August 13, 1974
Page 28021
LAW OF THE SEA CONFERENCE
Mr. MUSKIE. Mr. President, between August 4-7, I attended the third United Nations Law of the Sea Conference, being held in Caracas, Venezuela. As an advisor to the U.S. delegation, along with the Senator from Rhode Island (Mr. PELL) and the Senator from Alaska (Mr. STEVENS), I had the opportunity to discuss oceans issues with our negotiating team, including Ambassador Stevenson; Ambassador Shirley Amerasinghe of Sri Lanka, president of the conference; several leaders of foreign delegations; and representatives of the U.S. fishing industry. I was greatly impressed by the far-reaching significance of the 100-item conference agenda and the seriousness and diligence with which most delegations are carrying out their responsibilities. I want to take this opportunity to share with my colleagues some observations about the proceedings of the conference.
The 149 nations represented in Caracas are involved in a most complex but crucial undertaking: they are trying to draft a comprehensive treaty governing the use and conservation of the world's ocean resources. It would be a mistake to underestimate the difficulties facing the negotiators at the conference, the largest international gathering ever convened. Each of the states represented – coastal, landlocked, developed, developing, maritime, non-maritime – has its own interests, its own set of priorities, and its own short- and long-term policy goals. And these countries are not merely talking about existing law and how to perfect it. Rather, they have set for themselves the objective of discarding settled law and developing a comprehensive new regime for the oceans.
The formal work of the conference is being done in three working groups. Of these, I was especially interested in the progress of committee II, the group concerned with the protection of coastal fish stocks and other issues related to coastal State jurisdiction.
I came away from the conference convinced that the United States must adopt a unilateral 200- mile fisheries limit without delay.
In a speech last month before a plenary session of the conference, Ambassador Stevenson announced a major change in America's position concerning the territorial sea and the establishment of a 200-mile economic zone. Stevenson said:
We are prepared to accept, and indeed we would welcome general agreement on a 12-mile outer limit for the territorial sea and a 200-mile outer limit for the economic zone provided it is part of an acceptable comprehensive package, including a satisfactory regime within and beyond the economic zone and provision for unimpeded transit of states used for international navigation.
This decision on the part of the United States to support the establishment of a 200-mile economic zone is long overdue and vital to the protection of this country's offshore fishing and mineral resources. For too long the United States has passively stood by while foreign vessels have virtually depleted our coastal fisheries stocks. Our experience in the Northwest Atlantic is illustrative of the gravity and immediacy of the situation. From 1952 through 1960, the U.S. fish catch from New England waters averaged about 700 million pounds a year, or 99 percent of the total catch from that area. In the early 1960's, the Russians, the Poles, the Germans and other foreign fleets moved into these waters in large numbers. By 1969, the Soviet fleet was taking 836 million pounds, or 50 percent of the total catch from New England waters; while the U.S. catch had declined to about 418 million pounds, or about 25 percent of the area's total harvest. In the last couple of years, the total U.S. catch has declined even from this level, for neither bilateral agreements nor regional organizations like ICNAF have been effective in protecting legitimate U.S. fishing interests.
Unfortunately, the majority of the nations represented in Caracas do not seem to share a sense of urgency about the need to establish without delay a 200-mile economic zone to manage and conserve the world's fisheries resources. Time and time again in discussions with foreign diplomats concerning the work of committee II, I heard it said that "we need time to build new international law." Surely, time is needed for ideas to mature concerning certain issues – such as what transit rights vessels will have in other countries' territorial sea, in the proposed economic zone and in straits; what rules will apply to islands and archipelagos; what rights of access and conservation rules will apply to distant water fishing within coastal State-controlled economic zones. And I remain convinced that an enforceable international agreement on the use of the seas is the best way in the long-run to stop the over-fishing which threatens to ruin our fisheries resources.
But if we are to preserve many of our offshore fish stocks – haddock, herring, mackerel, yellowtail flounder, hake, halibut – I do not think we can afford to wait until the Law of the Sea Conference produces a treaty. In my talks in Caracas, I found many foreign delegates optimistic that there will be agreement on the coastal zone jurisdiction issue by next year and that the General Assembly goal of a treaty by 1975 will be met. I am not so sure. After 5 years of preparatory work, the conference is still bogged dawn in preliminary matters. About 60 of the 149 nations are still trying to develop their own national positions on a variety of oceans issues, while many of the others hold widely divergent points of view. And in regard to conserving our fisheries resources, if we wait 2 or 3 years for an international treaty to be concluded, there may not be any resources left to protect. Adopting an interim 200-mile limit, on the other hand, will provide immediate protection for all our offshore fish stocks and will signal the nations of the world that the United States is not prepared to stand by idly while the conference negotiations drag on.
So I have returned from Caracas more resolved than ever to push for immediate legislative action on S. 1988, the bill which has been approved by the Commerce Committee by a 14 to 2 vote and which would establish on an interim basis a 200-mile fisheries limit. This legislation is very close to the U.S. position enunciated by Ambassador Stevenson last month in Caracas. Both provide for: First, management of coastal species by the coastal State; second, management of anadromous species such as salmon by the nation in whose rivers they spawn; and third, management of migratory species such as tuna by international commissions. But, Mr. President, S. 1988 recognizes the urgency of the situation and mandates interim unilateral action to regulate and conserve the marine resources in our 200-mile offshore waters.
While there has been little perceptible forward movement concerning coastal State jurisdiction issues, I was most encouraged by the progress of committee I, the working group responsible for the seabed beyond national jurisdiction, that is negotiating the regime under which deep sea mining will take place. Here, the discussion is focusing on the question of who may exploit the high seas area. Some nations, led by the United States, favor granting licenses to private parties sponsored by States. Other countries, including most of the world's less developed nations, would prefer to see the establishment of an international Seabed Authority able to engage in mining itself. No explicit agreement has yet been reached in committee I. Yet, a consensus appears to be developing about the need for an international regime to regulate the exploration and exploitation of the seabed beyond coastal State economic jurisdiction. And the prospects appear good for compromise concerning the extent of control that the proposed Seabed Authority will be able to exercise over the commercial development of the international seabed.
Committee III, the other working group of the conference, is responsible for pollution and scientific research. While four sources of pollution are being discussed – vessel source, land- based source, economic zone pollution, and international seabed pollution – it is apparent that vessel source pollution is by far the most controversial environmental issue. Under the present system, the United Nations Intergovernmental Maritime Consultative Organization (IMCO) promotes the drafting of conventions with standards, and flag states enforce those standards.
States have a right to adopt higher standards and to enforce standards in areas under their "jurisdiction," although it is not exactly clear what the term "jurisdiction" comprehends. At present, it is thought to include the port area and the territorial sea. The basic problem is that the 1973 IMCO Convention on Pollution from Ships contains very weak standards and flag states simply do not enforce them. Under U.S. legislation – the Ports and Waterways Safety Act and the Federal Water Pollution Control Act – the Coast Guard is empowered to establish standards higher than those in the convention and to enforce those standards in our navigable waters.
Three alternatives are being discussed at the conference: First. A maritime state proposal, supported by the United Kingdom and France, under which only IMCO would adopt standards and only the flag State would enforce;
Second. A coastal State proposal, supported by Canada and Australia, under which coastal States would have the right subject to safeguards to promulgate and enforce higher national standards for their 200-mile economic zone;
Third. A proposal, supported by the United States, under which a State could promulgate and enforce higher standards with respect to vessels that visit its ports. In addition, the U.S. proposal would allow coastal States to take action in emergency situations to prevent imminent pollution, and after going through a variety of cumbersome procedures, to enforce against the vessels passing the coast if the port State persistently fails to enforce.
While in Caracas, I discussed the three proposals with various foreign delegates. I also voiced my view to the U.S. delegation that no Law of the Sea Treaty should prevent this country from applying its present domestic laws and from establishing and enforcing standards higher than those adopted by IMCO in both ports and our territorial sea with respect to coastwise and foreign commerce.
In conclusion, I returned from Caracas with a feeling that the Law of the Sea negotiators have taken on an enormous and extremely important task. For they have undertaken to establish a new international regime governing the resources contained in 70 percent of the Earth's surface. There is considerable cautious optimism that they can succeed. I fully support their efforts. In fact, the sooner the better.
Mr. President, I ask unanimous consent to have printed in the RECORD the following articles concerning the Third U.N. Law of the Sea Conference.
There being no objection, the articles were ordered to be printed in the RECORD,. as follows:
[From the New York Times, Aug. 3, 19741
PROGRESS SLOW AT SEA LAW PARLEY; MANY SPEAK PRIVATELY OF STALEMATE
(By Leslie H. Gelb)
CARACAS, VENEZUELA, Aug. 2.– The Parque Central, a complex of futuristic-looking skyscrapers designed for totally self-contained living, has been inhabited since late June by about 4,000 people whose almost total daily concern is the sea that lies seven miles be yond the mountains that ring Caracas.
They are delegates to the United Nations law of the seas conference, officials of international organizations and representatives of various economic interests and of a number of liberation movements.
The purpose of the conference is to come up by Aug. 29 with some kind of coherent, if tentative, agreement on navigation, fishing, and sea mining, a partial pact that will have the effect of restraining nations from making individual laws on the sea. Then, next spring, the delegates will meet in Vienna to turn that agreement into a treaty. Their progress here is painfully slow; many speak privately of stalemate.
ORIGINAL GOAL
The original goal of the Caracas meeting was to produce a draft constitution for all nations. That treaty, it was hoped, would establish new territorial limits and zones of control for marine resources beyond the territorial limits, and provide some kind of international authority over exploitation of the deep seabeds.
"We're moving but slowly," said John R. Stevenson, the head of the United States, delegation.
"It's critical to meet the General Assembly goal of a treaty before the end of 1975," said Mr. Stevenson's deputy, John Norton Moore.
But while everyone here puts a good face on what is going on when speaking for the record, unofficially the participants in this third United Nations conference on the law of the seas since 1958 talk of stalemate.
The votes are there, says an American delegate, but the means for setting up a strong international authority for the deep seabeds are not. The private and national interests represented here seem as various and complex as the animal and plant life of the sea itself. There are nations with coasts, landlocked nations, powerful nations and underdeveloped nations – all with special axes to grind.
148 COUNTRIES
In the main conference hall, a theater that has been converted to look like the General Assembly hall in New York, hundreds of men and women, representing 148 countries, met daily. They are the core of the conference, the experts; most of them have been working on law of the sea for most of their mature lives.
Andres Aguilar of Venezuela, a veteran diplomat in matters involving the sea, presides over these meetings from a podium 10 feet high, set atop a stage, towering over the delegates. In the rear of the great room sits Louis B. Sohn of Harvard University, who has been occupied with sea law for 15 years. Toward the middle of the room are Joseph Warioba of Tanzania, a lawyer who has been working on the subject five years, Alvaro de Soto, a young Peruvian diplomat whose entire career is devoted to the search for a coherent law of the seas.
Their experience and expertise are typical of most others here, as is their zeal; they meet from early morning to late evening, and they confer while at meals.
What drives these men and women is a concern that without a new law of the seas, nations will assert more and more separate claims on fishing, on sea mining and on navigation, leading to international anarchy, new tensions and new conflicts.
The president of the conference, Hamilton Shirley Amerasinghe of Sri Lanka, likes to refer to the hoped-for document as a statement of agreement, whose language would be couched in actual treaty form, a document that would fall somewhere between a draft treaty and a declaration of principles.
One problem, a European diplomat says, is that such a statement "cannot be hammered out by voting; that would tear this conference apart. If a delegation feels its national interests are being outvoted," he went on, "it might simply pick up and leave. This must be done by consensus."
GEOGRAPHY A FACTOR
"Tell me the exact geographical situation of a nation," an American delegate said, "and I will tell you its exact negotiating position at this conference."
The United States, which has teamed up on some issues with other maritime nations such as the Soviet Union and Japan is making proposals along the following lines:
A 12-mile territorial limit as long as there is no interference with passage over and under straits. "Territorial seas" now vary from 3 miles to as many as 200.
Beyond the 12 miles, an 188-mile economic zone, each nation having exclusive rights there to submarine resources – many such projected zones are rich in oil and natural gas – but not to fish or navigation. Fisheries would operate under the principle of full utilization, international arbiters would step in when a "host" nation was not taking a certain amount of fish from the area to determine whether other nations might use it.
Establishment of an international agency that would issue licenses to nations or corporations to mine deep seabeds. The oceans are known to contain vast stores of maganese nodules, from which nickel and copper can be derived. But only a few nations have the technological ability to do the mining.
UNITY VARIES
Unity at the conference among about 77 less developed nations varies from issue to issue. Some Latin-American states such as Peru and Ecuador simply want a 200-mile limit. But most of them, the delegates say, look for a 12-mile "territorial sea" with control over straits and an economic zone of about 200 miles, with exclusive rights to all resources, but not control over navigation, and full international ownership and control of the deep seabeds.
Still another group of about 40 nations, many of them land-locked, want to share in the resources of both the economic zone and the deep seabeds. Then there is a cluster of states like Norway and Australia that want full control to the limits of their continental shelves.
The voting procedure calls for each article to be carried by two-thirds of those present and voting, as long as that is a majority of all 148 nations represented here. But in each nation's proposal, agreement on any one issue is tied to agreement on all other issues.
This, as Jens Evenson, the head of the Norwegian delegation, sees it, means a queer kind of juggling, in which all the balls must be in the air at the same time, long enough for all to see that their interests are being accommodated.
And no nation represented here will make a fundamental concession until the others do. As an American delegate put it, "How can we wire Washington asking to make compromises when no one else around here is making any compromises?"
[From the New York Times, Aug. 4, 1974]
PROTECTING THE ECONOMY OF 200 MILES OF OCEAN
(By Evan Luard)
LONDON.– Discussion at the Caracas conference on the Law of the Sea is increasingly focusing on the proposal for a 200-mile economic zone: that is, an area off the shores of a coastal State, within which it could exercise total control of economic resources, both those within the waters (mainly fish), and beneath them (mainly oil and gas). Already many countries, including both the rich (the Soviet Union, Britain, Australia and others) and the poor (China, most African and Latin American states), have indicated at least qualified support for the idea.
The proposal for a general economic zone emerged about two years ago among African and Latin American countries. It was produced as a compromise, modifying the more extreme claims of some of the Latin American states to a 200-mile territorial sea in which the coastal state would exercise full jurisdiction for all purposes. Recognizing that this was unacceptable to many maritime countries as a threat to free navigation, and conscious that economic rights in the zone were what mattered most to them, these countries proposed a zone in which the coastal state would enjoy economic rights only. The idea has since received support from a substantial number of the 149 nations attending the Caracas conference. Since most of the world's nations are coastal states and have an obvious interest in acquiring extended economic rights of this kind, it will scarcely be surprising if the proposal eventually wins majority support.
Even under the existing laws, many disputes have arisen about the dividing line between the seabed zones of neighboring states (between Greece and Turkey in the Aegean Sea, between Britain and France in the area south of Ireland, and between China, Japan and Taiwan in the China Sea). Such disputes will obviously become more frequent if a wider zone is accepted.
What would be the economic implications of an economic zone? Many of the most valuable resources of the oceans, both fish and minerals are found relatively close to the shore. Thus, if generally accepted, the proposal would mean that these resources would be appropriated by the coastal states, especially those with long coast lines such as the United States, Canada, Brazil, South Africa and Australia, many of them already wealthy countries.
The United States has nonetheless not so far supported this concept. Washington originally proposed a more complex scheme under which there would be three economic zones: One would stretch to the 200-meter depth line and would be fully under the control of the coastal state. Another would be a wider trusteeship zone, where the coastal state could control exploitation but would share the royalties with the international community. The third would cover the deeper areas, such as those containing the huge deposits of ferro-manganese nodules that could become a prime source of copper and nickel, where exploitation would be fully under international control.
One reason the United States preferred such a solution was that it seemed more likely to preserve freedom of navigation in all areas beyond the 200-meter line, a matter of concern to the United States Navy and to American shipping generally. The scheme, which covered seabed exploitation only, would also have allowed American fishing fleets continuing rights even within areas within the so-called "trusteeship zone" of other countries.
United States fishing fleets have for years been in conflict with the governments of Ecuador and Peru, which have from time to time arrested vessels fishing within the waters they claim. The acceptance of a 200-mile economic zone would put those governments in the right and prevent action by the United States Government in support of those fishermen in such cases.
It may be that eventually there will be some kind of compromise between the "trusteeship zone" ideas.
For example, the United States might accept a limit of 200 miles for the zone of economic jurisdiction, but demand that there should be, as in its own proposals, some sharing of revenues from the zone with the international community. This would help to meet the concern of the 60 or 70 states that are either land-locked or shelf-locked (that is, their continental shelf immediately abuts that of other states), who would otherwise be unable to benefit from the most valuable areas of the ocean. Without this, such states could only benefit from the international system, which, it is generally agreed, would operate in the outer areas. There an international authority will take the royalties from exploitation and distribute them to all states with special consideration for poorer countries. The larger the zone taken by coastal states, therefore, the less the proportion of the resources and revenues that would be available to the international regime.
A system by which some part of the revenues in the 200-mile zone, perhaps from the outer half of it, went to the international system would thus represent a fair balance of interest between the coastal states and the non-coastal, or partially coastal, states.
The question of rights to seabed resources is not the only question to come up at Caracas. There has been much discussion on the questions of the breadth of territorial sea, the area fully under the jurisdiction of the coastal state. It is now clear that a majority of states would accept a 12-mile zone. In the case of most maritime countries, however, including the United States, this would be only on condition that there was some guarantee of free navigation for naval as well as merchant vessels through the many international straits that would, as a result, come entirely within territorial waters. A number of the states that control such straits, such as Malaysia and Indonesia, have declined to give this assurance and there may be prolonged disagreement on this point.
[From the Washington Post, July 30, 1974]
THE LAW OF THE SEAS
A pattern of international law, replacing a patchwork, is being laid upon the world's oceans for the first time at the Law of the Sea Conference in Caracas. The developing consensus would extend the territorial sea of coastal states to 12 miles; establish an "economic zone" out to 200 miles in which coastal states would, with certain exceptions, control fishing and mining; and create an international program or "regime" outside the 200-mile line to mine the deep seabed as the "common heritage" of mankind. Sharp disagreements still exist among the 149 participants at Caracas and there is no assurance that the full text of a treaty will be reached in this summer's session. But it is clear that the old system – or non-system – of rights and responsibilities which has prevailed on the high seas is gone.
The very concept of "high seas," open equally to all, is buckling as particular nations asset sovereignty or special rights over areas further and further from their shores, and as the international community collectively asserts certain kinds of authority over areas further out. If a country holding an offshore island can claim a 200-mile economic zone around it, for instance, then the whole of the Mediterranean and Caribbean Seas and about half the Pacific Ocean become subject to national claims. To make the deep seabed a "common heritage," moreover, is to impose new controls there as well. These would reduce the existing freedom of private or national entrepreneurs in order to spread the expected mineral benefits to states not in a position to exploit them themselves.
This drive to write new rules for the sea results from the world's growing hunger for the sea's resources, from the increasing sophistication of the technology with which to exploit these resources, and from the growing likelihood that nations striving for them will take arms if law is not first applied. Unsurprisingly, it is those nations with long coastlines, plentiful resources near their coasts (both in the water and under the seabed) and advanced technology which are in the strongest position to get what they want from the high seas. More than any other country, the United States has all three. But this does not mean it can go it alone.
With its great navy and its global political role, the United States needs the right of continued, politically uncluttered transit through the various international straits which would fall within one or another state's territorial waters under a 12-mile territorial-sea rule. This is a major goal for the American negotiators at Caracas.
Fishing is a knotty problem. Japanese and Russian "distant-water" fleets have grossly over-fished haddock and salmon stocks, for example, off the American coast. But the United States has been reluctant to invoke a 200-mile economic zone because its own tuna and shrimp fleets fish within 200 miles of other nations' shores. Washington is now ready to accept the 200-mile concept but it wishes to keep some fisheries open to its tuna and shrimp fleets and, most important, to ensure that effective conservation and resource management measures are adopted all around.
As to a deep-seabed international regime to extract minerals for the "common heritage," the United States would have the new authority to simply license the exploiters and distribute the licensing revenues. But the Chinese, seeking a Third World leadership role, would arm the authority with the power to do the exploiting itself.
American fishing, gas and oil, mining and maritime operators naturally have a strong commercial interest in any new international rules of the sea, just as the U.S.. government has a strong diplomatic and military interest. These interests, complex and sometimes contradictory, are all reflected in the American proposals at Caracas. Some mining and fishing groups have persuaded Congress to draft legislation that would, if enacted, preempt international decisions on crucial issues. Wisely, Congress has not acted on this legislation. The United States as much as any nation, needs the cooperation of others on the high seas. It can hardly expect to get such cooperation – indeed, its example will only breed conflict – if it acts alone.