Richardson, Elliot L.

English

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Inter-American Law Review12-1-1978United States Interests and the Law of the SeaElliot L. RichardsonFollow this and additional works at: http://repository.law.miami.edu/umialrPart of the Law of the Sea CommonsThis Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Inter-American Law Review by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationElliot L. Richardson, United States Interests and the Law of the Sea, 10 U. Miami Inter-Am. L. Rev. 651 (1978)Available at: http://repository.law.miami.edu/umialr/vol10/iss3/1United States Interests and the Law of the SeaAMBASSADOR ELLIOT L. RICHARDSON*In 1973 the Third United Nations Conference on the Law of theSea began the formidable task of developing a comprehensive legalregime to govern the world's oceans. In the brief paper that follows, Iwill attempt to outline the major concerns that have guided theUnited States in this long and arduous, yet vital treaty-making pro-cess.GLOBAL ORDERIn general terms, U.S. foreign policy aims at stability, predicta-bility, and order in world affairs. We seek ways of avoiding or, ifnecessary, resolving international conflicts by peaceful means withinthe framework of an established international legal regime. Thesegoals take on concrete meaning in the law of the sea context, sincethe world's oceans are fast becoming an area of dispute over compet-ing or overlapping claims. A comprehensive Law of the Sea (LOS)treaty might, for example, have prevented the "Cod War" betweenthe United Kingdom and Iceland in 1976.Recent trends indicate that such conflicts are likely to increase inthe absence of international remedial action. A treaty can provide thebasis for generally agreed perceptions of the various rights and dutiesof states in the oceans and create relative stability of expectations.Moreover, if the Law of the Sea Conference should succeed in pro-ducing a widely-accepted treaty, it would provide a precedent forsolving global problems on a universal basis, particularly in the U.N.framework.In addition to demonstrating the capacity of multilateral negotia-tions to substitute the rule of law for the clash of conflicting claims,the treaty should provide specific means of resolving the disputeswhich will inevitably result from its interpretation and application.The United States has accordingly advocated the inclusion in the LOSTreaty of a system of compulsory and binding dispute settlement.Before the LOS Conference commenced its work, many coun-tries refused to accept a compulsory and binding international disputesettlement mechanism in any important area. Agreement on such a* Special Representative of the President of the United States to the United NationsConferences on the Law of the Sea.LAWYER OF THE AMERICASmechanism would mark an important precedent and could provide anew and dependable basis for both the settlement of interpretive dis-putes and for the application of rules to changing circumstances. If astate chose to ignore a binding decision, any sanctions applied againstit would rest on a firm foundation of legitimacy. The creation of asatisfactory LOS disputes settlement mechanism could also have afavorable spillover effect by serving as a model for the creation ofother international functional tribunals.Apart from our general interest in global stability, the UnitedStates has several specific interests that must be protected in anytreaty that emerges from the Law of the Sea negotiations.MINERAL RESOURCES OF THE DEEP SEABEDOne such interest is in the development of the mineral resourcesof the deep seabed.The most important known resources of the deep seabed aremanganese nodules, which contain exploitable quantities of nickel,manganese, cobalt, and copper. Heavy concentrations of nodules areunevenly distributed over the floors of the world's oceans. Estimatesof their potential to supply world needs for the constituent metalsvary widely, and, of course, the financial viability of seabed miningdepends upon comparative costs between land-based and seabed pro-duction. Nevertheless, it is widely agreed that nodules represent avery important and potentially major source of these metals for thefuture. Other resources of the deep seabed, such as metalliferousmuds, radiolarian ooze, and geothermal energy may be important inthe future.Although there is no immediate threat of a physical shortage ofany of the materials existing or thought to exist on the seabed, wemust plan for the time when rich land-based reserves are depletedand the seabed may well become the most cost-efficient, and perhapsessential, source of vital materials. Although seabed mining will notbecome a large industry until late in this century, the possibility ofsupply restrictions could arise if seabed resources were then con-trolled by a supranational organization which in turn was controlledby countries indifferent or unfriendly to our interests. Assuring statesand their citizens direct access to seabed resources on a nondis-criminatory basis would eliminate this danger and avert the concomi-tant danger to world order that would arise should attempts be madeon political grounds to deny the industrialized countries resourcesthen essential to their welfare.UNITED STATES INTERESTSDeveloping the technology needed to exploit the deep seabedsshould be a matter of considerable interest to all nations. Consumersand potential consumers have a stake in the outcome of this effort, fortheir own national development may be linked indissolubly to an as-sured supply of the minerals found on the ocean floor.Four consortia of multinational companies have already invested$150 million in research and development. If it proves economicallyand technologically feasible, commercial mining could begin in themid or late 1980's. The ultimate investments involved (including on-shore processing) are about $700-900 million in current dollars for athree million ton per year dry nodule operation.With these concerns in mind, it has been a basic U.S. objectiveat the LOS Conference to establish a seabed mining system thatwould ensure the economically efficient and environmentally sounddevelopment of seabed mining. Thus, we require that a treaty pro-vide for assured access and security of tenure for states and theircitizens to deep seabed mineral resources, on a nondiscriminatorybasis, and on reasonable terms and conditions. Such a system wouldinclude governing and administrative organs reflecting the real in-terests of the various states involved, and would establish financialconditions that would allow operators a reasonable return and a realchoice between mining independently or in cooperation with an en-tity established to mine on behalf of the international community. Ona broader scale, we wish to create successful international institutionsin the seabeds negotiations that could serve as models for other formsof North-South economic cooperation.Our aims are in harmony with the concept voiced by the UnitedNations General Assembly in 1970 that deep seabed resources are the"common heritage of mankind." Implicit in this declaration is theview, which we support, that the deep seabeds will be exploited tothe advantage of all countries, especially those that are less de-veloped. It is through a treaty that the common heritage will becomea reality.NON-LIVING RESOURCES OF THE CONTINENTAL SHELFClose to sixty percent of the world's oil and gas reserves areestimated to be in the continental margin. Customary internationallaw and the 1958 Geneva Convention on the Continental Shelf pro-vide for coastal state continental shelf resource jurisdiction to the ex-tent such resources are exploitable. The United States has a broadcontinental margin and benefits from coastal state control over theseLAWYER OF THE AMERICASresources. The major outstanding issue in this regard is how farcoastal jurisdiction should extend where the margin is more than 200miles from shore.The United States has a significant interest in maximizing worldenergy supplies and thus in encouraging exploration and exploitationof hydrocarbons of the continental margin, including those parts lo-cated beyond 200 miles. Our immediate goals are to decrease U.S.dependence on petroleum imports and to increase petroleum supplyin the interests of stable markets until such time as alternative andrenewable energy sources become economical. We also wish to fosterbroad international acceptance of a precise legal and scientific defini-tion of the outer limit of the continental margin. At the same time wesupport the equity of sharing the revenues derived from the exploita-tion of the hydrocarbon resources of the continental margin beyond200 miles with the less developed countries of the world.LIVING RESOURCESThe United States has a major interest in the rational and orderlydevelopment of the oceans' living resources. Fish constitute an im-portant source of protein for both the United States and the world(presently ten percent of world protein consumption-and increas-ing). The world catch of fish has tripled in the last thirty years, andU.S. consumption has doubled since 1945. Most governments realizethat due to increasing fishing pressure, these resources need to beconserved and managed judiciously. Thus, the general acceptance ofrational international standards and principles for conservation andoptimum utilization of marine living resources is a major U.S. objec-tive.A Law of the Sea Treaty would establish fundamental and criticalstandards and principles pertaining to fisheries-standards and prin-ciples which, given a comprehensive treaty regime, would be viewedby most states as binding. As in other issues involved in the LOSnegotiations, the United States also has several specific interests re-garding fisheries resources.We have a substantial economic and commercial interest inhighly migratory species, particularly tuna. Our tuna fleet is thelargest and most sophisticated in the world and we consume aboutfifty percent of the total world catch of tuna.We have a major economic and conservation interest in ensuringrecognition of the U.S. primary interest in U.S. origin salmon, bothinside and outside our 200-mile zone.UNITED STATES INTERESTSProtection and conservation of marine mammals is of no less im-portance. In the course of negotiations we have put forward a pro-posal that clarifies the present text and permits states and interna-tional organizations to prohibit or limit the harvesting of marinemammals. This proposal permits them to implement standards morestringent than international standards contained in any LOS treaty.Another of our aims is to acquire and maintain access to fishstocks within the 200-mile zones of other countries. A comprehensivetreaty could serve our national interest in gaining access to fisheriesoff the coasts of other States because it would enhance recognition ofthe principles of access and optimum utilization. Bilateral agreementswill still be needed to implement the principles.MARINE SCIENTIFIC RESEARCHThe American marine scientific research community occupies aleadership role in seeking new knowledge of the ocean environment.It believes that such information can benefit humanity on a globalscale. Increased understanding of the monsoon, for example, may becritical to the development-and indeed, the survival-of millions ofpeople. In a like vein, marine scientific research can lead to the de-velopment of new sources of protein and energy. Human demand forthese is great today. That future demand will be greater by mag-nitudes is inexorable.Much of this research would be carried out within 200 miles offoreign coasts. The United States seeks to promote the greatest accesspossible to the 200-mile economic zone of all states so that researchcan be conducted systematically under predictable conditions.Almost all coastal developing countries, however, feel that theirresource and national security interests can be adversely affected byscientific research carried out off their coasts. Consequently, theyhave argued that such research should require coastal state consent.Finally, the United States seeks to protect the freedom of re-search beyond the proposed exclusive economic zone both in thewater column and on the deep seabed.PROTECTION OF THE MARINE ENVIRONMENTOur objective in negotiations on protection of the marine envi-ronment has been to achieve a general obligation by the world com-munity to apply international regulations to all sources of marine pol-lution. This objective reflects more than self-interest: the benefits toLAWYER OF THE AMERICAShumanity now and for generations to come are obvious.We have been successful in achieving agreement on ocean dump-ing and continental shelf development regulations. In addition, weseek to retain -our right to control vessel source pollution in our portsand territorial sea consistent with domestic legislation, which au-thorizes the establishment of standards for vessels within our portsand territorial sea stricter than existing or contemplated internationalstandards.In view of the futility of trying to deal unilaterally or even re-gionally with certain forms of pollution that have no geographicbounds, however, the United States has attempted at the LOS Con-ference to foster international acceptance of a legal duty of all statesto observe minimum international environmental standards.Most countries can accept our approach, except insofar as wemaintain the right to establish and enforce higher than internationalstandards in the territorial sea against non-United States flag vessels.In that regard, we are opposed both by the major maritime nations,which are concerned with potential interference with their vessels,and by some developing countries which want to develop commercialfleets.COMMERCE AND NATIONAL SECURITYNinety percent of U.S. international trade is carried on theoceans. Our oil imports, virtually all by tanker, now amount to eightmillion barrels per day, and although forecasts differ, some expertspredict substantially higher imports in the coming decade. Liquifiednatural gas tankers are also expected to make an increasing contribu-tion to our imported energy supply. Both the embargo of 1973 andthe severe winter of 1977 have highlighted the importance of the un-interrupted movement of energy. Protection of freedom of navigationfor tankers and other commercial vessels is extremely important.Since our Armed Forces operate on a worldwide basis, theUnited States has a compelling interest in assuring global mobilityand freedom to use the seas and the airspace above them for nationalsecurity purposes. Most, but not all, countries recognize that oursecurity interests and those of other major powers must be satisfied ifthere is to be general agreement on a treaty.In recent years challenges to traditional high seas freedoms havecaused problems in two major categories. First, many States haveextended their territorial sea limits beyond the traditional three milesrecognized by the United States. Second, certain States have pur-UNITED STATES INTERESTSported to assert jurisdiction over navigation and overflight in broadexpanses of the high seas. We do not recognize such claims and in-deed we exercise our high seas freedoms of navigation and overflightin such high seas areas.At the LOS Conference we have agreed to a 12-mile territorialsea, but only if there is agreement that assures free transit through,over, and under straits used for international navigation that would beoverlapped by such seas.National assertions of jurisdiction over living and non-living re-sources out to 200 miles has increased. There is broad agreement atthe Conference on a 200-mile exclusive economic zone (EEZ) as partof a treaty so long as other traditional high seas freedoms beyond theterritorial sea are preserved.SUMMARY AND CONCLUSIONThe negotiating text currently before the Conference adequatelymeets our concerns in most of the areas previously discussed. Animportant exception is the regime for the development of deep sea-bed mineral resources. During the first part of the Seventh Session ofthe Conference at Geneva this spring, the text on deep seabed min-ing was improved over the former negotiating text. The seabed textremains seriously deficient, however, in many respects. Only iffurther improvements are made will we be able to accept a com-prehensive treaty that includes a seabed regime, no matter how ad-vantageous that treaty might be for other purposes.Our conviction that a comprehensive treaty is highly desirableremains firm. Establishment of a rule of law embodying both new andtraditional principles governing mankind's use of the oceans is a goaldeserving of all of our dedication, patience, and negotiating skill.Greater stability in international affairs, reduction of tensions and con-flict, and peaceful settlement of disputes are some of the benefits thatcan accrue to the world community.

United States Interests and the Law of the Sea

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United States Interests and the Law of the Sea

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