1 This article is a sequel to Stevenson, & Oxman, , The Preparations for the Law of the Sea Conference,68 AJIL 1 (1974);The Third United Nations Conference on the Law of the Sea:The 1974 Caracas Session,69 AJIL 1 (1975);The Third United Nations Conference on the Law of the Sea: The 1975 Geneva Session,69 AJIL 763 (1975); and Oxman, The Third United Nations Conference on the Law of the Sea: The 1976 New York Sessions, 71 AJIL 247 (1977).Google Scholar

2 Cabinet members and other high ranking officials of a significant number of governments Attended’ the Conference. The air of anticipation was heightened by the appearance of new participants representing new governments, including Ambassador-at- Large Elliot L. Richardson, Special Representative of the newly elected U.S. President, and Shanti Bhushan, Law Minister in the new Government of India.

3 UN Doc. A/CONF.62/WP.10, July 15, 1977, reprinted at 16 ILM 1108 (1977) [hereinafter cited as ICNT].

4 See Explanatory memorandum of the President, UN Doc. A/CoNF.62/WP.10/Add. 1, July 22, 1977, 16 ILM 1099 (1977).

5 As the substance of the preamble and final articles had not been discussed by the Conference, their inclusion could not reflect the negotiations; nevertheless, the attempt to avoid controversy is notable.

6 Given the history of this problem, it is evident that Minister Evensen had succeeded in many respects in narrowing deeply divisive issues of approach and concept to questions of degree. Such questions can and often do control the ultimate success or failure of a negotiation. It is by no means clear that those questions could have been succesfully resolved had his efforts been more closely pursued. What is clear is that the proposed solutions to those questions in the ICNT, taken as a whole, are not a basis for agreement.

7 Those who are skeptical of the ultimate impact of the Conference on international law, or impatient with the slow pace necessitated by consensus procedures, might consider not only the burgeoning state practice on the economic zone modeled on the negotiating texts, but the fact that on an “older” legal issue, namely, that of continental shelf delimitation, the French Government requested a court of arbitration to look to the informal negotiating texts before the Conference as evidence of international law applicable to the parties; the British Government, it would seem from the opinion, considered it prudent to respond by emphasizing the measure of dispute over the particular provision in question rather than the general premise; and the court chose to avoid the issue by pointing out that its approach was in any event consistent with the provision in question. Delimitation of the Continental Shelf (France/United Kingdom), French Submission in its Reply, at 12, para. 3; French Submission of Feb. 2, 1977, at 20, paras. 3 & 5; Opinion, June 30, 1977, at 102-04, paras. 96-97 (English text). For further comment on this arbitration, see Colson, The United Kingdom- France Continental Shelf Arbitration, infra p. 95.

8 Statement by Ambassador-at-Large Elliot L. Richardson, July 20, 1977: The Informal Composite Negotiating Text resulting from this session of the U.N. Law of the Sea Conference evidences real progress on vital issues relating to international security and freedom of navigation. At the same time it substantially sets back prospects for agreement on an international regime for the conduct of seabed mining. Both the substance of the text on this issue and the lack of fair and open processes in its final preparation require me to recommend that the United States undertake a most serious and searching review of both the substance and procedures of the conference.

9 See Oxman, , supra note 1, 71 AJIL 251-59.Google Scholar

10 This might be contrasted with freedom of fishing on the high seas, where no attempts in fact were made to internationalize the benefits of and participation in open competition, only reluctant attempts were made to control its impact on the resource, and only meager attempts were made to control its social impact on weaker competitors. Over 90% of the world’s fisheries will now be removed from direct global competition. Not even coastal states deeply committed to free competition are subjecting their own fishermen to direct outside competition to the extent of the “harvesting capacity” of coastal state vessels. Indeed, the European Community is encountering difficulties over reservation of areas and quotas to member states.

11 Convention on the Territorial Sea and the Contiguous Zone, done April 29, 1958, 15 UST 1606, TIAS No. 5639, 516 UNTS 205, 52 AJIL 851 (1958).

12 ICNT, Art. 3.

13 ICNT, Part III.

14 ICNT, Art. 45.

15 Compare ICNT, Arts. 34-44 with ICNT, Arts. 8(2) & 17-32.

16 ICNT,Part XII, Art. 234; see Part III, Arts. 39(2), 42 & 43.

17 Compare ICNT, Art. 52 with Arts. 53-54.

18 ICNT, Art.

19 ICNT, Arts. 21-24.

20 ICNT, Arts. 21-23, 211, 212, 217-18, 221, 224-28, 230-33, & 235-37.

21 Informal Single Negotiating Text, Part II, Art. 18(2). Parts I, II, and III of the text appear at 4 ThirD United Nations Conference on the Law of the Sea, Off. Recs. 137, UN Doc. A/CONF.62/WP.8 (1975), reprinted at 14 ILM 682 (1975); Part IV of the text appears in 5 UNCLOS Off. Rec. I l l, UN Doc.A/CONF.6 2/WP.9, 15 ILM 61 (1976) [hereinafter cited as SNT with the relevant Part indicated in parenthesis] .

22 Revised Single Negotiating Text, Part II, Art. 20(2). Parts I, II, and III of the text appear at 5 UNCLOS, Off. Recs. 125, UN Doc. A/CONF.62/WP.8/Rev. 1 (1975); Part IV appears at 6 id. 144, UN Doc. A/CoNF.62/WP.9/Rev. 2 [hereinafter cited as RSNT with the relevant Part indicated in parenthesis].

23 ICNT, Arts. 21(2) & 2 5 (2). It should be noted, however, that actual pollution of the territorial sea is subject to coastal state legislative and enforcement jurisdiction, that violation in the territorial sea of generally accepted standards on such matters as construction is subject to coastal state enforcement jurisdiction, and that coastal state proceedings for violations in the territorial sea are not preempted by flag state proceedings. ICNT, Arts. 21(1) (f), 221(2), & 229. Moreover, if a vessel unlawfully discharges pollutants in the territorial sea, the coastal state’s opinion of its construction, manning, equipment, or design could of course affect the severity of die penalty. It might also be noted that routine enforcement of construction regulations at sea, that is with respect to vessels not entering port, would in any event be costly, potentially hazardous, and raise serious questions regarding the hampering of innocent passage. See ICNT Arts. 24, 212(3), 221(2). Finally, it might be noted that two or more states could cooperate to establish higher construction, manning, equipment, and design standards for port entry in order to cover the ships off the coast of one state that are proceeding to the ports of another.

24 ICNJ, Art. 33.

25 Stevenson & Oxman, The 1975 Geneva Session, supra note 1, at 771-73, particularly 771 n.10.

26 ICNT, Art. 27(5); see Art. 221, paras. 3, 5, & 6.

27 Such a statement is necessarily based on evaluations and observations that do not easily admit of documentation. The author might, in this connection, note a delicately worded but fairly clear remark regarding the Strait of Gibraltar by a wellinformed group of Soviet commentators, mainly holding international legal positions in the Foreign and Defense Ministries: “At the present time all merchant vessels and warships can pass through the strait without restriction.” P. B. Barabolya, A. S. Bakhov, L. A. Ivanaschchenko, D. N. Kolesnik, V. D. Logunov, S. V. Molodtsov ,& Y. N. Nasinovsky, Manual of International Maritime Law (unpublished translation,1966).Nevertheless, some reflection might reveal to the reasonably informed nongovernmental observer of international events some fallacies inherent in theoretical positions that extension of the regime of innocent passage in straits conforms to state practice. For example, one might speculate that the theorists would have difficulty accounting for known or probable movements of substantial numbers of the world’s submarines between seas and oceans by attempting to count those navigating on the surface in straits; moreover, they would do injustice to straits states were theyto propound questionable requirements of open and notorious behavior for evidence of state practice, thereby implying a fairly incredulous, or at least embarrassing, level of naiveté and preparedness among such states.

28 Article 45, which applies the regime of nonsuspendable innocent passage to certain types of straits deemed of somewhat different international significance, such as those connecting high seas to the territorial seas of a foreign state, should be read in this context. Attempts by coastal states to eliminate exising transit rights by extending their territorial seas in a semi-enclosed sea so as to bring access routes within an Article 45 approach under customary international law probably would not succeed in the face of the practical considerations that underlie the general principle of transit applicable to most straits. In this sense, the combination of the transit passage concept and the economic zone concept outlined in the text may in fact finally stabilize the law of the sea by providing coastal states with basic jurisdictional protections without the need to extend territorial seas and by making clear that further extensions of the territorial sea could not in any event cut off access routes between points outside that state or restrict their use to innocent passage.

29 Vessels within straits, in a juridical sense, are closer to the coast than the minimum distance for intentional discharges under widely accepted international regulations, particularly the long-established 50-mile “no discharge” zone for intentional discharges of oil and oily substances. The texts before the Conference require ships in transit to “comply with generally accepted international regulations, procedures and practices for the prevention and control of pollution from ships,” and permit the straits state to “make laws and regulations relating to transit passage through straits, in respect of … the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait.” ICNT, Arts. 39 (2) (b) & 42 (1) (b) ; see RSNT (II), Arts. 38 (2) (b) & 40(1) (b) .The idea of a prohibited zone for discharges of oil extending at least 50 nautical miles from shore was incorporated in the IMCO Convention of 1954, retained in amendments to that Convention, and combined with prohibited zones of at least 12 nautical miles for discharges of other noxious substances in the successor IMCO Convention of 1973. There would seem to be little doubt that existing generally accepted prohibitions, as evidenced by the repeated prohibitions in the IMCO conventions, in effect prohibit international discharges of oil and other noxious substances in straits. See International Convention for the Prevention of Pollution of the Sea by Oil, done at London, May 12, 1954, Art. Ill & Annex A, para. 1, 12 UST 2989, TIAS No. 4900, 327 UNTS 3. International Convention for the Prevention of Pollution from Ships, opened for signature Jan. 15, 1974, Annex I, reg. 9; Annex II, reg. 5; Annex IV, reg. 8; Annex V, reg. 3. IMCO Doc. MP/CONF./WP.35 and MP/CONF./WP.21 & Add. 1-4, reprinted at 12 ILM 1319 (1973).

30 ICNT, Art. 243.

31 ICNT, Art. 46.

32 Id., para (a).

33 ICNT, Art. 47.

34 ICNT, Art. 49.

35 ICNT, Arts. 52 & 53.

36 ICNT, Art. 53.

37 ICNT, Arts. 47(7) & 51.

38 Compare ICNT, Art. 53(3) with Art. 38(2).

39 ICNT, Art. 53(4).

40 Id.,paras. 7 & 9.

41 The difference in wording between Article 41(4) and Article 53(9) on sealanes and traffic separation schemes reflects the fact that the archipelagic submission to the organization would normally be unilateral, albeit after informal discussions with user states; in the case of straits, frequently several states border the strait and they must cooperate in consultation with the organization in formulating proposals under Article 41(5). “The requirement of prior adoption by the competent international organization before implementation is the same in both cases.

42 See Oxman, supra note 1, 71 AJIL at 260-63. ICNT Articles 57, 59-70, & 72-75 are substantively the same as the equivalent articles of the RSNT. The corrections in Article 56 do not alter the substantive elements of the zone. New Article 55 and the changes in Article 58 are related to the question of the status of the zone and will be discussed along with Article 56. New Article 71 relieves a coastal state “whose economy is overwhelmingly dependent on the exploitation of the living resources of its exclusive economic zone” from the obligations of Articles 69 and 70 to neighboring landlocked and geographically disadvantaged states.

43 See SNT (II) Art. 45; RSNT (II) Art. 44. ICNT, Art. 56 is as follows:

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the sea-bed and subsoil and the superjacent waters, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of the present Convention with regard to:

(i) the establishment and use of artificial islands, installations and structures;

(ii) marine scientific research;

(iii) the preservation of the marine environment;

(c) other rights and duties provided for in the present Convention.

2. In exercising its rights and performing its duties under the present Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of the present Convention.

3. The rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.

44 There was no disagreement that certain new coastal state rights specified in the Convention (e.g., pollution enforcement rights) would affect these freedoms or that these freedoms must be exercised in the economic zone with due regard to the rights and duties of the coastal state under the Convention.

45 Even ardent sui generis proponents were astonished to learn that there was a basis in fact for these concerns in some insufficiently informed oral remarks of employees of certain nonmaritime specialized agencies, and they readily granted the need for clarification.

46 Convention on the High Seas, done April 29, 1958, 13 UST 2312, TIAS No. 5200, 450 UNTS 82, 52 AJIL 842 (1958).

47 ICNT, Art. 59 (identical to SNT (II), Art. 47(3), RSNT (II), Art. 47).

48 ICNT Article 56(1) is set out at note 43 supra.

49 The decision to crossreference Article 87 in paragraph 1 for purposes of identifying the freedoms, but not to crossreference Article 87 generally in paragraph 2 of Article 58, led to the movement of the prohibition on sovereignty claims from what is now Article 87 (RSNT (II) Art. 76) to a new Article 89, so that it would be incorporated by reference by Article 58(2). It might be noted that nothing in the economic zone articles is “incompatible” with Article 89 or, indeed, with most of the other articles incorporated by reference. It is simply inadmissible to argue that a prohibition on sovereignty in a treaty that permits sovereign rights and jurisdiction for certain specified purposes is incompatible with the sovereign rights and jurisdictional provisions; quite to the contrary, the combination expresses exactly what is meant by the economic zone and, for that matter, the continental shelf. Obviously, in areas beyond the economic zone and continental shelf, the prohibition should be read in the context of articles that do not provide for sovereign rights.

50 A, general allergy to references to international law has been apparent in the negotiation of the Convention as a whole from the outset. The reasons vary. One has been a concern that references to international law could have the effect of prejudicing or narrowing new rules established in this Convention. The wording of the new fourth preambular paragraph (“[a]ffirming that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention“) seems to attempt to present the obvious legal point that not all international law is being altered but with careful regard to the reticence of certain delegations on this matter. Generally, textual references to international law have been included where the matter is not particularly controversial, where delegations desire to avoid the controversy inherent in dealing with the matter, or where the international law in question is outside the scope of this Conference, as where allusion is made to general principles of international law rather than just law of the sea principles. Nevertheless, in some places references to international law have been omitted even in these cases on the ground that it is obvious that international law applies.

51 Convention on the Continental Shelf, done April 29, 1958, Art. 5(8), 15 UST 471, TIAS No. 5578, 499 UNTS 311, 52 AJIL 585 (1958).

52 See ICNT, Arts. 249-50.

53 See ICNT, Art. 253. Those who argue that no treaty would be better for science share the author’s dismay at the suspicious and restrictive attitudes toward science displayed in state practice and at the Conference. Nevertheless, they might consider that no presumption of consent in the absence of response could be relied upon without clear agreement to that effect by the coastal state in advance. They might reflect upon what might be offered to obtain such an agreement in bilateral negotiations and whether such costs would be drawn from overall resources available for scientific purposes.

54 See RSNT (III), Art. 60.

55 RSNT (III), Art. 61.

56 ICNT, Art. 250(1)(d) & (2).

57 Adede, Law of the Sea—The Integration of the System of Settlement of Disputes under the Draft Convention as a Whole, infra p. 84.

58 In this connection, interesting questions arise with respect to states that have to some extent pooled their resources. For example, access by other states to fisheries within the 200-mile fisheries zone off the coast of the nine European Community States is negotiated by the Community. The European Community States are discussing the inclusion in the law of the sea treaty of special provisions regarding the general question of economic communities.

59 ICNT, Arts. 74 & 83. See Explanatory memorandom, supra note 4, at 11.

60 Delimitation of the Continental Shelf (France/United Kingdom), Opinion, supra note 7, at 102-04, para. 96.

61 SNT (II), Arts. 61(3) & 70(3).

62 ICNT, Art. 297(1) (a).

63 ICNT, Art. 82.

64 See Stevenson & Oxman, The 1975 Geneva Session, supra note 1, at 782, including n.43.

65 Statement by the President on United States Oceans Policy, May 23, 1970, UN Doc. A/AC.138/22, 62 Dept. State Bull. 738, 9 ILM 806 (1970); U.S. Draft United Nations Convention on the International Seabed Area, Arts. 4, 28, and Appendix A, paras. 6 & #x002A; & 10, and Appendix B, para. 9, 25 GAQR, Supp. (No. 31) 130, UN Doc. A/8021 (1970).

66 See RSNT (II), Art. 70(3).

67 ICNT, Art. 82(3).

68 ICNT, Explanatory Memorandum, supra note 4, at 10.

69 In effect, this is a determination of jurisdiction over the continental rise. Measurement commences where the continental slope first meets the continental rise (or, in the absence of a continental rise, the deep ocean floor). Significant changes in surface gradient are associated with this intersection. The coastal state can either assume that its continental rise is sixty miles wide or it can proceed to the point where the continental sediment thins to one percent of the distance from the foot of the slope.