties
in reaching agreement, but if those. efforts are not cuccessl'u ,
it will be referred to the binding dispute settlement proce-
dures set forth in Part IV.
C. Transfer-,of Technology
The discussion. on transfer of technology was lengthy
but basically inconclusive. ;Several attempts were made
to ensure that the text reflected the view that transfer
of technology was an obligation of developed States not
subject to normal economic principles. Contrasted to this
view was the approach. that all transfer of technology invol-?
vin.g technology in the commTEer.c.ia] sector must protect the
interest of both the recipient and the supplier of technology.
V. Settlement of Disputes
A. General. Objectives
Effective provisions for the binding settlement of
disputes arising from the interpretation or application
of the LOS Convention are an essential part of a negotiated
package. Without a provision for compulsory settlement of
disputes, the substantive provisions of the Convention would
be subject to unilateral interpretation and the delicate
balance of rights and duties achieved in a Convention would
be quickly upset. Secretary Kissinger emphasized the impor-
tance of this in his April 8 speech.
B. Background
An Informal Working Group on Settlement of Disputes
was organized at Caracas, and at the end of the 1975 Geneva
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session this Group sumbi.tted a text to the President of' the
Conference. Using that text and resolving sortie of the issues
it. left open, the President prepared and circulated a Single
Negotiating Text on dispute settlement in July 1975.
in an effort to blend together the conflicting approaches
which were discussed at Caracas and Geneva ---one which
would provide compulsory dispute settlement only for certa in
disputes; the other which would apply compulsory di sputc
settlement, to, all disputes --President Amerasirighe provided
in his first text for a new Law of the Sea Tribunal to
resolve disputes involving the interpretation or application
of the Convention (unless the parties to the dispute agreed
to arbitration or the Intmcrnationa.i_ Court of Justice) ; he
also provided for special procedures in the area of fisheries,
pollution, and scientific research disputes and for various
exceptions to compulsory dispute settlement, including one
which deals with the pivotal question of dispute settlement
in the economic zone.
C. Plenary Debate
Dispute Settlement was taken up in a plenary meeting
of Lhe Conference for the first time during the four h
session. In six days of debate, a wide range of views were
expressed by seventy--two speakers. Each speaker acknowledged
the need for a dispute settlement system, hut discussion
of the scope and competence of the system disclosed widely
divergent viewpoints on basic details. Some States advocated
a comprehensive system that would apply to all disputes
arising out of the interpretation and application of the
Convention. Some States supported a comprehensive system
with a provision for limited and carefully defined exceptions
from the jurisdiction of the system. And some States proposed
that compulsory dispute settlement should be totally excluded
from the economic zone, although many of those States also
expressly acknowledged that navigation and overflight disputes
in the zone should be subject to compulsory dispute settlement.
Many delegations. recognized that disputes arising out
of deep seabed mining activities, particularly disputes
over contract matters; would have unique features, and
accordingly supported specialized procedures for such
disputes. Some favoreda completely independent Seabed
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Tribunal which would be an organ of the Seabed Authority
with authority to make bi. ndin.g, final decisions regarding
all disputes arising out of the activities in the area
pursuant to Part I of the Convention. Others suggested that
an appellate relat_icnship should be established between tile
Seabed Tribunal and the Law of the Sea Tribunal.
Speakers in the. plenary also discussed the structure
of the dispute t t.lE.Ilt''Tlt sy ' Lein. Some States advocated
arbitration as the sole mode of settling disputes;-. others
advocated. use of tic Inte.r.nat.i..onal_ Court of Justice; and
others supported the creation of a new Law of the Sea
Tribunal. (although some delegations opposed any new tribunal).
Some States advocated specialized procedures to handle
disputes related to fishing, navigation, and research;
other States advocated a system with general jurisdiction for
handling all disputes. In the discussion of the type of
forum or torn to be used, there was substantial support for
a provision that would give a Contracting Party a choice
among three tribunals (an arbitral tribunal, the Law of the
Sea Tribunal, or the International Court of Justice), A.
Party's declaration at the time of ratification would deter-
m..Lne the forum before which that Party could be brought by a
claimant in a dispute.
At the close of the plenary debate, President Amera_:ii_nghe
obtained approval for his proposal to produce a revised text
based on the remarks in plenary and any suggestions subsc_e
qu.ently submitted informally to him.
D. The Basic Issues
In the dispute settlement section of the Convention,
the question of application of compulsory third-party
dispute settlement in the economic zone is the most difficult
and complex issue. States opposed to excluding compulsory
dispute settlement from the zone contend that the Convention
system must take account of both coastal and other States
rights in the zone. The success of the conference will
depend on designing a provision that will accommodate
both coastal. State interest in resource management discretion
and the major rights and interests of other States in the
economic zone.
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E. Group of '77
The Group of 77 undertook a serious and detailed study
of dispute settlement Yor the first time d=ing this (,ssir)nl?
11 twE.LVc' 1.1 t'-1[1t~C.t" uC,C)T].t-ac' gt0~lj:" CoiidUCtC'_Ca,
and debate over a pel'iod? of several weeks. A pc7siti.on paper
was produced by this contact group for the Group of ?77.
Revised Single Negot-..iati_rig Text
The fundamental., question of protecting the rights of
coastal States and the rights of other States in the economic
zone is treated in Article 1.8. Subject to certain exceptions
including interference with navigation and overflight, the new
Article 1.8 excludes from the Convention system disputes re-
lated to the exercise of sovereign rights, exclusive rights
or exclusive jurisdiction of a coastal State.
The new text must be carefully studied. If the economic
terri-~
zone is not to become the functional equivalent of a
torial sea, the dispute settlement system must provide adequate
protection for. the rights of both coastal and other States.
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THE THIRD UNITED NATIONS CONFERENCE
ON THE LAW OF THE SEA
New York March 15-May 7, 1976
U.S. Classified Delegation Report
Part I
BEGIN CONFIDENTIAL;
I. Summary
This report consists of the classified section of the
Delegation report on the New York session of the Law of the
Sea Conference. The unclassified report and relevant texts
are being sent separately. This report contains a section
on the negotiating trends and group politics at the Con-
ference. It supplements and generally does not repeat
material in the unclassified report.
A preliminary and cursory review indicates that the
new informal single negotiating texts issued the last day
move significantly in our direction on deep seabeds
(Committee I) from the almost wholly unacceptable Geneva
text; they stay about where they were in Committee II with
no losses on the large number of satisfactory articles,
and some useful changes picked up on straits, tuna,
archipelagoes and scientific research, but with no change
on the legal status of the economic zone; in Committee III,
the texts move quite close to U.S. positions on pollution,
but move away from us on scientific research; the texts
move somewhat away from our views on dispute settlement
in the economic zone in that the applicability to fisheries
and scientific research is ambiguous, but navigation, over--
flight and environmental obligations in the zone remain
clearly protected by binding dispute settlement procedures..
The next session (New York, August 2 to September 17) is
likely to focus on major outstanding issues. However, agree-
ment on the summer session was only achieved after U.S.
intervention in selected Capitals and other efforts persuaded
African Group to withdraw its opposition. The majority in
all other groups, including the Arabs, favored a summer
session, but were split to varying degrees, and were reluctant
to oppose the Africans in the Group of 77.
A number of problems remain for the summer session.
Those likely to be very contentious and difficult include:
1. Committee I: The issue of the composition and
voting of the Council of the Authority remains to be
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negotiated. In addition, many LDC's egged on by Algeria,
believe the new text is a sell-out to the industrialized
states, and will want it to "move back" in the direction
of the earlier Geneva text. The Soviet, French and
Japanese demands for a clause to prevent U.S. domination
of deep seabed mining remain. Canada may attempt to rally
nickel producers against the new text on protecting LDC
land-based producers (Article 9).
2. Committee II: We have not obtained a change in the
basic articles on the legal status of the economic zone.
The question of access to fisheries of the economic zone
of neighboring states for the land-locked and "geographically
disadvantaged" remains.
3. Committee III: Problems can be expected in pre-
venting further erosion on scientific research in the
economic zone and ensuring binding dispute settlement.
The, issue of the right of the coastal state to fix anti-
pollution construction standards in the territorial sea
for foreign vessels remains unresolved; the Committee III
text goes our way in permitting this, while the Committee II
text does not.
4. Dispute Settlement: While there is growing senti-
ment for applying compulsory dispute settlement to inter-
ference with navigation, overflight and pollution in the
economic zone, application to other issues in the economic
zone (e.g., scientific research and fisheries) will be
difficult.
5. Procedures: There was an inconclusive discussion
at the final Plenary session on procedures for the summer
session. (Many Delegates had not focused on the issue,
and were tired and irritable.) While we and other moderates
will seek sensible procedures that focus on and permit real
negotiation on outstanding issues that lead to a timely
ultimate decision on the treaty package as a whole, some
conservatives(e.g., France) and certain hardline straits
states may insist on consensus to the very end, while
radicals (e.g., Algeria) seek premature item-by-item voting.
(Oddly, however, Algeria emphasized consensus during the
closing Plenary debate on procedures for the next session,
which may indicate some uncertainty about how well the
radicals will fare in view of Algeria's unsuccessful attempts
to retain the Geneva Committee I text and prevent a summer
session).
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II. Committee I (Deep Seabeds)
A. Tactical Situation
The basic tactical objective for the U.S. Delegation
td the New York Session of the LOS Conference for Committee I
was to dismantle the SNT of March 1975 produced at the
Geneva session of the LOS Conference and replace it with a
new set of texts more in line with the basic U.S. policy
objectives. The Geneva SNT was prepared by Paul Engo, the
Chairman of Committee I, in the last few days of the March
session. The text was wholly unacceptable to the U.S.
and most other industrialized countries and did not, in
fact, accurately reflect the negotiations which took place
in Geneva.
Our strategic approach to this session was in large
part dictated by the overwhelming number of changes that
had to be made to the Geneva`SNT--changes that Engo insisted
be negotiated with a representative number of delegations.
B. Secret Brazil Group
The U.S. took steps during the intersessional period
to lay the foundation for a major revision of Part I of
the SNT. The principal mechanism was the establishment of
a small, secret group, with representatives from each
geographic area, which in fact negotiated all of the new
texts. This group, whose composition was known only to
Engo, consisted of the U.S., Chile, Peru, Brazil, Mexico,
Sri Lanka, Singapore, Jamaica, Kenya, Norway and France
(please protect). The group met almost daily in the
Brazilian Mission.
The procedure of the group was to negotiate compromise
texts prior to the discussion of the issue in the informal
meetings of Committee I. During the debate in Committee I,
the various elements of the compromises were played out by
members of the secret group so that the new compromise ideas
could be publicly aired. Each member of the group was
committed to publicly defend the new text in their respective
regional and special interest groups.
With the groundwork laid, the secret group could pro-
vide Engo with the actual texts of each article. Following
the Committee I debate of the issue, Engo issued the new
texts in a series referred to as the PBE series. Engo
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described these drafts as his own assessment of the '
emerging consensus. Engo did not permit any debate in
Committee I on the new texts after they had been issued.
As part of the overall package, Engo also issued the texts
that had been negotiated at the February intersessional
meeting of Committee I with only the minor changes and
only those to which the secret Brazil Group agreed. The
February texts had been developed by the same group.
The basic approach of the secret group was to work
out a package compromise for the land-based producers
(Chile, Peru), and Brazil, who have constituted the leader-
ship among the LDC's in Committee I. They sought an
article establishing protection for land-based production
of seabed minerals. In return for this, these countries
undertook to try to support the issues of concern to other
members of the group, in particular those of importance
to the U.S.
Brazil's major concern was to ensure that the treaty
contained a provision for a mine site banking system. Under
a banking system, each contractor would be required to pro-
vide the Authority with prospecting data for an area equal
in size to the area let for contract. The Authority would
award one site to the applicant and reserve the other.
These sites would then be made available to developing
countries or the Enterprise. In this respect Brazil was at
odds with many LDC's; some of whom believed that the banking
system will benefit only the most developed LDC's by giving
them a chance to undertake deep seabed mining in the banked
areas. This benefit to the advanced developed LDC's countries
is resented and feared by the LDC's who feel they cannot
take advantage of the banking system.
Mexico, although a regular participant in these meetings,
did not take an active role until the last days of the
session. It then became evident that Mexico opposed the
Brazilian banking system and felt that the land-based
producers and Brazil had agreed to too many concessions
to the U.S. in return for elements in the treaty which
met their narrow interests (protection for land-based pro-
ducers in the case of Peru and Chile, the banking system in
the case of Brazil). In violation of the understanding
within the secret Brazil Group, Mexico's representative
attacked the compromise texts in the Latin American Caucus
and in the meeting of the Group of 77.
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Kenya was not an active member of the secret Brazil
Group but did cooperate fully and supported the texts in
the Group of 77. Singapore's principal concern was to
be helpful in seeking compromises so that the deep seabed
issues would not prevent agreement on a final treaty which
Singapore wanted. Norway's role was similar. On two issues,
however, Norway had strong substantive interests: strengthen-
ing the treaty in regard to protection of the marine en-
vironment and strengthening Norway's role in the future
International Authority.
Because the secret Brazil Group had to work very fast
in order to make the very large number of amendments re-
quired to satisfy the United States, the group decided that
at this session of the Conference it would not be possible
to include Algeria and India whose national positions and
representatives could easily have stalled all efforts to
agree on new texts. Moreover, the USG had previously con-
sidered direct negotiations with Algeria to be fruitless,
and consequently attempted to isolate them.
C. Group of 77 Reaction of Committee Texts
The Engo draft articles met with very strong resistence
from many LDC's who clearly felt that they went much too
far toward the U.S. position on virtually every issue.
This reaction was particularly acute among those countries
which had been formerly active but which took no part
in the Brazil Group. There was a concerted effort, led
by Algeria, but with active support of Ghana, to reject
new texts entirely. Despite this effort the texts were
incorporated virtually without change into the Revised
Single Negotiating Text issued on the last day of the
Conference.
D. Group of Five
Effective coordination in the Group of Five was made
difficult because of two substantive areas of disagreement:
compulsory dispute settlement and the quota system.
1. Group of Five - Dispute Settlement
On this issue, we were able to avoid an open
dispute by tactically supporting a compromise suggested
by the United Kingdom which attempted to take into account
boththe U.S. position supporting a permanent seabed
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? _ 6 _
Tribunal and the position of the French and U.K. which
favored an ad hoc arbitration system. The issue was not
resolved during this session and is among those issues
which Committee I as a whole will consider at the next
session.
Group of Five - Quota System
An even more difficult problem within the Group
of Five is the quota system (a system which would limit
the access of an individual state by some arbitrary
formula as to prevent it from "dominating" or "monopolizing"
deep seabed). In varying forms, the U.K.., France, Japan
and the USSR support a system which would prevent automatic
access by the U.S., at a certain stage, to seabed resources.
Whether through a set percentage of contracts or a set
number of contracts, an arbitrary limitation would be
established. France and the Soviets may wish to protect
their domestic production and want to preserve their
future rights to mine the seabed. The Japanese appear to
have limited their concern to cases of competing applications
for the same mine site. A further Soviet motivation may
be political and military concern over U.S. domination.
In an effort to reassure them, the Group of Five
was given a paper prepared by the U.S. which establishes
that the number of prime mine sites is around 300-400
and, therefore, there is no basis to the fear that the
U.S. will premanently dominate deep seabed mining as a
result of its technological lead. France and the U.K.
have since based their support for a quota system more on the
basis of the limited capital market rather than on any
geological limitations on mine sites. The Soviets have given
up their one-State, one--site approach but continued to
press for some system which would effectively limit
automatic U.S. access to seabed resources. Serving as
rapporteur for the Group of Five, the U.K. has prepared
several drafts of a quota or anti-dominant proposal.
This was done at the urging of the U.S. in order to limit
the scope of this dispute and prevent it from emerging in
the Committee I debate, although the U.S. continued to
strongly oppose any form of quota system. The new SNT
refers to the quota issue in Annex I and notes it remains
to be further discussed in the future. Intersessional work
on this problem will be necessary.
3. Group of Five - Revenue Sharing
One issue where a major effort was made to coor-
dinate views within the Group of Five concerned the revenue
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sharing (financial arrangements) provision in Annex I.
The Group of Five position on this issue was coordinated
before the text was negotiated in the Brazil Group.
4. Group of Five - Other Problems
Unlike other sessions, there was no substantial
effort within the Group of Five to coordinate tactics.
This was due to the.fact that the actual tactics in
Committee I-had been coordinated in the secret Brazil
Group, the existence of which was unknown to most members
of the Group of Five.
A primary problem within the Group of Five was
the Soviet Union, which was at no time particularly
cooperative. From the first, the Soviets resisted a
regular schedule of meetings and required approval of
the agenda before agreeing to meet. Partially as a re-
sult, the Group of Five failed to play a useful role in
the negotiations other than to serve as an unwitting forum
for playing out compromises worked out in the secret Brazil
Group.
E. Substantive Issues
The U.S. had seven major substantive objectives in
regard to amending the Single Negotiating Text of March
1975.
1. Limiting the Powers and Functions of the
Authority as a Whole
It was the U.S. objective to provide the Authority
with the power to regulate only the activities of explora-
tion and exploitation of the deep seabed resources accord-
ing to the provisions of the Convention. Specifically, it
was necessary to prevent the Authority from having any
control over military activities and scientific research.
The two critical articles involved were Article 1 (which
defines activities in the Area and Article 10 (which
def-ermines the role of the Authority in regard to marine
scientific research). Both of these articles in the
revised SNT are essentially the same as in the U.S.
amendments. Our concern with ensuring that the powers
of the'Authority are circumscribed made it necessary to
include language that is less than optimally clear on
the powers of the Authority to regulate pollution re-
sulting from processing above the mine site, but we believe
the language is properly interpreted to give to the
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Authority this power. This was our objective.
2. Economic Implications for Land-Based Producers
It was the U.S. objective to neutralize the LDC
land-based producers, who had in the past been the chief
and most effective opponents of a successful treaty
which protected U.S. interests, by agreeing to an article
which would appear to be responsive. to their needs but
which. would deny to the Authority any direct price and
production control. Article 9, together with Annex I,
paragraph 21, in the revised SNT, provides for a temporary
production limitation geared to the growth rate of the
nickel market (i.e., seabed production of nickel cannot
exceed the projected world growth rate of nickel on a
cumumlative basis). According to best U.S. estimates,
this will, in fact, have no actual impact on seabed
mining during the period provided for. Further, Article 9
limits the Authority to the uniform and non-discriminatory
implementation of any further commodities agreements and
allows the Authority to participate in any commodity
conference only in respect of its production in the seabed
(i.e. by the Enterprise). Finally, there is a general,
unspecific reference to a compensatory system of econor-nic
adjustment assistance in respect of the adverse effects
of a substantial decline in the mineral export earnings
of LDC's.
In the last few days of the Conference, several key
land-based producers informed the U.S. delegation that
Article 9 in fact might not be completely satisfactory.
Canada made a strong approach, objecting strenuously to
Article 9 on the grounds that land-based producers of
nickel would be at a disadvantage compared to seabed
producers. U.S. and Canadian representatives agreed to
follow up with further technical talks.
The Brazilian and Chilean representatives, both
of whom had agreed earlier to the text of Article 9,
indicated clearly that their governments were having
second thoughts about the formula used in Article 9.
Presumably, this is a result of more careful analysis
in their capitals showing that the formula for production
limitation would in fact have no practical effect on
seabed production.
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3. A Non-discriminatory System of Access
A U.S. objective is to achieve a system of
guaranteed, non-discriminatory access for U.S. firms to
the mineral resources of the deep seabed. The provisions
in the new SNT which deal with these points are contained
in Article 22 and Annex I. The SNT recognizes the principle
of a parallel system of exploitation, i.e., a system in
which both the Enterprise, acting. directly on behalf of
the Authority and individual-firms Under contract to'the
Authority, could exploit the seabed under essentially
the same conditions. This is in sharp contrast to the
long-held Group of 77 position to allow access to seabed
resources only through the operating arm of the Authority,
i.e., the Enterprise. The new text provides that the
Authority must issue contracts to qualified applicants
subject to the terms and conditions outlined in the treaty
and in Annex I. Annex I spells out in some detail these
terms and conditions and the criteria which the Authority
will apply in elaborating these regulations and procedures
and in implementing them. Taken together, Article 22
and Annex I set out a structure of uniform rules and
requirements which, if met, would lead to the issuance of
a mining contract. The articles reduce discretion in
the Authority to a minimum in developing the rules and
regulations, in applying them and in issuing the contracts.
The ability of the Authority to develop arbitrary rules
and regulations or to apply these rules and regulations
in a subjective discriminatory fashion has been severely
restricted. Further, the articles provide that the Enter-
prise, as a commercial operator, is subject to the same
regulations which govern mining operations by States Parties
and their nationals.
The system for issuing contracts is so designed that
there are detailed procedures for reviewing the contact
applications (work plan) as specified in the Annex and
the rules, regulations and procedures adopted by the
Authority. The Technical Commission is given responsibility
to supervise operations with respect to activities in
the Area, including reviewing work plans. After review
by the Technical Commission, work plans are sent to the
Council for approval. Procedures and the acts of the
individual organs of the Authority are subject to review
by the Tribunal.
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4. Revenue Sharing
Annex I contains for the first time the outlines
of a formula for revenue sharing (paragraph 9d). The
Annex contains two possible approaches to this issue.
Approach A was negotiated before hand in detail and
reflects the U.S. and other industrialized countries'
position. At virtually the last minute, Engo was
persuaded to include an additional revenue sharing'
formula, appearing as Approach B, which had been devised
by the Secretariat and which allows the Authority to
determine the nature of the revenue sharing obligation.
Although the specific figures are left blank for the time
being, there has been acceptance of the principle that a
formula must be included in the Treaty. The Authority
would therefore not have broad discretion to negotiate
:individual formulas with mining contractors on a case-
by-case basis and the formulas contained in the treaty
would be based on the principle of assuring a reasonable
return to the contractor. This is a major step forward.
Because of the complexity of this problem, there was
very little discussion in detail but there was also no
serious objection to the principle contained in paragraph
9d. The only articulated objection was to the grace period
included in the formula. The formula provides for no
revenue sharing obligation with the Authority between the
time production begins and the time the contractor begins
to make profits at a threshhold level.
5. Dispute Settlement
Despite differences referred to above within the
Group of Five in regard to dispute settlement, there
was a general trend among the LDC's supporting the es-
tablishing of a permanent Tribunal which would have
compulsory jurisdiction of disputes regarding Part I of
the Treaty, and relating to activities in the Area in-
cluding disputes between Parties and organs of the
Authority. There also was agreement that individual
contractors would be able to bring actions before the
Tribunal. However, the Statute of the Tribunal,which
appears as an Annex to the Treaty text and was not negoti-
ated, does not reflect this approach and is thus in-
consistent with the SNT. The Statute and the Treaty
texts will have to be reconciled at the next session.
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6. Powers and Functions of the Assembly
Council and other Organs
It has been the U.S. objective to minimize
the overall powers and functions of the Authority, and
to minimize the specific powers and functions of the
Assembly vis-a-vis the Council. On few other issues
have we met as much resistance. The general position
of the LDC's has been to give the Assembly plenary and
virtually unlimited policy-making powers. The new texts
provide for a balance between the powers of the Assembly
which is identified as the supreme organ of the Authority,
and the powers of the Council, which is specifically
identified as the executive organ of the Authority.
7. Voting and Composition in the Council
It has been clear that fundamental to a success-
ful treaty on deep seabeds is a satisfactory resolution
of the issue of the composition of the Council and its
voting arrangements. The Geneva SNT text, carried over
in the revised SNT, is unsatisfactory to the U.S. and
to most industrialized countries. We have indicated
publicly our concern with this issue and our intention
to propose a new article at the appropriate time. Toward
the end of the New York session, the U.S. delegation
circulated to members of the secret Brazil Group and
to the Group of Five the text of a new article on Council
composition and voting (Article 27). The new U.S.
Council article combines the collegial and concurrent
voting system contained in the U.S. amendments of December
1975 with a weighted voting system for certain specified.
issues such as those contained in Article 9 and suspension
of members of the Authority. In presenting this draft
text, the U.S. representatives made clear that this text was
tentative and that we were not certain that we wished to
retain the collegial system in the new article. It is
generally understood that the Council article will be
a major substantive issue to be dealt with at the next
session of the LOS Conference.
F. Conclusion - Tactics
The operations of the secret Brazil Group and the
compromises reflected in Article 9 neutralized the
land-based producers who had been the most effective
opponents of U.S. objectives and of the successful
conclusion of an LOS treaty. These countries now perceive
that their national interests will be served by a treaty
along the lines reflected in the new SNT. However, as
noted above, some land-based producers are now becoming
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convinced that Article 9 does not go far enough in
protecting their interests and will probably try to
revise the formula. In addition, Canada, the major
:Land-based producer of nickel, has expressed strong
objection to the specific formula which, it believes,
will not protect its interests.
The chief opposition to the approach reflected in
the now SNT will probably come from.those countries
which have an ideological commitment to.a new economic
order for the seabeds--one in which the LDC's have ex-
clusive and unqualified powers to control activities
on the seabed. This group includes the traditional
extremists such as Algeria (with the support of a number
of Arab States) and more moderate leaders, such as
Mexico and India. They see the new texts as constituting
fundamental and far-reaching concessions to the in-
dustrialized countries on virtually every question at
issue.
On the last day of the session, the members of the
secret Brazil Group consulted informally with a view
toward agreeing on procedures for necxoti.ations in the C1jm.-rr
session. While nothing is finally agreed at this writing,
the consensus among the members was to recommend to Engo
the creation of a negotiating group of 50 chaired by
Vindenes of Norway ( a member of the secret Brazil Group)
and the creation of a public sub-group to do the "drafting"
(read "negotiating") for the group of 50. This sub-
group would include, in addition to the secret Brazil
Group members, such countries as Algeria, Ghana, India,
Egypt and one or two Africans who support Engo. The
Group of 50 would then turn over negotiated texts to
the First Committee. This procedure would of course
not include a procedure in the sub-group which would allow
an Algerian or Indian veto. Instead, the members of
the secret Brazil Group, with its supporter, would command
a substantial majority and recalling its negotiated
commitments inter se would ensure that they were reported
to the Group of 50 with only minor changes. Since this
arrangement will also insulate Engo from the criticisms
leveled at him at the end of this session due to resent-
ment against the procedures followed at the March session
of the Conference in Committee I, we would expect him to
adopt, it.
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13 -
G. Conclusion - Substance
The Delegation considers that the new Single
Negotiating Text goes far toward meeting most of the
major U.S. objectives in the Committee I negotiations.
Article 1 now limits the Authority's regulatory
power to exploration and exploitation and precludes any
regulation,of other..unrelated?activities, thus protecting
our defense and security interests. Article 10 now
limits the power of the Authority to promoting and
encouraging the conduct of scientific research in the
Area in contrast to being the "center for harmonizing
and' coordinating scientific research" as provided in
the Geneva SNT. Article 9 represents a compromise for
meeting the concerns of the land-based producers of
seabed minerals while imposing no effective limit on
industrialized countries' access to seabed resources.
Article 22, coupled with the Annex, providesan all but
automatic system of access'through a required granting
of a contract if objective criteria and conditions
established in the Treaty are met. The powers of the
Assembly have been limited to prescribing only general
policies. The Council is now the executive organ with
the power to prescribe specific policies.
It is clear from the very strong and critical
reaction from the LDC's to the new Committee I texts
that there will be a major move within the Group of
77 to modify these new texts substantially so that they
are much closer to the positions reflected generally
in the Geneva texts. It will be necessary for the U.S.
and other countries with similar interests to undertake
a major effort to obtain widespread agreement among the
moderate developing countries on this text.
Clearly, a number of crucial issues remains to be
settled: most important, the composition and the
voting system in the Council, the quota system and the
funding of the Enterprise. These items, as well as
a number of other remaining issues, including environmental
issues, will require a careful intersessional review,
and a major negotiating effort at the next session.
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BEGIN CONFIDENTIAL - 14 -
III. COMMITTEE II (Territorial sea, Straits, the
Economic Zone, the Continental Shelf, High Seas,
Archipelagoes, Land-locked States, Islands, and
Enclosed and Semi-enclosed Seas.)
A. General Evaluation
1. The Negotiating Context
The Committee II.negotiation during the fourth Session*
of the LOS Conference centered upon detailed consideration
of the substantive subjects covered in Part II of the
Informal Single Negotiating Text (SNT) issued at the end
of the previous session in Geneva. These substantive
areas include the territorial sea, straits, the exclusive
economic zone, the continental shelf, the high seas, land-
locked States, archipelagos, islands and enclosed and
semi-enclosed seas. The session produced a significant
advance toward the goal of widely agreed provisions on
Committee II subjects though issues remain to be
resolved. A broad base of support was revealed for the
Committee II text.
2. Procedure
The procedure adopted by Chairman Aguilar, an
article-by-article discussion of the entire Committee II
text before the full committee meeting in informal session,
was awkward, frustrating, but necessary. It achieved
two objectives:
a) it defused any attacks on the Geneva Single
Negotiating Text provisions on the economic zone and straits
based on the procedural ground that certain delegations
had not participated in the groups negotiating those
provisions, and;
b) it clearly identified contentious issues and the
relative support for opposing positions, thus setting the
stage for final negotiations.
The so-called "rule of silence", adopted to expedite
the work of the Committee by making it unnecessary for a
delegation to speak in support of the Geneva SNT, created
initial confusion and may, in fact, have generated debate.
However, in view of the fact that it operated in favor
of the Single Negotiating Text it was more often beneficial
than not to the U.S. in protecting its national interests.
It did cause problems for delegations seeking to gain
acceptance of amendments, even if purely technical.
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3. Attainment of U.S. Objectives
(a) The opposition by certain strait States
(including the Philippines, Indonesia, Malaysia, Egypt,
Spain, Yemen, Democratic Yemen, Oman, and Greece) and
others such as China and Somalia remains, but was
somewhat moderated and the base of support for the
straits articles appearing in the Single Negotiating
Text, with only technical modifications, remains in tact
after its first real test before the entire Conference.
Private conversations?revealed. that Malaysia and Egypt
may withdraw or significantly moderate their opposition
to our position on straits connecting two parts of the
high seas. The slight moderation of Spain's public stance
was helpful in disrupting the unity of the straits
states.
(b) Navigation issues negotiated in private consul-
tations in Geneva and picked up in the Single Negotiating
Text remain essentially untouched after full Conference
review.
I
(c) The Geneva texts negotiated in the Evensen
group on the economic zone with the exceptions noted
below, remain widely accepted.
(d) Stronger support has been generated for the
U.S. view of the high seas nature of the economic zone.
Although the new text does not reflect our position,
the, issue remains contentious and subject to negotiations,
as indicated in the Chairman's introductory note.
(e) A satisfactory resolution of the limit of the
continental shelf has been accepted by the broad-margin
states, and the U.S. revenue-sharing proposal attracted
growing support and may well be accepted as part of an
overall solution to the shelf problem at the next session.
Our basic structural approach to revenue sharing is now
in the text, but the LDC exception remains.
(f) Archipelagic states have accepted, except for the
Philippines and Indonesia, the Geneva SNT formula with
respect to archipelagic baselines and archipelagic
passage. References to archipelagos of continental states
have been eliminated.
(g) Fisheries articles, except as noted below, have
received general acceptance.
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4. Problem Areas ?
(a) Territorialist support for total coastal State
control in the economic zone, except for rights of navi-
gation, overflight, and the laying of pipelines and cables,
remains strong and may be attractive to certain other
states for tactical or other reasons. Thus, we will
continue to have difficulty achieving our objectives
regarding the status of the economic zone.
(b') The land-locked and geographically 'disadvantaged
States have demonstrated a cohesiveness of purpose in
seeking access to the living resources of the economic
zones of their neighbors, as well as a share of the
revenues from the exploitation of the non-living resources
of the continental margin. These states (approximately
50 in number) have also supported the high seas nature
of the economic zone and resisted restricting freedoms
of navigation. Affected coastal States reacted strongly
in some cases adopting a more territorialist stance.
While the question of land-locked and geographically
disadvantaged State access to resources should not directly
affect basic U.S. LOS interests, the resolution of the
issue is important to the success of the Conference,,,
(c) Not all opposition to the straits articles has
been eliminated.
(d) It was not possible, despite two separate attempts
at private consultations,to achieve agreement on an
article on highly migratory species. Efforts by the U.S.
and others to strengthen the concept of international
management of such species appeared to receive a more
sympathetic hearing this session than last. A change in
the tuna article in the new text moves it in the U.S.
direction.
(e) Certain other special-interest areas, involving
primarily the affected States, need further elaboration.
These include islands, and enclosed and semi-enclosed
seas.
(f) The problem of treaty benefits accruing to other
than States parties (Article 136 of Geneva SNT) has not
been resolved.
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(g) The question of whether coastal States should have
authority to apply design, construction, manning and
equipment regulations more stringent than international
regulations to foreign vessels in the territorial sea
(Article 18.2) is unresolved.
5. The Future
It is unclear what future procedures will be. Having
isolated the problem areas and tested the support for or
against each issue, the Chairman has revised the text.
But questions remain as to the status to be given to the
new text and the use to which it will be put. A likely
speculation would be that there will be intensive negotia-
tion on contentious issues. The number of such issues
is small; further general debate on Committee II articles
is not needed. With intensive negotiations early in the
next session, most of these issues can be resolved by
acceptable compromise formulas for inclusion in the final
Committee II package deal.
B. Comments
1. The Territorial Sea
While there is general acceptance of the Single
Negotiating Text in this area, these articles were used
as a spring-board for opening the debate with regard
to the juridical nature of the economic zone, with Peru,
India and Brazil spearhead.inq an effort to increase
coastal State control in the zone. Ecuador proposed a
substitution of 200 miles for 12 miles, receiving support
from Somalia, Peru, Brazil, Albania, Uruguay, and the
PRC. Both Albania and the PRC exhibited the normal ten-
dency toward anti-superpower polemics as had existed in
prior sessions.
The Philippines made a vain attempt to press for
vast: historical seas which it has previously proposed.
Bangladesh repeated its proposal for locating baselines
offshore. The PRC sought to eliminate using low tide
elevations with lighthouses or other similar structures
for the drawing of baselines on the grounds that only
the developed countries could afford them. This effort
reflected China's general effort in the Conference to
assert a position of leadership among developing countries
by seizing upon issues on which developed and developing
might split.
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The Greek/Turkish problem came to light during the
discussion of delimitation of the territorial sea between
opposite or adjacent States (Article 13). Turkey proposed
delimitation based upon equity while the Greek view placed
stress on the principle of equidistance.
2. Innocent Passage
The most debated issue with respect to innocent
passage in the territorial sea concerned the question of
whether the list of activities considered prejudicial
to the peace, good order or security of the coastal
State should be exclusive. The advocates of making the
list non-exhaustive (particularly the Latins) sought to
add "inter alia" and other similar amendments. Canada
again sought to add acts or omissions leading to grave
and immiment danger of pollution to the list. Another
difficulty was injected by India in a proposal restricting
innocent passage to vessels other than warships, nuclear-
powered ships, or ships carrying nuclear substance, but
this proposal did not gain widespread support.
The PRC sought a distinction between military
and. non-military submersibles with prior authorization
required for the former. This was supported by some
Latins, the Arab group, Indonesia and, the Philippines.
Article 18 (2), dealing with restricting the right
of a coastal State to make laws concerning design,
construction, manning and equipment standards of vessels
in the territorial sea, received attention. Canada
proposed deletion of the paragraph, supported by the
United States and others. A proposed Australian amendment
would permit coastal States to manage marine traffic.
Article 20, regarding documentation of nuclear-powered
ships and ships transporting nuclear substances, became
a focus for several states, led by the PRC, to seek prior
authorization and notification with respect to the passage
of such vessels.
In general, most limitations on innocent passage
that were proposed originated with or were supported by
Arab, African or Latin American States. India, Peru,
Pakistan, Algeria, and China took the hard line. Austria,
Switzerland, and Zambia,representing the land-locked
position, lent support for our objectives on navigational
issues.
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3. Straits Used for International Navigation
The articles in this part received wide general accep-
tance in their first test before the Conference as a whole.
The most substantial efforts at amendment came from the
Philippines, while Malaysia called for deletion of the entire
part pending further consultations among interested States,.
,Support for such.positions came from Oman, Greece, Yemen.
Democratic'Yemen,? China,' Egypt, Somalia and others. Spain,
in introducing a new set of amendments, adopted a more mod.
erate stance, although it continues to oppose submerged
transit and overflight even under a more liberal regime than
innocent passage. Indonesia questioned the existing text
but did not propose or suggest amendments to it. Resis-
tance continued to certain special provisions, including
Arab States' opposition to non-suspendable innocent passage
in the strait of Tiran. The PRC continued to press for
exclusion of warships from the straits regime, and the issue
of prior authorization for warships and other special cate-
gories of vessels was pressed by Yemen.
While the attacks on these articles were strident, they
were few in number and the debates indicate that the obvious
adherence to the SNT was of considerable influence in elim-
inating changes damaging to our interests. We were successful
in preventing a renewal of Chilean and Norwegian attacks on
the straits articles as they affect internal waters by agree-
ing to clarifying amendments cleared with the Group of 5 and
others affected (Argentina and Singapore). Canada was also
accommodated in this effort, and goes along with the change,
but has not yet endorsed the straits articles, and was con-
sistently sniping at them.
4. The Exclusive Economic Zone
Discussions of this part were extensive and presaged
the general debate on the juridical character of the eco-
nomic zone in connection with Article 73 (high seas). With
respect to this part, the United States concentrated heavily
on seeking amendments to Articles 45, 47 and 49. The debate
on Article 45 centered upon whether or not to qualify coastal
State jurisdiction with respect to pollution and scientific
research with the latter being the crux of the problem. The
proposals ranged from the extreme territorialist position
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(Uruguay) for maximum coastal State control, to the extreme
land-locked position (Zambia) in favor of diluting coastal
jurisdiction even over resources by providing for access by
land-locked states. These extremes made it possible for the
United States to suggest a moderate solution with cross-
references to the appropriate parts of the Committee III text,
but no change was made in the Single Negotiating Text.
The discussions also reflebted the cohesiveness of the
land-locked and geographically disadvantaged States who con-
sistently opposed any references to the "exclusiveness" of
the zone. This was strongly resisted by an African, Arab, Latin
coalition headed by Peru, who insisted that if the word "exclu-
sive" were to be deleted, "national" should take its place.
Austria proposed a draft strengthening the rights of land-
locked States in Article 45. India, reflecting its hard-line
position on coastal State jurisdiction, proposed that Article
48 be amended to provide for designated areas in which the
passage of foreign vessels through the economic zone could be
restricted.
The U.S. proposed deletion of the consent article on
scientific research on committee jurisdictional grounds,
but the proposal was met with strong opposition. We succeeded,
as the new text has in fact a cross-reference to the scientific
research chapter.
Support for significant changes in the basic fisheries
articles dealing with coastal stocks did not develop. The
anadromous article was amended only in ways to return it to
the Evensen text by prearrangement among the States concerned
and through the cooperation of Iceland. Informal efforts to
negotiate the tuna article, however, were unsuccessful. A
meeting of the States involved in fishing the Eastern Pacific
stocks collapsed when Peru insisted on reversing progress
which had been made during intersessional talks with Ecuador
and Mexico. A second attempt with a broader number of States
from different regions was also not successful in advancing
a solution. In the committee, an attempt was made by Ecuador
to delete the article and eliminate special treatment for tuna.
Senegal publicly supported Ecuador, though indicating more
flexibility in private; but the attempt did not attract sub-
stantial support. The efforts of the U.S. and others to
strengthen provisions on the need for international manage-
ment. of highly migratory species appeared to gain increased
sympathy. The new text moves in this direction.
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The debate concerning the rights of land-locked and geo-
graphically disadvantaged States with respect to the living
resources in the economic zones of their neighbors was incon-
clusive, as were the efforts of Minister Jens Evensen of
Norway in private consultations held on this subject for the
purpose. The land-locked effort to gain equal access to
fisheries, whether or not there is a surplus above the har-
vesting capacity of the coastal State, was met with strong
coastal State resistance. Difficulties were also encountered
in defining "geographically disadvantaged" and "regions."
While Evensen had produced a new text, it retains a coastal
bias and the issue is clearly unresolved, as stated in the
introduction to the new text.
Delimitation debates paralleled those with respect to
the territorial sea. It seems apparent that neither those
States supporting equidistance as the sole criterion for
delimitation nor those seeking to discard it entirely will
prevail. The new text tilts further away from equidistance
than the earlier text. The Canadians immediately accused
us of being responsible for this; we assured them we had
remained completely out of the issue, and were under instruc-
tions not to inject the U.S.-Canada boundary dispute into
the negotiations.
5. Continental Shelf
Informal negotiations among broad margin States,
including the United States, reached an agreement on previously
outstanding problems regarding the precise definition of the
outer limit of the continental margin where it extends beyond
200 nautical miles from the coast. The solutions included
acceptance of two alternative criteria for determining the
outer limit: the first based on a specified distance outward
from the foot of the continental slope (the "modified Hedberg"
formula); and the second based on a combination of distance
and depth of sediment. The proposal, tabled by
Ireland, drew significant support. Though the Irish proposal
was not included in the new SNT, there are clear indications
that the Committee II leadership is favorably disposed toward
it and that further negotiation can result in the emergence
of broad support for it.
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The United States proposed a sliding-scale formula for
revenue-sharing on the margin beyond 200 miles. The pro-
posal, calling for increasing percentages of the value or
volume of the resource at the site after a period of five
years to a maximum of five percent, received substantial
but not majority support, and is included without specific
figures in the new text. Australia and Argentina main-
tained public opposition to revenue-sharing but privately
showed some signs of flexibility.
In sum, the package of the definition of the margin
coupled with the U.S. revenue-sharing formula appeared to
gain considerable support. The margin boundary review com-
mission, also included in the Irish draft, faces significant
opposition including that of the USSR.
The United States proposed a reference to the rules
of international law in Article 63 ostensibly to make clear
that existing continental shelf rights would carry over to
a new treaty; in fact, we wished to try to provide some basis
for bringing expropriation cases under the LOS treaty. We
got virtually no support.
Mexico, with a number of supporters, proposed that no
State be entitled to emplace "any military devices or any
tither installations" on the shelf without the consent of
the coastal State.
6. High Seas
The U.S. chose Article 73 as the major battlefield for
the issue of the juridical nature of the economic zone. Con-
siderable groundwork was laid and coordination was carried
out with numerous delegations. The United States opened the
debate by proposing that the high seas begin at the outer
limit of the territorial sea, "provided that the provisions
of this part shall apply to the economic zone only insofar as
they are not incompatible with provisions of Part III."
Approximately forty States strongly supported this approach,
while about an equal number insisted upon making it clear
that the economic zone was sui generis, that is, neither high
seas nor, territorial seas, but retaining express reference
to the freedoms of navigation, overflight, the laying of
cables and pipelines and other internationally lawful uses
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related to navigation and communications. Australia made
a compromise proposal making clear that the economic zone
is not high seas with respect to the exercise of coastal
State rights provided for in the convention. Canada also
proposed a similar compromise, but the Canadian text would
retain the exclusion of the economic zone from the high
seas. Though the compromise proposals received some favor-
able comment, they did not attract many from the group of
coastal States pressing for the sui generis nature of the
economic zone, the latter maintaining a strong and generally
unified position during the discussions. While we did not
achieve a change in the new text, the extensive Chairman's
note on the issue clearly identifies it as a major one for
further negotiation.
7. Living Resources Beyond the Economic Zone
Canada, pressing for a long-held position, sought to
have amendments accepted which would extend the influence
of the coastal State with regard to fisheries beyond 200
miles on the grounds that high seas fisheries impact upon
the stocks in the economic zone. The EC-9 sought provisions
for cooperation through appropriate regional, sub-regional
or global fisheries organizations in developing high seas
management and conservation goals. Generally speaking,
however, the articles received tacit support as written.
8. Land-Locked State Access to the Sea
The land-locked States called for the right of free
transit through the territories of transit States for access
to the sea under terms and conditions set by agreement.
Switzerland made the land-locked proposal. This was resisted
by Iran, and by a number of other States who urged reciprocity.
Peru proposed deletion of the final article dealing with
access to the resources. No major amendments appeared to
attract the necessary support for change.
9. Archipelagoes
The United States, in proposing deletion of the title
heading to Section 1, triggered a debate over the question
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of whether this part of the Geneva SNT should apply only to
island States, and received significant support. India, Spain
and others said ocean archipelagoes belonging to continental.
States should be given identical treatment but gained little
support. The new text is changed to reflect the U.S. view
in this regard; it applies only to island nations. With
respect to the number and length of archipelagic baselines, as
well as the width of archipelagic sealanes, the pressure against
the Geneva SNT position came primarily from the Philippines
with Indonesian support. By and large, the U.S. position
drew the support of other archipelagic States. Debate on
the issues of archipelagic passage, however, raised the
question whether such passage should differ from the rules
for transit passage through straits. The Philippines and
Indonesia raised further questions regarding special rules
governing the transit of warships and overflight, without
substantive support even from archipelago claimants such
as the Bahamas, Fiji, and Papua New Guinea. Malaysia
proposed State liability for loss resulting from pollution
from all vessels. Indonesia, Malaysia and Singapore made
joint proposals to preserve rights of immediate neighbors
in waters of archipelago States.
10. Islands
The primary issue regarding islands, in addition to
delimitation problems, was the Geneva text's provision that,
rocks incapable of sustaining human habitation or an economic
life of their own should not be entitled to an economic zone
and continental shelf. Tonga proposed deletion of this
provision, supported by the U.S. and several other delega-
tions, but it remains in the revised SNT.
11. Enclosed and Semi-Enclosed Seas
The issues set forth in these articles derive from and
center upon the problems of specific marine regions such as
the Baltic or Mediterranean. The definition included in the
text would also include the Caribbean as a semi-enclosed
sea. The bulk of the amendments proposed centered on either
the duty, to cooperate among littoral States or on efforts to
imply that such States have special rights with respect to
third States. The Netherlands on behalf of the EC-9 proposed
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amendments designed to deal with their own special problems,
as did Turkey, Finland, Denmark and Yugoslavia. The U.S.
indicated that the articles as written were about as broad
as could be accepted without amendment, and that any sig-
nificant changes might cause us to press for deletion of
the part. There was no indication of support for such
changes. The new text softens the duty of coastal States
to cooperate with each other in these areas.
12. Territories Under Foreign Occupation or
Colonial Domination
Article 136 of the Geneva text provides that resource
rights of territories under foreign occupation or colonial
domination, UN Trust Territories, and Areas administered by
the UN, vest in the inhabitants of such areas to be exer-
cised by them for their own benefit. The Arab States,
headed by Egypt, made a strong effort to insert a specific
reference to liberation movements recognized by the League
of Arab States or the OAU. Several States, led by Barbados
and New Zealand, proposed the deletion of the reference in
paragraph 2 to suspension of resource rights in the event
of a dispute over the sovereignty of a non-self-governing
territory until resolution of the dispute, but this sug-
gestion received substantial opposition. The U.S. made a
strong statement against the existing text, and proposed a
new article that adds associated States, territories and
commonwealths not fully independent to the list, and pro-
vided that coastal State resources rights in the coastal
areas are to be exercised for the benefit of local inhab-
itants as prescribed by the UN Charter, international law,
and applicable agreements Cuba attacked the U.S. amendment
because of the intent to expressly cover Puerto Rico, thus
eliminating the colonial domination and foreign occupation
argument with respect to Puerto Rico.
Article 136 remained in the revised text, with only a
change in paragraph 2. However, it is now designated as a
"transitional provision," not a numbered treaty article;
and its propriety is implicitly questioned in the Chairman's
introductory note.
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13. Land-Locked State Access to Marine Resources
A group of selected States including land-locked, geo-
graphically disadvantaged and coastal States, met informally
under the guidance of Minister Jens Evensen of Norway to
seek a solution to the resource access problems problems
posed by Articles 57 and 58 of the Single Negotiating Text.
The most difficult problems centered. upon the questions of
whether access to fisheries was to be granted on an equal
basis to nationals of neighboring coastal States or be
limited to the surplus, whether a distinction should be made
between treatment of land-locked and geographically dis-
advantaged States, and whether developing States should
receive preferential treatment over developed States.
At issue also were the definition of "regions" and"geo-
graphically disadvantaged." No agreement was reached
within the group, although Evensen drafted a revised set
of articles.
IV. Committee III - Pollution and Scientific Research
A. Protection of the Marine Environment
The unclassified section indicates the present status
of this issue while this section points out major possible
future problems.
The basic settlement on vessel-source pollution, the
most contentious of the pollution issues, was negotiated
in Vallarta's (Mexico) small group and in a small Norwegian
consulting group (U.S., U.K., USSR, Canada, Norway, India,
Kenya, Mexico, and occasionally Brazil). There are some
major outstanding problems in the general solution on vessel-
source pollution. First, despite efforts by the U.S. and
other countries and by Chairman Yankov, Chairman Aguilar of
Committee II has been unwilling to delete the article restrict-
ing coastal State regulation-making authority in the terri-
torial sea. Many maritime States, and particularly the U.K.,
are unwilling to move on this issue. Because of the substan-
tive nature of the issue, it may well not be possible to
reach a .compromise on the issue.
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A second problem is that some countries, notably India
and Australia, continue to push for a right to unilaterally
establish discharge regulations in special areas of the
economic zone which are more strict than the international
regulations. While they appear to be in a small minority
on this issue, there remains a potential for strong support
for their position from coastally-oriented developing coun-
tries.
A third problem involves obligations on States to
establish domestic regulations no less effective than gen-
erally-accepted international regulations for continental
shelf pollution, ocean dumping, and vessel-source pollution.
While many States may be willing to carry out such an obliga-
tion regarding their vessels and the regulations in the 1973
IMCO Convention, there is considerable doubt that they will
do so with regard to continental shelf pollution and ocean dump-
ing. As to shelf pollution, there are no international regula-
tions in existence and we may want to attempt to use the new
LOS article as a basis for initiating international discussions
of such regulations after the LOS Treaty is completed. On
ocean dumping, a number of countries indicated that they did
not accept the 1972 Ocean Dumping Convention as being the
international regulations to be followed. Consequently, the
extent to which we may succeed in advancing international
environmental controls through the LOS treaty is unclear,
although we will have far stronger arguments.
Finally, the U.S. was not successful in including a flag
Stage obligation to apply effective regulations to deep seabed
mining ships as a part of Article 18 of the Geneva SNT although
this subject has not been fully considered by the committee.
B. Marine Scientific Research (MSR)
Many of the developing coastal States continued their
demands for a general consent regime applicable to all research
in the economic zone and the continental shelf. A closed nego-
tiating group was created by Ambassador Brennan of Australia
composed of approximately twenty countries. In the Brennan
Group, several developing coastal States stated that a major
factor behind their position was an expressed concern for
protecting national security. India, in particular, repeat-
edly stressed that it must have the right to preclude research
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by two or three countries. A further factor possibly moti-
vating some of the coastal States was their desire to diminish
the, high seas character of the economic zone by obtaining com-
plete control over scientific research. Many coastal States
also argued that decisions made by coastal States, particularly
those regarding security, could not be subject to binding third
party dispute settlement. In the context of discussions. based
on the Evensen text which distinguishes between types of re-
search, most of the coastal States involved in the Brennan
Group indicated that they could accept that approach if they
had clear rights regarding security and very limited dispute
settlement.
Because of the impact upon the juridical character of
the economic zone, the U.S. strenuously resisted any reference
to a coastal right to protect security in the economic zone
either by specific reference or a general cross-reference to
peaceful purposes obligation that permitted unilateral coastal
States prohibitions. The USSR, on the other hand, vacillated
on the cross-reference to peaceful purposes and at one point
even suggested during a small group discussion chaired by
Ambassador Yankov that all research be subject to consent
with the provision that for certain categories of research,,
consent would not be withheld. When subsequently pressed by
developing countries, the USSR abandoned its consent proposal
in the Yankov Group but it continued to vacillate on the
issue of giving the coastal State an objection right regard-
ing peaceful purposes.
The informal negotiating group established by Ambassador
Brennan was useful in clearly identifying the security prob-
lem and in getting the Evensen text on MSR essentially ac-
cepted as the basis for the revised SNT. Chairman Yankov
put together a small group at the heads of delegation level.
to wrestle with the security question. The settlement
reached there, while not formally ratified, contained the
following elements. First, the Evensen text would serve
as the basic document for the revised SNT. Second, the
coastal State would have the right to object prior to or
during the research project if it believed the nature and
objectives of the project to be other than those stated by
the researcher. The coastal State, therefore, could object.
to the research on the grounds that its objectives were not.
scientific in nature but there would be no right to object
on security or peaceful purpose grounds. Lastly, disputes
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regarding research projects would be treated in the same way
as other disputes in the economic zone; such disputes would
not generally be subject to binding third-party settlement,
with only certain disputes, e.g., those involving an abuse
of power, subject to dispute settlement. This package
would meet the actual concerns expressed by the coastal
States but may not be adequate to meet their interest in
enhancing the coastal character of the economic zone.
Despite this apparent settlement, Chairman Yankov in
issuing his revised text required consent for all research
in the economic zone but provided that such consent "shall
not be withheld" unless research was resource-oriented,
involved drilling or the use of explosives, unduly inter-
fered with economic activities of the coastal State or
involved artificial islands or installations subject to
coastal State control under the Committee II text. How-
ever, there is no right for the coastal State to deny con-
sent on security or peaceful purposes grounds. His text
also includes many elements of the settlement achieved
in the Yankov private meetings. There was no separate dis-
cussion of scientific research on the shelf but the text
treats it in the same manner as research in the economic
zone.
The new text creates enormous future negotiating
difficulties. There will undoubtedly be strong pressures to
alter the formulation so that consent shall not "normally"
be withheld.
V. Compulsory Dispute Settlement
Negotiations on dispute settlement were conducted
informally and almost entirely in the corridors and the
Bureau chambers. As a result of the decision to hold a debate
on compulsory dispute settlement (CDS) in plenary, there were
no other Conference meetings scheduled on CDS, except for the
extended Group of 77 discussions and a handful of inconsequen-
tial meetings of the Informal Working Group on CDS.
The plenary debate revealed an apparent change in the
position of Kenya. Adede had acted as co-chairman of the
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Informal Working Group on CDS and had been an ardent proponent
of comprehensive CDS; in plenary, however, Njenga strongly
opposed CDS in areas of national jurisdiction.
On the positive side, many of those States which advocated
the exclusion of CDS from areas of national jurisdiction --
including India and Peru ?-- acknowledged that navigation and
overflight disputes should be'subject to'CDS. Moreover,
the LL/GDS took a strong stand, in favor of CDS, and Nigeria --
right after the Kenyan attack -- advocated support for CDS.
With respect to the Soviet position, there appears to
be continuing -- and favorable -- change. From their orig-
inal stand in opposition to CDS, the Soviet Union progressed
in Geneva to support for CDS for deep seabed, fisheries,
pollution, and scientific research disputes. In New York they
publicly accepted CDS for navigational disputes and indicated
in private that they could eventually accept arbitration for
disputes not covered by special procedures, subject to excep-
tions for military activities and delimitation disputes. In
addition, the Soviet Union has stated that it can accept suits
by individual owners and operators for the summary release of
vessels. It should be noted, however, that the Soviet commit-
ment to CDS for any disputes other than fisheries is not yet
firm, since their statements differ from day to day and
meeting to meeting.
Contracting Parties, under the revised Article 9, may
choose one or more among four settlement procedures: (a) Law
of the Sea Tribunal, (b) ICJ, (c) arbitral tribunal, or
(d) a system of special procedures (although if (d) is selected,
the Party must also select, a, b, or c for areas not covered
by d). This formula, by giving a Contracting Party the choice
of the forum in which it will be sued, should provide suf-
ficient flexibility to resolve the debate over procedures.
Under the revised Article 13, the dispute settlement
procedures would be open only to Contracting Parties, except
as provided in Chapter I (deep seabeds), Article 15 (vessel
release), and Annex IC (LOS Tribunal). For a long time the
U.S. has pushed for a provision that would give access to
the CDS system to natural and juridical persons; however,
limiting, access to the main procedures to Contracting Parties
may help close the door on access for national liberation
movements, which started to gain momentum as a result of
Arab pressure.
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Article 18 of the revised SNT excludes from compulsory
procedures disputes relating to the exercise of sovereign
rights, exclusive rights, or exclusive jurisdiction of
coastal state, subject to certain exceptions. One of these
exceptions is for interference by the coastal state with
navigation and overflight; another is for environmental
obligations; another is,for "failing to give due regard to
any substa'ntive'rights specifically established by the present
Convention in favor of other States." The issue raised by
this language is the extent to which it applies to fishing
and scientific research.
VI. Negotiating Trends and Regional Politics
A. Group of Five and EC 9
Difficulties in the Group of 5 have centered on Com-
mittee I issues and scientific research and also on some
differences of degree on the importance of preserving the
high seas status of the economic zone. In Committee I the
principal area of contention is a quota system which would
limit the number of mine sites for any one country. The
object of this effort by the USSR, France, and Japan is to
restrain what is feared to be a virtual US monopoly. In
the closing days the Soviets were instrumental in prevent-
ing a compromise more favorable to us and other members of
the 5 on scientific research, although we finally prevailed
on strictly military aspects of our problem with their ideas.
It is clear that Soviet reaction to the 200 mile fishing
bill has affected our relations at this session. The French
as in the past have consistently worked to slow the pace of
the conference and to encourage Africans in the fears that
they may be making hasty decisions. In addition, some
other members of the EC nine (FRG, Belgium, Netherlands)
have been reluctant to accelerate the pace because they
wish to avoid early recognition of the economic zone in order to
protect their distant water fishing fleets and strengthen
their bargaining position with the UK on a common EC fishing
policy, and also because they will not be ready to commence
deep seabed mining as soon as the US. On the other hand,
Japan now seems interested in wrapping up the negotiations
quickly, possibly to head off a unilateral 12-mile terri-
torial sea claim.
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B. Straits States
During the straits debate only a few hardline straits
States maintained all-out opposition to our position on
straits connecting two parts of the high-seas. The tone
of Chinese opposition hardened. It seems apparent from
private discussions that Malaysia and Egypt will both
ultimately ?a?ccept . at' least this aspect of the- straits
articles, contingent in Malaysia's case on finding a solu-
tion to the tanker pollution problem. (Japan has warned
us that if we go too far on this, she will be unable to
support us on warships and nuclear transit, as her domestic
explanation of support is that she must do so to get free
passage for tankers as well.) Spain also took a more moder-
ate public stance during this session, but still opposes
us on overflight and submerged passage.
C. Land-Locked and Geographically Disadvantaged States
(LL/GDS Chairman Austria) Several weeks into this
Session the group of land-locked and geographically disadvan-
taged states, now some 54 strong of which more than 30 are
also members of the Group of 77, began an extraordinarily
vigorous and unified push to secure their basic demands:
essentially transit rights for land-locked States to the
sea, rights for land-locked and other geographically dis-
advantaged states to participate in living resources of the
economic zone of their region, and revenue sharing from
mineral. resources of the continental shelf. (We regard
their arguments for access to non-living resources as a tac-
tic,, and Singapore has publicly veered away from this already.)
Had this push materialized at an earlier session it might
have been more helpful in shaping the 200-mile economic zone.
At this stage it has had the unfortunate effect upon coastal
States of hardening their position in order to avoid what
they foresee as an attempt to infringe upon resource rights
which they already consider their own. While there is an
outside limit on their bargaining capacity, that is, without
a treaty the land-locked and GDS States will obtain virtually
nothing, there is, nonetheless, a question of how far they
will. push their demands. At the end of this session some
of the leaders of the group were quite clearly indicating
that an acceptable accommodation would be a general obliga-
tion to work out rights of transit plus some form of preferen-
tial. access over third States to the fishery resources of
neighboring coastal states.
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D. Unity of the Group of 77 (Chairman, Nepal)
The anticipated split in the Group of 77 on the basis
of real ocean interests deepened at this session of the
Conference. There had always been splits in Committees2
and 3 because of the land-locked and geographically
disadvantaged group; at this session splits also developed
in Committee I between land-locked producers and.moderates-
interested in an early settlement, on the one hand, and
hard-line ideologues with no direct interest in the deep
seabeds, on the other. On the question of the revised
Committee I text the Africans in particular made an issue
of the fact that they had not been included in the renego-
tiation of the texts and that the texts were a sell-out to
the United States. Some of these appeals had the effect
of further dividing the moderates favoring a treaty agree-
ment from those waging the ideological battle. For the
moment, the ideologues failed. However, because of the
general desire for unity except in cases where national
interests are strongly and adversely affected, inter-
sessional negotiations among members of the 77 on
Committee I issues particularly will have an important
impact on the course of the next session. Among the
trouble-makers, for differing reasons, are Algeria, Tanzania,
India, Mexico and the Philippines.
The handling of the issue of a second session this
summer is an interesting example of group dynamics. Meeting
separately, the Latins, Arabs, Asians, WEO's and EE's, all
had a majority favoring the session, and favoring Geneva as
the site. The Africans had a vocal majority against, and
in any event favored N.Y. When the 77 met, the Africans
intimidated the rest, and the pro-second session 77 Chairman
was forced to declare a consensus against. Once key Africans
reversed position after U.S. intervention in capitals, and
the group obtained N.Y. as a site, the 77 reached a consensus
in favor of the session one day later. Since most Africans
are not very active, and the Group is large, this indicates
the immense power wielded by a few key Africans so long as
the 77 functions a viable force: Kenya, Senegal, Tanzania,
Algeria, Ghana, and on occasion, Nigeria.
E. The African Group (Chairman, Frank Njenga, Kenya)
In general the OAU Declaration remains the basic posi-
tion of African States on LOS issues. However, because of
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the large number of land-locked States in Africa, the land-
locked GDS effort had a particularly divisive effect among
the. African States. This in turn has been met by increas-
ing stridency on the part of coastal States led by Njenga
of Kenya, Chairman of the African Group, to protect coastal
State rights in the economic zone. The African Group
as a whole suffered from lack.of depth at this session, .
with. many African States represented .by their Permanent
Missions in New York with little direct knowledge of their
countries' LOS-related problems. The attitude of the
African States toward completing a treaty in the near
future is somewhat ambivalent. While they indicate more
interest than some others in concluding a treaty, they are
also uncertain as to what the ultimate benefits may be.
Many believe they were out-maneuvered by the Latins. As
in the past, they are also unpersuaded of the need for
haste in arriving at any decision. This may have to do
with some fears (now enhanced by the appearance of the
revised C-I text) that they stand to gain little from the
deep seabeds negotiation and can unilaterally protect their own
interests, or at least those of the coastal African States, in
economic zones. Algeria has been active in propounding the
view that delay is better than haste in achieving a Group of
77 regime for the seabed. Its motivations are political,
coupled with little relative benefit from an economic zone
off its coast. Africa remains pivotal to the actions of the
Group of 77 at the next session.
F. Latin Group (Chile, Colombia, Costa Rica-monthly
chairmen)
Relations between the US and the Latin Group improved
during this session, with the notable exception of Mexico
in Committee I, and Peru and Ecuador remaining strident in
Committee II. The Latin Group remains an influential group
in the Group of 77 despite differences in real interest,
largely due to effective leadership and substantive know-
ledge which has been a key factor in the previously united
front of the Group of 77. Some Latin States, notably
Argentina and Chile, have moved toward a more moderate
position on navigational issues. Perhaps the most diff-
cult Latin development was the sudden surfacing of extreme
Mexican opposition to the revised texts in Committee I.
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As yet unresolved in the Latin Group is the relationship
between the continental States and the English-speaking
Caribbean Island States which are seeking to share in
the fisheries resources of continental States. A polit-
ical divergence was also revealed in connection with a
nuanced aspect of Article 136 (2), with the English-
speaking Caribbean States favoring deletion of a clause
that could hurt Belize.
G. Arab Group
Despite efforts to achieve unity, the Arab Group remained
divided on the key issue of interest to that group, which is
straits. Saudi Arabia and Iraq assumed an active role in
attempting to persuade other delegates of the importance
to oil exporting countries of freedom of transit connecting
two parts of the high seas, carrying many with them, includ-
ing Algeria. However, during the debate on straits Yemen,
Democratic Yemen, Oman and Somalia actively opposed the
straits articles. Egyptian statements tended to support
the opponents although it appeared in private consultations
that her principal concern remains Tiran. Egypt is apparently
not yet willing to accept a regime of non-suspendable innocent
passage for Tiran as provided in the SNT except in the con--
text of an Arab-Israeli settlement; Egypt and Saudi Arabia
carried the group on this issue. The Arab Group is also
affected by efforts by LL/GDS to participate in the econ-
omic: zone resources, as many of them are members of the
Group. Since most Arab States which are costal are largely
zone-locked in the Mediterranean, Red Sea, and Persian
Gulf, their interest in Committee II issues other than
straits is not critical and they have no great enthusiasm
for the economic zone, and take liberal attitudes on navi-
gation (except for the straits States). Although the Arab
Group took a position favoring a second session they quickly
wavered in the face of African appeals for Group of 77 unity.
Although the Group has given support to hard-line Algerian
positions in Committee I, they have not given the subject
head, of delegation level attention. It is questionable
whether the problem has been assessed in foreign offices
on any level other than Group of 77 politics.
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H. Asian Group (Iran)
Asian States have generally focused on individual
interests as in the case of archipelagoes for Indonesia
and. the Philippines, the Malacca straits for Indonesia
and Malaysia, participation in the LL/GDS for others,
notably Singapore,. which has.-taken a leading role in the&
group. The Philippines has continued an'extreme position
on archipelagic and straits passage. China has continued
her efforts to maximize opportunities to enhance her
role as champion of the third world and to condemn the
hegemony of the superpowers, and continues strong opposi-
tion on straits and warship navigation. However vocal,
Chinese attacks have been relatively limited in number
and there are indications that China does not intend
to disrupt the Conference, aside from some attempts to
bait the USSR, including a sharp exchange in one of the
few on-the-record debates (peaceful uses of ocean spaces).
END CONFIDENTIAL
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