Citation
The sea and world order

Material Information

Title:
The sea and world order the search for consensus
Creator:
Maiewskij, Valentina Nikolaevna, 1949-
Publication Date:
Language:
English
Physical Description:
xi, 327 leaves : ; 28 cm.

Subjects

Subjects / Keywords:
Fisheries ( jstor )
International law ( jstor )
Jurisdiction ( jstor )
Maritime law ( jstor )
Mining ( jstor )
Oceans ( jstor )
Seas ( jstor )
Territorial waters ( jstor )
Treaties ( jstor )
United Nations ( jstor )
Dissertations, Academic -- History -- UF ( lcsh )
Geschichte (1900-1982) ( swd )
History thesis Ph. D ( lcsh )
Seevölkerrecht ( swd )
Territorial waters ( lcsh )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Thesis:
Thesis (Ph. D.)--University of Florida, 1983.
Bibliography:
Includes bibliographical references (leaves 303-326).
Additional Physical Form:
Also available online.
General Note:
Typescript.
General Note:
Vita.
Statement of Responsibility:
by Valentina Nikolaevna Maiewskij.

Record Information

Source Institution:
University of Florida
Holding Location:
University of Florida
Rights Management:
The University of Florida George A. Smathers Libraries respect the intellectual property rights of others and do not claim any copyright interest in this item. This item may be protected by copyright but is made available here under a claim of fair use (17 U.S.C. §107) for non-profit research and educational purposes. Users of this work have responsibility for determining copyright status prior to reusing, publishing or reproducing this item for purposes other than what is allowed by fair use or other copyright exemptions. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder. The Smathers Libraries would like to learn more about this item and invite individuals or organizations to contact the RDS coordinator (ufdissertations@uflib.ufl.edu) with any additional information they can provide.
Resource Identifier:
09865534 ( OCLC )
0029119471 ( ALEPH )

Downloads

This item has the following downloads:


Full Text


















THE SEA AND WORLD ORDER:
THE SEARCH FOR CONSENSUS



















BY

VALENTINA NIKOLAEVNA MAIEWSKIJ










A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN
PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

1983









4





0




















Copyright 1983

by

Valentina Nikolaevna Maiewskij






















This dissertation is dedicated to my

mother, Julia Petrovna Maiewskij, and

to the memory of my father, Nikolai

Mikhailovich Maiewskij (1902-1982).
















ACKNOWLEDGEMENTS



I am indebted to many people for their help,

encouragement, and support. The Chairperson of my

Committee, Professor William Woodruff, conscientiously read

and criticized my dissertation at its various stages. I am

grateful for the suggestions and insights he offered as well

as his encouragement; all of these were invaluable to the

writing of this dissertation. Mrs. Helga Woodruff

generously gave of her time to read carefully and comment

thoughtfully upon the first draft and subsequent revisions;

for this and her encouragement I thank her. I am indebted

to my Committee members--Neill Macaulay, Harry Paul, Eldon

Turner, Roger Blair--for their suggestions. I would like to

thank Professor Thomas Clingan, of the University of Miami

and delegate to UNCLOS III, for granting me numerous and

informative interviews.

Many others have aided in the completion of this

dissertation. I appreciate the help of the following

people: Ann Hanson of the University of Florida Library;

Andy B. Parmenter, Staff Attorney of Student Legal Services;

Katherine B. Williams (d/b/a Professional Typing); and James

T. McKay and Mary Ellen Warren. I am especially grateful to

my parents. From the beginning, they instilled in me a love


iv









of learning and a determination to further my education.

Throughout my graduate studies they gave me both financial

and moral support. Their respect for scholarship and their

personal encouragement of my efforts caused me to begin this

endeavor and sustained me through its duration.

And finally, the person to whom I am the most indebted

is my husband, Fred J. Hay. His unwavering belief in my

ability to finish this dissertation was a constant source of

encouragement and comfort. Not only did he cheerfully

tolerate the disturbances caused by such a project but he

generously offered assistance at every level from the menial

to the intellectual.

































v


















TABLE OF CONTENTS


Page

ACKNOWLEDGEMENTS . . . . .. iv

DETAILED TABLE OF CONTENTS . .. . . vii

ABSTRACT . . . . . x

INTRODUCTION . . . . .. 1

CHAPTER ONE: EARLY THEORETICAL BACKGROUND . 5
Notes . . . . . 36

CHAPTER TWO: GROWING INTERNATIONAL ACCEPTANCE OF THE
THREE-MILE TERRITORIAL LIMIT . . ... 39
Notes . . . . .. . 61

CHAPTER THREE: 1900 TO WORLD WAR II . .. 65
Notes . . . . . 89

CHAPTER FOUR: FROM THE TRUMAN PROCLAMATION TO
UNITED NATIONS CONFERENCE ON THE LAW OF THE
SEA II . . . .. ... .93
Notes . . . . .. ... 134

CHAPTER FIVE: FROM UNITED NATIONS CONFERENCE ON THE
LAW OF THE SEA II TO UNITED NATIONS CONFERENCE ON
THE LAW OF THE SEA III . . . .. .140
Notes . . . . .. . 199

CHAPTER SIX: UNITED NATIONS CONFERENCE ON THE LAW
OF THE SEA III: 1973-1982 . . ... 218
Notes . . . . .. . 264

CONCLUSION . . . . ... . 289

GLOSSARY . . . . . 301

BIBLIOGRAPHY . . . . . 303

BIOGRAPHICAL SKETCH . . . .. 327






vi

















DETAILED TABLE OF CONTENTS


Page

INTRODUCTION . . . . .. 1

CHAPTER ONE: EARLY THEORETICAL BACKGROUND . 5
1. Attempts to maintain closed seas . 5
2. Freedom of the Seas . . .. 15
3. Territorial Seas . . . .. 22
4. Summation . . . . 34
5. Notes . . . . . 36

CHAPTER TWO: GROWING INTERNATIONAL ACCEPTANCE OF THE
THREE-MILE TERRITORIAL LIMIT . . . 39
1. Three-Mile Limit ............ 39
2. Attempts to maintain other limits . .. 56
3. Summation . . . ... .60
4. Notes . . . .. . 61

CHAPTER THREE: 1900 TO WORLD WAR II . .. 65
1. Three-Mile Limit . . . .. 65
2. Hague Conference (1930) . . .. 74
3. Contiguous Zones . . . 78
4. Extension of neutrality and security zones 85
5. Summation . . . . .. 88
6. Notes . . . . ... 89

CHAPTER FOUR: FROM THE TRUMAN PROCLAMATION TO
UNITED NATIONS CONFERENCE ON THE LAW OF THE
SEA II . . . . ... . 93
1. Overview . . . . .. 93
2. Truman Proclamation . . .. 94
3. Reaction of other states to the Truman
Proclamations .............. 104
4. Development of the Soviet Union position 111
5. Background work of the International Law
Commission ............... 114
6. United Nations Conference on the Law of
the Sea I . . . ... 118
7. United Nations Conference on the Law of
the Sea II . . . .. 127
8. Results of United Nations Conference on
the Law of the Sea I and II . .. .132
9. Summation . . . ... 133
10. Notes . . . . ... 134


vii









Page


CHAPTER FIVE: FROM UNITED NATIONS CONFERENCE ON THE
LAW OF THE SEA II TO UNITED NATIONS CONFERENCE ON
THE LAW OF THE SEA III. .. ...... . .140
1. Proliferation of jurisdictional claims 140
2. Increase in non-traditional uses of the sea 144
3. Fisheries ................ 150
4. Increasing military importance of the
oceans . . . ... 153
""5. United States-Soviet Union concern with
instability in ocean law . .. .156
6. Manganese nodules . . . .. .157
7. United Nations preparatory work for United
Nations Conference on the Law of the
Sea III . . . ... 159
8. End of first phase of preparatory work 178
9. New responsibility of the Sea-Bed Committee 179
10. Sub-Committee on the sea-bed regime ... 181
'-11. Sub-Committee on offshore jurisdictional
issues . . . . 187
12. Sub-Committee on marine scientific research
and the marine environment . .193
13. Emerging interest blocs in negotiations 194
14. Summation . . . ... 197
15. Notes . . . .... .. 199

CHAPTER SIX: UNITED NATIONS CONFERENCE ON THE LAW
OF THE SEA III: 1973-1982 . . . 218
1. Overview . . . .... .218
2. Opening of Conference . . .. .219
3. 1974 sessions . . . ... 221
a. Plenary . . . . 221
b. Committee on the sea-bed regime . 224
c. Committee on offshore jurisdictional
issues . . . ... 226
'-d. Committee on the marine environment and
scientific research . . .. .230
4. 1975 sessions . . . ... 232
a. Committee on the sea-bed regime ... 233
b. Committee on offshore jurisdictional
issues . . . ... 233
c. Committee on the marine environment and
scientific research . . .. .236
5. The Informal Single Negotiating Text .238
6. 1976 sessions . . . ... 238
a. Committee on the sea-bed regime . 239
b. Committee on offshore jurisdictional
issues . . . . 240
c. Committee on the marine environment and
scientific research . . 242
d. Accomplishments of first phase of
negotiations . . . 243


viii









Page


7. 1977 sessions . . . ... 243
8. 1978 sessions . . . 248
9. 1979 sessions . . . ... 250
10. 1980 sessions . . . 252
11. 1981 sessions . . . .. 254
12. 1982 sessions . . . 260
13. Summation . . . . 262
14. Notes . . . . .. 264

CONCLUSION . . .. . . 289














































ix

















Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy


THE SEA AND WORLD ORDER: THE SEARCH FOR CONSENSUS

By

VALENTINA NIKOLAEVNA MAIEWSKIJ

April, 1983


Chairman: William Woodruff
Major Department: History

The attempt to attain an international consensus on law

of the sea is a recent phenomenon. Throughout history,

power politics has determined law of the sea. Although

still a major influence, it is no longer the primary factor.

In the past, states claimed as much of the seas as they

could. When Britain became the major power, it enforced a

three-mile territorial sea with freedom of fishing and

navigation in the rest of the oceans. British power--not

general international agreement--maintained this legal

regime.

Following the World Wars and subsequent changes in the

power structure, no one state was able to determine and

enforce law of the sea. Instead, states unilaterally

claimed jurisdiction over the sea. As claims proliferated,





x









instability increased. States sought a stable legal regime

for economic exploitation and military use of the oceans.

The United Nations Conference on the Law of the Sea III

(UNCLOS III) convened not only to codify law of the sea but

to create new laws based upon an equitable and rational

system. The Conference, reflecting democratization of

international relations, attempted to reach consensus of all

states on all related issues. Although it succeeded in

writing a Treaty based upon a moral vision of state equal-

ity, the United States rejected this endeavor. In so doing,

it attempted to re-establish the primacy of power politics

in the determination of law of the sea. Despite the re-

emergence of power politics, the attempt by UNCLOS III to

write a constitution for the seas based upon consensus is

significant and will undoubtedly have far-reaching impli-

cations for law of the sea and international relations.

This dissertation examines the search for consensus in

international sea policy in UNCLOS III. The Conference's

historical antecedents are outlined and important develop-

mental trends are emphasized. Shifts in a state's inter-

national sea policy are seen as part of the total world

situation and as a function of the change in the state's

power relative to that of others. An analysis of the

important law of the sea issues is used to describe the

thematic configuration and the underlying principles.







xi
















INTRODUCTION



Until the recent attempt by the United Nations to

create a constitution of the seas based upon a consensus of

virtually all nations of the world, law of the sea developed

from customary law, based upon unilateral state action, and

treaty law agreed upon by several states. Rather than

creating a new legal and political order, these laws and

treaties legitimized the accomplished political fact of

states' control over part of the ocean or states' rights of

access to the seas. Law of the sea, by its nature, has

always been in a state of flux. It has reflected changes in

man's ability to exploit the oceans, in states' perceptions

of their economic and security needs regarding the oceans,

and in the world power balance.

The oceans are a vital component of the earth's eco-

logical balance. They provide 70% of the earth's oxygen

supply, cover 70% of the earth's surface, hold 80% of the

animal life, and are the major determinant in the earth's

weather and climate systems.

The oceans are also a valuable economic resource. They

provide a vast commercial and military transportation net-

work. Over 95% of international trade is now carried on the

oceans. As international trade increases--especially in


1








vital energy resources--so does the importance of oceanic

transportation which is expected to quadruple by the year

2000. The oceanic fishing industry supplies an annual

75 million metric ton catch accounting for 10% of the

world's consumed protein and was valued in 1980 at $10 bil-

lion. Marine plants are farmed increasingly for food,

chemicals, and dyes. Mining of offshore resources provides

20% of the world's oil and 6% of its gas. Present esti-

mates--set at approximately 2.3 trillion barrels of oil--

indicate that petroleum reserves in exploitable regions of

the oceans are greater than those on land. Although oil and

gas represent 90% of the oceanic mineral yield today, many

other minerals and metals are mined from the oceans, includ-

ing coal, iron, tin, limestone, sulphur, barium ore, sand,

gravel, sodium, magnesium, zinc, uranium, molybdenum, cal-

cium, chlorine, and bromine. Commercial mining of sea-bed

manganese nodules (containing over twenty different minerals

but commercially important today for manganese, nickel,

copper and cobalt) is expected to begin during the next

decade. The value of these metals is difficult to estimate,

but it is thought to be in the region of several trillion

dollars. The economic importance of the oceans is already

enormous, and undoubtedly will grow in the future.

Yet, it is only recently that oceans have come to be

considered as enormous resource mines. The change in out-

look has come about because of the growing scarcity of

resources relative to world demand; because of technological




3



advances, which have improved man's ability to exploit the

sea; and because of changes in naval strategy and tactics

undertaken by the great powers. Today, as the exploitation

of living and non-living resources has intensified and

become economically more valuable, oceans have shifted to

the center of world affairs. As nations now look upon the

ocean resources as exhaustible and ocean space to be in need

of regulation, past perceptions of the nature of the seas no

longer prevail. It is this thinking which caused many

coastal states in the mid-twentieth century to pass uni-

lateral legislation expanding their jurisdiction over their

adjacent waters and resources. Often these claims con-

flicted with each other and with the traditional freedom of

the seas which for the past several centuries has been

thought necessary for commercial and military navigation.

Because of the growing instability in the legal regime

governing ocean use, and the subsequent threat posed to

global communication and transportation, a new legal order

governing all aspects of ocean use, and defining the rights

and regulations of states in the different types of ocean

space, has become necessary. The Third United Nations

Conference on the Law of the Sea (UNCLOS III) convened in

1973 to address this need. It concluded its negotiations

for a virtual constitution for the seas in the Spring of

1982. The completed treaty, if ratified by the requisite

number of individual states, will become international law.




4



UNCLOS III is important not only because of the Conven-

tion it produced but also because of its nature. It is the

largest and most representative international law-making

effort ever to take place. Its task has been especially

difficult because of the vast range of geographic, politi-

cal, economic, and ideological interests represented by the

156 states involved in these negotiations. The basic divi-

sions have been between the industrialized and the develop-

ing states, and between the states with and without maritime

interests. Despite their ideological and political differ-

ences, the United States and the Soviet Union share many

economic and military concerns and so have worked toward

acceptance of similar provisions.

In this study, I intend to investigate the changing way

in which states have attempted to reach consensus on law of

the sea. I will summarize the history of law of the sea up

to the UNCLOS III. Next I will consider the development of

the negotiations in the Conference--especially the more

important issues of the deep sea-bed mining regime, the

offshore jurisdictional issues of the territorial sea,

straits passage, and the exclusive economic zone, and the

other issues of scientific research and the marine envi-

ronment. I will also discuss the different interest groups'

cooperation in this attempt to reach consensus.
















CHAPTER ONE

EARLY THEORETICAL BACKGROUND



In earlier times, states did not attempt to reach con-

sensus on law of the sea. It was power rather than accepted

international legal principles that determined the extent of

a state's jurisdiction over its adjacent waters. A state

would generally claim as much of the seas as it could suc-

cessfully control and defend against others. After the act-

ual act of appropriation, civilian legal theorists would

introduce principles of law justifying the state's increased

jurisdiction.

The earliest formal statement defining the legal status

of the oceans and the rights people possessed therein was

made by the Roman jurist Marcianus in the second century

A.D. He stated that the sea and the coasts are common to

all men and that all men hold a common right to the free use

of the seas and its products. This pronouncement was codi-

fied in the Justinian Institutes in 529 A.D. and in the

Justinian Digest in 534 A.D. Since in practice the Roman

Empire exercised sovereignty over the Mediterranean, it is

generally accepted that this doctrine applied to the rights

of individual members of the Roman Empire rather than to




5




6



those of states in an international community. In contrast

to the view of Marcianus, jurisdiction over the seas was

gradually thought of as based upon naval supremacy rather

than the right of common use based upon a growing body of

international law.1

Whatever the basis of ocean rights, there could be no

denying that control of the seas increasingly enabled a

state to bolster its economic, military, and commercial

strength in the world. As the seas became more important as

a source of food and as a network for military and commer-

cial transportation--especially with the expansion of mari-

time commerce in the Middle Ages--competition among states

for sovereignty over the oceans increased.

Thirteenth-century Venice, whose vessels dominated the

Mediterranean and Middle Eastern trade routes to the East,

claimed the entire Adriatic Sea even though it did not con-

trol both shores. From 1269 to the seventeenth century

Venice demanded tributes from foreign ships and reserved the

right to prevent their travel on these waters. Because

other European powers and the Pope recognized the Venetian

claim, its sovereignty over the Adriatic Sea became rooted

in custom and treaty, and outlasted its ability to maintain

control by force.2

After Venice had established its control, jurists

developed theoretical justifications for this extension of

seaward jurisdiction. Bartolus de SassofE.rrato (1314-1357),

an Italian jurist, wrote a treatise defending the right of a




7



state to extend its jurisdiction to include offshore islands

within a 'moderate' distance from its shore. He defined

this distance as 100 miles and maintained that the state has

sovereign rights over this area. Later this argument was

used to claim control over adjacent seas even though no off-

shore islands existed. Another legal writer and former stu-

dent of Bartolus, Baldus de Ubaldis (1327-1400), agreed on

the need for and legality of a wide territorial sea but

thought it should be limited to 60 miles.

Other Mediterranean powers also claimed their adjacent

seas through force and then rationalized their appropriation

on the basis of these legal theories. Following the Vene-

tian example, the Republic of Genoa claimed sovereignty over

the Ligurian Sea. As late as the seventeenth century, the

Supreme Court of Piedmont, basing its decision on the writ-

ings of Bartolus and Baldus, condoned the capture of a

Spanish ship by the Genoese in the Ligurian Sea fifty miles

from shore and thus legitimized the Genoese seaward exten-
3
sion.

Various states of northern and western Europe also

claimed and fought over possession of the seas. From the

eleventh century Denmark, Sweden, and later Poland disputed

control of the Baltic Sea and eventually shared possession

of it. Denmark took the Sound and the Belts while Sweden

ruled over the Gulf of Bothnia. On the grounds that they

controlled the opposite shores and therefore held sover-

eignty over the intervening seas, Norway and later Denmark





8



claimed the northern seas between Norway and the Shetland

Isles, Iceland, Greenland, and Spitzbergen. Following sev-

eral wars over the Scandinavian Seas, treaties were conclud-

ed concerning the rights of fishing, trading, and navigation

in these waters.

As might be expected, the weaker states could not and

did not attempt to make claims over their adjacent seas.

Since England--because of Dutch, Spanish, and French compe-

tition--could not maintain exclusive rights to its surround-

ing seas, it naturally supported a policy of freedom of

fishing and navigation. In this way it was able to ensure

access to the seas. In 1351 Edward III signed a treaty with

the King of Castile providing for "liberty of fishing." In

1403 Henry IV entered into an agreement with the King of

France to guarantee freedom of fishing in the Narrow Seas.

Also at this time, in order to avoid disputes over ocean

areas, England did not specify its sea boundaries but delib-

erately left them vague. This allowed England flexibility

to extend or curtail its area depending upon its naval

strength.

The attempt to maintain closed seas did in fact reach

its apex in the fifteenth century when Spain and Portugal

divided the oceans of the world between them on the basis of

several papal bulls and the Treaty of Tordesillas. After

Portugal had explored the west coast of Africa, Pope

Nicholas V showed his appreciation of the Portuguese efforts

to convert the heathens by granting the Portuguese exclusive




9



and permanent rights to Africa. The Spanish exploration of

America was similarly rewarded by Pope Alexander VI who had

extremely close ties to Spain. In 1493 Pope Alexander VI

issued several bulls confirming Spanish claims to the

recently discovered islands and lands 100 leagues west of

the Azores and Cape Verde. He forbade anyone not granted

permission by Spain to travel west of this line.

Portugal, however, unhappy with a division that inter-

fered with its ability to navigate around its island terri-

tories, opened negotiations with Spain to move the dividing

line further west. In return for Portuguese recognition of

its American claims, Spain agreed to Portugal's request.

The outcome of their negotiations was the Treaty of

Tordesillas concluded between Spain and Portugal on June 7,

1494 and ratified that September. This treaty divided the

New World between the two states along a longitudinal line

370 leagues west of the Cape Verde Islands, or approximately

450 west longitude, with Spain taking the land west of the

line and Portugal the land east of it. The important point

here is that each country claimed exclusive navigational

rights within its respective territorial area. However,

since Spanish ships had to travel through Portuguese waters

to reach their American territory, they were allowed this

pas- sage as long as they travelled by the most direct

route. Basing their claims to the seas and to neighboring

territory upon this treaty, the Portuguese and Spanish

continued their world exploration and colonization (the




10



Portuguese in Africa, Persia, India, the East Indies, and

Brazil and the Spanish in North, South, and Central America

and the West Indies).

In 1506 Pope Julius II issued a bull approving and

confirming the Treaty of Tordesillas and commanding all

Christian princes to observe it. Yet this division of the

world, though sanctioned by the Pope, was not accepted by

other states in Western Europe. By the 16th century the

French, English, and Dutch, having entered into world-wide

commercial competition, challenged the Iberian claim of

control of the seas and of trade monopolies. Although, in

theory, the Portuguese and Spanish continued to deny the

other Western powers access to the oceans of the world, in

practice, the emerging non-Iberian western trading nations

persisted in navigating on the so-called 'closed seas.'

Inevitably, hostilities broke out between these two groups.

The ensuing political, economic, and military struggle is

reflected in the legal arguments that emerged concerning a
8
nation's right of access to the seas.

A significant and ironic note about the growing legal

battle between the Iberians and the other Europeans concern-

ing free use of the seas is that it was professed by the

work of a Spanish theologian and lawyer, Francisco Vitoria

(1480-1546), one of Spain's most distinguished 16th century

publicists. Writing in 1532, Vitoria questioned the right

of the Pope to grant the New World empire to the Iberians.

He challenged the Spanish Emperor's right to take lands




11



already held by the Indians, and to exert temporal authority

over them. On the right of a nation to use the seas, he

argued that this was a right possessed by all. It was a

common right that could not be prohibited. The right

claimed by Spain to travel to the New World had to be

extended to all. Later, when protesting the Iberian claims

of sovereignty over the high seas, Grotius would invoke

Vitoria as an authority to bolster his own position.

Regardless of Spanish claims, throughout the sixteenth

century the French refused to be excluded from navigation

and trade on the basis of the Treaty of Tordesillas and the

papal bulls. The differences between the two powers inten-

sified when the French tried to establish a colony in

Florida, and began attacking Spanish treasure ships and

settlements in the West Indies. In 1544 Spain and France

made an effort at compromise by concluding a treaty which

allowed the French to travel to the West Indies for trade

but not for colonization. The French continued to attack

and plunder the West Indies.

One could almost expect that France's determination to

use the seas would find support among French writers--and it

did. One of the most important of these was the French

legal publicist, Jean Bodin (1530-1596), who in 1576 pub-

lished a treatise entitled De Republic which denied the

legality of the Iberian claims. Bodin declared that the

legal oceanic limit over which a state could claim




12



sovereignty was 60 miles from its coast. To support this

position he referred to the writing of Baldus.1

The English were not far behind the French in resisting

Iberian claims to the oceans of the world. With Queen

Elizabeth's encouragement, British ships increasingly sailed

forth in pursuit of lucrative markets, and Spanish loot.1

Tensions between Spain and England grew until formal war

broke out in 1585 when Philip of Spain seized and declared

an embargo on Dutch and English ships in Spanish and Portu-

guese harbors. The subsequent British defeat of the Spanish

Armada in 1588 marked the turning point in the struggle for

mastery of the seas. Henceforth, Spanish sea power waned
12
while British power rose.

As the Spanish lost control over the Atlantic Ocean and

thus over North America, the French, British, and Dutch

attempted to replace Spanish influence with their own. In

the Treaty of the Hague (1596), the Netherlands, England,

and France formed a league against Spain with the express

purpose of further diminishing Spain's dominion. A few

years later England and the Netherlands again cooperated in

the Treaty of Westminster (1598) in which they attempted to

lay the groundwork for an Anglo-Dutch co-ownership of the

seas. Some of Queen Elizabeth's advisors, foreseeing the

Anglo-Dutch wars of the 17th century, opposed this plan.13

As with the French and the Dutch, so with the British,

in the late sixteenth and early seventeenth centuries, when




13



freedom of the seas became of greater consequence to them,

English legal publicists began to develop international laws

of the seas. The first of these writings were by Alberico

Gentili (1552-1608), an Italian lawyer who fled to England

and there established a reputation as a teacher and jurist.

In 1605 Gentili was appointed a counsel for Spain before the

English Court of Admiralty from which position he wrote

Pleas of a Spanish Advocate. In this work he began with the

premise of freedom of the seas but imposed many restrictions

on the freedom--some of which supported British claims. He

defended England's claim to its adjacent seas on the basis

of the writings of Bartolus who had upheld the legality of a

100 mile wide territorial sea. Although Gentili considered

the high seas to be held in common, he claimed that the King

of England had jurisdiction over wide expanses of the sea

for special purposes such as taking measures against pi-

rates, privateers, and others.14

The Netherlands,15 the other emerging maritime power at

this time, also made a concentrated effort to seize control

of the sea lanes and markets of the world. Its effort was

inadvertently aided by the Spanish. In 1580--the year

before Holland declared its independence from the Spanish--

the Spanish annexed Portugal, and in 1599 closed the Port of

Lisbon. In doing so they left many of the Portuguese mar-

kets vulnerable to Dutch encroachment. By 1598 the Dutch

were in control of Mauritius in the Indian Ocean; a few

years later they controlled Java and the Moluccas. In 1602




14



they created the Dutch East Indies Company, and greatly

enlarged their merchant marine and navy to protect the Com-

pany. As the Company tried to increase its trade in the

East Indies, the Portuguese, under Spanish rule, responded

with armed resistance and invoked the authority of the papal

bull of 1493 to exclude other traders from the Indian

Ocean.1

Despite Spanish threats and protest, the Dutch contin-

ued their commercial expansion in the East. This resulted

in the extension of semi-official hostilities between the

Dutch and the Spanish (and Portuguese) from Europe to the

Far East. As this conflict intensified, the States General

of the United Provinces gave the Dutch trading companies the

authority to defend themselves against attack, and later the

right to seize the Portuguese vessels and cargo. In 1603

the Portuguese carrack Catherine was seized by Jacob Heems-

kerk for Amsterdam shipowners. This action resulted in a

hearing to determine the legality of the seizure. It was

judged to be legal, and the proceeds from the captured ship

were awarded primarily to the Dutch East Indies Company;

additionally, the Dutch government rewarded the Company for

its actions by granting it a monopoly of the East Indian

trade. Some of the Company's shareholders (mainly those of

the Mennonite sect) criticized the government's action in

condoning the taking of ships.
*




15



At this time there appeared the writings of the Dutch-

man Hugo Grotius (1583-1645) who is generally regarded as

the originator of the concept of freedom of the seas.

Grotius, having been the Company's advocate in the Prize

Court hearing, is thought to have written the Commentary on

the Law of Prize and Booty (De lure Praeda) at the direction

of the Dutch East Indies Company. With the Company's

victory assured, a written defense was thought unnecessary.

As a result Grotius never published this work in its en-

tirety. Instead, he revised and published Chapter XII of

the Commentary anonymously. It appeared in 1609 under the

title of Mare Liberum. His specific purpose in writing Mare

Liberum was to support the right of the Dutch to navigate

the high seas and engage in the profitable East Indian

trade. From the Company's point of view, its importance was

enhanced by the fact that it appeared at a time when Dutch-

Spanish-Portuguese negotiations were taking place. The

Company's fear was that their countrymen's desire for peace

might lead them to concede their right to sail the seas.7

Mare Liberum appeared in the form of an appellate brief

in which Grotius made the following arguments: 1) The law

of nations allows all nations freedom of navigation and

communication with each other. 2) The Portuguese do not

possess exclusive sovereignty over the East Indies by right

of discovery, papal donation, or war. 3) The Portuguese do

not possess the sea or the exclusive right of navigation




16



through occupation, papal donation, or custom. 4) The law

of nations allows all nations to trade with one another.

5) The Portuguese do not possess exclusive trade privileges

with the East Indies by right of occupation, papal donation,

or custom. 6) The Portuguese claim to exclusive trade

privileges has no basis in equity and the Dutch must keep

their right to trade with the East Indies by peace, treaty,

or war.

These arguments were supported as follows: 1) Every

nation should be free to travel and trade with every other

nation. 2) God has willed this freedom because Nature does

not supply every place with all the necessities and nations

excel in different arts. 3) Those who do not follow this

law harm the bonds of human fellowship, destroy the possi-

bilities for mutual service, and violate Nature. Therefore,

since the seas cannot be seized, enclosed, or moved, they

are not property by their nature. Since the seas cannot be

exhausted by navigation or fishing, there is no need to

claim sovereignty over them. 4) In a true law of Nations,

the sea should be called the property of no one (res nul-

lius), or a common possession (res communis), or a public

property (res publica). 5) God did not give all things to

one or another individual but to the whole human race and

therefore a number of people can possess the same thing

which is different from the 'modern' meaning of sovereignty.

6) Because the sea is not merchandise, it cannot become

private property. 7) Therefore neither a nation nor an




17



individual can claim any right of private ownership over the

sea because such a claim would go against nature and public

utility.18

Although Mare Liberum was written with the specific

purpose of influencing the outcome of the treaty between

Spain and the Netherlands, it is doubtful that it had much

of an impact on the negotiations. The Treaty of Antwerp was

concluded on April 9, 1609, and gave the Dutch limited trad-
19
ing rights in the East Indies.19 However, this concession

was due to the political reality of the time--Spain was in a

weakened condition and no longer able to enforce its claims

to the seas and markets--rather than the acceptance of

Grotius' legal argument. The concession was not a recog-

nition of theory but of reality.

Mare Liberum's initial impact was in fact on the fish-

eries dispute between England and the Netherlands. As an

emerging commercial state, England generally upheld the

right of freedom of navigation on the high seas; but it was

also concerned with maintaining its exclusive fishing

grounds adjacent to its coast. Considering Grotius' freedom

of the seas doctrine to be an attack upon its fisheries,

England became the strongest opponent of Mare Liberum.

In 1613 William Welwood wrote Abridgement of All Sea-

Lawes as a defense of England's claim of exclusive control

over its adjacent fisheries. He regarded Mare Liberum as a

direct attack on the English fisheries. The freedom of

navigation to the East Indies was not the issue but was




18



being used as a pretext to wrest control of the fisheries

from the English. His refutation of Mare Liberum (and of

Hugo Grotius, its anonymous author) initiated the debate
20
over freedom of the seas versus closed seas.

Welwood began by dismissing the sources on which Mare

Liberum was based. He argued that Ulpian and Martian--

Roman jurists Grotius used as authorities to prove the sea

was held in common--wrote under the command of the Emperor

who, in fact, possessed the sea and controlled the use of

it. These directives, Welwood believed, were aimed at Roman

subjects rather than states in an international community.

While accepting the idea of freedom of the high seas ex-

pounded in Mare Liberum, Welwood believed that restricting

the use of adjacent seas was justifiable. Unless England

protected the existing stock of fish which surrounded its

shores it would be depleted. This idea, he maintained, had

been supported by the author of Mare Liberum. Welwood

concluded his work by stressing not the differences but the
21
similarities between his own work and that of Grotius.2

Two years later, in De Dominio Maris (1615), Welwood

further defined his position. He stated that the sea is

capable of being owned just like land according to both

human and divine law. He rejected the sources used by

Grotius as unaware of the true law of nature. Welwood fur-

ther stated that it is necessary for a ruler to claim juris-

diction over the adjacent seas so as not to disturb the

intimate relations between the land and coastal waters; in




19



the waters over which a ruler claims jurisdiction, he has

the right to control navigation and fishing and to charge

others for using the seas. He reaffirmed his earlier argu-

ment that fishing in adjacent seas should be controlled by

coastal states. Since God ordained the fish to swim along

the British coast at certain seasons, no reason exists why

the British should be denied this benefit. If other states

want to share this advantage, they should pay a 'just

price'. Otherwise, the British would be robbed of their

true rights.22

Grotius' arguments in Mare Liberum were further tested

with the English seizure of several Dutch cargoes of walrus

which the Dutch had taken from the waters surrounding Green-

land. The English justified this action on the grounds that

the Dutch did not have British permission to fish those

seas. The Dutch government protested the British seizure of

its cargoes. To legitimize Britain's conduct, in 1618 a

treatise was written--some say at the request of King James

I--refuting Mare Liberum. Its author was John Selden (1584-

1654), an English scholar, lawyer, and historian. His work

was Mare Clausum seu de Dominio Maris. However, feeling

that some passages might offend Britain's ally, the King of

Denmark, the treatise was not published until 1635.23

Selden's subtitle clearly indicates his purpose:

The right and dominion of the sea in two books.
In the first the sea is proved by the law of
nations, not to be common to all men, but to be
susceptible of private dominion and propriety as
well as the land. In the second, it is asserted
that the most serene King of Great Britain is the




20



Lord and proprieter of the circumfluent and sur-
rounding sea, as an inseparable and perpetual
appendix of the British Empire.

In the first book Selden dealt with three basic argu-

ments of Mare Liberum: that sovereignty over the sea is

against the law of nature and of nations; that the nature of

the sea makes it incapable of ownership; and that learned

men have opined against sovereignty over the seas. Selden

argued that ownership of the sea was not contrary to the law

of nature or to the law of nations; the ancient law uphold-

ing the community of things had been modified and the

accepted practice of ancient and modern nations showed that

appropriation of the seas was possible. To support his

argument he quoted the Scriptures--showing that the divine

law permitted appropriation of the seas. Next, he used

historical examples of ancient nations which had claimed

sovereignty over the seas. Then he discussed the recent

claims of the Venetians in the Adriatic, the Genoese in the

Ligurian Sea, the Tuscans and Pisans in the Tyrrhenian Sea,

the Pope in the Mare Ecclesiae; he further noted the immense

claims of sovereignty made by the Spanish and Portuguese,

and by the Danes and Norwegians, as well as the claims of

the Poles in the Baltic Sea, and the Turks in the Black Sea.

Selden agreed with Grotius that the Spanish and Portu-

guese had no right to claim sovereignty over the oceans,

not because their claims went against reason and nature, but

because they had no legitimate title to the oceans and were

not able to support their claims with an adequate navy. He




21



agreed that to prohibit innocent passage would be against

humanity, but that to allow innocent passage did not neces-

sarily detract from the dominion of the sea; furthermore,

innocent passage could not always be claimed as a right.

Refuting the claim that the sea can not be appropriated

because of its physical properties, he gave the example of

Roman law which allowed the appropriation of rivers,

springs, and lakes; he denied the claim that the sea has no

banks--all are bounded by shores and some are entirely

enclosed--or limits--these can be set by nautical science.

He disagreed that the sea is inexhaustible--the abundant

resources can be diminished by over-exploitation by out-

siders to the detriment of the owners of the sea.

In the second book, Selden attempted to prove that

sovereignty over the seas had been held by the ancient

Britons, the Romans, the Anglo-Saxons and by the Normans and

later kings. He claimed that this sovereignty was an abso-

lute kind--especially in the southern and eastern seas

between England and France and Germany.24

Selden's work became the basis of England's maritime

policy for over 100 years. However, its acceptance was

based upon England's ability to enforce this policy by its

naval strength rather than acceptance of Selden's argument.

The debate continued between proponents of freedom of

the seas and proponents of closed seas for navigation and

fishing. Although the Dutch publicist Cornelius van Bynker-

shoek (1673-1743) and the Swiss publicist Emmerich de




22



Vattel (1714-67) are better known for their contributions to

territorial sea concepts, they are only two of the many

authors drawn into this debate. Both had a considerable

impact on the development of the principle of freedom of the

seas.

Cornelius van Bynkershoek in De Dominio Maris Disserta-

tio, which was first published in 1702 and revised in 1744,

generally supported freedom of the seas but differed from

Grotius on two major points. First, he believed that the

ocean was capable of being appropriated and occupied, but

since it had not been possessed or occupied, it remained

free for all to use. Second, he supported the creation of a

territorial sea--a narrow belt of water adjacent to the
25
coast.2

Emmerich de Vattel (1714-1767) in The Law of Nations

upheld the concept of freedom of the open sea but claimed

that a nation required the exclusive use of the sea adjacent

to its coast for fishing and security of its ships.2

*

Despite the general acceptance of freedom of the seas,

states--to maintain control over their adjacent waters--

adopted the concept of the territorial sea. They did so

primarily because they were reluctant to allow foreign ships

complete freedom along their coasts. Not only was security

involved; states required policing rights in their adjacent

seas in order to control smuggling and other criminal activ-

ities which affected them directly. States also required




23



exclusive rights over coastal resources in order to obtain

the food they needed.

Even where rights over adjacent waters were conceded,

there was no agreement on boundaries or the type of juris-

diction possessed in the area. In the 14th century--by

which time the theory of a territorial sea had been devel-

oped--many jurists accepted the general principle of deter-

mining seaward jurisdiction by the range of navigation from

the coast. Neither of these territorial boundaries--one day

or two days--came into general use. Although they remained

in use in the Mediterranean until the 18th century, they

were not adopted by any northern or western European states.

Another general principle used to set territorial sea

boundaries was thalweg or the mid-channel principle. Al-

though originally meant to apply to rivers, it was sometimes

used to delimit the boundaries between contiguous states.

This principle was declared by the Romans in the seventh

century and used by some northern Europeans although never
27
by the English.27

Meanwhile, the manner of determining the boundary and

defining the type of jurisdiction in international waters

continued to change. Before the acceptance of the three-

mile limit, three basic methods of determining the terri-

torial sea prevailed. They were the line of sight doctrine,

the Scandinavian league, and the cannon-shot rule.




24



As the cannon-shot rule was the most widely practiced

it will be examined first. It provided that a coastal state

held sovereignty over its adjacent waters for the distance

its cannons could fire. This was an exceedingly practical

rule. A state needed only to shoot a cannon and measure its

range to determine its territorial waters. While the

cannon-shot rule did not provide a uniform standard range

because the distance fired depended upon a variety of fac-

tors such as the height, position, and caliber of the can-

nons, from 1610 to about 1911, many states measured their

territorial seas in this manner. The rule was most popular

during the 18th century until, in 1793, the effective firing

range increased from one to two miles.

The Dutch were the first to present the idea of the

cannon-shot rule. A Dutch delegation visited England on May

6, 1610, in response to a British proclamation prohibiting

"strangers" from fishing the seas claimed by the British.

On this occasion the Dutch statement included the following

note: "For that it is by law of nations, no prince can

challenge further into the sea than he can command with a

cannon except gulfs within their land from one point to

another.28 Additionally, in 1671 the Dutch required their

ships to salute foreign fortresses and towns when they came

within the cannon range of other states.

By 1685 the cannon-shot rule was established in France.

This principle quickly gained acceptance there because it

countered British claims to the North Sea, the English





25



Channel, and the Bay of Biscay. The French also modified

the cannon-shot rule; they added the idea that the cannon

range of a neutral state delimited the extent of a neutral

maritime zone in wartime--making it illegal to capture ships

as prizes within this zone. The territorial sea and neu-

trality zone did not extend uniformly in a belt along the

coast but only in the areas where actual cannons were

stationed.29

Although in the 17th century some states practiced the

cannon-shot rule, it was virtually ignored by the legal

publicists of the day. By this time most publicists con-

cerned with laws governing coastal waters recognized the

concept of territorial seas.

Even Grotius, the major proponent of freedom of the

seas, accepted the idea of a state possessing jurisdiction

over its coastal waters. In his work De Jure Belli ac Pacis

(1625) Grotius modified his earlier position and introduced

the idea that jurisdiction over the adjacent seas could be

exercised from the land without claims to ownership. Al-

though he stated that this jurisdiction would be based on

the exercise of power from land, he did not specifically

refer to the cannon-shot rule.3

The other two publicists in the 17th century who re-

flected the prevailing opinion toward adjacent waters were

Joannes Loccenius (1598-1677) and Samuel Puffendorf (1632-

1694). Locce.iius wrote that although a state could not

possess ownership over the sea, it could hold sovereignty




26



over the part of its adjacent waters that it could control;

he gave Sweden and Denmark--who controlled the Baltic--as

examples. Puffendorf in The Law of Nature and Nations

agreed with Grotius' argument that it was contrary to moral-

ity for a state to own the seas. He disagreed that the sea

is inexhaustible and stated that a nation could rightfully

claim control over its adjacent waters for the purpose of

preserving its fisheries and for maintaining security and

defense. He did not say how this claim should be determined

or what the limit should be but did imply that he approved
31
of a wide territorial sea.

The first publicist to recognize and recommend the

cannon-shot rule was Cornelius van Bynkershoek, a judge of

the Supreme Court of Appeals at the Hague. In his Dominion

of the Seas (1702) he objected to the sweeping claims the

British made over their adjacent seas and further expounded

on the necessity for freedom of navigation, trade and

fishing on the high seas. His most important contribution

to maritime law was made in Chapter II, entitled "Whether a

Maritime Belt Can be Occupied and Held Under Sovereignty,

And if so in What Way it May Be Done." In this chapter he

discusses possession of adjacent waters and concludes that a
32
state may claim as much of the sea as it controls32 or "the

control of the land [over the sea] extends as far as cannon

will carry; for that is as far as we seem to have both com-

mand and possession."33




27



Thirty-five years later Bynkershoek in Questions of

Public Law maintained his earlier position "for I hold that

the territorial domain ends where the power of weapons

terminates." Although Bynkershoek never proposed a set

measurement or a maritime belt for the territorial sea--

because he believed that the territorial sea could only be

determined by the range of a cannon--many later writers

attributed these ideas to his work.34

Even though Bynkershoek did not originate the cannon-

shot rule, he did popularize it and was the first jurist to

record its existence. In restating the rule, he claimed

that it was applicable in times of peace and not just during

war to create a neutrality zone. He did not state a general

principle in which a maritime territorial belt was deter-

mined but rather accepted the fact that a protective zone
35
existed within the range of the guns on shore. Neverthe-

less, his contribution was important. He effected the

theoretical reconciliation of the idea of freedom of the

seas with the idea that some parts of the sea can be appro-

priated while limiting the extent of the claims. Nations at

this time had become aware of the need for freedom on the

high seas but had difficulty allowing this freedom up to

their coasts. Bynkershoek's alternative fitted the spirit

of the times and was readily accepted by many states in the

18th century.36

During the 18th century all the important maritime

states--except the Scandinavian ones--upheld the practice of




28



determining neutrality zones by means of the cannon-shot

range. France continued to practice the cannon-shot rule

and concluded treaties with England in 1786, Russia in 1787,

and Tunis in 1795 establishing the cannon-shot range as the

limit of the neutrality zone in times of warfare. England

gradually relinquished its claims to the "British seas." In

1762 England concluded a treaty with the Kingdom of Algiers

in which England stated its adherence to the neutrality zone

based upon the cannon-shot range. The Italian States--the

Grand Duchy of Tuscany, the Vatican, the Republic of Genoa,

the Republic of Venice, the Kingdom of the Two Sicilies, and

the Kingdom of Naples--between 1778 and 1787 confirmed their

support of a neutrality zone based upon the cannon-shot

range. After the unification of Italy in 1861, the govern-

ment of Italy also stated its support of the territorial sea

and neutrality zone determined by the range of a cannon.

Spain and Portugal also concluded treaties with Algiers in

1786 and with Russia in 1787 adopting this rule. In 1787

the United States signed a treaty of Peace and Friendship

with Morocco, safeguarding American ships in the waters

within cannon-range of Morocco. In 1794 the United States

and England concluded the Treaty of Amity, Commerce, and

Navigation protecting ships and goods of either state while

within the other's cannon-shot range. Russia concluded

treaties with several states in the 18th century estab-

lishing a neutrality zone based upon the cannon-shot range;




29



in the 19th century it formulated other limits for various

types of jurisdiction.3

One of the problems of discussing the cannon-shot rule

is the great variation that existed in the range of a cannon

from country to country. A popular misconception concerning

the range of a cannon is that it was approximately three

miles at the time when Bynkershoek wrote De Dominio Maris.

The only state that claimed that it had built a cannon

capable of a three-mile range was Spain; however, accuracy

at that range was non-existent. At the beginning of the

18th century most European states had cannons with a range

of approximately one mile; by the end of the century the

range increased to approximately two miles and to approxi-

mately three miles at the end of the Napoleonic Wars.38

While most publicists in the 18th century agreed with

the practice of determining territorial seas through cannon

range, for the exclusive purpose of neutrality and prize

laws, fishing limits and other rights were established by

other means. The Italian publicist Giuseppe Casaregi

(1675-1737) accepted the cannon-shot range for neutrality

but held to the 100-mile rule of Bartolus for territorial

seas for criminal and civil jurisdiction. Felix Joseph de

Abreu y Bertodano (1700-1775), a Spanish legal writer, also

concluded that the cannon-shot range was acceptable for the

creation of neutrality zones but not for other jurisdic-

tional purposes. He contended that a state with an exten-

sive ocean frontage--such as Spain--should possess




30



jurisdiction out to 100 miles but that a state on a narrow

sea should share the sea equally with the other bordering

coastal states. Rene Josue Valin (1695-1765), an official

in the French Admiralty, wrote two works on the extension of

coastal jurisdiction. In the first, dealing with fisheries,

he proposed that the coastal state possess exclusive rights

as far as the sea bottom could be reached or to two leagues,

whichever was farther. In his second work he agreed with

Casaregi and Abreu that different limits should exist for

different jurisdictions and that the cannon-range rule

should apply to neutrality zones and prize law. Yet, a

German publicist, Christian Wolff (1676-1756), did not even

mention the cannon-shot rule but supported the freedom of

the seas for fishing and navigation. While Emmerich de

Vattel (1714-67), a Swiss diplomat and philosopher, in Law

of Nations (1758) supported freedom of the seas, he also

supported claims to wide territorial seas if the state mak-

ing the claim could maintain it through force. He stated:

Because all the sea space within cannon range all
along the coasts is regarded as being part of the
national territory a vessel captured under
the cannons 3Qf a neutral fortress [cannot be] a
legal prize.

Another concept used to determine the extent of a

territorial sea was the line-of-sight doctrine. Spain was

the first state to proclaim this doctrine in the 16th cen-

tury. At this time Spain was trying to curb the growing

maritime influence of Britain and France in the western




31



hemisphere. Toward this end in 1565 King Philip II of Spain

declared:

No one can come to our coasts, harbors, roadsteads
or rivers, or within sight of our land to wait for
or damage the ships or our allies, under any pre-
text whtsoever, on pain of seizure of crew and
goods.

In contrast to Spain's power at the time of the Treaty of

Tordesillas, this was a Spain at bay.

England was the next state to apply this doctrine--not

to its own waters but to the territorial seas of its domin-

ions. From 1676 to 1751 Britain signed treaties with

Tripoli, Algiers, and Tunis creating line-of-sight terri-

torial zones around Tangier, Minorca, and Gibraltar. It did

this to protect the merchant ships in the Mediterranean from

the attacks of the Barbary pirates, who had become a great

threat.41

In 1691 the King of Denmark and Norway also proclaimed

a protective zone within sight of Norway and Jutland in

which capture of ships was forbidden. Safe passage was

offered to British and Dutch ships "within sight of the
,42
dominion of the Dano-Norwegian King.42 On this occasion,

the line of sight was for the first time defined as four to

five leagues or 16 to 20 nautical miles from the coast. On

a clear day, so it was argued, the top rigging of a large

ship could be seen at that distance.43

Compared with the states maintaining the cannon-shot

rule, few states practiced the line-of-sight doctrine and

few publicists wrote about it. Cornelius van Bynkershoek




32



was one of the few. In De Domino Maris he rejected the

line-of-sight doctrine because it was "too loose and vari-

able a rule."44 In contrast, in 1803, the French writer,

Joseph M.G. de Rayneval (1736-1812), defended the doctrine

on the grounds that the cannon-shot rule was not as just a

standard measurement as the line-of-sight doctrine.

The most adamant support for the line-of-sight doctrine

came many years later from the pen of Paul Godey, an Under-

Secretary in the French Navy. Writing in 1896, his purpose

in defending the line-of-sight doctrine was to justify the

extension to a six-mile wide territorial sea. Although he

agreed with the principle of the cannon-shot range, he

argued that the men firing the cannons could not control the

guns past the range of their sight. Sight, not cannons

(whose range now exceeded human vision), should be the

determinant of the territorial sea. Whereas neither cannon-

shot range nor the three-mile limit gave states the needed

protection for fishing and fiscal matters, the range of

human sight would be adequate. Since the range of vision

varied according to many factors, Godey suggested that the

mean far range be determined and used as the measurement for

line-of-sight. He found that using a height of 10 meters

above the surface made the range of vision approximately six

nautical miles. Within this territorial sea he proposed

that the state possess jurisdiction over all matters during

war and peace. His proposals were contested on many

grounds.4




33



According to his contemporaries, the primary problem

with the line-of-sight doctrine was that vision varies

according to the height of the viewer and the height of the
46
object being viewed. The actual width of the territorial

seas would be determined according to where the viewer

stood. Recognizing the problems in this type of measure-

ment, Godey thought that a uniform height of 10 meters

should be used creating a uniform territorial belt. The

Scandinavian Plan claiming 16 to 20 nautical miles placed

its viewer on the heights along the coast but since these

varied so did the territorial belt--it was wider where the

mountains were taller and narrower along the flat areas.

Unlike the cannon-shot rule, where jurisdiction

depended on the location of cannons, the line-of-sight

doctrine provided a continuous belt of jurisdiction along

the coast. Moreover, the purpose of the line-of-sight

doctrine was different from that of the cannon-shot rule.

While the cannon-shot rule was developed primarily to create

neutrality zones during war, the line-of-sight doctrine was

to form a protective area around the coastal state.

Although the line-of-sight doctrine also provided customs,

fishing, and neutrality zones, the emphasis of the treaties

and publicists was upon the state's security.47

A third method used to determine the territorial sea

was the marine league which, unlike the cannon-shot rule and

the line-of-sight doctrine, provided a standard measurement.

The first implementation of this method was in 1598 when the




34



Danes issued an ordinance stating that any English ships

"hovering or fishing two Norwegian leagues" from

Vespeno (Westman Islands) would be seized. This represented

a retreat from previous Danish claims of sovereignty over

vast areas of the North Atlantic and the whole of the

Norweigian Sea. The Netherlands, France and England pro-

tested these claims and considered them to be illegal appro-

priations of the high seas. Pressure from these stronger

states forced the Danes to limit their jurisdiction to

uniform coastal belts measured in leagues from the coast.48

On June 18, 1745, a royal Danish edict was issued

stating that the limit of the Dano-Norwegian fishing monop-

oly was one league. On the same day a neutrality zone was

also created to a distance of one league. Thus, by the

middle of the 18th century, the Scandinavian territorial sea

extended to a uniform one league and existed for purposes of
49
both fishing and neutrality. Yet England refused to

recognize even the one-league neutrality zones and--using

its naval strength--continued to take prizes into its own

ports for adjudication.50

*

These early jurisdictional claims to the seas were

based upon a state's ability to control the seas. As a

state's power increased, it attempted to enlarge its oceanic

domain. The first major maritime states, Portugal and

Spain, divided the oceans between themselves in the Treaty

of Tordesillas. This attempt by the Iberians to maintain




35



closed seas was challenged by the emerging mercantile

powers--France, England, and the Netherlands. In order to

pursue their mercantile interest, these states required

freedom of navigation on all the oceans. Defending the

Dutch right to this freedom, Grotius published Mare Liberum.

Although the English agreed with freedom of navigation, they

perceived a threat to their fisheries in the doctrine

presented by Grotius. English publicists such as Welwood

and Selden defended the English historic right of closed

seas over their contiguous waters.

This conflict between maritime and coastal interests

was resolved by the development of the territorial sea

concept enunciated by Bynkershoek and others. During the

18th century extensive claims of sovereignty over the seas

declined. Instead of vague, far-reaching claims, states set

definite boundaries for specific purposes. Publicists from

different nations recommended primarily three methods--

cannon-shot rule, line-of-sight, and Scandinavian league--of

determining the territorial sea. In the 18th century the

cannon-shot rule was the most widely accepted and was sup-

ported by most maritime powers.





36


Notes


1. Pitman B. Potter, The Freedom of the Seas in History,
Law and Politics (New York: Longmans, Green and Co.,
1924), p. 32.

2. Thomas W. Fulton, The Sovereignty of the Sea (London:
William Blackwood and Sons, 1911), p. 3.

3. Sayre A. Swartztrauber, The Three-Mile Limit of the
Territorial Seas (Annapolis: Naval Institute Press,
1972), p. 11.

4. Fulton, p. 4.

5. George P. Smith, Restricting the Concept of Free Seas
(Huntington, N.Y.: Robert E. Krieger Publ. Co., 1980),
pp. 14-15.

6. Swartztrauber, p. 12.

7. Ibid., p. 13.

8. Fulton, p. 338.

9. Swartztrauber, p. 14.

10 Ibid., p. 15.

11. Smith, pp. 15-16.

12. Clark G. Reynolds, Command of the Sea (New York:
William Morrow and Co., Inc., 1974), p. 149.

13. Swartztrauber, p. 16.

14. Ibid., p. 17.

15. In 1567 the northern, Protestant provinces of the
Netherlands revolted against Spanish rule and declared
independence in 1581.

16. Swartztrauber, p. 18.

17. Hugo Grotius, De Jure Praedae Commentarius (Oxford:
Clarendon Press, 1950), Preface p. xiii-xv.

18. Hugo Grotius, Mare Liberum, 1609 text trans. Ralph van
Deman Magoffin in James Brown Scott, ed., Classics of
International Law (New York: Oxford University Press,
1916).





37


19. Frances Gardiner Davenport, European Treaties Bearing
on the History of the United States and its Depend-
encies to 1648 (Washington, D.C.: Carnegie Institution
of Washington, 1917), Vol. 1, p. 262.

20. Percy Thomas Fenn, The Origin of the Right of Fisheries
in Territorial Waters (Cambridge, Mass.: Harvard
University Press, 1926), p. 175.

21. William Welwood, An Abridgement of all Sea-Lawes
(London: Thomas Man, 1613) Reprint New York, Da Capo
Press, 1972.

22. Fenn, pp. 175-177.

23. Swartztrauber, pp. 20-21.

24. John Selden, Mare Clausum: The Right and Dominion of
the Sea, trans. Marchamont Nedham. (New York: Arno
Press, 1972 Reprint Ed.).

25. Cornelius van Bynkershoek. De Dominio Maris, 1702-03
text trans. Ralph van Deman Magoffin in James Brown
Scott, ed., Classics of International Law. (New York:
Carnegie Endowment for International Peace, 1923).

26. Emmerich de Vattel, The Law of Nations, trans Charles
G. Fenwick, (New York: Oceana Publ., reprint 1964).

27. Fulton, pp. 538-539.

28. Swartztrauber, p. 25.

29. Ibid., pp. 26-27.

30. Hugo Grotius, De Jure Belli ac Pacis, 1646 text trans.
Francis W. Kelsey in James Brown Scott, ed., Classics
of International Law. (New York: Carnegie Endowment
for International Peace, 1925), pp. 208-214.

31. Fulton, pp. 550-558.

32. van Bynkershoek, pp. 41-45.

33. Ibid., p. 44.

34. Swartztrauber, pp. 29-30.

35. Wyndham Walker, "Territorial Waters: The Cannon Shot
Rule," British Yearbook of International Law, 22
(1945), pp. 230-231.





38


36. Phillip C. Jessup, The Law of Territorial Waters and
Maritime Jurisdiction (New York: G.A. Jennings Co.,
Inc., 1927), p. 7.

37. Swartztrauber, pp. 30-32.

38. Ibid., pp. 23-25.

39. Ibid., pp. 32-33.

40. Henry G. Crocker, ed., The Extent of the Marginal Sea:
A Collection of Official Documents and Views of Repre-
sentative Publicists (Washington, D.C.: Government
Printing Office, 1919), p. 622.

41. Ibid., pp. 534-537.

42. Ibid., p. 518.

43. Swartztrauber, pp. 37-38.

44. van Bynkershoek, p. 44.

45. Swartztrauber, pp. 39-40.

46. Ibid., p. 41.

47. Ibid., pp. 42-43.

48. Bernard G. Heinzen, "The Three-Mile Limit: Preserving
the Freedom of the Seas," Stanford Law Review, 11
(July, 1959), pp. 605-611.

49. Swartztrauber, pp. 48-49.

50. Heinzen, p. 597.
















CHAPTER TWO

GROWING INTERNATIONAL ACCEPTANCE OF THE
THREE-MILE TERRITORIAL LIMIT


The three-mile limit first came into practice for

specific jurisdictional rights such as customs or fishing

zones. As states began to claim this limit for special

zones, they also increasingly used it to determine the

territorial sea limit. By the first half of the 19th

century, most states had abandoned the earlier methods of

determining the territorial sea and employed the three-mile

limit as the standard measurement for the territorial sea.

Only Spain attempted to maintain a wider general jurisdic-

tion but was forced to relinquish its claim. Despite this

general acceptance, states increased their jurisdictional

claims for special purposes in the latter part of the 19th

century. They were able to do so if their claims did not

conflict with those of more powerful states. Against the

French, English, and Germans who continued to fish three

miles from the coasts of Denmark and Iceland, even the Danes

were unable to maintain their historic four-mile limit.1

Perhaps the first mention of the three-mile limit was

in connection with the British Hovering Acts the first of

which was passed in 1709. They were instituted to prevent

the smuggling of taxed items into England. Since the first


39






40


act was too vague to be properly enforced, a second act was

passed in 1718. This act stated that ships with cargoes of

coffee, tea, brandy, spirits, and other taxed goods would

often pretend to be traveling to other ports while intending

to smuggle the goods into England. Therefore it gave

British customs officials authority to search suspected

ships "found hovering on the coasts of this Kingdom, [or]

within the limits of any port." The port authorities were

given the right to determine the limits within which they

would initiate searches. In 1728 the Customs Collector at

the Port of Yarmouth declared that his authority extended to

three miles from the coast. This limit existed only until

1736 when England passed another hovering act establishing a

customs zone of two leagues in a continuous belt from the

shore. As the smuggling problem became worse, England made

more extensive claims for customs jurisdiction. The three-

mile limit was not used as a customs zone in England for the
2
next 150 years.

Sweden also instituted a three-mile customs zone for a

short time. In 1758 in order to control the privateers off

the Swedish coast, King Adolf Frederick declared that Sweden

possessed jurisdiction three miles from its coast and that

within this area no hostilities were allowed. This limit

was extended to one German mile or 3.48 nautical miles in

1779.3

During the Seven Years' War (1756-1763) between England

and France in Europe and India, and the French and Indian





41


War (1754-1763) in North America, several lawsuits dealing

with captured ships were brought before the courts.4

The first of these lawsuits in 1761 involved the Joanna

Katherina, a British ship captured by a French privateer off

the Norwegian coast. The British owner asserted that it was

an illegal seizure because the ship had been taken within

the territorial waters of the Kingdom of Denmark and Norway.

The court ruled that in this instance the territorial sea

was one German mile and that the capture was therefore

legal. Another lawsuit involved a French privateer which

had seized two British ships, the Ellen and the Squirrel, in

waters claimed by Denmark. The French maintained the

legality of the cannon-shot rule for determining neutrality

and therefore the legality of the seizure. They agreed with

the concept of a continuous belt of territorial seas rather

than pockets within actual cannon range and equated cannon

range to three miles although at the time it was approxi-

mately two miles.5

Publicists, as well as courts, helped to legitimize the

three-mile limit. The first one to equate cannon-shot range

to three miles was Abbe Ferdinando Galiani (1728-1787) in

The Duties of Neutral Princes Toward Belligerent Princes

(1782). Although an Italian economist, he had served in the

diplomatic corps in Paris from 1759 to 1769--during the

English-French wars and at the time when France advanced the

three mile cannon-shot equation--and therefore was probably

familiar with this idea. In his work on neutrality, he






42


examined the then-prevalent practice of states to abide by

the cannon-shot rule. He concluded that states should

accept a standard, continuous belt of three miles from the

coast as the furthest limit of cannon range--even before

fortifications had been built. Although he did not mention

the French position of 1761, his view closely resembled it.6

The United States was the first country to legislate

the three-mile limit into its domestic statutes. This

decision was caused by its desire to remain neutral in the

European wars following the French Revolution. At this

time, England, France and Spain all held possessions in

North America and consequently were engaged in maritime

hostilities along the American coast. These states began to

pressure the United States to declare the extent of its

territorial sea.

On September 13, 1793, French Minister Edmond Charles

Genet asked Secretary of State Thomas Jefferson to define

the limits of American jurisdiction along the coasts--adding

that states and jurists held varying opinions on the legal

breadth. In order to maintain its neutrality within a zone

acceptable to the belligerents, on November 8, 1793, Thomas

Jefferson sent almost identical replies to Genet and to the

British Minister, Mr. G. Hammond, "provisionally" establish-

ing the United States territorial seas at one sea league or

three miles. These notes mentioned that a three-mile terri-

torial limit was recognized by some of the states with which

the United States had commercial dealings and that it was a






43


narrower limit than was claimed by many states. The major

difference in the two notes was that the one to the British

emphasized the temporary nature of the three-mile neutrality

zone. This allowed for the possibility of the United States

increasing its territoral sea once it became strong enough

to defend the increased limit.

As a result of the decisions taken on the three-mile

zone, on June 5, 1794, the United States Congress enacted a

law creating a three-mile neutrality zone. This action
8
further legitimized the three-mile limit. In doing so it

blended the three previous methods of determining the terri-

torial sea and incorporated the concepts of a continuous

belt from the line-of-sight doctrine, the need for a spe-

cific, uniform distance from the marine league, and a

neutrality zone from the cannon-shot rule. Although there

is no definite connection between Jefferson's formulation

and Galiani's equation of a three-mile territorial limit

with cannon-shot range, it is likely that Jefferson was

acquainted with these ideas.

A few years later several international court cases

upheld the legality of the three-mile limit. In 1800 the

British High Court of Admiralty ruled that the capture of

four Dutch ships within three miles of the Prussian coast
9
was an illegal seizure. In 1805 it ruled that the capture

of an American ship by British privateers one and a half

miles from the alluvial silt islands of the Mississippi

River was also illegal.0 Conversely, in 1808 a French





44


seizure of some American ships off the Prussian shore was

ruled legal because the ships were taken when they were more

than three miles from the coast. In 1812, United States

Circuit Judge Story, in his decision on the seized ship Ann,

referred to the three-mile limit as established interna-

tional law and stated that vessels within three miles of

United States territory came under United States jurisdic-

tion.1 Thus by the early 19th century the three-mile limit

had been advanced by publicists, used by statesmen, legis-

lated in domestic statutes, and advanced by the courts.

The first international treaty which specifically

accepted the three-mile limit, the Fishing Convention of

1818, was signed by the United States and Britain. This

treaty involved the regulation of fishing rights of British

dominions in America. Before the American Revolution,

British subjects were allowed to fish the entire North

Atlantic seaboard. Even though the French had lost Nova

Scotia and Newfoundland as a result of the Treaty of Utrecht

(1713), they continued to maintain fishing rights there.

Following the French-Indian War, France lost all of its

Canadian possessions except the islands of St. Pierre and

Miquelon off the Newfoundland coast; it retained fishing

rights off Newfoundland but lost them off Nova Scotia. As a

result, the British colonials were free to fish the area

under British protection. After the Revolution, the Ameri-

cans, fearing they would be excluded from the rich fishing

grounds off Newfoundland and Nova Scotia, attempted during





45


the Paris peace negotiations of 1782 to secure their pre-

vious rights to the fisheries. The Ameri- cans succeeded in

keeping these fishing rights in return for allowing the

British the right to freely navigate the Mississippi River.

The Treaty of Ghent (1814), which concluded the hostil-

ities, did not refer to either the American fishing rights

off the Canadian coast or to the British navigation rights

on the Mississippi River. Hence, the Americans continued as

before to fish the waters off the Canadian coast; but this

was not Britain's intention. In June 1815, an American

vessel fishing 45 miles from the Nova Scotia coast was

warned by a British ship that it was trespassing when fish-

ing within 60 miles of the coast. The Americans protested

the British pronouncement, insisting that the War of 1812

had not changed the fishing rights granted in 1783. The

British countered that the Treaty of 1783 was cancelled by

the War of 1812. American fishing vessels operating within

60 miles of the Canadian shore would be seized. Claims and

counter-claims followed. Finally in 1818 a compromise was

achieved based on the three-mile limit:

And the United States hereby renounces, for ever,
any liberty heretofore enjoyed or claimed by the
inhabitants thereof to take, dry, or cure fish on
or within three marine miles of any of the coasts,
bays, creeks, or harbors f His Britannic Majes-
ty's dominions in America.

Thus the United States was the first nation to adopt

the three-mile limit for purposes of neutrality and fishing.

In both cases the United States was operating from a





46


relatively weak position and claimed the three-mile limit

because it had the greatest chance of being accepted by the

more powerful states.

The most powerful of these states was Britain. Its

empire extended across all the oceans and into all the con-

tinents. After 1815 the Royal Navy possessed 95 capital

ships patrolling all the seas. As Britain required freedom

of navigation and reduced territorial sea limits, it quickly

became the major advocate for international acceptance of

the three-mile limit.13

Toward this end Britain negotiated several treaties.

In 1839 it signed the first of five treaties with France

based on a three-mile limit concerning fishing rights. In

1857 the two countries agreed on a three-mile fishing limit

for Newfoundland. Several other treaties were concluded

further defining the rights and regulations of each state
14
within the three-mile zone.

In addition, from 1819, Britain legislated a series of

acts creating three-mile limits throughout the Empire. The

first of these applied to the Canadian colonies. Newfound-

land and Labrador in 1819; Nova Scotia in 1836; Prince

Edward Island in 1843; and New Brunswick in 1853. Then in

1877 Britain established a three-mile territorial limit for

the Empire's Pacific Islands including the Friendly, Navi-

gators, Union, Phoenix, Ellice, Gilbert, Marshall, Caroline,

Solomon, Saaita Cruz, Rotunda islands, part of the Island of





47


New Guinea, New Britain and New Ireland, Louisade Archi-

pelago and others. In 1881 Britain created a one-league

(three-mile) fishing limit for New South Wales and Australia

and a three-mile neutrality zone for Cyprus. Britain in-

structed all its subjects to abide by the three-mile limits

of other states.

Important domestic legislation based upon the three-

mile limit was also passed in England. The Act of July 31,

1868 gave the British county courts admiralty jurisdiction

to a distance of three miles for cases involving maritime

jurisdiction, salvage, ocean collisions, and slave trade.

The Common Law was made applicable to crimes committed

within three miles of the English coast by the Territorial

Waters Jurisdiction Act of August 16, 1878. The Sea Fisher-

ies Act of August 2, 1883 forbade any foreign fishing vessel
15
from entering the English three mile territorial zone.5

Probably the most influential British act in aiding

international acceptance of the three-mile limit was the

Customs Consolidation Act of 1876. Prior to this Act,

Britain had claimed increasingly larger customs zones begin-

ning with the Hovering Acts in 1736 which had created a

two-league limit. As smuggling of tobacco, alcoholic

beverages, and tea continued to increase, Parliament enacted

legislation in 1765 extending the customs zone to three

leagues around the Isle of Man--one of the major smuggling

areas. Even this did not curtail the smuggling, and

Parliament in 1784 increased the customs jurisdiction to





48


four leagues. Then in 1802 yet another Act was passed

increasing the zone to eight leagues. Even this did not

alleviate the problem and so, in desperation, in 1805

Parliament extended the zone to 100 leagues.

Toward mid-century, as the general situation changed,

Britain began to re-evaluate the need for such an extensive

customs zone. Smuggling had gradually declined and the

100-league customs zone began to pose problems for the

British government. Questions were raised concerning the

legality of Britain's claiming control beyond the accepted

three mile jurisdiction. Additionally, other states such as

France, Belgium, and the United States began to extend their

customs jurisdiction to 10 or 12 miles. This meant that

ships of the large British merchant fleet could be stopped

and searched outside the three-mile zone, hampering freedom

of trade. On the advice of the British Foreign Office, the

government began to reduce the customs zone to three miles.

As a result, in 1876 Parliament enacted the Customs Consoli-

dation Act. This Act repealed all the previous customs acts

and replaced them with a customs zone of three miles for

non-British vessels and a three-league or nine-mile zone for

vessels belonging to British subjects and ones on which half

of the persons aboard were British subjects.6 In passing

this Act, the Territorial Waters Jurisdiction Act of 1878

and the Sea Fisheries Act of 1883, Britain demonstrated to

other states its intention of upholding the three-mile limit

for all purposes.





49


France, accepting the three-mile limit for fishing

purposes, rejected it for other purposes. In 1817 it estab-

lished a customs zone of two myriameters or approximately

11 nautical miles and upheld this limit through the 19th

century. For purposes of neutrality, France kept the

cannon-shot rule until 1896 when, following Britain's lead,

it adopted the three-mile limit.

Unlike Britain and France, Austria made minimal sea

claims. In 1803 it adopted cannon range as the limit for

neutrality. In 1849 it equated cannon-shot range with three

marine miles. In 1881 Austria-Hungary established a customs

zone of four miles, and in 1884 a three-mile exclusive fish-

ing zone.

Prussia also held modest sea claims. In 1866 it

accepted the cannon-shot rule for its territorial sea lim-

its. In 1882 and 1884, it signed two treaties based upon

the three-mile limit--the North Sea Fisheries and the Suez

Conventions.

During the early 19th century, Russia claimed large

territorial seas in order to protect its seal fisheries from

foreign fishermen. In 1821 Tsar Alexander I issued an Ukase

(Proclamation) prohibiting foreign ships 100 miles from

Russian coasts and islands; any ship within this zone was to

be seized. Additionally the Ukase forbade foreign vessels

from the Bering Sea, the Gulf of Alaska, and the Sea of

Okhotsk; the Russians claimed the territory north of a line

drawn 450 north on the Asian shore and 510 north on the





50


American shore to be Russian territory. This position

antagonized the Americans and the British who had fishing

interests in western Canada. The Russian seizure of an

American brig, the Pearl, in 1822 resulted in negotiations

and conventions signed between the United States and Russia

in 1824 and between Britain and Russia in 1825. In these

agreements Russia agreed to withdraw its claims made in the

1821 Ukase. The Pearl was released in 1829.

In the latter part of the century, Russia accepted the

three-mile limit. In 1868 the Russian Foreign Minister told

the United States that foreign whalers were not allowed

within a three-mile limit. The following year Russia adopt-

ed the three-mile rule for purposes of neutrality. Although

the Russian territorial sea was set at three miles in 1893,

the White Sea was still considered to be a closed territor-

ial sea. Later that year, the United States and Great

Britain undertook not to fish seals within ten miles of the

Russian mainland and 30 miles of the Komandorsky Islands and

Tulenew Island.7

Throughout the 19th century many of the lesser European

powers also adopted the three-mile limit. This acceptance

was demonstrated by the signing of conventions with other

more powerful states. Perhaps the most important of these

was the "Hague Convention for the Regulation of the Police

of the Fisheries in the North Sea outside Territorial

Waters," better known as the North Seas Fisheries Convention

(1882). Six states--Great Britain, Germany, Belgium,





51


France, Denmark, and the Netherlands--signed; the only North

Sea state not to sign was Norway and Sweden (at that time

one state ruled by the King of Sweden).

The purpose of the North Seas Fisheries Convention was

to establish and regulate exclusive fishery zones in the

North Sea. Its most important provisions were Article Two

and Article Three. Article Two created an exclusive fishery

zone of three miles to be measured from the low water mark

along the coasts, islands, and banks of the participating

states. Additionally, Article Two stated that in the case

of bays the three-mile measurement was to begin at the point

where the width of the bay exceeded 10 miles. Article Three

attempted to standardize measurement; it defined miles as

geographic miles, 60 of which make up one degree in lati-

tude.18

Although this convention dealt with fishery zones, it

reinforced the signatory states' acceptance of a three-mile

territorial sea. The ones which had not previously accepted

this limit did so after the Convention, while those which

had already adopted it better defined their positions.

The Suez Canal Convention (1888) also recognized the

three-mile limit. Signed by nine states--Great Britain,

Austria-Hungary, France, Germany, Russia, Italy, The Nether-

lands, Spain, and Turkey--this convention neutralized the

Suez Canal ensuring free passage to all ships during times

of war and peace. It stated that no acts of war could take

place "within a radius of three miles from those ports, even





52


though the Ottoman Empire should be one of the belligerent

powers." Thus it recognized a three-mile territorial sea

for the Ottoman Empire while establishing a neutrality zone

for the rest of the Suez Canal.19

In addition to signing the North Seas Fisheries

Convention and the Suez Canal Convention, many of the lesser

European powers also enacted domestic legislation adopting

the three-mile limit for various purposes. In 1832 Belgium

accepted a three-mile limit as did The Netherlands in 1874.

Greece adopted a three-mile fishing zone in 1869. The Otto-

man Empire in 1893 established a three-mile fishing limit

around Crete. From 1828 to 1830 Spain fixed a three-mile

anti-smuggling zone but rescinded it in favor of a six-mile
20
zone.

Since most of the Far Eastern states were colonized by

European powers which accepted a three-mile territorial sea,

they had no choice but to adopt this limit. Even the few

states which maintained their independence were not in any

position to go against the European maritime powers and so

they also accepted a three-mile zone. During the Franco-

Prussian War, Japan declared a three-mile neutrality zone.

King Kamehameha of Hawaii proclaimed a three-mile neutrality

zone during both the Crimean War and the Russo-Turkish

War.21

Of the Latin American states, Chile was the first to

enact legislation regarding sea limits. In 1855 the Civil

Code of Chile created a dual zone composed of an inner





53


territorial sea of three miles and an extended zone of 12

miles for other purposes. In 1870 during the French-

Prussian War, Chile established a 150-mile neutrality zone.

Four other Latin American states patterned their ocean

legislation after Chile's Code of 1855: Ecuador in 1857; El

Salvador in 1860; Argentina in 1869; and Honduras in 1880.

In the 19th century the United States officially

maintained its support of the three-mile limit which it had

adopted in 1793. Several times when other states initiated

broader limits, the United States protested their actions.

It did so following the Russian Ukase (Proclamation) of

1821; the Americans became worried about possible hostili-

ties arising with Russia over fishing rights in the North

Pacific. The United States sent a diplomatic note in 1875

reminding Russia of the general international acceptance of

a three-mile limit. In 1879, after a Mexican attack on an

American merchant ship outside the three-mile limit, the

United States lodged a complaint with the Mexican govern-
22
ment.2

There are instances when the United States supported

broader jurisdiction over some ocean space. The focus of

the Bering Sea Arbitration of 1893 was on whether or not the

United States had the right to control seal fishing in the
23
Bering Sea outside the three-mile limit. In 1881 the

United States Treasury Department decided to apply American

conservation laws to all waters of the Bering Sea east of

the boundaries set by the Seward Convention in 1867 and





54


ordered the Coast Guard to enforce this interpretation.

Foreign seal fishermen in violation of the conservation laws

were first warned but in 1886 the Coast Guard began to seize

offending British vessels. Between 1886 and 1890 fourteen

ships were taken at a distance of 15 to 115 miles from land

in the American part of the Bering Sea. After extended

British protests, the United States agreed to stop the

capture of British ships if the British agreed to stop seal

fishing in the Bering Sea. The matter was then submitted to

an arbitration tribunal consisting of members drawn from

France, Italy, Sweden, Britain, and the United States.

The major question that emerged was whether the United

States had the right to protect the seals of the Bering Sea

outside the three-mile limit. Only the American member of

the tribunal said they had. The others concluded that the

United States did not have any right outside the three-mile

limit. Although the arbitration board recommended conserva-

tion measures which were put into effect, this had little
24
effect on the destruction of the seal herd.

Meanwhile, the question of the three-mile limit was

being fought out among western publicists of whom only the

British gave the three-mile zone unanimous support. Many

writers still continued to endorse the cannon-shot doctrine

but recommended that the limit of the territorial seas be

extended proportionately as the range of the coastal artil-

lery increased. Fedor Fedorovich de Martens (1845-1909), a





55


Russian professor, diplomat, and arbitrator, was one of the

more distinguished publicists holding this view. He sup-

ported the extension of territorial seas from three to ten

miles--a distance which would be subject to change as

cannon-shot range increased. Similarly, a Spanish publi-

cist, Marquis de Ramon de Dalmau y de Olivart (1861-1928),

based his justification of the six-mile Iberian claims on

the increase of cannon range. Likewise, Carlos Calvo (1824-

1906), an Argentinian publicist, advocated a five-mile

territorial sea corresponding to the cannon range of the

time. Others sharing this view were the French legal writ-

ers, Jean Felicite Theodore Ortolan (1808-1904), Paul Louis

Ernest Pradier-Fodere (1836-1904), Joseph J. B. Imbart de

Latour (1859-1924), and the Austrian publicist, Franz von

Liszt (1851-1919).

The majority of publicists preferred the three-mile

limit. Domenico Alberto Azuni (1760-1827), considered the

cannon-shot rule imprecise and thought that the three-mile

rule was an improvement. The Austrian, Felix Stoerk (1851-

1908) argued that submarines, mines, dirigibles, and torpe-
25
dos had made the cannon-shot rule obsolete. Others--such

as the American, Henry Wheaton26, (1785-1848) and the Ger-

mans, August Wilhelm Heffter (1796-1880), Heinrich Bernard

Oppenheim (1819-1880), Ludwig Gessner (1828-1890)--consi-

dered the change from the outmoded cannon-shot rule to the
-mile limit as natural evolutin.27
three-mile limit as natural evolution.





56


Other legal writers supported systems incorporating

varying limits for different purposes. The major proponent

of this system was the Frenchman Albert Geouffre de Lapra-

delle (1871-1955). Rejecting the cannon-shot rule, he

developed a multi-tiered system consisting of a three-mile

neutrality zone, a three- or four-mile fishing limit, and a
28
four-league customs area. Two American publicists--James

Kent29 (1763-1847) and Henry Wagner Halleck30 (1815-1872)--

also advocated extended limits for security, neutrality, and

customs purposes.
*

Although acceptance of the three-mile rule steadily

increased in the 19th century, some states attempted to

maintain other limits. The historic four-mile claim of the

Scandinavian states were maintained by Norway and Sweden3

but rejected by Denmark who signed the North Seas Fisheries

Convention of 1882. Spain's attempt to enforce this law led
32
to a conflict with England in 1840 and 1841.32 Failing to

maintain this limit in Europe, Spain claimed a six-mile

territorial sea around Cuba. During the American Civil War,

Spain complained that American war-ships had violated

Spanish neutral waters surrounding Cuba. The United States

refused to recognize this claim. In 1885, Spain was

successful in negotiating a treaty with Portugal providing

for exclusive fishing rights for both within a six-mile zone
and in rvation methods within twelve miles.33
and certain conservation methods within twelve miles.





57


Mexico was the only state to claim a nine-mile terri-

torial sea. The Treaty of Guadalupe Hidalgo (1848) which

ended the Mexican War stated that the United States-Mexican

boundary began "in the Gulf of Mexico, three leagues [nine

miles] from land, opposite the mouth of the Rio Grande."34

The Gadsden Purchase of 1853 maintained this boundary de-

limitation. Mexico also signed treaties establishing nine-

mile custom zones with Britian, Germany, the Kingdom of

Norway and Sweden, and China, and 11-mile custom zones with
35
France and El Salvador.

Although the United States officially had adopted the

three-mile limit in 1793 and defended it on several occa-

sions during the 19th century, opinion and practice in the

United States varied as to what limits should be held.

Thomas Jefferson believed that the United States' territor-

ial seas should reach to the Gulf Stream; American publicist

James Kent held that wide baselines should be used to deter-

mine the Atlantic territorial sea. In international deal-

ings, the United States signed the nine-mile boundary treaty

with Mexico and attempted to gain seal conservation rights

in the Bering Sea beyond the three-mile limit.

Throughout the 19th century the United States showed an

ambivalent attitude toward the three-mile limit as witnessed

by various acts, cases and pronouncements. In the settling

of a dispute concerning a capture near the mouth of the

Delaware Bay, United States Attorney General Randolph stated

that the entire Bay was an American territorial sea based on





58


American ownership of both the New Jersey and Delaware

headlands and shores. He added that the Bay had been

exclusively British and with the American Revolution this

proprietorship passed to the Americans. He thus concluded

that in such cases there was a justification for extending
36
the American territorial sea. In 1799 the United States

extended its custom zone to four leagues (12 miles); in

which area the transfer of foreign goods was prohibited and

United States officials were authorized to board vessels to

inspect their cargoes. In 1804 the United States Supreme

Court in the case of Church vs Hubbart upheld this law and

the right of other states to a similar zone. It ruled that

the seizure four leagues from the Brazilian coast of an

American ship which was engaged in trade, violating Brazil-

ian law, was legal.

Throughout the century, the United States was in favor

of a wider neutrality zone. During the Napoleonic Wars, the

United States in 1806 signed a treaty with Great Britain

creating a five-mile neutrality zone but this treaty met

with great opposition in Great Britain--especially from the

Admiralty--and was never signed. In 1896 the United States

attempted to gain support for a six-mile neutrality zone but

recognized the fact that such a change would have to be

accepted by a majority of the maritime powers. Later, at

the turn of the century, the United States Naval War College

proposed an extension of the marginal seas to six miles but

cautioned that this would diminish the area of the high seas





59


and could be accomplished only with the agreement of the

maritime states. In another departure from the three-mile

limit, the Inland Rules of the Road (1897)--writing regula-

tions for ships in and near the United States--

considered American jurisdiction to extend as far as

15 miles.37

Various states, although accepting a three-mile terri-

torial sea, advanced different limits for special purposes.

Some of the most common legislation extending limits dealt

with the preservation of sea life. In 1829 France enacted a

law curtailing injurious trawling within three leagues of
38
its coast.3

In 1868 Great Britain gave the Irish Commissioner the

right to regulate the harvest of oysters as far as 23 miles
39
from the coast.39 Then in 1895 Great Britain passed a

similar act forbidding trawling within 13 miles of the

Scottish coast.40 Through a set of three acts the British

claimed exclusive rights to the Ceylonese pearl, chank,

coral, beche-de-mer, and shell fishing grounds as far as

twenty miles from the shore; they defended these wide-

ranging claims on the basis that these fisheries had been
41
appropriated from earlier times.41 Britain in 1888 and 1889

passed legislation controlling pearl and beche-de-mer fish-

eries in Australia from 250 miles to 600 miles applicable

only to British subjects.42

A much more modest claim was made by Austria-Hungary

and Italy to exclusive one-mile wide belts of sponge and





60


coral fisheries; each state was allowed to fish the other's
43
area.

Another special purpose zone claimed by Britain was

exclusive rights to subsoil minerals. This claim dated from

a dispute between the Crown and the Duchy of Cornwall over

who owned the tin and copper mines of the sea-bed extending

from Cornwall, England. In 1858 it was decided that the

Prince of Wales owned all the mines and minerals between

high and low water marks in the County of Cornwall while the

Queen owned all the mines and minerals seaward of the low

water mark. No seaward limit was set. Although these mines

did not extend past three miles, the ownership of coal mines

which did extend was based upon this decision.

Britain also extended its seaward jurisdiction over

British subjects for criminal and admiralty offenses. In

1833 and 1843 Britain created extra-territorial courts in

Canton and Hong Kong to try British subjects for crimes

committed in China and up to 100 miles of the Chinese
44
coast.

*

Despite these jurisdictional extensions in special

circumstances, most states at the close of the 19th century

accepted the three-mile territorial sea. This limit

accomodated the coastal state's need to protect its coast

and close-water fisheries while allowing the maritime state

freedom of navigation on the high seas. Britain's primacy





61


in world affairs was the major factor in establishing the

international acceptance of the three-mile limit. Other,

less powerful states had little choice but to agree with

Britain's dictum. This was a period of relative stability

in ocean law.



Notes



1. Bernard G. Heinzen, "The Three-Mile Limit: Preserving
the Freedom of the Seas," Stanford Law Review, 11
(July, 1959), pp. 629-634.

2. Sayre A. Swartztrauber, The Three-Mile Limit of the
Territorial Seas (Annapolis: Naval Institute Press,
1972), pp. 51-52.

3. Swartztrauber, pp. 52-53.

4. Clark G. Reynolds, Command of the Sea (New York:
William Morrow and Co., Inc., 1974), pp. 235-247.

5. Swartztrauber, pp. 53-54.

6. Ibid., pp. 54-55.

7. Thomas W. Fulton, The Sovereignty of the Sea (London:
William Blackwood and Sons, 1911), p. 573.

8. Swartztrauber, pp. 56-59.

9. Edwin DeWitt Dickinson, ed., A Selection of Cases
and Other Readings on the Law of Nations Chiefly as It
is Interpreted and Applied by British and American
Courts (New York: McGraw Hill, 1929), pp. 778-780.

10. Charles G. Fenwick, ed., Cases on International Law
(Chicago: Callaghan and Co., 1951) pp. 482-483.

11. United States Government, The Federal Cases, Vol. 1,
Case No. 397, pp. 926-928.

12. Swartztrauber, pp. 61-63.






62


13. Lord Williams Strang, Britain in World Affairs (New
York: Frederick A. Praeger, 1961), pp. 99-100.

14. Swartztrauber, p. 65.

15. Ibid., pp. 66-67.

16. Ibid., pp. 70-71.

17. Ibid., pp. 72-74.

18. United States Department of State, Papers Relating to
the Foreign Relations of the United States (Washington,
D.C.: Government Printing Office, 1887), p. 439.

19. Henry G. Crocker, ed., The Extent of the Marginal Sea:
A Collection of Official Documents and Views of Repre-
sentative Publicists (Washington, D.C.: Government
Printing Office, 1919), p. 487.

20. Swartztrauber, pp. 74-75.

21. Ibid., p. 76.

22. Ibid., pp. 76-77.

23. The United States by the Seward Convention of 1867 had
purchased all the Russian Territory on the North Ameri-
can continent along with the adjacent islands. This
area had been a rich seal fishery but due to the method
used to capture the seals and general over-exploita-
tion, the seals were in danger of extinction. The most
common and efficient method of capturing seals was in
the open sea but it was also the most destructive since
80 to 90 percent of the captured seals were females in
search of food for their pups who would die if their
mothers did not return. Therefore to protect the seal
fisheries Russia in 1835 and the United States in 1869
passed legislation forbidding the capture of female
seals. The Japanese and British--the major offenders--
were not obligated to abide by these domestic laws and
continued to capture female seals. William Williams,
"Reminiscences of the Bering Sea Arbitration," American
Journal of International Law (October, 1943), pp. 562-
584.

24. Swartztrauber, pp. 87-88.

25. Ibid., pp. 78-82.

26. Henry Wheaton, Elements of International Law (Boston:
Little, Brown and Co., 1866).






63


27. Some publicists preferred the three-mile rule to the
cannon-shot range because it served as an all-purpose
rule for various aspects of territorial seas; the Swiss
Johann Kaspar Bluntschli (1808-1881), the Italian
Pasquale Fiore (1837-1914), and the Frenchman B. Castel
were of this opinion. Swartztrauber, p. 83.

28. Ibid., pp. 82-84.

29. James Kent, Commentaries on American Law. 4 Vols.
(Boston: Little, Brown and Co., 1896).

30. Henry Wagner Halleck, Halleck's International Law
(London: K. Paul, Trench, Trubner, and Co., Ltd.,
1908).

31. Crocker, p. 609.

32. From the mid-eighteenth century the major proponent of
the six-mile limit was Spain. In 1830 Spain defined
smuggling to be the approach of a ship under 200 tons
with dutiable goods aboard. England refused to recog-
nize Spain's six-mile jurisdiction and ordered the
Royal Navy to protect English ships from three miles of
the Spanish coast. Although Spain did not retract this
law, in the face of British resistance Spain was unable
to enforce it. Since the other European states knew
that the power of the British Navy was behind them,
they also ignored the six-mile limit and fished up to
three miles of the Spanish coast.
Swartztrauber, p. 90.

33. Ibid., p. 91.

34. United States Congress, United States and Mexico
"Treaty of Peace, Friendship, Limits, and Settlement,
Feb. 2, 1848, Article 5, United States Statutes At
Large Vol. IX, p. 926.

35. Swartztrauber, p. 92.

36. Crocker, pp. 632-636.

37. Swartztrauber, pp. 93-95.

38. Fulton, p. 608.

39. Crocker, p. 554.

40. Swartztrauber, p. 96.

41. Crocker, p. 544.

42. Ibid., p. 574-575.





64


43. Ibid., p. 599.

44. Swartztrauber, pp. 97-99.
















CHAPTER THREE

1900 TO WORLD WAR II



At the beginning of the 20th century, the three-mile

limit was observed along most coastlines. England, France,

Germany, and The Netherlands--states which held the three-

mile limit--had colonized or taken into their spheres of

influence most of the coastlines of Africa, South Asia, and

Oceania. Consequently, these areas had three-mile terri-

torial seas. States which did not hold the three-mile

limit, Uruguay, Scandinavia, Iberia, and Mexico, possessed

only a small portion of the world's coastline and only 10%

of the world's ships. In the first quarter of the 20th

century the three-mile limit had reached its peak of

acceptance. England--the greatest advocate of the three-

mile limit--was still the most powerful state but global

changes were beginning to foreshadow the end of Britain's
1
supremacy.

Although Britain still possessed unparalleled maritime

strength, its relative power had declined. In 1815

Britain's navy was greater than the navies of all the other

states combined. By 1914 the naval strength of Germany,

France, and the United States had increased and their com-

bined navies were larger than the British. Nevertheless,


65





66


Britain was still dominant--possessing not only the greatest
2
number of capital ships, battle cruisers, and cruisers but
3
also the largest merchant marine fleet. However, Britain

no longer exclusively controlled the seas but had begun to

share control with the other emerging maritime nations.

The other major change in the power structure at the

turn of the century was the rise of two non-European states,

the United States and Japan. Both of these emerging states

defeated established European nations in wars. Although

previously ignored, through their show of military strength

these non-European states now commanded a voice in global

affairs. By their ascendancy they diminished the relative

power wielded by the established European states--primarily

Britain. Both these states upheld the three-mile territor-

ial limit and upon gaining control over additional territory

established three-mile zones.

Throughout the 19th century the United States expanded

its territory to become a two-ocean state and continued to

develop its economy. With its victory over Spain in the

Spanish-American War of 1898, the United States emerged as a

military force on the world scene. It also became an

imperial power; it gained the former Spanish colonies of

Cuba, the Phillippines, and Puerto Rico whose territorial

seas it changed from six to three miles. With this increase

of power, the United States had a greater impact on interna-

tional affairs, including the development of the law of the

seas.





67


Japan also became a state to be noticed after its

victory in the Russo-Japanese War of 1904-5. This victory

marked the beginning of the growth of the Japanese Empire

and the demise of the Czarist Russian Empire. The Peace of

Portsmouth gave the Japanese the southern half of Sakhalin

reducing the Russian coastline by approximately 1,000 miles.

To increase their fishing grounds, the Japanese changed the

previously Russian ten-mile fishing zone to three miles.4

Britain continued to pressure those states which

extended their territorial seas beyond three miles. In 1905

a Canadian ship was captured while fishing in the mouth of

the Rio de la Plata to which Uruguay claimed exclusive

rights. Britain protested this claim and the ship was

released. Also in the same year, Britain supported the

right of British, French, and German subjects to fish three

miles from the Iberian coast which held a six-mile limit.

The British Foreign Office declared that the British

government "did not recognize any claims of the Spanish or

Portuguese governments to exercise jurisdiction over British

vessels beyond the three mile limit."5 Britain was deter-

mined that the three-mile limit be upheld, giving British

ships the maneuverability they required to maintain their

far-reaching empire.

Despite this, Britain itself maintained claims which

extended beyond the three-mile limit although sometimes it

relirquished or modified these claims. After protests were

lodged by Norway and Sweden, British control over fishing





68


regulations for the waters surrounding Scotland were inter-

preted by the Foreign Office as applying only to British

subjects. In 1927, following a collision in the Bristol

Channel, a British court of appeals found that the Channel,

which is a width of 20 miles, was not part of the territor-

ial seas.

Although Germany signed both the North Seas Fisheries

Convention (1882) and the Suez Convention (1888), it did not

formally adopt a three-mile territorial sea until 1909. In

1915 the German Supreme Prize Court upheld the international

legality of the three-mile limit as opposed to the four-mile

limit held by Sweden and Norway. This resulted from a World

War I German capture of a Swedish ship between three and

four miles from the Swedish coast. After World War I,

Germany--maintaining its support of the three-mile limit--

protested the larger Finnish customs zone which it con-

sidered to be illegal. In 1924 Germany and the United

States signed a treaty pledging to uphold the three-mile

limit as the "proper limits of territorial waters."

Some European states such as Italy (1908), the Nether-

lands (1904), and Denmark (1900) which had 19th-century

treaty obligations committing them to some form of the

three-mile limit, passed domestic legislation confirming

their commitments in the early 20th century.

Other states gave in to either diplomatic pressure or

the impossibility of maintaining wider zones in World War I

and so changed their limits. Spain and Portugal succumbed





69


to international pressure especially exerted by Britain to

change their limits but did not totally accept the three-

mile limit; Portugal passed a law adopting a three-mile

fishing limit but kept a six-mile neutrality zone while

Spain retained a six-mile fishing zone and adopted a three-

mile neutrality limit. Mexico also gave in to international

pressure--primarily from the United States after the Span-

ish-American War--and reduced its three-league limit to

three miles. Sweden and Norway, wishing to remain neutral

in World War I, relinquished their four-mile limits which

they found too difficult to defend.

As the power of the United States grew and as its

maritime strength increased, it recognized the advantages of

maintaining the three-mile limit. The United States now

wanted to keep as much of the ocean as possible free for

military and commercial navigation. Shortly after its

victory over Spain, it indicated its support of the three-

mile limit in several ways. In 1900 the United States

accepted a code of naval warfare which was based on the

three-mile limit. Then in 1901 prior to the building of the

Panama Canal, Britain and the United States concluded a

treaty in which they agreed to a three-mile limit off the

canal zone.6 The following year the United States declared

its support of the three-mile limit.

Prior to World War I the practice of settling disputes

through international arbitration gained in popularity. In

1899 the First Hague Peace Conference established the





70


Permanent Court of Arbitration. This Court handled many

disputes resulting in bilateral and multilateral arbitration

treaties. A number of these dealt with territorial sea

limits.

The controversy surrounding seal fishing in the Bering

Sea was settled by the Fur Seal Convention of 1911. The

earlier attempt to solve the problem of oceanic seal fishing

by the Bering Sea Arbitration of 1893 was unsuccessful. In

this Arbitration the use of certain seal fishing equipment

was forbidden. The United States interpreted this regula-

tion as allowing the seizure of ships and people who

possessed this equipment. The enforcement of this inter-

pretation led to a dispute with the British following the

American capture of Canadian sealing vessels. The Fur Seal

Convention of 1911--a multilateral convention between

Britain, Russia, Japan, and the United States--settled the

problem by establishing a seal conservation program based on

the three-mile limit. The signatory states agreed to pro-

hibit their subjects from killing, capturing, or pursuing

these animals beyond three miles of their territorial seas.

The seal herd was saved from extinction and within a few
8
years regained its population.

The North Atlantic fisheries dispute also involved

conservation of fisheries and the delimitation of territor-

ial juridiction. This dispute was based on the long stand-

ing rivalry of the United States and Britain over fishing

rights off the Canadian coast. By the Convention of 1818





71


the United States had to relinquish its rights "to take,

dry, or cure fish on or within three marine miles of any of
9
the coasts, bays, creeks or harbors. The Canadians

attempted to extend their jurisdiction beyond this area for

conservation of the fisheries. The Americans wanted to

expand the area in which they were allowed to fish. This

conflict of interest resulted in arrests, seizures of ships,

deteriorated relations between the states and several

attempted negotiations. Finally, in 1908, Britain and the

United States agreed to submit their dispute to the Hague

Permanent Court of Arbitration. Seven questions were sub-

mitted to the Tribunal. The first asked whether or not

Britain had the right in general to enforce conservation

regulations. Another central question was how the baselines

for the three-mile limit should be measured.

The Permanent Court decided in favor of Britain regu-

lating the fisheries for purposes of "protection and

preservation." Recognizing the need for international

cooperation in species conservation, the Court recommended

the creation of a Permanent Mixed Fishery Commission to

regulate conservation measures. The Court also recommended

that the United States and Britain pattern their delimita-

tion of bays after the North Seas Fisheries Convention which

used the ten-mile rule, drawing a straight line across the

bay at the point where the width exceeded ten miles. The

United States and Britain acted on these recommendations and





72


on July 20, 1912 signed an agreement on the Mixed Fisheries

Commission and the ten-mile rule for bays.10

Another dispute which was submitted to arbitration

concerned a treaty between the United States and Nicaragua.

Signed in 1914, the treaty gave the United States the right

to build a trans-oceanic canal through Nicaragua and to

establish a naval base on the Nicaraguan coast of the Gulf

of Fonseca which was surrounded by Nicaragua, Honduras and

El Salvador. Several Central American states objected to

the treaty. They argued that the Gulf of Fonseca was a

closed historical bay, owned jointly by the three states and

that any rights granted to other states had to be approved

by all the littoral states. Hoping to have the treaty

cancelled, Costa Rica and El Salvador asked the Central

American Court of Justice to determine the legal status of

the Gulf. The judges agreed that the Gulf of Fonesca was a

closed historical bay belonging to the three littoral states

each of which possessed a territorial sea of one league

(three miles) along its coastline. Outside the territorial

seas the three states held jurisdiction in common for cus-

toms and national security. Therefore the treaty between

the United States and Nicaragua--allowing United States

warships to be under exclusive United States control in the

Gulf--would infringe upon the rights of Honduras and El

Salvador.1

The Hague Peace Conference of 1907 instructed belliger-

ents "to respect the sovereign rights of neutral Powers and





73


to abstain in neutral territory or waters," from any "vio-

lation of neutrality. It did not define the limits of

these waters. Therefore with the advent of World War I,

states had to declare the limits they held for neutral

waters. In 1912, France, which had previously held a three-

mile fishing limit and a neutrality zone determined by

cannon-shot range, established a six-mile neutrality zone.13

Italy, in 1914, proclaimed a six-mile neutrality zone, and

in the same year Uruguay decreed a five-mile neutrality

zone.

Before World War I, when Russia was a weak maritime

state, primarily interested in fishing, it attempted to

extend its seaward jurisdiction from three to twelve miles.

The Russian Professor de Martens (1845-1909), who advocated

an extended territorial sea, based on increased cannon

range, was a government official in the late 19th century

and influenced Czarist opinion. Russian Foreign Minister

Sazanov on several occasions in the early 20th century

expressed his government's position that the territorial sea

is determined by the extent of control from land. Although

at this time cannon range was approximately twelve miles,

Russia in its weak position could never hope to enforce this

territorial limit against the maritime powers.

Just before World War I, Russia was able to increase

some aspects of its seaward jurisdiction while the major

maritime states were concerned with their own naval rival-

ries. In 1893 Britain and the United States agreed to a





74


ten-mile exclusive Russian fishing zone on the Pacific

Ocean. In 1907 Russia signed a treaty with Romania creating

a ten-mile exclusive fishing zone between the two states.

Then in 1909 Russia established a twelve-mile customs

jurisdiction. In 1911 it created a twelve-mile territorial

sea and fishing zone but only on the Pacific Ocean and not

on any European waters.

Then after Russia's defeat in World War I and its

subsequent revolution and civil war, it was even less able

to defend any seaward extensions. Nevertheless, the Soviet

government in 1927 decreed a twelve-mile territorial sea.

Since the Soviet Union did not have the naval capability to

enforce this limit, other states ignored its twelve-mile
14
decree and only recognized a three-mile territorial sea.4

*

The first international conference to deal with law of

the sea issues was the League of Nations Conference for the

Codification of International Law held at the Hague in 1930.

To determine the feasibility of this, the Sub-committee on

Territorial Waters in 1926 sent questionnaires to govern-

ments of League and non-League members. The governments

were asked whether they thought a codification convention on

territorial seas was possible and desirable. The members of

the Sub-committee drafting the questionnaire held divergent

views on the extent of territorial seas. Although the

questionnaire incorporated the three-mile limit--as proposed

by the American delegate, George W. Wickersham--the opposing





75


views were also included. The Chairman of the Sub-commit-

tee, Walter Schucking of Germany, believed that territorial

seas should be determined by the extent of cannon range; he

advocated a six-mile territorial sea with larger zones for

special purposes. Professor de Magalhaes of Portugal

recommended a twelve-mile territorial sea for all purposes.

The inclusion of these opposing opinions encouraged states

to re-evaluate their positions on territorial seas.5

The answers to the questionnaires indicated a willing-

ness to attempt the codification of laws of the sea.

Twenty-five states agreed that a convention on territorial

seas was possible and desirable. The four major maritime

powers--Great Britain, Germany, the United States, and

Japan--were among these. Only a few states disagreed:

France, Italy, and Poland replied that it was not the right

time for such a convention; Austria and Switzerland--both

land-locked--abstained; Spain objected to the provision of a
16
three-mile draft convention. Another question addressed

the possibility of states coming to an international

agreement on exploitation of sea products. The majority of

states agreed on the possibility: 22 states, including the

United States, France, and Italy, voted for a convention

dealing with this issue; six states, including Great Britain

and Japan voted against it; and Austria and Switzerland

abstained. As a result of these replies, the League of

Nations Assembly resolved that a conference on territorial





76


seas be held and provided for the establishment of a

Preparatory Committee to decide on areas of discussion.17

In order to identify the major law of the seas issues,

the Preparatory Committee requested states to submit their

views. Some of the issues which emerged were rights over

territorial waters, rights of coastal states to the air

above and the sea-bottom and subsoil covered by territorial

waters, breadth of territorial waters, determination of the

baselines, straits, and innocent passage. In answer to the

desirable limits of territorial seas and contiguous zones,

most states favored a three-mile territorial sea but some

preferred a wider margin; several states claimed special

jurisdiction zones of twelve miles. On the basis of these

replies, the Preparatory Committee drafted an agenda for

discussion. 18

The Conference convened at the Hague March 13, 1930,

with delegates from 48 states attending; nine non-League

members, including an observer from the Soviet Union par-

ticipated in the Conference. The diverse composition of the

Conference and the procedural rules made it unlikely that

the Conference would pass a law supporting a three-mile

territorial sea. Participating states included maritime and

coastal ones, and those established as a consequence of

World War I. The procedural rules stipulated that drafts in

committee were to be approved by a two-thirds majority,

while for the final vote in the plenary session only a

simple majority was needed. Although a majority of the





77


states supported the three-mile limit, not enough did so to

pass the two-thirds requirement in committee. Britain and

Japan completely rejected any extensions past three miles

while other states refused to accept a single territorial

zone for all purposes. Britain also objected to the

compromise solution of a three-mile territorial sea with a

twelve-mile contiguous zone.

These inflexible positions made negotiations difficult.

At the end of the Conference states maintained their oppos-

ing views. Because of the diversity of opinion, the Con-

ference decided that rather than to take a formal vote, it

would allow the states to announce their positions on terri-

torial sea limits. Thirty-seven states declared their

positions: ten (Union of South Africa, the United States,

Great Britain, Australia, Canada, China, Denmark, India,

Japan, and the Netherlands) were for a three-mile territor-

ial sea; two states (Greece and the Irish Free State) were

for a three-mile territorial sea but would accept an addi-

tional contiguous zone; seven states (Germany, Belgium,

Chile, Egypt, Estonia, France, and Poland) were for a three-

mile territorial sea only if there was also a contiguous

zone; four states (Iceland, Norway, Sweden, and Finland)

were for a four-mile territorial sea; six states (Colombia,

Italy, Romania, Uruguay, Yugoslavia, and Brazil) were for a

six-mile territorial sea; six other states (Cuba, Spain,

Latvia, Persia, Portugal, and Turkey) were Cor a six-mile





78


territorial sea with a contiguous zone; and two states

(Czechoslovakia and the Soviet Union) abstained.

Britain's refusal to accept any jurisdictional exten-

sion past three miles was the major factor in the Confer-

ence's failure to codify a territorial sea limit. The

German proposal--a three-mile territorial sea with nine

additional miles of adjacent zone--would probably have been

accepted as a compromise solution by a majority except for

British intransigence. Thus failing to agree on territorial

sea limits, the Conference recommended that another confer-

ence be convened to deal with territorial sea issues. How-

ever, one was never held.19

After the Hague Conference of 1930--and the obvious

inability of states to agree on a territorial sea limit--

more states began to criticize the three-mile territorial

sea and to extend their seaward jurisdiction through con-

tiguous zones.

*

Although the idea and use of the contiguous zone goes

back to the early eighteenth-century-British Hovering Acts,

the actual phrase was first used and popularized at the

Hague Conference. The term refers to the exercise of juris-

diction over ocean space adjacent to the territorial sea for

special purposes such as security, neutrality, sanitation,

customs, and fishing. By the time of the Hague Conference

many states had already extended their seaward jurisdiction





79


by creating special purpose zones and by concluding treaties

with other states toward this end.

United States actions during the Prohibition Era

(1920-33) greatly contributed to the international accep-

tance of contiguous zones. In attempts to curtail smuggl-

ing, the United States enacted several laws creating special

customs zones and concluded treaties with other states

establishing the distance within which the United States had

the right to search and detain any foreign vessels suspected

of smuggling alcoholic beverages.

In 1919 the United States adopted the Eighteenth Amend-

ment to the Constitution which prohibited the manufacture,

sale, or transportation of intoxicating liquors in the
20
United States and its territories. 2The United States then

faced the virtually impossible task of enforcing this amend-

ment. To curtail smuggling, it enacted several laws provid-

ing for the enforcement of the Eighteenth Amendment. The

first of these was the National Prohibition Act of 1919,

also known as the Volstead Act, which was supplemented by an

Act of November 23, 1921. The latter Act gave government

officials the authority to seize any boat or vehicle within

the territorial sea which illegally transported liquor.2

In February, 1922, an American coastal patrol four miles

from shore captured a British ship which had transferred its

cargo of liquor to a small boat to take to shore. The

owners of the ship sued for damages. A United States court

ruled that the participation of the ship's crew in the





80


delivery of the alcohol constituted the 'constructive

presence' of the mother ship in the territorial sea of the

United States and therefore denied the claims for damages.

The British protested the seizure of the ship in the

ill-defined contiguous waters. The United States then

passed the Tariff Act of 1922 extending the jurisdictional

area for the Volstead Act to 12 miles. This Act allowed

United States' officials to board and search any vessels

within 12 miles of shore and resulted in a large number of

seizures. In the fiscal year 1924-5 the following number of

foreign vessels were captured: British--28, French--4,

Honduran--2, Norwegian--2, Italian--1, Cuban--l, and Costa

Rican--i. These seizures aggravated United States relations

with the countries involved.

Another related source of antagonism between the United

States and other states was the United States Supreme Court

ruling (1923) forbidding foreign ships from entering United

States' territorial waters even with sealed alcoholic

beverages meant for passenger and crew consumption. This

ruling interfered with the laws of other states and their

rights on board their ships and was therefore criticized by

them. Then on June 12, 1923, the United States sent draft

treaties to Britain, Spain, Japan, France, and Italy propos-

ing ways by which United States officials could search ships

twelve miles from shore. Some interpreted this as part of a

United States plan to increase its territorial seas to

twelve miles.24 (Although at one time the British had
twelve miles. (Although at one time the British had






81


extended their customs jurisdiction beyond three miles, in

1876 they relinquished all claims beyond three miles and

became staunch supporters of an all-purpose three-mile

limit.) The British response was swift and definite;

British Foreign Secretary Lord Curzon declared: "There is

no chance of our agreeing in any circumstances whatever to

the American proposal for a twelve-mile territorial

limit."25

Thus negotiations to reach a compromise solution be-

tween Britain and the United States became necessary and

resulted in the Anglo-American Treaty of 1924. The first

article of the Treaty confirmed both states' adherence to a

three-mile territorial sea. The British agreed to the right

of United States officials to board, search, and seize

vessels suspected of violating American customs law but only

within the distance in which the suspected vessels could

travel in one hour. The United States agreed to permit

foreign ships to enter American territorial waters with

alcoholic beverages for passenger and crew consumption if

the alcohol was kept sealed while the ship was in American

territorial waters.

Between 1924 and 1930 the United States concluded

similar treaties with France, Germany, Italy, Norway,

Sweden, Denmark, Holland, Spain, Belgium, Poland, Greece,

Cuba, Chile. Panama, and Japan. And thus a new method of

determining the limit of seaward jurisdiction emerged based





82


upon the speed capability of a ship and therefore necessar-

ily variable.26

Several United States Supreme Court rulings upheld the

legality of the Anglo-American Treaty of 1924. In 1927 the

United States Supreme Court interpreted the treaty to mean

that it was legal for the United States to prosecute the

persons seized on an offending ship outside American terri-

torial waters for conspiracy to commit illegal importation.

Another Supreme Court decision further defined the American

interpretation of the treaty. In Cook v. United States

(1933) it ruled that the seizure eleven-and-one-half miles

from shore of a ship which was only capable of ten knots was

illegal and that the Tariff Act of 1922 which provided for a

twelve-mile customs zone was superceded by the Anglo-Ameri-

can Treaty which substituted a varying limit dependent upon

the ship involved.27

The repeal of Prohibition by the Twenty-first Amendment

in 1933 did not result in a decrease of American customs

jurisdiction over other taxable goods. In 1934 a United

States District Court ruled that the end of Prohibition did

not end the right of the United States to search ships under

the Anglo-American Treaty. The Anti-Smuggling Act of 1935

even increased United States jurisdiction in the high seas
28
for customs purposes.

This Act provided for the establishment of a customs-

enforcement area--a changing zone which could be declared by

the President whenever smuggling vessels were detected





83


outside American territorial seas. The customs-enforcement

area could extend to 100 miles from where the President said

the offending vessels were hovering but not more than
29
50 miles from the customs zone.

Once again the British protested the seaward extension

of American jurisdiction over the high seas. In a semi-

official communication the British government expressed

concern that

in cases where there is no treaty or arrangement
between the United States and the appropriate
foreign government the ordinary rules of interna-
tional law must apply, and the United States
cannot be held in international law to have the
right, by virtue of municipal legislation, to
extend beyond the three mile limit, as is done in
the present bill, the area within which jurisdic-
tion may be exercised over foreign vessels. In
the view of His Majesty's Government such exten-
sion could only be recognized whe% agreed upon by
means of an international treaty.

Despite the British communication, the United States

established five customs-enforcement areas all in 1935.

During this time sixteen ships were captured. Fifteen of

these seizures were upheld by international law--the ships

were either American-registered or within a twelve-mile

limit. Even though the other ship was a British-flag ship

seized between 15 and 36 miles from the coast, the British

did not protest the seizure.31

During the inter-war years, many other states extended

their jurisdiction over their contiguous high seas for

various purposes such as customs, fishing, security, and

sanitation. One of the most disputed cases concerned

Norway's extension of its territorial seas to protect its





84


fisheries. In 1935 Norway issued the Royal Norwegian Decree

of July 12 which re-drew the baselines from which its

territorial sea was determined; the new baselines were drawn

around the fjords. The Norwegian territorial sea was de-

limited four miles seaward of these baselines while the

waters landward from the baselines were considered internal

waters. The new baselines allowed Norway to claim parts of

the sea up to twenty miles from land as internal or terri-

torial waters and in this way excluded foreign fishermen

from these areas. Britain vigorously protested this

extension but nothing was resolved until after World War II.

Other states extended their claim from five miles to

one-hour sailing distance with twelve miles the most common

claim for contiguous zones. Five states even extended their

territorial seas beyond three miles: Bulgaria (1935) to six

miles; Greece (1936) to six miles; Honduras (1936) to twelve

miles; Iran (1934) to six miles; and Romania (1934) to six

miles. Among the states which established twelve-mile con-

tiguous zones for various purposes were: China (1934) for

customs; Czechoslovakia (1936) for anti-smuggling; Denmark

(1935) for anti-smuggling; El Salvador (1933) for police and

security; Guatamala (1939) for port authority jurisdiction;

Hungary (1932) for anti-smuggling, Iran (1934) for marine

supervision zone; Italy (1940) for customs; Poland for

(1933) customs; USSR (1935) for sovereignty over air space

of maritime territorial belt; and Venezuela (1939) for se-

curity, customs and sanitation.32





85


*

One of the earliest direct effects of World War II on

the development of law of the sea was the extension of neu-

trality and security zones by non-belligerents. The first

such effort grew out of the Meeting of the Foreign Ministers

of the American Republics held in Panama in September and

October, 1939. On October 3, representatives of twenty-one

American states, acting on the proposal made by the United

States, adopted the "Declaration of Panama."

This resolution confirmed the neutral status of the

American states and extended their security zones on a

continental basis but excluded Canada and other European

possessions and colonies. The purpose of the Declaration

was to protect the neutrals' rights by creating "a zone of

security including all the normal maritime routes of com-

munication and trade between the countries of America."

Therefore, these states resolved and declared that

as a measure of continental self-protection, the
American Republics, so long as they maintain their
neutrality, are as of inherent right entitled to
have those waters adjacent to the American conti-
nent, which they regard as of primary concern and
direct utility in their relations, free from the
commission of any hostile act by any non-American
belligerent nation, whether such hostile act be
attempted or made from land, sea or air.

These neutral waters were designated by navigational

lines beginning at the Maine-New Brunswick border, going

south around Cape Horn, and ending at the Washington-British
34
Columbia border.34 The width of this neutrality belt varied

usually from 500 to 900 miles but even extended as far as





86


1200 miles at some points off the coasts of Chile and
35
Peru. The Declaration also made provisions for collective

action by the American Republics to obtain support for and

secure observance of the neutrality belt by the belliger-

ents, and to patrol the area for offenders.36

Although neutral states often had wanted to restrict

the activities of belligerents in their adjacent waters

outside their territorial seas, the Panama Declaration set a

precedent concerning the relations between neutral and

belligerent states. The response of the major belligerents

to the Declaration was generally uniform.37 Most agreed

with the British who stated that the Declaration was not to

be understood as extending the American territorial seas

beyond three miles. On three occasions--December 23, 1939,

March 16, and May 24, 1940--the American Republics sent

joint notes to the European belligerents protesting their
S38
hostile activities within the proclaimed security zone.38

The British replied to the first note that because the

belligerents' legitimate rights were affected by the Declar-

ation their consent was necessary for the legal maintenance

of the security zone. Furthermore, the British stated that

they would not be able to accept the security zone unless

they were certain that this zone would not serve as a sanc-

tuary for German warships and supply ships or otherwise aid

the German war effort. Since this precondition for accep-

tance of the security zone could not be met, the British

stated that they did not intend to comply with the Panama





87


Declaration and would continue to maintain their full
39
belligerent rights. With no basis in international law,

and lacking support of the belligerents, the Declaration was

largely ignored. The American Republics remained unable to

regulate hostile activity in the waters adjacent to their

territorial seas.

The importance of the Panama Declaration lies in the

attention it brought to the possibility of neutral states

extending their neutrality zones beyond their territorial

seas during times of war. In such a case, the neutral state

would have to be able to enforce its claims since the bel-

ligerent states would be unlikely to willingly give up areas
40
of hostile operations.0

According to the Hague Convention of 1907, a neutral

state was required to allow the use of its harbors to bel-

ligerent powers impartially as long as the belligerents did

not violate the right of innocent passage. Despite this

Convention, in the early part of World War II while the

United States was still neutral, President Roosevelt invoked

the Act of March 4, 1917, to create "defensive sea areas" by

executive order for "purposes of national defense." Between

May 1939 and November 1942 thirty-four naval defense areas
41
were established.1 Within these areas and the air space

above them, foreign persons and vessels were prohibited

entry unless authorized by the Secretary of the Navy. Even

though most of the restricted zones corresponded to the





88


three-mile territorial sea, the right of innocent passage

was not allowed.

On entering the War, the United States established

"maritime control areas" outside its three-mile territorial

sea on the high seas. Between December 1941 and November

1942, on the grounds of national defense, President Roose-

velt (through six proclamations) created 17 such areas
42
varying in seaward extensions. The proclamations for-

bade any vessel not under United States naval or other

supervision to enter the area "except during daylight, when

good visability conditions prevail and then only after

specific permission has been obtained." Additionally any

vessel entering the area was required to obey any further

instructions from United States authorities. With the end

of the war these maritime control areas were repealed by the

proclamations of September 1945 and May 1946.43
*

These increasing jurisdictional claims marked the

beginning of a period of instability in ocean law. From the

turn of the century to the onset of World War II, states

generally maintained a three-mile territorial sea. Never-

theless, they continued to extend their jurisdictional con-

trol seaward through the creation of contiguous zones for

special purposes and of varying distances. For customs

enforcement, the United States made claims more extensive

than any other state. The creation of these special zones

added a new complexity to the search for consensus on law of





89


the sea. It was no longer a matter of only a regime for

territorial and high seas, but of an increasing number of

jurisdictional issues. In an effort to reach agreement on

these issues, the Hague Conference was the first

international forum to attempt codification of law of the

sea. It was unsuccessful. Adding to this instability,

Britain's power and therefore its ability to influence law

of the sea was diminishing relative to other states.



Notes

1. Sayre A. Swartztrauber, The Three-Mile Limit of the
Territorial Seas (Annapolis: Naval Institute Press,
1972), p. 110.

2.
Comparative Naval Strengths of Selected States in 1914
Capital Ships Total (Major
and Major Warships
Battle Warships under
State Cruisers Cruisers Construction)
Great Britain 72 120 192 19
Germany 39 50 89 16
United States 35 32 67 4
France 25 27 52 8
Japan 20 21 41 6
Italy 11 17 28 5
Russia 9 14 23 17

Ibid., p. 108.

3.
World's Merchant Ships of 100 Tons or More in 1914

States Where Owned Steam Sail Total
United Kingdom 18,892 364 19,256
British Dominions 1,632 157 1,789
Empire Total 20,524 521 21,045
Germany 5,135 325 5,460
United States 4,330 1,038 5,368
Norway 1,951 547 2,504
France 1,922 397 2,319
Japan 1,708 --- 1,708
Italy 1,430 238 1,668
Netherlands 1,472 25 1,497




Full Text
xml version 1.0 encoding UTF-8
REPORT xmlns http:www.fcla.edudlsmddaitss xmlns:xsi http:www.w3.org2001XMLSchema-instance xsi:schemaLocation http:www.fcla.edudlsmddaitssdaitssReport.xsd
INGEST IEID ET05GL68L_KAN34E INGEST_TIME 2015-01-09T20:54:09Z PACKAGE AA00026586_00001
AGREEMENT_INFO ACCOUNT UF PROJECT UFDC
FILES



PAGE 1

THE SEA AND WORLD ORDER: THE SEARCH FOR CONSENSUS BY VALENTINA NIKOLAEVNA MAIEWSKIJ A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 1983

PAGE 2

!/ 4 5 Copyright 1983 by Valentina Nikolaevna Maiewskij

PAGE 3

This dissertation is dedicated to my mother, Julia Petrovna Maiewskij and to the memory of my father, Nikolai Mikhailovich Maiewskij (1902-1982)

PAGE 4

ACKNOWLEDGEMENTS I am indebted to many people for their help, encouragement, and support. The Chairperson of my Committee, Professor William Woodruff, conscientiously read and criticized my dissertation at its various stages. I am grateful for the suggestions and insights he offered as well as his encouragement; all of these were invaluable to the writing of this dissertation. Mrs. Helga Woodruff generously gave of her time to read carefully and comment thoughtfully upon the first draft and subsequent revisions; for this and her encouragement I thank her. I am indebted to my Committee members — Neill Macaulay, Harry Paul, Eldon Turner, Roger Blair — for their suggestions. I would like to thank Professor Thomas Clingan, of the University of Miami and delegate to UNCLOS III, for granting me numerous and informative interviews. Many others have aided in the completion of thi dissertation. I appreciate the help of the following people: Ann Hanson of the University of Florida Library; Andy B. Parmenter, Staff Attorney of Student Legal Services; Katherine B. Williams (d/b/a Professional Typing); and James T. McKay and Mary Ellen Warren. I am especially grateful to my parents. From the beginning, they instilled in me a love s IV

PAGE 5

of learning and a determination to further my education. Throughout my graduate studies they gave me both financial and moral support. Their respect for scholarship and their personal encouragement of my efforts caused me to begin this endeavor and sustained me through its duration. And finally, the person to whom I am the most indebted is my husband, Fred J. Hay. His unwavering belief in my ability to finish this dissertation was a constant source of encouragement and comfort. Not only did he cheerfully tolerate the disturbances caused by such a project but he generously offered assistance at every level from the menial to the intellectual. v

PAGE 6

TABLE OF CONTENTS Page ACKNOWLEDGEMENTS iv DETAILED TABLE OF CONTENTS vii ABSTRACT x INTRODUCTION 1 CHAPTER ONE: EARLY THEORETICAL BACKGROUND 5 Notes 36 CHAPTER TWO: GROWING INTERNATIONAL ACCEPTANCE OF THE THREE-MILE TERRITORIAL LIMIT 39 Notes 61 CHAPTER THREE: 1900 TO WORLD WAR II 65 Notes 8 9 CHAPTER FOUR: FROM THE TRUMAN PROCLAMATION TO UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA II 93 Notes 134 CHAPTER FIVE: FROM UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA II TO UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA III 140 Notes 199 CHAPTER SIX: UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA III: 1973-1982 218 Notes 264 CONCLUSION 289 GLOSSARY 301 BIBLIOGRAPHY 303 BIOGRAPHICAL SKETCH 327 VI

PAGE 7

DETAILED TABLE OF CONTENTS Page INTRODUCTION 1 CHAPTER ONE: EARLY THEORETICAL BACKGROUND 5 1. Attempts to maintain closed seas 5 2. Freedom of the Seas 15 3. Territorial Seas 22 4. Summation 34 5. Notes 36 CHAPTER TWO: GROWING INTERNATIONAL ACCEPTANCE OF THE THREE-MILE TERRITORIAL LIMIT 3 9 1. Three-Mile Limit 39 2. Attempts to maintain other limits 56 3. Summation 6 4. Notes 61 CHAPTER THREE: 1900 TO WORLD WAR II 65 1. Three-Mile Limit 65 2. Hague Conference (1930) 74 3. Contiguous Zones 78 4. Extension of neutrality and security zones 85 5. Summation 8 8 6. Notes 89 CHAPTER FOUR: FROM THE TRUMAN PROCLAMATION TO UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA II 93 1. Overview 93 2. Truman Proclamation 94 3. Reaction of other states to the Truman Proclamations 104 4. Development of the Soviet Union position Ill 5. Background work of the International Law Commission 114 6. United Nations Conference on the Law of the Sea I 118 7. United Nations Conference on the Law of the Sea II 127 8. Results of United Nations Conference on the Law of the Sea I and II 132 9. Summation 133 10. Notes 134 VII

PAGE 8

Pa g e CHAPTER FIVE: FROM UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA II TO UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA III 140 1. Proliferation of jurisdictional claims 140 2. Increase in non-traditional uses of the sea 144 -3. Fisheries 150 4. Increasing military importance of the oceans 153 5. United States-Soviet Union concern with instability in ocean law 156 6. Manganese nodules 15 7 7. United Nations preparatory work for United Nations Conference on the Law of the Sea III 159 8. End of first phase of preparatory work 178 9. New responsibility of the Sea-Bed Committee 179 10. Sub-Committee on the sea-bed regime ..... 181 11. Sub-Committee on offshore jurisdictional issues 187 12. Sub-Committee on marine scientific research and the marine environment 193 13. Emerging interest blocs in negotiations 194 14. Summation 197 15. Notes 199 CHAPTER SIX: UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA III: 1973-1982 218 1. Overview 218 2. Opening of Conference ..... 219 3. 1974 sessions 221 a. Plenary ..... 221 b. Committee on the sea-bed regime 224 c. Committee on offshore jurisdictional issues ..... 226 -~d. Committee on the marine environment and scientific research 230 4. 1975 sessions 232 a. Committee on the sea-bed regime 233 b. Committee on offshore jurisdictional issues 233 c. Committee on the marine environment and scientific research ..... 236 5. The Informal Single Negotiating Text .... 238 6. 1976 sessions 238 a. Committee on the sea-bed regime ..... 239 b. Committee on offshore jurisdictional issues ..... 240 c. Committee on the marine environment and scientific research 242 d. Accomplishments of first phase of negotiations 243 vm

PAGE 9

Page 7. 1977 sessions 243 8. 1978 sessions 248 9. 1979 sessions 250 10. 1980 sessions 252 11. 1981 sessions 254 12. 1982 sessions 260 13. Summation 262 14. Notes 264 CONCLUSION 289 IX

PAGE 10

Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy THE SEA AND WORLD ORDER: THE SEARCH FOR CONSENSUS By VALENTINA NIKOLAEVNA MAIEWSKIJ April, 1983 Chairman: William Woodruff Major Department: History The attempt to attain an international consensus on law of the sea is a recent phenomenon. Throughout history, power politics has determined law of the sea. Although still a major influence, it is no longer the primary factor. In the past, states claimed as much of the seas as they could. When Britain became the major power, it enforced a three-mile territorial sea with freedom of fishing and navigation in the rest of the oceans. British power — not general international agreement—maintained this legal regime Following the World Wars and subsequent changes in the power structure, no one state was able to determine and enforce law of the sea. Instead, states unilaterally claimed jurisdiction over the sea. As claims proliferated,

PAGE 11

instability increased. States sought a stable legal regime for economic exploitation and military use of the oceans. The United Nations Conference on the Law of the Sea III (UNCLOS III) convened not only to codify law of the sea but to create new laws based upon an equitable and rational system. The Conference, reflecting democratization of international relations, attempted to reach consensus of all states on all related issues. Although it succeeded in writing a Treaty based upon a moral vision of state equality, the United States rejected this endeavor. In so doing, it attempted to re-establish the primacy of power politics in the determination of law of the sea. Despite the reemergence of power politics, the attempt by UNCLOS III to write a constitution for the seas based upon consensus is significant and will undoubtedly have far-reaching implications for law of the sea and international relations. This dissertation examines the search for consensus in international sea policy in UNCLOS III. The Conference's historical antecedents are outlined and important developmental trends are emphasized. Shifts in a state's international sea policy are seen as part of the total world situation and as a function of the change in the state's power relative to that of others. An analysis of the important law of the sea issues is used to describe the thematic configuration and the underlying principles. XI

PAGE 12

INTRODUCTION Until the recent attempt by the United Nations to create a constitution of the seas based upon a consensus of virtually all nations of the world, law of the sea developed from customary law, based upon unilateral state action, and treaty law agreed upon by several states. Rather than creating a new legal and political order, these laws and treaties legitimized the accomplished political fact of states' control over part of the ocean or states' rights of access to the seas. Law of the sea, by its nature, has always been in a state of flux. It has reflected changes in man's ability to exploit the oceans, in states' perceptions of their economic and security needs regarding the oceans, and in the world power balance. The oceans are a vital component of the earth's ecological balance. They provide 70% of the earth's oxygen supply, cover 70% of the earth's surface, hold 80% of the animal life, and are the major determinant in the earth's weather and climate systems. The oceans are also a valuable economic resource. They provide a vast commercial and military transportation network. Over 95% of international trade is now carried on the oceans. As international trade increases — especially in

PAGE 13

vital energy resources — so does the importance of oceanic transportation which is expected to quadruple by the year 2000. The oceanic fishing industry supplies an annual 75 million metric ton catch accounting for 10% of the world's consumed protein and was valued in 1980 at $10 billion. Marine plants are farmed increasingly for food, chemicals, and dyes. Mining of offshore resources provides 20% of the world's oil and 6% of its gas. Present estimates--set at approximately 2.3 trillion barrels of oilindicate that petroleum reserves in exploitable regions of the oceans are greater than those on land. Although oil and gas represent 90% of the oceanic mineral yield today, many other minerals and metals are mined from the oceans, including coal, iron, tin, limestone, sulphur, barium ore, sand, gravel, sodium, magnesium, zinc, uranium, molybdenum, calcium, chlorine, and bromine. Commercial mining of sea-bed manganese nodules (containing over twenty different minerals but commercially important today for manganese, nickel, copper and cobalt) is expected to begin during the next decade. The value of these metals is difficult to estimate, but it is thought to be in the region of several trillion dollars. The economic importance of the oceans is already enormous, and undoubtedly will grow in the future. Yet, it is only recently that oceans have come to be considered as enormous resource mines. The change in outlook has come about because of the growing scarcity of resources relative to world demand; because of technological

PAGE 14

advances, which have improved man's ability to exploit the sea; and because of changes in naval strategy and tactics undertaken by the great powers. Today, as the exploitation of living and non-living resources has intensified and become economically more valuable, oceans have shifted to the center of world affairs. As nations now look upon the ocean resources as exhaustible and ocean space to be in need of regulation, past perceptions of the nature of the seas no longer prevail. It is this thinking which caused many coastal states in the mid-twentieth century to pass unilateral legislation expanding their jurisdiction over their adjacent waters and resources. Often these claims conflicted with each other and with the traditional freedom of the seas which for the past several centuries has been thought necessary for commercial and military navigation. Because of the growing instability in the legal regime governing ocean use, and the subsequent threat posed to global communication and transportation, a new legal order governing all aspects of ocean use, and defining the rights and regulations of states in the different types of ocean space, has become necessary. The Third United Nations Conference on the Law of the Sea (UNCLOS III) convened in 1973 to address this need. It concluded its negotiations for a virtual constitution for the seas in the Spring of 1982. The completed treaty, if ratified by the requisite number of individual states, will become international law.

PAGE 15

UNCLOS III is important not only because of the Convention it produced but also because of its nature. It is the largest and most representative international law-making effort ever to take place. Its task has been especially difficult because of the vast range of geographic, political, economic, and ideological interests represented by the 156 states involved in these negotiations. The basic divisions have been between the industrialized and the developing states, and between the states with and without maritime interests. Despite their ideological and political differences, the United States and the Soviet Union share many economic and military concerns and so have worked toward acceptance of similar provisions. In this study, I intend to investigate the changing way in which states have attempted to reach consensus on law of the sea. I will summarize the history of law of the sea up to the UNCLOS III. Next I will consider the development of the negotiations in the Conference — especially the more important issues of the deep sea-bed mining regime, the offshore jurisdictional issues of the territorial sea, straits passage, and the exclusive economic zone, and the other issues of scientific research and the marine environment. I will also discuss the different interest groups' cooperation in this attempt to reach consensus.

PAGE 16

CHAPTER ONE EARLY THEORETICAL BACKGROUND In earlier times, states did not attempt to reach consensus on law of the sea. It was power rather than accepted international legal principles that determined the extent of a state's jurisdiction over its adjacent waters. A state would generally claim as much of the seas as it could successfully control and defend against others. After the actual act of appropriation, civilian legal theorists would introduce principles of law justifying the state's increased jurisdiction. The earliest formal statement defining the legal status of the oceans and the rights people possessed therein was made by the Roman jurist Marcianus in the second century A.D. He stated that the sea and the coasts are common to all men and that all men hold a common right to the free use of the seas and its products. This pronouncement was codified in the Justinian Institutes in 529 A.D. and in the Justinian Digest in 534 A.D. Since in practice the Roman Empire exercised sovereignty over the Mediterranean, it is generally accepted that this doctrine applied to the rights of individual members of the Roman Empire rather than to

PAGE 17

those of states in an international community. In contrast to the view of Marcianus, jurisdiction over the seas was gradually thought of as based upon naval supremacy rather than the right of common use based upon a growing body of international law. Whatever the basis of ocean rights, there could be no denying that control of the seas increasingly enabled a state to bolster its economic, military, and commercial strength in the world. As the seas became more important as a source of food and as a network for military and commercial transportation — especially with the expansion of maritime commerce in the Middle Ages — competition among states for sovereignty over the oceans increased. Thirteenth-century Venice, whose vessels dominated the Mediterranean and Middle Eastern trade routes to the East, claimed the entire Adriatic Sea even though it did not control both shores. From 1269 to the seventeenth century Venice demanded tributes from foreign ships and reserved the right to prevent their travel on these waters. Because other European powers and the Pope recognized the Venetian claim, its sovereignty over the Adriatic Sea became rooted in custom and treaty, and outlasted its ability to maintain 2 control by force. After Venice had established its control, jurists developed theoretical justifications for this extension of seaward jurisdiction. Bartolus de Sassofe,rrato (1314-1357), an Italian jurist, wrote a treatise defending the right of a

PAGE 18

state to extend its jurisdiction to include offshore islands within a 'moderate' distance from its shore. He defined this distance as 100 miles and maintained that the state has sovereign rights over this area. Later this argument was used to claim control over adjacent seas even though no offshore islands existed. Another legal writer and former student of Bartolus, Baldus de Ubaldis (1327-1400) agreed on the need for and legality of a wide territorial sea but thought it should be limited to 60 miles. Other Mediterranean powers also claimed their adjacent seas through force and then rationalized their appropriation on the basis of these legal theories. Following the Venetian example, the Republic of Genoa claimed sovereignty over the Ligurian Sea. As late as the seventeenth century, the Supreme Court of Piedmont, basing its decision on the writings of Bartolus and Baldus, condoned the capture of a Spanish ship by the Genoese in the Ligurian Sea fifty miles from shore and thus legitimized the Genoese seaward exten3 sion. Various states of northern and western Europe also claimed and fought over possession of the seas. From the eleventh century Denmark, Sweden, and later Poland disputed control of the Baltic Sea and eventually shared possession of it. Denmark took the Sound and the Belts while Sweden ruled over the Gulf of Bothnia. On the grounds that they controlled the opposite shores and therefore held sovereignty over the intervening seas, Norway and later Denmark

PAGE 19

claimed the northern seas between Norway and the Shetland Isles, Iceland, Greenland, and Spitzbergen. Following several wars over the Scandinavian Seas, treaties were concluded concerning the rights of fishing, trading, and navigation in these waters. As might be expected, the weaker states could not and did not attempt to make claims over their adjacent seas. Since England--because of Dutch, Spanish, and French competition — could not maintain exclusive rights to its surrounding seas, it naturally supported a policy of freedom of fishing and navigation. In this way it was able to ensure access to the seas. In 1351 Edward III signed a treaty with the King of Castile providing for "liberty of fishing." In 140 3 Henry IV entered into an agreement with the King of France to guarantee freedom of fishing in the Narrow Seas. Also at this time, in order to avoid disputes over ocean areas, England did not specify its sea boundaries but deliberately left them vague. This allowed England flexibility to extend or curtail its area depending upon its naval strength. The attempt to maintain closed seas did in fact reach its apex in the fifteenth century when Spain and Portugal divided the oceans of the world between them on the basis of several papal bulls and the Treaty of Tordesillas. After Portugal had explored the west coast of Africa, Pope Nicholas V showed his appreciation of the Portuguese efforts to convert the heathens by granting the Portuguese exclusive

PAGE 20

and permanent rights to Africa. The Spanish exploration of America was similarly rewarded by Pope Alexander VI who had extremely close ties to Spain. In 1493 Pope Alexander VI issued several bulls confirming Spanish claims to the recently discovered islands and lands 100 leagues west of the Azores and Cape Verde. He forbade anyone not granted permission by Spain to travel west of this line. Portugal, however, unhappy with a division that interfered with its ability to navigate around its island territories, opened negotiations with Spain to move the dividing line further west. In return for Portuguese recognition of its American claims, Spain agreed to Portugal's request. The outcome of their negotiations was the Treaty of Tordesillas concluded between Spain and Portugal on June 7, 1494 and ratified that September. This treaty divided the New World between the two states along a longitudinal line 370 leagues west of the Cape Verde Islands, or approximately 45 west longitude, with Spain taking the land west of the line and Portugal the land east of it. The important point here is that each country claimed exclusive navigational rights within its respective territorial area. However, since Spanish ships had to travel through Portuguese waters to reach their American territory, they were allowed this passage as long as they travelled by the most direct route. Basing their claims to the seas and to neighboring territory upon this treaty, the Portuguese and Spanish continued their world exploration and colonization (the

PAGE 21

10 Portuguese in Africa, Persia, India, the East Indies, and Brazil and the Spanish in North, South, and Central America 7 and the West Indies) In 1506 Pope Julius II issued a bull approving and confirming the Treaty of Tordesillas and commanding all Christian princes to observe it. Yet this division of the world, though sanctioned by the Pope, was not accepted by other states in Western Europe. By the 16th century the French, English, and Dutch, having entered into world-wide commercial competition, challenged the Iberian claim of control of the seas and of trade monopolies. Although, in theory, the Portuguese and Spanish continued to deny the other Western powers access to the oceans of the world, in practice, the emerging non-Iberian western trading nations persisted in navigating on the so-called 'closed seas.' Inevitably, hostilities broke out between these two groups. The ensuing political, economic, and military struggle is reflected in the legal arguments that emerged concerning a nation's right of access to the seas. A significant and ironic note about the growing legal battle between the Iberians and the other Europeans concerning free use of the seas is that it was professed by the work of a Spanish theologian and lawyer, Francisco Vitoria (1480-1546), one of Spain's most distinguished 16th century publicists. Writing in 1532, Vitoria questioned the right cf the Pope to grant the New World empire to the Iberians. He challenged the Spanish Emperor's right to take lands

PAGE 22

11 already held by the Indians, and to exert temporal authority over them. On the right of a nation to use the seas, he argued that this was a right possessed by all. It was a common right that could not be prohibited. The right claimed by Spain to travel to the New World had to be extended to all. Later, when protesting the Iberian claims of sovereignty over the high seas, Grotius would invoke 9 Vitoria as an authority to bolster his own position. Regardless of Spanish claims, throughout the sixteenth century the French refused to be excluded from navigation and trade on the basis of the Treaty of Tordesillas and the papal bulls. The differences between the two powers intensified when the French tried to establish a colony in Florida, and began attacking Spanish treasure ships and settlements in the West Indies. In 1544 Spain and France made an effort at compromise by concluding a treaty which allowed the French to travel to the West Indies for trade but not for colonization. The French continued to attack and plunder the West Indies. One could almost expect that France's determination to use the seas would find support among French writers — and it did. One of the most important of these was the French legal publicist, Jean Bodin (1530-1596) who in 1576 published a treatise entitled De Republic which denied the legality of the Iberian claims. Bodin declared that the legal oceanir. limit over which a state could claim

PAGE 23

12 sovereignty was 60 miles from its coast. To support this position he referred to the writing of Baldus The English were not far behind the French in resisting Iberian claims to the oceans of the world. With Queen Elizabeth's encouragement, British ships increasingly sailed forth in pursuit of lucrative markets, and Spanish loot. Tensions between Spain and England grew until formal war broke out in 1585 when Philip of Spain seized and declared an embargo on Dutch and English ships in Spanish and Portuguese harbors. The subsequent British defeat of the Spanish Armada in 15 8 8 marked the turning point in the struggle for mastery of the seas. Henceforth, Spanish sea power waned I 9 while British power rose. As the Spanish lost control over the Atlantic Ocean and thus over North America, the French, British, and Dutch attempted to replace Spanish influence with their own. In the Treaty of the Hague (1596), the Netherlands, England, and France formed a league against Spain with the express purpose of further diminishing Spain's dominion. A few years later England and the Netherlands again cooperated in the Treaty of Westminster (15 98) in which they attempted to lay the groundwork for an Anglo-Dutch co-ownership of the seas. Some of Queen Elizabeth's advisors, foreseeing the Anglo-Dutch wars of the 17th century, opposed this plan. As with the French and the Dutch, so with the British, in the late sixteenth and early seventeenth centuries, when

PAGE 24

13 freedom of the seas became of greater consequence to them, English legal publicists began to develop international laws of the seas. The first of these writings were by Alberico Gentili (1552-1608) an Italian lawyer who fled to England and there established a reputation as a teacher and jurist. In 1605 Gentili was appointed a counsel for Spain before the English Court of Admiralty from which position he wrote Pleas of a Spanish Advocate In this work he began with the premise of freedom of the seas but imposed many restrictions on the freedom — some of which supported British claims. He defended England's claim to its adjacent seas on the basis of the writings of Bartolus who had upheld the legality of a 100 mile wide territorial sea. Although Gentili considered the high seas to be held in common, he claimed that the King of England had jurisdiction over wide expanses of the sea for special purposes such as taking measures against pi14 rates, privateers, and others. 15 The Netherlands, the other emerging maritime power at this time, also made a concentrated effort to seize control of the sea lanes and markets of the world. Its effort was inadvertently aided by the Spanish. In 15 8 — the year before Holland declared its independence from the Spanish — the Spanish annexed Portugal, and in 1599 closed the Port of Lisbon. In doing so they left many of the Portuguese markets vulnerable to Dutch encroachment. By 1598 the Dutch were in control of Mauritius in the Indian Ocean; a few years later they controlled Java and the Moluccas. In 1602

PAGE 25

14 they created the Dutch East Indies Company, and greatly enlarged their merchant marine and navy to protect the Company. As the Company tried to increase its trade in the East Indies, the Portuguese, under Spanish rule, responded with armed resistance and invoked the authority of the papal bull of 1493 to exclude other traders from the Indian Ocean. Despite Spanish threats and protest, the Dutch continued their commercial expansion in the East. This resulted in the extension of semi-official hostilities between the Dutch and the Spanish (and Portuguese) from Europe to the Far East. As this conflict intensified, the States General of the United Provinces gave the Dutch trading companies the authority to defend themselves against attack, and later the right to seize the Portuguese vessels and cargo. In 1603 the Portuguese carrack Catherine was seized by Jacob Heemskerk for Amsterdam shipowners. This action resulted in a hearing to determine the legality of the seizure. It was judged to be legal, and the proceeds from the captured ship were awarded primarily to the Dutch East Indies Company; additionally, the Dutch government rewarded the Company for its actions by granting it a monopoly of the East Indian trade. Some of the Company's shareholders (mainly those of the Mennonite sect) criticized the government's action in condoning the taking of ships.

PAGE 26

15 At this time there appeared the writings of the Dutchman Hugo Grotius (1583-1645) who is generally regarded as the originator of the concept of freedom of the seas. Grotius, having been the Company's advocate in the Prize Court hearing, is thought to have written the Commentary on the Law of Prize and Booty (De lure Praeda) at the direction of the Dutch East Indies Company. With the Company's victory assured, a written defense was thought unnecessary. As a result Grotius never published this work in its entirety. Instead, he revised and published Chapter XII of the Commentary anonymously. It appeared in 160 9 under the title of Mare Liberum His specific purpose in writing Mare Liberum was to support the right of the Dutch to navigate the high seas and engage in the profitable East Indian trade. From the Company's point of view, its importance was enhanced by the fact that it appeared at a time when DutchSpanish-Portuguese negotiations were taking place. The Company's fear was that their countrymen's desire for peace 17 might lead them to concede their right to sail the seas. Mare Liberum appeared in the form of an appellate brief in which Grotius made the following arguments: 1) The law of nations allows all nations freedom of navigation and communication with each other. 2) The Portuguese do not possess exclusive sovereignty over the East Indies by right of discovery, papal donation, or war. 3) The Portuguese do not possess the sea or the exclusive right of navigation

PAGE 27

16 through occupation, papal donation, or custom. 4) The law of nations allows all nations to trade with one another. 5) The Portuguese do not possess exclusive trade privileges with the East Indies by right of occupation, papal donation, or custom. 6) The Portuguese claim to exclusive trade privileges has no basis in equity and the Dutch must keep their right to trade with the East Indies by peace, treaty, or war. These arguments were supported as follows: 1) Every nation should be free to travel and trade with every other nation. 2) God has willed this freedom because Nature does not supply every place with all the necessities and nations excel in different arts. 3) Those who do not follow this law harm the bonds of human fellowship, destroy the possibilities for mutual service, and violate Nature. Therefore, since the seas cannot be seized, enclosed, or moved, they are not property by their nature. Since the seas cannot be exhausted by navigation or fishing, there is no need to claim sovereignty over them. 4) In a true law of Nations, the sea should be called the property of no one ( res nullius ) or a common possession ( res communis ) or a public property ( res publica ) 5) God did not give all things to one or another individual but to the whole human race and therefore a number of people can possess the same thing which is different from the 'modern 1 meaning of sovereignty. 6) Because the sea is not merchandise, it cannot become private property. 7) Therefore neither a nation nor an

PAGE 28

17 individual can claim any right of private ownership over the sea because such a claim would go against nature and public utility. Although Mare Liberum was written with the specific purpose of influencing the outcome of the treaty between Spain and the Netherlands, it is doubtful that it had much of an impact on the negotiations. The Treaty of Antwerp was concluded on April 9, 1609, and gave the Dutch limited trad19 ing rights in the East Indies. However, this concession was due to the political reality of the time — Spain was in a weakened condition and no longer able to enforce its claims to the seas and markets — rather than the acceptance of Grotius legal argument. The concession was not a recognition of theory but of reality. Mare Liberum 's initial impact was in fact on the fisheries dispute between England and the Netherlands. As an emerging commercial state, England generally upheld the right of freedom of navigation on the high seas; but it was also concerned with maintaining its exclusive fishing grounds adjacent to its coast. Considering Grotius' freedom of the seas doctrine to be an attack upon its fisheries, England became the strongest opponent of Mare Liberum In 1613 William Welwood wrote Abridgement of All SeaLawes as a defense of England's claim of exclusive control over i.ts adjacent fisheries. He regarded Mare Liberum as a direct attack on the English fisheries. The freedom of navigation to the East Indies was not the issue but was

PAGE 29

18 being used as a pretext to wrest control of the fisheries from the English. His refutation of Mare Liberum (and of Hugo Grotius its anonymous author) initiated the debate 20 over freedom of the seas versus closed seas. Welwood began by dismissing the sources on which Mare Liberum was based. He argued that Ulpian and Martian — Roman jurists Grotius used as authorities to prove the sea was held in common—wrote under the command of the Emperor who, in fact, possessed the sea and controlled the use of it. These directives, Welwood believed, were aimed at Roman subjects rather than states in an international community. While accepting the idea of freedom of the high seas expounded in Mare Liberum Welwood believed that restricting the use of adjacent seas was justifiable. Unless England protected the existing stock of fish which surrounded its shores it would be depleted. This idea, he maintained, had been supported by the author of Mare Liberum Welwood concluded his work by stressing not the differences but the 21 similarities between his own work and that of Grotius. Two years later, in De Dominio Maris (1615) Welwood further defined his position. He stated that the sea is capable of being owned just like land according to both human and divine law. He rejected the sources used by Grotius as unaware of the true law of nature. Welwood further stated that it is necessary for a ruler to claim jurisdiction over the adjacent seas so as not to disturb the intimate relations between the land and coastal waters; in

PAGE 30

19 the waters over which a ruler claims jurisdiction, he has the right to control navigation and fishing and to charge others for using the seas. He reaffirmed his earlier argument that fishing in adjacent seas should be controlled by coastal states. Since God ordained the fish to swim along the British coast at certain seasons, no reason exists why the British should be denied this benefit. If other states want to share this advantage, they should pay a 'just price'. Otherwise, the British would be robbed of their 22 true rights. Grotius' arguments in Mare Liberum were further tested with the English seizure of several Dutch cargoes of walrus which the Dutch had taken from the waters surrounding Greenland. The English justified this action on the grounds that the Dutch did not have British permission to fish those seas. The Dutch government protested the British seizure of its cargoes. To legitimize Britain's conduct, in 1618 a treatise was written — some say at the request of King James I — refuting Mare Liberum Its author was John Selden (15841654), an English scholar, lawyer, and historian. His work was Mare Clausum seu de Dominio Maris However, feeling that some passages might offend Britain's ally, the King of 2 3 Denmark, the treatise was not published until 1635.^ Selden 's subtitle clearly indicates his purpose: The right and dominion of the sea in two books. In the first the sea is proved by the law of nations, not to be common to all men, but to be susceptible of private dominion and propriety as well as the land. In the second, it is asserted that the most serene King of Great Britain is the

PAGE 31

20 Lord and proprieter of the circumfluent and surrounding sea, as an inseparable and perpetual appendix of the British Empire. In the first book Selden dealt with three basic arguments of Mare Liberum : that sovereignty over the sea is against the law of nature and of nations; that the nature of the sea makes it incapable of ownership; and that learned men have opined against sovereignty over the seas. Selden argued that ownership of the sea was not contrary to the law of nature or to the law of nations; the ancient law upholding the community of things had been modified and the accepted practice of ancient and modern nations showed that appropriation of the seas was possible. To support his argument he quoted the Scriptures — showing that the divine law permitted appropriation of the seas. Next, he used historical examples of ancient nations which had claimed sovereignty over the seas. Then he discussed the recent claims of the Venetians in the Adriatic, the Genoese in the Ligurian Sea, the Tuscans and Pisans in the Tyrrhenian Sea, the Pope in the Mare Ecclesiae; he further noted the immense claims of sovereignty made by the Spanish and Portuguese, and by the Danes and Norwegians, as well as the claims of the Poles in the Baltic Sea, and the Turks in the Black Sea. Selden agreed with Grotius that the Spanish and Portuguese had no right to claim sovereignty over the oceans, not because their claims went against reason and nature, but because they had no legitimate title to the oceans and were not able to support their claims with an adequate navy. He

PAGE 32

21 agreed that to prohibit innocent passage would be against humanity, but that to allow innocent passage did not necessarily detract from the dominion of the sea; furthermore, innocent passage could not always be claimed as a right. Refuting the claim that the sea can not be appropriated because of its physical properties, he gave the example of Roman law which allowed the appropriation of rivers, springs, and lakes; he denied the claim that the sea has no banks — all are bounded by shores and some are entirely enclosed—or limits--these can be set by nautical science. He disagreed that the sea is inexhaustible — the abundant resources can be diminished by over-exploitation by outsiders to the detriment of the owners of the sea. In the second book, Selden attempted to prove that sovereignty over the seas had been held by the ancient Britons, the Romans, the Anglo-Saxons and by the Normans and later kings. He claimed that this sovereignty was an absolute kind — especially in the southern and eastern seas 24 between England and France and Germany. Selden s work became the basis of England's maritime policy for over 100 years. However, its acceptance was based upon England's ability to enforce this policy by its naval strength rather than acceptance of Selden 's argument. The debate continued between proponents of freedom of the seas and proponents of closed seas for navigation and fishing. Although the Dutch publicist Cornelius van Bynkershoek (1673-1743) and the Swiss publicist Emmerich de

PAGE 33

22 Vattel (1714-67) are better known for their contributions to territorial sea concepts, they are only two of the many authors drawn into this debate. Both had a considerable impact on the development of the principle of freedom of the seas Cornelius van Bynkershoek in De Dominio Maris Dissertatio n which was first published in 1702 and revised in 1744, generally supported freedom of the seas but differed from Grotius on two major points. First, he believed that the ocean was capable of being appropriated and occupied, but since it had not been possessed or occupied, it remained free for all to use. Second, he supported the creation of a territorial sea — a narrow belt of water adjacent to the 25 coast. Emmerich de Vattel (1714-1767) in The Law of Nations upheld the concept of freedom of the open sea but claimed that a nation required the exclusive use of the sea adjacent to its coast for fishing and security of its ships. ********* Despite the general acceptance of freedom of the seas, states — to maintain control over their adjacent waters — adopted the concept of the territorial sea. They did so primarily because they were reluctant to allow foreign ships complete freedom along their coasts. Not only was security involved; states required policing rights in their adjacent seas in order to control smuggling and other criminal activities which affected them directly. States also required

PAGE 34

23 exclusive rights over coastal resources in order to obtain the food they needed. Even where rights over adjacent waters were conceded, there was no agreement on boundaries or the type of jurisdiction possessed in the area. In the 14th century — by which time the theory of a territorial sea had been developed — many jurists accepted the general principle of determining seaward jurisdiction by the range of navigation from the coast. Neither of these territorial boundaries — one day or two days — came into general use. Although they remained in use in the Mediterranean until the 18th century, they were not adopted by any northern or western European states. Another general principle used to set territorial sea boundaries was thalweg or the mid-channel principle. Although originally meant to apply to rivers, it was sometimes used to delimit the boundaries between contiguous states. This principle was declared by the Romans in the seventh century and used by some northern Europeans although never 27 by the English. Meanwhile, the manner of determining the boundary and defining the type of jurisdiction in international waters continued to change. Before the acceptance of the threemile limit, three basic methods of determining the territorial sea prevailed. They were the line of sight doctrine, the Scandinavian league, and the cannon-shot rule.

PAGE 35

24 As the cannon-shot rule was the most widely practiced it will be examined first. It provided that a coastal state held sovereignty over its adjacent waters for the distance its cannons could fire. This was an exceedingly practical rule. A state needed only to shoot a cannon and measure its range to determine its territorial waters. While the cannon-shot rule did not provide a uniform standard range because the distance fired depended upon a variety of factors such as the height, position, and caliber of the cannons, from 1610 to about 1911, many states measured their territorial seas in this manner. The rule was most popular during the 18th century until, in 1793, the effective firing range increased from one to two miles. The Dutch were the first to present the idea of the cannon-shot rule. A Dutch delegation visited England on May 6, 1610, in response to a British proclamation prohibiting "strangers" from fishing the seas claimed by the British. On this occasion the Dutch statement included the following note: "For that it is by law of nations, no prince can challenge further into the sea than he can command with a cannon except gulfs within their land from one point to another." 28 Additionally, in 1671 the Dutch required their ships to salute foreign fortresses and towns when they came within the cannon range of other states. By 1685 the cannon-shot rule was established in France. This principle quickly gained acceptance there because it countered British claims to the North Sea, the English

PAGE 36

25 Channel, and the Bay of Biscay. The French also modified the cannon-shot rule; they added the idea that the cannon range of a neutral state delimited the extent of a neutral maritime zone in wartime — making it illegal to capture ships as prizes within this zone. The territorial sea and neutrality zone did not extend uniformly in a belt along the coast but only in the areas where actual cannons were 29 stationed. Although in the 17th century some states practiced the cannon-shot rule, it was virtually ignored by the legal publicists of the day. By this time most publicists concerned with laws governing coastal waters recognized the concept of territorial seas. Even Grotius, the major proponent of freedom of the seas, accepted the idea of a state possessing jurisdiction over its coastal waters. In his work De Jure Belli ac Pacis (1625) Grotius modified his earlier position and introduced the idea that jurisdiction over the adjacent seas could be exercised from the land without claims to ownership. Although he stated that this jurisdiction would be based on the exercise of power from land, he did not specifically refer to the cannon-shot rule. The other two publicists in the 17th century who reflected the prevailing opinion toward adjacent waters were Joannes Loccenius (1598-1677) and Samuel Puffendorf (16321694) Locce.iius wrote that although a state could not possess ownership over the sea, it could hold sovereignty

PAGE 37

26 over the part of its adjacent waters that it could control; he gave Sweden and Denmark — who controlled the Baltic — as examples. Puffendorf in The Law of Nature and Nations agreed with Grotius argument that it was contrary to morality for a state to own the seas. He disagreed that the sea is inexhaustible and stated that a nation could rightfully claim control over its adjacent waters for the purpose of preserving its fisheries and for maintaining security and defense. He did not say how this claim should be determined or what the limit should be but did imply that he approved 31 of a wide territorial sea. The first publicist to recognize and recommend the cannon-shot rule was Cornelius van Bynkershoek, a judge of the Supreme Court of Appeals at the Hague. In his Dominion of the Seas (1702) he objected to the sweeping claims the British made over their adjacent seas and further expounded on the necessity for freedom of navigation, trade and fishing on the high seas. His most important contribution to maritime law was made in Chapter II, entitled "Whether a Maritime Belt Can be Occupied and Held Under Sovereignty, And if so in What Way it May Be Done." In this chapter he discusses possession of adjacent waters and concludes that a 32 state may claim as much of the sea as it controls or "the control of the land [over the sea] extends as far as cannon will carry; for that is as far as we seem to have both com33 mand and possession."

PAGE 38

27 Thirty-five years later Bynkershoek in Questions of Public Law maintained his earlier position "for I hold that the territorial domain ends where the power of weapons terminates." Although Bynkershoek never proposed a set measurement or a maritime belt for the territorial sea — because he believed that the territorial sea could only be determined by the range of a cannon — many later writers 34 attributed these ideas to his work. Even though Bynkershoek did not originate the cannonshot rule, he did popularize it and was the first jurist to record its existence. In restating the rule, he claimed that it was applicable in times of peace and not just during war to create a neutrality zone. He did not state a general principle in which a maritime territorial belt was determined but rather accepted the fact that a protective zone 35 existed within the range of the guns on shore. Nevertheless, his contribution was important. He effected the theoretical reconciliation of the idea of freedom of the seas with the idea that some parts of the sea can be appropriated while limiting the extent of the claims. Nations at this time had become aware of the need for freedom on the high seas but had difficulty allowing this freedom up to their coasts. Bynkershoek s alternative fitted the spirit of the times and was readily accepted by many states in the 18th century. During the 18th century all the important maritime states — except the Scandinavian ones — upheld the practice of

PAGE 39

28 determining neutrality zones by means of the cannon-shot range. France continued to practice the cannon-shot rule and concluded treaties with England in 1786, Russia in 1787, and Tunis in 1795 establishing the cannon-shot range as the limit of the neutrality zone in times of warfare. England gradually relinquished its claims to the "British seas." In 1762 England concluded a treaty with the Kingdom of Algiers in which England stated its adherence to the neutrality zone based upon the cannon-shot range. The Italian States — the Grand Duchy of Tuscany, the Vatican, the Republic of Genoa, the Republic of Venice, the Kingdom of the Two Sicilies, and the Kingdom of Naples — betv/een 17 78 and 1787 confirmed their support of a neutrality zone based upon the cannon-shot range. After the unification of Italy in 1861, the government of Italy also stated its support of the territorial sea and neutrality zone determined by the range of a cannon. Spain and Portugal also concluded treaties with Algiers in 1786 and with Russia in 1787 adopting this rule. In 1787 the United States signed a treaty of Peace and Friendship with Morocco, safeguarding American ships in the waters within cannon-range of Morocco. In 1794 the United States and England concluded the Treaty of Amity, Commerce, and Navigation protecting ships and goods of either state while within the other's cannon-shot range. Russia concluded treaties with several states in the 18th century establishing a neutrality zone based upon the cannon-shot range;

PAGE 40

29 in the 19th century it formulated other limits for various 37 types of jurisdiction. One of the problems of discussing the cannon-shot rule is the great variation that existed in the range of a cannon from country to country. A popular misconception concerning the range of a cannon is that it was approximately three miles at the time when Bynkershoek wrote De Dominio Maris The only state that claimed that it had built a cannon capable of a three-mile range was Spain; however, accuracy at that range was non-existent. At the beginning of the 18th century most European states had cannons with a range of approximately one mile; by the end of the century the range increased to approximately two miles and to approxi3 8 mately three miles at the end of the Napoleonic Wars. While most publicists in the 18th century agreed with the practice of determining territorial seas through cannon range, for the exclusive purpose of neutrality and prize laws, fishing limits and other rights were established by other means. The Italian publicist Giuseppe Casaregi (1675-1737) accepted the cannon-shot range for neutrality but held to the 100-mile rule of Bartolus for territorial seas for criminal and civil jurisdiction. Felix Joseph de Abreu y Bertodano (1700-1775) a Spanish legal writer, also concluded that the cannon-shot range was acceptable for the creation of neutrality zones but not for other jurisdictional purposes. He contended that a state with an extensive ocean frontage — such as Spain — should possess

PAGE 41

30 jurisdiction out to 100 miles but that a state on a narrow sea should share the sea equally with the other bordering coastal states. Rene Josue Valin (1695-1765), an official in the French Admiralty, wrote two works on the extension of coastal jurisdiction. In the first, dealing with fisheries, he proposed that the coastal state possess exclusive rights as far as the sea bottom could be reached or to two leagues, whichever was farther. In his second work he agreed with Casaregi and Abreu that different limits should exist for different jurisdictions and that the cannon-range rule should apply to neutrality zones and prize law. Yet, a German publicist, Christian Wolff (1676-1756) did not even mention the cannon-shot rule but supported the freedom of the seas for fishing and navigation. While Emmerich de Vattel (1714-67), a Swiss diplomat and philosopher, in Law of Nations (1758) supported freedom of the seas, he also supported claims to wide territorial seas if the state making the claim could maintain it through force. He stated: Because all the sea space within cannon range all along the coasts is regarded as being part of the national territory a vessel captured under the cannons -Qf a neutral fortress [cannot be] a legal prize. Another concept used to determine the extent of a territorial sea was the line-of -sight doctrine. Spain was the first state to proclaim this doctrine in the 16th century. At this time Spain was trying to curb the growing maritime influence of Britain and France in the western

PAGE 42

31 hemisphere. Toward this end in 1565 King Philip II of Spain declared: No one can come to our coasts, harbors, roadsteads or rivers, or within sight of our land to wait for or damage the ships or our allies, under any pretext whatsoever, on pain of seizure of crew and goods In contrast to Spain's power at the time of the Treaty of Tordesillas, this was a Spain at bay. England was the next state to apply this doctrine — not to its own waters but to the territorial seas of its dominions. From 1676 to 1751 Britain signed treaties with Tripoli, Algiers, and Tunis creating line-of-sight territorial zones around Tangier, Minorca, and Gibraltar. It did this to protect the merchant ships in the Mediterranean from the attacks of the Barbary pirates, who had become a great threat. In 1691 the King of Denmark and Norway also proclaimed a protective zone within sight of Norway and Jutland in which capture of ships was forbidden. Safe passage was offered to British and Dutch ships "within sight of the 42 dominion of the Dano-Norwegian King." On this occasion, the line of sight was for the first time defined as four to five leagues or 16 to 20 nautical miles from the coast. On a clear day, so it was argued, the top rigging of a large 43 ship could be seen at that distance. Compared with the states maintaining the cannon-shot rule, few states practiced the line-of-sight doctrine and few publicists wrote about it. Cornelius van Bynkershoek

PAGE 43

32 was one of the few. In De Domino Maris he rejected the line-of-sight doctrine because it was "too loose and variable a rule." In contrast, in 1803, the French writer, Joseph M.G. de Rayneval (1736-1812) defended the doctrine on the grounds that the cannon-shot rule was not as just a standard measurement as the line-of-sight doctrine. The most adamant support for the line-of-sight doctrine came many years later from the pen of Paul Godey, an UnderSecretary in the French Navy. Writing in 1896, his purpose in defending the line-of-sight doctrine was to justify the extension to a six-mile wide territorial sea. Although he agreed with the principle of the cannon-shot range, he argued that the men firing the cannons could not control the guns past the range of their sight. Sight, not cannons (whose range now exceeded human vision) should be the determinant of the territorial sea. Whereas neither cannonshot range nor the three-mile limit gave states the needed protection for fishing and fiscal matters, the range of human sight would be adequate. Since the range of vision varied according to many factors, Godey suggested that the mean far range be determined and used as the measurement for line-of-sight. He found that using a height of 10 meters above the surface made the range of vision approximately six nautical miles. Within this territorial sea he proposed that the state possess jurisdiction over all matters during war and peace. His proposals were contested on many 45 grounds

PAGE 44

33 According to his contemporaries, the primary problem with the line-of-sight doctrine was that vision varies according to the height of the viewer and the height of the 46 object being viewed. The actual width of the territorial seas would be determined according to where the viewer stood. Recognizing the problems in this type of measurement, Godey thought that a uniform height of 10 meters should be used creating a uniform territorial belt. The Scandinavian Plan claiming 16 to 20 nautical miles placed its viewer on the heights along the coast but since these varied so did the territorial belt — it was wider where the mountains were taller and narrower along the flat areas. Unlike the cannon-shot rule, where jurisdiction depended on the location of cannons, the line-of-sight doctrine provided a continuous belt of jurisdiction along the coast. Moreover, the purpose of the line-of-sight doctrine was different from that of the cannon-shot rule. While the cannon-shot rule was developed primarily to create neutrality zones during war, the line-of-sight doctrine was to form a protective area around the coastal state. Although the line-of-sight doctrine also provided customs, fishing, and neutrality zones, the emphasis of the treaties 47 and publicists was upon the state's security. A third method used to determine the territorial sea was the marine league which, unlike the cannon-shot rule and the line-of-sight doctrine, provided a standard measurement. The first implementation of this method was in 1598 when the

PAGE 45

34 Danes issued an ordinance stating that any English ships "hovering or fishing two Norwegian leagues" from Vespeno (Westman Islands) would be seized. This represented a retreat from previous Danish claims of sovereignty over vast areas of the North Atlantic and the whole of the Norweigian Sea. The Netherlands, France and England protested these claims and considered them to be illegal appropriations of the high seas. Pressure from these stronger states forced the Danes to limit their jurisdiction to 48 uniform coastal belts measured in leagues from the coast. On June 18, 1745, a royal Danish edict was issued stating that the limit of the Dano-Norwegian fishing monopoly was one league. On the same day a neutrality zone was also created to a distance of one league. Thus, by the middle of the 18th century, the Scandinavian territorial sea extended to a uniform one league and existed for purposes of 49 both fishing and neutrality. Yet England refused to recognize even the one-league neutrality zones and--using its naval strength — continued to take prizes into its own ports for adjudication. ********* These early jurisdictional claims to the seas were based upon a state's ability to control the seas. As a state's power increased, it attempted to enlarge its oceanic domain. The first major maritime states, Portugal and Spain, divided the oceans between themselves in the Treaty of Tordesillas. This attempt by the Iberians to maintain

PAGE 46

35 closed seas was challenged by the emerging mercantile powers — France, England, and the Netherlands. In order to pursue their mercantile interest, these states required freedom of navigation on all the oceans. Defending the Dutch right to this freedom, Grotius published Mare Liberum Although the English agreed with freedom of navigation, they perceived a threat to their fisheries in the doctrine presented by Grotius. English publicists such as Welwood and Selden defended the English historic right of closed seas over their contiguous waters. This conflict between maritime and coastal interests was resolved by the development of the territorial sea concept enunciated by Bynkershoek and others. During the 18th century extensive claims of sovereignty over the seas declined. Instead of vague, far-reaching claims, states set definite boundaries for specific purposes. Publicists from different nations recommended primarily three methods — cannon-shot rule, line-of -sight and Scandinavian league — of determining the territorial sea. In the 18th century the cannon-shot rule was the most widely accepted and was supported by most maritime powers.

PAGE 47

36 Notes 1. Pitman B. Potter, The Freedom of the Seas in History, Law and Politics (New York: Longmans, Green and Co., 1924) p. 32. 2. Thomas W. Fulton, The Sovereignty of the Sea (London: William Blackwood and Sons, 1911), p. 3. 3. Sayre A. Swartztrauber The Three-Mile Limit of th e Territorial Seas (Annapolis: Naval Institute Press, 1972) p. 11. 4. Fulton, p. 4. 5. George P. Smith, Restricting the Concept of Free Seas (Huntington, N.Y.: Robert E. Krieger Publ Co., 1980), pp. 14-15. 6. Swartztrauber, p. 12. 7. Ibid. p. 13. 8. Fulton, p. 338. 9. Swartztrauber, p. 14. 10 Ibid. p. 15 11. Smith, pp. 15-16. 12. Clark G. Reynolds, Command of the Sea (New York: William Morrow and Co., Inc., 1974), p. 149. 13. Swartztrauber, p. 16. 14. Ibid. p. 17. 15. In 1567 the northern, Protestant provinces of the Netherlands revolted against Spanish rule and declared independence in 1581. 16. Swartztrauber, p. 18. 17. Hugo Grotius, De Jure Praedae Commentarius (Oxford: Clarendon Press, 1950), Preface p. xiii-xv. 18. Hugo Grotius, Mare Liberum 1609 text trans. Ralph van Deman Magoffin in James Brown Scott, ed., Classics of International Law (New York: Oxford University Press, 1916)

PAGE 48

37 19. Frances Gardiner Davenport, European Treaties Bearing on the History of the United States and its Dependencies to 1648 (Washington, D.C.: Carnegie Institution of Washington, 1917), Vol. 1, p. 262. 20. Percy Thomas Fenn The Origin of the Right of Fisheries in Territorial Waters (Cambridge, Mass.: Harvard University Press, 1926), p. 175. 21. William Welwood, An Abridgement of all Sea-Lawes (London: Thomas Man, 1613) Reprint New York, Da Capo Press, 1972. 22. Fenn, pp. 175-177. 23. Swartztrauber pp. 20-21. 24. John Selden, Mare Clausum: The Right and Dominion of the Sea trans. Marchamont Nedham. (New York: Arno Press, 1972 Reprint Ed.). 25. Cornelius van Bynkershoek. De Dominio Maris 1702-03 text trans. Ralph van Deman Magoffin in James Brown Scott, ed., Classics of International Law (New York: Carnegie Endowment for International Peace, 1923). 26. Emmerich de Vattel, The Law of Nations trans Charles G. Fenwick, (New York: Oceana Publ., reprint 1964). 27. Fulton, pp. 538-539. 28. Swartztrauber, p. 25. 29. Ibid. pp. 26-27. 30. Hugo Grotius, De Jure Belli ac Pacis 1646 text trans. Francis W. Kelsey in James Brown Scott, ed., Classics of International Law (New York: Carnegie Endowment for International Peace, 1925), pp. 208-214. 31. Fulton, pp. 550-558. 32. van Bynkershoek, pp. 41-45. 33. Ibid. p. 44 34. Swartztrauber, pp. 29-30. 35. Wyndham Walker, "Territorial Waters: The Cannon Shot Rule," British Yearbook of International Law 2 2 (1945) pp. 230-231.

PAGE 49

38 36. Phillip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York: G.A. Jennings Co. Inc. 1927) p. 7. 37. Swartztrauber pp. 30-32. 38. Ibid., pp. 23-25. 39. Ibid. pp. 32-33. 40. Henry G. Crocker, ed., The Extent of the Marginal Sea: A Collection of Official Documents and Views of Representative Publicists (Washington, D.C.: Government Printing Office, 1919), p. 622. 41. Ibid. pp. 534-537. 42. Ibid. p. 518. 43. Swartztrauber, pp. 37-38. 44. van Bynkershoek, p. 44. 45. Swartztrauber, pp. 39-40. 46. Ibid. p. 41. 47. Ibid., pp. 42-43. 48. Bernard G. Heinzen, "The Three-Mile Limit: Preserving the Freedom of the Seas," Stanford Law Review 11 (July, 1959), pp. 605-611. 49. Swartztrauber, pp. 4 8-49. 50. Heinzen, p. 597.

PAGE 50

CHAPTER TWO GROWING INTERNATIONAL ACCEPTANCE OF THE THREE-MILE TERRITORIAL LIMIT The three-mile limit first came into practice for specific jurisdictional rights such as customs or fishing zones. As states began to claim this limit for special zones, they also increasingly used it to determine the territorial sea limit. By the first half of the 19th century, most states had abandoned the earlier methods of determining the territorial sea and employed the three-mile limit as the standard measurement for the territorial sea. Only Spain attempted to maintain a wider general jurisdiction but was forced to relinquish its claim. Despite this general acceptance, states increased their jurisdictional claims for special purposes in the latter part of the 19th century. They were able to do so if their claims did not conflict with those of more powerful states. Against the French, English, and Germans who continued to fish three miles from the coasts of Denmark and Iceland, even the Danes were unable to maintain their historic four-mile limit. Perhaps the first mention of the three-mile limit was in connection with the British Hovering Acts the first of which was passed in 1709. They were instituted to prevent the smuggling of taxed items into England. Since the first 39

PAGE 51

40 act was too vague to be properly enforced, a second act was passed in 1718. This act stated that ships with cargoes of coffee, tea, brandy, spirits, and other taxed goods would often pretend to be traveling to other ports while intending to smuggle the goods into England. Therefore it gave British customs officials authority to search suspected ships "found hovering on the coasts of this Kingdom, [or] within the limits of any port." The port authorities were given the right to determine the limits within which they would initiate searches. In 1728 the Customs Collector at the Port of Yarmouth declared that his authority extended to three miles from the coast. This limit existed only until 1736 when England passed another hovering act establishing a customs zone of two leagues in a continuous belt from the shore. As the smuggling problem became worse, England made more extensive claims for customs jurisdiction. The threemile limit was not used as a customs zone in England for the 2 next 150 years. Sweden also instituted a three-mile customs zone for a short time. In 1758 in order to control the privateers off the Swedish coast, King Adolf Frederick declared that Sweden possessed jurisdiction three miles from its coast and that within this area no hostilities were allowed. This limit was extended to one German mile or 3.48 nautical miles in 1779. 3 During the Seven Years' War (175 6-1763) between England and France in Europe and India, and the French and Indian

PAGE 52

41 War (1754-1763) in North America, several lawsuits dealing 4 with captured ships were brought before the courts. The first of these lawsuits in 1761 involved the Joanna Katherina a British ship captured by a French privateer off the Norwegian coast. The British owner asserted that it was an illegal seizure because the ship had been taken within the territorial waters of the Kingdom of Denmark and Norway. The court ruled that in this instance the territorial sea was one German mile and that the capture was therefore legal. Another lawsuit involved a French privateer which had seized two British ships, the Ellen and the Squirrel in waters claimed by Denmark. The French maintained the legality of the cannon-shot rule for determining neutrality and therefore the legality of the seizure. They agreed with the concept of a continuous belt of territorial seas rather than pockets within actual cannon range and equated cannon range to three miles although at the time it was approximately two miles. Publicists, as well as courts, helped to legitimize the three-mile limit. The first one to equate cannon-shot range to three miles was Abbe Ferdinando Galiani (1728-1787) in The Duties of Neutral Princes Toward Belligerent Princes (1782). Although an Italian economist, he had served in the diplomatic corps in Paris from 1759 to 1769 — during the English-French wars and at the time when France advanced the three mile cannon-shot equation — ar.d therefore was probably familiar with this idea. In his work on neutrality, he

PAGE 53

42 examined the then-prevalent practice of states to abide by the cannon-shot rule. He concluded that states should accept a standard, continuous belt of three miles from the coast as the furthest limit of cannon range — even before fortifications had been built. Although he did not mention r the French position of 1761, his view closely resembled it. The United States was the first country to legislate the three-mile limit into its domestic statutes. This decision was caused by its desire to remain neutral in the European wars following the French Revolution. At this time, England, France and Spain all held possessions in North America and consequently were engaged in maritime hostilities along the American coast. These states began to pressure the United States to declare the extent of its territorial sea. On September 13, 1793, French Minister Edmond Charles Genet asked Secretary of State Thomas Jefferson to define the limits of American jurisdiction along the coasts — adding that states and jurists held varying opinions on the legal breadth. In order to maintain its neutrality within a zone acceptable to the belligerents, on November 8, 1793, Thomas Jefferson sent almost identical replies to Genet and to the British Minister, Mr. G. Hammond, "provisionally" establishing the United States territorial seas at one sea league or three miles. These notes mentioned that a three-mile territorial limit was recognized by some of the states with which the United States had commercial dealings and that it was a

PAGE 54

43 narrower limit than was claimed by many states. The major difference in the two notes was that the one to the British emphasized the temporary nature of the three-mile neutrality zone. This allowed for the possibility of the United States increasing its territoral sea once it became strong enough to defend the increased limit. As a result of the decisions taken on the three-mile zone, on June 5, 1794, the United States Congress enacted a law creating a three-mile neutrality zone. This action Q further legitimized the three-mile limit. In doing so it blended the three previous methods of determining the territorial sea and incorporated the concepts of a continuous belt from the line-of-sight doctrine, the need for a specific, uniform distance from the marine league, and a neutrality zone from the cannon-shot rule. Although there is no definite connection between Jefferson's formulation and Galiani's equation of a three-mile territorial limit with cannon-shot range, it is likely that Jefferson was acquainted with these ideas. A few years later several international court cases upheld the legality of the three-mile limit. In 1800 the British High Court of Admiralty ruled that the capture of four Dutch ships within three miles of the Prussian coast 9 was an illegal seizure. In 1805 it ruled that the capture of an American ship by British privateers one and a half miles from the alluvial silt islands of the Mississippi River was also illegal. Conversely, in 1808 a French

PAGE 55

44 seizure of some American ships off the Prussian shore was ruled legal because the ships were taken when they were more than three miles from the coast. In 1812, United States Circuit Judge Story, in his decision on the seized ship Ann referred to the three-mile limit as established international law and stated that vessels within three miles of United States territory came under United States jurisdiction. Thus by the early 19th century the three-mile limit had been advanced by publicists, used by statesmen, legislated in domestic statutes, and advanced by the courts. The first international treaty which specifically accepted the three-mile limit, the Fishing Convention of 1818, was signed by the United States and Britain. This treaty involved the regulation of fishing rights of British dominions in America. Before the American Revolution, British subjects were allowed to fish the entire North Atlantic seaboard. Even though the French had lost Nova Scotia and Newfoundland as a result of the Treaty of Utrecht (1713) they continued to maintain fishing rights there. Following the French-Indian War, France lost all of its Canadian possessions except the islands of St. Pierre and Miquelon off the Newfoundland coast; it retained fishing rights off Newfoundland but lost them off Nova Scotia. As a result, the British colonials were free to fish the area under British protection. After the Revolution, the Americans, fearing they would be excluded from the rich fishing grounds off Newfoundland and Nova Scotia, attempted during

PAGE 56

45 the Paris peace negotiations of 1782 to secure their previous rights to the fisheries. The Americans succeeded in keeping these fishing rights in return for allowing the British the right to freely navigate the Mississippi River. The Treaty of Ghent (1814) which concluded the hostilities, did not refer to either the American fishing rights off the Canadian coast or to the British navigation rights on the Mississippi River. Hence, the Americans continued as before to fish the waters off the Canadian coast; but this was not Britain's intention. In June 1815, an American vessel fishing 45 miles from the Nova Scotia coast was warned by a British ship that it was trespassing when fishing within 6 miles of the coast. The Americans protested the British pronouncement, insisting that the War of 1812 had not changed the fishing rights granted in 1783. The British countered that the Treaty of 1783 was cancelled by the War of 1812. American fishing vessels operating within 60 miles of the Canadian shore would be seized. Claims and counter-claims followed. Finally in 1818 a compromise was achieved based on the three-mile limit: And the United States hereby renounces, for ever, any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America. Thus the United States was the first nation to adopt the three-mile limit for purposes of neutrality and fishing. In both cases the United States was operating from a

PAGE 57

46 relatively weak position and claimed the three-mile limit because it had the greatest chance of being accepted by the more powerful states. The most powerful of these states was Britain. Its empire extended across all the oceans and into all the continents. After 1815 the Royal Navy possessed 95 capital ships patrolling all the seas. As Britain required freedom of navigation and reduced territorial sea limits, it quickly became the major advocate for international acceptance of 13 the three-mxle limit. Toward this end Britain negotiated several treaties. In 1839 it signed the first of five treaties with France based on a three-mile limit concerning fishing rights. In 1857 the two countries agreed on a three-mile fishing limit for Newfoundland. Several other treaties were concluded further defining the rights and regulations of each state 14 within the three-mile zone. In addition, from 1819, Britain legislated a series of acts creating three-mile limits throughout the Empire. The first of these applied to the Canadian colonies. Newfoundland and Labrador in 1819; Nova Scotia in 1836; Prince Edward Island in 1843; and New Brunswick in 1853. Then in 1877 Britain established a three-mile territorial limit for the Empire's Pacific Islands including the Friendly, Navigators, Union, Phoenix, Ellice, Gilbert, Marshall, Caroline, Solomon, Saata Cruz, Rotunda islands, part of the Island of

PAGE 58

47 New Guinea, New Britain and New Ireland, Louisade Archipelago and others. In 1881 Britain created a one-league (three-mile) fishing limit for New South Wales and Australia and a three-mile neutrality zone for Cyprus. Britain instructed all its subjects to abide by the three-mile limits of other states. Important domestic legislation based upon the threemile limit was also passed in England. The Act of July 31, 1868 gave the British county courts admiralty jurisdiction to a distance of three miles for cases involving maritime jurisdiction, salvage, ocean collisions, and slave trade. The Common Law was made applicable to crimes committed within three miles of the English coast by the Territorial Waters Jurisdiction Act of August 16, 1878. The Sea Fisheries Act of August 2, 1883 forbade any foreign fishing vessel 15 from entering the English three mile territorial zone. Probably the most influential British act in aiding international acceptance of the three-mile limit was the Customs Consolidation Act of 1876. Prior to this Act, Britain had claimed increasingly larger customs zones beginning with the Hovering Acts in 1736 which had created a two-league limit. As smuggling of tobacco, alcoholic beverages, and tea continued to increase, Parliament enacted legislation in 1765 extending the customs zone to three leagues around the Isle of Man — one of the major smuggling areas. Even this did not curtail the smuggling, and Parliament in 1784 increased the customs jurisdiction to

PAGE 59

48 four leagues. Then in 1802 yet another Act was passed increasing the zone to eight leagues. Even this did not alleviate the problem and so, in desperation, in 1805 Parliament extended the zone to 100 leagues. Toward mid-century, as the general situation changed, Britain began to re-evaluate the need for such an extensive customs zone. Smuggling had gradually declined and the 100-league customs zone began to pose problems for the British government. Questions were raised concerning the legality of Britain's claiming control beyond the accepted three mile jurisdiction. Additionally, other states such as France, Belgium, and the United States began to extend their customs jurisdiction to 10 or 12 miles. This meant that ships of the large British merchant fleet could be stopped and searched outside the three-mile zone, hampering freedom of trade. On the advice of the British Foreign Office, the government began to reduce the customs zone to three miles. As a result, in 1876 Parliament enacted the Customs Consolidation Act. This Act repealed all the previous customs acts and replaced them with a customs zone of three miles for non-British vessels and a three-league or nine-mile zone for vessels belonging to British subjects and ones on which half of the persons aboard were British subjects. In passing this Act, the Territorial Waters Jurisdiction Act of 1878 and the Sea Fisheries Act' of 1883, Britain demonstrated to other states its intention of upholding the three-mile limit for all purposes.

PAGE 60

49 France, accepting the three-mile limit for fishing purposes, rejected it for other purposes. In 1817 it established a customs zone of two myriameters or approximately 11 nautical miles and upheld this limit through the 19th century. For purposes of neutrality, France kept the cannon-shot rule until 1896 when, following Britain's lead, it adopted the three-mile limit. Unlike Britain and France, Austria made minimal sea claims. In 1803 it adopted cannon range as the limit for neutrality. In 1849 it equated cannon-shot range with three marine miles. In 1881 Austria-Hungary established a customs zone of four miles, and in 1884 a three-mile exclusive fishing zone. Prussia also held modest sea claims. In 1866 it accepted the cannon-shot rule for its territorial sea limits. In 1882 and 1884, it signed two treaties based upon the three-mile limit — the North Sea Fisheries and the Suez Conventions During the early 19th century, Russia claimed large territorial seas in order to protect its seal fisheries from foreign fishermen. In 1821 Tsar Alexander I issued an Ukase (Proclamation) prohibiting foreign ships 100 miles from Russian coasts and islands; any ship within this zone was to be seized. Additionally the Ukase forbade foreign vessels from the Bering Sea, the Gulf of Alaska, and the Sea of Okhotsk; the Russians claimed the territory north of a line drawn 45 north on the Asian shore and 51 north on the

PAGE 61

50 American shore to be Russian territory. This position antagonized the Americans and the British who had fishing interests in western Canada. The Russian seizure of an American brig, the Pearl in 1822 resulted in negotiations and conventions signed between the United States and Russia in 1824 and between Britain and Russia in 1825. In these agreements Russia agreed to withdraw its claims made in the 1821 Ukase The Pearl was released in 1829. In the latter part of the century, Russia accepted the three-mile limit. In 1868 the Russian Foreign Minister told the United States that foreign whalers were not allowed within a three-mile limit. The following year Russia adopted the three-mile rule for purposes of neutrality. Although the Russian territorial sea was set at three miles in 1893, the White Sea was still considered to be a closed territorial sea. Later that year, the United States and Great Britain undertook not to fish seals within ten miles of the Russian mainland and 30 miles of the Komandorsky Islands and Tulenew Island. Throughout the 19th century many of the lesser European powers also adopted the three-mile limit. This acceptance was demonstrated by the signing of conventions with other more powerful states. Perhaps the most important of these was the "Hague Convention for the Regulation of the Police of the Fisheries in the North Sea outside Territorial Waters," better known as the North Seas Fisheries Convention (1882) Six states — Great Britain, Germany, Belgium,

PAGE 62

51 France, Denmark, and the Netherlands — signed; the only North Sea state not to sign was Norway and Sweden (at that time one state ruled by the King of Sweden) The purpose of the North Seas Fisheries Convention was to establish and regulate exclusive fishery zones in the North Sea. Its most important provisions were Article Two and Article Three. Article Two created an exclusive fishery zone of three miles to be measured from the low water mark along the coasts, islands, and banks of the participating states. Additionally, Article Two stated that in the case of bays the three-mile measurement was to begin at the point where the width of the bay exceeded 10 miles. Article Three attempted to standardize measurement; it defined miles as geographic miles, 60 of which make up one degree in lati+ A 18 tude Although this convention dealt with fishery zones, it reinforced the signatory states' acceptance of a three-mile territorial sea. The ones which had not previously accepted this limit did so after the Convention, while those which had already adopted it better defined their positions. The Suez Canal Convention (1888) also recognized the three-mile limit. Signed by nine states — Great Britain, Austria-Hungary, France, Germany, Russia, Italy, The Netherlands, Spain, and Turkey — this convention neutralized the Suez Canal ensuring free passage to all ships during times of war and peace. It stated that no acts of war could take place "within a radius of three miles from those ports, even

PAGE 63

52 though the Ottoman Empire should be one of the belligerent powers." Thus it recognized a three-mile territorial sea for the Ottoman Empire while establishing a neutrality zone 19 for the rest of the Suez Canal. In addition to signing the North Seas Fisheries Convention and the Suez Canal Convention, many of the lesser European powers also enacted domestic legislation adopting the three-mile limit for various purposes. In 1832 Belgium accepted a three-mile limit as did The Netherlands in 1874. Greece adopted a three-mile fishing zone in 186 9. The Ottoman Empire in 1893 established a three-mile fishing limit around Crete. From 1828 to 1830 Spain fixed a three-mile anti-smuggling zone but rescinded it in favor of a six-mile 20 zone Since most of the Far Eastern states were colonized by European powers which accepted a three-mile territorial sea, they had no choice but to adopt this limit. Even the few states which maintained their independence were not in any position to go against the European maritime powers and so they also accepted a three-mile zone. During the FrancoPrussian War, Japan declared a three-mile neutrality zone. King Kamehameha of Hawaii proclaimed a three-mile neutrality zone during both the Crimean War and the Russo-Turkish 21 War. Of the Latin American states, Chile was the first to enact legislation regarding sea limits. In 1855 the Civil Code of Chile created a dual zone composed of an inner

PAGE 64

53 territorial sea of three miles and an extended zone of 12 miles for other purposes. In 1870 during the FrenchPrussian War, Chile established a 150-mile neutrality zone. Four other Latin American states patterned their ocean legislation after Chile's Code of 1855: Ecuador in 1857; El Salvador in 1860; Argentina in 1869; and Honduras in 1880. In the 19th century the United States officially maintained its support of the three-mile limit which it had adopted in 1793. Several times when other states initiated broader limits, the United States protested their actions. It did so following the Russian Ukase (Proclamation) of 1821; the Americans became worried about possible hostilities arising with Russia over fishing rights in the North Pacific. The United States sent a diplomatic note in 1875 reminding Russia of the general international acceptance of a three-mile limit. In 1879, after a Mexican attack on an American merchant ship outside the three-mile limit, the United States lodged a complaint with the Mexican govern. 22 ment There are instances when the United States supported broader jurisdiction over some ocean space. The focus of the Bering Sea Arbitration of 18 93 was on whether or not the United States had the right to control seal fishing in the 23 Bering Sea outside the three-mile limit. In 1881 the United States Treasury Department decided to apply American conservation laws to all waters of the Bering Sea east of the boundaries set by the Seward Convention in 1867 and

PAGE 65

54 ordered the Coast Guard to enforce this interpretation. Foreign seal fishermen in violation of the conservation laws were first warned but in 1886 the Coast Guard began to seize offending British vessels. Between 1886 and 1890 fourteen ships were taken at a distance of 15 to 115 miles from land in the American part of the Bering Sea. After extended British protests, the United States agreed to stop the capture of British ships if the British agreed to stop seal fishing in the Bering Sea. The matter was then submitted to an arbitration tribunal consisting of members drawn from France, Italy, Sweden, Britain, and the United States. The major question that emerged was whether the United States had the right to protect the seals of the Bering Sea outside the three-mile limit. Only the American member of the tribunal said they had. The others concluded that the United States did not have any right outside the three-mile limit. Although the arbitration board recommended conservation measures which were put into effect, this had little 24 effect on the destruction of the seal herd. Meanwhile, the question of the three-mile limit was being fought out among western publicists of whom only the British gave the three-mile zone unanimous support. Many writers still continued to endorse the cannon-shot doctrine but recommended that the limit of the territorial seas be extended proportionately as the range of the coastal artillery increased. Fedoi Fedorovich de Martens (1845-1909), a

PAGE 66

55 Russian professor, diplomat, and arbitrator, was one of the more distinguished publicists holding this view. He supported the extension of territorial seas from three to ten miles — a distance which would be subject to change as cannon-shot range increased. Similarly, a Spanish publicist, Marquis de Ramon de Dalmau y de Olivart (1861-1928) based his justification of the six-mile Iberian claims on the increase of cannon range. Likewise, Carlos Calvo (18241906) an Argentinian publicist, advocated a five-mile territorial sea corresponding to the cannon range of the time. Others sharing this view were the French legal writers, Jean Felicite Theodore Ortolan (1808-1904), Paul Louis Ernest Pradier-Fodere (1836-1904) Joseph J. B. Imbart de Latour (1859-1924) and the Austrian publicist, Franz von Liszt (1851-1919) The majority of publicists preferred the three-mile limit. Domenico Alberto Azuni (1760-1827) considered the cannon-shot rule imprecise and thought that the three-mile rule was an improvement. The Austrian, Felix Stoerk (18511908) argued that submarines, mines, dirigibles, and torpe25 dos had made the cannon-shot rule obsolete. Others — such as the American, Henry Wheaton (1785-1848) and the Germans, August Wilhelm Heffter (1796-1880) Heinrich Bernard Oppenheim (1819-1880), Ludwig Gessner (1828-1890) — considered the change from the outmoded cannon-shot rule to the 27 three-mile limit as natural evolution.

PAGE 67

56 Other legal writers supported systems incorporating varying limits for different purposes. The major proponent of this system was the Frenchman Albert Geouffre de Lapradelle (1871-1955). Rejecting the cannon-shot rule, he developed a multi-tiered system consisting of a three-mile neutrality zone, a threeor four-mile fishing limit, and a 28 four-league customs area. Two American publicists — James Kent 29 (1763-1847) and Henry Wagner Halleck 30 (1815-1872)— also advocated extended limits for security, neutrality, and customs purposes. ********* Although acceptance of the three-mile rule steadily increased in the 19th century, some states attempted to maintain other limits. The historic four-mile claim of the 31 Scandinavian states were maintained by Norway and Sweden but rejected by Denmark who signed the North Seas Fisheries Convention of 1882. Spain's attempt to enforce this law led 32 to a conflict with England in 1840 and 1841. Failing to maintain this limit in Europe, Spain claimed a six-mile territorial sea around Cuba. During the American Civil War, Spain complained that American war-ships had violated Spanish neutral waters surrounding Cuba. The United States refused to recognize this claim. In 1885, Spain was successful in negotiating a treaty with Portugal providing for exclusive fishing rights for both within a six-mile zone 33 and certain conservation methods within twelve miles.

PAGE 68

57 Mexico was the only state to claim a nine-mile territorial sea. The Treaty of Guadalupe Hidalgo (1848) which ended the Mexican War stated that the United States-Mexican boundary began "in the Gulf of Mexico, three leagues [nine 34 miles] from land, opposite the mouth of the Rio Grande." The Gadsden Purchase of 1853 maintained this boundary delimitation. Mexico also signed treaties establishing ninemile custom zones with Britian, Germany, the Kingdom of Norway and Sweden, and China, and 11-mile custom zones with 35 France and El Salvador. Although the United States officially had adopted the three-mile limit in 1793 and defended it on several occasions during the 19th century, opinion and practice in the United States varied as to what limits should be held. Thomas Jefferson believed that the United States' territorial seas should reach to the Gulf Stream; American publicist James Kent held that wide baselines should be used to determine the Atlantic territorial sea. In international dealings, the United States signed the nine-mile boundary treaty with Mexico and attempted to gain seal conservation rights in the Bering Sea beyond the three-mile limit. Throughout the 19th century the United States showed an ambivalent attitude toward the three-mile limit as witnessed by various acts, cases and pronouncements. In the settling of a dispute concerning a capture near the mouth of the Delaware Bay, United States Attorney General Randolph stated that the entire Bay was an American territorial sea based on

PAGE 69

58 American ownership of both the New Jersey and Delaware headlands and shores. He added that the Bay had been exclusively British and with the American Revolution this proprietorship passed to the Americans. He thus concluded that in such cases there was a justification for extending J £T the American territorial sea. In 1799 the United States extended its custom zone to four leagues (12 miles) ; in which area the transfer of foreign goods was prohibited and United States officials were authorized to board vessels to inspect their cargoes. In 1804 the United States Supreme Court in the case of Church vs Hubbart upheld this law and the right of other states to a similar zone. It ruled that the seizure four leagues from the Brazilian coast of an American ship which was engaged in trade, violating Brazilian law, was legal. Throughout the century, the United States was in favor of a wider neutrality zone. During the Napoleonic Wars, the United States in 1806 signed a treaty with Great Britain creating a five-mile neutrality zone but this treaty met with great opposition in Great Britain — especially from the Admiralty — and was never signed. In 1896 the United States attempted to gain support for a six-mile neutrality zone but recognized the fact that such a change would have to be accepted by a majority of the maritime powers. Later, at the turn of the century, the United States Naval War College proposed an extension of the marginal seas to six miles but cautioned that this would diminish the area of the high seas

PAGE 70

59 and could be accomplished only with the agreement of the maritime states. In another departure from the three-mile limit, the Inland Rules of the Road (1897) — writing regulations for ships in and near the United States — considered American jurisdiction to extend as far as ... 37 15 miles. Various states, although accepting a three-mile territorial sea, advanced different limits for special purposes. Some of the most common legislation extending limits dealt with the preservation of sea life. In 1829 France enacted a law curtailing injurious trawling within three leagues of 38 its coast. In 1868 Great Britain gave the Irish Commissioner the right to regulate the harvest of oysters as far as 23 miles 39 from the coast. Then in 1895 Great Britain passed a similar act forbidding trawling within 13 miles of the Scottish coast. Through a set of three acts the British claimed exclusive rights to the Ceylonese pearl, chank, coral, beche-de-mer and shell fishing grounds as far as twenty miles from the shore; they defended these wideranging claims on the basis that these fisheries had been 41 appropriated from earlier times. Britain in 1888 and 1889 passed legislation controlling pearl and biche-de-mer fisheries in Australia from 250 miles to 600 miles applicable 42 only to British subjects. A much more modest claim was made by Austria-Hungary and Italy to exclusive one-mile wide belts of sponge and

PAGE 71

60 coral fisheries; each state was allowed to fish the other's 43 area. Another special purpose zone claimed by Britain was exclusive rights to subsoil minerals. This claim dated from a dispute between the Crown and the Duchy of Cornwall over who owned the tin and copper mines of the sea-bed extending from Cornwall, England. In 1858 it was decided that the Prince of Wales owned all the mines and minerals between high and low water marks in the County of Cornwall while the Queen owned all the mines and minerals seaward of the low water mark. No seaward limit was set. Although these mines did not extend past three miles, the ownership of coal mines which did extend was based upon this decision. Britain also extended its seaward jurisdiction over British subjects for criminal and admiralty offenses. In 1833 and 1843 Britain created extra-territorial courts in Canton and Hong Kong to try British subjects for crimes committed in China and up to 100 miles of the Chinese 44 coast. ********* Despite these jurisdictional extensions in special circumstances, most states at the close of the 19th century accepted the three-mile territorial sea. This limit accomodated the coastal state's need to protect its coast and close-water fisheries while allowing the maritime state freedom of navigation on the high seas. Britain's primacy

PAGE 72

61 in world affairs was the major factor in establishing the international acceptance of the three-mile limit. Other, less powerful states had little choice but to agree with Britain's dictum. This was a period of relative stability in ocean law. Notes 1. Bernard G. Heinzen, "The Three-Mile Limit: Preserving the Freedom of the Seas," Stanford Law Review 11 (July, 1959), pp. 629-634. 2. Sayre A. Swartztrauber The Three-Mile Limit of the Territorial Seas (Annapolis: Naval Institute Press, 1972) pp. 51-52. 3. Swartztrauber, pp. 52-53. 4. Clark G. Reynolds, Command of the Sea (New York: William Morrow and Co., Inc., 1974), pp. 235-247. 5. Swartztrauber, pp. 53-54. 6. Ibid. pp. 54-55. 7. Thomas W. Fulton, The Sovereignty of the Sea (London: William Blackwood and Sons, 1911), p. 573. 8. Swartztrauber, pp. 56-59. 9. Edwin DeWitt Dickinson, ed. A Selection of Cases and. Other Readings on the Law of Nations Chiefly as It is Interpreted and Applied by British and American Courts (New York: McGraw Hill, 1929), pp. 778-780. 10. Charles G. Fenwick, ed. Cases on International Law (Chicago: Callaghan and Co., 1951) pp. 482-483. 11. United States Government, The Federal Cases Vol. 1, Case No. 397, pp. 926-928. 12. Swartztrauber, pp. 61-63.

PAGE 73

19, 62 13. Lord Williams Strang, Britain in World Affairs (New York: Frederick A. Praeger, 1961), pp. 99-100. 14. Swartztrauber p. 65. 15. Ibid. pp. 66-67. 16. Ibid. pp. 70-71. 17. Ibid. pp. 72-74. 18. United States Department of State, Papers Relating to the Foreign Relations of the United States (Washington, D.C., : Government Printing Office, 1887), p. 439. Henry G. Crocker, ed., The Extent of the Marginal Sea: A Collection of Official Documents and Views of Representative Publicists (Washington, D.C.: Government Printing Office, 1919), p. 487. 20. Swartztrauber, pp. 74-75. 21. Ibid., p. 76. 22. Ibid. pp. 76-77. 23. The United States by the Seward Convention of 1867 had purchased all the Russian Territory on the North American continent along with the adjacent islands. This area had been a rich seal fishery but due to the method used to capture the seals and general over-exploitation, the seals were in danger of extinction. The most common and efficient method of capturing seals was in the open sea but it was also the most destructive since 80 to 90 percent of the captured seals were females in search of food for their pups who would die if their mothers did not return. Therefore to protect the seal fisheries Russia in 1835 and the United States in 1869 passed legislation forbidding the capture of female seals. The Japanese and British — the major offenders — were not obligated to abide by these domestic laws and continued to capture female seals. William Williams, "Reminiscences of the Bering Sea Arbitration," American Journal of International Law (October, 1943) pp~i 562^ 584^ 24. Swartztrauber, pp. 87-88. 25. Ibid. pp. 78-82. 26. Henry Wheaton, Elements of International Law (Boston: Little, Brown and Co. 1866)

PAGE 74

63 27. Some publicists preferred the three-mile rule to the cannon-shot range because it served as an all-purpose rule for various aspects of territorial seas; the Swiss Johann Kaspar Bluntschli (1808-1881) the Italian Pasquale Fiore (1837-1914) and the Frenchman B. Castel were of this opinion. Swartztrauber p. 83. 28. Ibid. pp. 82-84. 29. James Kent, Commentaries on American Law 4 Vols. (Boston: Little, Brown and Co., 1896). 30. Henry Wagner Halleck, Halleck's International Law (London: K. Paul, Trench, Trubner, and Co., Ltd., 1908) 31. Crocker, p. 609. 32. From the mid-eighteenth century the major proponent of the six-mile limit was Spain. In 1830 Spain defined smuggling to be the approach of a ship under 200 tons with dutiable goods aboard. England refused to recognize Spain's six-mile jurisdiction and ordered the Royal Navy to protect English ships from three miles of the Spanish coast. Although Spain did not retract this law, in the face of British resistance Spain was unable to enforce it. Since the other European states knew that the power of the British Navy was behind them, they also ignored the six-mile limit and fished up to three miles of the Spanish coast. Swartztrauber, p. 90. 33. Ibid. p. 91 34. United States Congress, United States and Mexico "Treaty of Peace, Friendship, Limits, and Settlement, Feb„ 2, 1848, Article 5, United States Statutes At Large Vol-. IX p. 926. 35. Swartztrauber, p. 92. 36. Crocker, pp. 632-636. 37. Swartztrauber, pp. 93-95. 38. Fulton, p. 608. 39. Crocker, p. 554. 40. Swartztrauber, p. 96. 41. Crocker, p. 544. 42. Ibid. p. 574-575.

PAGE 75

64 43. Ibid., p. 599. 44. Swart ztrauber pp. 97-99.

PAGE 76

CHAPTER THREE 1900 TO WORLD WAR II At the beginning of the 20th century, the three-mile limit was observed along most coastlines. England, France, Germany, and The Netherlands — states which held the threemile limit — had colonized or taken into their spheres of influence most of the coastlines of Africa, South Asia, and Oceania. Consequently, these areas had three-mile territorial seas. States which did not hold the three-mile limit, Uruguay, Scandinavia, Iberia, and Mexico, possessed only a small portion of the world's coastline and only 10% of the world's ships. In the first quarter of the 20th century the three-mile limit had reached its peak of acceptance. England — the greatest advocate of the threemile limit — was still the most powerful state but global changes were beginning to foreshadow the end of Britain's 1 supremacy. Although Britain still possessed unparalleled maritime strength, its relative power had declined. In 1815 Britain's navy was greater than the navies of all the other states combined. By 1914 the naval strength of Germany, France, and the United States had increased and their combined navies were larger than the British. Nevertheless, 65

PAGE 77

66 Britain was still dominant — possessing not only the greatest 2 number of capital ships, battle cruisers, and cruisers but 3 also the largest merchant marine fleet. However, Britain no longer exclusively controlled the seas but had begun to share control with the other emerging maritime nations. The other major change in the power structure at the turn of the century was the rise of two non-European states, the United States and Japan. Both of these emerging states defeated established European nations in wars. Although previously ignored, through their show of military strength these non-European states now commanded a voice in global affairs. By their ascendancy they diminished the relative power wielded by the established European states — primarily Britain. Both these states upheld the three-mile territorial limit and upon gaining control over additional territory established three-mile zones. Throughout the 19th century the United States expanded its territory to become a two-ocean state and continued to develop its economy. With its victory over Spain in the Spanish-American War of 1898, the United States emerged as a military force on the world scene. It also became an imperial power; it gained the former Spanish colonies of Cuba, the Phillippines and Puerto Rico whose territorial seas it changed from six to three miles. With this increase of power, the United States had a greater impact on international affairs, including the development of the law of the seas

PAGE 78

67 Japan also became a state to be noticed after its victory in the Russo-Japanese War of 1904-5. This victory marked the beginning of the growth of the Japanese Empire and the demise of the Czarist Russian Empire. The Peace of Portsmouth gave the Japanese the southern half of Sakhalin reducing the Russian coastline by approximately 1,000 miles. To increase their fishing grounds, the Japanese changed the 4 previously Russian ten-mile fishing zone to three miles. Britain continued to pressure those states which extended their territorial seas beyond three miles. In 1905 a Canadian ship was captured while fishing in the mouth of the Rio de la Plata to which Uruguay claimed exclusive rights. Britain protested this claim and the ship was released. Also in the same year, Britain supported the right of British, French, and German subjects to fish three miles from the Iberian coast which held a six-mile limit. The British Foreign Office declared that the British government "did not recognize any claims of the Spanish or Portuguese governments to exercise jurisdiction over British 5 vessels beyond the three mile limit." Britain was determined that the three-mile limit be upheld, giving British ships the maneuverability they required to maintain their far-reaching empire. Despite this, Britain itself maintained claims which extended beyond the three-mile limit although sometimes it relirquished or modified these claims. After protests were lodged by Norway and Sweden, British control over fishing

PAGE 79

68 regulations for the waters surrounding Scotland were interpreted by the Foreign Office as applying only to British subjects. In 1927, following a collision in the Bristol Channel, a British court of appeals found that the Channel, which is a width of 20 miles, was not part of the territorial seas. Although Germany signed both the North Seas Fisheries Convention (1882) and the Suez Convention (1888), it did not formally adopt a three-mile territorial sea until 1909. In 1915 the German Supreme Prize Court upheld the international legality of the three-mile limit as opposed to the four-mile limit held by Sweden and Norway. This resulted from a World War I German capture of a Swedish ship between three and four miles from the Swedish coast. After World War I, Germany — maintaining its support of the three-mile limit — protested the larger Finnish customs zone which it considered to be illegal. In 19 24 Germany and the United States signed a treaty pledging to uphold the three-mile limit as the "proper limits of territorial waters." Some European states such as Italy (1908) the Netherlands (1904) and Denmark (1900) which had 19th-century treaty obligations committing them to some form of the three-mile limit, passed domestic legislation confirming their commitments in the early 20th century. Other states gave in to either diplomatic pressure or the impossibility of maintaining wider zones in World War I and so changed their limits. Spain and Portugal succumbed

PAGE 80

69 to international pressure especially exerted by Britain to change their limits but did not totally accept the threemile limit; Portugal passed a law adopting a three-mile fishing limit but kept a six-mile neutrality zone while Spain retained a six-mile fishing zone and adopted a threemile neutrality limit. Mexico also gave in to international pressure — primarily from the United States after the Spanish-American War — and reduced its three-league limit to three miles. Sweden and Norway, wishing to remain neutral in World War I, relinquished their four -mile limits which they found too difficult to defend. As the power of the United States grew and as its maritime strength increased, it recognized the advantages of maintaining the three-mile limit. The United States now wanted to keep as much of the ocean as possible free for military and commercial navigation. Shortly after its victory over Spain, it indicated its support of the threemile limit in several ways. In 1900 the United States accepted a code of naval warfare which was based on the three-mile limit. Then in 1901 prior to the building of the Panama Canal, Britain and the United States concluded a treaty in which they agreed to a three-mile limit off the canal zone. The following year the United States declared 7 xts support of the three-mile limit. Prior to World War I the practice of settling disputes through international arbitration gained in popularity. In 1899 the First Hague Peace Conference established the

PAGE 81

70 Permanent Court of Arbitration. This Court handled many disputes resulting in bilateral and multilateral arbitration treaties. A number of these dealt with territorial sea limits The controversy surrounding seal fishing in the Bering Sea was settled by the Fur Seal Convention of 1911. The earlier attempt to solve the problem of oceanic seal fishing by the Bering Sea Arbitration of 1893 was unsuccessful. In this Arbitration the use of certain seal fishing equipment was forbidden. The United States interpreted this regulation as allowing the seizure of ships and people who possessed this equipment. The enforcement of this interpretation led to a dispute with the British following the American capture of Canadian sealing vessels. The Fur Seal Convention of 1911 — a multilateral convention between Britain, Russia, Japan, and the United States — settled the problem by establishing a seal conservation program based on the three-mile limit. The signatory states agreed to prohibit their subjects from killing, capturing, or pursuing these animals beyond three miles of their territorial seas. The seal herd was saved from extinction and within a few o years regained its population. The North Atlantic fisheries dispute also involved conservation of fisheries and the delimitation of territorial juridiction. This dispute was based on the long standing rivalry of the United States and Britr.in over fishing rights off the Canadian coast. By the Convention of 1818

PAGE 82

71 the United States had to relinquish its rights "to take, dry, or cure fish on or within three marine miles of any of 9 the coasts, bays, creeks or harbors. The Canadians attempted to extend their jurisdiction beyond this area for conservation of the fisheries. The Americans wanted to expand the area in which they were allowed to fish. This conflict of interest resulted in arrests, seizures of ships, deteriorated relations between the states and several attempted negotiations. Finally, in 1908, Britain and the United States agreed to submit their dispute to the Hague Permanent Court of Arbitration. Seven questions were submitted to the Tribunal. The first asked whether or not Britain had the right in general to enforce conservation regulations. Another central question was how the baselines for the three-mile limit should be measured. The Permanent Court decided in favor of Britain regulating the fisheries for purposes of "protection and preservation." Recognizing the need for international cooperation in species conservation, the Court recommended the creation of a Permanent Mixed Fishery Commission to regulate conservation measures. The Court also recommended that the United States and Britain pattern their delimitation of bays after the North Seas Fisheries Convention which used the ten-mile rule drawing a straight line across the bay at the point where the width exceeded ten miles. The United States and Britain acted on these recommendations and

PAGE 83

72 on July 20, 1912 signed an agreement on the Mixed Fisheries Commission and the ten-mile rule for bays. Another dispute which was submitted to arbitration concerned a treaty between the United States and Nicaragua. Signed in 1914, the treaty gave the United States the right to build a trans-oceanic canal through Nicaragua and to establish a naval base on the Nicaraguan coast of the Gulf of Fonseca which was surrounded by Nicaragua, Honduras and El Salvador. Several Central American states objected to the treaty. They argued that the Gulf of Fonseca was a closed historical bay, owned jointly by the three states and that any rights granted to other states had to be approved by all the littoral states. Hoping to have the treaty cancelled, Costa Rica and El Salvador asked the Central American Court of Justice to determine the legal status of the Gulf. The judges agreed that the Gulf of Fonesca was a closed historical bay belonging to the three littoral states each of which possessed a territorial sea of one league (three miles) along its coastline. Outside the territorial seas the three states held jurisdiction in common for customs and national security. Therefore the treaty between the United States and Nicaragua — allowing United States warships to be under exclusive United States control in the Gulf — would infringe upon the rights of Honduras and El Salvador The Hague Peace Conference of 1907 instructed belligerents "to respect the sovereign rights of neutral Powers and

PAGE 84

/J to abstain in neutral territory or waters," from any "vio12 latxon of neutrality. It did not define the limits of these waters. Therefore with the advent of World War I, states had to declare the limits they held for neutral waters. In 1912, France, which had previously held a threemile fishing limit and a neutrality zone determined by cannon-shot range, established a six-mile neutrality zone. Italy, in 1914, proclaimed a six-mile neutrality zone, and in the same year Uruguay decreed a five-mile neutrality zone. Before World War I, when Russia was a weak maritime state, primarily interested in fishing, it attempted to extend its seaward jurisdiction from three to twelve miles. The Russian Professor de Martens (1845-1909) who advocated an extended territorial sea, based on increased cannon range, was a government official in the late 19th century and influenced Czarist opinion. Russian Foreign Minister Sazanov on several occasions in the early 20th century expressed his government's position that the territorial sea is determined by the extent of control from land. Although at this time cannon range was approximately twelve miles, Russia in its weak position could never hope to enforce this territorial limit against the maritime powers. Just before World War I, Russia was able to increase some aspects of its seaward jurisdiction while the major maritime states were concerned with their own naval rivalries. In 1893 Britain and the United States agreed to a

PAGE 85

74 ten-mile exclusive Russian fishing zone on the Pacific Ocean. In 1907 Russia signed a treaty with Romania creating a ten-mile exclusive fishing zone between the two states. Then in 190 9 Russia established a twelve-mile customs jurisdiction. In 1911 it created a twelve-mile territorial sea and fishing zone but only on the Pacific Ocean and not on any European waters. Then after Russia's defeat in World War I and its subsequent revolution and civil war, it was even less able to defend any seaward extensions. Nevertheless, the Soviet government in 1927 decreed a twelve-mile territorial sea. Since the Soviet Union did not have the naval capability to enforce this limit, other states ignored its twelve-mile 14 decree and only recognized a three-mile territorial sea. ********* The first international conference to deal with law of the sea issues was the League of Nations Conference for the Codification of International Law held at the Hague in 1930. To determine the feasibility of this, the Sub-committee on Territorial Waters in 1926 sent questionnaires to governments of League and non-League members. The governments were asked whether they thought a codification convention on territorial seas was possible and desirable. The members of the Sub-committee drafting the questionnaire held divergent views on the extent of territorial seas. Although the questionnaire incorporated the three-mile limit — as proposed by the American delegate, George W. Wickersham — the opposing

PAGE 86

75 views were also included. The Chairman of the Sub-committee, Walter Schucking of Germany, believed that territorial seas should be determined by the extent of cannon range; he advocated a six-mile territorial sea with larger zones for special purposes. Professor de Magalhaes of Portugal recommended a twelve-mile territorial sea for all purposes. The inclusion of these opposing opinions encouraged states to re-evaluate their positions on territorial seas. The answers to the questionnaires indicated a willingness to attempt the codification of laws of the sea. Twenty-five states agreed that a convention on territorial seas was possible and desirable. The four major maritime powers' — Great Britain, Germany, the United States, and Japan — were among these. Only a few states disagreed: France, Italy, and Poland replied that it was not the right time for such a convention; Austria and Switzerland — both land-locked — abstained; Spain objected to the provision of a three-mile draft convention. Another question addressed the possibility of states coming to an international agreement on exploitation of sea products. The majority of states agreed on the possibility: 22 states, including the United States, France, and Italy, voted for a convention dealing with this issue; six states, including Great Britain and Japan voted against it; and Austria and Switzerland abstained. As a result of these replies, the League of Nations Assembly resolved that a conference on territorial

PAGE 87

76 seas be held and provided for the establishment of a 17 Preparatory Committee to decide on areas of discussion. In order to identify the major law of the seas issues, the Preparatory Committee requested states to submit their views. Some of the issues which emerged were rights over territorial waters, rights of coastal states to the air above and the sea-bottom and subsoil covered by territorial waters, breadth of territorial waters, determination of the baselines, straits, and innocent passage. In answer to the desirable limits of territorial seas and contiguous zones, most states favored a three-mile territorial sea but some preferred a wider margin; several states claimed special jurisdiction zones of twelve miles. On the basis of these replies, the Preparatory Committee drafted an agenda for .18 discussion. The Conference convened at the Hague March 13, 1930, with delegates from 48 states attending; nine non-League members, including an observer from the Soviet Union participated in the Conference. The diverse composition of the Conference and the procedural rules made it unlikely that the Conference would pass a law supporting a three-mile territorial sea. Participating states included maritime and coastal ones, and those established as a consequence of World War I. The procedural rules stipulated that drafts in committee were to be approved by a two-thirds majority, while for the final vote in the plenary session only a simple majority was needed. Although a majority of the

PAGE 88

77 states supported the three-mile limit, not enough did so to pass the two-thirds requirement in committee. Britain and Japan completely rejected any extensions past three miles while other states refused to accept a single territorial zone for all purposes. Britain also objected to the compromise solution of a three-mile territorial sea with a twelve-mile contiguous zone. These inflexible positions made negotiations difficult. At the end of the Conference states maintained their opposing views. Because of the diversity of opinion, the Conference decided that rather than to take a formal vote, it would allow the states to announce their positions on territorial sea limits. Thirty-seven states declared their positions: ten (Union of South Africa, the United States, Great Britain, Australia, Canada, China, Denmark, India, Japan, and the Netherlands) were for a three-mile territorial sea; two states (Greece and the Irish Free State) were for a three-mile territorial sea but would accept an additional contiguous zone; seven states (Germany, Belgium, Chile, Egypt, Estonia, France, and Poland) were for a threemile territorial sea only if there was also a contiguous zone; four states (Iceland, Norway, Sweden, and Finland) were for a four-mile territorial sea; six states (Colombia, Italy, Romania, Uruguay, Yugoslavia, and Brazil) were for a six-mile territorial sea; six other states (Cuba, Spain, Latvia, Persia, Portugal, and Turkey) were for a six-mile

PAGE 89

territorial sea with a contiguous zone; and two states (Czechoslovakia and the Soviet Union) abstained. Britain's refusal to accept any jurisdictional extension past three miles was the major factor in the Conference's failure to codify a territorial sea limit. The German proposal — a three-mile territorial sea with nine additional miles of adjacent zone — would probably have been accepted as a compromise solution by a majority except for British intransigence. Thus failing to agree on territorial sea limits, the Conference recommended that another conference be convened to deal with territorial sea issues. How19 ever, one was never held. After the Hague Conference of 1930 — and the obvious inability of states to agree on a territorial sea limit — more states began to criticize the three-mile territorial sea and to extend their seaward jurisdiction through contiguous zones. ********* Although the idea and use of the contiguous zone goes back to the early eighteenth-century-British Hovering Acts, the actual phrase was first used and popularized at the Hague Conference. The term refers to the exercise of jurisdiction over ocean space adjacent to the territorial sea for special purposes such as security, neutrality, sanitation, customs, and fishing. By the time of the Hague Conference many states had already extended their seaward jurisdiction

PAGE 90

79 by creating special purpose zones and by concluding treaties with other states toward this end. United States actions during the Prohibition Era (1920-33) greatly contributed to the international acceptance of contiguous zones. In attempts to curtail smuggling, the United States enacted several laws creating special customs zones and concluded treaties with other states establishing the distance within which the United States had the right to search and detain any foreign vessels suspected of smuggling alcoholic beverages. In 1919 the United States adopted the Eighteenth Amendment to the Constitution which prohibited the manufacture, sale, or transportation of intoxicating liquors in the 20 United States and its territories. The United States then faced the virtually impossible task of enforcing this amendment. To curtail smuggling, it enacted several laws providing for the enforcement of the Eighteenth Amendment. The first of these was the National Prohibition Act of 1919, also known as the Volstead Act, which was supplemented by an Act of November 23, 1921. The latter Act gave government officials the authority to seize any boat or vehicle within 23 the territorial sea which illegally transported liquor. In February, 1922, an American coastal patrol four miles from shore captured a British ship which had transferred its cargo of liquor to a small boat to take to shore. The owners of the ship sued for damages. A United States court ruled that the participation of the ship's crew in the

PAGE 91

80 delivery of the alcohol constituted the constructive presence 1 of the mother ship in the territorial sea of the United States and therefore denied the claims for damages. The British protested the seizure of the ship in the ill-defined contiguous waters. The United States then passed the Tariff Act of 1922 extending the jurisdictional area for the Volstead Act to 12 miles. This Act allowed United States' officials to board and search any vessels within 12 miles of shore and resulted in a large number of seizures. In the fiscal year 1924-5 the following number of foreign vessels were captured: British — 28, French — 4, Honduran — 2, Norwegian — 2, Italian — 1, Cuban — 1, and Costa Rican — 1. These seizures aggravated United States relations with the countries involved. Another related source of antagonism between the United States and other states was the United States Supreme Court ruling (1923) forbidding foreign ships from entering United States' territorial waters even with sealed alcoholic beverages meant for passenger and crew consumption. This ruling interfered with the laws of other states and their rights on board their ships and was therefore criticized by them. Then on June 12, 1923, the United States sent draft treaties to Britain, Spain, Japan, France, and Italy proposing ways by which United States officials could search ships twelve miles from shore. Some interpreted this as part of a United States plan to increase its territorial seas to 24 twelve miles. (Although at one time the British had

PAGE 92

81 extended their customs jurisdiction beyond three miles, in 1876 they relinquished all claims beyond three miles and became staunch supporters of an all-purpose three-mile limit.) The British response was swift and definite; British Foreign Secretary Lord Curzon declared: "There is no chance of our agreeing in any circumstances whatever to the American proposal for a twelve-mile territorial limit." 25 Thus negotiations to reach a compromise solution between Britain and the United States became necessary and resulted in the Anglo-American Treaty of 1924. The first article of the Treaty confirmed both states' adherence to a three-mile territorial sea. The British agreed to the right of United States officials to board, search, and seize vessels suspected of violating American customs law but only within the distance in which the suspected vessels could travel in one hour. The United States agreed to permit foreign ships to enter American territorial waters with alcoholic beverages for passenger and crew consumption if the alcohol was kept sealed while the ship was in American territorial waters. Between 1924 and 1930 the United States concluded similar treaties with France, Germany, Italy, Norway, Sweden, Denmark, Holland, Spain, Belgium, Poland, Greece, Cuba, Chile,, Panama, and Japan. And thus a new method of determining the limit of seaward jurisdiction emerged based

PAGE 93

82 upon the speed capability of a ship and therefore necessari Kl 26 lly variable. Several United States Supreme Court rulings upheld the legality of the Anglo-American Treaty of 1924. In 1927 the United States Supreme Court interpreted the treaty to mean that it was legal for the United States to prosecute the persons seized on an offending ship outside American territorial waters for conspiracy to commit illegal importation. Another Supreme Court decision further defined the American interpretation of the treaty. In Cook v. United States (1933) it ruled that the seizure eleven-and-one-half miles from shore of a ship which was only capable of ten knots was illegal and that the Tariff Act of 1922 which provided for a twelve-mile customs zone was superceded by the Anglo-American Treaty which substituted a varying limit dependent upon 27 the ship involved. The repeal of Prohibition by the Twenty-first Amendment in 1933 did not result in a decrease of American customs jurisdiction over other taxable goods. In 1934 a United States District Court ruled that the end of Prohibition did not end the right of the United States to search ships under the Anglo-American Treaty. The Anti-Smuggling Act of 1935 even increased United States jurisdiction in the high seas £ 28 for customs purposes. This Act provided for the establishment of a customsenforcement area — a changing zone which could be declared by the President whenever smuggling vessels were detected

PAGE 94

83 outside American territorial seas. The customs-enforcement area could extend to 100 miles from where the President said the offending vessels were hovering but not more than 29 50 miles from the customs zone. Once again the British protested the seaward extension of American jurisdiction over the high seas. In a semiofficial communication the British government expressed concern that in cases where there is no treaty or arrangement between the United States and the appropriate foreign government the ordinary rules of international law must apply, and the United States cannot be held in international law to have the right, by virtue of municipal legislation, to extend beyond the three mile limit, as is done in the present bill, the area within which jurisdiction may be exercised over foreign vessels. In the view of His Majesty's Government such extension could only be recognized when, agreed upon by means of an international treaty. Despite the British communication, the United States established five customs-enforcement areas all in 1935. During this time sixteen ships were captured. Fifteen of these seizures were upheld by international law — the ships were either American-registered or within a twelve-mile limit. Even though the other ship was a British-flag ship seized between 15 and 36 miles from the coast, the British 31 did not protest the seizure. During the inter-war years, many other states extended their jurisdiction over their contiguous high seas for various purposes such as customs, fishing, security, and sanitation. One of the most disputed cases concerned Norway's extension of its territorial seas to protect its

PAGE 95

84 fisheries. In 1935 Norway issued the Royal Norwegian Decree of July 12 which re-drew the baselines from which its territorial sea was determined; the new baselines were drawn around the fjords. The Norwegian territorial sea was delimited four miles seaward of these baselines while the waters landward from the baselines were considered internal waters. The new baselines allowed Norway to claim parts of the sea up to twenty miles from land as internal or territorial waters and in this way excluded foreign fishermen from these areas. Britain vigorously protested this extension but nothing was resolved until after World War II. Other states extended their claim from five miles to one-hour sailing distance with twelve miles the most common claim for contiguous zones. Five states even extended their territorial seas beyond three miles: Bulgaria (1935) to six miles; Greece (1936) to six miles; Honduras (1936) to twelve miles; Iran (1934) to six miles; and Romania (1934) to six miles. Among the states which established twelve-mile contiguous zones for various purposes were: China (1934) for customs; Czechoslovakia (1936) for anti-smuggling; Denmark (1935) for anti-smuggling; El Salvador (1933) for police and security; Guatamala (1939) for port authority jurisdiction; Hungary (1932) for anti-smuggling, Iran (1934) for marine supervision zone; Italy (1940) for customs; Poland for (1933) customs; USSR (1935) for sovereignty over air space of maritime territorial belt; and Venezuela (1939) for security, customs and sanitation.

PAGE 96

85 One of the earliest direct effects of World War II on the development of law of the sea was the extension of neutrality and security zones by non-belligerents. The first such effort grew out of the Meeting of the Foreign Ministers of the .American Republics held in Panama in September and October, 1939. On October 3, representatives of twenty-one American states, acting on the proposal made by the United States, adopted the "Declaration of Panama." This resolution confirmed the neutral status of the American states and extended their security zones on a continental basis but excluded Canada and other European possessions and colonies. The purpose of the Declaration was to protect the neutrals' rights by creating "a zone of security including all the normal maritime routes of communication and trade between the countries of America." Therefore, these states resolved and declared that as a measure of continental self-protection, the American Republics, so long as they maintain their neutrality, are as of inherent right entitled to have those waters adjacent to the American continent, which they regard as of primary concern and direct utility in their relations, free from the commission of any hostile act by any non-American belligerent nation, whether such hostile, act be attempted or made from land, sea or air. J These neutral waters were designated by navigational lines beginning at the Maine-New Brunswick border, going south around Cape Horn, and ending at the Washington-British 34 Columbia border." The width of this neutrality belt varied usually from 500 to 900 miles but even extended as far as

PAGE 97

86 1200 miles at some points off the coasts of Chile and 35 Peru. The Declaration also made provisions for collective action by the American Republics to obtain support for and secure observance of the neutrality belt by the belliger3 fi ents, and to patrol the area for offenders. Although neutral states often had wanted to restrict the activities of belligerents in their adjacent waters outside their territorial seas, the Panama Declaration set a precedent concerning the relations between neutral and belligerent states. The response of the major belligerents 37 to the Declaration was generally uniform. Most agreed with the British who stated that the Declaration was not to be understood as extending the American territorial seas beyond three miles. On three occasions — December 23, 1939, March 16, and May 24, 1940 — the American Republics sent joint notes to the European belligerents protesting their 3 8 hostile activities within the proclaimed security zone. The British replied to the first note that because the belligerents' legitimate rights were affected by the Declaration their consent was necessary for the legal maintenance of the security zone. Furthermore, the British stated that they would not be able to accept the security zone unless they were certain that this zone would not serve as a sanctuary for German warships and supply ships or otherwise aid the German war effort. Since this precondition for acceptance of the security zone could not be met, the British stated that they did not intend to comply with the Panama

PAGE 98

87 Declaration and would continue to maintain their full 39 belligerent rights. With no basis in international law, and lacking support of the belligerents, the Declaration was largely ignored. The American Republics remained unable to regulate hostile activity in the waters adjacent to their territorial seas. The importance of the Panama Declaration lies in the attention it brought to the possibility of neutral states extending their neutrality zones beyond their territorial seas during times of war. In such a case, the neutral state would have to be able to enforce its claims since the belligerent states would be unlikely to willingly give up areas of hostile operations. According to the Hague Convention of 1907, a neutral state was required to allow the use of its harbors to belligerent powers impartially as long as the belligerents did not violate the right of innocent passage. Despite this Convention, in the early part of World War II while the United States was still neutral, President Roosevelt invoked the Act of March 4, 1917, to create "defensive sea areas" by executive order for "purposes of national defense." Between May 1939 and November 1942 thirty-four naval defense areas 41 were established. Within these areas and the air space above them, foreign persons and vessels were prohibited entry unless authorized by the Secretary of the Navy. Even though most of the restricted zones corresponded to the

PAGE 99

88 three-mile territorial sea, the right of innocent passage was not allowed. On entering the War, the United States established "maritime control areas" outside its three-mile territorial sea on the high seas. Between December 1941 and November 1942, on the grounds of national defense, President Roosevelt (through six proclamations) created 17 such areas 42 varying in seaward extensions. The proclamations forbade any vessel not under United States naval or other supervision to enter the area "except during daylight, when good visability conditions prevail and then only after specific permission has been obtained." Additionally any vessel entering the area was required to obey any further instructions from United States authorities. With the end of the war these maritime control areas were repealed by the 43 proclamations of September 1945 and May 1946. ********* These increasing jurisdictional claims marked the beginning of a period of instability in ocean law. From the turn of the century to the onset of World War II, states generally maintained a three-mile territorial sea. Nevertheless, they continued to extend their jurisdictional control seaward through the creation of contiguous zones for special purposes and of varying distances. For customs enforcement, the United States made claims more extensive thi.n any other state. The creation of these special zones added a new complexity to the search for consensus on law of

PAGE 100

89 the sea. It was no longer a matter of only a regime for territorial and high seas, but of an increasing number of jurisdictional issues. In an effort to reach agreement on these issues, the Hague Conference was the first international forum to attempt codification of law of the sea. It was unsuccessful. Adding to this instability, Britain's power and therefore its ability to influence law of the sea was diminishing relative to other states. Notes Sayre A. Swartztrauber The Three-Mile Limit of the Territorial Seas (Annapolis: Naval Institute Press, 1972) p. 110. Comparative Naval Strengths of Selected States in 1914 Capital Ship 3 Total (Major and Major Warships Battle Warships under State bruisers Cruisers Construction) Great Britain 72 120 192 19 Germany 39 50 89 16 United States 35 32 67 4 France 25 27 52 8 Japan 20 21 41 6 Italy 11 17 28 5 Russia 9 14 23 17 Ibid. p. 108. World s Merchant Ships of 100 Tons or More in 1914 States Where Owned Steam Sail Total United Kingdom 18,892 364 19,256 British Dominions 1,632 157 1,789 Empire Total 20,524 521 21,045 Germany 5,135 325 5,460 United States 4,330 1,038 5,368 Norway 1,951 547 2,504 France 1,922 397 2,319 Japan 1,708 1,708 Italy 1,430 238 1,668 Netherlands 1,472 25 1,497

PAGE 101

90 Sweden 1,015 103 1,118 Spain 884 15 899 Greece 821 16 837 Denmark 770 50 820 Other States 3,436 411 3,847 Grand Total 45,404 3,686 49,090 Ibid, p. 110. 4. Ibid. p. 109. 5. Thomas W. Fulton, The Sovereignty of the Sea (London: William Blackwood and Sons, 1911), p. 667. 6. Ibid., pp. 111-115. 7. "The Government of the United States claims and admits the jurisdiction of any State over its territorial waters only to the extent of a marine league, unless a different rule is fixed by treaty between two States: even then the treaty States are alone affected by the agreement. Henry G. Crocker, ed. The Extent of the Marginal Sea: A Collection of Official Documents and Views of Representative Publicists (Washington, DC: Government Printing Office, 1919), pp. 680-681. 8. Swartztrauber, pp. 117-118. 9. "Great Britain and the United States, Convention Respecting fisheries, Boundary and the Restoration of Slaves, Oct. 20, 1818," Public Statutes at Large Vol. VIII, p. 249. 10. Ibid. pp. 118-121. 11. Ibid. pp. 121-123. 12. James Brown Scott, ed. The Reports to the Hague Conferences of 1899 and 1907 (Oxford: Clarendon Press, 1917) p. 832. 13. Crocker, p. 529. 14. Swartztrauber, pp. 123-125. 15. Ibid. pp. 132-134. 16. League of Nations, Third Session of the Committee of Experts for the Progressive Codification of International Law (Geneva: League of Nations, 1927), pp. 8-13. 17. Ibid. pp. 34-35.

PAGE 102

91 18. League of Nations, Conference for the Codification of International Law, 1 Bases of Discussion Drawn up for the Conference by the Preparatory Committee Vol. II (Geneva: League of Nations, 1929), pp. 27-29. 19. Swartztrauber pp. 136-139. 20. United States Constitution, Eighteenth Amendment. 21. Smuggling of alcoholic beverages by ships under foreign flags proved to be an especially difficult problem. Ships carrying liquor would anchor just outside the United States' territorial seas; then the contraband would be transferred to smaller, faster boats which would bring the alcohol to shore. As smuggling of alcoholic beverages into the United States became increasingly profitable, more people — especially from neighboring British Canada, Bermuda, and West Indies — engaged in this activity. 22. US Statutes At Large Vol 41, p. 305. 23. Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States (Boston: Little, Brown and Co., 1945), pp. 780-782. 24. Swartztrauber, pp. 142-143. 25. Phillip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York: G.A. Jennings Co., Inc. 1927) p. 234. 26. Swartztrauber, p. 144. 27. Hyde, p. 785. 28. Swartztrauber, p. 145. 29. Anti-Smuggling Act of 1935 30. Marjorie Whiteman, Digest of International Law Vol 4. (Washington D.C.: Government Printing Office, 1963) p. 492. 31. Swartztrauber, p. 145. 32. Ibid. p. 148. 33 Ibid. p. 152 34. "Final Act of the Consultative Meeting of Foreign Ministers of the American Republics," Department State Bulletin, pp. 321, 331-333.

PAGE 103

92 35. Swartztrauber, p. 153. 36. "Final Act of the Consultative Meeting...," p. 333. 37. Robert W. Tucker, International Law Studies: the Law of War and Neutrality at Sea (Washington, D.C., 1957), pp. 224-226. 38. Swartztrauber, p. 153. 39. "Reply of the United Kingdom to the Protest of American Republics Concerning Violation of the Neutrality Zone," Department State Bulletin (Washington, D.C., 1940), pp. 199-200. 40. Tucker, p. 226. 41. Kiska, Unalaska, and Kodiak, Alaska; Manila Bay and Subic Bay, Philippines; Pearl Harbor, Honolulu, and Kaneohe Hawaii; Culebra, Puerto Rico and Guantanamo Cuba in the Caribbean; the islands of Palmyra, Johnston, Midway, Wake, Kingman Reef, Rose, Tutuila, and Guam in the Pacific; and Portland, Maine, Portsmouth, New Hampshire, Narragansett Bay, San Diego, San Francisco, Columbia River Entrance, Puget Sound, Juan de Fuca Strait, New London, New York, Delaware Bay-River, Chesapeake Bay-Norfolk, Charleston, Bussards Bay and Vineyard Sound, Massachusetts, and Matagorda Bay, Texas. Swartztrauber, p. 154. 42. Hawaii 53 nautical miles, Cristobal (Panama) 36 n.m., Gulf of Panama 50 n.m., Boston 24 n.m., San Francisco 24 n.m., Columbia River 50 n.m., Puget Sound 50 n.m., Southeastern Alaska 50 n.m., Prince William Sound (Alaska) 65 n.m., Kodiak (Alaska) 50 n.m., Unalaska 50 n.m., Casco Bay (Maine) 12 n.m., Portsmouth (New Hampshire) 11 n.m. Cape Hatteras 17 n.m. Key West 35 n.m. Los Angeles 15 n.m., San Diego 12 n.m. Ibid. pp. 155-156. 43. United States Naval War College, International Law Documents 1948-1949 (Washington, D.C.: Government Printing Office, 1950), pp. 170-171.

PAGE 104

CHAPTER FOUR FROM THE TRUMAN PROCLAMATION TO UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA II In 194 5 the United States promulgated the Truman Proclamations expanding its jurisdiction over its adjacent waters and resources. This claim initiated a flurry of other contiguous zone demands and even territorial sea expansion on the part of the other powers. The proliferation of increased seaward jurisdiction — which conflicted with each other and diminished the traditional high seas freedoms — created an unstable legal regime. Therefore, new internationally accepted laws regulating ocean use beyond the territorial sea became necessary. In the early 1950' s the United Nations through the International Law Commission began drafting articles governing ocean use. In 1958 the United Nations convened the first international conference whose purpose it was to codify ocean law. While the United Nations Conference on the Law of the Sea I (UNCLOS I) succeeded in concluding four conventions on the territorial sea, fishing and conservation, the high seas, and the continental shelf, it was unable to reach agreement on two important issues — the breadth of the territorial sea and the related contiguous fishery zone. A 93

PAGE 105

94 second conference convened in 1960 (UNCLOS II) It was also unsuccessful in establishing the territorial sea limit and fishing zone. Meanwhile, in the absence of internationallyaccepted laws governing ocean use beyond territorial seas, states continued to take unilateral action and make treaties extending their seaward jurisdiction. ********* The Truman Proclamation was the most significant contiguous zone extension since the general acceptance of the three-mile limit. It did more to disrupt the stability of the legal regime of the oceans than any other act. Ironically, it was instituted by the United States which, following the war, had become a global power, active in world-wide ocean policy formulation, and the strongest advocate of the three-mile limit. It possessed the largest merchant marine 2 and warship fleet in the world and had supplanted Britain as the major maritime power. These contiguous zone extensions, although proclaimed by President Truman, were formulated during the Roosevelt Administration. When a dispute arose between the United States and Japan over Japanese salmon fishing off the Alaskan coast, Roosevelt proposed regulations restricting foreign fishing rights in adjacent waters. The Alaskan salmon industry feared Japanese encroachment and urged Congressional action to regulate foreign fishing. In mid-1937 Senator Homer T. Bone of Washington introduced a bill which claimed that the salmon hatched in

PAGE 106

95 Alaska were United States property and therefore subject to Commerce Department regulation. The State Department considered such unilateral legislation to be difficult and dangerous. It therefore recommended that diplomatic negotiations be pursued. Although no conclusive evidence of Japanese fishermen harvesting salmon existed, the Alaskan fishing industry continued to lobby for the exclusion of Japanese fishermen from these waters. In November, 1937, the United States government demanded that Japan stop its 4 present fishing practices. Japan responded that it would not agree to anything which could affect its internationally accepted right to fish the high seas. Negotiations between the United States and Japan continued. The Japanese became increasingly willing to make concessions because of their unsettled international relations and their hostilities with China. On March 25, 1938, the Japanese government agreed to American demands. Despite this, special interest groups in the United States were not satisfied and continued to agitate for a permanent agreement excluding foreigners from the fishing grounds adjacent to the United States. The State Department drafted an outline of a fishing agreement which stated that if the nationals of a country had established a fishery in adjacent waters, that country possessed a prior interest and claim to the fishery. This statement later formed the basis for the Truman Proclamation on Fisheries.

PAGE 107

96 In contrast to the traditional issues concerning fisheries, the origin of the Truman Proclamation on continental shelf resources lies in the non-traditional usage of the oceans — the exploitation of offshore minerals. The first offshore oil was extracted from shallow waters off the California coast in 1894. Usually these early wells were land-based with slanted pipes going into the ocean. In 1898 the first oil well was drilled beneath the sea off the California coast. Even with this development, recovery of offshore oil was gradual and there was little possibility of the exploitation of offshore oil beyond the three-mile 7 territorial limit. The question of mining beyond the three-mile limit was first raised in 1918 when a private individual asked the State Department how he could obtain rights to oil deposits located approximately 4 miles from the nearest American shore but in shallow water of less than 100 feet. The State Department replied that the United States did not possess any jurisdiction to the ocean floor beyond the three-mile territorial sea. The question of who possessed jurisdiction beyond the territorial seas became more urgent as rapid technological advances in the late 1930' s enabled companies to increase their offshore oil production further from shore. The exploitation of oil in the Gulf of Mexico began at this time in the High Island Field off Texas and in the Creole Field in Louisiana. As the companies realized the oil potential in the shallow Gulf of Mexico, they sought the right to

PAGE 108

97 explore and exploit these deposits beyond the three-mile limit. This posed a dual jurisdictional problem — the domestic issue of state versus federal ownership and the international issue of United States' jurisdictional extensions versus other nations' rights. Because the United States Navy feared an oil shortage, it also became interested in claiming the offshore oil deposits and suggested that the entire continental shelf — rather than a set mile limit — be declared a naval oil reserve. President Roosevelt, as in the fishery dispute, was eager to extend United States jurisdiction seaward as far as possible. In the summer of 1938 he asked Assistant Secretary of the Interior, E. K. Burlew, to investigate the feasibility of issuing an executive order to establish "naval oil reserves on the coast beginning with the shoreline and extending halfway across the oceans." Interior Solicitor Margold replied that according to international law the sea-bed beyond the three-mile territorial limit did not belong to anyone and was free for all to use; therefore there was no legal basis for the United States to consider this area its public land prior to actual occupation. Undeterred, President Roosevelt continued to insist that the United States could legitimately extend its jurisdiction beyond the territorial sea. In a memorandum of July 1, 1939, to the Attorney General and the secretaries of State, Navy, and Interior Departments, he stated that new principles of international law might have to be asserted but such principles would not in

PAGE 109

98 effect be wholly new, because they would be based on the consideration that inventive genius has moved jurisdiction out to sea to the limit of inventive genius. He proposed that a joint-interdepartmental committee drawn from the Justice, State, Navy, and Interior Departments with the Attorney General as Chairman study the question and propose legislation for the following session. On March 13, 1940, the Committee to Study Title to Submerged Oil Lands reported to the president. It concluded that governmental rights "should be defined through appropriate court proceedings" and that legislation would be helpful but not necessary for an assertion of these rights. This report further noted that the Navy, still fearing an oil shortage, strongly urged that, at the least, submerged oil lands within the three-mile limit be set aside as a 13 naval oil reserve. With the beginning of World War II, the importance of oil and oil products grew. After receiving a memorandum in 1943 from the Interior Department, which emphasized the abundance of natural resources on the continental shelf, Secretary of Interior Ickes became even more concerned v/ith extending United States jurisdiction over this area. He, in turn, urged the President to take action in creating new 14 limits beyond the three-mile territorial sea. President Roosevelt's major concern was to safeguard the oil in the Gulf of Mexico from exploitation by any European states, particularly Britain. Yet, the possibility of such exploitation in 1943 was unlikely. Secondly, he

PAGE 110

99 still wanted to protect the Alaskan fisheries from future Japanese encroachment — a consideration from the 1937-8 salmon dispute. He maintained his earlier hostile attitude toward developing nations and jealously guarded American offshore resources even though no present threat to these resources existed. In all of these actions, President Roosevelt failed to recognize America's increasing power in the world and the precedent-setting nature of his actions in expanding American jurisdiction seaward. Siding with the domestic objectives of Secretary of Interior Ickes rather than with the 15 international aims of the State Department, in 1943 he instructed the State Department to combine its efforts with the Interior Department to formulate policies on United States control of both fisheries and mineral resources on the continental shelf. Because of their divergent perception of American interests, the Department of Interior and State Department had difficulty reaching an agreement but did so by the end of 1944. This compromise later became 17 the basis for the Truman Proclamations. The policy was approved in March 1945. While taking unilateral action in its oceans policy, the United States was simultaneously encouraging its allies to form a cooperative multi-lateral bloc against the Soviet Union and to use the new international forum — the United Nations — to curtail Soviet political advances. This unilateral approach in expanding United States offshore

PAGE 111

100 jurisdiction undermined other states' belief in America's 1 o commitment to multi-lateral approaches. Roosevelt's continental shelf and fisheries policies soon received the support of incoming President Truman. In early May (following Roosevelt's death in April 1945), the United States notified Britain, the Soviet Union, Canada, Mexico, the Netherlands, Norway, France, Iceland, Denmark, Cuba, and Portugal of the pending proclamations to test 19 international reactions to them. The only state to give its support was Cuba and this was contingent upon being allowed to share in the management of its traditional fisheries. While rejecting a United States request to support a general statement on the continental shelf, the United Kingdom voiced its disapproval of the proclamations. Both Canada and Newfoundland resented the unilateral nature of the proclamations which affected their traditional fisheries. Other governments were officially noncommittal or expressed no interest in exploiting the offshore resources of the 20 United States. Despite general opposition to American proposals, on September 28, 1945, President Truman issued Presidential Proclamation 2667: "Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf." The Proclamation claimed jurisdiction over the continental shelf adjacent to the United States coast for purposes of utilization and conservation of the natural resources. The grounds for this unilateral act

PAGE 112

101 were economic (much-needed oil and other minerals had recently become accessible due to technological advances) and political ("since self-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources"). "Having concern for the urgency of conserving and prudently utilizing its natural resources," the Proclamation began, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and„ .unimpeded navigation are in no way thus affected. One of the problems with this was that no internationally accepted legal definition of the continental shelf existed. Geologists generally defined the continental shelf as the submerged part of the continental land mass beginning at the shoreline and extending seaward until an obvious slope occurs. Although the outer limit of the continental shelf is usually considered to be at a depth of approximately 100 fathoms (600 feet or 200 meters) the width varies from one-half of a mile to 600 miles. Following the Presidential Proclamation, a White House Press Release proceeded to enlarge upon several points. It defined the United States continental shelf as "the

PAGE 113

102 submerged land which is contiguous to the continent and which is covered by no more than 100 fathoms (600 feet) of water." It was, it said, "an area covering approximately 750,000 square miles." It drew attention to the fact that in extending jurisdiction seaward it was concerned not with the domestic issue of federal versus state rights, but with international implications only. It emphasized that its claim to control mineral resources did not in any way affect the right of freedom of navigation on the high seas or ex22 tend United States' territorial waters. Presidential Proclamation 2668: "Policy of the United States With Respect to Coastal Fisheries in Certain Areas of the High Seas," issued on the same day provided for the establishment of "conservation zones in those areas of the high seas contiguous to the coasts of the United States subject to the regulation and control of the United States." In areas fished exclusively by Americans, the United States alone would establish the regulations for conservation. In those areas traditionally fished by foreign fishermen the conservation zones would be established by means of international agreement with the states involved. The right of other nations to create their own fishery conservation zones was recognized. One of the problems with this Proclamation was that the area over which the United States claimed jurisdiction remained vague. It was described as "those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have

PAGE 114

io; been or in the future may be developed and maintained on a substantial scale." As with Proclamation 2667, American action was explained almost entirely in economic terms: existing conservation measures were inadequate; the fisheries were an important economic resource for the local fishing communities and a valuable food and industrial resource for the nation; technological advances had improved fishing methods and techniques which in turn had led to overfishing and depletion of certain areas, which made the need for a solu23 txon to the problem most urgent. The improvements in ocean technology which had been introduced since 1945 — such as improved radar and navigational systems, larger vessels, better refrigerator units, and stronger nets — had transformed much of the fishing industry. Moreover, as a result of war and post-war shortages of food, the demand for seafood had risen precipitously from its war-time levels. Hence, the depletion of several areas. The war had also left a backlog of fishery treaties as well as fishery conservation policies which might have helped to meet a changing world situation. The Truman Proclamation on Fisheries was, in fact, the first attempt to formulate fishery policies in the post-war period. The Fisheries Proclamation was a conservation measure and did not extend American sovereignty beyond the threeMile territorial sea or intend to exclude foreign fishermen from American waters. Because it was issued at the same

PAGE 115

104 time as the Continental Shelf Proclamation (which did claim exclusive jurisdiction) confusion existed over the extent of United States claims. Many states — particularly Latin American ones — used these two proclamations to justify exclusive claims to fisheries over continental shelves and beyond; they created exclusive fishery zones rather than conservation areas. Thus, the Truman Proclamation on Fisheries was not only ineffective in encouraging international conservation of fish but also harmed the United States distant-water fishing industry which operated off foreign shores. But this is to overlook the difficulties faced. Distant-water, coastal, and salmon fishermen possessed disparate interests and lobbied for dissimilar policies. Even within — as well as between — the various United States governmental departments and agencies disagreement existed over the proper approach. The State Department consistently encouraged the United States to abandon the Truman Proclamation on Fisheries. ********* Although the United States rescinded the Fisheries Proclamation eventually, the precedent which the Truman Proclamations had set continued to influence other states' contiguous zone policies. The proliferation of unilateral fishery and other jurisdictional claims that immediately followed the Truman Proclamations was a direct reaction to them.

PAGE 116

105 On October 29, 1945, Mexico issued a declaration claiming the entire continental shelf adjacent to Mexico to a depth of 200 meters and all of its resources. Freedom of navigation on the high seas of the waters above the shelf was to be maintained. This part of the declaration was similar to the Truman Proclamation on the Continental Shelf and therefore did not disturb the United States. The declaration also established fishery zone areas over which Mexico would have control for conservation purposes. The declaration also emphasized the over-exploitation of its fisheries by foreigners and the subsequent need for Mexico to control the breeding grounds regardless of their distance from the shore. This disturbed the United States because it could be interpreted to mean that Mexico was claiming exclusive control over the fisheries. Hence, the United States warned Mexico that it would recognize the Mexican claim only if it corresponded with the Truman Proclamation allowing foreign fishermen access to the waters. In effect, the United States looked upon the declaration as a conservation claim rather than an exclusive fishery claim. Matters came to a head when, in September 1946, the Mexican Coast Guard seized and fined American boats fishing for shrimp 17 and 30 miles off the Compeche coast. At first the Mexican government claimed that the American vessels were fishing illegally as defined by its new declaration. The United States counterel that Mexico's claim was illegal. Mexico then argued that the seizures were based on their

PAGE 117

106 nine-mile territorial waters (the seized vessels had been within four miles of Mexican land) At this point, the United States decided to resume negotiations with Mexico aimed at achieving a bi-lateral fishing treaty. Meanwhile, the American shrimping industry continued to expand rapidly in the Gulf of Mexico resulting in the capture of several more American vessels in 1947 and 1950. In the negotiations that followed the seizing of the vessels, the United States insisted on its right to fish outside the three-mile territorial sea of other states. Mexico maintained its claim to a nine-mile territorial sea. The outcome of this ongoing dispute between Mexico and the United States was a victory for Mexico. While refusing to recognize Mexico's so-called legal claims, the United States shrimp industry forbade its ships to fish within Mexico's nine-mile terri. 26 tonal sea. The United States faced similar problems with other countries of Latin America. In 1946 Panama claimed jurisdiction over the fisheries above its continental shelf. The United States did not object to Panama's claims since it licensed American vessels at a reasonable rate and made informal agreements with the United States not to press its i 27 claims. Argentina's claims, made in the same year, were another matter. Since Argentina possesses one of the widest continental shelves in the world (varying from 100 to 300 miles in width) its claim to sovereignty over its shelf was

PAGE 118

107 contested by the United States which felt that freedom of navigation was at stake. While this was not spelled out by Argentina, there also was the fear that Argentina would claim the fish in its epicontinental waters as an exclusive 2 8 Argentinian resource. Argentina's argument that it was merely following the precedents of the Truman and Mexican Proclamations, overlooked the fact that its claims differed considerably from the others. The Truman and Mexican Proclamations had been concerned with jurisdictional control rather than sovereignty. To claim sovereignty, as Argentina was doing, was contrary to internationally accepted law. Despite the Argentine decree, the United States gave notice that it would protect its rights and interests off Argen29 tina s coast. Between 1947 and 1949 Costa Rica also claimed various jurisdictional extensions. Yet as most of the Costa Rican fishing industry was American owned, Costa Rica's initial claim to a 200-mile fishery zone was greatly modified. In 1949 the United States and Costa Rica signed a Convention for the Establishment of an Inter-American Tropical Tuna Commission. While the commission established an investigatory body for conservation purposes it did not specify any national seaward limits. Because the continental shelf on the Pacific coast is very narrow — generally only 10 miles — and therefore not an adequate conservation area for offshore natural resources, claims were made by other Latin American states to a

PAGE 119

108 200-mile exclusive fishery zone. Between 1947 and 1955, Chile, Peru, Costa Rica, Ecuador, and El Salvador declared 31 such exclusive fishery zones. Additionally, Chile, Peru, Costa Rica, and later El Salvador made claims of national sovereignty over their continental shelves. The United States, citing the Truman Proclamation as the basis for its action, protested all claims except those made by Costa a 2 Rica. In this it was joined by the major European powers. A direct outcome of America's protests was the "First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific" (attended by delegates from Chile, Ecuador, and Peru) which met in Santiago in 33 August 1952. In the resultant "Santiago Declaration on the Maritime Zone," issued on August 19, 1952, these states justified their claims on the grounds that governments are reguired to provide access to necessary food supplies and means of economic development for their people; it is incumbent upon them to conserve, protect, and regulate their natural resources; thus, each of the signatories must possess "sole sovereignty and jurisdiction over the area of sea adjacent to the coast of its own country and extending not less than 20 nautical miles from the said coast." Additionally, they claimed "sole sovereignty and jurisdiction over the sea floor and subsoil" of that area and the right to establish and enforce regulations regarding hunting and

PAGE 120

109 fishing in their respective zones. Innocent passage was n i 34 open to all vessels. Even before the Santiago Declaration was ratified, Ecuador and Peru had begun to enforce their fishing jurisdictions more stringently. After several United States ships had been seized, the Americans began to exert pressure on Chile, Ecuador and Peru (the CEP states). It fostered common agreement among the European powers against such jurisdictional extensions. It also encouraged the International Law Commission to study the possibility of codification for offshore areas. By whatever means, the United States tried to carry the dispute before an international forum in which it felt it could influence world opinion. To combat such moves the CEP states tried to keep the debate on law of the sea in the Organization of American States (OAS) where they had support. In December 1954, the CEP states held still another meeting in which they reaffirmed and supplemented their previous agreement. American ships were then seized for violations of the CEP 200-mile zone. To stop these seizures, the United States negotiated with the CEP states in Santiago in 1955. At these meetings the CEP states con35 tinued to present a common front. The Inter-American Juridical Council of the Organization of American States — as well as other inter-American groups—had already validated their claims. In 1952 the Inter-American Juridical Commission had already passed a

PAGE 121

110 draft convention recognizing "exclusive sovereignity" of a state over its continental shelf, superjacent waters and airspace, and its right to protect, control, and exploit an area out to a distance of 200 miles. In 1956 at the Inter-American Council of Jurists meeting in Mexico the draft resolution declared that each state has the right to set its own territorial sea limit depending on its circumstances. It also stated that straight baselines should be used in determining territorial sea limits and exclusive economic zones. This resolution passed (15-1) against the objections of the United States. Only the Ciudad Trujillo Resolution of 1956 gave any thought to United States views. It defined the continental shelf, and recognized a coastal state as having exclusive rights, jurisdiction, and control over its shelf. No agreement was reached on jurisdiction or control over the waters, 37 or the living resources above the shelf. By the early 1950 's the United States had become the greatest opponent of extensive offshore claims. In 1955 it encouraged the Food and Agriculture Organization in Rome to establish guidelines for a fishery policy agreeing with its own position. It also supported the attempts made by the General Assembly of the United Nations and the International Law Commission to find solutions to the growing problems 3 8 surrounding the law of the sea.

PAGE 122

Ill Just as the United States' position on a three-mile limit developed out of its historical circumstances, so did the Soviet Union's position evolve. Despite ideological differences, early Soviet and Czarist Russian national self-interest perceptions remained similar and were reflected in their maritime policies. Russia was, in both cases, a relatively weak, land-based power with very few ships in its navy or merchant marine. Its major maritime concern was with maintaining the security of its extensive coastline; a secondary but nonetheless important consideration was the protection of its close-water fisheries. Czarist Russia had adopted the principle of the territorial sea being determined by the range of a cannon in the 19th century. Although it did not accept the three-mile territorial limit as a general rule of international law, in practice it used this limit for a variety of purposes. As a coastal rather than a maritime power, Russia was consistently interested in extending its seaward jurisdiction. Therefore, whenever possible it established contiguous zones beyond the three-mile limit for specific purposes such as 39 fishing, customs, or security. In the years before World War I, Russia tried to extend its seaward jurisdiction to twelve miles. Professor F. F. de Martens, the major Russian law of the sea jurist, advocated an extended territorial sea based on the increased cannon ranc,e which was approximately ten miles. Russian Foreign Minister Sazanov had repeatedly expressed his

PAGE 123

112 government's position that the territorial sea is determined by the extent of control from land. However, Czarist Russia could never hope to enforce this wider territorial limit against maritime powers such as Britain who were determined to maintain the three-mile limit. Whenever Russia unilaterally extended its jurisdictional control seaward, the other powers usually ignored Russia's claims and so, in effect, cancelled the extension. Only where the extensions did not impinge upon the interests of the other powers were they tolerated. Such was true of the ten-mile exclusive Russian fishing zone on the Pacific Ocean agreed to by Britain and the United States in 1893. Similarly, in 1907, Russia signed a treaty with Romania creating a ten-mile exclusive fishing zone between the two states. Also, in 1909, Russia established a twelve-mile customs jurisdiction zone. In 1911 it established a twelve-mile territorial sea and fishing zone on the Pacific Ocean, which was strenuously contested by Japan. A bill establishing a twelve-mile fishing zone in European and Arctic waters was opposed by the British as being contrary to international law, and did not pass the Duma During the Russian Civil War of the 1920 's, the Allied naval presence in the North and Black Seas threatened the almost maritimely defenseless Soviets and made them all the more determined to secure their borders. Therefore, its primary concern was that of a small, weak power with a large

PAGE 124

113 coastline that it wanted to protect. A secondary interest was to protect its close-water coastal fisheries. In 1921 the Soviet Union declared a twelve-mile exclusive fishing 41 zone in its adjacent European Arctic Seas. Six years later, a still insecure Soviet Union enacted the Statute on the Protection of the State Boundaries of the USSR. While this statute did not mention the territorial sea or a territorial sea concept, it did establish a jurisdictional boundary of twelve miles in which the state possessed police control over Soviet and foreign vessels. At the time, this statute was interpreted as not specifically claiming exclusive or sovereign rights in the area but rather as claiming police jurisdiction for national defense and security. Realizing that it could not defend a twelvemile territorial sea limit against the maritime powers' adherence to a three-mile limit, the Soviets chose to extend their jurisdiction through the establishment of contiguous 42 zones Russia emerged from World War II as one of the two world superpowers. It was only then able to actively enforce its sea limits. Since it was still a land-based power with an inferior merchant and war-ship fleet, it continued to maintain the twelve-mile limit. And only at this time did Soviet jurists begin to interpret the 1927 Statute as establishing a territorial sea. Realizing its new-found strength viz a viz the other powers, the Soviet Union began to insist that the

PAGE 125

114 twelve-mile sea limit established as a contiguous zone did, in fact, create a territorial sea. Moreover, as no internationally accepted limit for territorial waters existed, each state could legally determine its own territorial sea breadth. Other Communist and non-Communist developing states were encouraged to adhere to the Soviet's twelve-mile limit. ********* The United Nations Conference on the Law of the Sea (UNCLOS I) met in an effort to combat this growing instability and to find consensus on a legal regime governing the oceans. The background work for this Conference had been done by the International Law Commission (ILC) Founded by the United Nations in 1947 "to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codifi43 cation," the ILC held its first meeting in 1949. Fourteen areas of discussion for codification were selected, including the development of a regime for the high seas and a regime for territorial waters. In contrast to work on territorial waters which was accorded only a fourth prior44 ity, work on the high seas was given first priorxty. In 195 the ILC began to study the question of rights on high seas, including those in contiguous zones and the continental shelf. Two years later it turned to study the problems associated with territorial seas, including such items as the appropriate breadth, the determination of

PAGE 126

115 baselines, the delimitation of boundaries between adjacent or opposite states, the status of islands and internal waters, innocent passage, and passage through international straits. J. P. A. Francois of the Netherlands was chosen as a special rapporteur first on the high seas and then on the closely related topic of territorial seas. In time, Mr. Francois submitted various drafts to the Commission for approval The Commission's response was to appoint a group of experts to aid Francois. By 1955, the Commission, having adopted a provisional draft with commentaries on the regime of the high seas, submitted its findings to member states for comments. There followed much coming and going of drafts and revisions. In 1954 and in 1956 the Commission submitted and re-submitted its articles to member states. In the latter year (1956) it published its final report on the regime of territorial seas. The finished ILC Report on both regimes consisted of 73 articles divided into two parts: the first one dealt with the territorial sea (articles 1-25) and the second one with the high seas (articles 45 26-73) The Commission in Article 1 accepted the internationally held principle that a coastal state possesses sov46 ereignty over a portion of its adjacent sea. It further stated that these sovereign rights extend to the airspace above the territorial sea and the subsoil and sea-bed 47 beneath it (Article 2) Although the Commission was

PAGE 127

116 unable to agree on the breadth of the territorial sea, it concluded that international law does not allow a territorial sea limit beyond twelve miles. Furthermore it recommended that an international conference be held to determine 48 a uniform limit for territorial seas (Article 3) Other articles in Part I dealt with the delimitation of the territorial sea, the definitions of bays, islands, and straits, the meaning of innocent passage through territorial seas, 49 and other rights and duties of the coastal state. Part II of the ILC Report considered definitions and regulation for the oceans outside the territorial sea limit. It defined the high seas as "all parts of the sea that are not included in the territorial sea... or in the internal 50 waters of a state" (Article 26) The Report also stated that "the high seas being open to all nations, no one state may validly purport to subject any part of them to its sovereignty. Freedom of the high seas comprises, inter alia : 1) freedom of navigation; 2) freedom of fishing; 3) freedom to lay submarine cables and pipeline; 4) freedom to fly over 51 the high seas" (Article 27) In order to ensure that all states shared in these freedoms the Commission established rules governing certain aspects of ocean use, including sovereign rights of states on their own flag ships, policing rights, rights of states in conserving the living resources of the high seas, and rights of states in contiguous zones 52 and on the continental shelf.

PAGE 128

117 Of importance in future negotiations, the commission stated that although freedom of fishing existed on the high seas, conservation of living resources was the responsibil53 ity of all states. The aim of the conservation measures would be "to conduct fishing activities so as to increase, or at least maintain, the average sustainable yield of pro54 duct." Regulations would be determined through negotiations with the concerned states. The contiguous zone was defined as an area of the high seas not more than twelve miles from the coast but adjacent to the territorial sea. In this area the coastal state could exercise control to a) prevent infringement of its customs, fiscal or sanitary regulations within its territory or territorial sea; b) punish infringement of the above regulations committed within its territory or territorial sea. The continental shelf was defined as referring to the sea-bed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 20 metre (approximately 100 fathoms) or, beyond that limit, to where the water admits of the exploitation of the natural resources of the said areas. The coastal state possesses sovereign rights for purposes of exploration and exploitation of natural resources on the continental shelf but not over the water or airspace above 57 the shelf. Of greatest significance, the ILC recommended that the General Assembly summon an international conference to study the law of the sea including the legal, technological, biological, economic, and political issues of the problem. After considering the ILC Report and recommendation, the

PAGE 129

118 General Assembly adopted Resolution 1105 (XI) convening the first United Nations Conference on the Law of the Sea (UNCLOS I) 58 ********* On February 24, 1958, the first United Nations Conference on Law of the Sea (UNCLOS I) convened in Geneva, Switzerland. Eighty-six countries were represented; seven specialized agencies and nine inter-governmental organizations attended as observers. The UNCLOS I attempted to reconcile the differing views of states on law of the sea. It was to codify existing law concerning the regimes of the territorial seas and contiguous zones, the high seas, fisheries and living resources, and the continental shelf. The major area of disagreement was on the breadth of the territorial sea and the related contiguous fishing zone — problems which were not solved in the course of UNCLOS I. States were divided primarily into two blocs — those supporting a three-mile limit led by the United States and those for a twelve-mile limit led by the Soviet Union. As the United States perceived the situation, its military security, commercial navigation, and fishing required a three-mile limit. A twelve-mile teritorial sea would limit the maneuverability of its fleet and air force. Strategic straits in the Aegean and East Mediterranean seas and in Indonesia, the Phillippines and Japan could be closed to United States armed forces. Moreover, the Soviet Union's more numerous submarine fleet (equipped with missiles) could

PAGE 130

119 operate in neutral states' territorial seas without being detected while American surface ships could not enter without violating the states' neutrality. The recently developed Polaris submarine gave the United States an increased deterrent capability without it having to rely upon bases in 59 other countries. As the Conference went on, the United States realized that there was little possibility of states agreeing to a three-mile limit. Therefore it proposed a compromise: a six-mile territorial sea with an additional six-mile fishery zone which would not exclude fishing vessels that had fished those waters for five years. The upshot of the debate in the plenary session was the United States' failure to receive the necessary two-thirds vote for adoption of the compromise, falling short by seven votes. The different positions taken by the United States and the Soviet Union on the law of the sea was reflected in the policies of their allies. Most of the West European states — wanting to protect their maritime interests, maneuverability, and the traditional freedom of the high seas — supported the United States' position on a narrow territorial sea. At the beginning of UNCLOS I they backed the United States' position on a three-mile territorial sea, but later in the Conference compromised on a six-mile territorial limit. Conversely, the East European bloc upheld the Soviet Union's proposals for a twelve-mile sea limit. These states were motivated more by their political-ideological connection to

PAGE 131

120 the Soviet Union than by their own specific maritime selfinterests Differences about the law of the sea were not limited to United States-Soviet relations. It became apparent at the time of the UNCLOS I that a wide gap existed between positions taken by the developing and developed states. Many developing states opposed a law of the sea which had been devised during a period of western hegemony. These states wanted laws that reflected the special economic and political needs of a developing nation. Various regional groupings also existed. Because a twelve-mile limit would change the Gulf of Aqaba into a territorial sea, and the Straits of Tiran into territorial straits allowing the Arab states to legally close off the Gulf to Israel, the entire Arab bloc was in favor of a twelve-mile territorial sea. The primary concern of most of the Latin American states was to protect their coastal fisheries from foreign encroachment. Hence, they supported a wide territorial sea and/or a wide contiguous zone for exclusive fishery control. Many African and Asian states, which had only recently become states, generally voted for wider territorial limits. Other states — such as Iceland, Canada, the Phillipines, and Indonesia — were against the three-mile limit because of their special economic or geographic circumstances. Proposals included variations of three-, six-, and twelve-mile limits. Canada, afraid that the American proposal recognizing historic fishing rights would allow too

PAGE 132

121 great an access to the Canadian fisheries, proposed a sixmile territorial sea with a six-mile exclusive fishery zone. The Soviet Union proposed an optional limit of three to twelve miles to be determined by the individual state. Later, the joint Indian-Mexican proposal and the eight-power proposal — sponsored by Burma, Colombia, Indonesia, Mexico, Morocco, Saudi Arabia, Egypt, and Venezuela — also suggested an optional limit up to twelve miles; both of these proposals were backed by the Soviet Union. They failed because the states desiring a narrow limit believed that an optional limit would in effect create a twelve-mile territorial 61 sea. Although the Conference failed to find agreement on the issues concerned with the breadth of the territorial sea and the related contiguous fishing zone, it reached agreement on four conventions signed on April 29, 1958. These were: 1) Convention on the Territorial Sea and the Contiguous Zone; 2) Convention on the High Seas; 3) Convention on Fishing and Conservation of the Living Resources of the High Seas; and 4) Convention on the Continental Shelf. It also adopted an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes which became effective September 30, 1962. Nine resolutions were also accepted regarding the issues of nuclear testing on the high seas, radioactive pollution of the high seas, international fishery conventions, cooperation in conservation measures, humane killing of marine life, special coastal fisheries circumstances, a

PAGE 133

122 regime for historic waters, and the convening of a second UNCLOS. In all, 78 substantive articles dealing with a wide range of international law were adopted. The UNCLOS I used the ILC Report as its basic working text and based many of its articles on the Report. A great deal of other preparatory work was done including recommendations from a series of regional meetings held in 1955-6, comments from various states on the ILC Report, debates held in the Sixth (Legal) Committee of the General Assembly, and papers prepared by a United Nations appointed group of 62 experts. The Conference's failure to reach agreement on the breadth of the territorial sea and the related fishing zone reflected the wide diversity of territorial claims which ranged from three to two hundred miles. Individual or groups of states maintained their positions on the breadth of the territorial sea based on perceptions of their selfinterest as well as on their adherence to a regional or ideological power bloc. The major political division in the Conference was between the United States and the Soviet Union. Not only were these states engaged in an ideological-political struggle but their self-interest dictated that they take opposing positions on the territorial limit. Despite its inability to agree on the breadth of the territorial sea and the related contiguous fishing zone, UNCLOS I did achieve success in other areas. The Convention on the Territorial Sea and Contiguous Zone succeeded in

PAGE 134

123 establishing a twelve-mile contiguous zone for non-fishery purposes and a territorial sea of unspecified breadth not exceeding twelve miles. It also provided for the use of a normal baseline — defined as "the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state" — from which to measure the territorial sea. Straight baselines were to be used only in specific situations such as enclosing internal waters and bays less than twenty-four miles wide. The Convention guaranteed the right of innocent passage — passage not "prejudicial to the peace, good order, or security of the coastal state" — to ships of all states through territorial waters and prescribed rules for passage through territorial straits. It set additional rules concerning innocent passage for merchant ships. The Convention on the High Seas also maintained use of the ILC Report's definition of the high seas and the still debatable four high seas freedoms. Soviet bloc proposals concerning military activities near other countries or near international shipping lanes, as well as nuclear testing on the high seas, were referred to the General Assembly. A resolution was passed concerning the threat posed by nuclearexplosions on the high seas to the freedom of the seas. Proposed regulations covering pollution from nuclear testing on the high seas were deleted as a result of American and ft f> British insistence. Other articles dealt with the rights and duties of states over ships flying their flags, with

PAGE 135

124 illegal acts of piracy and slavery, and with regulations for hot pursuit. The Convention on Fishery and Conservation of the Living Resources of the High Seas concentrated its efforts on fisheries' conservation and management in unspecified areas. The question of the breadth of contiguous fishing zones and jurisdiction over the living resources of the continental shelf were handled in Committee I and IV respectively. This Convention relied heavily on the ILC text on conservation of fisheries. The major conflict in this Committee was between the coastal states which wanted to protect their special interests in fishery conservation and management and the distant-water fishing nations. A balance between these opposing views was eventually obtained. In order to maintain this balance and prevent states from adding reservations to articles with which they did not agree, the Convention forbade the addition of reservations to the key articles of the text. Because of this and the compulsory arbitration of disputes, the Soviet bloc — although in agreement with the substantive articles — refused 6 8 to sign the fishery Convention. The major feature of this Convention was its provision for multi-lateral conservation programs over an entire fishery. When agreement could not be reached, the dispute would be submitted to a Commission which was to arbitrate on the basis of scientific eviA 69 dence

PAGE 136

125 Formulating the Convention on the Continental Shelf proved to be a difficult process. There was considerable debate between states with primarily coastal interests and those with maritime interests on what constituted the continental shelf. As there was no internationally accepted legal definition of the continental shelf, UNCLOS I attempt70 ed to define it. The continental shelf was defined as referring (a) to the sea-bed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the sea-bed and subsoil of similar submarine areas adjacent to the coasts of islands. The only change from the earlier ILC text was that the continental shelf definition was to apply to islands also. Before the Conference accepted this definition several alternative methods of defining the shelf were proposed, including omitting the exploitability clause, establishing a set distance from shore, or relying on the geological characteristics. Since none of these received a sufficient 7 2 majority, the ILC definition was finally accepted. ^ The rights of the coastal state over its shelf were considered exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal states Since the ILC text did not define natural resources on the shelf, a definition was attempted. It soon became

PAGE 137

126 evident that differences existed as to what constituted the natural resources of the continental shelf — whether or not living resources were to be included and, if so, whether sedentary as well as free-swimming species were part of the shelf resources. States wanting to curtail extended jurisdictions proposed that the definition of natural resources be limited to minerals while those states for greater coastal state jurisdiction wanted to include all living species--even free-swimming fish in the waters above the shelf. Ultimately, most states agreed to the inclusion of 74 some living species as shelf resources. An eventual compromise defined the natural resources as consisting of the mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or subsoil. Furthermore, the coastal states' rights would not affect the rights of other countries in the airspace or the waters above the shelf; all the freedoms of the high seas would be preserved in those waters. Delimitation of continental shelf boundaries between opposite and adjacent states were to be determined by mutual agreement, or failing agree7 6 ment, by an equidistant median line. Finally, a resolution was adopted that a second confer77 ence should be held in March or April of 1960. There was an understanding at the close of the UNCLOS I that nations were not to take any actions in regard to their territorial

PAGE 138

127 seas because the UNCLOS II would concern itself with the still unresolved problems of territorial sea limits and contiguous zones. Several states — China, Panama, Iceland, Sudan, Iraq, Libya and Iran — proceeded to enact unilateral legislation extending their territorial sea limits or contiguous fishing zones to twelve miles. The maritime states — the United States, Britain, and Japan — protested, insisting that three miles was the maximum internationally accepted limit for territorial seas and that states adhering to the three-mile limit were under no obligation to recognize wider territorial sea limits. These unilateral extensions obviously strengthened the Soviet Union's position concerning a twelve-mile territorial sea which the United States viewed as part of the Soviet's Cold War strategy. Before the second Conference, the United States held discussion with over forty countries in an attempt to sway them over to the six-mile compromise pro7 8 posed by the United States in 1958. ********* The UNCLOS II started on March 17 and ended on April 26, 1960. It dealt only with two related issues: the breadth of the territorial sea and the contiguous fishing zone. Discussions and debates were held in a 'Committee of the Whole' composed of representatives from eighty-eight 79 states. A simple majority vote in this Committee would adopt a report which would then be voted on in the Plenary

PAGE 139

128 Session of the Conference where a two-thirds majority was 8 needed to adopt an official convention. Various proposals for determining the territorial sea and the contiguous fishing zone were submitted in the 'Committee of the Whole'. Most of these were variations on the twelve-mile territorial limit or the six-mile territorial sea plus the fishing zone. The Soviet Union introduced an optional twelve-mile territorial limit with an exclusive fishing zone to twelve miles if a state's territorial sea was narrower. Mexico proposed an optional territorial limit from three to twelve miles with a sliding scale fishery limit dependent on the extent of the territorial sea. If a state chose a territorial limit of six to nine miles, it could have a fifteen-mile exclusive fishing zone. If it chose a tenor an eleven-mile territorial sea, it could only have a twelve-mile exclusive fishing zone. The United States re-introduced its proposal for a six-mile territorial sea, plus a six-mile exclusive fishing zone in which historic fishing rights would be accepted if a state had fished those waters five years preceding 1958. The average level of fishing during this period would be the maximum allowable fish catch in the future. Canada proposed its original six-mile territorial sea plus a six-mile contiguous fishing zone. The Soviet Union and Mexico withdrew their proposals and supported the eighteen-power proposal which was very similar to the Soviet Union one allowing each state to set its own territorial limit up to twelve miles. The other

PAGE 140

129 major proposal was presented by Iceland to allow a coastal state which is "overwhelmingly dependent" for its "livelihood or economic development" on its fisheries to have preferential rights in the case of limitations set on the fish catch. After debate, some of these proposals were withdrawn or revised. The United States and Canada withdrew their original proposals and agreed on a compromise incorporating the features of both. It maintained the six plus six formula but changed the historic rights provision so that those fishing privileges would only last ten years. The maritime and distant-water fishing states supported this proposal while the states advocating a twelve-mile territorial sea supported the eighteen-power proposal. On April 13, the 'Committee of the Whole' voted with the following outcome: the eighteen-power proposal was defeated 39 to 36, with 13 abstentions; the AmericanCanadian joint proposal was adopted 43 to 33, with 12 abstentions; and the Icelandic proposal was adopted 31 to 11, with 46 abstentions. The two adopted proposals, along with others developed in the Plenary Session, were voted on beginning April 26. An amendment had been added to the United States-Canadian proposal by Brazil, Cuba, and Uruguay to allow coastal states to claim preferential fishing rights in areas of the high seas next to the fishing zone. This amendment was accepted by the United States because it needed the support of more states to pass its proposal.

PAGE 141

130 Nevertheless, this proposal failed to receive the necessary two-thirds majority by one vote — 54 to 28, with 5 absten81 tions Arthur Dean, the head of the United States delegation, attributed the failure of this proposal to the last minute withdrawal of promised support by Japan, Ecuador, and Chile. Japan abstained because the Brazil-Cuba-Uruguay amendment would extend coastal state fishing rights cutting into the areas where Japan — the then largest fishing state — could fish; it was especially concerned with the expansion of Korean fishing interests based on this amendment. Ecuador insisted that the United States should release Ecuador from the obligation to pay fines or damages as a result of seizures of American fishing vessels. Initially, Ecuador agreed to abstain in the voting but on the day that voting began Ecuador informed the United States that if it did not obtain a release for the claims it would vote against the United States-Canadian proposal. Since the United States could not agree to Ecuador's demands, Ecuador voted against the proposal. Chile had also said earlier that it would vote for the United States-Canadian proposal if the Brazil-CubaUruguay amendment was adopted. Chile subsequently stated that it was unable to vote for the proposal because Peru would not release it from its obligations under the 1952 Declaration on the Maritime Zone as amended by the agreement of 1954 prohibiting the signatory states from entering into agreements which would decrease the jurisdictional areas.

PAGE 142

131 If either one of these states had abstained rather than voted against the proposal, it would have passed. Before the final vote was held, the Soviet Union, believing that the six plus six formula would pass, denounced the procedural rules of the Conference and said that no matter what the Conference decided the Soviet Union would continue to abide by its twelve-mile territorial limit. The Soviet Union, after the failure of the eighteen-power proposal in the 'Committee of the Whole', supported the tenpower proposal which was introduced in the Plenary Session. This proposal provided that states which had achieved independence prior to the date when the United Nations Charter came into effect should not extend their territorial seas until another conference or the General Assembly decided on the breadth of the territorial seas; a twelve-mile fishing zone was to be recognized immediately; and states which had become independent after October 24, 1945, could extend their territorial seas to any breadth. This proposal failed to achieve even a simple majority — 32 to 39 with 17 abstentions After the final vote, the head of the American delegation stated that since the compromise proposal had failed, the United States would continue to consider the three-mile territorial sea as the internationally accepted limit and was therefore under no obligation to recognize greater ter8 2 ritorial limits imposed by some states.

PAGE 143

132 UNCLOS II concluded with no plans to convene another conference to resolve the unsettled issues of the breadth of the territorial sea and the related contiguous fishery zone. Only two resolutions were adopted by this Conference. Ethiopia, Ghana, and Liberia proposed that the United Nations give technical and material assistance to the developing countries to help them improve their fishing capabilities. Mexico recommended that the United Nations allocate money to publish the record of the Conference which would be valuable in interpreting the work of the Conference. ******** The failure of UNCLOS I and II to reach agreement on the breadth of the territorial sea and the contiguous fishing zone was the major weakness of both conferences. Another problem was the flexibility allowed by the exploitability clause for mining the continental shelf; this became more of a problem as technological advances allowed mining further offshore and thus continually extended national jurisdiction seaward. Additionally, ambiguity surrounded the definition of the living resources of the continental shelf, making it unclear which fisheries came under coastal state jurisdiction. Finally, the provisions in the Convention on Fishing and Conservation of Living Resources of the High Seas failed to give the coastal states their desired increased control over offshore fisheries and to establish a cooperative mechanism for conservation of living resources.

PAGE 144

133 Despite these weaknesses, the UNCLOS I was a considerable achievement in the codification of international law. It produced four conventions which became effective several years after the Conference: the Convention of the High Seas was ratified in September, 1962; the Convention on the Continental Shelf in June 1964; the Convention on the Territorial Sea and Contiguous Zone in September, 1964; and the Convention on Fishing and Conservation of the Living 8 3 Resources of the High Seas in March, 1966. Even though states took a relatively long time to ratify these conventions and ratification by only twenty-two states was necessary, the Conventions had an international importance. They represented the greatest agreement achieved on these complex issues. Although the Conventions were only binding on the signatory powers, their existence restrained other states from going much beyond these established guidelines. Even states which had not signed the Conventions accepted parts of them which evolved into customary international law. Furthermore, the Conference focused debate on these issues and brought up questions which needed to be resolved. Even when agreement was not achieved, the recorded votes of the states' positions indicated the level of agreement on various issues which could be used for further negotiations in bi-lateral and multi-lateral agreements. ********* The period 145-1960 was marked by increasing instability in law of the sea and subsequent unsuccessful attempts

PAGE 145

134 to reach consensus. In reaction to the Truman Proclamation, many states claimed extensive offshore jurisdiction. As these claims proliferated, UNCLOS I met in an attempt to establish an internationally acceptable legal regime for the oceans. It failed to do so because the United States and the Soviet Union disagreed on the limit of the territorial sea — an issue which was central to the Cold War strategy of each. Although UNCLOS II came closer to reaching a compromise, it also failed. Notes 1. World Merchant Fleets at the Close of World War II (1946) State Gross Tonnage (in 1, OOP's) United States British Commonwealth Norway Netherlands Sweden France U.S.S.R. Japan Spain Germany Panama Denmark Italy Greece Others Total 38,587 16,055 2,752 1,563 1,438 1,277 1,238 1,083 879 801 687 641 576 519 2,904 71,000 Sayre A Swartztrauber The Three-Mile Limit of the Territorial Seas (Annapolis: United States Naval Institute, 1972), p. 170.

PAGE 146

135 Warships of the Powers in 1946 Battleships Frigates Carriers Destroyers P. atrol State Cruisers Escorts Submarines C; raft U.S. A 197 663 200 423 U.K. 86 400 119 943 U.S.S.R. 11 57 100 409 France 15 49 14 132 China 2 4 23 Italy 6 22 22 Japan 18 104 58 74 Germany 2 15 30 94 From Jane s Fighting Sh: LPS 1946-47, pp. 23-7 7, 146-151 175197, 213-220, 268-285, 329, 378-381, 413-421. 3. The Commerce Department at that time warned the State Department that Japanese salmon fishing off the Alaskan coast was upsetting the American fishing industry. The State Department urged Japan to withhold licenses from Japanese salmon fishermen in Bristol Bay. Although the Japanese did not agree to this request, they did agree to notify the United States if they issued more licenses for salmon fishing in the area. Ann L. Hollick, U.S. Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981), pp. 22-23. 4. 1) that Japanese fishermen not be granted licenses to fish salmon in Alaskan waters; 2) that the Japanese government discontinue its fishing survey; 3) that the Japanese agree to inspections of their fishing vessels; 4) and that the Japanese publicly agree with an American statement regarding this agreement. Ibid. p. 24 5. Ibid. pp. 23-27. 6. Lawrence Juda, Ocean Space Rights (New York: Praeger Publishers, Inc., 1975), p. 12. 7. Hollick, p. 28. 8. Juda, p. 13. 9. Until California enacted a bill in 1921 requiring companies to obtain leases from and to pay royalties to the state, neither the federal nor state governments exercised any authority over offshore oil exploitation within the three-mile limit. Hollick, p. 28.

PAGE 147

136 10. Richard A. Geyer "Energy from the Oceans," Ocean Resources and Public Policy ed. by T. Saunders English (Seattle: University of Washington Press, 1973), p. 95. 11. Hollick, p. 29. 12. Juda p. 13. 13. Hollick, pp. 30-31. 14. Juda, pp. 14-15. 15. Hollick, p. 35. 16. The State Department objected to Interior Secretary Ickes wide sweeping claim to exclusive sovereignty over the shelf and the superjacent water on the following grounds: 1) other states would not readily agree to such an extension; 2) other states would make similar claims and thereby interfere with American fishing off their coasts; 3) wider territorial seas would diminish the navigational ability of the United States Navy and allow enemy ships to take refuge in larger neutral areas; 4) the exploitation of the continental shelf resources could be accomplished by claiming only the resources thereby eliminating the problems caused by claiming sovereignty over the waters. Juda, pp. 15-16. 17. Ibid., p. 16. 18. Hollick, p. 44. 19. Juda, p. 17. 20. Hollick, p. 61. 21. Presidential Proclamation No. 2667 (September 28, 1945) 22. White House Press Release (September 28, 1945). 23. Presidential Proclamation No. 2668 (September 28, 1945) 24. Hollick, pp. 62-63. 25. Juda, pp. 24-25. 26. Hollick, pp. 69-70. 27. Ibid. p. 71.

PAGE 148

137 28. Swartztrauber p. 163. 29. Juda, p. 26. 30. Hollick, pp. 72-75. 31. Swartztrauber, p. 164. 32. Juda, p. 26. 33. Hollick, p. 85. 34. "Agreements Between Chile, Ecuador, and Peru, Signed at the First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific," Santiago, Chile August 18, 1952. 35. Hollick, pp. 87-90. 36 Ibid. p. 121 37. Juda, pp. 32-34. 38. Hollick, p. 122. 39. William E. Butler, The Law of Soviet Territorial Waters (New York: Praeger Publishers, Inc., 1967), pp. 4-5. 40. Swartztrauber, pp. 124-125. 41. William E. Butler, The Soviet Union and the Law of the Sea (Baltimore: Johns Hopkins Press, 1971), p. 90. 42. Butler, Soviet Territorial Waters pp. 30-31. 43. Leland M. Goodrich and Edvard Hambro, Charter of the United Nations: Commentary and Documents (Boston: World Peace Foundation, 1946) p. 101. 44. Swartztrauber, pp. 204-205. 45. U. N. International Law Commission, "Report of the International Law Commission to the General Assembly," Yearbook of the International Law Commission II (1956) pp. 253-264. 46 Ibid. p. 256. 47. Ibid., p. 265. 48. Ibid. pp. 257-277. 49. Ibid. pp. 257-277.

PAGE 149

138 50. Ibid. p. 259. 51. Ibid. p. 259. 52. Ibid., p. 278. 53 Ibid. p. 262. 54. Ibid. p. 289. 55. Ibid. p. 262. 56. Ibid. p. 264. 57. Ibid., p. 264. 58. United Nations General Assembly, Official Records 11th session, plenary meeting 685th, February 21, 1957, Resolution 1105 (XI) 59. Arthur Dean, "Geneva Conference on the Law of the Sea," American Journal of International Law 52 (October, 1958) pp. 608-610. 60. Bernard G. Heinzen, "The Three-Mile Limit: Preserving the Freedom of the Seas," Stanford Law Review 11 (July, 1959), pp. 652-655. 61. Heinzen, pp. 652-655. 62. Hollick, pp. 127-128. 63. Shigeru Oda, ed. The International Law of the Ocean Development: Basic Documents (Leiden: A.W. Sijthoff International Publishing Company, 1972), p. 3. 64 Ibid. p. 5 65. Ibid. p. 9. 66. Hollick, pp. 145-146. 67. Oda, pp. 9-14. 68. Hollick, p. 147. 69. Oda, pp. 15-19. 70. Hollick, pp. 150-153. 71. Oda, p. 21.

PAGE 150

139 72. J.A.C. Gutteridge, "The 1958 Geneva Convention on the Continental Shelf," British Yearbook of International Law 25 (1959), pp. 106-110. 73. Oda, p. 21. 74. Hollick, p. 151. 75. Oda, p. 21. 76. Ibid., pp. 21-22. 77. Hollick, p. 153. 78. Hollick, pp. 154-155. 79. Ibid. p. 155. 80. Arthur H. Dean, "The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Seas," American Journal of International Law 54 (October, 1960) p. 772. 81. Hollick, pp. 156-158. 82. Dean, "The Second Geneva Conference," pp. 772-782. 83. Hollick, pp. 158-159.

PAGE 151

CHAPTER FIVE FROM UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA II TO UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA III During the 1960 's the proliferation of jurisdictional claims over extended areas of the oceans and/or sea-bed continued. The failure of UNCLOS I and II to define an internationally accepted breadth for the territorial sea contributed to the general confusion and uncertainty over the legality of these claims. Adding to the instability of this legal regime, many newly emergent states felt no obligation to uphold the existing international legal order. Since this regime had been established primarily by former colonial maritime powers, the new states wanted to replace it with one reflecting their own interests and position in the world community. Tension increased between the developed and developing countries as their interests continued to diverge further. The expansion of ocean use and the growth of more sophisticated marine science and technology intensified this tension between the developed and developing states. In the 1960's the primary tension in international maritime law shifted from the United States-Soviet Union dispute to the developing-developed states conflict. Of 140

PAGE 152

141 greatest significance in this shift was the changing position of the Soviet Union toward the law of the sea. As the USSR became a maritime power, its interests increasingly coincided with those of the United States and other traditional maritime states. Although political conflict continued between the United States and the Soviet Union and was reflected in their increased competition in civilian and military matters in the oceans their goals for a maritime legal regime were increasingly similar and so they often agreed on ocean issues. Following the attempts by UNCLOS I and II to codify international law of the sea, there was a temporary lessening in activity during the early 1960 s in efforts to reach an international solution. Instead, states acted on their own initiative and made unilateral claims and/or biand multi-lateral treaties. Other states then responded by either accepting these claims or by contesting them, some of which resulted in clashes and eventual individual settlements. In this way customary law developed supporting extended jurisdictional claims. Most of the new or extended claims were made by developing countries many of which were newly emergent states. These countries sought to diminish their dependence on the ex-colonial powers and to increase their political power through regional groupings and bloc voting at international meetings. Toward this end in 1964 at the first United Nations Conference on Trade and Development (UNCTAD) the

PAGE 153

142 developing countries formed the Group of 77. Although during the 1960 's the Group of 77 did not play a major role in law of the sea development, the level of cooperation achieved at this time extended into the 1970 's when the Group of 77 voted as a bloc in international forums on the law of the sea. Latin American states, as in the 1950' s, continued to make the most extensive territorial sea claims. Although the UNCLOS I and II had discounted using the continental shelf as the basis for control of the superjacent water, the conferences' inability to reach agreement on the breadth of the territorial sea justified states taking unilateral action in determining their own territorial limits. Taking advantage of this situation, several Latin American states extended their territorial seas to 200 miles: Ecuador in 1966, Argentina in 1966, Panama in 1967, Uruguay in 1969, and Brazil in 1970. Outside of Latin America two other developing states extended their territorial seas beyond twelve miles but under 200 miles. In 1964 Guinea claimed a 130-mile territorial sea and in 1967 Cameroon claimed an eighteen-mile territorial sea. Although not as extensive as the 200-mile Latin American claims they were significant because they made claims beyond twelve miles an international rather than 2 just a Latin American phenomenon. Many other developing states instituted a twelve-mile territorial sea limit during this period. Before the UNCLOS

PAGE 154

143 I and II only 13 states — primarily the Soviet bloc and some Mid-Eastern states — claimed a twelve-mile territorial sea. Then in the 1960 's many more states increased their territorial seas to twelve miles: in 1963 Algeria and Syria; in 1964 Cyprus, Togo, and North Vietnam; in 1965 Honduras; in 196 6 Pakistan and Thailand; and in 1968 Burma, Dahomey, 3 India, Kuwait, Liberia, and Senegal. Both developing and developed states increased their contiguous fishing zone claims during the early 1960 's. As competition for the more desirable fish increased and as their numbers diminished, many coastal states took protectionist measures — including states which had traditionally upheld narrow claims. Throughout the 1960 's this trend continued. By 1968 over 50 states had made claims to twelve-mile contiguous fishing zones and over a dozen states had made more extensive claims ranging from 12 to 200 miles. Some of the more extensive claims of 200-mile limits were made by Latin American states — Nicaragua in 1965, and Ecuador and Argentina in 1966. Most states expanded their 4 exclusive fishing zones to twelve miles. Between 1961 and 1963, Norway, Tunisia, and South Africa established twelve-mile contiguous fishing areas. In 1961 the United Kingdom, traditionally a supporter of narrow limits, agreed to recognize a twelve-mile exclusive fishing zone around Iceland effective in 1964. Also in 1964 the United Kingdom sponsored the European Fisheries Conference which was attended by Austria, Belgium, Denmark,

PAGE 155

144 France, the Federal Republic of Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and Switzerland. This Conference adopted a variation of the twelve-mile exclusive fishing zone. Within the inner sixmiles of the zone, states possessed exclusive fishing rights while in the outer six miles states with historic fishing rights could continue to fish the area under coastal state control. Even though these West European states supported a wider exclusive fishing zone, they continued to adhere to 5 narrower territorial waters. ********* During the 1960 's most developed countries — especially the United States and the Soviet Union — rather than extending their jurisdictional claims seaward, intensified their economic exploitation and military use of the oceans. These activities added to the instability of the legal regime and at the same time encouraged states to seek a consensus on law of the sea. The possibility of immense wealth from ocean resources and the increasing militarization of the oceans emphasized the need for internationally accepted laws governing ocean use. As part of the Cold War strategy, the Soviet Union attempted to achieve parity with the United States in oceanography, distant-water fishing, and naval and commercial shipping. It made especially great advances in the 1960's. In the 1950 s Soviet distant-water fishing was virtually nonexistent but by 1961 the first Soviet trawlers were fishing off the east coast of the United States and by

PAGE 156

145 c 1966 off the west coast. The Soviet Union also concentrated on building research vessels and educating the necessary scientists and technicians to allow continued growth in its oceanographic research program. By the mid-1960 s its ocean related research was greater than that of Britain, 7 France, and Japan and equal to that of the United States. The great strides made in Soviet oceanography spurred the United States to increase its ocean program and an 'ocean-race' ensued between the two super-powers. As early as 1959 the United States Office of Naval Research and Development recommended that an oceans program be instituted. Subsequently, the National Academy of Sciences' Committee on Oceanography called for a ten-year program aimed at creating the necessary educational infrastructure to expand and continue an oceans program. In 1959 President Eisenhower established an Inter-Agency Committee on Oceanography which did little to create a long range oceans pro8 gram. Two years later (in 1961) President Kennedy formulated and presented a comprehensive oceans program to Congress. He proposed to double the government's expenditures in oceanography for 196 2 over those of 1961 (to over 97.5 million dollars) Having envisioned an ever-growing oceanographic research and technology program, President Kennedy 9 died before he was able to implement it. The United States became increasingly aware of the military and strategic importance of the oceans at the same

PAGE 157

146 time when several incidents pointed out American shortcomings in deep-water technology. This combination spurred the United States to increased spending on ocean programs. The first such incident occurred in 1963 when the nuclear submarine, Thresher sank off the coast of Cape Cod in deep waters. When the Navy conducted its search, it realized that it lacked an adequate deep-water submarine rescue capability. To bolster this deep-water technology which was central to the American strategic system, funds were appropriated in 1964 for the development of research programs in marine technology including deep-water submergence systems and rescue vehicles. Further impetus was given to American deep-water research by the loss of nuclear bombs in 1966 off the Spanish coast, and again in 1968 by the loss of another nuclear submarine, the Scorpion American shortcomings, which subsequent attempts at recovery revealed, fostered further spending on ocean programs. This accelerating interest by the United States government, especially by the United States Navy in marine technology and development, caused some countries to fear that the United States was planning to establish permanent military sea-bed installations. In 1966 the United States government further demonstrated its commitment to a long-range ocean science program by enacting the Marine Resources and Engineering Development Act and the National Sea Grant Colleges and Programs. The aims of this legislation were to increase America's

PAGE 158

147 ability to exploit ocean resources, to encourage private enterprise to become active in ocean-related fields, to maintain United States supremacy in marine science, technology, and resource exploitation, and to educate the necessary technicians and scientists to continue this program. Especially important in the development of the ocean policy of the United States was the powerful petroleum industry's influence on governmental agencies. Of the ocean resources, the growth of offshore oil exploitation was especially rapid. In 1949 the first mobile offshore oil rig operating in 20 feet of water was built. In 1956 offshore oil production represented only 1% of total American pro13 duction. By 1969 the oil industry had invested almost thirteen billion dollars in American offshore oil exploration and exploitation — supplying approximately 1.25 million barrels per day or approximately 15% of the total United States production. In the early 1960's oil and gas were the major energy sources in the United States; 45% of America's energy needs were met by oil and 25% by natural gas. Increasing American reliance on and consumption of petroleum products aided the oil industry's lobbying efforts to expand 14 the leasing of offshore production. As technological developments improved the ability to explore and exploit offshore oil at greater depths, the petroleum industry became eager to expand operations further offshore. During the mid-1960 's offshore oil operations primarily occurred at depths of 150 feet or less. In 1966

PAGE 159

148 there were only four producing oil rigs at depths greater than 300 feet off the United States coast. The surge of deep water offshore operations which followed in 1967 and 1968 spurred the oil industry's efforts to persuade the United States administration to gain control over its continental shelf — extending to the outer edge of the conti. .15 nental margin. Partly as a result of the oil industry's efforts, partly because oil was considered to be the most valuable and important of the continental shelf resources, the Interior Department (whose job it was to issue leases to the oil companies, recommend regulations, supervise operations and handle the large revenues from offshore leases) continued to urge increased offshore oil operations and extended United States control over the continental shelf. The National Petroleum Council, an industry advisory and study body for the Interior Department, had similar interests in expanding United States offshore oil development and control. This expansion of offshore oil production was not unique to the United States. During the 1960 's, the petroleum industry not only increased exploration and exploitation in the traditional oil producing areas but also expanded into new regions. Between 1960 and 1967, the United States and Mideastern offshore oil fields continued growing at a rapid rate — some estimates place the American expansion at a four-fold increase and the Mideastern at ten-fold. After 1960 the oil industry also initiated offshore operations

PAGE 160

149 worldwide. From 1960 to 1968 offshore oil and gas production was begun in over 20 countries including Iran, Indonesia, Australia, Mexico, Trinidad and Tobago, Nigeria, Brazil, Gabon, Britain, Peru, the United Arab Emirates, and Malaysia. During this same time, offshore exploration was undertaken in over 50 countries. This expansion of offshore oil production revitalized coastal states' interests in controlling their continental shelf resources. Although the Soviet Union also attempted to expand its offshore oil and gas production, the geographic-climatic conditions did not allow development as rapid as that of other states. Most of the Soviet continental shelf is in the Arctic and Bering Seas where adverse climatic conditions hamper development. In the 1960 's most of the Soviet offshore oil production was in the Caspian Sea in which the first oil field was discovered in 1949. A second oil field in the Caspian was discovered in 1963 and began production then. Soviet offshore exploitation and production techniques at that time lagged behind the western oil companies. In the Caspian, offshore platforms were constructed in 130 feet of water incorporating slant-drilling techniques which could extract oil at a depth of 200 feet. Ten percent of the offshore oil during the drilling process escaped into the sea causing a great deal of pollution and killing fish and wildlife. As a result in 1968, the USSR Council of Ministers instituted a decree prohibiting new offshore oil

PAGE 161

150 wells until methods of preventing oil pollution were A A 17 devised. Another issue which focused world attention on law of the sea matters was jurisdictional rights over fisheries. World-wide exploitation of fishery resources expanded quickly after World War II and especially in the 1960 's. Technological advances coupled with a burgeoning world population and the subsequent increase in global food requirements were largely responsible for this expansion. In 194 8 the world fish catch amounted to approximately 19.4 million metric tons; ten years later in 1958 it was approximately 32.5 million metric tons; by 1962 it was approximately 44.7 million metric tons and by 1967 it had reached 61.1 million metric 18 tons. Along with the increase in the quantity of fish caught there was a redistribution in the ranking of states catching the fish. In 1948 the Japanese fish catch was 2.5 million metric tons, the United States' was 2.4 million metric tons while the Soviet Union's was 1.5 million metric tons. By 1962 the United States' fish catch had increased slightly to 2.9 million metric tons while the Soviet Union's and Japan's jumped to 3.6 and 6.9 million metric tons respectively. China and Peru had also substantially increased their fish catch and moved ahead of the United States. In the mid1950 s the United States had fallen from second place to 1 9 fifth place. By the 1960 's it occupied sixth place among

PAGE 162

151 the fishing states. Although by 1967 United States consumption of fish had doubled from the 1948 figure, United States fishermen only caught 40% of the fish consumed. The United States became the biggest importer of fish and fish products Adding to the American fishery problem during the 1960 's, foreign fishing fleets — especially the Japanese and Russians — intensified their operations off the Untied States coast. The older United States coastal fleets could not compete with the foreign technologically advanced distantwater fish factories which used the newest electronic and mechanical equipment. As these foreign fleets were often thought to be responsible for the overfishing of some species, the American coastal fishermen lobbied for national legislation curtailing foreign fishing activities near American coasts. As a result of their efforts, in 1964 Congress passed the first of a series of three laws protecting American coastal fisheries. The act generally called the 'Bartlett Act' after its sponsor, Senator Bartlett of Alaska, prohibited foreign vessels from taking any continental shelf living resources up to a depth of 200 meters. Since the Bartlett Act only applied to continental shelf living resources, American coastal fishermen continued to lobby for the establishment of a broader exclusive fishery zone beyond the three-mile territorial limit. Consequently, in 1966 Congress passed the second protectionist measure against the encroachment of foreign fishermen. It extended

PAGE 163

152 an exclusive American fishing zone of nine miles contiguous to the three-mile territorial sea. In 1968 a supplemental act was passed prohibiting foreign fishing support vessels in the twelve-mile fishing zone. These acts were passed over the strong objections of the distant-water fishermen — particularly the shrimpers in the Gulf of Mexico and the tuna fleets based in San Diego and Puerto Rico which fished 21 the western coast of South America. These actions were not uncontested even in the United States. Although in 1962 the State Department felt that international law did not permit such jurisdictional extensions, by 1966, it had changed its position and considered international law — as confirmed through international practice — to allow such claims. When attempts were made in 1966 to extend exclusive fishing rights to the 200-meter depth contour, which would in effect establish an exclusive fishing zone in the waters superjacent to the continental shelf, spokesmen from various governmental departments — including Commerce, Interior, State, and Defense — adamantly 22 protested against such a far-reaching extension. Along with increased fishing and greater offshore mineral production, the other major commercial use of the oceans — shipping — also grew throughout the 1950 's and 1960's. In world sea trade the shipping tonnage increased 23 8% annually. From 1950 to 1970 the number of the world's merchant fleet doubled and the tonnage quadrupled. Also the

PAGE 164

153 size of the ships increased to accommodate transporting bulk commodities such as oil. Ocean shipping remained the cheapest way to move many bulk goods and so continued to 24 grow. ********* The military importance of the oceans rivaled their economic significance. Maritime states have traditionally relied on sea power — the use of force or the threat of force on the oceans — to defend their national security interests. National navies composed of armed and unarmed vessels capable of striking other ocean-going vessels or land targets are the physical manifestations of sea power. The task of a navy is to defend the state's coast, to protect its coastal and global fishing and shipping, to maintain the capability for an amphibious assault and coastal bombardment, to provide a strategic nuclear deterrent and to offer by its presence a show of the state's power and interest in an area. With rapid scientific and technological changes, modern navies became increasingly sophisticated and diversified and 25 increasingly dependent on further technological advances. As the military and strategic importance of the oceans increased, the world's two super-powers, the United States and the Soviet Union, sought supremacy in the oceans. The United States considered strategic deterrence for protection of the state to be the most important naval objective. Therefore, in the late 1950' s and early 1960 s America focused on ways to counteract the Soviet Union's large

PAGE 165

154 submarine fleet — the largest in the world. The United States Navy also considered the possibility of establishing submarine tracking devices off the continental shelves of other states in order to continuously monitor the movement of foreign submarines. In order for this type of surveillance equipment to be used legally, territorial seas would have to be narrow. This consideration added to the Navy's desire for the maintenance of three-mile territorial seas. In contrast, other potential military uses of the seabed involved placement of weapons systems necessitating exclusive coastal state control over broad areas of the sea bottom. These continental shelf weapons systems would eventually become detectable with technological advances and would become vulnerable to enemy attack. The United States and the Soviet Union, therefore, agreed to prohibit the installation of weapons on the sea-bed beyond twelve miles. With this decision, the Defense Department resumed its traditional position upholding narrow jurisdictional sea 27 claims The other major aim of the United States Navy—maintaining its striking capability and freedom of navigation — further motivated it to support narrow jurisdictional claims. If countries adopted — as many threatened — a twelvemile territorial sea, many of the 121 strategic straits world-wide would beccme territorial sea straits in which innocent passage would be maintained. Navigation by American military vessels through these straits could then be

PAGE 166

155 2 8 curtailed. The American involvement in Vietnam — in which the United States Navy developed extensive supply lines across the oceans — reinforced the Navy's desire for narrow jurisdictional sea limits and global freedom of movement. This naval mission to uphold global freedom of movement was close to the classic idea of control of the sea — maintaining open sea lanes for one's own navy while denying them for the enemy's navy or supply lines. The traditional purpose of sea control was to reinforce and resupply military forces overseas, ensure the safe shipping of necessary industrial supplies, provide war-time economic and military supplies to allies, and give protection for naval forces while projecting power to enemies on shores. It was, therefore, critical for the Navy to have freedom of navigation through straits for sea control. The other related naval missions — the projection of power onshore and a show of naval presence — also required freedom of movement and narrow coastal jurisdiction for the Navy to be as effective and efficient as possible. All the classic naval missions were served by the maintenance of freedom of the seas with three-mile territorial seas. The Navy's position conflicted with other governmental and commercial interest groups in the United States — such as the close-water fishing industry, the oil and gas industry, and the Interior Department — which advocated increased United States jurisdictional control 29 over the seas and/or sea-bed.

PAGE 167

156 Since no internationally accepted law governed these new or intensified uses of the seas, states made diverse and extensive claims during the late 1960 's. This proliferation of claims encouraged states to consider taking steps toward an international agreement. The United States and the Soviet Union especially realized that their martime and national interests would benefit from a uniform international agreement on the related issues of the territorial sea, transit through international straits, fisheries and sea-bed mining. Both super-powers were especially concerned with the breadth of the territorial sea and transit through straits. Since the USSR had become a maritime state and wanted to maintain freedom of navigation, it had changed its earlier position on the breadth of the territorial sea — that a state could extend its limit to any breadth — to a more modest position — that a state could extend its limit only up to twelve miles. In the late 1960 's, several factors (military, economic and political) combined to encourage states to begin international discus sion regarding different aspects of ocean use. Through ~he 1960's both the United States and the Soviet Union had clashed with other states which claimed extensive territorial seas. In 1967 the Algerian government protested the presence of a United States naval sguadron within seven miles of its coast. Continuous disputes over fishing rights occurred between the United States and the Latin American states.

PAGE 168

157 Another source of friction was the claim made by various archipelago states that the waters between their islands were 'internal' ones. This question arose when in 1964, a United States aircraft carrier task force navigated in the Java Sea and Sunda Strait which Indonesia claimed to be internal waters. Subsequently, Indonesia announced that all foreign shipping going through the waters of the Indonesian Archipelago would be required to obtain prior written permission. For violating Indonesian internal waters, a Soviet hydrographic survey ship was seized by the Indonesian Navy. The ship later escaped but was followed by the Indonesian Navy in hot pursuit. In 1968, when five Russian trawlers were spotted navigating 120 miles off the Argentine coast, Argentine warships were deployed to seize them. Although the trawlers escaped capture, Argentine warplanes fired on one of them in an attempt to force it to stop. Incidents such as these made it clear to the Soviet Union and the United States that clearly defined internationally accepted laws governing ocean space were urgently neeaed. ********* Although in the 1960's the commercial production of manganese nodules did not yet exist, the potential of such production was to a great extent responsible for the onset of the subsequent United Nations sea-bed debate. Manganese nodules were first discovered during the voyage of the British H.M.S. Challenger in 1874. These potato-sized chunks are scattered half-buried in mud across millions of

PAGE 169

158 square miles of the deep ocean floor in depths of 12,000 feet or more. Economic interest in these nodules began after the Scripps Institute expedition in 1957-8 recovered some nodules containing commercially exploitable levels of cobalt, copper, and nickel. Although varying in composition, the nodules considered to be commercially exploitable contain up to 30% manganese, 1.4% nickel, 1.2% copper, and .25-. 30% cobalt. In the early 1960's United States mining companies became interested in possible production and instituted various programs studying the nodules and the 31 possibilities of mining them. In 1965 John Mero published 32 The Mineral Resources of the Sea in which he stressed the economic potential of the manganese nodules, bringing them into the public eye. As technological advances made the eventual commercial exploitation of manganese nodules feasible, states began to consider ways of regulating this production. So great had interest become, that in 1966, at the commissioning of the Oceanographer President Johnson warned that under no circumstances must we ever allow the prospects of rich harvests and mineral wealth to create a new form of colonial competition among the maritime nations. ... We must ensure that the deep seas and the ocean bottoms ^axe and remain, the legacy of all human beings. In early 1966, the United States representative to the United Nations Economic and Social Council proposed a draft resolution asking the Secretary General to conduct a survey of the existing information on deep sea-bed mineral resources and the available techniques for their exploitation.

PAGE 170

159 On March 7, 1966, the Economic and Social Council adopted a resolution, proposed by the United States, Ecuador, and Pakistan, asking that a marine resource survey be conducted to identify resources which could be economically exploited, especially for the benefit of developing countries, and to identify any existing gaps in the knowledge necessary to exploit these resources. On December 6, 1966, the General Assembly adopted a resolution on "Resources of the Sea," by a vote of 87 to with 12 abstentions. It requested the Secretary General to conduct a survey of activities in marine science and technology undertaken by various organizations, states, universities, and institutes, and to formulate proposals encouraging international cooperation in understanding marine science, exploiting the marine resources, and establishing marine science education and training programs. Although neither of these proposals dealt directly with the sea-bed, they were indicative of growing interest in the economic potential of the ocean floor beyond the continental shelf. They also showed the growing desire on the part of the developing countries to participate with the developed states in exploiting the sea-bed resources. ********* Although the United Nations had been involved in various practical aspects of ocean use for a long time, from 1966 it became increasingly involved in law of the sea issues. The rapidly expanding United States and Soviet

PAGE 171

160 ocean programs, the increased interest by coastal states in extending seaward jurisdiction, and the developing countries' desire for a new international legal regime encouraged the United Nations to take action on law of the seas issues. In the 1960's, its focus was on the sea-bed and its resources beyond the continental shelf — an issue which had not been dealt with before in international forums or in state practice. On August 17, 196 7, Arvid Pardo, the Ambassador from Malta, introduced an item to the agenda at the 22nd session of the General Assembly opening the general debate on the development of the sea-bed. He called for a Declaration and treaty concerning the reservation exclusively for peaceful purposes of the sea-bed and of the ocean floor, underlying the seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind. The attached explanatory memorandum stressed that rapid technological advances would soon allow developed countries to exploit the sea-bed beyond the continental shelf and lead to national appropriation of these areas. To prevent this from taking place, Ambassador Pardo stated that the ocean floor should be declared the common heritage of mankind. He further proposed that a treaty be drafted incorporating the following principles: the sea-bed and ocean floor beyond the limits of national jurisdiction should not be subject to national appropriation; the exploration of this area should be conducted in ways consistent with the principles and

PAGE 172

161 purposes of the United Nations Charter; the exploitation and use of this area should be undertaken so that the interests of mankind are safeguarded and that development of poor countries promoted; the area should be reserved exclusively for peaceful purposes. Additionally, he proposed the creation of an international agency to assure international jurisdiction over the area in conformity with the provisions 4-U 4*. 36 in the treaty. On October 6, 1967, the General Assembly adopted item 9 2 to examine the proposal by the Maltese Ambassador. Initially, few representatives were interested. Yet, the ambassador continued to stress that the new resources of the ocean floor should be used for the development of the poorer countries under the jurisdiction of an international organization. On November 1, he began discussion of this item by elaborating his earlier memorandum and noting the need for the control of marine pollution from the release of radioactive and other waste materials into the seas. Pardo proposed that a resolution be adopted including the following points: the deep ocean floor is the common heritage of mankind to be used exclusively for peaceful purposes and for the benefit of all mankind; national claims of sovereignty over the area should be frozen until the continental shelf is clearly defined; and a committee should be established to study the implications of an international regime and to draft a treaty safeguarding the international nature of the

PAGE 173

162 area and providing for the creation of an international 37 agency. After discussion of these proposals, on December 18, 1967, the General Assembly unanimously adopted Resolution 2340 (XXII) Examination of the question of the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind. It established an ad hoc committee "to study the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction." The Ad Hoc Sea-bed Committee was to deliver its report to the General Assembly at the 23rd ses3 8 sion the following year. The Committee was composed of 35 states from different regional groups designated by the 39 United Nations. The Committee's decision to conduct its work by consensus (where no item would be adopted until all agreed) rather than by voting, reflected the fear of the developed countries that they would be consistently outvoted by the numerically stronger developing states. The Ad Hoc Sea-bed Committee held three sessions in 1968: March 19-27 and June 17-July 9 in New York and August 19-30 in Rio de Janeiro. Hamilton Shirley Amerasinghe of Ceylon was elected chairman; four vice-chairmen reflecting a balance of regional groups were chosen. Two working groups were established, one dealing with the technological and economic aspects and the other with

PAGE 174

163 legal ones. The Report of the Committee was adopted by the Committee on August 30, 1968, and was delivered in the 23rd session to the General Assembly's First Committee (Political and Security) for consideration. After deliberations, the First Committee recommended to the General Assembly that it 41 adopt the Ad Hoc Committee's four resolutions. Subsequently, on December 21, 1968, the General Assembly voted and adopted these resolutions. The most important resolution called for establishment of a permanent Sea-Bed Committee. It was to continue the tasks begun by the Ad Hoc Committee and laid the foundation for the future UNCLOS 42 III. The most controversial of these resolutions also 43 dealt with the sea-bed. Developing states voted for a study to consider the establishment of international machinery for exploration and exploitation of sea-bed resources, while developed ones voted against it or abstained. The other two resolutions dealt with uncontroversial issues and were widely accepted. One requested a study of marine 44 pollution and the other the creation of an "International 45 Decade of Ocean Exploration." The Sea-bed Committee was established and its membership was changed from the Ad Hoc Committee to include more developing states. It was now composed of 16 developed 46 states and 26 developing ones. The Committee agreed to keep this membership for two years and after that to rotate one-third of the members of each regional group. It was also divided, as the Ad Hoc Committee had been, into two

PAGE 175

164 working sub-committees — the Economic and Technical Sub-Com47 mittee and the Legal Sub-Committee. Although the Legal Sub-Committee was unable to agree on the specifics of many issues, it did agree on some general principles and was able to identify issues which needed further discussion. The Legal Sub-Committee's Report began by stating that while the Sub-Committee agreed that an area of the sea-bed beyond national jurisdiction existed, it 48 found itself unable to establish a boundary for this area. A consensus was obtained on the general principle that there is a need for a legal regime of the sea-bed which would be binding and that the resources of the sea-bed should be used for the benefit of all mankind. The specifics and scope of the regime and whether the regime would apply to the area or only to the resources were unsettled issues. The principle of freedom of scientific research was acceptable in general. Although states agreed that it was necessary to distinguish between scientific research and commercial exploration, they did not agree on state obligations for communicating the programs and subsequent results. Also, the idea that scientific research could be the basis for the right of exploitation was disputed. General consensus was reached on the concepts of noninterference with the freedom of the high seas of all states and the need for safeguards against marine pollution and protection of the living resources of the marine environment. The question of state liability for

PAGE 176

165 damage caused in the area was not settled. There was no 49 agreement on coastal state rights in the area. The other working group of the Sea-bed Committee, the Economic and Technical Sub-Committee, studied and discussed 50 a wide range of issues. It agreed that since exploitation of sea-bed resources would begin in the near future there was a need to establish an international regime for the benefit of all states while taking into consideration the special interests and needs of the developing ones. States further concurred that this regime should not diminish incentives for exploitation and should minimize the hazards to the ocean environment from the exploitation activities. The Report, written by the Economic and Technical Sub-Committee, stated that progress in sea-bed mineral exploitation would go through the following stages: acquiring basic knowledge through systematic surveys and research; exploring the mineral rich areas; evaluating the possibility 51 of exploitation; and finally exploiting the resources. Further study was needed to determine the economic impact of sea-bed resource exploitation on the developing countries which were economically dependent on exporting some of these 52 minerals. In June 1969 a working group of the Intergovernmental Oceanic Commission (IOC) prepared a paper on oceanic exploration and research. It dealt with both the scientific and practical problems in implementing a long-range program. This paper was presented to the Sea-Bed Committee. The

PAGE 177

166 Economic and Technical Sub-Committee asked the IOC to reconsider its study — to view the problems in a way more favorable to the developing countries. The study was slightly modified and adopted in September 1969. It was then sent on to the General Assembly as requested by the Resolution cal53 ling for an International Decade of Ocean Exploration. The problem of establishing international machinery to promote the exploration and use of the sea-bed resources for 54 the benefit of mankind proved especially difficult. Discussion centered on whether the agency should be a registration center for applications or an agency with the power to refuse or grant licenses. The developing countries supported the latter idea. This way they could participate in controlling resource exploitation and receive revenues from the licensing fees. While most of the developed states offered no definite opinion, the United States opposed a licensing agency because it might restrict exploitation and fall under the control of the numerically superior developing states. Although the problem of establishing international machinery could have been dealt with as a separate issue — apart from the sea-bed legal regime — the developing countries insisted that it be considered as part of the entire sea-bed regime. By linking these issues, they hoped to increase their bargaining power. Opposition by the 55 Soviet Union proved of no avail. Despite the Sea-bed Committee's progress during 1969 in reaching consensus on the issues discussed above, it did not

PAGE 178

167 come any closer to reaching agreement on the sea-bed regime. Developing states blamed the industrialized ones for blocking agreement. In an effort to force the issue, developing states sponsored a four-part Resolution (2574-A-D XXIV) on December 15, 1969, dealing with ocean law. In the 24th United Nations session the question arose of convening a conference to deal with all aspects of law of the sea. Since customary international law defining the continental shelf was inconclusive, Pardo once again initiated discussion, and submitted a draft resolution to request a vote on convening a conference to define the international area of the ocean floor. Jamaica and Trinidad-Tobago submitted amendments to Malta's draft resolution stating that this conference should also deal with other closely related law of the sea issues — high seas, territorial waters, contiguous zones, and the superjacent waters of the 57 continental shelf. These amendments spurred further discussion over what the agenda for the Conference should include. The United States, the West European states, and the Soviet Union wanted to limit the conference to delimiting the boundary of the ocean floor and establishing its regime while the African and Asian states supported the amendments made by C Q Jamaica and Trinidad-Tobago. Seventeen developing nations sponsored another amendment calling for a conference to review all the related issues. On December 2, 1969, this 17-state amendment was adopted by a vote of 56 to 25, with

PAGE 179

168 5 9 32 abstentions. Most of the developing states voted for it while the United States, the Soviet bloc, France, Italy, Japan and others voted against it. Great Britain and some other West European states abstained. The resulting resolution requested the Secretary General to ascertain the views of Member States on the desirability of convening at an early date a conference on the lav/ of the sea to review the regimes of the high seas, the continental shelf, the territorial sea and contiguous zone, fishing conservation of the living resources of the high seas, particularly in order to arrive at a clear, precise and internationally accepted definition of the area of the sea-bed and ocean floor which lies beyond the limits of national jurisdiction in the light of the international regime to be established for that area. The Soviet bloc, the United States, and Japan opposed this resolution firmly because a 'package deal' diminished their bargaining power relative to that of the developing states. Three additional resolutions were passed in this session. A resolution calling for the continuation of the Sea-Bed Committee was relatively uncontroversial and passed unanimously with one abstention. Although more controversial, the resolution, requesting additional studies on the establishment of the international machinery for the sea-bed 63 regime, passed. The most controversial resolution — reflecting the growing difference between the developing and industrialized states--called for a moratorium on the exploitation of the deep sea-bed. The sponsoring states, which were all developing states, feared that the industrialized states would appropriate and exploit the ocean bottom before an

PAGE 180

169 international regime had been established and thus exclude them from participation in sea-bed exploitation. The industrialized states opposed this proposal. According to the United States representatives, the draft resolution would not only encourage states to expand claims of national jurisdiction; it would be contrary to the trend of the times and to general benefit and progress. While most of the developing states voted for the proposal, the developed states voted against it. This resolution was meant to curtail mineral resource exploitation — especially manganese nodules — by the industrialized states but not to restrict coastal state jurisdictional extensions by developing states. Although this resolution was not legally binding, it increased the legal uncertainties of deep sea-bed mining — already a concern to the mining companies. Significantly, it created an atmosphere of confrontation between the industrialized and developing states. During the subsequent 1970 Sea-Bed Committee meetings little progress was made toward a consensus of views between the developed and developing states. To hasten things along, informal drafting groups began meeting in an attempt to achieve a compromise. The Soviet bloc, Italy, Belgium, and Malaysia continued their opposition to the common heritage concept as a principle for the sea-bed regime, while accepting it as a guideline. On the other hand, states such as the United States, Great Britain, and

PAGE 181

170 Canada, while opposing the common heritage idea as a principle, were willing (unlike the USSR and others) to accept its inclusion. Toward the end of 1970, disagreement in the United Nations centered on how the common heritage principle could be implemented. After much discussion, problems concerning the delimitation of the boundary for the international area, which brought the territorial sea and contiguous zone limits into the discussion, and the establishment of international machinery to administer the area remained **1 A 67 unsettled. The problem of defining a boundary for the international sea-bed area was complicated by proposals for the establishment of boundaries outside the Sea-Bed Committee's negotiations. On May 8, 1970, nine Latin American coastal C Q states, which prior to 1970 had claimed 200-mile territorial seas or contiguous zones, signed the Declaration of Montevideo. The subsequent Declaration of Lima of August 8 was supported by the signatory states of the Montevideo Declaration in addition to Mexico, the Dominican Republic, Colombia, Guatamala, and Honduras. Both Declarations claimed that coastal states possessed the right to determine their own limits of sovereignty or jurisdiction over the sea-bed and superjacent water including their right to control living and non-living resource exploitation, scientific research, and pollution to whatever seaward jurisdiction they felt necessary. This group of 14 coastal Latin American states attempted to form a bloc whose major interest was

PAGE 182

171 the extension of coastal state seaward jurisdiction. In order that they could continue gathering support for greater coastal state jurisdiction, these states consistently opposed the early establishment of the boundary for the i 69 international area. Another development outside the Sea-Bed Committee which had an effect upon discussion within the Committee was President Nixon's statement of May 23, in which he proposed 7 a three-tiered boundary system. He also proposed that until a sea-bed regime was established, states should be able to issue permits for the exploration of sea-bed resources beyond the 200-meter depth — a suggestion which contradicted the nature of the moratorium resolution 7 1 (1969). Nixon's statement helped focus the discussion of the Sea-Bed Committee. Yet, President Nixon's statement and the subsequent United States draft proposal had not gone unchallenged. The idea of establishing an interim regime was opposed by the developing states since it in effect would cancel the moratorium resolution which prohibited the exploitation of sea-bed resources beyond national jurisdiction pending an international agreement. The United States restriction of the common heritage principle to the resources of the area, rather than to the area itself, generated further protest. Other proposals on the boundary issue were introduced to the Sea-bed Committee. Most of these expressed the desire of coastal states for greater seaward jurisdiction.

PAGE 183

172 Both Norway and Iceland submitted proposals based on variations of the 200-mile distance/500-meter depth formula. Canada and Italy suggested that the boundary be based on the continental margin. Britain and Austalia, due to their growing offshore oil interest, objected to the 200-meter depth boundary proposed by the United States and favored a 72 broader and deeper limit. The creation of international machinery remained the most debated issue. A study regarding international machinery was conducted by the Secretary General and submitted to the Sea-Bed Committee in the 1970 session. In this Report four types of international agencies were discussed ranging from a center for the exchange of information to a comprehensive international machinery governing all exploitation 73 activity of sea-bed resources. While the majority of states supported a comprehensive international machinery, the developed states opposed such a system. The Soviet Union maintained its earlier position that the international machinery should aid international cooperation in ocean research. The prospect for early and rapid exploitation was unrealistic. Britain, Canada, Italy, and Australia objected to a large agency on the grounds that the operating costs would absorb a large part of the revenue generated from sea-bed mining. Although Japan was opposed to a comprehensive international machinery, it conceded that this type of organization might be needed in the future.

PAGE 184

173 The three proposals, submitted in the session by the United States United Kingdom and France for the establishment of a regime governing sea-bed exploration and exploitation, were pioneer efforts. Significantly, these were all industrialized states and approached the problem in a similar fashion proposing some type of weak licensing systems. The United States was the first to submit its comprehensive proposal, on August 3, turning attention from the Secretary General's Report. The Americans defined the international sea-bed area as "all areas of the sea-bed and subsoil of the high seas seaward of the 200 meter isobath adjacent to the coast of continents and islands" which was open to the use of all states for peaceful purposes and did not affect the high seas character of the superjacent waters. According to them (i.e. the Americans) the International Sea-bed Resource Authority would be responsible for licensing parties for exploration and exploitation of this area. The parties and their originating state would be liable for damage to the marine environment and costs for cleanup and restoration. In accordance with the common heritage principle, the revenues from the exploration and exploitation of the area would be used for the benefit of all mankind — especially for the economic promotion of developing states. The area between the international sea-bed and the continental shelf would be designated *s the inter77 national trusteeship area.

PAGE 185

174 After discussion of the submitted proposals, the Seabed Committee turned to its task of writing a declaration of principles on the legal regime of the international sea-bed area. It was unable to achieve a consensus because of the variety of positions. In order to complete this declaration of principles, states had to make concessions on the inclusion of some items and the omission of others. The common heritage principle and the establishment of international machinery were included over the protests of many developed countries — especially the Soviet bloc. Without these two principles the developing countries would not support the declaration. Conversely, the developing states had to give up any direct mention of the moratorium on sea-bed exploitation; and control of metal price fluctuation was only mentioned in the preface. Complicating matters was the fact that such terms as 'common heritage' and 'peaceful purposes' were not defined and the structure and function of the international regime and machinery remained unspecified. Difficulty also existed concerning the transfer of technology to the developing states. Problems surrounding definitions of limits which had aroused the most controversy in the deliberations of the Sea-Bed Committee, remained unresolved. While the developing states insisted that the regime be established first and the area be then delimited, the developed states, especially the Soviet bloc, insisted that the boundary be defined first. The issue remained

PAGE 186

175 unsettled at the time of the final drafting of the Resolution, i.e. the boundary limit as mentioned in the preamble 7 8 was yet to be determined. Faced with these difficulties, the Chairman of the Seabed Committee sent a letter in the fall of 1970 to the General Assembly outlining possibilities of agreement. Based on this letter, 36 nations, later joined by 10 more, sponsored a joint proposal for the declaration of principles, (Resolution 2749 XXV) adopted December 17, 1970, by the General Assembly. Neither the Soviet bloc (except Yugoslavia) nor the United States nor the United Kingdom sponsored this Resolution and in the voting the Soviet bloc abstained. It 79 was adopted 108 to 0, with 14 abstentions. This Resolution declaring principles for the international sea-bed area is important because it later formed the basis for law of 8 the sea negotiations. Although it contained most of the principles enunciated by Ambassador Pardo, states could not agree on how to implement these principles. Reluctant to see the regime for the sea-bed as separate from other law of the sea issues, developing states were unwilling to negotiate a separate agreement dealing with the sea-bed. Also, during the 25th session on December 17, 1970, the General Assembly adopted three other resolutions dealing with law of the sea issues. The first one of these was sponsored by 17 developing countries four of which had large copper exporting interests. It requested the Secretary General to cooperate with UNCTAD and the other specialized

PAGE 187

176 agencies to identify and study the economic problems arising from deep sea-bed mining of certain minerals in terms of its impact on developing countries' economies and to propose solutions to these problems. It was adopted by a vote of 104 to 0, with 16 abstentions. This Resolution indicated the emergence of a new special interest group — the metalexporting developing states--in law of the sea negotia81 tions Another resolution, sponsored by 12 land-locked states, called for a study on the problem of free access to the sea by land-locked countries and their special problems in exploring and exploiting the deep sea-bed resources. It was adopted 111 to 0, with 11 abstentions and indicated the emergence of yet another interest group with specific and 82 separate aims. The final resolution was the most important of these resolutions and reflected a change in direction in sea-bed issues and other related law of the sea issues. The results of the survey, pursuant to a previous resolution which asked states their opinion on holding a comprehensive law of the sea conference, indicated most states supported such a conference. Therefore the resolution called for the Third United Nations Conference on the Law of the Sea to be held in 1973. Its purpose was to deal with the establishment of an equitable international regime — including an international machinery — for the area and the resources of the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, a precise definition of the area, and a

PAGE 188

177 broad range of related issues including those concerning the regimes of the high seas, the continental shelf, the territorial sea (including the question of its breadth and the question of international straits) and contiguous zones, fishing and conservation of the living resources of the high seas (including the question of the preferential rights of coastal States) the preservation of the marine environment (including, inter-alia the prevention of marine pollution) and scientific research. This resolution also called for re-shaping the Sea-Bed Committee into a preparatory body for the proposed Conference. Its major task was to define a list of the subjects and issues relating to the Conference's mission and subsequently to prepare draft articles. The Committee's membership was substantially increased to 86 with the addition of 44 states of which 34 were developing states — 9 Latin American, 11 African, 6 Arab, and 8 Asian — and the others developed ones. This altered the Sea-Bed Committee's composition to reflect the General Assembly's ratio of developed to developing countries. Although the political impact of this change was to a great extent mitigated by the consensus rule, it made the work of the Committee more difficult in reaching consensus. Also, since many of the new members had little knowledge of the issues involved, the Committee had to concentrate initially on educational aspects of these issues This resolution was adopted by a vote of 109 to 7 with 6 abstentions. The Soviet bloc and its allies cast all the opposi'.ig votes and some of the abstaining ones. The Soviet Union maintained its opposition to an all-encompassing

PAGE 189

178 conference and international machinery. It wanted a conference which would deal with a limited agenda on territorial sea and continental shelf limits, straits navigation, and coastal state fishing rights. Although the United States had initially wanted a limited agenda for a law of the sea conference, it had changed its position to support a comprehensive conference approach. In this way the United States thought it could gain concesssions on certain vital areas by trading off concessions in other areas. ********* The passage of Resolution 2750-C (XXV) ended the first phase of law of the sea development leading up to the UNCLOS III. Beginning with the Pardo Resolution, the international community became aware of the importance of the sea-bed and the need for regulations governing its use. During the negotiations in the Ad Hoc Sea-Bed Committee and the Sea-Bed Committee, the two major issues were the role of the international machinery in terms of exploitation of the deep seabed and the jurisdictional limits of the coastal state over the sea-bed. The alignment on the first issue was clearly drawn between the developed and developing states: the developed ones sought greater international control over deep sea-bed exploitation while the industrialized ones wanted minimal international interference. On the second issue, the alignments were not clearly drawn but varied according to the specific state's needs.

PAGE 190

179 By the end of this part of the Sea-Bed Committee's deliberations, many other issues had been brought into the debate. Most states thought that the sea-bed regime could not be settled without dealing with related ocean issues. As these other issues were brought into the discussion, most states agreed that the scope of the Sea-Bed Committee was too limited and had to be incorporated in the broader debate of a comprehensive law of the sea conference. ********* The Sea-Bed Committee, with its new responsibility as a preparatory body for UNCLOS III, met in March, 1971, in Geneva. Complicating and prolonging the Committee's work was the great increase in its membership, from 42 to 86 states, 34 of which were developing ones. During its first meetings, the Committee organized its work procedures, reelected H.S. Amerasinghe of Ceylon as its chairman, and established three Sub-Committees in addition to the Main Committee. The Main Committee's responsibility was to deal with or allocate the unfinished business, including the precise definition of the deep ocean floor and its peaceful uses. Although the Sub-Committees could make suggestions for the definition, because of the controversial and vital nature of the issue, only the Main Committee would make the final pronouncement. The Sub-Committees were given the following tasks: one was to write draft articles on the international regime including the international machinery for the sea-bed

PAGE 191

180 area and its resources beyond national jurisdiction; another was to prepare for UNCLOS III a 'comprehensive list of subjects and issues' including regimes for the territorial seas, international straits, contiguous zones, continental shelves, fisheries, and the high seas; and the last was to present draft articles dealing with the preservation of the marine environment and scientific research. Although during the first meetings no substantive discussions were held in any of the Sub-Committees, the Main o c Committee was active with 61 states debating various issues. Emerging attitudes of different blocs of states might be summarized as follows: states with broad continental shelves and margins defined the continental shelf as extending to the far edge of the margin, while land-locked and shelf-locked states considered it to be much narrower so that the international sea-bed area would be larger; others (mainly developing states) insisted that the international machinery should itself directly explore and exploit the sea-bed area; others (land-based mineral producing states) advocated a strong central international machinery with production controls to protect their interests; others (coastal states with a variety of ocean interests) proposed a functional approach toward seaward jurisdiction or different limits for different purposes; others (archipelagic states) advocated defining the connecting water of an archipelago as its territorial sea; most agreed on the need to re-examine the concept of innocent passage. This initial

PAGE 192

181 debate demonstrated the wide range of opinion and differing emphasis of states toward these negotiations. ********* During the Summer of 1971, several states submitted comprehensive proposals on the international sea-bed regime and the accompanying international machinery. These proposals, as well as the earlier ones made by the United States, Britain, and France became the basis for discussion in these meetings. On July 22, 1971, the Soviet Union submitted its proposal, dealing with the use of the sea-bed beyond the continental shelf. It stated that the exploration and exploitation of sea-bed resources should benefit all of mankind including geographically disadvantaged states, and should be conducted with special attention to the needs and interests of developing states. The proposal was vague on substantive matters. Despite the mention of the common heritage principle, the Soviet Union, like other developed countries, favored a weak international sea-bed regime. Implicit in this proposal was the understanding that most of the control and powers of initiative would be left to the 8 7 individual states. Another East European country — Poland — submitted its proposal on August 3, 1971. Other states submitted a wide-range of proposals on the o o regime for the international sea-bed area. Japan's proposal was similar to positions held by other developed 8 9 states and called for a weak licensing agency. Canada

PAGE 193

182 tried to reach a compromise between the call for state initiative and that for international control over the seabed. Reflecting the position of the developing states, 90 Tanzania outlined a stronger international regime with a sea-bed authority which would possess powers both to exploit the area directly and to license states. The strongest statement for international control of the sea-bed was made 91 by thirteen Latin American states; they advocated exploitation only by the international authority. Stressing their special interests, the geographically disadvantaged and 92 land-locked states proposed delimitation of the area to increase the economic potential of the common heritage. Malta's proposal submitted on August 5, 1971, was unique in that it dealt not only with a regime and machinery for the international sea-bed but with all of ocean space. The proposal rejected the right of governmental freedom of action in ocean space beyond national jurisdiction and of uncontrolled coastal state jurisdictional extensions. It expanded the application of the common heritage principle to all ocean space beyond national jurisdiction and not just to the sea-bed. Malta's proposal had a dual purpose — to find a compromise between the developed and developing states and to enlarge the issue of sea-bed resources to all of ocean space. Throughout discussions on a sea-bed regime, the basic alignments on the major areas of dispute were along developed-developing state lines. The most contentious issues

PAGE 194

183 centered on the powers and functions of the international machinery. The basic disagreement continued to be the nature of the operating agency for the exploitation of the international sea-bed area. During 1970-71, states proposed four basic types of systems including a registering agency, a weak licensing body, a mixed licensing and operating authority, and an international operating authority. The industrialized states favored a weak international machinery — a registering or licensing one — which would not interfere with their exploitation activities. Also, they feared that a large operating machinery would be economically inefficient — costing as much to function as the revenues it generated. The developing states wanted a strong operating machinery to prevent the industrialized states from becoming the sole exploiters of the common heritage area due to their technological superiority and financial capability. They also wanted to be part of a high technological program in which they would be unable to participate on their own. They hoped that such an economic program would become a model for other international sharing ventures and contribute to the formation of the New International Economic Order. As the licensing vs operating machinery issue became a symbolic rallying point for both sides, states were reluctant to give up their positions. During the preparatory stages of discussion, delegates merely made statements and gathered support for their positions.

PAGE 195

184 The second major issue concerned which part of the international machinery — the council or the assembly — should possess powers of initiative. The developed states wanted the council to be dominant to protect their interests in view of their numerical inferiority. The developing countries, possessing a majority but without technological or financial capability, wanted the assembly to be the primary organ which they could control through their votes. This issue was more important in the early days of the preparatory work because at that time it was thought that the sea-bed authority would learn from experience. Therefore, the council or assembly, whichever was dominant, would determine the future structure of the authority. After 1971 when the Sea-bed Committee decided to give the sea-bed authority specific powers, this issue became less important. The third issue — the role of the authority in regulating the production of sea-bed minerals — was also divided along developed-developing state lines. The developed states were against production controls which they thought would discourage sea-bed resource mining. The developing states — some of which were land-based producers of copper, nickel, cobalt, and manganese — wanted to ensure that the ocean resources would not undercut land-based exports of developing countries and therefore supported strong production controls Since the impact of manganese nodule mining on rrineral price levels was uncertain, speculations concerning it were based on states' preconceived ideas and

PAGE 196

185 interests. The developed states insisted that its effect would be minor while the developing states took the opposite view. Throughout the preparatory negotiations, this remained a basic problem area. Another issue which was divided along developed-developing state lines was whether scientific research in the international sea-bed area should be a right or be controlled by the sea-bed authority. The United States, the Soviet Union, Britain, and Malta argued that scientific research should be a free right of states because states were the only ones possessing the technological and economic requirements to conduct the research which would not be directly remunerative. Canada was concerned with possible environmental damage from certain research practices and therefore supported regulation by the international sea-bed authority. In keeping with their desire for a comprehensive sea-bed authority, an extreme position was favored by the Latin American states. They wanted the sea-bed authority to have the power to authorize as well as to regulate scientific research. This issue was more closely related to the highly debated problem of scientific research in the coastal zone rather than to the size and function of the sea-bed authority. 9 5 At its last session, this Sub-Committee produced a set of bracketed and alternative texts for UNCLOS III on sea-bed mining issues. It drafted 21 articles dealing with the international regime for the deep sea-bed and

PAGE 197

186 31 articles on the implementing machinery. As most of the draft articles did not represent a consensus, alternative texts were attached. Reservations were also made to the texts and many footnotes were added to the draft articles. Despite the unsettled nature of the agreement, some states — including the United States — suggested that a provisional deep sea-bed regime be implemented to authorize mineral exploitation prior to the ratification of an international 96 treaty. Although the American draft recommendation was adopted by the Sub-Committee, no further action was taken to create a provisional authority. Also at this last session, 97 the Soviet Union proposed that a separate treaty on peaceful uses of the sea-bed be concluded but nothing was done. Even though the Sub-Committee on the sea-bed mining regime clarified the areas of agreement and disagreement, it did not come any closer in reaching a consensus. The reasons for this failure were operative from the beginning of the negotiations. As there was no accepted definition of the international sea-bed area, it was unclear which resources would be affected. By the end of 1973, the Sub-Committee dealing with offshore jurisdictional issues had failed to define this area. This greatly hampered the progress of the sea-bed mining Sub-Committee. The consensus system is an inherently slow process especially when used among a large group of states. The large increase in the states participating in these negotiations exacerbated it. Complicating the problem was the

PAGE 198

187 inclusion of many other such issues as commodity policy and coastal state jurisdiction. As technological and economic development increased the impending prospect of commercial sea-bed exploitation, political tension increased. Developing countries became aware that their expectations of wealth from the common heritage would not be as great as originally anticipated. The unilateral and multilateral actions taken by states outside the Sub-Committee (in response to economic, technical, and political developments within the Sea-bed Committee) made an agreement more difficult to obtain. The polarization of developing and developed states within the Sub-Committee discouraged compromises and gave each side a base from which to operate. States became increasingly interested in coastal state jurisdictional issues rather than exclusively in the sea-bed regime. ********* The Sub-Committee on off-shore jurisdiction tried to provide an agenda for UNCLOS III. The major problem involved in compiling a list of subjects and issues was the fear of both the developed and developing states that selection of items would be interpreted as giving support. Also, even though states had agreed from the beginning that the list would not be exhaustive, or determine the priority of discussion, states were afraid that their acceptance of the list would be misinterpreted. The opposing opinion of the developed and developing states and their mutual distrust slowed down the process of compiling a list.

PAGE 199

The major issues in the work of this Sub-Committee concerned the breadth of the territorial sea, passage through straits used for international navigation, and regulation of fisheries. Most states supported a twelve-mile territorial sea. Even though some Latin American and other states claimed a larger territorial sea, the majority agreed to accept a twelve-mile territorial sea in conjunction with a functional approach to coastal state jurisdiction for fisheries and other rights to a distance of two hundred miles. Since UNCLOS I (1958), most developing states considered a twelve-mile territorial sea as their right. The Soviet Union which had historically supported a twelve-mile limit continued to do so but feared that such a generally accepted limit might restrict their passage through straits. 98 The United States like most countries, realized that acceptance of such a limit was inevitable but like the 99 Soviet Union was concerned with maintaining freedom of navigation through international straits. With the Soviet Union and other maritime states, the United States stressed that free transit through and over international straits should be a prerequisite for acceptance of the twelve-mile territorial sea. Coastal states — such as Malaysia and Spain — bordering important straits opposed such a precondition. The right of innocent passage already allowed the transit of merchant ships; moreover, freedom of navigation for warships and over-flight for military aircraft could pose a threat to their security.

PAGE 200

189 Most developing states also felt that permitting free passage through straits as if they were high seas was a violation of their sovereignty over their territorial seas. Many coastal strait states felt that the concept of innocent passage should be re-examined to allow the coastal state the right to regulate the passage of potentially hazardous ships such as nuclear-powered ones and oil tankers. Indonesia and the Phillippines supported the archipelagic concept claiming their connecting seas between the islands as territorial waters The other major area of dispute in discussions on offshore jurisdiction was the right possessed by the coastal state over its adjacent fisheries. The United States, trying to protect its coastal fisheries, was in favor of preferential fishing rights for coastal states. Other fishing maritime states with greater distant-water fishing interests — Japan, the United Kingdom, and the Soviet Union — feared that preferential fishing rights would be extended seaward without restriction. Despite their objections to preferential fishing for the coastal state, both the United Kingdom and the Soviet Union supported the American Draft articles because they provided for freedom of navigation and overflight through straits used for international navigation. The Soviet Union submitted a fisheries proposal in which it attempted to strike a balance between its own distant-water fishing interests and those of developing coastal states. During these negotiations the United States

PAGE 201

190 submitted another set of proposals clarifying its position on fisheries. In 1972 a new concept governing coastal state jurisdiction arose. Its basis was the creation of an offshore economic zone over which the coastal state would possess exclusive control. Meetings of Caribbean and African states outside the Sea-bed Committee in June of 1972 produced two proposals incorporating the economic zone concept. The Santo Domingo Conference of Caribbean Countries on the Problems of the Sea proposed the idea of the 'patrimonial sea. The coastal state would possess sovereign rights over the natural resources in the water, sea-bed, and subsoil in the patrimonial sea. The state would also have the right to control marine pollution and to regulate scientific research in the area. Although this area was to be delimited by international agreement, the Caribbean states agreed that it should not exceed 200 miles from the coast. Within the patrimonial sea all ships and aircraft would be allowed freedom of navigation and of overflight — the only restrictions being "those resulting from the exercise by the coastal State of its rights within the area." The Declaration accepted the Continental Shelf Convention (1958) definition of the shelf but stated that the shelf within the patrimonial sea would be subject to coastal state control; the shelf outside this area would be governed by existing law. The sea-bed beyond the patrimonial sea and the

PAGE 202

191 continental shelf was to be considered as the common e i*> a 102 heritage of mankind. The African States Regional Seminar on the Law of the Sea proposed a similar concept of an economic zone in which the coastal state would possess exclusive rights over the exploitation and exploration of all the resources of the sea and sea-bed. Although the coastal state would have the right to prevent and control pollution in the area, freedom of navigation and of overflight would not be affected nor would laying of cables or pipelines. No mention was made of freedom of scientific research. The Conference recommended that the economic zone include at least the continental shelf but did not delimit the area. Beyond the economic zone, the sea-bed resources were to be controlled by an international authority which would be especially concerned with encouraging the progress of the less developed coun103 tries. Both the Caribbean and African declarations appealed to many developing states. Shortly after their announcements, Kenya proposed the creation of a 200-mile exclusive economic zone in which the coastal state would possess exclusive jurisdiction over the natural resources for their control, regulation, and exploitation and for prevention and control of pollution. Freedom of navigation, overflight and laying of cables would not be affected in the area but freedom of scientific research would be regulated by the coastal state

PAGE 203

192 These initiatives, suggesting the establishment of an economic zone, caused other states to propose different 105 types of offshore jurisdiction. The United States submitted a vague proposal basing the economic zone on the limit of the continental shelf. The Soviet Union"" also recommended a plan for delimitation of the continental shelf but did not incorporate the idea of the economic zone because it objected to broad jurisdictional extensions. This Sub-Committee (dealing with offshore jurisdiction) was unable to agree on a method for choosing smaller working groups to decide on an agenda for UNCLOS III. It therefore met as a whole throughout its negotiations. Informal meetings were held by members of the African, Asian, and Latin American regional groups in an attempt to reconcile the differences between the proposed Latin American and AsianAfrican list of issues. From these meetings, 56 developing coastal countries were able to agree on an agenda of 23 main items and 65 sub-items. This proposed agenda was opposed by states which had not participated in its drafting. The maritime states—particularly the United States and Soviet Union — objected to the list primarily because of the absence of any mention of "free transit through international straits." While mentioning "straits used for international navigation" and "innocent passage", the text did not deal with unrestricted navigation through straits which on the acceptance of a twelve-mile territorial sea would become territorial straits.

PAGE 204

193 The United States and the Soviet Union also objected to the text limiting high seas freedoms to navigation and overflight and referring to scientific research only in terms of regulation and international cooperation. The United States additionally objected to the text's provision for exclusive economic zones rather than the United States alternative of preferential fishing rights for the coastal state. The land-locked states found fault with the text for not taking into account their special circumstances for their participation in ocean resource exploitation. After many unsuccessful attempts to work out a compromise between the developing coastal states (between those 10 7 which proposed the text and others which objected to it) agreement was reached by the addition of specific amendments and a general disclaimer. ********* The Sub-Committee on the marine environment and scientific research only began substantive work during the 1973 session; this because the Sub-Committee had waited for the outcome of the United Nations Conference on the Human Environment which it thought, erroneously, would deal with ocean issues. Thirteen proposals on pollution and seven on scientific research were presented in the sessions. Both the United 1 fl R 10 9 States and the Soviet Union submitted proposals. The members were unable to achieve a consensus on the final draft articles which ended up being descriptions of various

PAGE 205

194 alternative proposals. Due to the wide range of disagreement, both working groups only managed to make general draft statements. ********* After three years of preparatory work for UNCLOS III, the United Nations Sea-bed Committee still had not completed its work and had written uneven and inadequate texts. This was due largely to the emergence of various voting blocs and their growing disparity of interests. Initially the major split was between the industrialized maritime states, the Group of 7 7 and a small group of land-locked and geographically disadvantaged states. Although this division remained dominant on sea-bed mining issues, toward the end of the preparatory period new groupings began to emerge on issues concerned with offshore jurisdiction. These new groups — including the territorialists the broad margin states, the patrimonialists the archipelagic states, the maritime states, and the land-locked/geographically disadvantaged states — reflected states' increased awareness of specific geographical and resource interests. They also evinced their willingness to meet specific needs rather than broad ideological-political ones. The territorialists were composed of the Latin American states — Peru, Ecuador, Chile, Panama, and Brazil — which claimed 200-mile territorial seas. As these states, except Brazil, had virtually no continental margin upon which to base their resource claims, they therefore supported a

PAGE 206

195 200-mile territorial sea encompassing the rich fisheries — their principal marine resource. The broad margin states, possessing continental margins beyond 200 miles, wanted to define the outer edge of the margin as far as possible. These states included Argentina, Australia, Brazil, Canada, India, Norway, and New Zealand. Along with continental shelf resources, Canada wanted preferential fishing rights in the superjacent waters of the continental shelf beyond 200 miles. States with narrow margins claiming 200-mile seas were willing to support these broad margin states in exchange for support of their claims. The patrimonialists wanted to establish 200-mile economic zones over which they would possess sovereign rights to the resources of the sea-bed and superjacent waters. As mentioned earlier, the Latin American states holding this concept signed the Declaration of Santo Domingo in June 197 2 and subsequently presented a draft article to the United Nations Sea-bed Committee based on this declaration. The African concept of a 200-mile economic zone — similar to the Latin American one except in its attempt to reconcile the interests of Africa's numerous land-locked and geographically disadvantaged states — was also adopted in June 1972. It allowed the land-locked/geographically disadvantaged states to exploit the resources of their neighboring states, called for regional management of resources, and stressed the need for equity and not just equidistance.

PAGE 207

196 The archipelagic states wanted to gain control of the waters connecting their islands. For this purpose they developed the "archipelagic waters" concept by which the island state would possess sovereignty over the waters, sea-bed, subsoil, and airspace for the seas within straight baselines from the outermost islands. Vessels could navigate these waters only under the right of innocent passage but not transit passage. From the straight baselines, the territorial sea would extend twelve miles seaward and the economic zone 200 miles. The major maritime states — the United States, the Soviet Union, the United Kingdom, Japan, and France — possessed a common interest in protecting navigation and distant-water fishing freedoms. Their primary concern — especially that of the United States and Soviet Union — was to ensure free transit through and over the international straits which would be affected by the establishment of the twelve-mile territorial sea. Having almost the same maritime interests, the United States and Soviet Union often sponsored very similar proposals. For political reasons they avoided co-sponsoring any proposals and often competed in attempts to win over the Group of 77 states. The major distant-water fishing states — the United States, the Soviet Union, the United Kingdom, and Japan — wanted to protect their rights to fisheries and prevent exclusive coastal state jurisdiction over fisheries beyond the twelve-mile limit. Since the majority of coastal states supported some

PAGE 208

197 type of seaward jurisdiction for fisheries, the maritime states agreed to alternative fishery regulations allowing the coastal state increased but not exclusive control. The land-locked/geographically disadvantaged states sought to gain access to living and non-living resources and the right to participate in scientific research in neighboring coastal state areas. They also attempted to enlarge the international sea-bed area in order to increase the revenues for the common heritage. Although they were able to agree on offshore jurisdictional issues, this group of states, diverse politically and economically, did not cooperate on sea-bed regime issues. The Group of 77 states can be divided into different categories on offshore jurisdiction according to their particular circumstances. Some supporters of extended seaward jurisdiction attempted to use the developing-developed state split in the sea-bed negotiations to improve their own offshore positions. The Group of 77 was rarely a cohesive force in negotiations dealing with offshore jurisdictional issues ********* In the time between the convening of UNCLOS II and UNCLOS III, great changes occurred in states' perceptions of the oceans and consequently of the legal regime required. Due to technological advances, states began to see the oceans not only as a transportation network and fishery but as a great source of mineral wealth. The political

PAGE 209

198 ramifications of this new perception of the oceans were first enunciated by Ambassador Pardo. The common heritage principle declared that all states regardless of their technological, economic and geographical circumstances, possessed an equal and common right to exploit the resources of the sea-bed. This idea quickly gained acceptance by the numerically superior less developed states and they sought to institute the implementation of this principle. Also at this time, the developed states recognized the need for a stable legal regime dealing with the territorial sea, straits transit, and fisheries. Consequently, regimes for these areas were discussed within the United Nations. Although states agreed on the need for an international conference dealing with law of the sea, they disagreed on its agenda. The developing states succeeded in linking negotiations on offshore jurisdiction with sea-bed mining. Basing its work on this comprehensive approach, the Sea-Bed Committee began preparatory work for the up-coming Conference. Accordingly UNCLOS III convened in the Fall of 19 73 for its procedural meetings and in the Spring of 1974 for its first substantive meetings. The conflicts which had arisen in the preparatory meetings soon surfaced in the general Conference.

PAGE 210

199 Notes Ann Hollick, U.S. Foreign Policy and the Law of the Sea Sea (Baltimore: Johns Hopkins Press, 1971), p. 59. 8. Edward Wenk, Jr., The Politics of the Ocean (Seattle: University of Washington Press, 1972), pp. 63-64. 9. Thirty-seven million dollars was provided for the construction of ten oceanographic research vessels; ten million dollars for laboratories and shore facilities; forty-one million dollars for basic and applied marine research; and additional funds for the Coast and Geodetic Survey to increase their deep sea survey capability. Furthermore, the training of marine scientists would be encouraged by increasing funding for university oceanographic programs. John F. Kennedy, "Letter to the President of the Senate on Increasing the National Effort in Oceanography," March 29, 1961. Ibid., pp. 470-473. 10. As a result of increased interest and expenditures, the Sealab project (1964) brought together the traditional oceanographic research institutes such as Scripps and Woods Hole with the aerospace industry and large-scale military involvement and funding. The outcome of this combination of research, military, and commercial interests and funding was the rapid development of United States marine technology. In 1956, American government expenditures on oceanographic research amounted to twenty-five million dollars; by 1968 the figure had increased to 448 million dollars. Buzan, pp. 56-57. 11. Marine Resources and Engineering Development Act of 1966 (P.L. 89-454) (Princeton: Princeton University Press, 1981), p. 162. Barry Buzan, Seabed Politics (New York: Praeger Publishers, Inc., 1976), p. 55. 3. Hollick, p. 162 4. Buzan, p. 60. 5. Sayre A. Swartztrauber The Three-Mile Limit of Territorial Seas (Annapolis: Naval Institute Press, 1972), pp. 229-230. 6. Lawrence Juda Ocean Space Rights (New York: Praeger Publishers, Inc., 1975), p. 72. 7. William Butler, The Soviet Union and the Law of the

PAGE 211

200 12. National Sea Grant College and Program Act of 1966 (P.L. 89-688). 13 Ibid. p. 29 14. Hollick, p. 180. 15. Ibid. p. 182. 16. Buzan, pp. 60-61. 17. Butler, p. 34. 18. Ibid., p. 37. 19. Food and Agricultural Organization, Yearbook of Fishery Statistics for 1962 (Rome: Food and Agricultural Organization, 1963). 20. Hollick, p. 165. 21. Swartztrauber pp. 232-233. 22. Juda, pp. 72-73. 23. Buzan, p. 60. 24. Wenk, pp. 13-15. 25. Ibid. p. 17. 26. Once submerged in the opaque ocean depths, a submarine is hidden from traditional surveillance systems. Therefore the American Defense Department increased its expenditures for ocean research directed toward the development of technology and methods for anti-submarine warfare (ASW) The major problems of ASW are interrelated and include detecting and identifying the submarine and accurately pinpointing it. The major method of detecting submarines is through the use of various sound systems based on either active sonarsending out sounds and recording the echo— or on passive sonar--Iistening and recording sounds with a hydrophone. Through the 1950 's the United States developed the Caesar ASW system on its Atlantic continental shelf. This system is composed of an interconnected group of hydrophones at a depth of 600 feet but powered from shore and connected to a computer on shore which interprets the data. This system is capable of detecting and locating submarines which are within several hundred mile3 of the shore. It was completed in 1964 at a cost of approximately 160 million dollars.

PAGE 212

201 27. In 1966 the Presidential Science Advisory Committee brought up the possibility of placing missiles on underwater moveable barges on the continental shelf which could be moved periodically. A similiar suggestion was the development of a mobile ocean bottom weapon system. Another possible military use of the sea-bed was building fixed missile silos in the continental shelves. The Navy also considered the possibility of building submarine bases in the continental shelves. However, the Defense Department decided that the cost of such weapons systems would be prohibitive. Juda, pp. 88-89. 28. Ibid. pp. 34-37. 29. Ibid. p. 40. 30. Swartztrauber pp. 244-245. 31. Ibid. p. 251. 32. John Mero, The Mineral Resources of the Sea (New York: Elsevier, 1965) 33. Lyndon B. Johnson, "Remarks of the President of the United States at the Commissioning of the Oceanographic Research Ship 'The Oceanographer July 13, 1966. 34. United Nations, Economic and Social Council, Resolution 1112 (XL). 35. United Nations General Assembly Resolution 2172 (XXI). A/Res. /2172 (XXI) 36. U.N. Doc A/6695. 37. Shigeru Oda The Law of the Sea in Our Time, Vol. 1. New Developments, 1966-1975 (Leyden: Sijthoff 1977) pp. 18-19. 38. United Nations General Assembly Resolution 2340 (XXII), December 18, 1967. 39. From Africa — Kenya, Liberia, Libya, Senegal, Somalia, Tanzania, United Arab Republic; from Asia — Ceylon, India, Japan, Pakistan, and Thailand; from Eastern Europe — Bulgaria, Czechoslovakia, Poland, Romania, USSR, and Yugoslavia; from Latin America — Argentina, Brazil, Chile, Ecuador, El Salvador, and Peru; and from Western Europe and others — Australia, Austria, Belgium, Canada, France, Iceland, Italy, Malta, Norway, United Kingdom, and the United States. Shigeru Oda, The Law of the Sea in Our Time, Vol. II The United Nations SeaBed Committee (Leyden: Sijthoff, 1977), p. 13.

PAGE 213

20: 40. The vice-chairmen were from Poland, Tanzania, Chile, and Norway; and the Rapporteur was appointed from Malta since Malta had initiated this project. Ibid. 41. Ibid., p. 58. 42. Resolution 2467-A (XXIII) was adopted by a vote of 112 to with 7 abstentions mainly from the Soviet bloc. It established a permanent Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction composed of 42 states. Based on the preparatory work done by the Ad Hoc SeaBed Committee, the tasks of the permanent committee were more specific. Its assignments were four-fold: to study the legal principles and economic requirements which would encourage international cooperation in the exploration and use of the deep sea-bed in order to benefit all mankind; to study the methods of exploiting and using the deep sea-bed resources in terms of future technological development and the economic implications of such exploitation; to review the past studies on exploration and research of this area and to encourage international cooperation in disseminating scientific knowledge; and to examine proposed anti-marine pollution measures. Further, the Committee was to study methods of maintaining the sea-bed and ocean floor exclusively for peaceful purposes. Finally, it was instructed to work in close cooperation with the specialized agencies and inter-governmental bodies, to make recommendations to the General Assembly, and to submit its reports to the General Assembly at each subsequent session. United Nations General Assembly Resolution 2467-A (XXIII), December 21, 1968. 43. The most controversial of these resolutions was Resolution 2467-C (XXIII) which called for the Secretary General to study the establishment of international machinery for the exploration and exploitation of seabed resources. It passed by a vote of 85 to 9, with 25 abstentions. The East European bloc voted against it while the United States, the United Kingdom and some other West European states abstained. The report was then to be submitted to the Sea-bed Committee in a session in 1969. The Sea-bed Committee was to submit its own report on this subject to the General Assembly at its 24th session. United Nations General Assembly Resolution 2467-C (XXIII), December 21, 1968. 44. Resolution 2467-B (XXIII) dealing with the prevention of marine pollution was adopted in the General Assembly

PAGE 214

203 by a vote of 119 to with no abstentions. This Resolution called for a study by the Secretary General to investigate ways of protecting the living and other resources of the sea-bed, the superjacent waters and the adjacent coasts against the deleterious effects of exploration and exploitation of this area. The report was then to be submitted to the General Assembly and the Sea-bed Committee. United Nations General Assembly Resolution 2467-B (XXIII), December 21, 1968. 45. Resolution 2467-D (XXIII) calling for an "International Decade of Ocean Exploration" was originated by the United States and supported by most of the West European countries. The resolution welcomed the idea of a decade devoted to long term research and exploration of the sea-bed and ocean floor; it invited member states to propose national and international science programs and activities to be undertaken with regard to the developing countries' interests; and it urged states to publish the results of their undertakings within the framework of the Decade as part of a long term program and to inform the Intergovernmental Oceanographic Commission (IOC) of the results. Finally it requested the IOC to intensify and coordinate its scientific activities, to inform the Secretary General of all proposals and activities, and to report to the General Assembly at its 24th session on progress made in implementing this resolution. United Nations General Assembly Resolution 2467-D (XXIII), December 21, 1968. 46. From Africa — Senegal and Somalia left the Committee while Cameroon, Madagascar, Mauritania, Nigeria, Sierra Leone, and Sudan joined; from Asia — Kuwait and Malaya were included; from Latin America — Ecuador left but El Salvador and Trinidad and Tobago added. Oda, Vol. II, p. 51. 47. Ibid, pp. 51-52. 48. States generally accepted the concept of the common heritage of mankind in the international sea-bed area but not the prohibition of property rights there. States also agreed that international law does apply to the area but the extent to which it applies and whether it applies to economic activities in the area was disputed. States concurred on the general principle that the sea-bed and ocean floor should be used exclusively for peaceful purposes but failed to agree on the geographic limits or the type of activities to be prohibited. 49. U.N. Doc. A/AC. 138/18 and Add. 1.

PAGE 215

204 50. This Sub-Committee collected and analyzed data concerning the progress achieved in exploration and exploitation of the sea-bed resources. Progress in exploiting offshore oil deposits was particularly rapid. At that time commercial offshore exploratory drilling was taking place in depths of 300 to 400 meters and it was predicted that by 1980 30-35% of the world petroleum production would be from offshore wells to a depth of 600 meters. Also, member states expressed interest in the economic recovery and production of manganese nodules especially for copper and nickel. Some predicted that production of these nodules could begin in the early 1970's. 51. To begin exploitation it would be necessary to encourage capital investment, to possess the necessary scientific, technological, and economic expertise, and to evaluate ways of granting licenses on a national level. The benefits of sea-bed resources were two-fold: there would be an increase in world resources and increased revenues from resource exploitation. 52. U.N. Doc. A/AC. 138/17. 53. A/AC. 138/10. 54. A study by the Secretary General (which was requested by the resolution on international machinery for the sea-bed) suggested that the powers and functions of the international machinery should include registration, granting letters of authorization, operating the international organization, and resolving conflicts. The Legal Sub-Committee of the Sea-bed Committee was to study the various legal principles involved in establishing an international organization of this kind. The Legal Sub-Committee did not have time to do this and so referred the issue to the Economic and Technical Sub-Committee. Few states at this time advocated that the international agency actually exploit the resources 55. Oda, Vol. II, pp. 7 8-79. 56. A/C.I/L.473. 57. A/C.I/L.475. 58. Barbados, Brazil, Guyana, India, Jamaica, Kuwait, Libya, Mauritania, Sierra Leone, Tanzania, Trinidad and Tobago, Bolivia, Togo, Madagascar, Morocco, Sudan, Swaziland. 59. A/C.I/L.475/Rev. 3.

PAGE 216

205 60. The Maltese draft resolution to convene a conference on law of the sea, as amended by the 17-state amendment, was adopted by a vote of 5 8 to 13, with 4 abstentions. On December 15 in the Plenary Session, this resolution was adopted by a vote of 65 to 12, with 30 abstentions. 61. U.N. General Assembly Resolution 2574-A XXIV, December 15, 1969. 62. Resolution 2574-B (XXIV) called for the continuation of the Sea-Bed Committee in order to prepare legal principles and a draft declaration to the 25th session and to recommend economic and technical conditions and rules for the exploitation of the sea-bed. This relatively uncontroversial Resolution passed easily with a vote of 109 to and 1 abstention. U.N. General Assembly Resolution 2574-B XXIV, December 15, 1969. 63. Resolution 2574-C (XXIV) — a continuation of Resolution 2467 (XXIII) — requested that more studies be done regarding the establishment of international machinery for the sea-bed regime. It was adopted by a vote of 106 to 0, with 11 abstentions these mainly from the Soviet bloc which maintained its position against any all-encompassing international machinery as part of the international sea-bed regime. U.N. General Assembly Resolution 2574-C XXIV, December 15, 1969. 64. Yet, Resolution 2574-D (XXIV) was adopted 62 to 28, with 28 abstentions. U.N. General Assembly Resolution 2574-C XXIV, December 15, 1969. 65. U.S. State Department Bulletin, 1970, "US Explains its Votes on Sea-bed Resolutions." 66. Meanwhile, the United Nations Secretariat submitted various information reports to the Committee, including governmental measures regarding continental shelf mineral resources, possible ways of sharing benefits from the exploitation of the international sea-bed, and proposed possible international machinery. Yet, progress was slow. 67. Buzan, pp. 102-103. 68. Argentina, Brazil, Chile, Ecuador, El Salvador, Nicaragua, Panama, Peru, and Uruguay. 69. Shigeru Oda The International Law of the Ocean Development (Leyden: Sijthoff, 1972), pp. 347-355.

PAGE 217

206 70. Within the 200-meter depth line the coastal state would possess complete control over the sea-bed resources; between the 20 0-meter depth line and the continental margin there would be an international trusteeship zone (within which the coastal state would retain jurisdiction but would share its revenues with an international sea-bed agency) ; beyond the continental margin the international sea-bed authority would possess exclusive control. This statement was first submitted to the Committee on May 25 and an elaborated version was introduced as a draft convention by the United States delegation on August 3. 71. A/AC. 138/22. 72. Buzan, pp. 106-107. 73. The nature and function of such international machinery could include for the purposes of 1) exploration and exploitation of the resources—direct exploration, collection of revenues, licensing, and establishing training programs; 2) peaceful uses of the sea-bed — responsibility for laying, maintaining and protecting submarine cables and pipelines and coordination of scientific programs; 3) setting standards for peaceful purposes — preventing pollution, protecting living resources, and the safety of life and property, reconciling the conflicting uses of the sea-bed and superjacent water and dealing with problems of liability. No agreement emerged on the type of international machinery desired or its functions. A/AC. 138/23. 74. Draft United Nations Convention on the International Sea-bed Area (A/AC. 138/25) 75. The British proposal, Working Paper on International Regime (A/AC. 138/26) was similar to the American one. It proposed the establishment of an international regime governing the exploration and exploitation of the sea-bed by an international agreement which would define the affected area and preserve the high seas freedom of the superjacent waters. The Governing body would be composed of a plenary conference and a Board of Governors reflecting a balance between developed and developing and land-locked and maritime states. This international body would be responsible for issuing licenses to .individual states for blocks of the sea-bed area. The states would in turn license their own operators. Licensing fees would provide the administrative costs for the international body and royalties would be distributed to the states with the special needs and interests of the developing states taken into account.

PAGE 218

207 76. The French Proposals concerning the establishment of a regime for the exploration and exploitation of the seabed (A/AC. 138/27) was more critical than the American or British ones of exploitation of the sea-bed resources by an international body. It stressed the need for economic efficiency and international equity in any organization governing the sea-bed. The proposed organization would be composed of a Permanent Board and a Conference of Plenipotentiaries. Two types of organizations were suggested: for mining of resources such as manganese nodules by mobile equipment, licenses would be granted without giving exclusive rights; for exploitation of resources such as oil and gas by means of permanent installations, states would be granted exclusive areas in which they would grant licenses to their operators. The state would be responsible for levying a tax on the companies exploiting the resources and would contribute part of the tax to an international program of assistance to the developing countries. 77. The American proposal further stated that the coastal state would act as a trustee for the international community and be responsible for issuing licenses and collecting payments due to the Authority, and regulating the exploitation of the living resources. The governing body, the International Sea-bed Authority, would be composed of the Assembly (including all contracting states) the Council (comprised of 24 states including six industrialized and twelve developing states) and the Tribunal (composed of five, or seven, or nine independent judges representing the major legal systems of the world). The Tribunal's task would be to settle disputes arising from the interpretation and application of the Convention. Additionally, provisions protecting interim investments were included. A/ AC. 138/25. 78. Buzan, pp. 109-110. 79. Oda, Vol. II, pp. 133-135. 80. It was composed of the following fifteen provisions: 1) the deep ocean floor beyond national jurisdiction and its resources are the common heritage of mankind; 2) the area shall not be subject to appropriation and no state shall claim sovereignty over any part of it; 3) no one shall claim rights to the area or to the resources which are incompatible with the regime to be established or with the Declaration of Principles; 4) all exploration and exploitation of the resources of the area shall be governed by the regime to be established; 5) the area shall be used only for peaceful

PAGE 219

208 purposes by all states regardless of geographic circumstances; 6) states shall act according to international law, the United Nations Charter, and the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States; 7) the exploration and exploitation of this area shall be conducted for the benefit of all mankind regardless of the geographic location of states and taking into account the special needs of the developing countries; 8) the area shall be reserved exclusively for peaceful purposes without affecting agreements in disarmament negotiations and international agreement shall be concluded to exclude the sea-bed from the arms race; 9) an international regime with the appropriate international machinery shall be established by an international treaty providing for orderly and safe development and rational management of the area and its resources, and ensuring that the benefits are equitably shared with particular consideration for the interests of the developing countries; 10) states shall encourage international cooperation in scientific research for peaceful purposes by participating in international programs of scientific research, by publishing research programs and their results, and by cooperating in programs to strengthen the research capabilities of developing countries; 11) states shall take suitable measures for the adoption and implementation of international rules, standards, and procedures to prevent pollution and interference with the ecological balance and to protect and conserve the national resources and the flora and fauna of the marine environment; 12) states shall not infringe on the legitimate rights and interests of the coastal states and all other states; 13) the legal status of the superjacent water and the airspace above it and the rights of the coastal state to protect its coastline are not affected; 14) each state and international organization shall be responsible for ensuring that activities under its jurisdiction conform to the international regime; 15) disputes over activities in the international sea-bed shall be settled in accordance with Article 33 of the United Nations Charter and other procedures to be agreed upon. 81. U.N. General Assembly Resolution 2750-A (XXV). 82. U.N. General Assembly Resolution 2750-B (XXV). 83. U.N. General Assembly Resolution 2750-C (XXV) :4. Buzan, pp. 112-113 15. In the Summer session of 1971, the Main Committee was only able to agree on the following procedural points:

PAGE 220

209 Sub-Committee I was to receive priority in the allocation of time; the recommendations of Sub-Committee II would constitute the basis for the Main Committee's formulation for the limits of the international sea-bed area; and although each Sub-Committee could discuss the issue of peaceful uses of the sea-bed, the Main Committee would maintain primary responsibility. 86. It did not delimit the boundary of the area nor deal with the method of licensing for industrial exploration and exploitation or with the distribution of benefits. The most detailed part of the proposal was the establishment of the International Sea-bed Resources Agency composed of the Conference of States (the members of the Agency) and the Executive Board. The Executive Board would consist of representatives from 30 states drawn from countries representing the different regional groups. The Executive Board would decide substantive issues by consensus. The proposal did not specify how the Board would supervise sea-bed exploitation activities. The Executive Board would also aid in the settlement of disputes, based on Article 33 of the United Nations Charter on the Pacific Settlement of Disputes, by establishing boards for conciliation and arbitration. Provisional draft articles of a treaty on the use of the sea-bed for peaceful purposes (A/AC. 138/43) 87. It suggested that the international machinery at the outset should start small and be enlarged as commercial activity in the sea-bed increased. Initially the international machinery would be a registering and co-ordinating body and eventually would enlarge its powers to become a supervising and licensing agency but still a weak one. It also envisioned states as having primary control over sea-bed exploitation activities. This proposal stressed that voting procedures should ensure that no one group of states could dominate another group and therefore suggested an elaborate decision-making system based on consensus. The proposed organization would consist of an assembly, council, secretariat, and subsidiary bodies. It proposed delimiting the area at a 200-meter depth, or a combined 200-meter depth and an unspecified fixed distance. A/AC. 138/44. 88. Japan's proposal (A/AC. 138/63) submitted on November 23, 1971, called for a weak licensing agency to supervise sea-bed exploitation activities. The organizational structure was composed of an assembly, council, secretariat, and tribunal with major power vested in the council in which the developed states would be dominant. It varied from other developed state proposals in suggesting, as did the Canadian one, that

PAGE 221

210 land-based mineral producers interests be taken into consideration. 89. Canada's detailed proposal (A/AC. 138/59) submitted on August 24, 1971, called for a weak licensing regime with a strong supervising agency and a possible operational agency in the future. It also suggested that provisions be made for protection of land-based producers. The organizational structure would consist of an assembly and council with relatively balanced powers as well as a tribunal and other bodies. The proposal also stressed the rights and responsibilities of coastal states in terms of contributions from sea-bed exploitation in areas of national jurisdiction and pollution control in zones adjacent to this area. Finally, it offered a detailed outline for a transitional regime in order to prevent unilateral action by mining companies or states and to prepare for a permanent sea-bed authority. 90. The Tanzanian proposal (A/AC. 138/33) of July 20, 1971, suggested that in addition to issuing licenses and exploiting the sea-bed, the international agency would distribute revenues from sea-bed mining for the common heritage of mankind. It would also control pricing and marketing of the sea-bed minerals from the international area to protect the land-based mineral producers. The structure was organized along assembly-council-secretariat lines with the assembly as the dominant organ. Although this proposal advocated a strong international authority, it still allowed exploitation rights on a state's own initiative. 91. The proposal (A/AC. 138/49) was sponsored by Chile, Colombia, Ecuador, El Salvador, Guatamala, Guyana, Jamaica, Mexico, Panama, Peru, Trinidad and Tobago, Uruguay, and Venezuela on August 10, 1971. Based on the common heritage principle, it advocated exploitation of the international sea-bed area only by the international authority. A state's role in exploitation would be limited to acting as a service contractor for the authority or at the most as a partner. The international body would be structured on the assemblycouncil-secretariat model in which the assembly would be the most powerful. This proposal was diametrically opposed to those put forth by the developed states and indicated the range of compromise necessary in negotiations on the regime for the sea-bed. 92. The proposal (A/AC. 138/55 ) sponsored by seven landlocked and shelf-locked states — Afghanistan, Austria, Belgium, Hungary, Nepal, the Netherlands, and Singapore — was submitted on August 20, 1971. It dealt only with specific issues. This proposal suggested that the

PAGE 222

ill boundary for the international area be based on the coastal state's choice of either a 200-meter depth or a 40-mile distance with an additional 40-mile priority limit for the state. The territorial sea would be limited to 12 miles. This delimitation would grant substantial resources — especially oil--to the international body and thus increase the economic potential of the common heritage. The international body — both a licensing and operating agency — would be responsible for protecting developing countries from economic problems resulting from sea-bed mining and ensure landlocked states access to the international area. Additionally, in those organs of the authority where not all states are represented, there would be a balance between coastal and non-coastal states. This was the most issue-specific proposal submitted and cut across developed-developing state lines and political divisions. 93. According to Malta's plan, (A/AC. 138/53) the coastal state would possess exclusive rights to exploit sea-bed resources up to a distance of 200 miles or a depth of 20 meters but would be required to share this revenue with the international ocean body. In the international area the ocean agency would issue licenses for exploration as well as exploit the resources directly. This international body would consist of an assembly, council, court, secretariat, and other functional groups with most power vested in the council. Although protection of land-based mineral producers was mentioned, it was not detailed. 94. Chaired by Paul Engo of Cameroon, the Sub-Committee on the sea-bed regime began its work in 1972 with a debate on the "status, scope, and basic provisions of the regime based on the Declaration of Principles, Resolution 2749 (XXV)." A 33-nation working group chosen by the respective regional groups was appointed to attempt to write the section on principles. The Sub-Committee began work on the second part of its task — to determine the "status, scope, functions, and powers of the international machinery" in terms of the organs of the machinery, the rules and practices for exploration and exploitation, methods for sharing the revenues, the economic effect of sea-bed mining, and the special needs of land-locked states. Although this Sub-Committee started with an advantage over the other Sub-Committees (it had met for three years before the others) it was unable to agree on a set of draft articles. Throughout 1971 the Sub-Committee's discussion centered on the 11 sea-bed regime proposals. In 1972 it debated specific issues based on the proposals and attempted to write a compromise set

PAGE 223

212 of draft articles. It failed to reach agreement on even one draft article and most of the issues had several alternative texts. The result of its efforts at the end of 1973 was a list of alternative texts entitled "texts illustrating areas of agreement and disagreement" composed of 115 pages covering almost 100 items. Little progress was made in completing the declaration of principles. 95. The final two preparatory sessions of the Sea-bed Committee were held from March 7 to April 5, and July 3 to August 17, 1973. 96. A/AC.138/SC.I/L. 19 97. The Soviet Union hoped that a separate treaty on the use of the sea-bed for peaceful purposes could be concluded. Therefore, in the 1973 Summer session it submitted the Draft preamble to a treaty on the use of the sea-bed for peaceful purposes (A/AC. 138/SC I/L. 28) This preamble referred to the Treaty on the Prohibition of the Emplacement of Nuclear Weapons on the Sea-bed and to Resolution 2749 (XXV) which called for the establishment of an international regime for the seabed. It stressed that concluding a treaty for the peaceful use of the sea-bed would strengthen the international principles of freedom of the high seas and of scientific research. Many states objected to this draft preamble on the grounds that it was outside the scheduled work of the Committee and that it assumed that a comprehensive law of the sea convention would not be adopted. 98. In the Summer session of 1971 United States proposed Draft articles on the breadth of the territorial sea, straits, and fisheries (A/AC. 138/SC. II/L. 4) Article one mentioned the existence of the twelve-mile territorial sea; article two stated that straits used for international navigation should retain their international character and the coastal states should allow all vessels and aircraft freedom of transit as if on the high seas; article three — the most comprehensive — detailed the preferential fishing rights of the coastal state beyond the twelve-mile territorial sea. Since this limit was no longer controversial, the major concern of the United States and Soviet Union, as well as of the other maritime states, was to ensure military and commercial passage through straits. The United St.ates in this draft treaty offered preferential fishing rights of coastal states in exchange for freedom of transit for warships and military airplanes through straits which would come under coastal state control. The developing states did not consider the twelve-mile territorial limit or the fishing zone beyond twelve

PAGE 224

213 miles to be a right which the United States could determine, but an acquired right which developing states already possessed. Article three provided for the regulation of international fisheries by international and regional organizations. If states were unable to establish such an organization, the coastal state could take unilateral action for conservation and allocation of the fisheries in any international area adjacent to its territorial sea. A preferential percentage of the fish harvest would be allocated to the coastal state in the area. Other states with traditional fishing rights would be granted a percentage of the harvest based on previous catches. The coastal state's enforcement of the fisheries regulations would be limited to inspecting and arresting the vessel but not trying the case or imposing fines, which would be the responsibility of the vessel's state of origin. 99. Submitted in the 1972 Summer session, the Soviet proposal Draft articles on straits used for international navigation (A/AC. 138/SC. II/L. 7) also attempted to establish freedom of transit in straits used for international navigation affected by a twelve-mile territorial sea. Major provisions included: in straits joining one part of the high seas to another part of the high seas and traditionally used for international navigation all ships would have the same right of freedom of navigation as on the high seas; no state would have the right to interrupt or stop the navigation of any ship in the strait; in narrow straits the coastal state would be allowed to establish transit corridors; ships — especially warships — navigating through such straits would be responsible for respecting the coastal state s security and not use weapons or take any action unrelated to transit while in the strait; transitting ships would follow international rules of navigation to avoid collisions and avoid polluting the waters or coasts of the coastal state; (where damage was caused, the flag-state of the ship would be liable) ; aircraft would also have freedom of overflight over the straits in air corridors and at special altitudes determined by the coastal states. In the 1973 session the Soviet Union submitted an addendum — Draft article on the breadth of the territorial sea (A/AC. 138/SC. II/L. 7/Add. 1) — providing that each state would have the right to claim a maximum breadth of twelve miles for its territorial sea. 100. The Soviet proposal on fisheries was submitted in the 1972 Summer session, Draft article on fishing (A/AC. 138/SC. II/L. 6) According to the Soviet plan, the developing coastal state would be permitted to reserve the part of the allowable (according to international

PAGE 225

214 regional organizations) fish catch which its vessels are capable of taking within an area adjacent to its twelve-mile territorial sea or fishery zone. /V As the developing state's fishing fleet grew, it would be allowed to increase its percentage of the catch to accommodate its new capability/' 1 The state would be required to notify the international fisheries organization for that area as well as the states of any foreign fishing vessels active in the area of the size of its reserved catch. Additionally, any coastal state would be allowed to reserve whatever percentage of its anadromous fish (those spawning in its rivers then swimming out to sea) that its vessels would be capable of taking. The rest of the allowable fish catch could be taken by foreign fishermen. Previous" -international fisheries organizations would remain in effect while new regional fishing regulations would be established based on scientific research and agreement of the states fishing the area. The coastal state would have authority to stop and inspect a vessel suspected of violating the regulations. 101. Another American fisheries proposal, Special considerations regarding the management of anadromous fishes and highly migratory oceanic fishes (A/AC. 138/SC. II/L. 20) was submitted in the 1973 Spring session. Concerned with protecting its fish stock, the United States emphasized that anadromous fish included not only Pacific and Atlantic salmon but also trout, shad, striped bass, smelt and sturgeon. Furthermore, on economic and biological grounds, the United States also opposed free high seas salmon fishing. The American Draft fisheries article (A/AC. 138/SC. II/L. 9) submitted in the Summer 1972 session was a revision of its earlier statement on fisheries (A/AC. 138/SC. II/L. 4) The coastal state would possess regulatory and preferential rights over all coastal and anadromous living species to the limit of their migratory pattern. The coastal state would also be allowed to reserve a percentage of these living resources for its catch. Regulation of highly migratory species would fall to the appropriate international fishery organization. 'The remainder of the fish catch would be allocated on a priority basis to Estates with historic fishing rights, followed by states in the area with limited access to the fisheries; followed by -'all others. States would be required to pay fees for fishing the area. For enforcement of the regulations the coastal state would have the right to inspect and arrest a violating vessel. The flag-state of the vessel would be responsible for trying and punishing the offenders. In the case of a dispute between states, a commission would arbitrate a settlement.

PAGE 226

215 102. General Assembly Official Records 27th Session, Supplement 21, A/8721, pp. 70-73. 103. Ibid. pp. 73-76. 104. In Sub-Committee II Kenya submitted Draft articles on exclusive economic zone concept (A/AC. 138/SC II/L. 10) 105. In the 1973 Summer session of Sub-Committee II the United States also submitted a new proposal, Draft articles for a chapter on the rights and duties of states in the coastal sea-bed economic area (A/AC. 138/ SC. II/L. 35). ~ In this version, the United States designated the "coastal sea-bed economic area" to be seaward of X and landward of Y. Although both X and Y were undesignated, X was understood to mean a territorial sea limit of twelve miles and Y the outer limit of the continental slope. This area could be freely explored and exploited by the coastal state which would give a portion of the revenues from this area to the international community as part of the common heritage. As the United States wanted to ensure that the coastal state would maintain rights to this area — that it would not fall under international control — it was willing to offer some compensation to the international body. 106. In the spring of 1973 the Soviet Union submitted its Rough draft of basic provisions on the question of the outer limit of the continental shelf (A/AC. 138/SC. 11/ L.26) in an attempt to provide a combination depth and distance formula to delimit the shelf. It suggested a 500-meter isobath for depth and a 100-mile outer limit for distance to delimit the continental shelf. 107. The final text was composed of 25 main items and 85 sub-items. The major compromises included the following additions to the text: 1) a section on "other related matters including the question of the right of transit;" 2) a provision for adding types of coastal jurisdiction other than the exclusive economic zone; 3) and an introductory disclaimer stating that the list was "not necessarily complete" nor did it "prejudice the position of any State or commit any State with respect to the items on it." 108. The United States presented Competence to establish standards for the control of vessel source pollution (A/AC. 138/SC. III/L. 36) in the Spring 1973 session to counteract the growing tendency of states to extend coastal state jurisdiction for pollution prevention. This general and sometimes vagi;e proposal made the following points: 1) regulations controlling vessel source pollution must protect the interest of all states; 2) if the coastal state set pollution

PAGE 227

216 standards, other states' interests might not be served; 3) coastal state pollution standards might not be effective in preventing pollution or in serving other states' interests; 4) therefore, the problem of marine pollution should be dealt with by an international organization. To expand its earlier statement on marine pollution, the United States submitted a more comprehensive draft, Protection of the marine environment and the prevention of marine pollution (A/AC. 138/SC. III/L. 40) in the Summer 1973 session. It proposed that the International Authority should have major responsibility over sea-bed pollution, while IMCO should have authority over vessel-source pollution. States should adopt laws regulating marine source pollution in accordance with international laws. Coastal states would enforce pollution standards for their vessels and for foreign vessels in their ports or territorial waters. The port-state would have the right to deny a vessel entry into its ports for non-compliance of any environmental regulation. If a flag-state consistantly failed to take action against its vessels, then the coastal state would be allowed to take emergency enforcement measures. Each state would be responsible for ensuring that activities under its jurisdiction did not damage other states or the marine environment. Disagreements would be settled by a compulsory dispute settlement procedure The United States proposal on scientific research, Draft articles for a chapter on marine scientific research (A/AC. 138/SC. III/L. 44) was equally comprehensive. It stated that all states have the right to participate in marine scientific research for the benefit of all mankind and exclusively for peaceful purposes. Scientific research would not constitute a legal basis for claims to the sea or its resources. It should not interfere with other legitimate uses of the sea nor should the other uses interfere with it. The scientific research should be undertaken in a way that does not damage the marine environment. Coastal states should cooperate with those states conducting research in their territorial seas. Beyond territorial sea limits, international organizations and coastal states would ensure the following: that coastal state rights are respected; that the coastal state has prior notification of research to be conducted; that the coastal state has an opportunity to participate in the research; that the significant research results are published; and that all international environmental standards are met. Disputes would be settled by compulsory arbitration procedures.

PAGE 228

217 109. The Soviet proposal, Draft articles for a convention on general principles for the preservation of the marine environment (A/AC. 138/SC. III/L. 32) presented in the 1973 Spring session, was meant to apply to all ocean space except the territorial seas. States were to adopt any measures necessary to prevent pollution of the marine environment which might be harmful to human health or to marine life or might interfere with legitimate uses of ocean space. Each state would be responsible for any damage to the ocean resulting from activities by officials of the state or by its physical or juridical persons. Any regulations concerning the high seas would maintain the principles of freedom of navigation and fishing and the freedom to conduct scientific research and other accepted activities.

PAGE 229

CHAPTER SIX UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA III: 1973-1982 The UNCLOS III convened in the Winter of 1973 to begin its immense task of reaching consensus on a treaty governing all aspects of ocean use. It was not only attempting to codify laws which had become commonly accepted through practice, but also to create new laws regulating new and future uses of the oceans. Because all these issues--from sea-bed mining to a variety of offshore jurisdictional issues to the marine environment — were tied together in a package, disagreement on any one of these issues (even those which did not seem as important) meant that agreement on the package had not been reached and necessitated further negotiations. Adding to this difficult and complex problem of reaching agreement was the basic division between the developed and developing states especially on the implementation of the common heritage principle. Since the sharing of the sea-bed resources was tied in with offshore jurisdictional issues, both developed and developing states had to make concessions in some areas to gain what they wanted in others. Complicating the problem was the large number of states participating (eventually over 150) with diverse and changing interests. Even the blocs of states with special 218

PAGE 230

219 interests were not stable — they co-operated for a while, then splintered, and re-formed. Furthermore, the decision to conduct the work of the Conference by consensus rather than by vote made the Conference's task even more arduous. Every state had to agree (or at least not disagree) with the formulation of every regulation and principle to be included in the final Treaty. During the next nine years of the Conference, the member states attempted to write a virtual constitution for the seas based on international consensus. These negotiations can be divided roughly into two phases. From 1973 through 1976 the Conference attempted to negotiate agreement on the entire range of ocean issues; from 1977 to 1982 it was primarily concerned with the unresolved problem of sea-bed mining. During the first phase of negotiations, issues — such as the regime and machinery for sea-bed mining, the territorial sea, straits transit, the economic zone, the continental shelf, fishery regulations, scientific research and the marine environment — which had originally surfaced in the Sea-bed Committee continued to be important. The alignment of states and groups on these issues also followed the pattern set in the preparatory committee. As negotiations continued there were variations of these issues and alignments ********* The first session of the UNCLOS III was held December 3 to 15, 1973, in New York. These meetings dealt with basic

PAGE 231

220 organizational matters. The agenda for the Conference followed the one established by the Sea-Bed Committee. The three substantive Committees maintained their previous assignments: the most controversial one dealt with sea-bed mining beyond national jurisdiction; the second one with issues relating to national jurisdiction over offshore areas such as the territorial sea, straits passage, the continental shelf, fishing and the economic zone; and the last one 2 with marine pollution and scientific research. Initially, the Conference had difficulty establishing the rules of procedure. The major area of disagreement was whether specific issues should be decided by a system of consensus or by voting. The basis for this disagreement was in the implementation of the statement (the so-called 'gentleman's agreement') made by the General Assembly on November 16, 1973. It expressed the view that the Conference should make every effort to reach agreement on substantive matters by way of consensus; that there should be no voting on such matters until all efforts at consensus have been exhausted; and that the Conference at its inaugural session will consider devising appropriate means to that end. Opinions on adoption of articles ranged from a simple major444 xty to consensus. Between the first and second sessions held from March 25 to April 5, 1974, several groups of states met outside the Conference to discuss and formulate their positions on various law of the sea issues. On March 20-22, the landlocked and geographically disadvantaged states met in

PAGE 232

221 Kampala (Uganda) to coordinate their policies for the upcoming Group of 7 7 meeting on law of the sea. Their dis5 cussions resulted in the Kampala Declaration which set forth principles enunciating their rights to the seas despite their geographical circumstances. The land-locked/geographically disadvantaged states presented their Declaration at the Group of 77 meeting in Nairobi which met from March 25 to April 5. The coastal states in the Group of 77 did not accept the Kampala Declaration. They particularly objected to the concept of geographic disadvantage since acceptance of this idea would diminish coastal state jurisdiction and revenues. As offshore jurisdiction issues became increasingly important, states in the Group of 77 began to act in terms of specific issues rather than broad ideological goals. This division between the coastal and land-locked/geographically disadvantaged states split the Group of 7 7 and the African regional group. The Group of 7 7 could only reach agreement on deep sea-bed mining issues and not on all of those. ********* The second session was held in Caracas from June 20 to August 29, 1974. The rules of procedure implementing the the General Assembly's dictum (the 'gentleman's agreement' calling for consensus) were adopted on June 27. Because the membership had increased from 91 to 137 states, the new members were given the opportunity to express their views on law of the sea issues during the general debate. Other

PAGE 233

222 states also took this opportunity to reiterate their positions and a total of 115 states and nine non-governmental 7 organizations made statements during this session. Most of the states which had participated in the SeaBed Committee deliberations, re-stated their positions. The most important changes were made by the Soviet Union, the United Kingdom, and the United States in their offshore jurisdiction policies. Before 1974 these three maritime states were the major opponents of offshore jurisdictional extensions. But as international opinion increasingly favored extended offshore jurisdiction, these states (in order to gain other concessions in the Conference — especially straits transit rights — as well as to placate internal interest groups pressing for a more coastal orientation) announced policies accepting a 200-mile economic zone and coastal state jurisdiction over continental shelf resources beyond 200 miles. During the June 2 8 plenary meeting, the Soviet representative stated that the main aim of the Conference was to draw up agreed principles and norms for the rational exploitation of marine resources, which would promote peaceful co-operation among nations, taking account of the interests of coastal and land-locked countries, large and small countries, developed countries and those countries which were just beginning to establish their own independent national economy. He identified the most important issues to be the breadth of the territorial sea, freedom of transit for all vessels through straits used for international navigation and

PAGE 234

223 freedom of the high seas. He further stated that although coastal states have special interests in the living resources adjacent to their coasts, all states should be able to use the food resources of the oceans and should have a duty to protect them. If the problems of the breadth of the territorial sea, right of transit through and overflight over international straits, international shipping, scientific research and other important issues are resolved in a convention, then a provision recognizing a 20 0-mile economic zone for resource exploitation should be accepted. Where the coastal state did not take 100 percent of its allowable catch, it would have to grant fishing rights to other states on a non-discriminatory basis. This was a significant departure from the previous Soviet position and was presented as a trade-off for the other issues involved. In conclusion, he stated that in order for the Conference's provisions to become international law, they must be acceptable to all groups of states which can only be achieved "if a balance was maintained between national interests and the requirements of international cooperation, the consolidation o of peace and the security of peoples." The United States delegation also maintained its previous position on most issues. The major change concerned the acceptance of a twelve-mile territorial sea and a 200-mile economic zone. This acceptance was contingent upon adoption of a satisfactory economic zone regime and provisions for unimpeded transit through and over straits used for

PAGE 235

224 international navigation. The United States delegation stated in conclusion that one of the most important parts of establishing a new international legal structure was the provision of machinery for the settlement of third party 9 disputes that was both peaceful and compulsory. ********* In addition to the plenary sessions, the three main committees began to hold separate substantive discussions during this session (held in Caracas from June to August 1974) The Committee dealing with the sea-bed regime concentrated on three related problems: 1) the rights and methods of exploitation; 2) the conditions and regulations of exploitation; and 3) the economic implications of sea-bed mining on land-based mineral production. As in the preparatory meetings, the major division (which continued throughout the negotiations) was between the developed and developing states. On the first issue of who was allowed to exploit the sea-bed, the developed states proposed that the sea-bed authority be a licensing agency. It would non-discriminately issue licenses for a specific area and period of time to qualified applicants who agreed to certain regulations and paid the requisite application fee. The developing states proposed that the sea-bed authority directly conduct exploration and exploitation of the sea-bed resources and control other related activities such as scientific research. Since the authority did not possess the necessary

PAGE 236

225 technology,, it would hire persons or companies on a basis of service contracts or other means but would maintain control over all the activities. The second issue concerning conditions of exploitation was closely related to the first, and opinion was similarly divided along developed-developing state lines. To ensure a stable regime, developed states wanted a specific and detailed set of regulations concerning their rights and duties as well as those of the sea-bed authority. The developing states, on the other hand, wanted to give the authority maximum flexibility in establishing regulations. It, therefore, chose to include only general guidelines in the treaty. The third area of disagreement was on what the economic effects of sea-bed mineral exploitation would be on landbased producers of copper, cobalt, nickel and manganese. Chile, Peru, and Zaire — states heavily dependent on mineral exports — feared that sea-bed mineral production would lower 10 the price of their land-based minerals/ Although UNCTAD studies supported this concern, the United States insisted that any possible deleterious effects would be offset by the general benefits of increased supplies of minerals. Thus, it opposed any direct or indirect production or price controls on sea-bed mineral exploitation. During these negotiations, the Committee on the sea-bed regime made little progress toward reaching a consensus. Both the developed and developing states kept to their

PAGE 237

226 previous positions, refusing to compromise on any major issue ********* The Committee dealing with offshore jurisdictional issues was considered to be the most important one during 12 • these early stages of the Conference. The major items discussed included the breadth of the territorial sea, transit passage through straits, the economic zone, fishing rights, the high seas regime, the continental shelf beyond 200 miles, and regimes for archipelagos and islands. In these debates, most states maintained their positions developed in the preparatory meetings. The majority of states supported the twelve-mile territorial sea limit but insisted on additional conditions. Developing coastal states wanted the twelve-mile territorial sea to be linked with 200-mile coastal state jurisdiction over resources. Maritime states agreed to a twelve-mile territorial sea only if unimpeded transit through international straits was part of the package. Even though the maritime states agreed to some strait state control such as the creation of transit corridors and traffic control schemes, the strait states continued to demand greater control of navigation through the straits. Although some Group of 77 states supported the strait states' position for ideological reasons, most states favored a more moderate proposal submitted by Fiji which allowed the coastal state

PAGE 238

227 to regulate transit but only in conformity with the internationally accepted IMCO regulations. The underlying issue in the debate over the economic zone was whether the area beyond the territorial sea, but within the economic zone, was part of the high seas and retained non-resource freedoms. Support for an economic zone was divided along specific rather than ideological interests. The maritime states — primarily, the United States, the United Kingdom and the Soviet Union--accepted a 200-mile economic zone if non-resource related activities were not affected. In this way, these states could obtain control of their own resources while safeguarding their maritime interests. They insisted that the coastal state's resource rights in the area should be specified in the treaty and that any rights not specifically belonging to the coastal state remain in the international community. In direct opposition to the maritime states, the territorialists — Brazil, Panama, Peru, and Ecuador — wanted to gain full sovereign rights over the economic zone, changing the economic zone into a territorial sea. Other coastal states — the patrimonialists of Latin America and Africa — sought exclusive coastal state jurisdiction in the 200-mile economic zone in which the international community would have specific but restricted rights. The land-locked/geographically disadvantaged states were against an economic zone unless they were allowed to share in the resources and the revenues of the area.

PAGE 239

228 The debate over the economic zone included who was to control both the living resources in the economic zone and the mineral resources of the continental shelf. The developing coastal states wanted to possess exclusive jurisdiction over all the resources and the right to allow foreign fishing only at their discretion. Although distant-water fishing states agreed to grant preferential fishing rights to coastal states, they wanted foreign fishing to be allowed whenever the coastal state did not have the ability to harvest the total allowable fish catch. The land-locked/geographically disadvantaged states wanted the right to fish in their neighboring coastal states' economic zones on an "equal and non-discriminatory basis." The developing coastal states objected to the idea of granting preferential fishing rights because they felt that doing so would detract from their sovereignty over the natural resources of the zone. Another dispute regarding fishing rights centered on whether highly migratory species and anadromous species should be treated as special cases. Specific geographic interests as before determined states' positions on the continental shelf issues. States which had continental margins beyond 200 miles advocated coastal state jurisdiction to its limit. The United States, New Zealand, and Canada and others with extended continental shelves agreed to consider some revenue sharing from shelf resources beyond the 200-mile limit; Argentina, Australia, and the United Kingdom among others refused to share

PAGE 240

229 shelf-resource benefits. Some states — Japan, land-locked/ geographically disadvantaged states, and several African coastal states — were against any extension of jurisdiction beyond 200 miles. Archipelagic states wanted straight baselines from the outermost islands to delimit the waters within the baselines as archipelagic waters with any other jurisdiction starting from the baselines. Fiji, Mauritius, Indonesia, Malaysia, the Philippines, and the Bahamas claimed to be archipelagic states and, therefore, sought to establish this regime. Maritime states feared that these claims would greatly restrict navigation and sought guarantees for freedom of passage in the archipelagic waters. Another related issue was whether islands should receive the same jurisdictional zones as other land masses. At the close of this session, the Chairman of the Committee summed up the progress made: he considered the twelve-mile territorial sea with a 200-mile economic zone as the "keystone of the compromise solution favored by the majority of states participating in the Conference." Future acceptance of this compromise was dependent en solving a number of issues such as passage through straits used for international navigation, the limit of the continental shelf, the special interests of the land-locked/geographically disadvantaged states, a regime for archipelagoes and islands, as well as further defining the nature and charac15 teristics of the exclusive economic zone.

PAGE 241

230 The third Committee divided its work into two informal groups--the marine environment and scientific researchThe working group on the marine environment made little progress; its major accomplishment was to review the articles drafted by the Sea-Bed Committee in 1973. Although states had various positions on protecting the marine environment, the major division was between developing coastal states and developed maritime ones. Developing states wanted to apply a double standard for environmental protection. They felt that their economic development was more important than environmental protection and that if they did not have the same freedom to pollute as the industrialized states had earlier, their economic development would suffer. Therefore, they objected to the establishment of minimum international standards for coastal state activities in the economic zone. To control vessel-source pollution, maritime states wanted to allow the flag-state enforcement rights for international standards while coastal state regulations would be enforced only in case of an emergency situation. The United States favored a combination of international and port-state regulations with both port-state and flag-state responsible for enforcement. Coastal state rights advocates sought greater coastal state powers to establish and enforce pollution control measures. Developing states did not want coastal states to establish standards for the construction,

PAGE 242

231 design, manning or equipment of vessels. They were afraid that these standards could be used against their own w 17 ships Concerning marine scientific research, the major divisions were also between the developing coastal states, the developed states and the land-locked/geographically disadvantaged states. Establishing conditions for conducting scientific research within the economic zone was the most debated issue. Whereas developed states insisted that freedom of scientific research should be maintained in the economic zones of all states, developing coastal states wanted research to be conditional on prior notification and coastal state consent. The land-locked/geographically disadvantaged states sought a regime which gave them the right to participate in scientific research in neighboring coastal 18 state zones. After 10 weeks of meetings, the Caracas session had produced over 250 draft texts of alternative treaty articles and provisions. Also, toward the end of the session, an informal group of 30 states met to discuss possibilities for 19 dispute settlement provisions. Another 8 week session was scheduled to take place in Geneva in the Spring of 1975. The delegates hoped that the resulting documents (if any) would be signed at a final session in Caracas later that year. Although some states thought that even more sessions would have to be held, the United States was against any extended negotiations

PAGE 243

232 The third session of UNCLOS III opened in Geneva, March 17, 1975, with 140 nations and various observers attending. As it was assumed that the second session had completed its work of appraising the problems, and submitting and debating the proposals, the President of the Conference instructed the Committees to begin substantive negotiations leading to the writing of a treaty. Failing progress, President Amerasinghe later tried to get the states to appoint small representative groups from the different regions who would be empowered to conduct the substantive negotiations The President's plan having been rejected, he suggested that the chairmen of the three Committees prepare texts, representing the best compromise position for use in future negotiations. If delegates were dissatisfied with the texts, they could submit amendments or repudiate them as not being a negotiated position. This proposal was accepted halfway through the session on April 18. Despite this proposed change in procedure, negotiations through small informal groups continued. In the Committee dealing with the sea-bed mining regime, the Group of 77 and the developed states maintained their opposite positions. In the Committee on offshore jurisdiction, states adhered to positions reflecting their geographical interests. They formed even more splinter groups than in the preceding sessions. The land-locked/geographically disadvantaged

PAGE 244

:33 states, having increased their number to 48 states, became a force to be reckoned with. ******** During the first half of this session, the developed and the developing states attempted to reconcile their differences on the sea-bed regime. Yet, by the second half they had become much less flexible. In these discussions the two major issues were conditions of exploitation and the machinery for sea-bed mining. Initially, a working group of 50 states attempted to negotiate these issues but later all states participated. They debated five proposals on the conditions of exploitation for sea-bed mining — four of which had been submitted in the preceding session by the United States, the Group of 77, the European Community, and Japan. The fifth proposal was made by the Soviet Union. Although at the close of this session the chairmen wrote articles on 21 22 the sea-bed regime and machinery for inclusion in the Informal Single Negotiating Text (ISNT) the articles did not represent a consensus. ******** In the Spring session of 1975, the work on offshore jurisdiction was divided into two sections. From March 18 to April 4 the Committee re-read the "Main trends" paper produced in the preceding session and attempted to reduce 23 the number of alternatives for each article." After that, informal groups met in an attempt to negotiate unified articles dealing with baselines, historic bays and waters,

PAGE 245

234 the contiguous zone, innocent passage, high seas, transit for land-locked states, the continental shelf and exclusive economic zone, straits, enclosed and semi-enclosed seas, and islands and delimination. In addition to these groups, negotiations were conducted by regional and other special interest groups of which the most important was the Evensen Group. Agreement was reached on several issues. Most states agreed to a twelve-mile territorial sea and to a need to extend baselines. Many states wanted to further define activities prejudicial to the peace, good order, and security of the coastal state, i.e. non-innocent passage. In these negotiations, straits passage was linked with the regime for archipelagoes. Straits used for international navigation were to retain their transit passage and overflight characteristics but were to be subject to international safety and pollution regulations as well as to stipulation of the sealanes by the strait states. In order to gain support for free transit through straits and archipelagic waters, the United States agreed to many of the 25 demands made by archipelagic states. The archipelagic states in return supported free transit and overflight through straits and archipelagic waters. The economic zone issue was debated by the Evensen Group, the Group of 77, different regional blocs, and the land-1 jcked/geographically disadvantaged states, all of which presented their texts to the Chairman. In preparing

PAGE 246

235 the unified text, the Chairman used primarily the Evensen Group text which stressed regional and global organizations for regulating fisheries — a point also stressed by the European Community text (excluding the United Kingdom) Although the land-locked/geographically disadvantaged states were completely opposed to the Evensen text, they were unable to agree on a common position. The final text on the economic zone gave the coastal state — rather than international fisheries organizations — the right to determine the allowable fish catch. It also included coastal state regulatory rights over marine scientific research and pollution (even though these issues were part of the other Committee's area of competence) Additionally, the coastal state was to possess exclusive rights in its zone to all artificial 27 islands and installations. The position of a state in the negotiations on continental shelf delimitation depended on its specific geographic situation. The African and land-locked/geographically disadvantaged states supported a 200-mile continental shelf. States with continental shelves extending beyond 200 miles sought exclusive rights over resources beyond the 200-mile limit. States attempting to find a compromise supported coastal state control over all the shelf resources in conjunction with revenue sharing for resources beyond the 2 0-mile limit. The major problem was how to define the edge of the continental shelf. The United States suggested 60 miles beyond the edge of the continental slope.

PAGE 247

136 Others wanted control over all of the continental rise including the sediment from the margin. Eventually, it was agreed that a Boundary Review Commission was needed to moni2 8 tor claims. The Informal Single Negotiating Text on offshore jurisdictional issues encouraged the expansion seaward of coastal states. Suggestions made by the maritime and land-locked/ geographically disadvantaged states on the economic zone and continental shelf were ignored. This text — although not a negotiated document — served as a basis for later negotia29 tion. ********* In the other Committee the working group on the marine environment examined the problems involved with land-based pollution, the monitoring and assessing of environmental impact, and the regulation of pollution in the economic zone and on the continental shelf. The more difficult problem of vessel-based pollution was discussed by the Evensen Group 30 (which took flagand maritime state views) and by other negotiating groups outside the Conference. The texts produced by the marine environment group were advisory only. States seeking stronger pollution standards — Canada, Australia, Brazil, and the United States — were unable to sway the others in this Committee. As a result, Canada and the other states wanting stronger coastal jurisdiction for pollution, worked to preserve the environment by affecting decisions on the economic zone.

PAGE 248

237 In the working group on scientific research, three different approaches emerged. The Group of 7 7 insisted that scientific research in areas of coastal state jurisdiction could only be undertaken with the specific consent of the coastal state; research in the international area would be 32 conducted by the sea-bed authority. Most western maritime states supported a regime allowing scientific research in the economic zone if certain internationally accepted obligations were met by the researchers. The land-locked/geographically disadvantaged states concurred, provided they 33 were notified and allowed to participate in the research. The third position was initially proposed by the Soviet 34 Union and then taken up by Mexico and other Latin American states. This proposal differentiated between resourcerelated research (for which coastal state consent would be required in the economic zone and in the continental shelf) and fundamental research (for which compliance with internationally accepted obligations, including prior notification, would be required) This proposal was incorporated into the 35 Informal Single Negotiating Text. The Dispute Settlement meeting produced four introductory articles providing that states settle their disputes peacefully, that they choose the method to settle their disputes, that they submit to arbitration or judicial settlement as part of another agreement and that they discuss their opinions if a dispute arose or a settlement procedure 36 failed.

PAGE 249

238 Because the Informal Single Negotiating Text was written by the three chairmen, it reflected their specific political concerns. It was not a negotiated document and left different groups of states dissatisfied with its provisions. It was far from attaining a consensus on these complex and interconnected issues. The text on the sea-bed regime gave preference to the interests of the developing over those of the developed states. The text on offshore jurisdiction satisfied the maritime states' concern for straits transit and the coastal states' concern — except the territorialists--f or the economic zone. The strait states, the land-locked/geographically disadvantaged states, and maritime states were displeased with the text on the economic zone; the distant-water fishing states were dissatisfied with the fishing provisions as were the researching states with the marine research parts. The text on marine pollution did not satisfy some coastal states while the scientific research text favored coastal states' interests over those of the researching states. Although the Informal Single Negotiating Text was unsuccessful in finding compromises between the many divergent interests, it did provide a basis for further negotiations. ********* The 1976 negotiations took place in New York from March 14 to May 7 and from August 2 to September 17. The goal of

PAGE 250

239 these two sessions was to re-write the Informal Single Negotiating Text in order to produce texts which reflected generally accepted compromises on the various issues. Little progress was made. Although the chairmen of the committees wrote the Revised Single Negotiating Text by the end of the Spring session, this text did not provide the desired compromise. Since the three Committees were plagued by different problems, they had to adopt different procedures to deal with their tasks. ********* The Committee on the sea-bed mining regime was faced by especially disparate and incompatible interests. During the Spring session, two informal negotiating groups outside the Conference reviewed the texts for the Chairman. The revised texts were opposed by states outside the groups. Consequently, in the Summer session the Committee conducted negotiations in informal committee meetings under the cochairmanship of representatives from a developed state (the Netherlands) and from a developing one (India) In the Summer session the Committee repudiated the Revised Single 37 Negotiating Text. The only states which supported the Revised Single Negotiating Text — as revised on the basis of the items proposed in the private groups — were the developed ones which had been part of the groups. The basic compromise was a parallel mining system providing equal access for both the sea-bed authority and states and private companies to exploit the sea-bed. During the Summer session the Group

PAGE 251

240 of 77 protested this compromise on the basis that the power of the international machinery governing the sea-bed should not be limited by allowing states and private companies to have equal access. The Committee dealing with offshore jurisdiction reviewed each article in the Informal Single Negotiating Text. Delegates supporting an article remained silent while those opposing it and seeking a change spoke out. In this 39 way the Committee determined which articles had a consensus and which needed further negotiation. Further discussion on the individual disputed articles was undertaken but with little success. At the end of the article review session, the Chairman wrote the Revised Single 40 Negotiating Text. The most debated issues concerned the legal status of the economic zone and the access rights of land-locked/ geographically disadvantaged states to the economic zone. Opinion on the juridical status of the economic zone was split fairly evenly: maritime and land-locked/geographically disadvantaged states supported maintaining the economic zone as high seas except for resource rights which would be granted to coastal states. Coastal states argued that, excluding specific freedoms of navigation, overflight, and communication, the remaining rights in the economic zone belonged to the coastal state. In an attempt to reconcile

PAGE 252

241 these positions, the Chairman wrote that the economic zone was a unique zone — neither high seas nor territorial sea. By this session, the land-locked/geographically disadvantaged states group was composed of 51 states and was a 40 strong negotiating bloc. As a result of the outstanding contentious issues, the Chairman called for negotiating groups to deal with the 41 problem areas. These groups were then replaced by smaller ones and an informal group of states — coastal ones led by Mexico and land-locked/geographically disadvantaged states led by Austria. They met outside the conference structure to discuss the issue of land-locked/geographically disadvantaged states access to the living resources in the economic zone which proved to be the most difficult issue to resolve. Many states were dissatisfied with the Revised Single Negotiating Text. The United States remained opposed to its provisions on the legal status of the economic zone and insisted that the economic zone was part of the high seas except for coastal state resource rights. This issue and that of revenue sharing on the continental shelf did not come any closer to a resolution. Strait states wishing to modify the text on the issue of straits passage were also unsuccessful because after the archipelagic states' demands were met, there were too few of them to effect change. The issue of whether delimitation between opposite and adjacent

PAGE 253

24: states should be based on equidistance or equitable principles was also highly debated. As a compromise the Text called for a combination of delimitation on equitable prin42 ciples and equidistance where appropriate. After the 1976 sessions, many of the provisions which had been included in the Informal Single Negotiating Text became part of the Revised Single Negotiating Text on off43 shore jurisdiction. The earlier troublesome issues remained unresolved through the 1976 sessions. ********* As before, the other Committee was divided into negotiations on the marine environment, which sought to reconcile maritime and coastal interests, and on scientific research, which tended toward greater coastal state con44 trol. The United States position (written into the Revised Single Negotiating Text on pollution) was that the coastal state could set stricter standards if the standards 45 did not infringe on the right of innocent passage. Other maritime states — the United Kingdom, many West European states, Japan, and the Soviet Union — were against allowing the coastal state to establish stricter regulations in the territorial sea. This discrepancy (embodied in the offshore 46 jurisdictional issues of the Text ) was not settled during the 1976 session. Most of the provisions on the marine environment, reconciling coastal and maritime concerns, were generally accepted in the 1976 sessions.

PAGE 254

243 The compromise position in the Informal Single Negotiating Text on scientific research, which distinguished between resource related and fundamental research, was changed in favor of greater coastal state control. Consent by the coastal state was required for scientific research in both categories but, although required, would not be withheld for basic research; as before, a list of internationally accepted obligations was to be met by the researching 4447 state. ********* During the Conference's first few years it was able to reach agreement on a number of offshore jurisdictional issues or at least to diminish the number of alternatives for the issues. In 1975 it produced the Informal Single Negotiating Text which gave it a base from which to conduct further negotiations. In 1976 the Conference revised and re-issued the Text as the Revised Single Negotiating Text which was more of a compromise and indicated a growing consensus on most issues other than sea-bed mining. Therefore, the emphasis of the UNCLOS III shifted from concern with all aspects of ocean law to primarily deep sea-bed mining. ********* The sixth session of the UNCLOS III was held from May 23 to July 15, 1977. Its purpose was to turn the Revised Single Negotiating Text into a comprehensive treaty text. Starting with this session, negotiations dealt primarily

PAGE 255

244 with the sea-bed regime which had become the major obstacle to reaching agreement. Discussions became increasingly technical and detailed as the delegates attempted to create a complete set of regulations governing sea-bed mining within the context of the common heritage principle. To facilitate reaching this agreement, work was done only on the 48 sea-bed regime for the first three weeks. When the session opened, the delegates were hopeful of finding a compromise on the outstanding issues since a number of states had indicated a willingness to compromise. In the 1976 session, Secretary of State Henry Kissinger had suggested that the United States was willing to accept certain provisions such as financing and transferring technology to the supra-national mining arm of the United Nations (the Enterprise) setting production limits on sea-bed minerals, and convening a 25 year review conference of the sea-bed mining regime. The Group of 7 7 hoped that the new Carter Administration would be even more willing to meet their demands. Many developing states also became increasingly willing to compromise in order to conclude a treaty as quickly as possible before developed states began unilateral mining of the sea-bed. Developing states which had before opposed a parallel mining system (which provided for equal access to exploitation of the sea-bed by both the international mining arm and private or state mining entities) now indicated a willingness to consider such a 49 system.

PAGE 256

245 The 'Working Group of the Whole' initiated discussion on the outstanding issues in the sea-bed mining regime. These included a system of exploitation for sea-bed minerals, a resource policy for the sea-bed minerals and production limits on them, financing of the international mining arm, and a procedure for review of the sea-bed regime. The texts produced by this Group were reviewed and revised by other groups of developed and developing states and forwarded to the Chairman of the Committee dealing with sea-bed mining. He, in turn, discussed them with his advisory group (primarily developing states) and further revised them. The resulting Informal Composite Negotiating Text was released after the conclusion of the sixth session and differed considerably from the negotiated position developed in the 50 groups The United States and other developed countries objected to the inclusion of the altered sea-bed mining Text in the Informal Composite Negotiating Text on two grounds: its substance and the procedure used to write it. The earlier Text on sea-bed mining was written as a result of discussion by all delegations and was seen by all before submission. This Text, on the other hand, was written in private after negotiations with a few delegations and was released as part of the Informal Composite Negotiating Text after the session had concluded. In a press statement of July 20, 1977, Elliot Richardson, head of the United States delegation, stated that the

PAGE 257

246 Informal Composite Negotiating Text had made substantial progress on issues dealing with international security and freedom of navigation but had set back the possibility of agreement on an acceptable deep sea-bed mining regime. He considered definite progress to have been made on the issues of the legal status of the economic zone, straits passage, scientific research, pollution regulation and dispute settlement. The provisions in the Informal Composite Negotiating Text were totally unacceptable to the United States on many grounds. He concluded that the United States needed to re-evaluate both the substantive matters and the Conference procedures The Committee on offshore jurisdictional issues began work in the fourth week of the session in negotiating groups of about 30 states. Its primary responsibility was to deal with the unresolved issues of the legal status of the economic zone, the outer edge of the continental shelf, revenue sharing on the shelf beyond 200 miles, and delimitation between opposite and adjacent states. A mediating group discussed land-locked/geographically disadvantaged states' access to living resources of neighboring states' economic zones. Despite the Revised Single Negotiating Text definition of the economic zone as neither a part of the territorial sea nor the high seas, the maritime and territorialist states maintained their previous conflicting views toward the nature of the economic zone. To attempt a compromise on

PAGE 258

247 this issue and others, a fifteen-member negotiating group was established. This group reconciled the territorialist and maritime states' interests by writing purposefully ambiguous texts on the economic zone which allowed each side to interpret the texts as supporting its own view. This text was sent to the Chairman who presented it to the Committee. Although some states objected to the text and the land-locked/geographically disadvantaged states made reservations, most of the negotiated text was incorporated 52 into the Informal Composite Negotiating Text. The Committee dealing with the issues of marine pollu53 tion and scientific research was able to incorporate most of the provisions from the Revised Single Negotiating Text into the Informal Composite Negotiating Text with only a few technical revisions. Some states wanted to increase the rights of coastal states to enforce environmental protection regulations while others (maritime and flag-states) 54 sought to diminish coastal state rights. Marine scientific research was discussed by a negotiating group outside 55 this Committee. The informal group on Dispute Settlement agreed that one Law of the Sea Tribunal should exist with a Sea-Bed Disputes Chamber rather than be separated into functional courts. The Sea-Bed Dispute Chamber would deal with all disputes in sea-bed mining; its members would be chosen from the Law of the Sea Tribunal. States would be allowed to

PAGE 259

248 choose from four settlement procedures for disputes outside sea-bed issues. The seventh session of UNCLOS III met in Geneva from March 28 to May 19, and in New York from August 21 to 57 September 15, 1978. Although in this session a number of Informal Composite Negotiating Text articles were revised, they were not added to the Text at this time. The revision process was so involved that the Conference waited to formalize the revisions the following year. The third week of the session was spent organizing the work of the Conference to protect the generally accepted articles of the Informal Composite Negotiating Text from splinter group attack and to organize procedures for the 5 8 final stages of negotiation. Seven negotiating groups were established to deal with the unresolved major issues: the first three with deep sea-bed mining and the remaining four with offshore jurisdiction. They discussed the disputed sections in the Informal Composite Negotiating Text and produced new texts attempting to find compromise. The ones addressing the sea-bed mining regime discussed the following matters: the establishment of a system for exploration and exploitation of the sea-bed and resource policy for sea-bed minerals; the arrangements for financing the international sea-bed mining authority? and the composition and powers of the assembly and council governing the sea-bed mining regime. The

PAGE 260

249 negotiating groups dealing with offshore jurisdiction considered the following issues: the right of the land-locked/ geographically disadvantaged states to the living resources of the economic zone; dispute settlement procedures in the economic zone; the definition of the outer limit of the continental shelf and revenue-sharing beyond 200 miles; and the delimitation of boundaries between opposite and adjacent 59 states The work of the Committee dealing with the sea-bed mining regime was allocated to the negotiating groups. The Committee on offshore jurisdictional issues undertook an article by article review of the issues which the negotiator n ing groups were not considering. The Committee on marine pollution and scientific research concentrated most of its efforts on the marine environment — particularly vesselsource pollution. Additionally, the plenary met to discuss the preamble and final clauses with no results. The plenary decided that revision of the Informal Composite Negotiating Text should come from negotiations and not from the decision of either the president or the chairmen. Proposed change should be widely supported and offer a possibility for consensus. While this procedural change protected the Conference from any individual unduly influencing or changing the texts without prior negotiations, it made the process of revision slower and more difficult.

PAGE 261

250 The eighth session of UNCLOS III met in Geneva from March 19 to April 27 and in New York from July 16 to August 24, 1979. At the close of the Spring session the first revision of the Informal Composite Negotiating Text was issued. It contained revised articles based on the reports of the chairmen and groups in the last session and the new compromises developed in the eighth session. Despite these efforts, the resulting texts on sea-bed mining did not represent a consensus and were described as merely offering a greater possibility for reaching agreement. The major disagreement on sea-bed mining continued to be between the developed and developing states. Agreement had been reached on two offshore jurisdictional issues. Land-locked/ geographically disadvantaged states' access to fisheries and dispute settlement in the economic zone were considered to have reached consensus on the basis of negotiations in 1978 and were incorporated into the Informal Composite Negotiating Text Rev. 1. The major area of disagreement on offshore issues continued to be on shelf delimitation and revenue sharing beyond 200 miles and on settlement of boundaries between opposite and adjacent states. Some Arab and land-locked/geographically disadvantaged states maintained their objections to coastal state extensions over the continental shelf beyond 200 miles. The Chairman of the Committee combined the Irish formula with the Soviet one to provide an alternative of 350 miles from the coast or 100 miles from the 2,500-meter isobath

PAGE 262

251 whichever is further. If the outer edge of the margin is less than 200 miles from the coast, the continental shelf is 65 still considered to extend to 200 miles. Some progress was made on issues dealing with the marine environment and scientific research. The provisions on the marine environment which had been agreed upon in the preceding session were incorporated into the Informal Composite Negotiating Text Rev. 1. The remaining issues, which offered little promise for compromise, continued to be too controversial for inclusion in the revised Text. Discussion on marine scientific research progressed slowly. The United states unsuccessfully attempted to change the Informal Composite Negotiating Text which was supported by the developing states. The only change written into the revised Text dealt with promoting scientific and technological research centers in developing countries. In this session the Conference, confident of a quick conclusion to negotiations, began discussion in earnest on the final clauses for the Convention under the direction of the President with a supplementary Group of Legal Experts. While some of the final clauses were technical and uncontroversial, the president identified a number of areas as controversial At the conclusion of the eighth session most provisions written into the Informal Composite Negotiating Text Rev. 1 were generally acceptable. Considering the number and variety of issues which the Conference had successfully

PAGE 263

252 negotiated, relatively few issues remained unresolved. The major obstacles to completing the treaty included some deep sea-bed mining issues, the politically motivated proposals concerning dependencies and national liberation movements, and the problems surrounding the final formal procedures. ********* The ninth session of UNCLOS III met in New York from February 27 to April 4 and in Geneva from July 28 to August 29, 1980. Additionally, the Drafting Committee met in New York in June. The Spring session completed a second revision of the Informal Composite Negotiating Text. Considerable progress was made toward reaching a consensus on the outstanding issues. The Informal Composite Negotiating Text Rev. 2 was further negotiated and revised in the Summer session and issued as the Draft Convention on the Law of the Sea (Informal Text) At the close of this session, the general feeling in the Conference was that the negotiations were near completion. The greatest changes were made in the sea-bed mining provisions which became more acceptable to the 69 developed mining states. Most of the previous texts on offshore jurisdictional issues remained substantially unchanged despite the efforts of some states to amend them. The major outstanding issues — the continental shelf beyond 200 miles and the delimitation of the economic zone and continental shelf between opposite and adjacent states — were 7 temporarily settled. During this session states re-opened

PAGE 264

253 discussion on some issues on marine scientific research, resulting in changes in the wording of some articles but not 7 ] in their substance. The issue of dispute settlement was further discussed in the Informal Plenary and resulted in a re-structuring of the texts to clarify and coordinate them. This re-structuring concluded the negotiations on dispute 72 settlement except for a few technical details. The Informal Plenary discussed the preamble and final clauses of the draft treaty and the establishment of a Pre73 paratory Commission. The Plenary examined the draft texts issued by the Group of Legal Experts and incorporated the final clauses recommended by the President. The Treaty would go into force when 6 nations ratified it and the Assembly for the Sea-bed Authority would then convene. Reservations to the treaty were forbidden unless specifically provided for in the Treaty. The creation of a Preparatory Commission to draft regulations and procedures was agreed upon but more discussion was needed to determine the specific arrangements. Other outstanding issues included the politically sensitive question of which non-states could participate in the Convention and the practical problem of providing protection for interim investment to encourage early exploration and development of technology. The Drafting Committee and the six language groups — English, Russian, Spanish, Arabic, Chinese, and French — attempted to harmonize the texts through an article by article review in the six languages.

PAGE 265

254 The Preamble was written in this session by the Informal Plenary. It noted the need for a "new and generally acceptable Convention on the law of the sea" to maintain "peace, justice and progress for all the peoples of the world." It recognized the desirability of establishing, through this Convention, and with due regard for the sovereignty of all States, a legal order for the seas and oceans which would facilitate international communication and promote their peaceful uses, the equitable and efficient utilization of their resources, the study, protection and preservation of the marine environment and the conservation of the living resources thereof. Emphasizing the Convention's contribution to the development of international law, it expressed the hope that the Convention would contribute to the strengthening of peace, security, co-operation and friendly relations among all nations in conformity with the principles of justice and equal rights and promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles^f the United Nations as set forth in its Charter. ******** The tenth session of UNCLOS III met in New York from March 9 to April 24, and in Geneva from August 3 to August 28, 1981. In addition, the Drafting Committee met from January 12 to February 2 7 in New York and from June 2 9 to 7 7 July 31 in Geneva. The agenda for this session was to consider the outstanding questions (participation in the Conference, composition and mandate of the Preparatory Commission, protection of preparatory investments in seabed mining during the interim period and delimitation of

PAGE 266

boundaries between states with opposite and adjacent coasts) During this session the Conference planned to finish work on the unfinished items and to provide for the 7 8 adoption of the Convention. Events outside the Conference prevented this from occurring. In January 1981, Ronald Reagan became President of the United States with a Republican majority in the Senate. On March 2, 1981, the United States State Department issued the following press release: After consultations with the other interested Departments and Agencies of the United States Government, the Secretary of State has instructed our representative to the UN Law of the Sea Conference to seek to ensure that the negotiations do not end at the present session of the Conference, pending a policy review by the United States Government. The interested Departments and Agencies have begun studies of the serious problems raised by the Draft Convention, and these will be the subject of a thorough review which will determine our position toward the negotiations. Two days before the tenth session convened, on March 7, 1981, Acting Ambassador George H. Aldrich and other leading members of the United States delegation were dismissed and James L.. Malone was appointed head of the United States delegation. The immediate reaction of delegates to the American announcement of a review of the Draft Convention was that it was understandable for a new administration to review past policies and most hoped this would be accomplished quickly. On April 14, 1981, the United States stated: it would be unable to finish the review of the treaty before the August session and preferred to have the Conference resume

PAGE 267

256 in early 1982; although the Summer session would allow an exchange of views, no completion or formalization of the draft treaty was to be expected; and it would be beneficial for states to engage in bi-lateral and multi-lateral negotiations before the United States reached any final conclusions on the Convention. Following this perempetory announcement, delegates began to lose patience with the American stand. On April 16, 1981, the Conference agreed to resume the tenth session, as previously scheduled, in Geneva from August 3 to August 28, 1981, and to maintain the same agenda — to complete negotiations on the outstanding issues, to formalize the text of the Draft Convention on the Law of 80 the Sea and to approve xt. Progress in achieving compromises on the outstanding issues was slowed by the uncertainty of the American position. Delegates continued to consult and negotiate but were reluctant to agree to concessions without knowing if the United States was going to propose major or minor changes. As the review process continued with no indication to other states of the extent or scope of the changes in United States ocean policy, delegates began to lose patience with the United States. The Chairman of the Group of 77 stated that: It was with disbelief and consternation therefore that the group received the news just before the beginning of the 10th, and what was to have been the last negotiating session of the Conference, that the new U.S. administration had decided to undertake a "comprehensive policy review" relating to the Law of the Sea Convention and had instructed its delegation to ensure that the

PAGE 268

257 negotiations would not be concluded at that session. Another complaint against United States action was that it discredited the consensus principle. Throughout the years of preparatory and Conference work, the United States had accepted the process of consensus to formulate a single comprehensive convention on various complex issues. Jens Evensen of Norway, who had led informal groups in negotiations, considered the breakdown of the consensus principle to be one of the most damaging aspects of the United States actions : We had to proceed from issue to issue, from chapter to chapter. We had to work in main committees, in all types of formal and informal groups in order to build with infinite care, a compromise package comprising the totality. In this stepwise approach we also had to build up confidence based on the self-evident assumption that delegations and states, although not formally bound would stand by their express or tacit commitments. If one main state or group of states rescind one main element of the package, the whole package would fall apart and the compromise package elaborated with such finesse, perhaps even ingenuity, over the years would collapse like a house of cards. A lack of understanding of this main element of the gentleman's agreement accepted by all in 1973, would spell disaster for the consensus principle. The Soviet Union also emphasized the obligations inherent in the process of negotiation by consensus: True, newly-established governments in all countries have such a right. Throughout the work of the Conference new governments in a number of countries succeeded the former ones. However, they conducted such "reviews" observing the elementary norms of international courtesy and the fundamental principles of succession and fulfilling in good faith the obligations assumed. It is easy to imagine where international conferences would be if every new government considered itself

PAGE 269

258 entitled to conduct similar endless "reviews" of the previously reached agreements and to make all other participants in international forums wait till such "reviews" are completed. The Chairman of the Group of 77 further criticised the United States along these lines: The United States government cannot reject the work of over 150 nations including its own predecessor governments for almost a decade, for in doing so it would be destroying the principle of good faith negotiations. There have been scores of changes in regimes in different countries since the work on the treaty was started, but no new regime had so far disowned what its predecessors had striven to achieve in the field of international cooperation for the exploitation of the resources of the sea-bed which have been universally recognized as being the Common Heritage of Mankind. The United States responded to these criticisms by reaffirming its support for consensus. It emphasized that it was not bound by the text which is a negotiating rather than a negotiated document. It further stated that the existing sea-bed mining provisions would be unacceptable and a stumbling block to ratification of the Treaty. It called for informal meetings to consider the United States position. Most delegations were reluctant to begin open-ended renegotiations especially since the United States had not confirmed its support for a treaty or made specific proposals Ambassador Malone in testimony before a congressional committee, indicated that large and basic parts of the Draft Convention needed to be changed to obtain United States Q C approval. Controversy existed within the United States as to the accuracy of the interpretation of certain of these

PAGE 270

259 provisions. Elliot Richardson, the Public Chairman of the Department of State's Advisory Committee on Law of the Sea and former head of the United States delegation, criticized "the remarkable persistence of distortion of the Draft Convention. He agreed with critics of the Draft Convention that a number of areas needed improvement from the United States perspective. These proposed improvements were negotiable and practical in nature in contrast to the wide-sweeping ideological denunciation by the Reagan Administration of the u J • • 86 deep sea-bed provisions. Despite the uproar in the Spring session over the United States review process, the resumed session — indicating its determination to finish the Convention — was able to Q "7 make progress. It selected Jamaica as the site of the Sea-Bed Authority and the Federal Republic of Germany as the site of the Tribunal on the Law of the Sea. A new provision concerning the delimitation of the economic zone and the continental shelf between states with opposite or adjacent coasts was written emphasizing equitable principles rather than equidistance and agreement on the basis of international law. This provision was too general to clarify the problem. The President issued a report detailing participation of international organizations (such as the European Community) in the Convention. The Drafting Committee continued its tasks to harmonize word usage, to clarify language and meaning, and to ensure consistency in the six

PAGE 271

260 language groups. In its attempt to finish the Convention, the Drafting Committee deferred many of the more difficult problems. The Conference agreed to hold its last decision making session in New York in March-April, 1982, in order to allow for possible negotiations with the United States and to deal with the outstanding issues. Intersessional meetings were held in New York from February 2 4 to March 2 during which the United States submitted a paper identifying its broad objections to the Convention. ********* The eleventh and final session of UNCLOS III met in New York from March 3 to April 30, 1982. Agreement was reached on the three outstanding issues — the Preparatory Commiso o 8 9 sion, participation in the Convention, and preparatory 90 investment protection. The work of the Conference was finished. On April 30 the UNCLOS III voted at the insistence of the United States on the Convention. It was adopted 130 to 4, with 17 abstentions. The states vetoing the Convention were the United States, Venezuela, Turkey, 91 and Israel; most of the Soviet bloc abstained. On December 10, 1982, the United Nations Convention on the Law of the Sea was opened for signing. At that time, Belgium, Great Britian, Italy, Luxembourg, West Germany and the United States declared that they were not signing the Convention because of its sea-bed mining provisions. Most other western states, the Soviet bloc, China, and most

PAGE 272

261 African, Asian, and Latin American states signed the Convention. It is possible that it will go into force in the 1980's. This concluded 15 years of painstaking negotiations between coastal, maritime, and geographically disadvantaged states, as well as between developed and developing states. These negotiations resulted in a Draft Convention of 446 articles covering all aspects of ocean use. Since the Convention was a treaty based upon compromise, it could not accommodate all the special interest groups involved nor satisfy any one state's requirements. It did provide the greatest possible international agreement on a constitution for the seas. The major elements of the treaty included the following provisions: a twelve-mile territorial sea and unimpeded transit through straits (which would come under coastal state control with the institution of the twelve-mile limit) ; a 20 0-mile economic zone over which the coastal state would have sovereign rights for exploration and exploitation of the living and non-living resources; special fisheries regimes for highly migratory and anadromous species; jurisdiction by the coastal state to a defined outer limit of the continental shelf; pollution regulations recognizing international standards and designating coastal, flagor port-state enforcement rights; dispute settlement procedures allowing parties to a dispute to choose one of four listed methods for peaceful conciliation; and the most controversial provision

PAGE 273

262 establishing a regime for the deep sea-bed which allowed mining entities and an international authority to have equal access to exploitation of the sea-bed. ********* From the beginning of the Conference, a tension existed between the moral vision of the common heritage principle and the practical need for laws governing ocean activity to facilitate economic development and international security. In the Conference's attempt to find a consensus on laws and principles governing all aspects of ocean use, these conflicting orientations were connected. To conclude the writing of the Convention, agreement had to be reached on both the implementation of the common heritage principle for the sea-bed regime and on offshore jurisdictional issues. Although agreement came slowly on the traditional issues of offshore jurisdiction (because of the wide range of conflicting orientations) it was even slower in coming on the sea-bed regime (because of the basic division between the developing and developed states) By 1980 due to intense negotiations and resulting compromises, states had reached a consensus on most issues and had incorporated the moral vision of the common heritage principle into the practical requirements for a sea-bed regime. At this point, the incoming Reagan Administration, opposing the principle of the common heritage, rejected the entire negotiated package.

PAGE 274

263 In so doing, it rejected not only the negotiated provisions but the process of consensus based upon equality of states.

PAGE 275

164 Notes 1. H.S. Amerasinghe of Sri Lanka, who had been president of the Sea-Bed Committee, was elected president of the Conference by acclamation. As a result of informal consultations, the member states had tentatively decided that the General Committee would be composed of 48 members: twelve each from the African and Asian groups, 9 each from Western Europe and others and from Latin America, and 6 from the Eastern Europe group. The Drafting Committee would consist of 23 members: 6 each from the African and Asian groups, 4 from Latin America, 5 from Western Europe and others, and 2 from the Eastern Europe group. Additionally, the states had decided that each of the three Committees would have a chairman, three vice-chairmen, and a rapporteur. In the interest of equity, the chairmanships of the committees were allocated according to regional groups. The chairman of the first Committee would be from the African group, of the second from Latin America, of the third from East Europe, and of the Drafting Committee from the West Europe and others group. United Nations, Third United Nations Conference on the Law of the Sea, Document No. A/Conf. 62/28 June 20, 1974. (Conference Documents will be referred to by number only. ) 2. Other subsidiary bodies included a credentials Committee, a steering committee, and a drafting committee. The chairmen for the Committees were elected during the December 12 meeting. United Nations, Third United Nations Conference on the Law of the Sea, Vol. 1, Summary Records of Meetings. 3. A/PV.2169. 4. The first session concluded without reaching agreement on the rules of procedure. Informal meetings were held in February and June but did not result in a resolution of these problems. U.N. UNCLOS III, Vol. 1, Summary Records of Meetings. 5. The Kampala Declaration stated the following principles: 1) land-locked/geographically disadvantaged states possess free and unrestricted right of access to and from the sea; 2) transit states have the responsibility to ensure that land-locked geographically disadvantaged states have free access to and from the sea; 3) land-locked/geographically disadvantaged states have the right of free access to the sea-bed area to participate in the exploration and exploitation of the sea-bed area; 4) land-locked states have the right to use the facilities, equipment and other installations in coastal states' ports; 5) no charges except specific

PAGE 276

2 65 service ones can be required of the state for use of the coastal facilities; 6) land-locked/geographically disadvantaged states should be adequately and proportionately represented in the bodies of the international sea-bed authority and their special needs taken into account; 7) in exploiting the resources of the sea, sea-bed, and subsoil beyond state jurisdiction the following principles apply: the rights and interests of all states — whether coastal or land-locked — are to be considered; the rights possessed by land-locked/ geographically disadvantaged states under existing international law shall be maintained; the international area governed by the common heritage principle shall be extensive and contain resources for viable economic exploitation; 8) land-locked/geographically disadvantaged states possess equal rights to exercise jurisdiction over resources in areas adjacent to the territorial sea. A/Conf .62/63, May 2, 1974. 6. Ann Hollick, U.S. Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981) pp. 288289. 7. A/Conf .62/SR. 21-42, June 28-July 15, 1974. 8. Approximately one hundred states recognized a twelvemile territorial sea which adequately served coastal states' security and economic interests as well as international shipping requirements. The Soviet Union believed that any territorial sea extension beyond twelve miles would hamper international shipping and have an adverse effect upon international trade and the world economy. Transit through straits used for international navigation and linking the high seas is necessary to maintain freedom of navigation which through established practice had become an accepted rule of common law. The coastal strait state's security and other interests should be protected by enforcement of international regulations in straits. Straits linking the high seas and territorial waters would be subject to the regime of innocent passage. (This differed from the United States position that all straits used for international navigation should come under the straits transit regime.) On the sea-bed regime, the Soviet statement was the same as its earlier position: it favored "the establishment of an international organization in which states would cooperate in industrial exploration and exploitation of the mineral resources of the sea-bed." A cumbersome, expensive administration should be avoided. Most power should be vested in the executive organ in which all the major groups of states should be

PAGE 277

266 represented. All states should participate regardless of their geographic circumstances. The Soviets also advocated a provision ensuring the use of the sea-bed for exclusively peaceful purposes. Despite the sea-bed regime, the superjacent waters would maintain their high seas character. Other issues mentioned were the right of free access to the sea by the land-locked/geographically disadvantaged states; the need for international cooperation in marine scientific research and the need for freedom of scientific research on the high seas; the importance of adopting regulations to conserve the marine environment and prevent pollution from any source. A/Conf .62/SR.22, June 28-July 15, 1974. If a state's continental shelf extended beyond the 200mile economic zone, the coastal state would possess jurisdiction to the outer limit of the shelf but would be required to share its revenues (with developing states) on non-renewable resources in the area beyond 200 miles. Because anadromous fish can only be conserved and managed when returning to their migratory waters, the United States proposed that the fish only be caught while in their originating waters — i.e. in the internal waters, territorial sea, or economic zone of the state of origin. Within the 200-mile economic zone the coastal state would have jurisdiction to regulate the exploitation and exploration of sea-bed resources, non-resource drilling, fishing for coastal and anadromous species, and construction of offshore installations. In this area, other states would possess freedom of navigation, overflight, and other non-resource uses. The coastal state would be responsible for upholding international environmental and conservation standards as well as agreements on sea-bed exploitation. Coastal states which do not fully use their fisheries should be required to allow foreign ships to fish but under their jurisdiction. Coastal states should not be allowed to regulate scientific research within the 200-mile economic zone. Vesselsource pollution should be regulated through international standards to be enforced by flagand portstates with coastal states possessing some additional rights On the issue of the sea-bed regime, the United States re-emphasized that the common heritage must be balanced with the rights of individual states. All states must have non-discriminatory access to the sea-bed resources while sharing the revenues with other states. Also, the United States agreed that land-locked/geographically disadvantaged states should have access to the sea and rights to fisheries of adjacent coastal states. It disagreed with the claims that these states should

PAGE 278

267 share in the exploitation of non-renewable resources — especially oil and gas — of the continental shelf. Instead, the United States proposed that coastal states, although possessing exclusive rights on the continental shelf, should provide "modest and uniform international payments" for exploitation of mineral resources beyond either a twelve-mile distance or 200meter depth (whichever was further seaward) to developing states, including land-locked/geographically disadvantaged states. A/Conf .62/SR.38, July 11, 1974. 10. A/Conf .62/C.1/SR.2-8. 11. Other studies conducted by the United Nations and United States said that sea-bed mineral production would have a minimal effect on land-based production and that those affected would be primarily cobalt producers — Zaire, Morocco, Cuba, and Zambia of which Zaire would be affected the most. Nevertheless, the land-based producers were supported in their demands for price and production controls by other developing states which produced raw materials. U.S. Working Paper A/Conf 62/C. 1/L. 5 August 8, 1974. 12. Chaired by Andres Aguilar, the Committee met a total of 46 times and dealt with 15 of the submitted 24 agenda items. Each of the 15 items was considered in a general debate after which the officers of the Committee prepared a working paper on the major trends of the item. The end result was a set of 15 working papers which were used in subsequent negotiations. A/Conf .6 2/C. 2 /SR. 1-4 6. 13. Ibid. 14. The United States wanted an international agreement to regulate tuna fishing throughout its migratory cycle. Developing coastal states, on the other hand, pressed for the right to fish all species in their economic zone despite their migratory pattern. States in which salmon spawned (the United States, Ireland, and Canada) proposed that the host state control salmon fishing throughout its cycle. Japan — the largest high seas salmon fishing state — favored an international regime governing anadromous species by all interested states. A/Conf .62/C. 2/WP.l. 15. A/Conf .62/C. 2/L. 85, August 28, 1974. 16. The Committee faced the problem that some coastal states refused to deal with environmental questions until the offshore jurisdiction issues in Committee II were settled. The Committee attempted to address three

PAGE 279

268 central issues: protecting the marine environment, establishing minimum standards for exploitation of resources in the economic zone, and regulating vesselsource pollution. (Land-based sources of pollution — one of the greatest threats to the marine environment — was considered to be outside the jurisdiction of the Conference. ) A/Conf 6 2/C. 3/SR. 3-9 17. A/Conf .62/C.3/L.20, August 23, 1974. 18. During the discussion, four basic blocs emerged: 1) A Group of 77 coastal states sought exclusive rights to regulate scientific research in the economic zone. The international area would be regulated by the sea-bed authority. 2) Ireland, Mexico, and Spain proposed that researchers be required to meet established obligations in conducting their research and if these were met, then consent would be given. 3) The Netherlands, Federal Republic of Germany, and the United States proposed that researchers should meet certain obligations, including giving prior notification, allowing the coastal state to participate in the research, sharing the data and samples, publishing the findings, complying with international environmental standards, and having the flag-state certify the researching institute. 4) The United Kingdom, Denmark, the Soviet Union, and Switzerland proposed that consent of the coastal state should be required if the marine scientific research in the coastal area is conducted toward exploitation of resources over which the coastal state has jurisdiction. These four proposals reveal the wide range of opinion shown. Hollick, p. 298. 19. This group produced a working paper with alternative texts covering 11 basic areas: the general responsibility of states to settle disputes peacefully, methods of settlement to be chosen by the parties, the connection of law of the sea treaty obligations to other international obligations, dispute settlement procedures of a binding or non-binding nature, general and functional methods of dealing with the settlement, determining the parties to the dispute, depletion of local alternative settlements, advisory judgements, existing laws which are applicable to dispute settlements, and exceptions and reservations to the dispute settlement provision. A/Conf 62/L. 7, August 27, 1974. 20. Shigeru Oda The Law of the Sea in Our Time-1 New Developments, 1966-1975 (Leyden: Sijthoff, 1977), pp. 158-159.

PAGE 280

269 21. At first, discussion revolved around the possibility of a joint venture for sea-bed exploitation. This represented a compromise for both the developed and developing states. Although the United States in its Caracas proposal had stressed the need for specific rules and regulations governing mining, at this session it agreed to accept more general ones and to consider a joint venture system. Based on this compromise, the Chairman wrote a draft text on basic conditions of sea-bed mining. It was a general outline lacking specific details; it granted parallel exploitation rights to states (through contracts) and to the authority. The more radical Group of 77 states protested the division of the common heritage area and convinced the more moderate members to maintain a united stand against any erosion of the common heritage principle. Failing to achieve a compromise, the Group of 77 went back to its original stand for direct control of sea-bed mining by the authority. Discussion came to a stand still. Further efforts to write an acceptable text were based on informal consultations. The result was a paper of 21 articles on the basic conditions of sea-bed exploitation which was appended to the proposed single text. The machinery for sea-bed mining — the other major issue — was discussed in only three formal meetings. The major disputes on this issue were the balance of powers between the council and the assembly, and the related problem of the voting structure in the council. Again, after informal consultation, Chairman Pinto wrote a draft text and forwarded it to the Chairman of Committee I (P. Engo) who then revised it after consultation with members of the Group of 77. The completed 75 articles on the regime and machinery (which had been negotiated by Pinto and revised by Engo) composed the main body of Part I of the Informal Single Negotiating Text and were appended to the 21 articles negotiated by Pinto which were called the Basic Conditions of General Survey, Exploration and Exploitation. A/Conf .62/WP.8/Part I. Annex I. 22. A/Conf .62/WP.8/Part I. 23. The major issues before this Committee were regimes for territorial seas, straits and archipelagoes, economic zones and the continental shelf. The informal consultative groups on historic waters, baselines, and innocent passage participated in the discussion on the territorial sea regime. 24. Organized in late 19 73 by Jens Evensen of Norway, the Evensen Group attempted to write unified texts dealing with offshore jurisdictional issues. Because the

PAGE 281

270 articles it produced in 1975 reflected coastal interests, they were rejected by the land-locked/geographically disadvantaged states. They were also rejected by individual states which had not been consulted. Yet some of their proposals dealing with the economic zone were not without merit. Oda, pp. 16 0-161. 25. The archipelagic states — Fiji, Indonesia, Malaysia, Mauritius, and the Philippines — were permitted to draw straight baselines from their outermost islands to enclose their waters. From the baselines the states could claim a 200-mile economic zone. 26. The land-locked states proposed sub-regional economic zones, allowing them access to the marine resources within their area. The geographically disadvantaged states presented a proposal which tried to balance the rights of coastal states with those of other states within the zone. 27. A/Conf. 62/WP.8/Part II, Arts. 45-61. 28. In the Informal Single Negotiating Text the coastal state had sovereignty over exploring and exploiting the shelf resources. The shelf was defined as extending either 200 miles seaward or to the edge of the margin, whichever was further. It did not develop a method for establishing the edge of the margin. Moreover, although it made provisions for revenue sharing beyond 200 miles, it did not specify the rate. The coastal state was to have jurisdiction over drilling and scientific research on its shelf. A/Conf .62/WP.81/Part II, Arts. 62-72. 29. A/Conf .62/WP.81/Part II. 30. The flag-state was to adopt regulations which were no less effective than those determined internationally. Although the coastal state could adopt more effective pollution regulations, they were not to hamper innocent passage through the territorial sea. The coastal state could set special regulations for "special areas" with the approval of international organizations under certain climatic or ecological circumstances. The port-state was not empowered to set standards. The resulting provisions in the Informal Single Negotiating Text followed the Evensen text in granting most power to the flag-state. The flag-state was responsible for ensuring that its vessels complied with international standards. Although a port-state or coastal state could take action against violations within an unspecified distance from its coast, the flag-state could also enforce the regulations. The only penalty that

PAGE 282

271 could be exacted by the coastal state was a monetary fine. On this issue of jurisdiction over pollution, the developing states tended to side with the maritime and flag-states against the coastal states. They did so because they thought the coastal state's increased regulatory power would harm their emerging commercial navigational interests. A/Conf .62/WP.8/Part III, Art. 20. 31. They (i.e. the texts) called for states to prevent and reduce land-based pollution, and for the establishing of global and regional regulations while taking into consideration regional and economic factors of developing states. They also called for the evaluation of the effects of pollution on the marine environment. In view of the opposition of coastal states to these provisions — as infringing on their sovereignty in offshore areas — they were necessarily vague. They also had to consider the view of most developing countries that economic development is more important than protecting the marine environment. A/Conf 62/WP.8/Part III. 32. A/Conf .62/C.3/L.13/Rev. 2. 33. A/Conf .62/C.3/L. 19. 34. A/Conf .62/C.3/L. 26. 35. A/Conf .62/WP.8/Part III. 36. Hollick, p. 312. 37. A month before the Spring session two groups of states began discussion on sea-bed issues. Both groups were composed of states with different interests including land-based producers fearful of states taking unilateral action to mine the sea-bed, developing states which hoped to mine the sea-bed, moderate developing states, and the United States and France. While the Committee was reviewing the Informal Single Negotiating Text, these groups continued their negotiations in private. The Brazil group, after agreeing on articles, sent their negotiated texts to Engo (the Chairman of the Committee) who discussed them with his group and then forwarded the items to the general committee with his initials. This practice was disrupted when Mexico, who was part of the Brazil group, revealed the secret meetings and accused the group members of betraying the Group of 77. The Algerian and Indian delegations launched a campaign against Engo blaming him and the developing states which had participated in the informal groups for deserting the Group of 77. As a result,

PAGE 283

272 the developing states which had been part of the secret meetings, had their positions undermined. Bernard H. Oxman "The Third United Nations Conference on the Law of the Sea: The 1976 New York Sessions," American Journal of International Law 71 (1977) pp. 247-269. 38. Also during the Summer session the United States offered several concessions which included granting the sea-bed authority the right to mine, establishing a system of banking sites, transferring mining technology to the authority, financing the authority, implementing a production limit for sea-bed mining and convening regular review conferences. In exchange for these concessions, the United States wanted guaranteed access, on a non-discriminatory basis, for states and companies. It also required changes in the composition of the council and voting system. Hollick, p. 316. 39. The land-locked/geographically disadvantaged states and others which had not been part of the Evensen Group were especially dissatisfied with the Informal Single Negotiating Text in this Committee. 40. Since many articles from the previous Text were supported, they were kept in the revised one; some articles were revised to indicate a need for amendment. Other articles needed more negotiation before an adequate compromise could be found. In the Spring session Jens Evensen formed an informal negotiating group to attempt to reconcile the landlocked/geographically disadvantaged states' interest in gaining access to the resources of the economic zone with the other states' interests. Although this group wrote some improved articles from the land-locked/geographically disadvantaged states' perspective, many differences still existed. 41. 1) The legal status of the economic zone and the rights and duties of states within the zone; 2) the delimitation of the boundary of the continental shelf and revenue sharing; 3) land-locked states access to the sea; 4) transit rights through international straits; and 5) boundary delimitation between opposite and adjacent states. 42. Hollick, pp. 317-318. 43. A/Conf 62/WP.8 Part II, Rev. 1. 44. Discussion on the marine environment was concerned with regulating land-based pollution, continental shelf

PAGE 284

273 pollution, ocean dumping and vessel-source pollution. The major discussion centered on vessel-source pollution and the rights of the coastal state to set standards and enforce them in the territorial sea and economic zone. 45. A/Conf 62/WP.8 Part III, Rev. l.,(Arts. 2, 3). 46. A/Conf .62/WP.8 Part III, Rev. 1., (Arts. 20, 23). 47. Hollick, p. 320. 48. A/Conf .62/SR. 77-81. 49. Ann Hollick, p. 324. 50. These texts written by Jens Evensen came out in early July. His method for finding compromise was to split the difference between the two extreme positions on an issue. The resulting texts provided for a parallel mining system. In case of disagreement the scheduled 20-year review would not automatically result in the elimination of the parallel system. The production limits on sea-bed mining of nickel allowed sea-bed production to supply 100% of the growth demand for 7 years and two-thirds of it afterwards. Chairman Engo, after conferring with his advisors in the Group of 77, altered the Evensen text. The resulting Informal Composite Negotiating Text was released after the conclusion of the sixth session. This Text differed considerably from the Evensen document. It provided access to sea-bed mining to contractors on condition of technology transfer and partnership with the Enterprise. No limits were set on the financial obligations of the contractors. Production limits on sea-bed mining were greater and the authority had the power to determine sea-bed production limits for all minerals and to regulate scientific research. The developed states' voting power was reduced. Shared revenues from sea-bed mining would go to peoples and states not party to the convention. If the review conference, which was to meet in 25 years was unable to reach an agreement, the parallel system would automatically become a unitary system. Bernard Oxman "The Third United Nations Conference on the Law of the Sea: The 1977 New York Session," American Journal of International Law 72, 1978, pp. 57-58. 51. The United States objected because of the following points: 1) it did not give assurance of access to

PAGE 285

274 potential miners in exchange for financing and acceptance of a parallel system; 2) it could be interpreted to mean that technology transfer by contractors and joint ventures with the international mining authority were preconditions of access; 3) the financial responsibilities of the contractors is ill-defined; 4) the artificial production limit on minerals is objectionable on principle and is more stringent than necessary to protect land-based producers; 5) the Sea-Bed Authority would have power to control all mineral production from the sea-bed; 6) it would give the Authority regulatory power over scientific research in the international area; 7) the voting system does not protect minority interests (the developed states) and allows the majority too much power; 8) peoples and states not party to the Convention would receive benefits from sea-bed production; 9) and if the review conference in 2 5 years was unable to reach agreement the regime would automatically become a unitary system in which the Enterprise would be the sole miner with the contractor excluded from mining except in joint ventures. 77 Dept. State Bull. 389 (1977). 52. Debate on the continental shelf continued, as well as on the delimitation of the boundary, revenue sharing in the area between the 20 0-mile limit and the outer edge. As states were unable to agree on delimitation, the Informal Composite Negotiating Text made provisions for coastal state control over the continental shelf, but did not specify a procedure for determining the limit. Nevertheless, the land-locked/geographically disadvantaged states along with some African and Arab states opposed extensive coastal state control over the margin. The issue of revenue sharing was partially resolved. The Text provided that the coastal state would pay 1% of its revenues in the 6th year of production and would increase to 5% by the 10th year. The desire of developing coastal states for exemption from this revenue sharing plan was met by exempting broad margin developing states which were net importers of minerals produced on their continental shelves. Since states continued to be evenly divided on the question of delimitation between opposite and adjacent states, the Informal Composite Negotiating Text maintained the previous formulation of the Revised Single Negotiating Text for using equitable principles and equidistance where applicable. The rights of land-locked/geographically disadvantaged states to the fisheries of neighboring states continued to be a contentious issue. Because agreement could not be reached, the Informal Composite Negotiating Text

PAGE 286

275 provisions kept some of the Revised Single Negotiating Text articles. The land-locked/geographically disadvantaged states were allowed access to the fisheries of neighboring states provided a) that the coastal state determine the surplus fish catch which the land-locked/ geographically disadvantaged states could take; and b) that bilateral, regional, or sub-regional agreements be negotiated. A/Conf 6 2/WP.10/Add. 1. 53. In marine pollution discussions, the same issues which had been stumbling blocks earlier in the negotiations continued as such: vessel-source pollution, coastal and port-state enforcement rights and setting of standards in the territorial sea. Ibid. 54. On the issue of vessel-source pollution, some coastal states — particularly Canada — wanted to increase the scope of coastal-state enforcement rights for environmental protection. Maritime states favored limiting coastal states' enforcement rights to regulations concerned with vessel discharge. The United States supported the Revised Single Negotiating Text provisions balancing coastal and maritime interests. Although there was some debate between the coastal and maritime states on extending port-state regulatory power, neither group was able to effect changes in the Revised Single Negotiating Text. The Informal Composite Negotiating Text articles on coastal-state-set standards (within the territorial sea and economic zone) were changed to allow it to enact and enforce standards for vessel-source pollution but not for design, construction, manning and equipping of vessels. A/Conf .62/C.3/SR.34. 55. The marine scientific research working group discussed the regime for scientific research, researching state obligations, tacit consent, coastal state rights in ongoing projects and dispute settlement. The regime for conducting marine scientific research included 1) the researcher fulfilling certain obligations, 2) the researcher asking for coastal state consent, 3) the coastal state granting consent under normal circumstances, and 4) the researcher being allowed to begin research if the coastal state did not respond within a certain time period, i.e. implied consent. A/Conf .62/WP. 10. Part XIII. 56. The options for dispute settlement were: the International Court of Justice, the Law of the Sea Tribunal, arbitration, and a special arbitrating tribunal. In cases of disagreement on the type of dispute settlement, the parties would be subject to arbitration.

PAGE 287

276 Exceptions to compulsory dispute settlements were included. A/Conf 62/WP.10.Part XV. 57. At the opening of the seventh session, the Conference first had to decide whether to allow H.S. Amerasinghe to continue as President even though, due to a change of government, he was no longer part of the Sri Lanka delegation. In contrast to the African and Asian groups, the Latin American delegations, fearing he would attempt to reduce coastal state rights, objected to his continuation in office. After discussion, a vote was taken confirming Ambassador Amerasinghe as president — 75 voted in favor (including the United States) 18 against (the Latin American states) with 13 abstentions, and 21 not participating — primarily the East and West Europeans who felt the matter should be decided by consensus. A/Conf .62/SR.82 and 88. 58. A/Conf .62/SR. 89-94 59. Negotiating Group 1 on the "System of exploration and exploitation and resource policy," chaired by Frank Njenga, of Kenya, produced new texts that — although not representing a consensus — were closer to a compromise than the earlier ones. They included the following provisions: Although technology transfer would no longer be a pre-condition for obtaining a contract, the contractor had to agree to transfer technology to the Enterprise on reasonable commercial terms subject to compulsory arbitration. Failure to transfer technology could result in the site being taken away from the contractor. Similar provisions were made for technology transfer to developing states. The Engo text provision for a unitary system to be established if the review conference failed to reach agreement was eliminated; instead, the assembly would stop issuing new contracts. The right of the Authority to regulate scientific research in the international area was also excluded. Outside the official negotiations, the United States and Canada formulated production control measures on nickel; sea-bed mining of nickel would be allowed to fulfill 60% of the growth in nickel consumption for 25 years. Although the land-based producers favored this formula, the West European states opposed it. Negotiating Group 2 dealt with the financial arrangement for the Sea-bed Authority under the direction of T. Koh of Singapore. The essential problem was to balance the developing states' desire to ensure adequate financing with the developed states' concern to establish a fee structure which would not hamper investment.

PAGE 288

277 The negotiations resulted in provisions for an application fee, an annual fee to be credited against royalties, and a system of either royalty payments only or royalty payment with profit sharing. In the subsequent New York session, percentages were established for the financial obligations of the contractor. Most developed states considered these to be excessive. Negotiating Group 3 on "Organs of Authority, their composition, powers and function" was chaired by P. Engo. It failed to write texts on the issues of the composition of the council, rules for voting, and the respective roles of the assembly and the council. It changed a few minor provisions in the Informal Composite Negotiating Text clarifying the advisory nature of the subsidiary bodies. Negotiating Group 4 considered the "Right of access of land-locked and geographically disadvantaged states to the living resources of the economic zone" under the direction of S. Nandan of Fiji. The resulting text allowed the land-locked/geographically disadvantaged states to harvest part of the surplus fish in the economic zone with preference given to the developing states. It defined geographically disadvantaged states as those with "special geographical characteristics" and dependent on living resources in their neighboring states' economic zones. The land-locked/geographically disadvantaged states were dissatisfied with these changes but were unable to gain further concessions. Negotiating Group 5, chaired by C. Stavropoulos of Greece, discussed the "question of settlement of disputes relating to the exercise of the sovereign rights of coastal States in the exclusive economic zone." The land-locked/geographically disadvantaged and the distant-water fishing states sought compulsory and binding dispute settlement for cases involving access of other states to the living resources of the economic zone. Coastal states, on the other hand, objected to any compulsory settlements for fishing controversies in their economic zones. The conditional compromise called for compulsory but not binding arbitration if the coastal state had 1) failed to conserve and manage the fisheries to the point of endangering them, 2) refused to establish the allowable catch of its own fishing capacity for fish that other states wanted to harvest, 3) not allocated the surplus fish as prescribed. The Soviet Union and Japan — the largest distant-water fishing nations — objected to this compromise because it did not ensure access to the fisheries within other states' economic zones. The coastal states maintained their opposition to any binding arbitration procedure. Any

PAGE 289

278 further compromises on this issue were dependent upon the outcome of negotiations in Groups 4 and 6. Negotiating Group 6 which had a dual task — to define the outer limit of the continental shelf and to settle the question of revenue sharing beyond 200 miles — was unable to resolve the first issue and spent little time on the second. During these negotiations, three different views emerged on the delimitation of the continental shelf. The broad-margin states supported a limit of either 60 miles beyond the continental slope, or one based on the thickness of the sediment from the slope. Arab states, acting for the land-locked/geographically disadvantaged states, advocated delimiting the continental shelf to 200 miles. The Soviets proposed that the continental shelf not extend more than 100 miles beyond the 200-mile economic zone. The landlocked/geographically disadvantaged states were willing to accept a broad-margin approach to the shelf provided that they obtained access to fisheries in the economic zone — an issue which was being unsuccessfully negotiated in Group 4 Negotiating Group 7 was to establish methods of delimiting boundaries between opposite and adjacent states and ways of settling disputes over boundary delimitation. States, as before, were divided between those favoring the equidistance method and those favoring equitable principles. States also could not agree on whether dispute settlement should be compulsory or not. A/Conf 62/RCNG/l, A/Conf 62/RCNG/2 60. A/Conf .62/C.2/SR. 52-56. 61. Agreement was reached on several revisions: establishing ship routing systems to safeguard the environment, increasing the right of the coastal state to enforce anti-pollution measures in the territorial sea and economic zone, expanding the duty of the coastal state to protect endangered species and fragile ecosystems. Other proposals empowering the coastal state to arrest a violating vessel and to exact more than a monetary fine were opposed by many developing and shipping states. On the issue of scientific research, the United States submitted amendments to the Informal Composite Negotiating Text in an attempt to restore portions of the Text. In this endeavor, the United States had the support of other developed states and Mexico; the Soviet Union had agreed not to oppose these amendments which were to be discussed in the following session. A/Conf 62/C. 3 /SR. 35-3 9. 62. A/Conf 62/SR. 82-109.

PAGE 290

279 63. Both the negotiating groups and the Committees continued their work during the session. Since sea-bed mining issues continued to be the most contentious, a Working Group of 21 was created to deal with the conditions of exploration and exploitation, financial arrangements, production controls, the respective roles of the Assembly and Council of the Sea-bed Authority, and settlement of disputes. Negotiating Group 1, dealing with the system of exploration and exploitation, wrote new texts on a variety of issues such as sharing of benefits, scientific research, nondiscrimination, title to minerals, applicant qualifications and selection, technology transfer, joint arrangements, and activities conducted by the Authority. Although states disagreed on a number of these provisions, their inclusion indicated substantial progress toward a final agreement. The United States considered some of these provisions — the requirement that technology transfer be dependent on the nonavailability of technology in the market and more specific applicant selection requirements — to be improvements. Working Group 21 within negotiating Group 1 formulated a new balance for sea-bed and land-based production but objections primarily from Canada prevented its inclusion in the text. Negotiating Group 2 on financial arrangements wrote texts for the Informal Composite Negotating Text/Rev. 1 and a report (NG 2/12) in the Summer meeting. The latter was more flexible in revenue sharing provisions and met the approval of the developed states. The Informal Composite Negotiating Text/Rev. 1 on financing the supra-national mining arm of the Sea-Bed Authority was opposed by the developed states because of the proposed financial condition: the supra-national mining arm was to be financed half in guaranteed loans and half in interest free loans. Negotiating Group 3 and Working Group 21 in discussing the organs of the Authority, changed some provisions in the Informal Composite Negotiating Text/Rev. 1 concerning privileges and immunities of the Enterprise, suspension of mining privileges in the event of harm done to the environment, the nature of the Secretariat and of the Sea-bed Disputes Chamber and limits of the Authority's decisions. In the Summer session, Working Group 21 further discussed the issues cf decision-making in the International Sea-bed Authority including the respective roles of the Council and Assembly, the make-up of the Council and voting procedures in the Council. The resulting new texts (Working Group 21/2) maintained the Assembly's role as the "supreme organ" but within the context of all members being represented

PAGE 291

280 in the Assembly. Other articles specified that the Assembly possessed only those powers and functions expressed in the Convention and that the Council and Assembly would not interfere with each others powers. Opinions on the composition of the Council were divided among states seeking increased representation for specific groups. The United States proposed that the Council equally represent states which produced and consumed the minerals to be mined from the sea-bed. To the developed states, the important issue in decisionmaking in the Council was ensuring that the Council would not stop mining contracts which should be granted according to the accepted 3/4 vote in the Assembly on the plan of activity. The United States was especially concerned with this issue and attempted to change the number of votes, in the Council, required to block approval from 7 or 9 to 5 Dispute settlement was also discussed by a group of legal experts under the Chairmanship of Dr. Wuensche. This group wrote a number of texts for the Informal Composite Negotiating Text/Rev. 1 in matters of selection of members to the Sea-bed Disputes Chamber of the Tribunal, provisions for an ad hoc chamber to address problems between states, disputes between states and companies, limiting the Authority's jurisdiction, and commercial arbitration. Bernard Oxman,"The United Nations Conference on the Law of the Sea: The Eighth Session (1979)," American Journal of International Law 74 (1980) pp. 1-47. A/Conf .62/C.1/SR.45. 64. Indicative of the developed states' views, the United States considered the following issues to be the most important remaining problem areas in the sea-bed mining provisions of the Informal Composite Negotiating Text/ Rev. 1: 1) sharing benefits with "peoples who have not attained full independence or other self-governing status;" 2) activities in the sea-bed area to be implemented as specifically provided; 3) the figures for production limits; 4) the moratorium on issuing licenses for sea-bed production if the Review Conference to be held in 20 years failed to agree; 5) voting balance in the Council; 6) arbitration procedures for commercial contractual disputes; 7) sponsorship of a contractor when nationality and control are separate; 8) the technology transfer clause providing for the same obligation to transfer technology to developing states as to the Enterprise; 9) the priority status given to the Enterprise in the application selection process; 10) the failure to clarify that joint arrangements with the Enterprise have the same security of tenure as other contracts; 11) the failure to specify

PAGE 292

281 that the Enterprise is to pay the same as the contractors for nonreserved sites; 12) the failure to require payments and guarantees to be in convertible currencies; 13) the tax immunity for the Enterprise. United States Delegation Report, "The Third United Nations Conference on the Law of the Sea," March 19-April 27, 1979. 65. In the Summer session a complication arose because this formula could be interpreted as allowing states located on mid-oceanic ridges to claim large areas of the ocean. Therefore delegates attempted to write a definition distinguishing between oceanic and continental shelf ridges. The Informal Composite Negotiating Text/ Rev„ 1 provision for revenue sharing on the continental shelf beyond 200 miles was changed slightly — it increased the maximum rate that the coastal state would pay to 7% to be reached in the 12th year of production. Developing coastal states still sought exemption from the revenue sharing obligation for continental shelf minerals of which they were net importers. The United States proposed that all developing coastal states, regardless if they were net importers, would have a choice of whether or not to participate in the revenue sharing. Working Group 7 failed to reach a compromise on the determination of boundaries between opposite and adjacent states. The outstanding issues included the rules for delimitation of boundaries, interim measures to be used prior to agreement, and dispute settlement procedures. States, as before, continued to disagree on whether equitable principles or equidistance should be used for delimitation and whether compulsory and binding dispute settlement should be instituted. At the end of the Summer session, compromise texts failed to emerge on these issues and no texts were included in the Informal Composite Negotiating Text/Rev. 1. A/Conf .6 2/C.2/SR.57-5 8. Oxman, pp. 7-8, 19-24. 66. The United States, with Soviet approval, convinced Chairman Yankov to include new provisions in his report to the Plenary. Although this did not significantly change the provisions granting consent for scientific research, some points were clarified such as the absence of diplomatic relations did not mean that relations were abnormal and thus did not automatically exclude granting of consent. An understanding was attained on the question of research on the shelf beyond 200 miles — the coastal state's consent was required only in areas which it had designated as sites of potential or actual exploration. The question of publication of scientific research was further

PAGE 293

282 detailed — the coastal state was given the right to require publication of results as a precondition for giving the researching state consent to conduct its research. Consideration of the other issues was deferred until the 1980 session. A/Conf .62/C.3/SR.40. A/Conf 6 2/C.3/SR.41-4 3. 67. They were: amendment or revision, reservations, relation to other conventions, entry into force, transitional provisions, denunciations, and participation in the Convention. A/Conf .62/SR. 120. 68. Agreement was still not reached on important issues — establishing a Preparatory Commission for the International Seabed Authority, ensuring that mining companies' investments would be protected prior to the treaty coming into force, determining if groups other than states can participate in the Convention, and settling the issue of delimitation of the economic zone and continental shelf between opposite and adjacent states — which was deferred until the 10th session. Bernard Oxman, "The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980)," American Journal of International Law 75 (1981) pp. 211-25 6. 69. The provision for a moratorium on sea-bed mining, if the Review Conference to be held in 20 years was unable to agree within 5 years, was deleted; this provision had been strongly objected to by the developed states. It was replaced by a provision allowing amendments, ratified by a 2/3 majority, to modify the sea-bed mining regime. Changes were made in the technology transfer obligations. Mining contracts for developed states would require only the transfer of technology, not available on the market, on fair and reasonable commercial terms to the Enterprise for 10 years after the Enterprise began production. The requirement to transfer technology to developing states was changed so that if the Enterprise already possessed the technology, the contractor would not be obligated to transfer it to the developing state. This remained one of the most controversial clauses. The anti-monopoly clause was modified to include only the production of manganese nodules from non-reserved sites and to limit the area of the sea-bed which can be exploited at one time by a state to 3% rather than 2%. Joint ventures with the Enterprise were specified to have the same tenure security as other contracts. The penalty of suspension or termination of a contract was replaced by a monetary fine for the most serious cases. The Enterprise, now described as autonomous and commercial,

PAGE 294

283 would be financed in convertible currency and the state would know the extent of its financial obligations prior to signing the Convention. Interim production limits would not lower production beyond a certain minimum and would be more flexible to allow for yearly variations. Commercial arbitration for contract disputes would be provided at the request of the contractor. The most crucial issue negotiated in this session was voting in the Council of the Sea-bed Authority. Although settled in earlier texts, the composition of the Council was connected to the voting issue. The Council was to be composed of 36 members including four states with the largest investments in sea-bed mining (one of which to be from the East Europe group) ; four states which have consumed or imported more than 2% of total world consumption or 2% of total world imports of the minerals to be produced in the Sea-bed Authority; four states which are major net exporters of the minerals including two whose economies are substantially affected by the exports; six states from developing states with special interests including those with large populations, land-locked and geographically disadvantaged ones, major importers of the minerals, potential producers, and least developed ones; and to maintain an equitable geographical distribution, of the 18 states to be elected, one would be elected from each geographical region. The voting compromise was based on establishing a three-tiered voting system for substantive issues: on issues where there was no need to protect minority interests a 2/3 majority was required; on those which are executive or operational and need broad support a 3/4 majority with all states voting was required; and changes in the rules, regulations, and procedures of the Authority required a consensus of the Council. Most developed state objections to Committee I texts at the end of 1979 were accommodated in the 1980 negotiations. A/Conf .62/WP. 10/Rev.2, Part XI. 70. The precise delimitation of the continental shelf was clarified to restrict jurisdiction to 350 miles over those submarine ridges which are not part of the continental margin. Negotiating Group 7 issued a new text on the delimitation of the economic zone and continental shelf between opposite and adjacent coasts which revised the Informal Composite Negotiating Text /Rev. 1 provision to include a new reference to agreements being in "conformity with international law" as well as the earlier equitable principles and median line combination. The new text on conciliation of delimitation disputes allowed a state to accept or refuse compulsory third-party arbitration. A state was required to submit to nonbinding conciliation in the time before the

PAGE 295

284 Convention comes into effect and if the dispute was not settled "within a reasonable period of time." It also included provisions to strengthen measures to protect whales and other cetaceans through appropriate international organizations. These marine mammals were excluded from the full utilization principle which is applied to other fish conservation measures. Innocent passage was also further defined to include its temporary suspension during weapons exercies. During these negotiations, some states attempted to add an amendment requiring prior notification to and authorization by the coastal state for innocent passage of warships through the territorial sea. It was clear that the maritime states would not agree to restricting passage. A/Conf .62/WP. 10/Rev.2, Part II, Part V. 71. Although Committee III was thought to have completed the writing of texts on marine scientific research, during this session states re-opened discussion on some issues. As a result, the area of the continental shelf was further defined. Also the different circumstances in which a coastal state has the right to call for "suspension" or "cessation" of research was clarified. Coastal states would also have four months to object to research projects. A/Conf .62/WP.10/Rev.2. Part XIII. 72. They were divided into three sections: the general obligation to settle disputes peacefully and its relationship to other agreements; compulsory submission to conciliation procedures; and limitations and optional exceptions to the dispute settlement procedures. With this re-structuring, the negotiations on dispute settlement were completed except for a few technical problems A/Conf .62/WP. 10/Rev. 2. Part XV. 73. The Informal Plenary also wrote five new general provisions: Article 1 required states to undertake their obligations in good faith and in doing so not to abuse rights. Article 2 on peaceful uses of the seas obliges the state to "refrain from any threat or use of force" inconsistent with international law as stated in the United Nations Charter. Article 3 clarifies that a state is not required to disclose information which might be contrary to its security. Article 4 on archaeological and historical objects found at sea confirms the duty of states to protect such objects and to prevent their removal from the 24-mile contiguous zone but disclaims any effect on private law. Article 5 states that provisions for liability and responsibility for damage does not affect the use of existing or future international rules. A/Conf .62/WP. 10/Rev. 3, Part XVI.

PAGE 296

285 74. A/Conf .62/WP.10/Rev. 3, Part XVII. 75. Oxman, 1981, pp. 254-255. 76. A/Conf .62/WP. 10/Rev.3, Preamble. 77. The first weeks of the 10th session were taken up with the election of a new president, following the sudden death in December, 1980, of /Ambassador Hamilton Shirley Amerasinghe who had been President of the Conference and of the Preparatory United Nations Sea-Bed Committee. The Asian group was responsible for presenting a nominee for the presidency. Christopher Pinto of Sri Lanka, Satya Nandan of Fiji and T.T.B. Koh of Singapore were considered. After consultation within the group, Ambassadors Pinto and Nandan withdrew in favor of Ambassador Koh who was elected by acclamation on March 13. 78. A/Conf .62/Bur.l3/Rev. 1. 79. United States State Department, Press Release March 2, 1981. 80. Bernard Oxman, "The Third United National Conference on the Law of the Sea: The Tenth Session (1981)," American Journal of International Law 76 (1982), pp. 1-13. 81. Statement by Mr. Inam Ul-Haque, Informal Plenary, August 10, 1981. 82. Statement by Ambassador Jens Evensen, Informal Plenary, August 10, 1981. 83. Statement by Deputy Foreign Minister Semyon P. Kozyrev, General Committee, August 3, 1981. 84. Ul-Haque. 85. He stated that the following provisions were objectionable to the United States: 1) "burdensome international regulation" is placed on the mineral resources of the sea-bed and sub-soil beyond national jurisdiction; 2) the Enterprise, a supra-national mining company, would possess "significant discriminatory advantages relative to the companies of industrialized countries;" 3) the technology transfer provisions compel the sale of technology which could be security-related; 4) the production limits on sea-bed mining are contrary to free competition and could discourage potential

PAGE 297

286 investors and create artificial scarcities; 5) the onenation, one-vote Assembly is the "supreme" organ and controls policy decisions in the Council in which the United States will have only one seat while the Soviet bloc would have three seats; 6) the Review Convention can ratify changes in sea-bed exploitation with a twothirds majority and even if the United States were to oppose these changes it would still be bound by them unless it denounced the entire Treaty; 7) the revenuesharing obligations on sea-bed mining companies would increase the costs of mining; 8) developing states that are net importers of hydrocarbons are exempt from revenue-sharing on their production of these minerals from their continental shelf beyond 200 miles; 9) provisions allow liberation movements such as the PLO to share the revenues of the Sea-bed Authority; 10) there are no provisions protecting preliminary investments in the interim before the Convention comes into effect. Testimony by Ambassador James L. Malone before the SubCommittee on Oceanography of the House Merchant Marine and Fisheries Committee, April 28, 1981. 86. These included a need for more explicit guarantees of a seat for the United States in the Council of the Authority, more definite methods of preventing national liberation groups from sharing the revenues of the Seabed Authority, protection of preliminary investments made before the Convention goes into effect, changes in some of the requirements for technology transfer, increasing the number of ratifications required for amendments to go into effect from the Review Conference, changing the exemption for net importers of hydrocarbons for revenue-sharing payments on the continental shelf beyond the 200-mile limit, adding a clause encouraging sea-bed mining and setting a definite date for the start of the production ceiling formula. Testimony by Ambassador Elliot L. Richardson, House Foreign Affairs Committee, May 14, 1981. 87. The Working Group of 21 continued its discussion of provisions to be applied to the Preparatory Commission. At the close of the 10th session, the Conference moved toward the final adoption of the Text. It raised the status of the Text by deleting the Informal Text designation but still maintained the document's negotiating status and allowed for change when it improved the possibility of reaching consensus. 88. The final compromise reached on the Preparatory Commission included designation of its responsibility to draft rules and regulations for sea-bed mining, to register pioneer miners, to take measures to ensure the early and effective operation of the Enterprise and to study the effects of sea-bed mining on the market.

PAGE 298

287 Costs of operating the Preparatory Commission will be covered by the regular United Nations budget. Procedural rules will be adopted according to consensus and failing that, by a two-thirds vote. Only those states which sign the Convention can actively participate in the Preparatory Commission while those only signing the Final Act can participate in discussion but not with full decision-making status. 89. The issue of participation in the Convention by nonstates divided the participants into three categories with varying requirements for and levels of participation. Inter-governmental organizations could participate if the majority of their member states had signed the Convention, if the member states gave the organization competence over issues which the Convention regulated, and if the organization could participate as long as one state remained in the Convention. Self-governing associated states and territories were allowed full participation rights in the Convention. National liberation movements would be allowed to participate in the Convention only as observers in the Preparatory Commission and in the Authority's organs. 90. The most intense negotiations concerned preparatory investment protection. Developed countries wanted to ensure that their mining companies' investments would be protected in the interim before the Treaty came into force. They wanted guarantees for continued exploration and commercial production in the same areas. The developing states' major concern was to keep these provisional mining regulations from replacing the negotiated sea-bed mining system. Proposals were submitted by the developed states and a counter-proposal by the Group of 77. In an attempt to find a basis for negotiations, the Group of 11 composed of smaller industrialized states — Canada, Australia, New Zealand, Norway, Sweden, Denmark, Finland, Iceland, the Netherlands, Ireland, Switzerland, and Austria — submitted a compromise proposal. Although it came close to the objectives outlined by the Reagan Administration, it was rejected by the United States. The resulting compromise incorporated parts of the proposals submitted by the sea-bed mining states, the Group of 77, the Group of 11, and President T. Koh. Provisions were made for eight specified mining entities — four consortia and four sponsoring countries — to be considered pioneer investors. They must have spent $30 million by January 1, 1983, of which 10% was spent on one site. The four consortia are composed of companies from Belgium, Canada, Federal Republic of Germany, Italy, Japan, the Netherlands, the United

PAGE 299

288 Kingdom, and United States. The four countries sponsoring pioneer mining ventures are France, Japan, the Soviet Union, and India. A developing state can qualify as a pioneer investor by meeting the same financial obligations. Each pioneer area is restricted to 150,000 square kilometers and after eight years at least half of it must be relinquished. Each investor must pay an application fee of $250,000 initially and an annual fixed fee of $1 million payable when the Convention goes into force. Each pioneer investor must be sponsored by a signatory state to the Convention; the signatory state is responsible for ensuring that the miners comply with the regulations. Pioneer investors will have priority in receiving authorization for production. They will be required to train personnel, to transfer technology in the interim, to conduct exploration for the Enterprise on a cost reimbursable basis. Once the Convention goes into effect, any mining company sponsored by a state which has not ratified the Treaty within six months after the Authority had considered its application must find another sponsor in order to keep its mining rights. 91. Oxman, 1982, pp. 14-23.

PAGE 300

CONCLUSION Consensus on international law helps to prevent conflict and to establish agreed upon rights and obligations. Only in a stable legal environment based on shared assumptions can nations conduct their activities. Throughout history, law of the sea has been in a state of flux, evolving as circumstances change. It has gone through periods of relative stability — when most nations agreed upon basic principles governing ocean use — and periods of instability — when nations made competing jurisdictional claims and consequently new regimes began to evolve. Although nations have sought stability in ocean law, they have wanted to establish a legal order which corresponded to their circumstances. As changes occurred in these circumstances — in man's ability to exploit the oceans, in states' perceptions of their economic and security needs, and in the world power balance — changes naturally occurred in the type of legal regime that states sought. Early ocean law was based upon a state's ability to control the seas through the exercise of force. Although legal publicists developed theories regarding the nature and extent of state jurisdiction, they did so after the actual act of appropriation to justify the extension of control. 289

PAGE 301

290 They did not seek international agreement concerning the limits of jurisdiction but made unilateral claims, based on their ability to enforce them. This trend toward closed seas reached its apex in the 15th century when Portugal and Spain claimed control of all the oceans in the Treaty of Tordesillas (1494) This far-ranging Iberian claim was soon challenged. The emerging mercantile powers — England, France, and the Netherlands — contested the closed seas policy of Portugal and Spain. Since the oceans provided a transportation network for the exploration, conquest, colonization, and economic exploitation of the non-western world, competition among the West European states for control of global sea lanes intensified. Conflict inevitably arose. Instability increased in the absence of a legal regime governing ocean use. In an attempt to establish the legal right of the Dutch to navigate and fish the oceans, Grotius promoted the doctrine of freedom of the seas. Ironically, when first posited, the British (who soon were to be its major proponents) opposed this doctrine because they wanted to maintain exclusive control over their adjacent fisheries. A debate ensued between proponents of freedom of the seas and those of closed seas. Out of this discussion, the recognition of the need for both control over surrounding seas and freedom of navigation grew. The coastal state objective of protecting its adjacent seas and the maritime state requirement for freedom of

PAGE 302

291 navigation were reconciled by the development of a narrow territorial sea in conjunction with freedom of the high seas. Even though in the 17th century most states recognized a territorial sea, there was no consensus on the method for determining the boundary. Of the three major methods — the cannon-shot rule, the line of sight doctrine and the Scandinavian league — the cannon-shot rule was the most widely practiced in the 18th century. Since the major maritime states adhered to the cannon-shot rule and most publicists supported its legality, it provided a fairly stable legal regime for the territorial sea. Eecause it was not an uniform distance — due to variation in cannon-shot range—it was gradually replaced in the 19th century by the three-mile territorial limit. Needing a more precise measurement, Britain instituted the three-mile limit for fishing and customs zones, and later for the territorial sea. Since Britain — the dominant power — enforced the three-mile limit, most states accepted it despite attempts by some states to establish broader limits. This was a period of relative stability in ocean law. At the turn of the 20th century, Britain still maintained the legality of the three-mile limit but a period of instability was foreshadowed by many attempts to increase seaward jurisdiction for the territorial sea and contiguous zones. Although still dominant, Britain's power was beginning to wane and with it, its ability to enforce the threemile territorial sea. Various disputes arose over

PAGE 303

292 conflicting claims to territorial seas and fisheries — many of which were brought before international tribunals. World War I created a change in the world order bringing to the forefont trends which were to affect the development of law of the sea. The collapse of the European empires and subsequent decolonization fostered a period of instability in international relations. An effort to counteract this tendency was made by encouraging global cooperation through the establishment of international forums. In this context, newly emergent states sought democracy and equal standing. Recognizing the erosion of the three-mile limit, the international community attempted to codify international law dealing with the territorial sea and contiguous zone limits. In 1930 the Hague Conference met in an effort to reach agreement on these limits but was unsuccessful. By this time, states with a coastal orientation had made various jurisdictional claims and were unwilling to curtail their activities and perceived rights. These unilateral claims created more instability in law of the sea. World War II further reorganized the global power structure which in turn affected the legal regime for the oceans. The United States and the Soviet Union, possessing conflicting ideologies, emerged as the two major powers. During this period also, the process of decolonization and the concomitant trends begun after World War I intensified. Other non-political changes included the post-World War II

PAGE 304

293 population explosion which increased the demand for food and resources and the technological advances developed in World War II which allowed greater exploitation of ocean resources. Although still used as a transportation network, the sea was increasingly perceived of as a new economic frontier. Despite the fact that the United States had become the staunchest supporter of a three-mile territorial sea, it unilaterally made the most extensive contiguous zone claims over its continental shelf and fisheries in the Truman Proclamation (1945). This Proclamation was indicative of the extent to which the United States had attained power. It felt that it could make such a far-ranging claim without fear of reprisal. The United States wrongly thought that extending contiguous zone claims would not affect the nature of the territorial sea or cause international repercussions. Other states reacted to this Proclamation, making even more far-ranging claims which led to even greater uncertainty and conflict in the international arena. This proliferation of claims in conjunction with the political, demographic, and technological changes following World War I and II created an unstable legal regime. In an attempt to establish an internationally acceptable order regulating the territorial sea, the high seas, the continental shelf, and fishing and conservation, the first UNCLOS met in 1958. It was unable to define the breadth of the territorial sea and contiguous zone. Therefore, UNCLOS II

PAGE 305

294 met in 1960 to further discuss these controversial issues. It also failed. The inability of these two conferences to reach agreement provoked states to assert increasingly greater jurisdiction over both the territorial sea and contiguous zones. Exacerbating this tendency were the technological advances which allowed man to intensify the traditional uses of the seas — fishing and navigation — and to develop nontraditional uses such as mining the continental shelf. The tension between coastal and maritime interests increased in the rush to gain access to oceanic resources. Recognizing the need to establish a consensus on the basic issues of the breadth of the territorial sea and the related issues of transit through straits and fishery zones, the United States and the Soviet Union initiated the idea for a third UNCLOS Adding impetus to the movement for a conference, Ambassador Pardo of Malta proposed before the United Nations General Assembly the common heritage of mankind (an idea which some attribute to Grotius) and its implementation in the establishment of an international regime for the sea-bed beyond national jurisdiction. The United Nations adopted this Resolution in 1967. In the preparatory meetings for the Conference it became apparent that the primary tension was between the developed and the developing states. Despite the United States and the Soviet Union's desire to separate discussion of the sea-bed regime from the territorial sea and related issues, the lesser powers — primarily developing states many of which had only recently

PAGE 306

295 become states — voted to convene a Conference to deal with all aspects of ocean use. Their emphasis showed the growing perception of the oceans in a new economic light — as a supplier of resources. The developing world saw access to the resources of the sea-bed as an answer to their economic problems of development. This initiative for a "package deal" in the Conference was designed to increase developing states' leverage in gaining concessions on the deep sea-bed mining regime in exchange for transit passage through international straits and other issues of vital importance to the developed world. UNCLOS III convened in December 1973. It attempted to reach a consensus on the regulation of all ocean uses. For the first three years, it concentrated on all issues of ocean law. By 1976 consensus or near-consensus had been reached on most traditional aspects of offshore jurisdiction. Though work continued on all outstanding issues, in the period 1977-1982, the Conference concentrated on the deep sea-bed mining regime — the most controversial and ground-breaking aspect of the Conference's work. At the close of the 1980 negotiations, consensus had been reached on most issues dealing with the deep sea-bed mining regime: it provided for a parallel system of mining to allow developing states (through the Enterprise) as well as mining entities to participate equally in the exploitation of the resources; developed states would supply loans and transfer technology to the Enterprise.

PAGE 307

296 In 1981 the new United States Administration of President Reagan called for a policy review on law of the sea issues. It subsequently rejected, primarily on the theoretical grounds that it was contrary to the system of American free enterprise, the deep sea-bed mining provisions of UNCLOS III. In so doing, it rejected the package deal which included agreement on other issues vital to American interests. Even delegations — including Reagan-appointed members of the United States Delegation — which had reservations concerning some provisions on sea-bed mining protested Reagan's unilateral rejection of 15 years of negotiations. For the first time, the consensus system was abandoned on substantive issues because the United States demanded a vote on the Convention to formalize its disagreement. It was adopted 130 to 4, with 17 abstentions. (The four states voting against it were the United States, Venezuela, Turkey, and Israel.) The Final Act was signed by the United States. This did not legally obligate the United States to the provisions but merely indicated that the United States had participated in the Conference and was eligible to observe but did not possess full decision-making status in the Preparatory Commission. Signing of the Convention began December 10, 1982. The UNCLOS III marks a significant departure from previous attempts to write international law of the sea. Its impetus was from the crucial technological advances which created a new perception of the oceans as an economic

PAGE 308

297 frontier. Its system of operations was rooted in the changes resulting from World War I and II in the global power structure, primarily decolonization and democratization. Although in earlier times publicists debated the legality of certain issues, states did not meet together to find a common basis of law; instead, powerful states dictated the law by unilateral action or concluded treaties V7ith like-minded states. Even though the earlier Conferences were multi-lateral attempts to determine agreement on law and to codify it, they were not as global in nature as UNCLOS III. In this Conference, over 150 nations participated on an equal basis — one-nation, one-vote — to write new legal regimes. For the first time — a land-mark in international democratization--lesser powers were able to influence law of the sea policy. Many of these states had just recently gained independence but were nevertheless accorded an unrealistically equal weight in the negotiations. That this could happen was indicative of the general process of democratization in international relations. Connected to democratization, another trend in international relations — regionalism — was apparent in the workings of the Conference. Smaller, less developed states grouped together to promote their common self-interest and increase their power relative to that of others. Since they lacked other means of influencing opinion, they established a common front on certain issues and voted as a group.

PAGE 309

298 The land-locked/geographically disadvantaged states, a group of both developed and developing states, for the first time had a say in determining international law of the sea. Before UNCLOS III, they had no input into these matters, but with the development of the common heritage concept they gained equal rights to the oceans. In this first internationally represented Conference on law of the sea, the major tension was between the developed and the developing states. The developing states pressed for acceptance of the common heritage principle and the accompanying sea-bed mining regime in exchange for their agreement on issues of importance to the developed states — primarily the United States and the Soviet Union. The ideological and political differences of the super-powers became secondary to their common interests as developed, maritime states. Significantly, economic considerations outweighed ideological ones. Another unique aspect of UNCLOS III was that it attempted to write new laws rather than codify existing ones. Technological advances had allowed greater exploitation of ocean resources but no laws existed governing these uses. Therefore the Conference had to reach agreement on the creation of future legal regimes. These issues were tied into a package deal for all uses of ocean space which complicated and slowed down the work of the Conference. The fact that eventually over 150 states agreed on 446 articles is remarkable.

PAGE 310

299 This Conference also developed a new method of negotiation based on consensus. Each article was discussed, written, and revised until agreement among all states was reached. This process for determining international policies was based on the assumption of the equality of states. Implicit in Reagan's rejection of the Draft Convention was his rejection of the consensus system. Throughout history, the perception and use of the sea has changed from that of a transportation network to a resource mine of potentially great economic significance. Its importance has steadily increased especially following the technological advances which made possible the exploration of the deep sea-bed. This trend is likely to continue in both peace and war. The oceans— three-fifths of the earth's surface — will continue growing in importance and will play a larger role than in the past. As the uses of the oceans intensify, and the number of states involved in oceanic exploitation and navigation increase, the need for consensus on laws governing traditional and non-traditional uses will also increase. In UNCLOS III, as in previous attempts to reach agreement on law of the sea, there existed a tension between the maritime states' need for freedom of the seas and the coastal states' desire to control their adjacent waters. This tension was initially resolved by the development of a legal regime composed of a narrow territorial sea and freedom in the high seas. The breakdown of this regime began

PAGE 311

300 when coastal states extended their control over the high seas and thus jeopardized the freedom of the seas. The previous stability was gone and the search for another legal order began. The attempt by UNCLOS III to establish a new legal regime for the seas was different from previous ones because it was based upon the assumption of equality of states. This idea developed as a consequence of the two World Wars and the subsequent decline of the super-powers relative to the rise of regional-state interest groups.* States which previously had little impact on the formulation of law of the sea were able to influence the law-making process in UNCLOS III. This is not to say that international cooperation based upon state equality has replaced crude force. The super-powers through their superior ability to enforce their claims still possess a dominant voice in the determination of law of the sea. (The Reagan Administration's rejection in 1982 of the Law of the Sea Convention is an indication of the continuing importance of power politics.) Despite the existence of power politics, the attempt by UNCLOS III to make the moral vision of state equality a practical reality has enhanced the authority of international cooperation. *For a discussion of the role of power politics in history, see William Woodruff's The Struggle for World Power: 1500-1980, especially the Epilogue.

PAGE 312

GLOSSARY Anadromous: fish species which spawn in inland waters but spend most of their life at sea Archipelagic State: a nation made up of a group of islands which form an intrinsic geographical, economic, and political entity or have been historically regarded as such Authority, International Sea-Bed: the agency proposed by the Convention to regulate and administer deep sea-bed mining; composed of the following bodies: Assembly: policy setting organ composed of all states approving the Treaty Council: executive organ which monitors the sea-bed mining operations and has final say over the activities of the Enterprise Enterprise: the supra-national mining arm of the Authority Preparatory Commission: a committee to lay the groundwork for the establishment of the International Sea-Bed Authority Baseline: the line established along the shore of a state from which national jurisdiction zones are measured Contiguous Zone: a zone of not more than 2 4 miles over which the costal state has jurisdiction for enforcement of customs, fiscal, immigration or sanitary regulations Continental Margin: the physical prolongation of the continental land mass composed of a continental shelf, slope, and sometimes, a rise at the base of the slope Continental Shelf: the legal definition as proposed in the Convention is based upon either the 200-mile economic zone or upon a formula derived from the gradient of the continental slope not exceeding 350 miles — whichever is further 301

PAGE 313

302 Exclusive Economic Zone: a 200-mile zone over which the coastal state would have rights and jurisdiction over the resources of the sea-bed, subsoil, and superjacent waters Geographically Disadvantaged States: those states with very short coast lines, sea-locked states (due to the proximity of other states) or shelf-locked (those with little or no continental shelf) those sharing a neighboring state's shelf shelf or another state's shelf separates it from the sea-bed Innocent Passage: passage by a foreign ship in a state's territorial waters is innocent if it is not prejudicial to the peace, good order, or security of the coastal state; submarines must surface Isobath: lines drawn connecting points of equal depth Parallel Mining System: a dual mining system allowing both the mining arm of the International Sea-Bed Authority (the Enterprise) and private mining companies to exploit the sea-bed minerals Territorial Sea: the sea, air space above, sea-bed, and subsoil are part of the sovereign territory of the coastal state except that ships have the right of innocent passage; the Convention provides for this zone to extend to 12 miles from the baseline Unimpeded Transit Passage: a new concept in the Convention allowing the right of overflight and submerged passage in straits connecting one part of the high seas with another part (or with economic zones)

PAGE 314

BIBLIOGRAPHY I. Documents A. United Nations Documents First United Nations Conference on the Law of the Sea. Official Records. A/Conf 13/37. First United Nations Conference on the Law of the Sea. Official Records. A/Conf 13/38 First United Nations Conference on the Law of the Sea. Official Records. A/Conf 13/39 First United Nations Conference on the Law of the Sea. Official Records. A/Conf 13/40 First United Nations Conference on the Law of the Sea. Official Records. A/Conf 13/41 First United Nations Conference on the Law of the Sea. Official Records. A/Conf 13/42. First United Nations Conference on the Law of the Sea. Official Records. A. /Conf 13/43. Laws and Regulations on the Regime of the Coastal Seas New York: United Nations, 1957. National Legislation and Treaties Relating to the Law of the Sea New York: United Nations, 1974. National Legislation and Treaties Relating to the Law of the Sea New York: United Nations, 1980. National Legislation and Treaties Relating to the Territorial Sea, the Contiguous Zone, the "Continental Zone, the Continental Shelf, the High Seas, and to Fishing and Conservation of the Living Resources~of the Sea New York: United Nations, 1970. Note verbale Dated 17 August 1967 From the Permanent mission of Malta to the United Nations Addressed to the Secretary General U.N. Doc. A/ 6 6 95 303

PAGE 315

304 Second United Nations Conference on the Law of the Sea. Official Records. A/Conf /19/8 Second United Nations Conference on the Law of the Sea. Official Records. A/Conf.19/9. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf.62/1. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/23 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/24 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/25 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/26 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/27 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/28 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/30/Rev. 1. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/61 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/62 Third United Nations Conference on the Law of the Sea. Official Records. A/conf. 62/63 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/67 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/68 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/69 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/SR. 1-51 Third United Nations Conference on the Law of the Sea. Offical Records. A/Conf 62/SR. 21-42

PAGE 316

305 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf. 62/SR. 57-70. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf. 62/SR. 71-76 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/SR. 77-81 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/SR. 82-109 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/SR. 110-116 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/SR. 117-120 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/SR. 121-129 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/SR. 1-6 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/SR. 7-13. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/SR. 14-20. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/SR. 21-28 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/SR. 29-33 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/SR. 34-44 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/SR. 45-46 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/SR. 47-50 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/SR. 51-53 Third United Nations Conference on the Lav/ of the Sea. Official Records. A/Conf 62/L. 1 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/L. 7

PAGE 317

306 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/L. 78 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf. 62/L. 1/SR. 1-17 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C1/SR. 2-8 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/SR. 18-23. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/SR. 24 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/SR. 25-37 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/SR. 38-40 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/SR. 41-44 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/SR. 45. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/SR. 46 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/SR. 47-78. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/L. 3. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/L. 5 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/L. 6 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 1/L. 7 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/SR. 1-46 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/SR. 49 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/SR. 47-48

PAGE 318

307 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/SR. 50-51 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/SR. 52-56 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C 2/SR. 57-58 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C 2/L. 11 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/L. 13 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/L. 15 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/L. 27 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/C 2/L. 29 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/C. 2/L. 38 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/BUR/C. 2/L. 39. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/L. 41 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/L. 47. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/L. 49 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/L. 79 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/L. 80 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/L. 85 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 2/WP. 1 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C 3/SR. 1-17

PAGE 319

308 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf. 62/C. 3/SR. 18-25. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf. 62/C. 3/SR. 26-27 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/SR. 28-33 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/SR. 34 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/SR. 35-39 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/SR. 40 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/SR. 41-43 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/SR. 44 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/L. 2. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/L. 6 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/L. 12 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/L. 13/Rev. 2 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/L. 15 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/L. 19 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/L. 20 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/C. 3/L. 26 Third United Nations Conference on the Law of the Sea: United States Delegation Reports, 1973-1982. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/RCNG/l

PAGE 320

309 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/RCNG/2. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/WP 8 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/WP. 8/Rev 1. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/WP. 10 Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/WP. 10 /Add. 1. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/WP. 10/Corr. 1. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/WP. 10/Rev. 2. Third United Nations Conference on the Law of the Sea. Official Records. A/Conf 62/WP. 10/Rev. 3. United Nations Document. A/AC. 138/10. United Nations Document. A/AC. 138/17. United Nations Document. A/AC. 138/18. United Nations Document. A/AC 138/18/Add. 1 United Nations Document. A/AC. 138/22. United Nations Document. A/AC. 138/23. United Nations Document. A/AC. 138/25. United Nations Document. A/AC. 138/26. United Nations Document. A/AC. 138/27. United Nations Document. A/AC. 138/33. United Nations Document. A/AC. 138/43. United Nations Document. A/AC. 138/44. United Nations Document. A/AC. 138/49. United Nations Document. A/ AC. 138/55. United Nations Document. A/AC. 138/59.

PAGE 321

310 United Nations Document. A/ AC. 138/63. United Nations Document. A/AC 138/SC. I/L. 19 United Nations Document. A/AC. 148/SC. I/L. 28 United Nations Document, United Nations Document, A/AC. 138/SC. II/L. 4 A/AC. 138/SC. II/L. 6. United Nations Document. A/AC. 138/SC II/L. 7 United Nations Document. A/AC 138/SC. II/L. 7/Add. 1 United Nations Document, United Nations Document, United Nations Document A/AC. 138/SC. II/L. 9. A/AC. 138/SC. II/L. 10. A/AC. 138/SC. II/L. 20. United Nations Document. A/AC. 138/SC. II/L. 26 A/AC. 138/SC. II/L. 35. A/AC. 138/SC. III/L. 32 United Nations Document, United Nations Document, United Nations Document. A/AC. 138/SC. III/L. 36 United Nations Document. A/AC. 138/SC. III/L. 40 United Nations Document. A/AC. 138/SC. III/L. 44 United Nations Economic and Social Council, Resolution 1112 (XL) United Nations General Assembly Resolution 1105 (XI) February 21, 1957. United Nations General Assembly Reolution 2172 (XXI) December 6, 1966. United Nations General Assembly Resolution 2340 (XXII) December 18, 1967. United Nations General Assembly Resolution 2467-A (XXIII), December 21, 1968. United Nations General Assembly Resolution 2467-B (XXIII), December 21, 1968. United Nations General Assembly Resolution 2467-C (XXIII) December 21, 1968.

PAGE 322

311 United Nations General Assembly Resolution 2467-D (XXIII), December 21, 1968. United Nations General Assembly Resolution 2574-A (XXIV) December 15, 1969. United Nations General Assembly Resolution 2574-B (XXIV) December 15, 1969. United Nations General Assembly Resolution 2574-C (XXIV) December 15, 1969. United Nations General Assembly Resolution 2574-D (XXIV) December 15, 1969. United Nations General Assembly Resolution 2749 (XXV) December 17, 1970. United Nations General Assembly Resolution 1790-A (XXV) December 17, 1970) United Nations General Assembly Resolution 2750-B (XXV) Decemger 17, 1970) United Nations General Assembly Resolution 2750-C December 17, 1970. United Nations General Assembly Resolution 3029-A (XXVII) December 18, 1972. United Nations General Assembly Resolution 3067 (XXVII) November 16, 1973. United Nations International Law Commission, "Report of the International Law Commission to the General Assembly," Yearbook of the International Law Commission Vol. II. New York: United Nations, 1956. United Nations Sea-bed Committee List of Subjects and Issues to be Discussed at Law of the Sea Conference. August 16, 1972. B. Other Documents "Agreement Between Chile, Ecuador, and Peru, Signed at the First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific," Santiago, Chile, August 18, 1952. Crocker, Henry G., ed. The Extent of the Marginal Sea: A Collection of Official Documents and Views of Representative Publicists United States Department of State. Washington, D.C.: Government Printing Office, 1919.

PAGE 323

312 Davenport, Frances Gardiner. European Treaties Bearing on the History of the United States and its Dependencies to 1648. Vol. I of 4 Vols. Washington, D.C.: Carnegie Institution of Washington, 1917. Dickenson, Edwin DeWitt (ed. ) A Selection of Cases and Other Readings on the Law of Nations Chiefly as It is Interpreted and Applied by British and American Courts New York: McGraw-Hill Book Co., Inc., 1929. Fenwick, Charles G. (ed.). Cases on International Law Chicago: Callaghan and Company, 1951. Henkin, Louis, Richard Crawford, Oscar Schadter, and Hans Smit. International Law: Cases and Materials St. Paul: West Publishing Co., 1980. The Inquiry Handbooks Volume 9. Wilmington: Scholarly Resources, Inc., 1974. The Inquiry Handbooks Volume 10. Wilmington: Scholary Resources, Inc., 1974. Johnson, Lyndon B. "Remarks of the President of the United States at the Commissioning of the Oceanographic Research Ship 'The Oceanographer July 13, 1966. League of Nations. Conference for the Codification of International Law, Bases of Discussion Drawn up for the Conference by the Preparatory Committee Vol. II, Geneva: League of Nations, 1929. League cf Nations. Third Session of the Committee of Experts for the Progressive Codification of International Law Geneva: League of Nations, 1927. Malone, James L. "Statement by Ambassador James L. Malone Special Representative of the United States for the Third United Nations Conference on the Law of the Sea." U.S. Mission to the United Nations: August, 1981. Oda, Shigeru (ed.). The International Law of the Ocean Development: Basic Documents Leyden The Netherlands: A. W. Sijthoff, 1972. Presidential Proclamation No. 2667, September 28, 1945. Presidential Proclamation No. 2668, September 28, 1945. Sub-committee on Mines and Mining. Ninety-sixth Congress Development of the Hard Mineral Resources of the Deep Seabed serial number 96-10. Washington, D.C. : U.S. Government Printing Office, 1979.

PAGE 324

313 Union of Soviet Socialist Republics. Decree by the Supreme Soviet of the USSR. "On Temporary Measures for the Regulation of the Activities of Soviet Enterprises in Exploration and Exploitation of the Mineral Resources of the Sea-bed Beyond the Limits of the Continential Shelf." April 17, 1982, Press Release #45. U.S. Bureau of Mines. Mineral Facts and Problems Washington, D.C.: United States Department of the Interior, 1980. U.S. Department of State. Bulletin. "Reply of the United Kingdon to the Protest of American Republics Considering Violation of the Neutrality Zone," 1940. U.S. Department of State. Bulletin. "U.S. Explains its Votes on Seabed Resolution," 1970. U.S. Department of State. Bulletin. "Final Act of the Consultative Meeting of Foreign Ministers of the American Republics." U.S. Department of State. Papers Relating to the Foreign Relations of the United States Washington, D.C.: U.S. Government Printing Office. U.S. The Federal Cases Washington, D.C.: U.S. Government Printing Office. U.S. Naval War College. International Law Documents 1948-49 Washington, D.C.: Government Printing Office, 1950. U.S. Office of the Federal Register. Code of Federal Regulations: Wildlife and Fisheries 50 Washington, D.C.: U.S. Government Printing Office, 1981. U.S. Office of the Federal Register. Code of Federal Regulations: Commerce and Foreign Trade 15 Washington, D.C.: U.S. Government Printing Office, 1982. U.S. Statutes at Large Washington, D.C.: U.S. Government Printing Office. White House Press Release, September 28, 1945. III. Books and Articles Adede, A. 0. "Settlement of Disputes Arising Under the Law of the Sea Convention." American Journal of International Law, 69 (October, 1975), pp. 798-818.

PAGE 325

314 Alexander, Lewis M. (ed.) Proceedings of the Third Annual Conference of the Law of the Sea Institute; June '24 z "2 7 19 6 8 Kingston, R. I.: The University of Rhode Island Press, 1969. Amacher, Ryan C. and Richard James Sweeney (eds.). The Law of the Sea: U.S. Interests and Alternatives Washington, D.C. : American Enterprise Institute for Public Policy Research, 1976. Anand, R.P. Legal Regime of the Sea-Bed and the Developing Countries Delhi, India: Thonson Press (India) Limited, 1975. Arad, Ruth W. Uzi B. Arad, Rachel McCulloch, Jose Pinera and Ann L. Hollick. Sharing Global Resources New York: McGraw-Hill Book Company, 19 79. Bartlett, Jonathan (ed.). The Ocean Environment New York: The H.W. Wilson Co., 1977. Bekaeshev, K.A. et al, ^o&oto nal Regime for the World's SeaOfteo.a~ (International Regime a for the World's Sea-bed). Moscow: Academy of Sciences, 1980. Bloomfield, L.M. Egypt, Israel and the Gulf of Aqaba In International Law Toronto: The Car swell Company, Limited, 1957. Borgese, Elizabeth Mann (ed.). Pacem In Maribus New York: Dodd, Mead & Company, 1972. Bouchez, L.J. and L. Kaijen (eds.). The Future of the Law of the Sea: Proceedings of the Symposium on the Future of the Sea organized at Den Helder by the Royal Netherlands Naval College and the International Law Institute of Utrecht State University 26 and 27 June 1972 The Hague: Martinus Nijhoff, 1973. Bowett, D.W. The Law of the Sea Manchester: Manchester University Press, 1967. Browning, David. "Exploitation of Submarine Mineral Resources Beyond the Continental Shelf," Texas International Law Forum 1 (1968) pp. 10-16. Burke, William T., Richard Legatski and William W. Woodhead. National and International Law Enforcement in the Ocean Seattle : University of Washington Press, 1975. Towards a Better Use of the Ocean. Stockholm: Almquist and Wiksell, 1969.

PAGE 326

315 Burnell, Elaine H. and Piers Von Sinson (eds.). Pacem in Maribus Santa Barbara: Center for the Study of Democratic Institutions, 1970. Butler, William E. The Law of Soviet Territorial Waters, A Case Study of Maritime Legislation and Practice New York: Praeger Publishers, Inc., 1967. "Some Recent Developments in Soviet Maritime Law. International Lawyer 4 (July, 1970), pp. 695-708. The Soviet Union and the Law of the Sea. Baltimore: Johns Hopkins Press, 1971. Northeast Artie Passage Alphen aan den Rijn, The Netherlands: Sijthoff and Noordoff, 1978. Buzan, Barry. Seabed Politics New York: Praeger Publishers, Inc., 1976. Bynkershoek, Cornelius van. De Dominio Maris Text of 1702-03 trans, by Ralph van Deman Magoffin. In Classics of International Law ed. James Brown Scott. New York: Carnegie Endowment for International Peace, 1923. Center for the Study of Democratic Institutions. "Law of the Sea and the New World Economic Order", Center Report Volume IX, No. 2, April, 1976. Chapman, Wilbert McLeod. "The United States Fish Industry and the 195 8 and 1960 United Nations Conferences on the Law of the Sea." In Law of the Sea: International Rules and Organization for the Sea Proceedings of the Third Annual Conference of the Law of the Sea Institute, edited by Lewis M. Alexander, pp. 35-63. Kingston: University of Rhode Island, 1969. Charney, Jonathan I. "United States Interests in a Convention on the Law of the Sea: The Case for Continued Efforts." Vanderbilt Journal of International Law 11 (Winter, 1978) pp. 39-75. "Law of the Sea: Breaking the Deadlock. Foreign Affairs 55 (1977), pp. 598-629. Cheever, Daniel S. "The Role of International Organization in Ocean Development." International Organizatio n, 22 (Summer, 1968), pp. 629-648. Christy, Francis T. "Alternative Regimes for Marine Resources Underlying the High Seas." The Natural Resources Lawyer (No. 2) 63, 66 (1968)

PAGE 327

316 Clingan, Thomas A. and Lewis M. Alexander (eds.). Hazards of Maritime Transit Law of the Sea Institute Workshop, Nassau, The Bahamas, May, 1973. Cambridge, Mass.: Ballinger Publishing Company, 1973. Coker, R.E. This Great and Wide Sea: An Introduction to Oceanography and Marine Biology New York: Harper & Row Publishers, 1954. Cooper, Richard N. "The Oceans as a Source of Revenue," pp. 105-124, in Jagdish N. Bhagwati (ed.), The New International Economic Order: The North-South Debate Cambridge: The MIT Press, 1977. Darman, Richard G. "The Law of the Sea: Rethinking U.S. Interests." Foreign Affairs 56 (January, 1978), pp. 373-395. Dean, Arthur H. "The Geneva Conference on the Law of the Sea: What Was Accomplished." American Journal of International Law 52 (October, 1958) pp. 607-32. Dean, Arthur H. "The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Seas," American Journal of International Law 54 (October, 1960) pp. 751-789. Eckert, Ross, D. The Enclosure of Ocean Resources: Economics and Law of the Sea Stanford, Calif.: Hoover Institution Press, Stanford University, 1979. El-Hakim, Ali A. The Middle Eastern States and the Law of the Sea Syracuse, N.Y.: Syracuse University Press, 1979. English, Thomas Saunders. Ocean Resources and Public Policy Seattle: University of Washington Press, 1973. Fairhall, David. Russian Sea Power Boston: Gambit, Incorporated, 1971. Fenn, Percy Thomas, Jr. "Justinian and the Freedom of the Sea," American Journal of International Law 19 (October, 1925), pp. 716-727. The Origin of the Right of Fishery in Territorial Waters Cambridge, Mass.: Harvard University Press, 1926. Fenwick, Charles G. International Law Third edition. Nev, York: Appleton-Century-Crof ts Inc., 1952.

PAGE 328

317 Fincham, Charles and William van Rensburg. Bread Upon the Waters: The Developing Law of the Sea Jerusalem: Turtledove Publishing, 1980. Food and Agricultural Organization. Yearbook of Fisheries Statistics for 1962 Rome: Food and Agricultural Organization, 1963. Fox, Irving K. (ed.). Water Resources Law and Policy in the Soviet Union Madison, Wis. : The University of Wisconsin Press, 1971. Frazer, Henry S. "The Extent and Delimitation of Territorial Waters." Cornell Law Quarterly 11 (1925-1926) pp. 455-481. Friedman, Lawrence M. A History of American Law New York: Simon and Schuster, 1973. Friedmann, Wolfgang. The Future of the Oceans New York: George Braziller, 1971. Fulton, Thomas Wemyss. The Sovereignty of the Sea: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters, with Special Reference to the Rights of Fishing and the Naval Salute London : William Blackwood and Sons, 1911. Gamble, John King, Jr. Global Marine Attributes Cambridge, Mass.: Ballinger Publishing Company, 1974. Gamble, John King, Jr. and Giulio Pontecorvo (eds.). Law of the Sea: the Emerging Regime of the Oceans Law of the Sea Institute, Cambridge, Mass.: Ballinger Publishing Co. 1973. Glassner, Martin Ira. Access to the Sea for Developing Land-Locked States The Hague: Martinus Nijhoff, 1970. Goodrich, Leland M. and Edward Hambro (eds.). Charter of the United Nations: Commentary and Documents Boston: World Peace Foundation, 1946. Gorev, Yakov. "New Soviet Act to Protect the Resources of the Sea." USSR Press Release #23, February 8, 1977. Grandison, George W. and Virginia J. Meyer. "International Straits, Global Communications, and the Evolving Law of the Sea." Vanderbilt Journal of International Law 8 (Spring, 1975), pp. 393-449.

PAGE 329

318 Grotius, Hugo. The Freedom of the Seas or the Right which Belongs to the Dutch to take Part in the East Indian Trade. (Mare Liberum) Trans. Ralph van Deman Magoffin. In Classics of International Law ed. James Brown Scott. New York: Oxford University Press for Carnegie Endowment for International Peace, 1916. Grotius, Hugo. De Jure Belli ac Pacis Text of 164 6 trans. Francis W. Kelsey. In Classics of International Law ed. James Brown Scott. New York: Carnegie Endowment for International Peace, 1925. Grotius, Hugo. De Jure Praedae Commentarius Oxford: Clarendon Press, 1950. Gullion, Edmund A. (ed.). Uses Of The Seas Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1968. Gutteridge, J.A.C. "The 1958 Geneva Convention on the Continental Shelf," British Yearbook of International Law 25 (1959), pp. 102-123. Kalleck, Henry Wagner. Halleck's International Law London: K. Paul, Trench, Trubner and Co., Ltd., 1908. Halperin, Morton. "Why Bureaucrats Play Games." Foreign Policy 2 (Spring, 1971), pp. 70-91. Hargrove, John Laurence (ed. ) Who Protects the Ocean? Environment and the Development of the Law of the Sea Published under the auspices of the American Society of International Law. St. Paul, MN. : West Publishing Co., 1975. Hawser, Wolfgang. "An International Fiscal Regime for Deep Seabed Mining." Harvard International Law Journal 19 (Fall, 1978) pp. 759-811. Hedberg, Hollis D. "Ocean Boundaries for the Law of the Sea." Marine Technology Society Journal 10, No. 5 (June, 1976) pp. 6-11. Heinzen, Bernard G. "The Three-Mile Limit: Preserving the Freedom of the Seas," Stanford Law Review 11 (July, 1959) pp. 597-664. Henkin, Louis. Law for the Seas s Mineral Resources New York: Columbia University Press, 1968. Higgins, A. Pearce and John C. Colombos. The International La w of the Sea London: Longmans, Green and Co., Ltd, 1943.

PAGE 330

319 Hollick, Ann L. "Seabeds Make Strange Politics," in Richard N. Cooper (ed.) A Reordered World; Emerging International Economic Problems Washington, D.C.: Potomac Association, 1973. "Canadian-American Relations: Law of the Sea. International Organization 28, No. 4 (Autumn, 1974) 755-780. U.S. Foreign Policy and the Law of the Sea Princeton: Princeton University Press, 1981. Hyde, Charles Cheney. International Law Chiefly as Interpreted and Applied by the United States 3 Vols. Second Revised edition. Boston: Little, Brown and Company, 1945. James Fighting Ships 1946-47 London: The Macmillan Co., 1947. Janis, Mark W. Sea Power and the Law of the Sea Lexington, Mass.: Lexington Books, 1976. Jefferson, Thomas. "Note from Secretary of State Thomas Jefferson to the British Minister, Mr. Hammond, November 8, 17 93." International Law Digest 190 6. Jessup, Philip C. The Law of Territorial Waters and Maritime Jurisdiction New York: G.A. Jennings Co. Inc., 1927. Johnson, Ralph W. and Richard J. Goldsmith. Coastal Zone Law and Policy Seattle: School of Law, University of Washington, 1977. Johnston, Douglas M. The International Law of Fisheries: A Framework for Policy-Oriented Inquiries New Haven, Conn.: Yale University Press, 1965. (ed.) Marine Policy and the Coastal Community New York: St. Martin's Press, 1976. (ed.) Regionalization of the Law of the Sea Proceedings of the Sea Institute Eleventh Annual Conference, November 14-17, 1977. Cambridge, Mass.: Ballinger Publishing Company, 1978. Jones, Erin Eain. Law of the Sea: Oceanic Resources Dallas, Tx. : Southern Methodist University Press, 1972 Juda, Lawrence. Ocean Space Rights; Developing U.S. Policy New York: Praeger Publishers, Inc., 1975.

PAGE 331

320 Kelly, Valentina Maiewski j Comparative Analysis of American Response To International Cartels, Rubber and Oil Gainesville, Pi.: unpublished M.A. thesis, University of Florida, 1977. Kent, James. Commentaries on American Law Boston: Little, Brown and Co., 1896. Keohane, Robert 0. and Joseph S. Nye. Power and Independence; World Politics in Transition Boston: Little, Brown and Co., 1977. Knauss, John A. "Factors Influencing a U.S. Position in a Future Law of the Sea Conference." Occasional Paper No. 10, Kingston, R.I.: Law of the Sea Institute, April 1971. Knight, H Gary. "The Draft United Nations Convention on the International Seabed Area: Background, Description, and Some Preliminary Thoughts." San Diego Law Review 8 (May, 1972), pp. 459-550. "The Third United Nations Law of the Sea Conference: Caracas," American Universities Fieldstaff Reports Vol, VIII, No. 1, 1974. Krafft, Herman F. and Walter B. Norris. Sea Power In American History New York: The Century Co., 1920. Krieger, Donald. The Oceans: A Common Heritage Dundas, Ontario: Peace Research Reviews 5, No. 6, 1974. Kronmiller, Theodore G. The Lawfulness of Deep Seabed Mining, 2 volumes. London: Oceana Publications, Inc., 1980. Larson, David L. Major Issues of the Law of the Sea Durham, N.H. : The University of New Hampshire, 1976. Levi, Werner. Law and Politics in the International Society Beverly Hills: Sage Publications, 1976. Logue, John L. "The Nepal Proposal for a Common Heritage Fund." California Western School of Law 9 (Summer, 1979) pp. 598-628. Loring, David C. "The United States-Peruvian 'Fisheries Dispute 1 ," Stanford Law Review 23, No. 3 (February 1971) pp. 391-453. Luard, Evan. "Who Gets What on the Seabed?" in Richard N. Cooper (ed.) A Reordered World; Emerging International Economic Problems Washington, D.C. : Potomac Association, 1973.

PAGE 332

321 Luard, Evan. International Agencies; The Emerging Framework of Interdependence London: The MacMillan Press Ltd. 1977. MacDonald, Charles G. Iran, Saudi Arabia, and the Lav/ of the Sea: Political Interaction and Legal Development In the Persian Gulf Westport, Conn.: Greenwood Press, 1980. Mahan, Alfred Thayer. The Influence of Sea Power upon History 1660-1783 Fifteenth edition. Boston: Little, Brown and Co., 1898. McGruther, Kenneth R. The Evolving Soviet Navy Newport, R.I.: Naval College Press, 1978. Marine Technology Society. The Decade Ahead, 197 0-1980 Transactions of the annual MTS conference and exhibit. Washington, D.C.: Marine Technology Society, 1969. Marx, Wesley. The Frail Ocean New York: Ballantine Books, 1967. McDougal, Myres S. and William T. Burke. The Public Order of the Oceans: A Contemporary International Law of the Seas. New Haven and London: Yale University Press, 1962. McFee, William. The Law of the Sea Philadelphia and New York: J.B. Lippencott Co., 1950. Mero, John L. The Mineral Resources of the Sea Amsterdam: Elsevier Publishing Co., 1965. Miles, Edward. "An Interpretation of the Geneva Proceedings." Ocean Development and International Law : Part 1 in Vol. 3, No. 3 (1976), 187-224; Part 2 in Vol. 3, No. 4 (1976) pp. 303-340. "The Structure and Effects of the Decision Process in the Seabed Committee and the Third United Nations Conference on the Law of the Sea." International Organization 31, No. 2 (Spring 1977), pp. 159-235. Moore, John Norton. "The Crisis in Oceans Policy: Time for a Change." Marine Technology Society Journal 10, No. 8 (October-November 1976), pp. 3-10. "Foreign Policy and Fidelity to Law: The Anatomy of a Treaty Violation." American Journal of International Law 70, No. 4 (October, 1976), pp. 802-808.

PAGE 333

322 Moore, John Norton. "The Regime of Straits and the Third United Nations Conference on the Law of the Seas and Review of the Record." American Journal of International Law 74 (January, 1980) pp. 77-121. Oda, Shigeru. The Law of the Sea in our TimeI: New Developments, 196 6-1975 Leyden, The Netherlands: A.W. Sijthoff International Publishing Company, 1977. The Law of the Sea in our Time-II: The United Nations Seabed Committee, 1968-1973 Leyden, The Netherlands: A.W. Sijthoff International Publishing Company, 1977. Ogley, Roderick C. "The Ocean Revolution." British Journal of International Studies 4 (1978) pp. 270-281. Oxman, Bernard H. "The Third United Nations Conference on the Law of the Sea: The 1976 New York Sessions." American Journal of International Law 71 (1977) pp. 247-269. "The Third United Nation Conference on the Law of the Sea: The 1977 New York Session." American Journal of International Law 72 (1978), pp. 6 7-7 5. "The Third United Nations Conference on the Law of the Sea: The Seventh Session (1978)". American Journal of International Law 73 (1979) pp. 1-41. "The Third United Nations Conference on the Law of the Sea: The Eighth Session (1979)". American Journal of International Law 74 (1980) pp. 1-47. "The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980)". American Journal of International Lav; 75 (1981) pp. 211-25 6. "The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981)". American Journal of International Law 76 (1982) pp. 1-23. "The New Law of the Sea", American Bar Association Journal, 69 (February, 1983), pp. 156-162.

PAGE 334

323 Nitze, Paul H. and Leonard Sullivan; Atlantic Council Working Group on Securing the Seas. Securing the Seas; the Soviet Naval Challenge and Western Alliance Options Boulder: The Atlantic Council Policy Series, 1979. Pell, Claiborne. "The Most Complex Treaty ever Negotiated in History." World Issues 11, No. 1 (FebruaryMarch, 19 77) p. 8. Polomka, Peter. Ocean Politics in Southeast Asia Singapore: Institute of Southeast Asian Studies, 1978. Potter, Pitman B. The Freedom of the Seas in History, Law and Politics New York: Longmans, Green and Co., 1924. Potter, E.B. (ed.) and J.R. Fredland (asst. ed.). The United States and World Sea Power Englewood Cliffs, N.J.: Prentice-Hall, Inc. 1955. Prescott, J.R.V. The Political Geography of the Oceans New York: Halsted Press (Div. of John Wiley & Sons, Inc. ) 1975. Ramberg, Bennett. The Seabed Arms Control Negotiations: A Study of Multilateral Arms Control Conference Diplomacy Denver: University of Denver, 1978. Rao, K. Krishna. "The Legal Regime of the Sea-Bed and Ocean Floor." Indian Journal of International Law 9 (January, 1969), pp. 1-18. Rao, P. Sreenivasa. The Public Order of Ocean Resources: A Critique of the Contemporary Law of the Sea Cambridge, Mass.: The MIT Press, 1975. Ratiner, Leigh S. "United States Oceans Policy: An Analysis." Journal of Maritime Law and Commerce 2 (January, 1971), pp. 225-266. "The Law of the Sea: A Crossroads for American Foreign Policy," Foreign Affairs 60, No. 5 (Summer, 1982), pp. 1006-1021. Reiff, Henry. The United States and the Treaty Law of the Sea. Minneapolis: University of Minnesota, 1959. Reisman, W. Michael. "The Regime of Straits and National Security," American Journal of International Law 74 (January, 1980), pp. 48-76. Reynolds, Clark G. Command of the Sea New York: William Morrow and Co., Inc., 19 74.

PAGE 335

324 Richardson, Elliot L. "Power, Mobility and the Law of the Sea." Foreign Affairs 58, No. 4 (Spring, 1980), pp. 902-919. Ross, William M. Oil Pollution as an International Problem: A Study of Puget Sound and the Strait of Georgia Seattle: University of Washington Press, 1973. Schanes, Christine E. The Extension of National Jurisdiction over the High Seas: Positions of Selected States Participating In the Second Committee of the Third United Nations Conference On the Law of the Sea, June 2 0-August 29, 19 74 South Bend, Ind.: unpublished Ph.d. dissertation, University of Notre Dame, 1975. Schoonover, Katherine W. "The History of Negotiations Concerning the System of Exploitation of the International Seabed." International Law and Politics 9 (1977) pp. 483-514. Scott, James Brown (ed.). The Reports to the Hague Conferences of 1889 and 1907 Oxford: Clarendon Press, 1917. Selden, John. Mare Clausum: the Right and Dominion of the Sea Trans, by Marchamont Nedham. London 166 3. Reprint New York: Arno Press, 19 72. Silkenat, James R. "Solving the Problem of the Deep Seabed: The Informal Composite Negotiating Text for the First Committee of UNCLOS III." International Law and Politics 9 (1977), pp. 177-201. Skinner, Brian J. and Karl K. Turekian. Man and the Ocean Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1973. Smith, George P., II. Restricting the Concept of Free Seas: Modern Maritime Law Re-Evaluated Huntington, N.Y.: Robert E. Krieger Publishing Co., Inc., 1980. Smith, H.A. The Law and Custom of the Sea London: Stevens and Sons Limited, 1950. Sohn, Louis B. "Voting Procedures in United Nations Conferences for the Codification of International Law." American Journal of International Law 69, No. 2 (April, 1975), pp. 333-353. Sprout, Harold and Margaret. Toward a New Order of Sea Power: American Naval Policy and the World Scene, 1918-1922. New York: Greenwood Press, 1976.

PAGE 336

325 Stang, David. "The Donnybrook Fair of the Oceans." San Diego Law Review 9, No. 3 (May, 1972), pp. 569-607. Stevenson, John R. "International Law and the Oceans," 62 Dep't State Bull. 339 (1970). Stevenson, John R. and Bernard H. Oxman. "The Third United Nations Conference on the Law of the Sea: the 1975 Geneva Session." American Journal International Law 19, No. 4 (October, 1975), pp. 763-797. Strang, Lord Williams. Britain In World Affairs New York: Frederick A. Praeger 1961. Sullivan, Jeremiah J. Pacific Basin Enterprise and the Changing Law of the Sea Lexington, Mass.: D.C. Heath and Company, 1977. Swartztrauber Sayre A. The Three-Mile Limit of Territorial Seas Annapolis, Md.: United States Naval Institute, 1972. Swing, John Temple. "Law of the Sea at the Brink." Oceans 10 (1977) pp. 4-5. Swing, John Temple. "Who Will Own the Oceans?" Foreign Affairs 54, No. 3 (April, 1976), pp. 527-546. Truver, Scott C. The Strait of Gibraltar and the Mediterranean Alphen aan den Rijn: Sijthoff & Noordhoff, 1980. Tucker, Robert W. International Law Studies: The Law of War and Neutrality of Sea Washington, D.C, 1957. U.S. Department of Defense. Soviet Military Power Washington, D.C: U.S. Government Printing Office, n.d. U.S. Department of State. A Constitution for the Sea Dept. of State Publication 8870, 1976. Vattel, Emmerich de The Law of Nations or the Principles of Natural Law: Applied to the Conduct and to the Affairs of Nations and of Sovereigns Trans. Charles G. Fenwick. In the Classics of International Law ed. James Brown Scott. Dobbs Ferry, N.Y. (Oceana Publications, Inc., 1758 ed. reprinted 1964.) Walker, Wyndham. "Territorial Waters: The Cannon Shot Rule," British Yearbook of International Law 2 2 (1945) pp. 210-231.

PAGE 337

326 Walsh, Don (ed.). Special Law of the Sea Issue Marine Technology Society Journal 11, No 2 (May, 1977). Washington Sea Grant Program. Local Impacts of the Law of the Sea: Proceedings of a Conference Held in Seattle October 10-12, 1972 Seattle: University of Washington Press, 1973. Waters, Maurice. The United Nations: International Organization and Administration New York: The Macmillan Company, 1967. Welwood, William. An Abridgement of All Sea-Lawes London, Thomas Man, 1613. Reprint New York: Da Capo Press, 1972. Wenk, Edward, Jr. The Politics of the Ocean Seattle: University of Washington Press, 1972. Wheaton, Henry. Elements of International Law Boston: Little, Brown and Co., 1866. Whiteman, Margorie M. Digest of International Law Washington, D.C.: Government Printing Office, 1963. Vol. IV deals with territorial seas. Williams, William. "Reminiscences of the Bering Sea Arbitration," American Journal of International Law 37 (October, 1943), pp. 562-584. Wirsing, Robert G. (ed.) International Relations and the Future of Ocean Space Studies in International Affairs No. 10~. Institute of International Studies Columbia, S. Carolina: University of South Carolina Press, 1974. Woodruff, William. Impact of Western Man: 1760-1980 Rev. 2nd ed. Washington, D.C.: University Press of America, 1982. The Struggle for World Power: 15001980 New York: St. Martin's Press, 1981. Working Group on Technical Issues of the Law of the Sea. Policy Issues in Ocean Law Washington, D.C.: The American Society of International Law Studies In Transnational Legal Policy, No. 8, 1975. Zacklin, Ralph (ed.). The Changing Law of the Sea: Western and H emisphere Perspectives Carnegie Endowment for International Peace. Inter-American Study Group of International law. Leiden: Sijthoff, 1974.

PAGE 338

BIOGRAPHICAL SKETCH Valentina Nikolaevna Maiewskij was born to Nikolai and Julia Maiewskij in Leoben, Austria on May 14, 1949. She grew up and attended the public schools in Freeport, Illinois. The Maiewskij s spoke Russian at home and conscientiously taught their daughter traditional Russian culture. As a consequence, an interest in Russia has been, for Valentina, a lifelong interest. She received her B.A. in Russian Area Studies from the University of Illinois at Champaign-Urbana in 1971. Under Professor William Woodruff's supervision, Valentina completed the requirements for the M.A. in History and received her degree in June, 1977, from the University of Florida. Her thesis, "Comparataive Analysis Of American Response to International Cartels, Rubber And Oil," reflected Valentina 's increasingly global orientation. With William Woodruff's guidance, she began her doctoral program with an emphasis on World History. In preparation for writing this dissertation, Valentina, in 1980, consulted with professors at Oxford University in England and attended the Third United Nations Conference on Law of the Sea in Geneva, Switzerland. 327

PAGE 339

I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. William Woodruff, Chairperson Graduate Research Professor in Economic History I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. Neill W. Macaulay, Jr. Professor of History £ I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. Harry W. Paul Professor of History

PAGE 340

I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. // C Eldon R. Turner Assistant Professor of History I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. DqerD. Blair Roge: Professor of Economics This dissertation was submitted to the Graduate Faculty of the Department of History in the College of Liberal Arts and Sciences and to the Graduate School, and was accepted as partial fulfillment of the requirements for the degree of Doctor of Philosophy. April, 1983 Dean for Graduate Studies and Research